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The legal language describing who qualifies as a South Dakota resident when it comes to in-state hunting privileges is laid out in state law, but the real-world definition is now murkier than ever.
A recent drawn-out, highly charged criminal case in South Dakota could have further defined residency, particularly when it comes to so-called “snow birds” or part-time residents. Instead, the case has done the opposite, adding confusion rather than clarity to what it takes to become a resident and upending the life of a retired combat veteran along the way.
The recently settled criminal case in Aurora County has left the retired optometrist and veteran outraged and feeling persecuted, and has left state game officials and a local prosecutor disappointed that they were unable to convict the doctor of fraudulently obtaining resident hunting licenses.
Neither side of the equation says it feels good about the outcome of the case that involved an extensive two-year state investigation and cost the doctor nearly $20,000 in legal fees, and which even swelled to involve Kelly Hepler, secretary of the South Dakota Game, Fish & Parks Department.
The case has also called into question the language in the GFP “Hunting and Trapping Handbook” — of which 180,000 free copies are distributed annually — that guides people on how to qualify as a legal resident for hunting purposes.
The defendant in the 2019 case was Jeffrey Peters, 64, a retired optometrist and a lieutenant colonel who served 30 years combined in the Army and National Guard, including a stint with the 101st Airborne Division in 2003-04 in which he treated the medical and ocular issues of U.S. soldiers while at Camp Anaconda and other sites on the front lines of the war in northern Iraq.
A state game official involved in the case said Peters’ military record is laudable but is not relevant to the criminal case or whether he is a legal resident.
Peters was born and raised in Stickney, S.D., graduated from South Dakota State University, and spent most his career as an optometrist in Colorado.
Peters owns 581 acres of pastureland in Aurora County, and Peters’ goal in 2017, he said, was to shift his life back to South Dakota in retirement, including establishing residency and hunting on his farm.
But because Peters still has a home in Colorado where his wife still lives and where he spent most of his time from 2017 to 2019, a local GFP game warden, his supervisors and the Aurora County state’s attorney became determined to prove that Peters was not a legal South Dakota resident and had committed fraud.
Their certainty that Peters had violated the law led them to engage in an investigation that lasted nearly two years, delved deeply into Peters’ life and cost untold thousands of state dollars.
Before filing four misdemeanor charges against Peters in November 2018, state investigators obtained nearly two years of Peters’ cellphone records and correlated which cell towers were pinged; they drove by his South Dakota house at least 27 times and took 65 photos; they tracked his Facebook use; they interviewed his neighbors in White Lake and a contractor who worked on the property; they obtained real estate transaction and utility usage data; they recorded phone calls between Peters and an investigator; they examined UPS delivery information to both his homes; and they sent a state investigator to the Denver area in a failed attempt to interview Peters’ wife.
Peters called the investigation and prosecution “a nightmare” that has cost him more than $18,000 in legal fees, prevented him from hunting on his own land and shaken his faith in the GFP and the local prosecutor’s office. He also had a potential one-year jail sentence hanging over his head for nearly a year.
“It’s been a circus, a disgraceful circus what they put me through, an annoyance and a frustration for two full years,” Peters said. “Here I am a combat veteran, a doctor with a successful practice, and for some reason the state decided that no way are we going to let some high-speed doctor come in here and violate our residency rules.”
David Jencks, the Madison, S.D., attorney who represents Peters, said the state wanted to use Peters and the fact he owned a home elsewhere to set an example and clarify what he called “vague language” in state hunting-residency laws. He called the state’s prosecution “arbitrary and capricious” and said he believed the case somehow became personal for the local game warden and prosecutor and ultimately led to an unreasonable level of investigation.
“This wasn’t a rape or a murder or a million-dollar fraud, and in all my years I’ve never seen even close to this level of effort put forth on a misdemeanor case,” Jencks said. “This went on far too long, was over-investigated, over-thought and irrationally thought. How and why they picked on this guy, a decorated military veteran with more ties to South Dakota than most South Dakotans, I just don’t understand it and am at a loss to understand it.”
In the end, just days before a trial was about to begin in September 2019, the four charges against Peters were dropped, and the state offered a plea agreement to a single, lower misdemeanor administrative count of “applying for a license when ineligible.” On the advice of Jencks, Peters pleaded no contest, paid $310 in fines and court fees and did not lose his hunting privileges.
State: Peters is not a S.D. resident
Aurora County GFP conservation officer Lynn Geuke led the investigation into Peters’ residency. He refused to speak to News Watch but did say of Peters in a brief phone call, “Well, he was convicted.”
John R. Steele, the Aurora County State’s Attorney at the time of the Peters prosecution, pointed out that Peters had taken a homestead tax exemption on his Colorado property and that Peters had a prior misdemeanor conviction for illegally obtaining a resident hunting license in Lake County, S.D.
Peters pleaded guilty to that charge in 2016 and received a suspended imposition of sentence, effectively sealing the records from public view. Peters said he had researched residency laws before applying for that resident license and believed at the time he was in compliance by claiming residency at his brother’s house in Madison, but now acknowledges that he likely was mistaken. He said he learned a lesson from that incident and sought in 2017 to obtain residency legally according to guidelines in the hunter handbook.
The cellphone information tracked by the state indicated that Peters spent 52 days in South Dakota in 2017 and 67 days in 2018, according to records obtained by News Watch.
In an interview and a subsequent letter to News Watch, Steele said that given the results of the investigation, he and the GFP did not consider Peters a resident for hunting purposes, and that the prosecution was based on that decision.
Steele acknowledged that South Dakota hunter-residency laws as written create “a gray area that involves making some judgment calls” and that Peters’ dual residency became “the nub” of the case.
He said Peters may have generally followed the residency rules in the hunting handbook, but that Steele and the GFP took the position that a person’s true residency is ultimately based “on where you actually live.”
“The language of the handbook; I don’t know that it’s terribly relevant,” said Steele, who resigned as Aurora County state’s attorney in January and now serves as an unpaid deputy in the state’s attorney’s office. “The law speaks of residence, where you actually live … you can do everything on the checklist but if you don’t live here, you’re not entitled to resident hunting privileges.”
Based on the cost difference between resident and non-resident deer-hunting licenses in South Dakota, the monetary gain to Peters in the four crimes Peters was charged with would be about $700.
But the state’s motivation for prosecuting Peters goes far beyond the financial advantage he obtained by getting a resident license, said Emmett Keyser, southeast regional supervisor for the GFP Division of Wildlife.
Residents of South Dakota enjoy several opportunities for hunting that non-residents do not, such as being able to hunt waterfowl and pheasants in longer seasons, to hunt bighorn sheep or mountain goats, and to hunt elk in the Black Hills, Keyser said.
Legal residents expect that the GFP will uphold residency laws and investigate and prosecute those who may violate the laws, he said.
“It’s important to note how passionate residents are in protecting those opportunities and ensuring that people do not attempt to fraudulently become residents,” he said.
That view is supported by Chris Hesla, executive director of the South Dakota Wildlife Federation, a Pierre-based group whose motto is “Working to Preserve South Dakota’s Hunting & Fishing Heritage.”
Hesla said the state must be vigilant in prosecuting residency scofflaws to protect the rights of bona fide resident hunters, but also because actual residents pay regular taxes and license fees that support their ability to hunt. He added that people who live in South Dakota endure things like bad weather and low-pay jobs in order to obtain the benefits of “quality hunting and fishing and clean living” in a great environment.
“There’s a big distinction between a resident and a non-resident, and the money has nothing to do with it in terms of the different price of the licenses,” Hesla said. “Hunting and fishing is the reason a lot of people stay in South Dakota, and there has to be benefits to living here, because it certainly isn’t our pay.”
Peters: I followed the law as written
Peters and his attorney say Peters followed the law as laid out both in the hunting handbook and state statutes.
Before applying for a resident deer license in 2017, Peters bought a house in White Lake more than 90 days before applying. He paid to have it fixed up and built a shed in the back yard.
He also obtained a South Dakota driver’s license, registered his vehicles in Aurora County and registered to vote in South Dakota. He said he relinquished his Colorado residency and even purchased a non-resident license when he once returned to Colorado to hunt pheasants.
He applied for and received a South Dakota resident East River landowner deer license and resident small-game license in 2017.
But the day before the 2017 deer season opened, Peters said he received a phone call from Geuke, the GFP conservation officer. Peters said Geuke told him that he did not consider Peters a resident and that his deer tags were not valid. Furthermore, Peters said Geuke told him that if Peters killed a deer, he could be liable for civil penalties. Though frustrated, Peters decided not to hunt that year.
Thus began the full investigation into Peters’ living arrangements, movements, habits and use of his White Lake home.
The next fall, Peters once again applied for and received resident hunting licenses for deer and small game. Again, Geuke waited until just before the deer season started to confront Peters, though this time he appeared at his home with a sheriff’s deputy to confiscate the hunting tags and inform Peters that he was being charged with four counts of unauthorized procurement of a hunting license, a Class 1 misdemeanor punishable by up to a year in jail, a $2,000 fine or both. He was immediately released on his own recognizance.
While the hunter handbook lays out basic elements of residency, state law has language that is open to interpretation, indicating that a person must have a domicile for 90 consecutive days before applying for a license, make no claim of residency elsewhere and have a state driver’s license and vehicle registrations.
Defining the word ‘domicile’
The critical definition in Peters’ case, and the one that the case could have clarified, is that of “domicile.”
The law states: “A person’s domicile is that person’s established, fixed and permanent home to which the person, whenever absent, has the present intention of returning.”
Jencks notes that nowhere does the law say how many days a year a person must live in the domicile, or whether the person needs to stay there for any specific period of time, only that the person intends to return at some point, which Peters did at the White Lake home on a fairly regular basis.
South Dakota also has an uneven track record in regard to establishing residency. A 2019 South Dakota News Watch investigation revealed that thousands of people who only spend one night in the state have qualified as residents in terms of obtaining a driver’s license, registering a vehicle and becoming a legal South Dakota voter.
Peters and Jencks prepared for trial and agreed to continuances requested by the state. Steele had issued a dozen subpoenas in the case, both for witnesses and information such as Peters’ cellphone records.
Less than two weeks before the start of the Sept. 30, 2019, trial, Jencks filed a subpoena asking the court to require GFP Secretary Hepler to appear in court. Jencks wanted Hepler to explain how GFP defines a resident, what he knew about the investigation into Peters, and who had authorized such an extensive investigation.
Paul E. Bachand, special assistant to the state attorney general, filed a motion on Sept. 23, 2019, to quash the subpoena, arguing in part that, “some of the information sought would invade the client-attorney privilege and that other ideas were outside Secretary Hepler’s knowledge.”
The judge in the case, however, denied the state’s motion to quash and ordered that Hepler would have to appear and testify at the trial.
Just prior to the trial, Jencks said he was contacted by Steele, the prosecutor, offering to drop the higher charges and instead offer Peters a plea deal with no jail time, a small fine and no loss of hunting privileges. It was also agreed that Peters would be able to hunt as a resident moving forward.
In an interview with News Watch, Hepler said he was aware of the Peters case but only because he was subpoenaed to testify. None of the decisions surrounding the case or investigation rose beyond the level of regional GFP supervisors, Hepler said.
Hepler said departmental attorneys fought the subpoena because Hepler felt he had nothing to add to the case. He said he would have appeared if ordered to do so, and added that to his knowledge, his subpoena and the judge’s ruling upholding it had nothing to do with Peters’ being offered a reduced charge before trial.
“I would have appeared, but I thought it was foolish because I had no interaction with these people whatsoever,” Hepler said. “If they were making an assumption that I was directly involved in this case or that I directly made a decision on statutory law, that’s way outside what I do for a living.”
Steele would not discuss his reason for offering a plea.
Keyser, the GFP law enforcement supervisor, pointed out that the definitions of residency and domicile in state law are relatively new and somewhat open to interpretation. He noted that the Peters case could “potentially” have been a case that set precedent in terms of narrowing and clarifying those definitions.
Keyser said he still believes that Peters is not a South Dakota resident and that his home in Colorado is the permanent residence where he and his wife both live.
“In his defense, Mr. Peters has attempted to look at all the facts and try to meet all these standards as best he can, but it still boils down to whether his domicile is in South Dakota or in Colorado, and it can only be one,” Keyser said. “I’m sure he argues that, ‘I live in South Dakota and I live in this small little house in small-town South Dakota and never mind that $700,000 house or whatever I have in Colorado, this is where I live.’”
Keyser acknowledged that the investigation into Peters’ residency was extensive, and that someone who is the subject of a potentially precedent-setting case may suffer some cost and hardship.
“It probably seems like it’s kind of odd the we would look at that with that much scrutiny,” Keyser said. “But it could, as with any case, it has the potential to set precedent.”
Keyser said the investigation was initially driven forward by Geuke, the local game warden, but that eventually Steele, the state’s attorney, became the key player in deciding what investigative options would be pursued.
Steele told News Watch that, in regard to the extent of the investigative effort, “that’s not my bailiwick. The Game, Fish & Parks Department runs its affairs and it decides what investigations are warranted.” He added: “We did not run the investigation; that was run by GFP.”
Keyser said it was necessary to get all the facts needed to make a strong case that Peters was a non-resident when he applied for a hunting license.
“If you want to paint that in a negative light, that it seemed like we wasted a lot of resources to determine if he was really domiciled in South Dakota, you can make that argument,” Keyser said. “But at the same time, the public would always want us to do the right thing. At some point there’s probably a level of reasonableness in terms of the expenditure of time and effort, but it was still our intent to look at the definition of domicile to make sure we had all the facts we needed to have in terms of this case.”
Unusual step: Local guidelines written
After the case, Steele took the unusual step of authoring a new set of residency guidelines called, “Prosecution standards for part time residents seeking SD hunting licenses.”
Steele told News Watch the guidelines are “an internal policy” in place only for Aurora County and that the policy was distributed only to Jencks, Peters, Officer Geuke and Steele’s staff.
Steele and new Aurora County State’s Attorney Rachel Mairose told News Watch the policy was discussed as part of the plea agreement with Peters and then written and provided to Peters, Jencks and Geuke after the case had ended.
“It was our attempt to formulate a consistent policy that would be applicable to people who fall between the cracks, who have two residences in the sense of houses or other abodes and spend time in both of them,” Steele said. “How are we going to consistently handle those situations so that we’ve got clear lines of demarcation as to what we will look at as a violation of game laws and what we won’t?”
However, the local policy includes elements of residency that are not addressed in state law, such as defining “dwelling” as a structure with permanent electrical service, an indoor, functional kitchen and bathroom with hot and cold running water, and a sewage connection.
Now that the Peters case has ended, Steele said he still does not consider Peters a South Dakota resident but has agreed not to prosecute him further.
“Do I think he’s a bona fide resident at this point? No, I don’t,” Steele said. “But he’s jumped through enough hoops that, yeah, we’re going to make the call that we’re not going to prosecute this case. That’s what that policy is all about.”
Peters went deer hunting in November and had no interactions with Geuke or any other game warden. He said in February that he was considering a move to Rapid City.
Peters said he deserves an apology for the stress and heartache he has endured during the investigation and prosecution.
“I feel it’s very disgraceful that the GFP has had the opportunity to invade my life for the past two years,” he told News Watch. “With no apology from the game, fish and parks, nor the [GFP] commission nor the secretary nor the game warden. No one has offered an apology for taking control of my life for the past two years.”
About Bart Pfankuch
Bart Pfankuch, Rapid City, S.D., is the content director for South Dakota News Watch. A Wisconsin native, he is a former editor of the Rapid City Journal and also worked at newspapers in Florida. Bart has spent more than 30 years as a reporter, editor and writing coach. Contact Bart at firstname.lastname@example.org.