PIERRE | In a contentious, prolonged state board hearing on Thursday, a leader of a religious group seeking to draw more water for its Custer County compound lived up to the sect's reputation for secrecy by insisting he didn't know how many people live there.
Such answers from Seth Jeffs, the compound’s water-system operator, apparently are jeopardizing the sect's chances of getting the state Water Management Board's permission to drill an additional well.
Board members split 3-3 on whether to grant the permit, then decided to try again at their next meeting, which is on Oct. 14.
The United Order of South Dakota, the compound's owner, needs to justify its request for the additional water permit, board members said.
In the hearing, which was scheduled to last 90 minutes but continued for 6 hours, Michael Hickey, a Rapid City lawyer representing one of the neighbors, Linda Van Dyke Kilcoin, described Seth Jeffs to the board “as a convicted felon who takes orders from the prophet.”
Seth Jeffs' brother Warren Jeffs is the former FLDS president who is serving a life sentence in federal prison for two convictions for child sexual assault. Warren Jeffs is considered the prophet of the group.
Hickey vigorously interviewed Seth Jeffs and got a state employee to acknowledge that the accuracy of water-usage reports submitted by the compound were not verified by anyone with the Department of Environment and Natural Resources.
Board member Everett Hoyt of Rapid City stressed that Jeffs needed to reveal how many people live at the compound.
He is one of the brothers in the Jeffs family that runs the site for members of the Fundamentalist Church of Jesus Christ of Latter Day Saints, a polygamous sect apart from conventional modern Mormonism.
In the hearing, Jeffs repeatedly said he did not know the population at the compound and wasn’t authorized by the trustees to conduct a census.
He said his brother Isaac Jeffs is the trustee who in 2014 appointed him water system operator.
With the board deadlocked, Hoyt recommended continuing the hearing so the United Order could offer a witness authorized to testify about why the compound needs more water.
“I think it’s very clever. I like the idea,” said Rodney Freeman, a board member from Huron.
Hoyt said reopening the evidentiary hearing recognizes that Seth Jeffs said he lacked authorization to determine the population.
Freeman, who voted to grant permission for the well, said an October refusal to provide additional information to the board “might sway me to go another way.”
Jim Hutmacher of Oacoma and Chad Comes of Madison also favored approving the permit, while Hoyt, Tim Bjork of Pierre and Leo Holzbauer opposed it. The board's seventh member, Peggy Dixon of Rapid City, didn't attend the hearing Thursday and won't be allowed to vote on the final decision.
Freeman said before the tie vote that he found Jeffs’ non-answers about population “preposterous” and “offensive.”
But Freeman also emphasized the board doesn’t ask Hutterite colonies how many people live in their communities before granting water permits.
Various pieces of testimony put the population at possibly 75, based on a visit by state Department of Environment and Natural Resources employees in June 2014, and at possibly 126, which is the maximum capacity of the compound's wastewater-disposal systems.
United Order holds a 2007 permit granted by the board to United Land Management. Hoyt recalled that a witness at the 2007 hearing refused to answer the same kind of questions.
United Land Management transferred the 2007 permit to United Order in 2009 at the same time that United Order’s paperwork was filed as a common-law trust in South Dakota.
United Order then applied in 2014 for an expanded permit that would allow the compound to withdraw three times as much as water as currently allowed under the 2007 permit.
Various neighbors opposed granting the expanded permit, including the U.S. Forest Service and the National Park Service, which operates Jewel Cave five miles away.
Last month the Forest Service and the Park Service joined Seth Jeffs in an agreement that would allow the compound to draw twice as much water as it currently can at any given time, but would cap the annual amount at 60 acre-feet. There isn’t a cap now.
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Jeanne Goodman, the chief water rights engineer for the state DENR, originally recommended approval of the expanded permit because there is adequate water available, and there aren’t evident negative effects on other wells in the area.
Goodman subsequently submitted a revised recommendation that reflects the conditions reached between the federal agencies and Jeffs. In turn the federal agencies withdrew as intervenors in the case.
Her recommendation puts a 20-year cap on the expanded permit and makes clear the expanded permit can be terminated or continued.
Hickey, representing Kilcoin, urged the board to make United Order prove its case.
“Refuse it and make them come in and tell the truth and tell us what’s going on,” Hickey said. “We won’t have people objecting if we get the truth and know what we’re dealing with.”
Hickey raised a variety of what he saw as shortcomings by the DENR, such as the handling of the 2009 permit transfer and accepting the water-usage reports submitted from the compound to DENR without cross-checking them.
“We assume they’re accurate,” said Ken Buhler, the department’s only witness Thursday.
“But how do we know that?” Hickey said.
“We assume they’re accurate,” Buhler repeated.
United Order’s attorney at the hearing, Jeffrey Connolly of Rapid City, urged the board to base its decision on “the use of the water, not the user.”
Under the 2007 permit, there are two wells at the compound, but one has a broken shaft.
United Order wants the additional water to serve as a backup and to provide for additional irrigation in the compound. Most of the 140-acre site is forest.
Jeffs was the only witness for United Order. He confirmed that he was convicted of aiding and abetting, a federal felony, “in relation to my brother, Warren Jeffs.
“I confessed. There was no court proceeding,” Seth Jeffs said.
He received a sentence in July 2006. “There was no jail time, they simply gave me probation, three years probation,” he said.
Seth Jeffs said the prosecuting attorney sent notice he should be dismissed from probation after one year, and the judge agreed.
Hickey asked Jeffs why he hadn’t taken a headcount at the compound. “I don’t need to,” Jeffs said. “I don’t walk into people’s houses and intrude on their privacy.”
Jeffs said his residence is in Arizona but he spends “90, 95 percent” of his time at the compound.
Jeffs said his concern was ensuring the 63 private bedrooms in the compound have water for the toilets. He declined to speculate on the population.
Hickey asked, “Why is that such a secret?”
Jeffs replied, “I respect the privacy of others.”
Jeffs said he is “not intricately involved” with the trust and the trust’s activities. “I do not represent the trust, only in this water issue,” he said.
Hickey asked Jeffs where his brother Isaac lives. Jeffs answered, “I don’t know.”