The language describing who qualifies as a South Dakota resident when it comes to hunting is laid out in state law, but the real-world definition is now murkier than ever.
A criminal case could have further defined residency when it comes to “snowbirds,” or part-time residents. Instead, it added confusion rather than clarity to what it takes to become a resident while upending a combat veteran’s life along the way.
The Aurora County case left the retired optometrist feeling persecuted and state game officials and a prosecutor disappointed that they were unable to convict the doctor of fraudulently obtaining resident hunting licenses. The two-year state investigation cost the doctor thousands of dollars in legal fees and eventually involved Kelly Hepler, secretary of the South Dakota Game, Fish & Parks Department.
The defendant 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 when he treated U.S. soldiers at Camp Anaconda and other sites on the front lines of the war in northern Iraq.
Peters grew up in Stickney, graduated from South Dakota State University, and spent most his career as an optometrist in Colorado. He now owns 581 acres of pastureland in Aurora County. His goal in 2017 was to shift his life back to South Dakota, which included establishing residency and hunting on his farm.
Peters also has a home in Colorado where his wife lives and he spent most of his time from 2017 to 2019. As a result, a local GFP game warden, his supervisors and the Aurora County state’s attorney were determined to prove he was not a legal state resident and therefore had committed fraud.
Before filing four misdemeanor charges in November 2018, state investigators obtained nearly two years of Peters’ cell phone records and correlated which cell towers were pinged; drove by his house in White Lake at least 27 times and took 65 photos; tracked his Facebook use; interviewed neighbors in White Lake and a contractor who worked on the property; obtained real estate transaction and utility usage data; recorded phone calls with an investigator; examined UPS delivery information to both his homes; and sent a state investigator to the Denver area in a failed attempt to interview his wife.
Peters called the investigation and prosecution “a nightmare” that cost him more than $18,000, prevented him from hunting on his land and shook his faith in the GFP and the local prosecutor’s office. He 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.”
Attorney David Jencks of Madison represented Peters. He said the state wanted to use Peters to set an example and clarify what he called “vague language” in state hunting-residency laws. He called the prosecution’s case “arbitrary and capricious” and said it became personal for the game warden and prosecutor.
“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.”
Just days before the trial 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.” Peters pleaded no contest, paid $310 in fines and court fees, and did not lose his hunting privileges.
Aurora County GFP conservation officer Lynn Geuke led the investigation. He refused to speak to News Watch but did say in a brief phone call, “Well, he was convicted.”
John Steele, the Aurora County state’s attorney at the time, pointed out that Peters had taken a homestead tax exemption on his Colorado property and had a prior misdemeanor conviction for illegally obtaining a resident hunting license in Lake County.
Peters pleaded guilty to that charge in 2016 and received a suspended imposition of sentence, effectively sealing the records. Peters said he had researched residency laws before applying for that resident license and believed he was in compliance by claiming residency at his brother’s house in Madison, but now acknowledges he likely was mistaken.
The cell phone 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.
‘A gray area’
Steele acknowledged that 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 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 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.
State residents enjoy several opportunities for hunting that non-residents do not, such as being able to hunt waterfowl and pheasants in longer seasons and to hunt bighorn sheep or mountain goats and elk in the Black Hills, Keyser said.
Legal residents expect the GFP will uphold residency laws and investigate and prosecute those who violate the laws, 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 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 bad weather and low-paying 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 and his attorney say he 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 obtained a South Dakota driver’s license, registered his vehicles in Aurora County and registered to vote in the state. He said he relinquished his Colorado residency and 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 deer season opened, Peters said he received a phone call from Geuke, the GFP conservation officer. Peters said Geuke told him he did not consider him 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. Peters decided not to hunt that year.
Thus, began the full investigation into Peters’ living arrangements.
The next fall, Peters 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 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.
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.
The critical definition in Peters’ case is “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 on a fairly regular basis.
Less than two weeks before 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 authorized the investigation.
Paul 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, however, denied the state’s motion and ordered Hepler to testify.
Just prior to the trial, Jencks said he was contacted by Steele, who offered to drop the higher charges and offer Peters a plea deal with no jail time, a small fine and no loss of hunting privileges. It was also agreed that he 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. Hepler said departmental attorneys fought the subpoena because Hepler had nothing to add to the case.
“I would have appeared, but I thought it was foolish because I had no interaction with these people whatsoever,” Hepler said.
Steele would not discuss his reason for offering a plea bargain.
Keyser said he still believes that Peters is not a state resident and that his home in Colorado is where he and his wife 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 said the investigation was initially driven by Geuke, but that eventually Steele 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.”
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 said he still does not consider Peters a South Dakota resident but 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 said he deserves an apology for the stress and heartache he 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.”
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