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Published December 12, 2011, 05:02 PM

S.D. farmer alleges physical confrontation with U.S. Fish and Wildlife officer

A Flandreau, S.D., farmer claims he was physically pushed by a U.S. Fish and Wildlife Service officer after the farmer refused to answer questions about a drainage cleaning project.

By: Mikkel Pates, Agweek

FLANDREAU, S.D. — Can the U.S. Fish and Wildlife Service push too hard when it comes to enforcing its wetlands easements?

Daniel VonEye, Sr., a farmer from Flandreau, S.D., thinks so.

VonEye and his daughter, Lori Keith, say a USFWS officer physically pushed VonEye around at his farmstead on Sept. 29, 2011, when VonEye declined to answer questions about who did some drainage work on a disputed wetland easement.

The VonEyes claim Michael Blessington, a Fish and Wildlife officer, got physical when they declined to answer questions about who did the drainage work, which the officers knew VonEye’s lawyer said was legal. The issue affects land owned by Ralph Lee, one of the VonEyes’ landlords in Colman, S.D.

The VonEyes reported a physical confrontation to Moody County, S.D., Sheriff Troy Wellman, who told VonEye he’d have to refer it to Moody County, S.D., Sheriff Troy Wellman, who told VonEye he’d have to refer it to Moody County State’s Attorney Bill Ellingson. On Dec. 6, Ellingson told Agweek he only “vaguely” remembered the case, but wouldn’t be able to talk about it even if he did.

Bryan Schultz, a deputy project manager who was present during the incident, on Dec. 6 said the issue had been “pursued and taken into consideration by a third party” — the sheriff. The sheriff disputes this claim.

Schultz said there were no reprimands to the officer involved, and that the wetlands violation had been “closed” because neighboring landowner Mark G. Schultz (no relation to Bryan Schultz) had filled it in.

The issue was “closed,” according to Fish and Wildlife.

“For Mr. Ralph Lee, it is not closed,” VonEye says.

Self-made farmer

VonEye grew up on a ranch near Wessington Springs, S.D. Two brothers remained there and still are farming and ranching. Daniel graduated high school in 1969 and went on to Huron (S.D.) College, where he emerged with a business administration degree in 1973.

He worked full-time for the state in family services in Brookings, S.D. From the start, VonEye lived on a farmstead “to have something for myself and my two boys to do.” VonEye bought a quarter of land and a farmstead about 16 miles south of Brookings — about nine miles west and three miles north of Flandreau.

Later, he took a similar job with the Inter-Lakes Community Action Partnership in Madison, S.D., about 20 miles to the south. The non-profit company serves low-income families and seniors.

Like other farmers of the era, VonEye got caught in a credit whipsaw. Starting with hogs and 1,000 acres, he went through skyrocketing interest rates, but he reorganized. “For several years, I farmed out of my checkbook. I didn’t use a bank,” VonEye says. “Everything was cash and I got ahead. It’s the best way to farm if you can afford it.”

In 1997, three bachelor brothers — Art, Milo and Don Stip — retired and approached him about renting some of their land.

“They had 180 quarters,” he says.

VonEye is a self-made man. He and his sons control more than 18,000 acres in Moody, Lake, Miner and Sanborn counties in eastern South Dakota. Nearly 90 percent of the land is rented.

VonEye expanded and his sons grew. They work together but maintain separate operations. The senior VonEye is separated from his wife, who lives in Flandreau. They have five children: Daniel VonEye Jr., is 43; Chad, 39; Lori Keith, 34; Heath, 33, and Jamie, 32.

“All five of my children are working with me,” VonEye says. “I’m as proud as I can be of these kids — hardworking farm kids,” he says. “I’ve got the best kids around. We don’t get into trouble, we just work and make a living and love farming.”

‘Mr. Ralph Lee’s’ land

One of VonEye’s landlords is Ralph Lee, who lives about five miles to the west. Lee owns a 100-acre field that is supposed to drain from west to east, across a property line. It’s in Section 17 in Jefferson Township of Moody County.

Lee’s neighbor to the east is Mark Schultz (no relation to Fish and Wildlife’s Bryan Schultz).

The Mark Schultz quarter has a wetland easement on two spots — an agreement and payment made to the previous owner, Hazel Lindholm, in 1982, just before she sold it to Mark Schultz. The Mark Schultz property water moves from east west, initially, where it meets Lee’s eastbound water. Together, the drainage goes northward.

Through the years, Lee figures he’s lost some 20 acres because water couldn’t flow eastward, through Mark Schultz’ wetland easement. In 2007, Lee asked VonEye to clean the ditch exiting his property. The 20 acres is no big deal to VonEye, but 20 acres of wetland at $150 to $200 per acre of rent means about $3,000 to $4,000 a year to Lee.

VonEye contacted the Natural Resources Conservation Service to come out and verify that the ditch could be cleaned, and Lee talked to neighbor Mark Schultz to get permission to clean the drain.

In 2009, VonEye contacted Patrick Glover, a lawyer in the Meierhenry Sargent L.L.P. firm in Sioux Falls, S.D. Glover advised that, according to the state drainage law, Schultz’ property was blocking for Lee, and by law, Lee has the right to have an open waterway. Glover believed VonEye could clean “blue line” drains on NRCS and U.S. Geological Survey maps, to their original depth.

Legal languishing

Despite Glover’s opinion, USFWS officials warned VonEye not to continue the drainage project.

On March 26, 2010, VonEye and Mark Schultz met with Tom Tornow, manager of the USFWS regional field office in Madison. VonEye had Mark Schultz with him. VonEye remembers that two uniformed officers were also present, including Bryan Schultz.

Tornow “got very negative,” VonEye says, when VonEye talked about the needed drain cleaning.

“I asked if (Tornow) could show us in writing that we legally could not do the clean-out,” VonEye recalls.

Tornow told VonEye that he couldn’t allow the clean-out, regardless of Glover’s opinion.

“He said, if you want to talk to us anymore, you need your attorney present so we can get the facts,” VonEye remembers Tornow saying. “I told Tornow that I only paid Mr. Glover to send the letter. I said, ‘Tom, I’m not going to play that game,’” of adding needless legal expenses.

Fish and Wildlife’s Bryan Schultz on April 5, 2010, sent Glover a letter summarizing the meeting and warning that if VonEye continued with “the project,” it would put VonEye, Schultz and Lee in a precarious position. Nothing happened for more than a year.

It was too wet.

On Sept. 27, 2011, VonEye instructed one of his farm workers to use a tracked backhoe to the Schultz property to do the ditch cleaning. The hired man started at “the bottom” of the drain to the north. Schultz also hired a contractor to work on upstream, southern two-thirds. About 90 percent was done, and VonEye stopped to let it drain out.

Badges, guns, tasers

On Sept. 29, 2011, two FWS officers came to the VonEyes’ new shop and office. “Senior” was away for the day, so the men approached VonEye’s oldest son, Daniel VonEye Jr., and asked him, “Who was in that track hoe?” “Junior” wouldn’t tell them, and eventually the officers left.

On Sept. 30, 2011, at about 9 a.m., the same officers came to the senior VonEye’s house. The men sat in a white pickup for a minute and watched VonEye, and his daughter, Lori, as they were unloading a mower off a small trailer.

“They got out,” VonEye says. “I said, ‘Hello, gentlemen.’ They said, ‘We’ve got to talk to you.’ So we started visiting and I called Lori over. I said, ‘Gentlemen, have you read the letter from (attorney) Mr. Patrick Glover?’ They said, ‘No, we haven’t.’

VonEye says he took them into the house to sit down and go over the letter, like gentlemen.

“‘Who was in that track hoe?’” VonEye says the officers demanded to know. They knew his first name was Darrell, but didn’t know his last name. VonEye said he wouldn’t tell them so they could “go and bother” his employees.

“They shot another question or two, and I said, ‘Look, we’re all done now. You guys can go. I need to get back to work.’”

According to VonEye and his daughter, Lori, Blessington approached VonEye and put his right hand on VonEye’s chest.

“He pushed on me pretty hard, and had his left hand on his Taser, and said, ‘We’re not done talking.’”

Not done talking

VonEye walks with a cane and has a full leg brace from polio he contracted at age 2 in 1952.

“Gentlemen, you must leave now,’” VonEye remembers saying. “Then (Blessing) put both hands on me, pushed me hard on my chest, and just about knocked me over.’” VonEye told authorities that he felt Blessington was “challenging me, trying to make me fight back, so he could arrest me.”

VonEye insists he was not moving toward Blessington in any way that would create the confrontation.

Lori, who had been standing behind her father, could not believe what she was witnessing and jumped in after the first contact.

“I said, ‘You don’t push my Dad. He’s not doing anything to you.’ I said, ‘Quit pushing him.’ Partner Bryan Schultz stood by and did nothing.”

Blessington stopped after a second contact.

The officers drove five miles to the west and paid Ralph Lee a visit.

Lee, 77, is retired after 50 years farming in the area, and at one time, managed up to 900 acres in the 1980s. Retired in 2004, he has emphysema and an oxygen machine and tube that trails him around in his house.

He met the men at his front door. Lee remembers the officers were wearing flak jackets and guns. This time, it was officer Bryan Schultz — not Blessington — who did the talking.

“I said, ‘I said I’ll talk to you if you take your guns and your vests off, otherwise get on the road. They said it was their ‘normal dress.’ Not very farmer-friendly. I told them that.”

They left.

Mystery photography

On Sept. 29, the VonEyes called the Moody County Sheriff about the pushes.

On Sept. 30, a deputy took complaint statements from both VonEye and his daughter. VonEye talked to Sheriff Troy Wellman, who told him the case would have be handed to the “next level,” because involved two law enforcement agencies. Wellman said it would be turned over to Moody County State’s Attorney Bill Ellingson.

VonEye figured someone was investigating.

On Oct. 4, between 1 and 2 p.m., VonEye was doing paperwork when an unidentified beige sedan rolled up to the mailbox, about 75 feet from his home. A person in the car poked a camera lens out the window and began photographing the west side of his house. VonEye, looking south to the mailbox, pointed it out to Lori. The mystery photographer didn’t get out or come to the house.

“They were so fast; they pulled in and snapped pictures,” VonEye says. “I almost followed the car to get the license plate numbers.”

On Dec. 6, Ellingson told Agweek he only “vaguely” recalled something about the VonEye matter and wouldn’t be able to talk about it if he did.

The same day, Bryan Schultz, at Fish and Wildlife, said the “case has been closed for about a week” and that parties were “informed” with a telephone call. Farmer Mark Schultz filled in the drainage ditch in mid-November, restoring the wetland. He said the issue had been reviewed at “several levels” within the agency.

Bryan Schultz said VonEye’s allegations about misconduct had been “pursued and taken into consideration by a third party” — the sheriff’s department — which had determined it to be “not an issue.” Asked if the investigation determined the allegations were found to be untrue, Schultz said, “You could say” that. He didn’t know if there was a written report, and referred Agweek to the sheriff, who didn’t return calls.

In any case, Schultz said there were no reprimands of Blessington or anyone else.

No written records

Tornow says the case wasn’t unusual, in that the agency’s first step is to restore a violation so that “everybody’s on the same page.”

He says his officers were “operating within their protocols, keeping the area safe” and that it had been resolved with the “independent review from the sheriff’s office,” even though the sheriff had said his office couldn’t handle it.

Sheriff Wellman on Dec. 7 told Agweek that an investigation report on the pushing incident had been forwarded to Ellingson within a couple weeks of the initial report. The sheriff didn’t know whether his deputy had questioned any Fish and Wildlife personnel. He said Ellingson — not his department — would decide whether charges are appropriate.

“If there is, I don’t know about it,” Wellman said of a decision on that. “I haven’t seen the paperwork.”

VonEye said the big issue is the taking of property.

“Why would you put in an easement on one person’s land and get a double-whammy (on a neighbor’s land). You shouldn’t be able to take it for nothing — take it period.”

He wonders if the agency is trying to make an example of him, perhaps because he’s been persistent about pushing for drainage rights for farmers in the past. In 2000, he was in the local news with a dispute with the Natural Resources Conservation Service over a 1998 drainage cleanout case on another of his rental properties. VonEye worked with the South Dakota Farm Bureau to pursue the issue with the National Appeals Division and won.

He says the 1982 easement on the Mark Schultz property was obtained during a period of dry conditions, and of general stress in the farm economy. She accepted $5,400 for an easement that affects 26 acres on the Schultz side of the property, plus the Lee land.

For his part, Mark Schultz acknowledged he had filled in part of what VonEye had cleaned, but is pursuing second legal opinions on whether it was proper and whether the cleaning can be restored.

Frustrated about the lack of feedback on the pushing incident, Lori Keith wrote a letter to Tornow on Nov. 11, protesting Blessington’s alleged actions and Bryan Schultz’ inaction.

“Had my father been the one pushing he would have been in handcuffs, yet here we are over a month later and I ask you if Mr. Blessington or Mr. Schultz have had to face any type of accountability for their actions.” she said, adding, “It’s extremely pathetic that one would think that they are above the law just because of the uniform he is wearing, when in reality he is only bringing disgrace and embarrassment to the agency it represents.”

In a phone interview, Tornow acknowledged he’d received Keith’s letter, and that he hadn’t answered it, but took it “into account.”

“Are you trying to make this into something newsworthy?” he asked Agweek. “From this point on, everything is confidential. Tell your source the case is closed and we’re moving forward. Thank you.”

He hung up.