A look at the draft non-meandered legislation

Boats on the lake

Updated to correct a couple of typos that made it seem the landowners owned the water.

Yesterday the Regulation of Access to and Use of Non-Meandered Waters on Public and Private Property Study legislative committee met in Pierre for what was supposed to be the final meeting. Instead they decided to have another meeting on June 2, with a possible special session being called for June 12. The timeline was delayed because the committee has to do some more work on the legislation. Two days ago I had some reservations about the draft bill after a brief reading, and it hasn’t gotten any better after reading through the bill more thoroughly. In this post I will look at the bill section by section and add some editorialized commentary for some parts of the bill.

The My Thoughts sections are just that, my opinions. I am a true believer in property rights, but also happen to be a sportsman. I actually have more to say about some sections of this bill. But I will save some of what I have to say for future posts in order to keep this from being a novella.

It should be noted this legislation is going to be amended at the next meeting; probably dramatically! There may even be new pieces of legislation brought forth.

Fair warning, this is a LONG post!

Section 1 – Findings

Text of Section 1:

(1) The South Dakota Supreme Court, in Parks v. Cooper, 2004 SD 27 and Duerre v. Hepler, 2017 SD 8, held that the Legislature has the obligation to determine the extent of public use of water overlying private property for recreational purposes; and

(2) The Legislature must balance the interests of recreational users and the rights of private property owners to provide a constitutionally sound and manageable basis for establishing public recreational use of water overlying private property in accordance with this Act.

My thoughts:

Nothing much to say here. This is basically the legislature agreeing they have to do something and acknowledges there has to be a balancing act between private property rights and the interests of recreational users. The  Duerre v. Hepler decision can be read here.

This section was amended by the committee to add the fact that the water is in the public trust.

Section 2 – Definitions

Text of Section 2:

That the code be amended by adding a NEW SECTION to read:

Terms used in this Act mean:

(1) “Commission,” the Game, Fish and Parks Commission;

(2) “Department,” the Department of Game, Fish and Parks;

(3) “Meandered lake,” any natural water body, except a river or stream, for which a meander line survey was included as part of the official survey conducted by the United States surveyor general for the land on which the lake is situated and the meander lines are shown on plats made by the United States General Land Office;

(4) “Nonmeandered lake,” any natural lake that is not a meandered lake;

(5) “Recreational use,” use for one or more of the following activities, except as otherwise limited by law: hunting, fishing, swimming, floating, boating, trapping, off-road driving, water sports, or snowmobiling

My thoughts

It should be noted that “natural” is included so lakes created from stock dams and such are not included in the definition of nonmeandered lake. I did notice “lake” is not defined by size, capacity, or any other feature. That may be a problem if lake isn’t defined somewhere else in state law. Actually if it isn’t defined elsewhere I would say this definition of meandered lake is downright bad from a landowners perspective.

I can see possibilities of the definition of recreational use being a problem from either side of the debate as well. There are some items missing the sportsmen might want on the list, and some activities such as off-road driving the landowners will definitely not want in the definition.

Section 3 – Meandered Lakes

Text of Section 3:

That the code be amended by adding a NEW SECTION to read:

The bed of each meandered lake within the lake’s ordinary high water mark and the water of each meandered lake is open to recreational use

My Thoughts

For this I would wonder how ordinary high water mark is actually determined, since many of the lakes in question are new and can/do change over time.

Section 4 – Agreement

Text of Section 4:

That the code be amended by adding a NEW SECTION to read:

The department, on behalf of and in the name of the state, may negotiate with each landowner to acquire, by gift, grant, devise, purchase, lease, or license, recreational use of all or any portion of any nonmeandered lake overlying private property. Any agreement reached pursuant to this section, or any failure to reach an agreement, does not constitute appealable final action of the department.

My Thoughts

This is where the GFP is able to create agreements with landowners to provide access to nonmeandered lakes for recreation. The last sentence is to make sure the agreement doesn’t lead to court action according to testimony. I would have liked to hear more about that since red flags are going up as I read the sentence. I also wonder why purchase is included in this bill, since the land in question will likely have the water recede in the future and there is no reason for the state own that land at that point. It should also be noted there is nothing in this bill to allow for revenue to pay for this land in question.

Section 5 – Permission

Text of Section 5:

That the code be amended by adding a NEW SECTION to read:

Any person is entitled to recreational use of the portion of a nonmeandered lake that overlies private property if that person has permission from the owner of the private property.

My Thoughts

I don’t see a problem with this section. This allows the private property owner of land underneath a nonmeandered water to allow access to that water.

Section 6 – Default Rule; Marking

Text of Section 6:

That the code be amended by adding a NEW SECTION to read:

Any nonmeandered lake overlying private property is open to recreational use without permission of any owner of the private property underlying the nonmeandered lake unless the owner of the private property installs conspicuous markers, which may consist of signs or buoys, to identify the area of the nonmeandered lake that is not open to public recreational use without permission or agreement as provided under this Act

My Thoughts

This is being touted as the essential piece to bring landowners and sportsmen together. This section basically says that any nonmeandered lake is open to the public for recreational use unless the owner of the land under the nonmeandered water has posted signs or buoys marking the portion of the nonmeandered lake that is off-limits. Further down in Section 14 is specifies that recreational users must have legal access to that nonmeandered water, and cannot trespass on private property to gain access to that lake.

I can see where landowners and sportsmen will have problems with this section.  One the one hand the burden is being placed upon landowners to mark and remark the sections of lake they want/need off-limits as the water rises/lowers. Some of these nonmeandered waters change dramatically over time. And some of the farmers will hope no recreation is done on lands they plan to use when the water goes down.

From the sportsmen point of view this looks like a means for landowners to completely shut down access to these nonmeandered lakes if they wish to. I’m not sure this compromise will truly be seen as a compromise. This section of the bill could be said to be unconstitutional from the sportsmen viewpoint because it delegates control of waters in the public trust to land owners (I don’t agree with that opinion, but then I’m not a judge).

Section 7 – Lakes

Text of Section 7:

That the code be amended by adding a NEW SECTION to read:

Notwithstanding the provisions of this Act, any nonmeandered lake listed in section 8 of this Act is declared open for recreational use, based on the following conditions occurring prior to January 1, 2017:

(1) The open, obvious, and continuous recreational use by the public for a significant period; and

(2) The expenditure of public funds for the construction of one or more boat ramps

My Thoughts

This section basically says the lakes listed in Section 8 are open for recreational use based upon the fact these lakes have been open and used by the public for a long time and that public funds were used to construct one or more boat ramps.

Notice there is no timeline that was chosen to declare these lakes open. Instead the term “significant period” was used.

I think what they were trying to do with this section (and 8 below) is to get some of these nonmeandered lakes reopened that the GFP chose to close public access to. It is important to note that this portion of the bill treats the nonmeandered lakes listed in section 8 differently than other nonmeandered lakes. This section of the bill actually places recreational use above landowners rights, at least initially.

Section 8 – Lakes

Text of Section 8:

That the code be amended by adding a NEW SECTION to read:

The following nonmeandered lakes are declared open for recreational use pursuant to section 7 of this Act:

(1) Highway 81 East in Brookings County;

(2) Casey’s Slough, Cottonwood GPA, Dry #1, Dry #2, Round, and Swan in Clark 5 County;

(3) Deep and Goose in Codington County;

(4) East Krause, Lynn, Middle Lynn, and Reetz in Day County;

(5) North Scatterwood in Edmunds County;

(6) Three Buck in Hamlin County;

(7) Highway 81 West in Kingsbury County;

(8) Bullhead, Cattail-Kettle, and Opitz in Marshall County;

(9) Island South in McCook County;

(10) Keisz in McPherson County;

(11) Grass, Loss, Scott, and Twin in Minnehaha County;

(12) Twin in Sanborn County;

(13) Cottonwood and Mud in Spink County;

(14) Cottonwood in Sully County; and

(15) Dog Ear in Tripp County, South Dakota

My Thoughts

These are the actual nonmeandered lakes which would immediately be reopened by this legislation. This list also seem to include lakes that are connected to meandered lakes. This is what the sportsmen and businesses in the tourism industry for NE South Dakota want: for these lakes to immediately be reopened to the public.

Section 9 – Marking Standards

Text of Section 9:

That the code be amended by adding a NEW SECTION to read:

The commission shall promulgate rules, pursuant to chapter 1-26, to establish a process whereby an owner of private property underlying any nonmeandered lake listed in section 8 of this Act may petition the commission to allow the owner of private property to restrict recreational use of the water overlying the owner’s private property. The commission shall determine whether to grant, deny, or modify the petition. The commission shall consider the privacy, safety, and substantially affected financial interests of the owner of the private property underlying the water, as well as history of use, water quality, water quantity, and the public’s interest in recreational use of the water.

My Thoughts

Now we get up to where a landowner who owns land under one of the lakes listed in Section 8 can go before the GFP commission to get an exception that would allow them to close part of the water off to the public for recreational use. This section really gives me heartburn. A landowner has to go before an un-elected commission, which answers to nobody, to get permission to restrict access over their land. I believe most of the landowners on these lakes will be unlikely to block access to their part of the lake, But if they do have a reason it just seems odd to have a non-elected body make the determination; especially since that non-elected body is in charge of a state department which many landowners feel are on the side of sportsmen.

This was touted as a way for the landowners and commission to communicate directly and come up with agreements that may keep the lake open.

Section 10 – Lease Renewal

Text of Section 10:

That the code be amended by adding a NEW SECTION to read:

No lease or license entered into pursuant to section 4 of this Act may be for a term exceeding ten years.

My Thoughts

This section I agree with. It prevents land from being locked up in perpetuity as some federal conservation programs do.

Section 11 – Landowner Liability

Text of Section 11:

That the code be amended by adding a NEW SECTION to read:

The liability of any owner of private property underlying a meandered or nonmeandered lake is limited as provided in §§ 20-9-12 to 20-9-18, inclusive.

My Thoughts

This is probably one of the biggest win for the landowner side. This section ensures the private landowner is not held liable for anything that happens involving someone in the public recreating on their part of a nonmeandered lake.

Section 12 – Marker Standards

Text of Section 12:

That the code be amended by adding a NEW SECTION to read:

The commission shall promulgate rules, pursuant to chapter 1-26, to specify standards for the markers described in section 6 of this Act after weighing the cost and burden of compliance by the owner of private property against the visibility of the markers to the public.

My Thoughts

This section allows the GFP Commission to make rules setting the standards for markers used by landowners to restrict access. It was noted during testimony that the burden of posting notice is placed on the landowner. It was also said during testimony that the GFP would be willing to provide the signs, at the landowners cost, so uniform signs could be used around the state. I’m not sure how landowners are going to take the cost being shifted to them to enforce their property rights.

Section 13 – Technology; Public Notification

Text of Section 13:

That the code be amended by adding a NEW SECTION to read:

The owner of private property shall notify the department, within a reasonable time frame, of any area of a nonmeandered lake marked by the owner of private property pursuant to section 6 of this Act. The department shall, within a reasonable time frame, identify the marked area and applicable restrictions in any map, guide, mobile application, or website maintained by the state to assist the public in identifying each public hunting or fishing area.

My Thoughts

None on this section.

Section 14 – Means of Access

Text of Section 14:

That the code be amended by adding a NEW SECTION to read:

Access to any nonmeandered lake for recreational use may only be by public roadway, public right-of-way, or other lawful means. Nothing in this Act creates a right of ingress or egress on private property to access a nonmeandered lake

My Thoughts

This is the section which states people recreating on the nonmeandered water must have legal access to that water without trespassing on private property.

Section 15 – Bed and Frozen Surface Usage

Text of Section 15:

That the code be amended by adding a NEW SECTION to read:

No person may walk, wade, stand, or operate a motor vehicle on the bed of a nonmeandered lake, or trap or hunt on the frozen surface above private land, without permission from the landowner or any other person legally in possession of the privately owned property underlying the waters of that portion of the nonmeandered lake.

My Thoughts

I can see some recreational users not liking the restriction on walking, wading, or standing on the bottom of the nonmeandered lake. That really restricts the amount of swimming which can be done by families. Although technically swimming is already highly restricted because the private land next to nonmeandered lakes are already off-limits.

The restriction for hunting on ice will definitely make some of these landowners happy. People hunting from these nonmeandered lakes and shooting things over private land is a concern for many landowners I don’t see a problem with hunters having to get permission.  But, I’m not sure how the hunters will take this section, I’m guessing not well.

This section will likely be amended to clarify the language.

Section 16 – Transportation Lane

Text of Section 16:

That the code be amended by adding a NEW SECTION to read:

The commission shall promulgate rules, pursuant to chapter 1-26, to establish a process whereby a person may petition the commission to open a portion of the waters or ice of a nonmeandered lake marked pursuant to section 6 of this Act for the limited purpose of transportation to a portion of the nonmeandered lake that is open for recreational use under the following conditions:

(1) The marked portion of the nonmeandered lake is directly between a point of legal public access and a portion of the nonmeandered lake open for recreational use; and

(2) There is no alternative legal public access or improved legal public access to the portion of the nonmeandered lake open for recreational use

My Thoughts

This section basically allows recreational users to have a process to open a portion of a nonmeandered lake marked as off-limits by a landowner because there is more nonmeandered water on the other side of the restricted area. This section may cause some heartburn for certain landowners.

Section 17 – Transportation Lane Standards

Text of Section 17:

That the code be amended by adding a NEW SECTION to read:

The commission shall set the size and location of the area of the marked portion of a nonmeandered lake opened for transportation pursuant to section 16 of this Act and set reasonable speed, wake, and other limitations to protect the privacy, safety, and substantially affected financial interests of the owner of private property underlying the marked portion of the nonmeandered lake.

My Thoughts

Basically this goes along with Section 16 to allow the GFP Commission to make rules about transportation lanes opened up in a restricted area.

Section 18 – Penalties

Text of Section 18:

That the code be amended by adding a NEW SECTION to read:

Any person who enters or remains upon private property or waters overlying private property in violation of this Act is guilty of a criminal trespass in accordance with the applicable provisions of chapters 41-9 and 22-35, except for unarmed retrieval of lawfully taken small game as authorized in § 41-9-8 and subject to the affirmative defenses set forth in § 22-35-7.

My Thoughts

This section provides penalties for trespassing on private property which have been marked as off-limits. There is an exemption for hunters.

An amendment was passed by the committing to ensure incidental contact is exempt from trespassing. For instance if a fishing lure touched the ground below the water it would not count as trespassing.

Section 19 – Game, Fish, and Parks Regulatory Authority

Text of Section 19:

Special Note. This is the only section of the bill I am not doing a copy/paste of the whole section. Rather I am just copying the relevant portions of the section where actual code is being changed. The underlined words below are what the bill would add. The original full section can be read on the draft legislation.

That § 41-2-18 be amended to read:

The Game, Fish and Parks Commission may adopt such rules as may be necessary to implement the provisions of chapters 41-1 to 41-15, inclusive. The rules may be adopted to regulate:

(1) The conservation, protection, importation, and propagation of wild animals and fish except for any nondomestic animal which that is regulated pursuant to § 40-3-26;

(5) The management, use, and improvement of all meandered and nonmeandered lakes, sloughs, marshes, and streams extending to and over dry or partially dry meandered lakes, sloughs, marshes, and streams, including all lands to which the state has acquired any right, title or interest for the purpose of water conservation or recreation;

My Thoughts

This section really gives me heartache. This would put the GFP in direct regulatory control of non-meandered lakes. This section alone is why I think the bill as it is should be killed. GFP has no true oversight.  The only oversight is from a Commission, whose members are appointed by the Governor’s office. GFP does not seem to follow the same transparent budgetary process that other state agencies have to follow. GFP is also the largest law-enforcement agency in the state. Giving GFP direct regulatory access over landowners property just because there is water over that land is a non-starter for many landowners.

Section 20 – Emergency Clause

Text of Section 20:

Whereas, this Act is necessary for the support of the state government and its existing public institutions, an emergency is hereby declared to exist, and this Act shall be in full force and effect from and after its passage and approval.

My Thoughts

This is necessary for whatever solution the special session passes into law so it can take effect immediately.

One thought on “A look at the draft non-meandered legislation”

  1. The rest of the story;

    Sec.2 I agree with some of your points, and also agree there should be a limit on the size of the water body —- but then again with the changes in other sections, like what you cannot do over private land, it is kind of moot.
    Sec. 3 could be deleted, we already have that in statute, 43 – 17 – 29.
    Sec. 4, should not even be in there, the GF&P already has that authority, and it refers to some property right that does not exist for landowners. It does not say “water that has been petitioned closed” it says all non-meandered waters.
    Sec. 5 should not be in there because it confers rights to public water —– over private land to landowners.
    Sec. 6 “This section of the bill could be said to be unconstitutional from the sportsmen viewpoint because it delegates control of waters in the public trust to land owners”. You are exactly right, and it does.
    Sec. 7 This is important, because in Sec. 15, it has many restrictions on non-meandered lake beds. So which is it —– we follow 7 or 15?
    Sec. 8 —– conspicuously missing are all of the lakes in the law suits! All the fish in those lakes were put in with sportsman’s dollars. They were fished before Jan. 1, 2017 —— why are they not included in the open lakes??
    Sec. 9 The GF&P commission is the least political in the entire state, due to its rules of makeup, like even numbers of political parties and landowners V non-landowners. No other board in the state is made up that even.
    Sec. 10 —– Pfffft.
    Sec. 11 overdue.
    Sec. 12 —– if it is not marked the public should not be prosecuted.
    Sec. 13 —– pffft!
    Sec. 14 Does not address parking on public roads. The public has every right to park on the edge of the road —- it is not our fault that the equipment is 40’ wide and they want to get through. I drove a truck, and when I wanted to haul something over 105 inches, I had to have a permit and road guide —- not farmers!!!
    Sec. 15 This is the section I was talking about. The proposed law says lakes are open, then this section says they are not to some activity. Also, the ruling does not state that swimming , kayaking and canoeing on non-meandered waters is prohibited, statute says it is open —– and I can only surmise that the statute that states public water is a “highway” for the public, for well over 125 years is the reason. It is hunting and fishing they are citing.
    Sec. 16 Again should not be there —— it transfers rights that do not exist to the landowner. \
    Sec. 17 & 18 should not be there either. For the same reason as above.

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