Viewpoints from a couple of sportsmen groups opposed to the draft non-meandered water legislation

Yesterday I published a post explaining why I think from a property rights perspective the draft non-meandered waters legislation is bad. I do understand there will be some give/take in the final solution (which may or may not be the draft legislation). I’ve had some people ask me to post some points the sportsmen groups are opposed to. In this post I will look at what a couple of sportsmen groups are saying is bad with the current draft legislation.

First there is an opinion piece published in the Rapid City Journal by Chris Hesla, South Dakota Wildlife Federation Executive Director. The SDWF currently opposes the draft legislation. Here are a few reasons given by Hesla:

This bill allows private individuals to close public waters overlying private property without public input and without a process for the public to petition to open closed waters. This is not balance. Balance is, at the least, allowing the public a right to petition to open closed waters.

Further, this bill allows mass commercialization of a public resource. Although the bill prohibits landowners from receiving financial compensation in exchange for granting permission to fish closed public waters, it does not prevent other types of compensation; does not apply the same restrictions to lessees; does not prevent an owner from receiving financial compensation in exchange for granting other access including hunting; and does not prevent individuals from forming a legal entity that purchases submerged property and then allows exclusive access to members/shareholders. This is not balance. Balance is either opening public waters to all or closing public waters to all.

Hesla also notes that the legislature never actually states recreational use is a beneficial use for waters of South Dakota. For the last couple of months the SDWF has been promoting its twelve words fix to South Dakota Water Law. This fix would have modified SD Codified Law 46-1-3; the law which says that water is the property of the people. Here is the current text of this law:

 It is hereby declared that all water within the state is the property of the people of the state, but the right to the use of water may be acquired by appropriation as provided by law.

Here is the 12 word fix promoted by the SDWF, the language they would add has been underlined:

 It is hereby declared that all water within the state is the property of the people of the state, and recreational use is a beneficial and lawful use of these waters.  but the right to the use of water may be acquired by appropriation as provided by law.

That particular solution did not gain any traction with the summer study committee.

I’ve also seen many sportsmen and sportsmen groups passing around links on social media asking them to utilize the Take Action listed on the Backcountry Hunters & Anglers website. Here is the letter the group wants people to send to the Governor and state legislators (plus some personal words added, always a good idea when sending form letters):

South Dakota hunters and anglers ask you to join us in defending public recreational use of the state’s non-meandered waters by working with sportsmen on a more realistic legislative solution which honors the state’s obligation to manage the state’s waters under the public trust, for the benefit of the people of South Dakota.

While improvements have been made, the current draft legislation would allow the privatization of the public access to public waters that has been enjoyed by generations of sportsmen. We urge the legislature to amend the bill in the following ways:

-Section 6 needs to prohibit any fee for access to public waters for hunting, fishing, and other recreation.
-Section 5 and section 9 need to specify that if a body of water is closed to public recreation, it must be closed for everyone including the landowner.
-Section 9 needs to include a process whereby the public can petition to have a portion of a water opened for public recreational use.

Public recreational use of the state’s waters helps sustain 13,380 jobs and $69,457,706 in state and local taxes generated from hunting, fishing, boating and wildlife viewing annually. Any loss in public water access threatens this growing economic driver, as well as the ability of future generations of sportsmen to enjoy our state-owned waters.

This particular letter does specifically call out sections 5, 6, and 9 as needing changed from a sportsmen perspective. I think the group did a good job of explaining why they think these sections are bad.

I do understand where the sportsmen groups are coming from. Like most people I want to find a solution which allows the recreation industry in South Dakota to flourish while respecting property rights. It should be interesting to see what happens during the special session on Monday.

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