Category Archives: 2017 SD Legislative Session

Non-meandered water interim summer study committee meeting on Weds, May 24

Tomorrow, May 24, the Regulation of Access to and Use of Non-Meandered Waters on Public and Private Property Study legislative committee will meet at 10:00 am in Pierre. For anyone curious about what non-meandered waters are, I covered that earlier today in a post. The previous meeting for this legislative summer study committee included getting public testimony about the topic right in my town of Aberdeen. I recorded and posted the testimony from both Day 1 and Day 2. Additionally I posted a video I recorded at a sportsmen event which included GFP explaining their side of things.

The agenda for this upcoming meeting is pretty simple. Basically the committee with look at draft legislation, take public testimony about the draft legislation, and then take action. The only piece of proposed legislation can be viewed here. I don’t have time between now and the meeting to actually analyze the legislation. But from a brief reading of the legislation I have apprehensions. The bill is trying to do a lot, and anytime a bill tries to do too much there is a severe chance of unintended consequences. Plus I have apprehensions about giving GFP more power, when they may be part of the problem (actually I think we should make the head of GFP an elected official, but that is a post for a different day).

Audio from the meeting can be found on the SDPB website and/or on the LRC website. Unfortunately I am unable to attend and record the meeting, so I will not be video recording this meeting. This is THE meeting to listen to, it will determine when/if there is a special session!

What are non-meandered waters?

Non-meandered lakes will be THE topic to keep an eye on!

I’ve been traveling around talking to a lot of people about non-meandered waters over the last few weeks. Of all the questions I receive the top one has to be people asking what non-meandered waters are. This short post will pass on what I understand about non-meandered waters and a few other questions that I get. This is not meant to be an in-depth article on the topic and I am purposely keeping this simple by omitting some facts so as to keep the post short!

What are meandered lakes?

Back in the late 1800’s when South Dakota was about to become a state there was a survey done of the entire state. During this survey all navigable waters (such as rivers) were surveyed and placed on a map. Lakes were also surveyed. A surveyor would map out the outline (meander) of all lakes that existed at that time. Any bodies of water under forty acres were not officially meandered. Additionally some lakes over forty acres were kept off the official meander status if they were shallow and unlikely to last as a lake (although they were placed on the official map). The property under the meandered lakes officially became the property of the state to be held in the public trust. These lakes are known as meandered lakes.

What are non-meandered lakes?

Non-meandered lakes are basically all of the other lakes in the state which are not one of the meandered lakes. Actually all water sitting on the ground is technically non-meandered water, even if it is not large enough to be called a lake. For the purpose of this conversation 40 acres seems to be the defining size of a lake, but I’ve noticed this isn’t necessarily always true…

There are a LOT of non-meandered lakes in northeast South Dakota. During the 90’s there was a lot of rain and flooding in this part of this state. This has caused a lot of farm and ranch land to be inundated with non-meandered waters of all sizes. Some of these lakes started out as little more than a slough at the edge of a farmer’s field.

An important thing to remember about non-meandered waters, including non-meandered lakes, is that the land under these waters are owned by landowners and not the state. That is the important distinction between non-meandered waters and meandered waters:

  • non-meandered waters have private landowners owning the land under the water
  • meandered waters have the state owning land under the water

No matter who owns the land under the water, it is important to remember that nobody owns the water over top the land. This is due to the public trust doctrine.

What is the Public Trust Doctrine?

Here is the definition of Public Trust Doctrine on USLegal.com:

Public Trust Doctrine refers to a common law doctrine creating the legal right of the public to use certain lands and waters. The right may be concurrent with private ownership. The legal interest of the public is not absolute; it is determined by a balancing of interests. The rights of the public are vested in each state as owner and trustee of Trust lands.

Generally, tidewaters to their farthest reach, tidelands, navigable waters, and permanently submerged lands, including those extending lakeward or seaward to the limit of state ownership, are subject to the Public Trust Doctrine. The Public Trust Doctrine arises from the fact that Trust lands are special in nature physically and legally. Historically, the public use of these waters and lands was crucial for sustenance, travel, and commerce.

Basically in regards to the current issues in South Dakota this means all water in the State are held in the public trust. It is then up to the State through the legislature to decide what is in the public interest as to how the water within the state shall be used.

So what is the big deal with non-meandered waters now all of the sudden?

Technically this is not an “all of the sudden” situation. There have been water issues with landowners going back many decades, possibly all the back to 1889. Why this has come to a head now is because of how many non-meandered lakes currently exist in northeast South Dakota. Many of these lakes are fairly new, maybe only a couple of decades old in some cases. The lands under these lakes are owned by private landowners. Some of these non-meandered waters (not just the lakes) have imposed a financial hardship on farmers who are no longer able to produce any income off that land. Many farmers, and other landowners with non-meandered waters, want to make sure the land is usable after the water hopefully leaves their land in the future.

On the other hand sportsmen (fishing and hunting in particular) see these new waters as a chance to expand their sports within the state. Since the water is in the public trust many sportsmen believe these waters should be available to use for recreation. In particular they make that case that any non-meandered water which has access from a public right-of-way (such as a ditch) should be open for recreational use.

There are many other issues involved with non-meandered waters (such as economic gains from sports tourism and drainage issues), but again I’m trying to keep this post short…

Over the last couple of decades there have been legal battles between landowners and sportsmen (also GFP, who many landowners feel are on the side of sportsmen). Repeatedly the SD Supreme Court has ruled it is up to the SD Legislature to decide whether recreational use of non-meandered water is in the public interest. There have been attempts to do this over the years legislatively, but each attempt has failed. Those proposed pieces of legislation are a topic for a future blog post.

So why did GFP shut down a bunch of lakes?

The fact of the matter is the legislature has failed repeatedly to set in law that recreational use of public waters is in the public interest. The recent court ruling  in Duerre v. Hepler  once again called out the legislature to decide how non-meandered waters should be treated in regards to recreational use. Additionally the ruling includes this very important paragraph:

But the Legislature has not yet said that “public purposes” includes a right to use this State’s non-meandered waters for recreational purposes. So until the Legislature acts, neither the public nor the Landowners have a superior right to
use the waters and ice overlying the Landowners’ private property. Similarly, until the Legislature acts, the GF&P and other State defendants cannot facilitate access for members of the public to enter or use the waters and ice overlying the
Landowners’ private property for recreational purposes.

Since GFP had “facilitated access” by placing docks on non-meandered waters they decided to block off access to these docks until the legislature acts. Thereby from a public point of view the GFP has shut down access to some (yet not all) of the non-meandered lakes.

Now some people, including myself, believe this was a political move by the GPF, and by extension the Governors office, to force a special session. Some believe the GFP only should have shut down access to the two lakes involved in the actual lawsuit.  It could be said the GFP purposely shut down these lakes in order to force the legislature to convene a special session and give them power to regulate non-meandered lakes.

The other part that is interesting is that the many landowners, sportsmen, and business owners concerned about the closing of these lakes are only calling out GFP. Oversight for the GFP is done by an eight-person commission; of which the members are all appointed by the Governor. The term of each commissioner is four years. Each current commissioner has either been appointed or re-appointed by Governor Daugaard. It just seems odd to me Daugaard is not catching heat for the actions of a State Department which he appointed the members of the committee that are meant to oversee that committee.  Perhaps he is getting a free pass because he is term-limited.

Future posts forthcoming

This “short post” has already gotten way too long. I will continue to blog about the topic as a special session approaches.

Video: Second day of public testimony about non-meandered waters to the summer study committee

Non-Meandered Waters Hearing Day 2

Wednesday was Day 2 of public testimony before the SD legislative interim committee on  the Regulation of Non-Meandered Waters. I was able to attend and record the meeting; just as I had for the first day of testimony. In this post I have included the video. I would highly recommend people watch the video to hear the many concerns of landowners and sportsmen about the topic of access to non-meandered waters.

Below I have the video posted and it is three and a half hours long. The last half-hour is committee discussion. The video can also be viewed directly on YouTube.

Now that I have these videos uploaded I plan to actually blog about the topic more starting next week.

Video: Public testimony about non-meandered waters to the summer study committee Day 1

Non-Meandered Waters Hearing

Yesterday was Day 1 of public testimony before the SD legislative interim committee on  the Regulation of Non-Meandered Waters. I was able to attend and record the meeting. In this post I have included the video. I would highly recommend people watch the video to hear the many concerns of landowners and sportsmen about the topic of access to non-meandered waters.

This video is just under three hours long (if I find time I’ll cut it down to shorter chunks if enough people request it). The video can also be viewed directly on YouTube.

Coming up next I will the video of a non-meandered waters informational event I recorded in Watertown. Tomorrow I should have the video shot today highlighting Day 2 of public testimony before the legislative committee (today’s hearing had one of my favorite moments of the whole two-day ordeal).

Videos forthcoming about Non-Meandered Waters

With the recent Supreme Court ruling (or non-ruling as some are calling it) regarding access to non-meandered waters there has once again been a lot of attention placed upon the issue. Throughout the summer I plan to blog about non-meandered waters and other related issues (such as drainage). To kick off my 2017 blogging of this issue (I have blogged about it quite a bit in the past) I though it would be good to record a few public meetings and get them out for people to see.

This week I will have three videos uploaded. The first two are from the legislative interim study on  the Regulation of Non-Meandered Waters. The committee met this morning to hear three hours of testimony from the public. I recorded the event and should have it uploaded late this evening or early tomorrow morning. The committee will reconvene tomorrow morning at 9:am for further testimony. I will record that second session as well.

The third video I will be sharing with be of an event being hosted by Dakota Sportsman Inc in Watertown this evening. There is a Facebook event setup so people can know when/where the event is. This will be an informational meeting about the SD Supreme Court ruling. I will record the event and have it posted some time tomorrow, or possibly Thursday if time gets away from me.

As the summer progresses I hope to record and post more videos about the whole non-meandered waters issue. If anyone hears of any public events please let me know. I am willing to record and post events from any viewpoints. I would especially like to know of any events focusing on landowners rights, since the event I am taping tonight will likely focus purely upon sportsmen rights.

The GOAC meeting on Tues, April 25, is one to keep an eye on!

Non-meandered lakes will be THE topic to keep an eye on!

On Tuesday, April 25, the legislative Government Operations & Audit Committee (GOAC) will meet in Pierre for its second meeting of the year. This is a meeting worth keeping an eye on for many reasons; I’ll go into some of those reasons as I list the agenda items below. Due to this meeting have so many big-ticket topic I plan to be in Pierre on Tuesday in order to record a video of the proceedings. Hopefully that will allow more people to see what GOAC does or doesn’t do.

The previous GOAC meeting was held on March 28 in Pierre. The minutes from that meeting can be read here.

The agenda for the upcoming April 25 meeting can be viewed here.  For this post I will briefly list each agenda items. Additionally I will add some notes pertaining to each agenda item.

Item 1 – Department of Legislative Audit to review the Single Audit Report for the State of South Dakota for the fiscal year ended June 30, 2016

This agenda item has the two following documents posted online:

I haven’t had a chance to actually browse through either file yet.

Item 2 – Brand Board to review the 2016 annual report

The two documents available for this agenda item are:

Over the last few years I’ve learned the branding board is VERY important to ranchers. Cattle stealing still happens and the Brand Board is one tool used to keep rustling under control.

Item 3 – Department of Human Services, Division of Rehabilitation Services to discuss Federal Communication Commission Direct Video Calling

For this agenda item the Department of Human Services (DHS) will give a presentation on Telecommunication Relay Services (TRS). The documents available for this meeting are:

Item 4 – Department of Game, Fish and Parks to discuss the discontinued access to non-meandering waters in South Dakota

Now we are up to what I think will be one of the, if not the, biggest item of the 2018 legislative session: non-meandered waters! This is a top that pits sportsmen against landowners against GFP. It is a topic I will spend more time blogging about this summer, so I will keep this particular blurb short. But I will say this is a topic everyone should be paying attention to. GFP’s move to close access to certain non-meandered lakes after a recent SD Supreme Court decision is getting a lot of attention. My next blog about this topic will be going over some of terminology and history around the topic.

Item 5 – Auditor General to provide an update on the Mid Central Educational Cooperative Special Review Report and the fiscal year 2015 Single Audit – final report to be reviewed at a future GOAC meeting

This is an ongoing issue and will continue to be HUGE. A lot of pressure is being placed on GOAC to find out everything about the GEAR-UP scandals, especially with MCEC. Recently Sen Stace Nelson (R, Dist 19) called out Rep Kyle Schoenfish (R, Dist 19)  for his firms part in auditing certain entities involved in these scandals. That will likely come up during the meeting as well. Unfortunately the Auditor General has not posted a copy of the audit update. People are demanding answers and hopefully this meeting will start to provide some of them.

Item 6 – Bureau of Human Resources to discuss:
• The length of time needed between the employment application and
the job offer
• Performance management indicators

I haven’t really looked into this agenda item….

Item 7 – Future meeting topics:

Finally, here is a list of what GOAC hopes to accomplish later in the year:

  • Juvenile Corrections Reports
  • Review the Mid Central Educational Cooperative Special Review Report
  • Department of Revenue review of performance indicators
  • Bureau of Information and Telecommunications review of performance indicators
  • University Centers financial review
  • Board of Regents application and acceptance process
  • Annual report from the Obligation Recovery Center
  • Annual reports from agencies receiving funds from the Building South Dakota Fund
  • Report from Bureau of Human Resources on compiled authorizations to derive a direct benefit from a contract
  • Report from the Auditor General on compiled authorizations to derive a direct benefit from a contract
  • Annual report from the South Dakota 911 Coordination Board
  • Review the annual work plan and report of the State Board of Internal Control
  • Annual report from the South Dakota High School Activities Association

Many of those topics will likely be blog-worthy. And all of the topics are worth keeping an eye on!

SD State Legislators list updated with leadership positions

I’ve updated the SD State Legislators list (available in the menu above) with the results from the leadership elections recently held.

I believe these results have already been reported by other political blogs in the state. But, for anyone that wants to know who was elected to legislative leadership positions, here are the results of the caucus meetings:

2017-2018 Senate Majority Leadership

If I understand the President Pro Tempore correctly, this is not actually elected until the full Senate is in session and the Democrats get their votes. It is unlikely to change though.

Sen Brock Greenfield speaking on the SD Senate floor. Photo by Ken Santema 1/27/16.
Sen Brock Greenfield speaking on the SD Senate floor. Photo by Ken Santema 1/27/16.

President Pro Tempore: Sen Brock Greenfield  (R, Dist 2)

Majority Leader: Sen Blake Curd (R, Dist 12)

Assistant Majority Leader: Sen Ryan Maher (R, Dist 28)

Majority Whip: Sen Kris Langer (R, Dist 25)

Majority Whip: Sen Al Novstrup (R, Dist 3)

Majority Whip: Sen Bob Ewing (R, Dist 31)

2017-2018 Senate Minority Leadership

Sen Billie Sutton speaking on the SD Senate floor. Photo by Ken Santema 2/19/16.
Sen Billie Sutton speaking on the SD Senate floor. Photo by Ken Santema 2/19/16.

Minority Leader: Sen Billie Sutton (D, Dist 21)

Assistant Minority Leader: Sen Troy Heinert (D, Dist 26)

Minority Whip: Sen Jason Frerichs (D, Dist 1)

2017-2018 House Majority Leadership

If I understand the two Speaker positions correctly, these are not actually elected until the full House is in session and the Democrats get their votes. It is unlikely to change though.

Rep Mark Mickelson at the front the SD House. Photo by Ken Santema 2/17/16.
Rep Mark Mickelson at the front the SD House. Photo by Ken Santema 2/17/16.

Speaker of the House: Rep Mark Mickelson (R, Dist 13)

Speaker Pro Tempore: Rep Don Haggar (R, Dist 10)

Majority Leader: Rep Lee Qualm (R, Dist 21)

Assistant Majority Leader: Rep Kent Peterson (R, Dist 19)

Majority Whip: Rep Arch Beal (R, Dist 12)

Majority Whip: Rep Larry Rhoden (R, Dist 29)

Majority Whip: Rep Leslie Heinemann (R, Dist 8)

Majority Whip: Rep Lynne DiSanto (R, Dist 35)

Majority Whip: Rep Isaac Latterell (R, Dist 6)

2017-2018 House Minority Leadership

Rep Spencer Hawley speaking on the SD House floor. Photo by Ken Santema 1/27/16.
Rep Spencer Hawley speaking on the SD House floor. Photo by Ken Santema 1/27/16.

Minority Leader: Rep Spencer Hawley (D, Dist 7)

Assistant Minority Leader: Rep Julie Bartling (D, Dist 21)

Minority Whip: Rep Karen Soli (D, Dist 15)

Minority Whip: Rep Susan Wismer (D, Dist 1)