Last week the non-meandered waters committee met in Pierre for its fourth and final meeting. This leads up to the special session of the legislature convening on June 12. Since I took a look at the draft legislation going into the meeting, I thought it would make sense to also look at the legislation coming out of that meeting.
In this particular post I will copy the text of each section and add any additional information about the section I find relevant. Much of the additional information comes from my notes taken during the meeting; or copied from my previous post if there is no new information. I will also add my personal opinions.
For full disclose I am opposed to this legislation. I have to admit that even though I am a sportsman, I take private property rights very serious and have to focus on those property rights. But as always I will try to write about this topic as fairly as I can, and make sure any opinions I give are clearly stated as my opinion (and not as fact). And, as always if someone wishes to do a guest post to get another viewpoint out I will always consider publishing it here.
I would also like to note this is NOT legislation drafted by the summer study committee. The committee did amend the legislation during the meeting. But overall it appears the legislation was written by Sioux Falls lawyer and lobbyist Matt McCaulley, who also represents the two landowner families that brought the lawsuit against the state. The Governors office and GFP also seem to have had major input into the drafting of the bill.
Fair warning: This is once again a very long post! Actually I just removed almost a thousand words to keep it under 5,000 words.
FOR AN ACT ENTITLED, An Act to provide for public recreational use of certain waters overlying public and private property and to declare an emergency.
Section 1: Legislative findings
Text of Section 1:
Section 1. That the code be amended by adding a NEW SECTION to read:
The Legislature finds:
(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) Because the state holds the waters in trust for the benefit of the public, 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
Notes about Section 1:
Section 2: Definitions
Text of Section 2:
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,” except as otherwise provided bylaw, use for outdoor sporting and leisure activities, including, but not limited to, hunting, fishing, swimming, floating, boating, and trapping.
Notes about Section 2:
Many people, including myself, have had a lot of uneasiness because “lake” is not defined. During testimony it was mentioned that lakes are defined in an Administrative Rule, specifically 74:51:01:01. Here is the definition of lake from that rule:
“Lake,” a pond, reservoir, or other body of water, created by either natural or artificial means, but not a pond or appurtenance that is used for the treatment and disposal of wastes and that is permitted for such uses
I don’t think this definition really reduces the qualms many have. There is no size or age restrictions. As I read this, a one acre slough could be called a lake.
Section 3: GFP able to create agreements with landowners
Text of Section 3:
Section 3. 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, is not an appealable final action of the department
Notes about Section 3:
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. The committee never really spent a lot of time on this seemingly important section. As long as this means the GFP has to work with willing landowners I see no problem with this section. Many landowners I’ve spoken with have no issues with recreaters, as long as certain restrictions are in place to protect their property. This may be different from lake to lake, so GFP probably will have to create different agreements for each body of water.
Section 4: Permission from landowner to recreate
Text of Section 4:
Section 4. 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 the person has permission from the owner of the private property.
Notes about Section 4:
This is simple. It basically means the landowners are able to allow people to recreate on water which sits atop their land.
Section 5: Default access by public unless marked
Text of Section 5:
Section 5. 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.
Notes about Section 5:
This has been touted many times as the most essential portion of the bill. By granting default access to sportsmen unless the property has been marked, the bill may get enough support in the legislature to get 2/3 majority. Of course at the same time there is the potential this particular section could prevent a 2/3 majority. Many landowners and sportsmen are unhappy with this particular compromise.
On the sportsman side there are many unhappy that landowners can close off waters basically at will. From their point of view the water belongs to the public, so it should always be accessible. Some sportsmen have also been worried the cost of marking bodies of water off-limits will be taken from their licensing fees to the GFP.
On the other side the landowners do not like the default being that people can go over their land without permission. In most cases we are talking about flooded land which the farmer hopes to make productive again after the water recedes. Actually there are a lot of reasons landowners may not want people to recreate on the water over their land. Remember this is not just big lakes with fish that are being talked about. From the definition of lake the committee has decided to let stand, it would appear any slough, pond, or large mud puddle is open to the public if there is access from a right-of-way.
Hugh Bartels tried to amend this section to specify that all expenses used to close waters be at the landowners expense. This was to help with sportsmen worried license fees would be redirected towards landowner signage.
Section 6: Landowner can’t make money if access blocked
Text of Section 6:
Section 6. That the code be amended by adding a NEW SECTION to read:
No owner of private property may receive financial compensation in exchange for granting permission to fish on a portion of a nonmeandered lake overlying the owner’s private property that is marked pursuant to section 5 of this Act. A violation of this section is a Class 1 misdemeanor.
Notes about Section 6:
This section was added by an amendment from Sen Brock Greenfield (R, Dist 2). He brought this forth to clarify that landowners cannot commercialize waters that landowners have shut down to the public. Greenfield had heard concerns from constituents that this was an issue (I also have heard the same concerns as I’ve traveled).
Sen Craig Kennedy (D, Dist 18) asked how this would be enforced, as the original amendment had no penalty. It was amended to add the Class 1 misdemeanor.
Rep Spencer Gosch (R, Dist 23) mentioned he had reservations about this section because it doesn’t seem right the GFP can make money off the resources but the landowners are restricted. I believe it should be noted the landowner can make money providing access, as long as they are not blocking access to the general public to their portion of the non-meandered water.
Rep Steven McCleerey (D, Dist 1) also mentioned he has problems with this section. He made the point that fishing is being treated differently from hunting. Rep Spencer Hawley (D, Dist 7) did note there are differences between how hunting and fishing are funded and that water is a pubic resource.
Personally I don’t think this will impact much, mostly because I don’t foresee many landowners trying to commercialize marked off land. But it does give the sportsmen a concession as there may be landowners looking to capitalize on fishing as many landowners have on hunting.
Section 7: Certain non-meandered lakes to be treated differently
Text of Section 7:
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 before 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.
Notes about Section 7:
Basically this section will force the GFP to reopen most of the lakes closed after the court case. The actual lakes to be reopened are listed in Section 8.
This is a section which may cause legal problems down the road. The two conditions listed in this section are being used to justify the lake forcing certain non-meandered waters open to the public. This would mean the landowners with property under the lakes in question are being treated differently from other landowners.
Rep Burt Tulson (R, Dist 2) tried to amend this section to change the “and” to a “or” for the two conditions. The reason for that is some of the non-meandered lakes in Section 8 do not have a boat ramp, even though public funds have been spent there. The Highway 81 lakes were the ones in question.
This is where there was a conversation about words being very important. The amendment didn’t pass. If the amendment had passed there may have been a lot more lakes that could be added to Section 8.
Section 8: List of non-meandered lakes to be treated differently
Text of Section 8:
Section 8. That the code be amended by adding a NEW SECTION to read:
The waters of the following nonmeandered lakes are declared open for recreational use pursuant to section 7 of this Act:
(1) Casey’s Slough, Cottonwood GPA, Dry #1, Dry #2, Round, and Swan in Clark 17 County;
(2) Deep and Goose in Codington County;
(3) East Krause, Lynn, and Middle Lynn, in Day County;
(4) North Scatterwood in Edmunds County;
(5) Three Buck in Hamlin County;
(6) Bullhead, Cattail-Kettle, and Opitz in Marshall County;
(7) Island South in McCook County;
(8) Keisz in McPherson County;
(9) Grass, Loss, Scott, and Twin in Minnehaha County;
(10) Twin in Sanborn County;
(11) Cottonwood and Mud in Spink County;
(12) Cottonwood in Sully County; and
(13) Dog Ear in Tripp County, South Dakota
Notes about Section 8:
These are the actual list the legislature wants the GFP to reopen public access to.
This bill was amended to remove the following lakes from this list:
- Highway 81 East in Brookings County. Testimony noted there is a place to back boats in, though it is not an actual ramp. GFP Secretary Kelly Hepler noted there is already legal access here because of its connection to a meandered water.
- Highway 81 West in Kingsbury County. Testimony noted there is no good public access to this lake from public land. This lake also lacks a ramp. Testimony from a landowner noted that GFP not enforcing current laws is why the public is currently fishing this lake. Actually the whole testimony from the landowner is worth listening to in order to get an idea of why landowners are so frustrated. It also includes him discussing his interaction with GFP and attempts in the past to work out agreements.
- Reetz in Day County. GFP is working with the landowner to reopen this lake. Actually Reetz is an example of why much of this bill may be unnecessary. Landowners if given a chance to work out details specific to their situation will likely open their flooded lands to the public.
Section 9: Landowners ability to petition marking of non-meandered lake being treated differently
Text of Section 9:
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 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.
Notes about Section 9:
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.
Rep Spencer Hawley (D, Dist 7) did try to amend the bill to allow the pubic to petition the GFP Commission to reopen a body which has been closed by a landowner. Hawley felt it was important for both landowners and sportsmen to have a petition process. Rep Herman Otten (R, Dist 6) also had an amendment to provide an appeal process that could be used in the future. He instead backed Hawley’s amendment, which did not pass. This issue likely has not gone away. Personally I think Hawley’s amendment would have caused problems and undue hardship on landowners (I believe Rep Mary Duvall (R, Dist 24) made that point, but I don’t feel like going back through the testimony to make sure at this moment)…
Section 10: Preventing perpetual leases with GFP
Text of Section 10:
Section 10. That the code be amended by adding a NEW SECTION to read:
No lease or license entered into pursuant to section 3 of this Act may be for a term exceeding ten years.
Notes about Section 10:
This section I agree with. It prevents land from being locked up in perpetuity as some federal conservation programs do.
Section 11: Limiting liability of landowners
Text of Section 11:
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. However, contact between recreational equipment and private property underlying any nonmeandered lake incidental to a lawful recreational use is not a criminal trespass.
Notes about Section 11:
This is probably one of the biggest wins 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: Marking standards to be created by GFP
Text of Section 12:
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 5 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.
Notes about Section 12:
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: Notification of marked areas
Text of Section 13:
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 5 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.
Notes about Section 13:
Here I think something needs to be added (assuming the overall bill passes). If the GFP creates agreements with landowners there are likely to be terms of that agreement. These agreements can include anything like no hunting during calving season or no use of motorized boats. It might be necessary for the GFP to post a sign of some type letting the public know what restrictions, if any, apply to that body of water.
Section 14: Means of access
Text of Section 14:
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.
Notes about Section 14:
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:
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.
Notes about Section 15:
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 was not amended in the final committee meeting as I expected. .
Rep Hugh Bartels (R, Dist 5) tried to amend this section to specify that public lands under non-meandered waters could be walked, waded, or stood in.
Section 16: Transportation lane
Text of Section 16:
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 5 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.
Notes about Section 16:
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:
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
Notes about Section 17:
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 for criminal trespass
Text of Section 18:
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 any affirmative defense set forth in § 22-35-7. However, any contact between recreational equipment and private property underlying any nonmeandered lake incidental to a lawful recreational use is not a criminal trespass.
Notes about Section 18:
This section provides penalties for trespassing on private property which have been marked as off-limits. There is an exemption for hunters.
This bill was amended a couple of meetings ago 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: GFP regulatory authority over non-meandered lakes
Text of Section 19:
Section 19. That subdivision (5) of § 41-2-18 be amended to read:
(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;
Notes about Section 19:
It should be noted this section will amend an already existing statute; that being § 41-2-18. This section of law deals with “Rules for implementation of game, fish and conservation laws”.
This section was greatly reduced. Originally the whole statute was included and had a style and form change added. Greenfield’s amendment removed everything except for the section of the statute which was intended to be changed. The inclusion of all the other language has caused a lot of confusion with people trying to read the bill.
The change in this section, which can be seen above with the underline, adds the ability for GFP to regulate “The management, use, and improvement of all … nonmeandered lakes … for the purpose of water conservation or recreation”. This is a section which is being touted as essential for the compromise to work. It is also a section which appears to give the GFP a lot of regulatory power over private land which has been flooded.
I really think this section will be the culprit if the bill fails to pass in the special session. Notice, this section doesn’t say the GFP has the right to regulate the management, use, and improvement of non-meandered lakes where there is public access. No it actually seems to apply to all non-meandered lakes. Which if you look at the definition of lake from above, is basically any flooded land. Giving GFP regulatory authority over all of the non-meandered lakes simply makes no sense. Even if the current GFP administration has no plans to regulate non-meandered lakes which are land-locked by private property, what is to ensure a future GFP administration won’t want to regulate those waters.
Section 20: Report to the LRC Executive Board in 2019
Text of Section 20:
Section 20. That the code be amended by adding a NEW SECTION to read:
Before June 2, 2019, but after April 1, 2019, the department shall deliver a report to the Executive Board of the Legislative Research Council which includes the following:
(1) An estimate of the number of acres of nonmeandered lakes open for public recreation and the number of acres of nonmeandered lakes marked pursuant to section 5 of this Act.
(2) For the agreements contemplated pursuant to section 3 this Act, a statistical summary relative to:
(a) Agreements reached with landowners;
(b) Negotiations in progress;
(c) Failed negotiations;
(d) Number of inquiries from landowners to commence negotiations;
(3) An analysis of the agreements pursuant to section 3 of this Act compared to voluntary walk in access programs for landowners;
(4) A listing of transportation lanes set pursuant to section 17 of this Act; and
(5) A summary of complaints, prosecutions, convictions, or other resolution of violations on nonmeandered waters pursuant to sections 6 and 18 of this Act.
Following receipt and public dissemination of the report, the executive board or a designated committee of the executive board shall hold one or more public hearings, which shall occur before September 3, 2019, to discuss the report and solicit input from landowners, recreational users, and the general public.
Notes about Section 20:
Greenfield’s amendment also brought this section into the bill. He believes this will force the issue to stay in front of the legislature.
One of the reasons Greenfield gave for this section is that it would preclude the need for a sunset clause to force the legislature to keep working on the issue. Which brings us to…
Section 21: Sunset clause
Text of Section 21:
Section 21. The provisions of this Act are repealed on July 1, 2021.
Notes about Section 21:
Rep Herman Otten (R, Dist 6) brought the sunset via the amendment process. He noted the report to the LRC Executive Board was a good step, but having a sunset would actually allow people to come and give testimony and force the legislature to relook at the issue. Originally Otten wanted this in 2020. I liked the idea of 2020 because it would have forced legislators to take action during an election year. Otten’s amendment was changed to 2021, which now makes it mid-term. It was Rep Larry Rhoden (R, Dist 29) who asked it to back another year, mostly to give GFP more time after the Executive Board meeting.
Personally I think having a sunset in this bill was essential. If this passes into law there may be many unforeseen consequences. This will force the legislature to deal with those consequences instead of continuing to kick the problem down the road.
Section 22: Emergency clause
Text of Section 22:
Section 22. Whereas, this Act is necessary for the immediate preservation of the public peace, health, or safety, an emergency is hereby declared to exist, and this Act shall be in full force and effect from and after its passage and approval.
Notes about Section 22:
This is necessary for whatever solution the special session passes into law so it can take effect immediately.
Final Thoughts and next post
Since the Governor is choosing to hold the special session on June 12 I would guess this means he believes the votes are there for the bill to get a 2/3 majority. Many have asked me if I think this has a 2/3 majority. I don’t know. I’ve spent more time speaking with landowners and sportsmen than I have with legislators. I do know there are a good number of legislators who don’t like the legislation, but they still may vote yes to it. Actually adding the sunset may have swung a few votes to yes, possibly ensuring it gets passed.
Coming up next I will have a couple of posts explaining a little more about why I don’t like this particular solution.