Edited 6/10/17 – Changed wording about the lawyer as the old wording made is sound like he represented families in non-meandered waters lawsuits.
Yesterday I posted a look at the draft non-meandered waters legislation which the legislature will vote on in a special session on Monday. As I mentioned in that post, I really do not like this bill and hope it is defeated in special session. In this post I will look at a few reasons I oppose the bill. I will also mention that even though I am a sportsman, I am coming at this purely from a landowner perspective. There are sportsmen groups out there giving many good reasons for sportsmen to oppose this bill.
The good of the bill
Even though I oppose the bill I do think there are a few good parts to it. I thought it might be worth mentioning those parts there. I like the fact there is a liability clause added for non-meandered water which has been opened to the public. There is no reason the landowner should burden the cost of any accidents which occurs on waters landowners are forced to open to the public. Second, I like that there is a sunset. If the bill ends up making matters worse (which I think it will) there is hope it will go away. That about sums up the really good parts of the bill.
First bad thing: This bill does not come from the legislative committee
I will only mention this briefly. The legislative committee did not write this bill. They did a little amending to the bill during the final committee meeting, but overall this is not their bill. It appears the legislation was written by lawyer and lobbyist Matt McCaulley, who also represents landowners as a lobbyist during these proceedings. The Governors office and GFP also seem to have had major input into the drafting of the bill.
I commend some of the legislators for getting out there and listening to the concerns of constituents. But in the end the solution going forth is not one created by the legislature. Instead it was created by a special interest lawyer, the GFP, and the Governor’s Office.
Both the Fifth and the Fourteenth Amendments to the Constitution provide “due process” protections for “life, liberty and PROPERTY” We hear a lot about courts and POLITICIANS protecting the rights to life and liberty – but we don’t hear so much about PROPERTY. Property rights are clearly as important as other individual rights in the US Constitution that protects the individual right to ownership of private property against infringement by national and state government power.
As Rep May says, the Fifth and Fourteen Amendments are in place for a reason.
Here is the text from the Fifth Amendment. I have highlighted the important portion:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
As written this draft legislation opens a landowners property. The landowner does have a way to mark their property off-limits. Yet the way the law is written opens the landowners property up to the public by default. To make matters worse there are some waters, called the Section 8 lakes, which are being treated differently. These lakes are automatically opened to the public and cannot be marked off unless the landowner can convince the GFP commission why any particular portion of the lake should be closed. These landowners are definitely being deprived of property without due process.
Which leads us to the Fourteenth Amendment:
All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Just as with the Fifth Amendment, the Fourteenth Amendment ensures the State does not deprive any landowner of their property without due process. But even more, the Fourteenth Amendment also ensures people within the State have their rights equally protected. To expand upon this I will defer to an article written by David Ganje for the Farm Forum:
The bill legalizes discrimination among the lakes. The plain meaning of words used in the bill create two sets of laws for nonmeandered waters. The bill does this by using the word ‘notwithstanding.’ The late Justice Scalia in a book on statutory interpretations wrote that to use the word ‘notwithstanding’ performs a function opposite that of ‘subject to.’ The bill language ‘Notwithstanding the provisions of this Act’ indicates the provisions which follow the clause are not subject to the other provisions of the Act. The designated lakes listed in the bill, and any landowners owning land underneath the lakes, are not subject to the rules, protections and provisions of the rest of the bill. The bill creates two sets of laws. One for the designated lakes identified in the bill and another set for all other nonmeandered lakes. To explain the correctness of this reading, one need only look at the section of the bill following. Under that section, a landowner on a designated lake must first seek permission from the state before he might put up signs or markers over his property. Other nonmeandered landowners can put up signs. The rights, duties and liabilities of the landowners under the designated lakes are not the same as the rights, duties and liabilities of the landowners under all other nonmeandered lakes.
I would highly recommend reading the whole article here. Ganje lists many reasons to oppose this legislation. I wonder how long it will take before a landowner sues the state just for the reasons Ganje states above.
The public trust doctrine does not mean there has to be access to the water by the public
I’ve spent more time than I thought possible researching the public trust doctrine (for a different project). Nothing in my research leaves me to believe the public trust doctrine means that anyone in the public, including sportsmen, have a right to water over private property. And from reading the SD Supreme Court cases, I don’t see where the legislature has to open up any waters for recreating. Instead the Supreme Court said it is up to the legislature to decide whether recreation would be a beneficial use.
Now, at the same time the current state law does not seem to allow landowners to utilize these non-meandered waters. There are some special exceptions for landowners to use water, such as for irrigation and dams to water cattle. But overall it would appear nobody should be doing anything with non-meandered waters. This is where the legislature should be focusing. Make a law that clearly states how waters on private property should be treated.
Game, Fish, and Parks already has too much power
Actually my biggest heartache with this proposed legislation has to do with giving the GFP regulatory authority over all non-meandered lakes. Part of the bill gives the GFP the power to regulate “The management, use, and improvement of all … nonmeandered lakes … for the purpose of water conservation or recreation”. There are no restrictions saying this is only for nonmeandered lakes with public access. There are no restrictions about the size or age of a lake.
Actually the definition of a lake is itself a problem. 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. Why would the legislature agree to give GFP regulatory access over non-meandered waters; especially when it appears any little puddle on a field could be counted as a non-meandered lake.
It might be worth mentioning that the GFP is one of the (if not the) largest law enforcement agency in the state. The GFP is not the tree-hugging bear-loving rangers from kids cartoons. The GFP officers are gun-carrying law enforcement officers with search and seizure powers other law enforcement agencies don’t have. Additionally the GFP has a highly closed budgetary process and no true oversight from outside of the executive branch. Some will say the GFP is overseen by a board, but this board is appointed by the Governor and at times seems to be more of a board which enables the GFP to do whatever it wants. I would be much better if the GFP Commission actually provided oversight and was chosen by either the people or the legislative branch.
Words from a landowner on 81
Here is a short audio clip worth listening to. It was the testimony given by a landowner before the legislative committee. I think this landowner does a good job relaying the frustrations many farmers are feeling.
I have more reasons to oppose this bill. yet I am already making this post much longer than I intended. If I have time before the special session I shall post more about why I hope this bill is defeated.
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
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.
PIERRE, S.D. – Gov. Dennis Daugaard has called a special legislative session to consider legislation relating to public recreational use of non-meandered waters overlying private property.
After consulting with legislative leaders from both political parties, the Governor is calling the special session for Monday, June 12, 2017, at 10 a.m. CDT, at the State Capitol in Pierre.
“The interim legislative committee considered hours of testimony and struck a good compromise that balanced the rights of landowners with the ability for sportsmen to use public waters for recreation,” said the Governor. “I hope the Legislature can act quickly to resolve this long-standing issue.”
I will have a post looking at the current draft legislation posted some time tomorrow (June 8). Following that I will have a post giving my opinion of the legislation. Spoiler alert: I do not like the current legislation at all in its current form and hope the Governor’s office has not been able to strong-arm the 2/3 votes necessary to pass the legislation. This legislation may fix the tourism industry crisis created by the Governor’s office and GFP, but is a direct attack on property rights. Actually many sportsmen groups also feel the current draft legislation is an attack on public doctrine rights.
I plan to be in attendance on June 12 to witness this special session in person. We will see how many legislators make it (any legislator unwilling or unable to make the trip are an automatic no vote!).
Last night I attended a non-meandered meeting at The Galley in Webster. The meeting was organized by the Webster Area Chamber of Commerce. The purpose of this meeting was to provide an updated to the public about the current draft legislation and receive input from the public. I attended and recorded the meeting for all to view. This meeting was interesting because it was more property-owner oriented; as opposed to the previous meeting I recorded in Watertown, which was more sportsman oriented. This meeting accepted questions and comments directly from the public.
Here is the list of speakers at the event:
Marcia Lefman – Marcia opened the meeting as a representative of the Webster Chamber of Commerce. My hats off to her and others for organizing this event on very short notice!
Sen Jason Frerichs (D, Dist 1) – Frerichs is a member of the Summer Study trying to come up with a solution to some of the non-meandered waters issues.
On June 2 the Regulation of Access to and Use of Non-Meandered Waters on Public and Private Property Study legislative committee will meet to look at draft legislation for a possible June 12 special session. The current draft legislation will likely be updated before the June 2 meeting so they can hammer out a version of the legislation they feel will pass both chambers of the Legislature in special session. The committee members might want to consider having backup legislation in case their favored solution is not able to get that two-thirds majority. A two-thirds majority will be necessary because whatever legislation is passed will need to be passed into law immediately; without that emergency clause the legislation would have to wait 90 days to take effect.
One possible thing for the committee to do is split the current legislation into multiple smaller bills. Yes the current bill was written as one package, but parts of that package may prevent the overall bill from passing. They can possibly break it into smaller bills in the following categories:
Force the GFP to reopen access to the non-meandered lakes where they shut down access. This would be minus the lakes involved in the lawsuits. Getting this bill passed would solve the current crisis for the fishing industry in NE SD. It however would not solve ANY of the problems dealing with non-meandered lakes.
Provide access to non-meandered lakes from public right-of-ways.
Allow landowners to mark their section of a non-meandered water off-limits. This part of the bill might keep the overall bill from passing anyhow, so splitting it out may help.
Release landowners from liability on non-meandered waters the public accesses.
Give GFP regulatory authority over non-meandered lakes. This is another part of the bill I could see preventing the overall larger bill from passing.
Splitting out the larger bill into smaller bills like that might allow the special session to avoid a long and fruitless battle. There is also a chance legislators could make a point of order on the larger bill and say it goes against the SD Constitution because multiple topics are included in the bill. Splitting the bill apart avoids that possibility.
Personally I think the legislature should pass just three bills. Here are the three bills I would pass:
Pass a bill forcing the GFP to reopen the access to the non-meandered lakes they barred entrance to after the supreme court ruling. The lakes involved in the lawsuit would probably have to be exempt and remain closed in this approach. I would also add a sunset to this bill of March, 2018. This will allow NE SD to get past its current crisis and force the legislature to come up with permanent long-term solutions before the end of the 2018 session. There might need to be a little more to this bill, but basically this bill is to reset things to how they were before the Supreme Court decision. This isn’t the most ideal thing to do, but if the legislature isn’t able to come up with a compromise during a special session this will buy a little more time.
Pass a bill releasing landowners from liability on non-meandered waters the public accesses. This is something which should have always been in law from my perspective.
Pass a bill extending and funding the Regulation of Access to and Use of Non-Meandered Waters on Public and Private Property Study legislative committee. Actually I think this bill needs to be passed no matter what happens. There are a LOT of issues with non-meandered waters and only a few of them are going to be dealt with in a special session. This committee needs to keep working up until the 2018 legislative session so the legislature can find long-term solutions and stop kicking the can down to future sessions.
Now I’m sure there are other and possibly better contingency plans for the legislature to follow. But no matter what I think the legislature has to come up with some sort of plan if the body is unable to get a 2/3 majority on the draft legislation coming out of the June 2 meeting.
I just had someone ask why the legislature will go special session over a couple dozen lakes when all that needs to be done is get rid of property taxes for any land under water. This isn’t the first time I’ve heard this question, or variations of it anyhow. It’s a fair question considering most of the coverage in the news has been focused on the lakes GFP shut down public access to. In my attempt to answer some of the questions people have about non-meandered waters I seem to have forgotten some important points. I’ll try to answer a few more questions about non-meandered waters here as best as I can.
I’ll probably do more of these posts as June 2 approaches to help people have conversations regarding non-meandered waters.
Looking at the graph above there are 2,324 nonmeandered lakes covering 325,000 acres in South Dakota which are over 40 acres in size. When adding in the lakes under 40 acres, there are 29,033 lakes covering 588,000 acres in South Dakota. The twenty-plus lakes GFP closed access to are just a drop in the bucket compared to how many lakes are being talked about. There is a lot of flooded farm land in NE South Dakota; a lot of which formed in the 1990’s.
Most of these nonmeandered lakes do not have fish in them. Here is another chart from the GFP presentation:
So of the thousands of non-meandered lakes in SD, GFP has determine only 91 of those lakes have fishing. Just under 2/3 of the land under these non-meandered lakes with fishing belongs to private landowners.
I think the above charts do a good job of showing that dealing with non-meandered waters is more than just a couple dozen lakes.
So are the 91 fish-able non-meandered lakes the only ones that have to be dealt with?
Simple answer: No (despite what I heard incorrectly noted during a radio news story earlier this week).
The legislature is tasked with determining if the public has a right to enter or use non-meandered waters for recreational purposes, and what the conditions are in order to utilize non-meandered waters for recreational purposes. There are recreational uses other than fishing. Common recreational uses include hunting, trapping, snowmobiling, swimming, boating, kayaking, and many other activities. Just because a lake doesn’t have fish it doesn’t mean it can’t be used for recreation.
Going back up to the numbers shown above, this issue has to do with thousands of bodies of waters covering hundreds of thousands of acres. That number is greatly reduced when counting only bodies of water where the public can gain access (such as from a road), but even that number is going to be very high.
Won’t abating property taxes on flooded lands please the landowners?
I hear this solution a lot. In reality I don’t think this is a solution. Many of nonmeandered waters being discussed are flooded farm lands. Yes, some landowners would like a property tax abatement. And yes, some already have an abatement of up to 90% depending on the county their flooded land is in. But in reality what is really frustrating many of these landowners is that they have farmland that has been taken out of production because of this water. A lot of these farmers would love to find a way to remove the water altogether. With commodity prices dropping it places even more of a financial burden on these farmers as they potentially have a large number of farm acres inaccessible. Some of these lands may actually have loans against them, which the yearly payments they make on the land make the property taxes look like a pittance.
Property tax abatement or supplement may be part of a solution, but I don’t think property taxes is as big of an issue as many think it is (although I could be wrong).
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.
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!
In this August 1 meeting the departments giving presentations about their Performance Management Review Process include the following:
Department of Game, Fish and Parks
Mr. Kelly Hepler, Secretary
Mr. Chris Petersen, Administration Division Director
Department of Transportation
Mr. Darin Bergquist, Secretary
Governor’s Office of Economic Development
Mr. Aaron Scheibe, Interim Commissioner
Department of Tourism
Mr. Jim Hagen, Secretary
The Department of Transportation, Governor’s Office of Economic Development, and the Department of Tourism gave basic presentations during the May 17 meeting. I hope to see what kind of progress these departments have made and if this actually appears to be doing any good.
On May 17, 2016, the Government Operations and Audit Committee (GOAC) met in Pierre for its first meeting of the 2016 interim session. My post prior to that meeting can be viewed here and the minutes from that meeting can be viewed here. The main item of interest for me in that meeting was an update on the Obligation Recovery Center (ORC). The ORC is the new state collection agency created by the legislature in 2015 via HB 1228 (SoDakLiberty Posts) because some legislators feel the private company that had been hired to collect debts for the state wasn’t doing a good enough job.
Jeff Holden, Commissioner of the Bureau of Administration (BOA), was on hand to update GOAC as to how the implementation of the ORC has gone so far. The first part of his presentation focused on awarding CGI Technologies and Solutions Inc (CGI) the contract to implement the ORC. This happened in November of 2015 and I have the following three posts looking at this aspect of the ORC:
In my post looking at the scope of work I included this proposed timeline CGI would use for implementation:
Technically if CGI was keeping their timeline that means the implementation for collecting UJS fines and restitution would have been online by the time of the May GOAC meeting. But that does not appear to be valid anymore. The minutes from the May GOAC meeting includes this:
He stated that CGI has begun working with agencies to gather information specific to each agencies debt collection processes. The ORC manager will soon be finalizing a process that State agencies will follow prior to reverting debt to the ORC and the BOA will develop this process into proposed administrative rules. Commissioner Holden stated that CGI has contracted with Wells Fargo for collections and transferring funds and this process is expected to begin on July 15, 2016.
So that shows the ORC is at least three months behind schedule for implementation. Further, the three agencies that have agreed to move forward with the ORC and will be a part of “phase one” are the South Dakota Unified Judicial System (UJS), Department of Corrections (DOC) and Game, Fish and Parks (GFP).
Commissioner Holden also noted that in December of 2015 there were RFP’s issued to attain three third-party debt collection services. The BOA is currently negotiating contracts with the companies receiving the contracts. These contracts will be for one year initially; with options to extend the contract a year based upon performance.
There was a question to Commissioner Holden about CGI’s contract. Holden specified CGI had not yet been paid anything. CGI will get paid only as debt is collected. At that time CGI will receive 20% of all revenues collected as per the law that implemented the ORC.
Finally Sen David Novstrup (R, Dist 3) asked about the decision for denying license renewals for individuals that owe the state money. Holden noted the details are still being worked out. But this is listed in the minutes:
Commissioner Holden stated that an individual will lose their hunting and fishing licenses if they owe the State a minimum of $50 and have been notified three times of the amount due. He explained that this is similar to motor vehicle registrations and licenses; however the minimum amount of outstanding debt to the State is $1,000.
As the implementation of the ORC gets closer I still see no reason the people of South Dakota should not be wary of this new debt collection center. This ORC will have the power to take away people’s ability to renew licenses. A person unable to renew a vehicle license will likely lose the ability to actually pay off the debt owed. $1,000 sounds like a high threshold, unless you are the person that owes that $1,000 and have no means to currently pay off that debt. Giving the ORC the power to withhold licensing just seems like an overreach.
This is the first meeting of the year to actually look at rules. The previous meeting on March 19 was mostly organizational. There was one interesting item from the March 19 meeting that might be worth looking at before going into the April 12 meeting. The previous meeting had an agenda item of
Department of Game, Fish and Parks’ proposal regarding license allocation
Department of Game, Fish and Parks’ proposal regarding license allocation
Mr. Tony Leif distributed a handout entitled “State Statutes”, “East River Deer – 2015”, and an example of the current language used in administrative rule and their proposed language which will show the number of licenses by season, not by unit (Document 2). Mr. Leif reviewed the documents and asked the committee to consider allowing the department to change the way license allocations are handled in the administrative rules. Following a brief discussion, it was the consensus of the committee to try it as long as the committee is provided a spreadsheet that shows two years of license allocations and provided the charts are available to the public on the departments’ website.
This seems to be a big enough change I would have thought it would have more information available. The rules.sd.gov listing for this rule doesn’t offer much more info. This rule is combined with another one listed on the April 12 agenda.
Perhaps more discussion of this topic will occur during the April 12 meeting. Now its time to look at that meeting.
Department of Game, Fish and Parks
Amend an Application for License rule to authorize the Department Secretary to authorize a terminally ill resident to hunt deer, antelope and turkey during established seasons under certain terms and conditions. (This rule has been filed.)
Director Tony Leif provided information on the request from verne Boer and the Outdoor Adventure Organization that would allow for terminally ill residents to hunt deer, antelope and turkey through a onetime authorization granted by the Department. Leif further explained the differences which determine the qualifications for the authorizations surrounding the age criteria ouflined in the administrative rule. He also stated recipients must be a resident and are not eligible to receive multiple licenses for different species as this is a onetime license for each species and that authorizations will only be valid within established hunting seasons. Request will be submitted by field office staff to the Department secretary who would grant the authorization based on each individuals circumstance within the guidelines provided in the administrative rule.
Department of Game, Fish and Parks
Amend a Refuges rule to eliminate the Dry Creek State Waterfowl Refuge.
Kirschenmann and Stone presented the Department recommendation to remove the Dry creek state waterfowl Refuge based on the fact a key landowner has pulled out of the Lower oahe waterfowl Access program and within that landowner contract was the contingency of having this refuge in place. stone also described to the commission that staff will be further evaluating other refuges on the Missouri River system and obtaining public input over the next year.
Department of Game, Fish and Parks
The proposed administrative rule change will: 1) amend the rules on uses of parks and public lands, (2) amend the rules on application for license for second draw elk licenses, 3) amend the minimum air gun specifications rule, 4) amend goose hunting season rules related to the August Management Take, 5) amend boundary and season date rules for the early fall Canada goose and waterfowl seasons, 6) amend rules and license allocations for the Black Hills, Prairie, and Custer State Park elk hunting seasons, and 7) amend the rules and license allocations for the Custer State Park non-trophy bison hunt.
There is quite a lot going on with these proposed rule changes. It might be worth it for the sportsmen to read through the rule changes!
Department of Revenue: Commission on Gaming
Amend Gaming rules to add a new version of blackjack (Bonus Spin Counts Kustom Blackjack) to the list of authorized blackjack games; add new pay tables and revise the rules in accordance with the new pay tables for Dead Man’s Hand Blackjack; add a variation of the play of blackjack known as Bonus Spin Counts Kustom Blackjack; amend a rule The Play – Ultimate Texas Hold’em to recognize that bets cannot exceed $1,000 bet limit; and amend a Control Program Requirements rule to change the number of recalls for play history from two to ten games.
If you look at the fiscal note for this rule, the interesting part is it will allow newspapers to increase the price of publishing certain items by 2%.
Bureau of Human Resources: Civil Service Commission
Civil Service Commission to review proposed rules change to add two forms that may be submitted to prove eligibility for veterans’ preference. The new forms are for National Guard and Army Reserve service.
I didn’t realize NGB22 couldn’t be used to prove eligibility for veterans’ preference.
Department of Health: Board of Medical and Osteopathic Examiners
(1) Updates ARSD 20:47:03:13 to provide a process for physician locum tenens certificate holders to extend the duration of the certificate; (2) repeals ARSD 20:52:01:03.02 which requires a physician assistant and their supervising physician visit each separate practice location; (3) updates outdated language in ARSD 20:63 related to athletic trainers; (4) updates outdated language in ARSD 20:64 related to occupational therapists; (5) adds ARSD 20:66:03 to create continuing education requirements for licensed physical therapists; and (6) adds ARSD 20:83:01 to create continuing education requirements for licensed nutritionists and dietitians.