The agenda for this upcoming meeting is pretty simple. Basically the committee with look at draft legislation, take public testimony about the draft legislation, and then take action. The only piece of proposed legislation can be viewed here. I don’t have time between now and the meeting to actually analyze the legislation. But from a brief reading of the legislation I have apprehensions. The bill is trying to do a lot, and anytime a bill tries to do too much there is a severe chance of unintended consequences. Plus I have apprehensions about giving GFP more power, when they may be part of the problem (actually I think we should make the head of GFP an elected official, but that is a post for a different day).
Audio from the meeting can be found on the SDPB website and/or on the LRC website. Unfortunately I am unable to attend and record the meeting, so I will not be video recording this meeting. This is THE meeting to listen to, it will determine when/if there is a special session!
I’ve been traveling around talking to a lot of people about non-meandered waters over the last few weeks. Of all the questions I receive the top one has to be people asking what non-meandered waters are. This short post will pass on what I understand about non-meandered waters and a few other questions that I get. This is not meant to be an in-depth article on the topic and I am purposely keeping this simple by omitting some facts so as to keep the post short!
What are meandered lakes?
Back in the late 1800’s when South Dakota was about to become a state there was a survey done of the entire state. During this survey all navigable waters (such as rivers) were surveyed and placed on a map. Lakes were also surveyed. A surveyor would map out the outline (meander) of all lakes that existed at that time. Any bodies of water under forty acres were not officially meandered. Additionally some lakes over forty acres were kept off the official meander status if they were shallow and unlikely to last as a lake (although they were placed on the official map). The property under the meandered lakes officially became the property of the state to be held in the public trust. These lakes are known as meandered lakes.
What are non-meandered lakes?
Non-meandered lakes are basically all of the other lakes in the state which are not one of the meandered lakes. Actually all water sitting on the ground is technically non-meandered water, even if it is not large enough to be called a lake. For the purpose of this conversation 40 acres seems to be the defining size of a lake, but I’ve noticed this isn’t necessarily always true…
There are a LOT of non-meandered lakes in northeast South Dakota. During the 90’s there was a lot of rain and flooding in this part of this state. This has caused a lot of farm and ranch land to be inundated with non-meandered waters of all sizes. Some of these lakes started out as little more than a slough at the edge of a farmer’s field.
An important thing to remember about non-meandered waters, including non-meandered lakes, is that the land under these waters are owned by landowners and not the state. That is the important distinction between non-meandered waters and meandered waters:
non-meandered waters have private landowners owning the land under the water
meandered waters have the state owning land under the water
No matter who owns the land under the water, it is important to remember that nobody owns the water over top the land. This is due to the public trust doctrine.
Public Trust Doctrine refers to a common law doctrine creating the legal right of the public to use certain lands and waters. The right may be concurrent with private ownership. The legal interest of the public is not absolute; it is determined by a balancing of interests. The rights of the public are vested in each state as owner and trustee of Trust lands.
Generally, tidewaters to their farthest reach, tidelands, navigable waters, and permanently submerged lands, including those extending lakeward or seaward to the limit of state ownership, are subject to the Public Trust Doctrine. The Public Trust Doctrine arises from the fact that Trust lands are special in nature physically and legally. Historically, the public use of these waters and lands was crucial for sustenance, travel, and commerce.
Basically in regards to the current issues in South Dakota this means all water in the State are held in the public trust. It is then up to the State through the legislature to decide what is in the public interest as to how the water within the state shall be used.
So what is the big deal with non-meandered waters now all of the sudden?
Technically this is not an “all of the sudden” situation. There have been water issues with landowners going back many decades, possibly all the back to 1889. Why this has come to a head now is because of how many non-meandered lakes currently exist in northeast South Dakota. Many of these lakes are fairly new, maybe only a couple of decades old in some cases. The lands under these lakes are owned by private landowners. Some of these non-meandered waters (not just the lakes) have imposed a financial hardship on farmers who are no longer able to produce any income off that land. Many farmers, and other landowners with non-meandered waters, want to make sure the land is usable after the water hopefully leaves their land in the future.
On the other hand sportsmen (fishing and hunting in particular) see these new waters as a chance to expand their sports within the state. Since the water is in the public trust many sportsmen believe these waters should be available to use for recreation. In particular they make that case that any non-meandered water which has access from a public right-of-way (such as a ditch) should be open for recreational use.
There are many other issues involved with non-meandered waters (such as economic gains from sports tourism and drainage issues), but again I’m trying to keep this post short…
Over the last couple of decades there have been legal battles between landowners and sportsmen (also GFP, who many landowners feel are on the side of sportsmen). Repeatedly the SD Supreme Court has ruled it is up to the SD Legislature to decide whether recreational use of non-meandered water is in the public interest. There have been attempts to do this over the years legislatively, but each attempt has failed. Those proposed pieces of legislation are a topic for a future blog post.
So why did GFP shut down a bunch of lakes?
The fact of the matter is the legislature has failed repeatedly to set in law that recreational use of public waters is in the public interest. The recent court ruling in Duerre v. Hepler once again called out the legislature to decide how non-meandered waters should be treated in regards to recreational use. Additionally the ruling includes this very important paragraph:
But the Legislature has not yet said that “public purposes” includes a right to use this State’s non-meandered waters for recreational purposes. So until the Legislature acts, neither the public nor the Landowners have a superior right to
use the waters and ice overlying the Landowners’ private property. Similarly, until the Legislature acts, the GF&P and other State defendants cannot facilitate access for members of the public to enter or use the waters and ice overlying the Landowners’ private property for recreational purposes.
Since GFP had “facilitated access” by placing docks on non-meandered waters they decided to block off access to these docks until the legislature acts. Thereby from a public point of view the GFP has shut down access to some (yet not all) of the non-meandered lakes.
Now some people, including myself, believe this was a political move by the GPF, and by extension the Governors office, to force a special session. Some believe the GFP only should have shut down access to the two lakes involved in the actual lawsuit. It could be said the GFP purposely shut down these lakes in order to force the legislature to convene a special session and give them power to regulate non-meandered lakes.
The other part that is interesting is that the many landowners, sportsmen, and business owners concerned about the closing of these lakes are only calling out GFP. Oversight for the GFP is done by an eight-person commission; of which the members are all appointed by the Governor. The term of each commissioner is four years. Each current commissioner has either been appointed or re-appointed by Governor Daugaard. It just seems odd to me Daugaard is not catching heat for the actions of a State Department which he appointed the members of the committee that are meant to oversee that committee. Perhaps he is getting a free pass because he is term-limited.
Future posts forthcoming
This “short post” has already gotten way too long. I will continue to blog about the topic as a special session approaches.
Wednesday was Day 2 of public testimony before the SD legislative interim committee on the Regulation of Non-Meandered Waters. I was able to attend and record the meeting; just as I had for the first day of testimony. In this post I have included the video. I would highly recommend people watch the video to hear the many concerns of landowners and sportsmen about the topic of access to non-meandered waters.
Yesterday was Day 1 of public testimony before the SD legislative interim committee on the Regulation of Non-Meandered Waters. I was able to attend and record the meeting. In this post I have included the video. I would highly recommend people watch the video to hear the many concerns of landowners and sportsmen about the topic of access to non-meandered waters.
Coming up next I will the video of a non-meandered waters informational event I recorded in Watertown. Tomorrow I should have the video shot today highlighting Day 2 of public testimony before the legislative committee (today’s hearing had one of my favorite moments of the whole two-day ordeal).
With the recent Supreme Court ruling (or non-ruling as some are calling it) regarding access to non-meandered waters there has once again been a lot of attention placed upon the issue. Throughout the summer I plan to blog about non-meandered waters and other related issues (such as drainage). To kick off my 2017 blogging of this issue (I have blogged about it quite a bit in the past) I though it would be good to record a few public meetings and get them out for people to see.
This week I will have three videos uploaded. The first two are from the legislative interim study on the Regulation of Non-Meandered Waters. The committee met this morning to hear three hours of testimony from the public. I recorded the event and should have it uploaded late this evening or early tomorrow morning. The committee will reconvene tomorrow morning at 9:am for further testimony. I will record that second session as well.
The third video I will be sharing with be of an event being hosted by Dakota Sportsman Inc in Watertown this evening. There is a Facebook event setup so people can know when/where the event is. This will be an informational meeting about the SD Supreme Court ruling. I will record the event and have it posted some time tomorrow, or possibly Thursday if time gets away from me.
As the summer progresses I hope to record and post more videos about the whole non-meandered waters issue. If anyone hears of any public events please let me know. I am willing to record and post events from any viewpoints. I would especially like to know of any events focusing on landowners rights, since the event I am taping tonight will likely focus purely upon sportsmen rights.