Tag Archives: non-meandered waters

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Video: Non-meandered waters meeting in Webster, this one was more landowner oriented

Large crowd at the non-meandered waters meeting in Webster.

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.
  • Rep Steven McCleerey (D, Dist 1) – McCleerey is also on the non-meandered waters summer study.
  • Mark Ermer – Ermer works for GFP in Webster as the Regional Program Manager- Fisheries at South Dakota Game, Fish and Parks.
  • Mike Klosowski – Klosowski is out of the Watertown GFP office and is the NE SD Regional Conservation Officer Supervisor.

In the audience Paul Dennert was in attendance; who happens to be one of the GFP Commissioners. Also in attendance from the state level was Rep Drew Dennert (R, Dist 3).

This was a huge crowd. I would estimate there were over two-hundred in attendance, probably closer to two hundred and fifty.

Below is the video of this event. It is just under one hour and forty-five minutes long. The video can alternatively be viewed directly on YouTube.

Tomorrow is the next and possibly final meeting of the Summer Study. I plan to be in attendance to see first-hand what occurs.

Non-meandered waters meetings in Webster and Rapid City on Weds May 31

Ducks on a lake

The final (maybe) meeting of the Regulation of Access to and Use of Non-Meandered Waters on Public and Private Property Study legislative committee this Friday, June 2; which will lead into a likely July 12 special session for the legislature. With the issue of non-meandered waters being so important there have been public meetings announced around the state to discuss the issue. Earlier I noted a meeting will happen tonight (May 30) in Sioux Falls and a meeting tomorrow (May 31) in Watertown. I now have information about two more meetings, one in Webster and one in Rapid City.

The Webster meeting is being held on Wednesday, May 31, at 7:00 pm at The Galley. Here is the information about the meeting from the Webster Area Chamber of Commerce Facebook Event:

Hello:
Please pass the word to everyone that there will be a discussion in Webster on Wednesday, May 31 at 7 p.m. at The Galley, 230 Hwy 12, Webster to talk about the non-meandered waters use.

The State Legislature must determine whether and how the public may use non-meandered waters for recreational purposes. State leaders are encouraging everyone to stay informed as the Legislative Task Force works toward a solution. The Webster Area Chamber of Commerce has helped organize the event and it will just be an update on our status and gather some feedback.

We are happy to host Senator Jason Frerichs (serving Brown, Day, Marshall and Roberts counties) along with the House Representative Steven McCleerey (serving Brown, Day, Marshall & Roberts counties) plans to attend and possibly Senator Brock Greenfield (serving Brown, Clark, Hamlin & Spink counties) if it works in his schedule. Also, South Dakota Game, Fish and Parks will be there along with various stakeholders.

We need all of you there so you’ll stay informed and help input your thoughts concerning this issue so that our State Legislature will consider your feedback when putting this into law for the state.

Everyone is welcome. Please join us!

Sincerely,

Marcia Lefman
Secretary/Treasurer
Webster Area Chamber of Commerce

I had originally planned on going to the Watertown event tomorrow. But I’ve already attended and recorded one Watertown event, and Webster is closer to me, so I believe I will be attending the Webster meeting.

The Rapid City meeting is somewhat less of a public event, but it might be interesting for people in that area to attend. It is being hosted by the Prairie Hills Audubon Society (PHAS). I believe this is the regular meeting of the PHAS, but it does say everyone is welcome on their webpage. Here is the info about the event from the PHAS website:

May, 31st, Wednesday eve, Topic: Non-meandered Waters Legislative Summer Study and associated issues

Prairie Hills Audubon Society evening meeting
Outdoor Campus West, Rapid City
6:30 pm start.

If you scroll down the front page of the PHAS website there is actually quite a bit of good information and links for people trying to understand the issue of non-meandered waters. As Cory Heidelberger over at Dakota Free Press points out, the PHAS is opposed to the current draft legislation. I think it is important for all parties in support or opposition of this legislation be heard.

I would urge anyone able to attend the meetings in Webster, Watertown, Sioux Falls, or Rapid City to do so if possible. And if anyone hears of any other meeting please let me know. I’ll bring some attention to it here, and I will attend if possible.

Legislators may want to have multiple options available going into a possible special session

Slough or lake?

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:

  1. 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.
  2. 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.
  3. 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.

Sioux Falls public meeting about Meandered and Non-Meandered waters on Tues May 30

Photo from Facebook Event

On Tuesday, May 30, there will be a public meeting about Meandered and Non-Meandered waters. This meeting is being hosted by the 29-90 Sportsman’s Club and the South Dakota Wildlife Federation (SDWF).

Here is the information about the meeting listed in the Facebook Event:

The 29-90 Sportsman’s Club, Sioux Falls, along with South Dakota Wildlife Federation (SDWF) would like to invite sportsmen/women to our public meeting about Meandered and Non-Meandered water here in South Dakota.
The presentation is open to the public and will be held on; Tuesday, May 30th at 7:00 PM in the Hub building, 2001 N Career Ave located on the SE Tech campus.
There will be a Power Point presentation covering the history of water, The Public Trust Doctrine and our 12 words to fix water law in SD. We will also hear about the “Economic Impacts” of the recent Supreme Court Decision Duerrer V. Hepler that Northeast SD and sportsmen/women of SD are currently experiencing.
29-90 Sportsman and SDWF are trying to be proactive in moving in the right direction for everyone. We have invited all Sioux Empire Legislators to this meeting. It is a state-wide issue and affects all of us.
29-90 Sportsman is about 150 members strong and is one of SDWF’s 16 Affiliate Clubs and is located in Sioux Falls.
Our goal is to disseminate accurate and factual information to the public and too help everyone understand the recent decision. We are also soliciting questions from the public to be presented to the speakers. If you have a question which you would like answered, please E-mail them to sdwf@mncomm.com. We are expecting a large crowd so individual questions from the audience will not be taken or asked for. We are hoping to select 10 submitted questions to present to the speakers.

This meeting looks like it will be similar to the one I recorded in Watertown a couple of weeks ago.  Although that meeting didn’t have draft legislation to actually speak about.

If I see any more public meetings between now and June 2 I’ll try to list them on the blog. I doubt I’ll make this meeting as I already plan to be in Watertown, Pierre and Rapid City this week (plus hopefully some time at home in Aberdeen).

The non-meandered waters issues go way beyond a couple dozen lakes or property taxes

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.

How many non-meandered lakes are there in SD?

To answer this one I’ll defer to a chart included in the power point presentation GFP gave to the legislature:

Natural Lakes in South Dakota. Graph from GFP PowerPoint Presentation.

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:

Non-meandered Lakes with Fishing. Chart from GFP PowerPoint 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).

Rep Bartels hosting Non-meandered waters public meeting at LATI on May 31

Rep Hugh Bartels at the non-meandered water hearing in Aberdeen on May 10, 2017.

On Wednesday, May 31, there will be a meeting held in Watertown to discuss non-meandered waters. The meeting is being hosted by the Kampeska Chapter of the Izaak Walton League and Rep Hugh Bartels (R, Dist 5). The meeting will begin at 7:00 pm on the fourth floor of Lake Area Technical Institute.

Here is part of what Rep Bartels said about the event on Facebook:

They have asked that I address the provisions of the draft bill being considered by the Legislative Summer Study on this issue. I have asked that the Secretary of Game Fish and Parks attend the meeting and have received confirmation that he will be attending.

The current draft of the proposed legislation can be read here.  Additionally, my look at this draft legislation can be read here.  I don’t know if I will be able to attend this particular meeting. But I would recommend anyone in the Watertown area to attend.

If anyone hears of any other legislators on the non-meandered waters hosting an event prior to the upcoming committee meeting on June 2 please let me know. I’ll bring attention to any the meetings leading up to the imminent non-meandered waters special session.

A look at the draft non-meandered legislation

Boats on the lake

Updated to correct a couple of typos that made it seem the landowners owned the water.

Yesterday the Regulation of Access to and Use of Non-Meandered Waters on Public and Private Property Study legislative committee met in Pierre for what was supposed to be the final meeting. Instead they decided to have another meeting on June 2, with a possible special session being called for June 12. The timeline was delayed because the committee has to do some more work on the legislation. Two days ago I had some reservations about the draft bill after a brief reading, and it hasn’t gotten any better after reading through the bill more thoroughly. In this post I will look at the bill section by section and add some editorialized commentary for some parts of the bill.

The My Thoughts sections are just that, my opinions. I am a true believer in property rights, but also happen to be a sportsman. I actually have more to say about some sections of this bill. But I will save some of what I have to say for future posts in order to keep this from being a novella.

It should be noted this legislation is going to be amended at the next meeting; probably dramatically! There may even be new pieces of legislation brought forth.

Fair warning, this is a LONG post!

Section 1 – Findings

Text of Section 1:

(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) 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.

My thoughts:

Nothing much to say here. This is basically the legislature agreeing they have to do something and acknowledges there has to be a balancing act between private property rights and the interests of recreational users. The  Duerre v. Hepler decision can be read here.

This section was amended by the committee to add the fact that the water is in the public trust.

Section 2 – Definitions

Text of 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,” use for one or more of the following activities, except as otherwise limited by law: hunting, fishing, swimming, floating, boating, trapping, off-road driving, water sports, or snowmobiling

My thoughts

It should be noted that “natural” is included so lakes created from stock dams and such are not included in the definition of nonmeandered lake. I did notice “lake” is not defined by size, capacity, or any other feature. That may be a problem if lake isn’t defined somewhere else in state law. Actually if it isn’t defined elsewhere I would say this definition of meandered lake is downright bad from a landowners perspective.

I can see possibilities of the definition of recreational use being a problem from either side of the debate as well. There are some items missing the sportsmen might want on the list, and some activities such as off-road driving the landowners will definitely not want in the definition.

Section 3 – Meandered Lakes

Text of Section 3:

That the code be amended by adding a NEW SECTION to read:

The bed of each meandered lake within the lake’s ordinary high water mark and the water of each meandered lake is open to recreational use

My Thoughts

For this I would wonder how ordinary high water mark is actually determined, since many of the lakes in question are new and can/do change over time.

Section 4 – Agreement

Text of Section 4:

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, does not constitute appealable final action of the department.

My Thoughts

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. I would have liked to hear more about that since red flags are going up as I read the sentence. I also wonder why purchase is included in this bill, since the land in question will likely have the water recede in the future and there is no reason for the state own that land at that point. It should also be noted there is nothing in this bill to allow for revenue to pay for this land in question.

Section 5 – Permission

Text of Section 5:

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 that person has permission from the owner of the private property.

My Thoughts

I don’t see a problem with this section. This allows the private property owner of land underneath a nonmeandered water to allow access to that water.

Section 6 – Default Rule; Marking

Text of Section 6:

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

My Thoughts

This is being touted as the essential piece to bring landowners and sportsmen together. This section basically says that any nonmeandered lake is open to the public for recreational use unless the owner of the land under the nonmeandered water has posted signs or buoys marking the portion of the nonmeandered lake that is off-limits. Further down in Section 14 is specifies that recreational users must have legal access to that nonmeandered water, and cannot trespass on private property to gain access to that lake.

I can see where landowners and sportsmen will have problems with this section.  One the one hand the burden is being placed upon landowners to mark and remark the sections of lake they want/need off-limits as the water rises/lowers. Some of these nonmeandered waters change dramatically over time. And some of the farmers will hope no recreation is done on lands they plan to use when the water goes down.

From the sportsmen point of view this looks like a means for landowners to completely shut down access to these nonmeandered lakes if they wish to. I’m not sure this compromise will truly be seen as a compromise. This section of the bill could be said to be unconstitutional from the sportsmen viewpoint because it delegates control of waters in the public trust to land owners (I don’t agree with that opinion, but then I’m not a judge).

Section 7 – Lakes

Text of 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 prior to 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

My Thoughts

This section basically says the lakes listed in Section 8 are open for recreational use based upon the fact these lakes have been open and used by the public for a long time and that public funds were used to construct one or more boat ramps.

Notice there is no timeline that was chosen to declare these lakes open. Instead the term “significant period” was used.

I think what they were trying to do with this section (and 8 below) is to get some of these nonmeandered lakes reopened that the GFP chose to close public access to. It is important to note that this portion of the bill treats the nonmeandered lakes listed in section 8 differently than other nonmeandered lakes. This section of the bill actually places recreational use above landowners rights, at least initially.

Section 8 – Lakes

Text of Section 8:

That the code be amended by adding a NEW SECTION to read:

The following nonmeandered lakes are declared open for recreational use pursuant to section 7 of this Act:

(1) Highway 81 East in Brookings County;

(2) Casey’s Slough, Cottonwood GPA, Dry #1, Dry #2, Round, and Swan in Clark 5 County;

(3) Deep and Goose in Codington County;

(4) East Krause, Lynn, Middle Lynn, and Reetz in Day County;

(5) North Scatterwood in Edmunds County;

(6) Three Buck in Hamlin County;

(7) Highway 81 West in Kingsbury County;

(8) Bullhead, Cattail-Kettle, and Opitz in Marshall County;

(9) Island South in McCook County;

(10) Keisz in McPherson County;

(11) Grass, Loss, Scott, and Twin in Minnehaha County;

(12) Twin in Sanborn County;

(13) Cottonwood and Mud in Spink County;

(14) Cottonwood in Sully County; and

(15) Dog Ear in Tripp County, South Dakota

My Thoughts

These are the actual nonmeandered lakes which would immediately be reopened by this legislation. This list also seem to include lakes that are connected to meandered lakes. This is what the sportsmen and businesses in the tourism industry for NE South Dakota want: for these lakes to immediately be reopened to the public.

Section 9 – Marking Standards

Text of 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 the 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.

My Thoughts

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.

Section 10 – Lease Renewal

Text of Section 10:

That the code be amended by adding a NEW SECTION to read:

No lease or license entered into pursuant to section 4 of this Act may be for a term exceeding ten years.

My Thoughts

This section I agree with. It prevents land from being locked up in perpetuity as some federal conservation programs do.

Section 11 – Landowner Liability

Text of 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.

My Thoughts

This is probably one of the biggest win 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 – Marker Standards

Text of 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 6 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.

My Thoughts

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 – Technology; Public Notification

Text of 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 6 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.

My Thoughts

None on this section.

Section 14 – Means of Access

Text of 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

My Thoughts

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:

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.

My Thoughts

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 will likely be amended to clarify the language.

Section 16 – Transportation Lane

Text of 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 6 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

My Thoughts

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:

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.

My Thoughts

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

Text of 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 the affirmative defenses set forth in § 22-35-7.

My Thoughts

This section provides penalties for trespassing on private property which have been marked as off-limits. There is an exemption for hunters.

An amendment was passed by the committing 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 – Game, Fish, and Parks Regulatory Authority

Text of Section 19:

Special Note. This is the only section of the bill I am not doing a copy/paste of the whole section. Rather I am just copying the relevant portions of the section where actual code is being changed. The underlined words below are what the bill would add. The original full section can be read on the draft legislation.

That § 41-2-18 be amended to read:

The Game, Fish and Parks Commission may adopt such rules as may be necessary to implement the provisions of chapters 41-1 to 41-15, inclusive. The rules may be adopted to regulate:

(1) The conservation, protection, importation, and propagation of wild animals and fish except for any nondomestic animal which that is regulated pursuant to § 40-3-26;

(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;

My Thoughts

This section really gives me heartache. This would put the GFP in direct regulatory control of non-meandered lakes. This section alone is why I think the bill as it is should be killed. GFP has no true oversight.  The only oversight is from a Commission, whose members are appointed by the Governor’s office. GFP does not seem to follow the same transparent budgetary process that other state agencies have to follow. GFP is also the largest law-enforcement agency in the state. Giving GFP direct regulatory access over landowners property just because there is water over that land is a non-starter for many landowners.

Section 20 – Emergency Clause

Text of Section 20:

Whereas, this Act is necessary for the support of the state government and its existing public institutions, an emergency is hereby declared to exist, and this Act shall be in full force and effect from and after its passage and approval.

My Thoughts

This is necessary for whatever solution the special session passes into law so it can take effect immediately.

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

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

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

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

What are non-meandered waters?

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

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

What are meandered lakes?

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

What are non-meandered lakes?

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

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

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

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

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

What is the Public Trust Doctrine?

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

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

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

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

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

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

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

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

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

So why did GFP shut down a bunch of lakes?

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

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

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

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

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

Future posts forthcoming

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