So I’m hanging out at day #1 of public testimony to the Legislature’s interim committee on non-meandered waters here in Aberdeen. This is the issue flowing from the South Dakota Supreme Court’s decision in March that has led to fishers and boaters losing access to lakes created by recent flooding.
The major conflict here is that water, established by the public trust doctrine as a public resource, has submerged private property. The public cannot use its water resources without infringing on private property. The thirteen legislators and roughly 100 citizens gathered in this NSU lecture hall are trying to figure out how to balance those competing rights.
Some speakers have referred to fair compensation for landowners. Local landowner and conservationist Bill Antonides said he’s heard $5 to $7 per acre bandied about as a range of compensation for the rights landowners lose when nature (and increased drainage) dump record-high waters on land that used to stay dry and fishers and boaters come floating above their land to play.
I wonder—is the compensation we’re talking about really a disaster payment for land taken out of production? Or is it more than that? In a way, nature through rains and floods acts as an agent of the state, of the constitution, seizing private property in a way that renders it public domain. Practical private ownership rights disappear under public water. If owners can’t practically exercise their rights, they don’t really own the property. If owners don’t own property, they shouldn’t have to pay tax on it.
So there’s our solution: When water renders land unusable, when it submerges land with publicly accessible water, government cannot levy property tax on that submerged land. We can allow flooded landowners to retain a nominal title that recognizes the owners’ right to sell their land but no right to control access. If the land dries out, landowners can block public access and resume grazing or cultivating it. The state can offer to buy flooded lands and adjoining riparian zones that appear to be staying wet forever.
Nominal title and 100% tax abatement likely would not make up for the complete loss of yearly production value. There is no way to quantify the loss of the ability to control access and not have strangers in boats floating by one’s old silo and barn.
But the public faces a loss as well. Waters are public. When geography and agriculture cause water to collect over private land, that water remains public. I can’t think of the proper price tag for ceding that public ownership to an abstract notion of property over land that is practically useless for anything other than the public’s exercise of its right to use water.
A speaker at the hearing just said there’s no way to separate the land from the water; if you control the water, you control the land. I’ll grant that point. The floods take land. The flood waters that remain are for public use. The state should pay its fair price for that taking, by no longer taxing land that over which the landowner no longer enjoys control or use. The state should perhaps creep right up to the edge of eminent domain, offering to buy out every flooded farmer for whose wetlands there now is justifiable demand for public use but allowing the diehards counting on drier decades to retain a nominal title limited to selling rights.