Draft Bill Dodges Legislative Responsibility, Doesn’t Resolve Conflicts over Access to Nonmeandered Waters

So for the last few years (and still today!), South Dakota has had the opportunity to expand Medicaid to provide health coverage to 50,000 South Dakotans who have no affordable insurance option, add $1.383 billion and 29,500 jobs to our state economy, and bolster our state budget. Yet our Governor and Republican legislators didn’t think Medicaid expansion was worth a special session of the Legislature.

Yet take away a couple dozen fishing holes—leaving a-fish-ionados only 270 meandered lakes, Black Hills streams and reservoirs, and the Missouri River on which to enjoy their recreation—and we’re one extra committee meeting away from convening the Legislature in June to decide who can fish where.

The Legislature’s priorities are seriously out of whack.

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The interim committee on nonmeandered waters—the new lakes to which public access was thrown into confusion by a successful lawsuit by flooded landowners backed by the Corn Growers and Farm Bureau—put out draft legislation yesterday to define the balance between public water rights and private land rights. As one might think the Corn Growers and Farm Bureau would want, that draft legislation (written with the assistance of Corn Growers lobbyist Matt McCaulley) sets the balance mostly in favor of landowners.

Section 4 puts Game Fish and Parks in charge of negotiating with landowners for public access to public but nonmeandered waters overlying private property.

Section 5 says we can fish, swim, or boat on nonmeandered waters over private land if we get landowner permission.

Section 6 authorizes landowners to bar public access to nonmeandered waters on their land with signs or buoys.

Sections 7 and 8 reopen the nonmeandered lakes on which GF&P halted activities in April, along with the Highway 81 lakes south of Arlington and Island South in McCook County. However, Section 9 orders GF&P to create a process by which landowners could petition to restrict access to those waters as well.

Section 14 clarifies that, if any nonmeandered waters over private land remain open for our use, we can only access them via “public roadway, public right-of-way, or other lawful means”—i.e., no tromping over private land to get to public waters.

Section 15 makes clear that the same rules apply to nonmeandered lake beds and frozen surfaces.

Sections 16 and 17 propose the biggest mess of the package: if a landowner puts up Keep Out! signs or buoys on water (or ice!) between a public access point and a patch of nonmeandered lake that is open for public access, a citizen can petition GF&P to open that marked water/ice for transportation only. GF&P could veto a private landowner’s attempt to block public access, but folks could only boat or swim or skate across that marked area, not linger to fish or sunbathe. In short, GF&P could cross off “Trespassing” from the “NO” buoys and scribble in “Loitering”… if someone asks… and if GF&P feels like it.

Section 18 sets the penalty for being on public yet restricted nonmeandered waters as criminal trespass.

Section 20 declares an emergency and enacts this provisions immediately. This provision would thus require a two-thirds vote from the House and the Senate. Without the emergency clause, the measure could pass with simple majorities but would not take effect for 90 days, which, following a June 12 special session, would put enactment on Sunday, September 10, after the summer fishing season.

But whenever it would take effect, this draft legislation would appear not to solve any problem. Post-passage, landowners could still block access to the nonmeandered waters that outfitters and resorts have said they need to stay in business. The draft gives recreation interests no access to or opportunity to dicker for use of nonmeandered waters over private land that they don’t have right now. At best, they get a new petition process by which GF&P may grant them transportation corridors through uncooperative landowners’ waters.

And there’s the big problem with this draft legislation. It allows the Legislature to avoid establishing a consistent, permanent interpretation of who has the right to use the water that supposedly belongs to every South Dakotan. In passing this legislation, the Legislature would shift all the hard decisions and thus the blame to landowners, water users, and Game Fish and Parks.

This problem of a few fewer fishing holes does not seem to rank among the issues warranting a special session of the South Dakota Legislature. This draft non-solution most definitely does not.


52 Responses to Draft Bill Dodges Legislative Responsibility, Doesn’t Resolve Conflicts over Access to Nonmeandered Waters

  1. Porter Lansing

    My buddies at Foley’s Bar duck and goose hunt the heck out of these “new lakes” but I don’t think they fish on them much. Does anyone? How much pickled walleye can you eat, anyway? :0)

  2. I’m curious, ichthyologists: are these couple dozen nonmeandered lakes somehow uniquely good for fishing? Has South Dakota’s fishing industry expanded unusually since these lakes formed in recent decades and due to their formation?

  3. Robert McTaggart

    Are scientists that study Martian fish called areoichthyologists ;^) ?

    Maybe the point of all this is to make fishing in South Dakota much better than on Mars…

  4. I think in most cases Porter is right about more hunting than fishing. If landowners and sportsman would attempt to get along this is really a small issue in the big picture. These areas are not all owned by farmer, sportsmen have a fair amount of ownership in these areas and they too want to protect their own interests.

  5. I think there are a couple things about these non-meandered waters.

    #1 It’s forbidden fruit. Somebody says no, and that makes you want it even more. Also they want to be right, and it doesn’t cost them anything to try to prove it.

    #2 I think that many of the semi-locals want these waters because Waubay and Bitter are usually busy with out of state fisherman.

    #3 There are some incredible fish out there on the water that is heavily contested. However, if they weren’t contested the good fish wouldn’t be there.

    In regard to expanding the fishing industry, that is another hot topic that plays into this. Duerre’s slough in particular was stocked by the GF&P as a rearing pond several years ago. They would net small fish off that water to supply other lakes with fish. This is huge for the lakes in NESD. But nobody could leave well enough alone. The narrative turned to the notion that since the state stocked that slough, it should be open to the public. What happens when that slough gets fished out? Where are you going to stock the lakes from? It serves a huge service to sportsmen just as it is if we continue to use it as a rearing pond. Also Duerre’s have hosted large groups of Veterans on multiple occasions. Robert was drafted and spent four years in Vietnam. So they really like to do that sort of stuff. But nobody ever gives them credit for that. They’re just evil farmers looking for someone to reimburse them for their failed investment.

  6. That response was for Cory BTW…

  7. Section 14 is BS (as stated here at least) because it’s not the township or county’s job to maintain safe water access. Also having vehicles parked along roads is unacceptable for traffic that needs to use that road.

  8. Daniel Buresh

    “Also having vehicles parked along roads is unacceptable for traffic that needs to use that road.”

    How is this unacceptable? They have just as much of a right to that road as the farmers do.

  9. “And there’s the big problem with this draft legislation. It allows the Legislature to avoid establishing a consistent, permanent interpretation of who has the right to use the water that supposedly belongs to every South Dakotan. In passing this legislation, the Legislature would shift all the hard decisions and thus the blame to landowners, water users, and Game Fish and Parks.”

    I agree to some extent. It doesn’t answer the question of what is beneficial. I disagree with your statement about who has the right to use water though. Is not about who, the question is to what extent. Either way it still belongs to everyone usung the parameters of its original intention.

  10. Daniel, would they let you launch a boat or park on, or on the shoulder of a state or federal highway?

  11. Daniel Buresh

    Are we discussing state or federal highways? Or are we talking county and township roads? Go to Devils Lake and see what cooperation is like.

  12. Daniel Buresh

    On a different note, this is one of the largest controversies since IM22 that splits Republicans to the core…..and Pat Powers hasn’t even mentioned it. I guess no one has paid him to mention it yet.

  13. Daniel, there is a big difference of using a road for travel or parking on the right of way to fish out of your trunk. Most fishermen have already figured that out and are good neighbors of farmers and anyone else that uses a public road. There are always the few that think when they buy their their fishing liscense that they don’t hAve to follow the law that says No Parking on the Right of Way

  14. Here is what I have heard. Don’t know if it is accurate.

    Because of the spring “tide rising”, fish has been getting out of meandered water and into non meandered water for years. But never fished so the fish are big and there are alot of them.

  15. Daniel, were talking about a road. Period. Speaking of cooperation. What do you think of my offer of 90% of all non-meandered being open? Pretty generous isn’t it??

  16. Many people think the Duerres are evil, but the Duerres think people icefishing are evil. All could be right.

  17. Interesting note…. I was on the South side of Lake Lily today which goes a mile into Clark Clark county. That southern tip has been a real problem area for fisherman fishing, launching, and parking. About a half mile North I can start to see land coming out of the water again. I doubt you could cross this with a boat anymore. Possibly a pontoon. If it goes down any further it will split the two again and the south side will undoubtedly winter kill because it can’t be over 5-6 feet deep. There are already some sloughs that have winter killed. This problem will fix itself in time unless the wet cycle starts again.

  18. I don’t think Duerre’s think the fisherman are evil. They just don’t want them on their property. Or threatening to get money from the national sportsmen lobby groups to fight for the right to squat in their back yard. Or to be sued by the GF&P.

  19. Bill Dithmer

    East river people!

  20. Yaaa… West River landowners would have had this problem fixed years ago. 😉

  21. Mr. Buresh, I recall over 10 years ago when Lake Thompson flooded and after thousands of dollars were spent to build up the county highway running on the south end of it, farmers were trying to use the road to get to their fields only to have people fishing out the back of their pick ups that were parked crossways on the road. When asking the people fishing if they could move their vehicle so they could get by the response was an abosolute NO! Needless to say the county commission had to post no parking signs to take care of the problem. To this day their are individuals in the court new that still do not follow the law!

  22. There are those who might say that if all these fishermen and swampland owners open carried, we would have no problem.

  23. Cory, the tourism dollars have blossomed in the NE due to the “new” bodies of water. It has saved towns like Willow Lake, and been a big shot in the arm for towns like Webster and Waubay.
    Chip said; “They would net small fish off that water to supply other lakes with fish. This is huge for the lakes in NESD.” There is no natural reproduction in Duerre slough, at least for walleye. The fingerling rearing ponds, like Duerre used to be were chosen for their lack of predators, and the fish had a very fertile environment to grow, so they could be trapped out and transferred to other lakes. GF&P has used many shallow lakes for this around NE, SD. We put the fish in there.
    Cory; if you read Sec. 15, it is in direct conflict with saying the 20+ lakes are open for recreation, because it then states, “No person may walk, wade, stand, or operate a motor vehicle on the bed of a non-meandered 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 non-meandered lake.” It doesn’t state if it is dry or frozen —- it states you cannot do it.
    Chip said; “Daniel, would they let you launch a boat or park on, or on the shoulder of a state or federal highway?” yes they would and I have several times. I kept my rig in the ditch, but Potato Slough and Casey’s Slough are perfect examples. I have parked on many county roads also, but always in the ditch.
    Gduffy said; “farmers were trying to use the road to get to their fields only to have people fishing out the back of their pick ups that were parked crossways on the road. When asking the people fishing if they could move their vehicle so they could get by the response was an abosolute NO!” That in general is just not true. It might have happened 1 time by some jerk, before the road was built up and widened. If you have been on the Oldham Grade lately, almost any piece of farm equipment could cross it with a vehicle parked the way you are describing. The ordinance was passed before they built up the road, and it is really no longer needed.

  24. Daniel Buresh

    You mean like this?

    https://pasteboard.co/aLaIvrcp9.jpg

    Nothing illegal about it. I took this photo about 6 weeks ago in ND and there were prolly 80 vehicles lined up parked on the side of the road. This was 7:30 in the morning. Same thing happens in SD, just not to the same extent. Still perfectly legal. I had my limit in 15 minutes and probably caught 35 walleyes in 2 hours all between 2-6 lbs. Spoke to a lot of farmers, many who offered parking in their fields, some for a small fee, others for free. I even saw one help a guy out who went into a sink hole near a flooded road. They accommodate sportsman because they know their communities thrive from it and they will never get their land back. All they were given was complete liability and tax abatements in hopes that the water resides, but they know the chances of that are extremely slim. The water is the public’s.

  25. Daniel Buresh

    You didn’t even need to leave the road to pick up a fish.

    https://goo.gl/photos/K7q3uAp1ZSFp1L4s6

  26. I would be perfectly fine with people fishing from a flooded roadbed In that manner. My question is where did they park at. Did you mention to them while you were there about your master plan send the national hunting lobbies after landowners that got in the way of your fishing? They may not have been so receptive.

  27. Daniel Buresh

    Look at the photo a little closer Chip. The landowners up there don’t believe they own the water and fish. It’s a non-issue to them because their communities are growing like crazy providing good paying jobs and supporting their tax base.

  28. Yes Cory, to answer your question, as Slim said, the non-meandered water has been huge for the local economy. And much like the Devil’s Lake area in ND the vast majorty of our landowners welcome the fishing with open arms, as I have hunters in the past. It’s a shame that the GF&P didn’t consider the local businesses when they threw their tantrum and closed fishing on these sloughs where fisherman had always been welcome. I hope that the sportsmen don’t follow the same path. There is no reason to punish the business owners over a spat with a handful of land owners. That would seem pretty childish.

  29. Greed wins, again. The Corn Groaners and the Farm Bleaters.
    The problem is the law was not followed. In South Dakota all waters are public. Period. End of discussion. Getting to the water is one thing. Being on the water is another.
    The SD Wildlife Federation is correct in its opposition to this abhorrent affront to public rights.

  30. “Look at the photo a little closer Chip.”

    Didn’t open the second because it wanted access to my Google pic account.

    “The landowners up there don’t believe they own the water and fish.”

    Nobody here does either. Been though this before. That’s a lie

    “It’s a non-issue to them because their communities are growing like crazy providing good paying jobs and supporting their tax base.”

    Here as well on all but a small handful of sloughs. I bet you could find a few there as well if you really looked.

  31. John

    “The problem is the law was not followed. In South Dakota all waters are public. Period. End of discussion.”

    From the SDSC:
    “In abolishing private ownership of “standing water,” the Legislature did not necessarily intend that such waters would become open for recreation.”

  32. Daniel Buresh

    The first link….look again.

  33. Oooh ya. Now I see. Yaaa that would never fly. We got [stuff] to do. Can’t have roads needlessly blocked for hours. Does that road go anywhere or deadhead into the water?

  34. Even if it doesn’t go anywhere, the township can’t afford the expense or liability of keeping it open.

  35. I never buy “forbidden fruit” arguments. Even if true, such an argument doesn’t guide policy. I don’t choose to allow a people to do a bad thing just because forbidding them to do it will make them want to do it more. If it’s bad, it’s bad. “Forbidden fruit” just sounds like the people who want to do the bad thing trying to play rhetorical tricks. (I’m speaking of the “forbidden fruit” argument in general, not specifically of the nonmeandered waters issue here.)

  36. Daniel, I agree: since Pat can’t figure out an angle to this story that benefits his Republican sponsors, he can’t get his head around it.

    I haven’t even tried to figure out the partisan angle; it’s just an interesting question of public policy and rights. We all own the water and the fishies therein; private individuals own the land on which the water sits. How do we balance those ownership rights? The Legislature is leaning toward private ownership… which I’ve heard one correspond refer to as privatizing our public water resources and wildlife.

  37. Interesting that parking along the roadway riles the comment section. I’ll lean toward Daniel’s position: As long as I park on the shoulder, out of the flow of traffic, I have as much right to use that right-of-way at zero mph as Chip does to use the road at 55… or as I do to use it on my bike at 20.

  38. Slim, I’m looking at Section 15…. The text refers to the “bed” and the “frozen surface”. That tells me that Sections 7 & 8 can still authorize me to float my boat on those nonmeandered waters over private land. Section 15 only says that if I fall out of my boat and touch bottom, I’m trespassing. If I wade in from a public access point and step over the property line, I’m trespassing.

  39. Cory,

    If my memory serves, there are about 242,000 acres of meandered waters in South Dakota; there are about 246,000 acres of non-meandered water.

    A couple dozen lakes really is the tip of the iceberg; those are just the areas GF&P has public access improvements.

  40. mike from iowa

    anforte, 56, was born in California, educated in Pennsylvania and New Jersey, and only came to Montana in 1995. After moving to Montana, Gianforte sued to try to keep people from being able to fish in a stream that ran by his property

    Guy sounds like he’d fit right in.

  41. Daniel Buresh

    “Can’t have roads needlessly blocked for hours.”

    Parking on the side of the road is not blocked. They were stretched for a half mile. This road leads to a farm about a half mile east and then is under water for about a 1.5 mile stretch. We wade down the road and fish the ditches. There are two farms to the south as well. Going west of the there the road was flooded over temporarily but is open now. They don’t shut down roads unless the water is over them for an extended period. Even when they do shut them down, you can still walk around the road closed sign to get to your fishing spot. I don’t think there has ever been a single lawsuit as it pertains to liability. They don’t even vacate roads or right of ways, because that is being a dick. You guys fear something that isn’t an issue. The water is the people’s and no way will we bend.

  42. SD Landowner

    Section four says GFP can negotiate with the landowner. this sounds a little “fishy” to me. Does every landowner get paid the same? Based on what? Where does the money come from? Will it involve higher prices for fishing and hunting license? that is the same as a tax increase, which might be hard to get a 2/3 majority from both houses. This bill doesn’t do a hell of a lot except to kick the can down the road until we have another law suit.

  43. Wayne, wow! That’s a lot of nonmeandered water. Are conflicts taking place on any of those couple-hundred thousand acres not addressed by Sections 7 & 8? Has the public ever regularly fished all of those waters?

  44. Daniel~

    “They don’t shut down roads unless the water is over them for an extended period.”

    When we did that, under the same circumstances, we got sued by the GF&P.

    “Even when they do shut them down, you can still walk around the road closed sign to get to your fishing spot.”

    If people here were just walking around the road closed sign, and fishing the road bed, as you are explaining, there never would have been an issue. It wasn’t good enough to simply walk around a road closed sign. They had to drive around them to launch their boats.

    I’m starting to wonder if it isn’t the sportsmen and GF&P in ND that are more courteous than here, rather than the land owners??

  45. Daniel Buresh

    “If people here were just walking around the road closed sign, and fishing the road bed, as you are explaining, there never would have been an issue. It wasn’t good enough to simply walk around a road closed sign. They had to drive around them to launch their boats.”

    This makes me wonder if you are closing them at the last intersection or if you are closing them at the water line. ND puts flags at the intersection and then a steel sign in the middle of the road only about 20-30 from the waters edge on the road. You can drive right up to the steel sign and drop in the road ditch and cruise the road ditch until you get to the deeper water which could be another quarter mile. My guess is you are closing them at the intersection, so they have to go around and drive a half mile to get to the water. We stand on bridges that are completely dry and above water, yet 2 miles from dry land. Argo’s work great.

  46. Daniel ~

    “This makes me wonder if you are closing them at the last intersection or if you are closing them at the water line.”

    Which time… lol. They definitely got further away as things got worse.

    The important thing to remember is that there was that Duerre’s put out a dock in the beginning for people to use. They asked for $5 per boat to cover costs of the dock and maintaining the road and lot. Seems fair, right? Nobody paid. They pulled the dock. So there was access at one time. Nobody can say they never tried.

  47. $4 per boat is the going rate. Sounds like the Duerres tried to gouge people and people rebelled.

    Under this proposed law bill what will happen when the Duerres’ slough goes back to being a mud bog with 6 inches of water on it? Fisherpeople won’t want to go there, and the Fish Department won’t pay them for access. So it’s a mud bog they have to pay taxes on, right? That will be unfortunate.

  48. The main point is folks, that if a landowner wants to close public water, and the legislature agrees they can do that, then it should be closed to ALL of the public, including the landowners. If you don’t want the public on the public water above your land —- then that should be all the “public”, including you and your friends/customers. If you think about most of the lakes in the lawsuits, the fish got there from public stock, and now, because a person owns the land under the water, they want the public access to be closed. Landowners and their friends/customers are in the “public” class, and if it is closed —- it is closed to them also. Anything less would not be fair.

  49. Sorry I’ve been swamped

    Cory~

    “Interesting that parking along the roadway riles the comment section. I’ll lean toward Daniel’s position: As long as I park on the shoulder, out of the flow of traffic, I have as much right to use that right-of-way at zero mph as Chip does to use the road at 55… or as I do to use it on my bike at 20.”

    The thing is that farm equipment can be 20-40′ wide(although the wider stuff really should go on a trailer) either way these roads are narrow with very steep ditches in places. There’s nothing wrong with driving your bike down the the road because you are actually there with it and can get over. Most people that pull over and park don’t get off that far. You’re lucky if all four tires are off the road. Also when people are fishing right along the side of the road there can inevitably be dogs and kids there. This equipment is hard to see around, and even harder to stop. I realize that it’s the job of a driver to watch out for this type of thing, but you don’t see us driving through residential areas either. I hate to say that you don’t belong there, but you don’t belong there. There is a place for everything. Even towns have bike paths. Also walking paths. Bikers don’t belong on designated walking paths. They just need a dock and a parking lot. That’s the only thing that makes sense. I’ve had friends, who have waited for 45 minutes for a boater to come off the lake and move their vehicle so that they could get around them with equipment. I’ve pulled over a hill with a loaded semi on more than one occasion with cars on or right by the road with kids running around. It’s not a good deal. During hunting season I’ve had vehicles sitting in the middle of the road with all four doors open and everybody in the field chasing pheasants. It’s not our job to put up with this. Designate an area for them.

  50. Slim~

    “The main point is folks, that if a landowner wants to close public water, and the legislature agrees they can do that, then it should be closed to ALL of the public, including the landowners.”

    That’s actually been considered. Supposedly a township can lock out all hunting and fishing. But that would include the landowners too. Just what I’ve been told. I’m not going to go as far as you, but they definitely shouldn’t be able to profit off of it. Unless there is no place to access the water.

    “If you think about most of the lakes in the lawsuits, the fish got there from public stock, and now, because a person owns the land under the water, they want the public access to be closed.”

    Those were contracted agreements. The contracts have been fulfilled. End of story.

  51. Grudzy~

    Awww come on…. They were playing Sanatra at the end of the dock, and the fish were doing synchronised jumps like the Bellagio!! You’re telling me that wasn’t worth another buck??

    It would just go back to the way it always had been. It’s going to be a few years though. They ran cattle in there in the past. They’ve even planted crops in places in there over the years. In ’76 that was the only silage in the area, and they chopped the whole thing.

  52. “…if a landowner wants to close public water…” Again nobody wants to close public water. They just want to enjoy the same rights they would have if the water weren’t there. Remember my story about my 3rd and 4th graders…