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.