Nonmeandered Waters Proposal Picks Private Land Rights over Public Water Rights

The Legislature’s nonmeandered waters task force approved draft legislation yesterday to resolve the issue of public access to recently formed lakes that lie over privately owned land. Governor Dennis Daugaard calls the proposal a good compromise:

This bill is a good compromise that balances the rights of landowners with the ability for sportsmen to use public waters for recreation. I support this bill and encourage the Legislature to work together so that we can finally achieve a solution to this long-standing issue. I will confer with legislative leaders to identify possible dates for a special session soon [Governor Dennis Daugaard, press release, 2017.06.02].

I don’t see the final draft posted on the committee’s webpage yet. However, from Bob Mercer’s reporting, I’m having trouble seeing the “compromise” portion of the proposal. The proposal, says Mercer, “declares all non-meandered waters open to the public, unless landowners post property as closed.” That says ultimate power rests in the hands of the landowners. The visiting fishers and boaters who are supposedly staying away and not spending their precious tourism dollars in South Dakota because they don’t know which waters they can access and which they can’t are given some relief, but only until the landowners put up their signs saying, “Private water—beat it.”

Senator Brock Greenfield amended the proposal to ban landowners from charging admission fees to nonmeandered waters on their land, but the landowners’ control over the water remains, thus aggravating the fundamental conflict of rights created by this issue: state law declares that all water in the state is public property, but this legislation still says a big chunk of water is not public property. The Greenfield amendment waters down that privatization, saying in a way, “The public doesn’t own that water, but the landowner doesn’t fully own it, either, since she can’t make a buck off of it.” But the proposal still makes nonmeandered waters private in the daily sense of the word: Landowner Jane can have her privacy by banning boaters so she doesn’t have Fisherman Bob peeping in her back window from his pontoon boat.

The committee itself doesn’t seem very confident in its proposal. They included a sunset clause of July 1, 2021, leaving the door open for the confusion we have in the status quo to come back. They also walked away from yesterday’s meeting without setting a date to convene in special session and pass their solution. Senator Greenfield and committee chair Rep. Lee Qualm, indicated to Mercer that its up to the Governor to pick a date. So much for bold leadership from our legislators.

I look forward to studying the exact text of the bill for any real signs of compromise. But from the reporting thus far, the nonmeandered waters committee appears to be choosing private property rights over public water rights.


12 Responses to Nonmeandered Waters Proposal Picks Private Land Rights over Public Water Rights

  1. I’m kind of done with this subject, and I can see that I’m not making any friends in standing up for what I believe in, but here are a few of my final points.

    “Nonmeandered Waters Proposal Picks Private Land Rights over Public Water Rights.”

    #1. Tell that to the people who own land under non-meandered adjacent to meandered water.

    #2. Their decision doesn’t necessarily put landowner rights over public water rights. As brought up at the meeting in Webster, the legislature didn’t want to hold recreation at the same standard as other more essential uses. To do so could cause unintended consequences down the road.

    #3. GF&P had a hand in writing this, so it is a compromise in every practical sense. It may seem to some like fisherman got the raw end of this deal, but think that if/when the rest of the non-meandered water comes up for debate, the landowners will receive a bloodbath.

  2. Robin Friday

    Right now, we have such a drought that the waters are not meandering. In any case, I put landowner rights over sportsmen.

  3. Rhetorical questions:

    Is air public property? If so, can I get a hover over your property and take pictures of daughters running through sprinklers or peer into your windows and see what you might have to steal. Or just hang out above your backyard?

    Air is public property isn’t it?

  4. Roger Cornelius

    Air is not property.

    If you hover over someone’s backyard gaping at your daughters be prepared for an ammosexual to shoot you down.

  5. I am inclined to err on the side of the public – on this one.

    We’ve got a bunch of water pockets for people to fish in. City people are totally cool closing their blinds when they take a shower, why aren’t rural people?

    Snowflake rurals need to get with the times, or just come right out and admit that they are anti-economic development.

  6. Roger, let me be more specific: air space which is deemed public property.

    The reason I asked the question is if we apply an absolute public right to water, how do we have restrictions on drones or hoover crafts.

  7. Chip: You said; ” GFP had a hand writing this.” As if to suggest that such behavior lends credibility to the proposal and elevates it’s acceptability. You forget that GFP is organized and managed under the complete control of the executive branch. From experience; here is a dose of reality. GFP and it’s Commission are going to do the precise bidding of the Governors Office and it couldn’t be more clear from the Governor’s statements that their co-authorship of this measure is and was fully influenced by executive instruction. This governor and others before him have been notorious for their meddling in the affairs of natural resources and this issue just follows on the heals of the Spearfish Canyon State Park; a bad idea that became a pariah the more DD tried to justify and defend it. Your assumptive inference that GFP helped craft this measure with professional expertise and autonomy is a huge fallacy. GFP hasn’t made an important conservation decision or adopted

    In other reality; GFP should have no dog in this fight. It should be the Water Management Board and the Department of Environment and Natural Resources but it isn’t and there is a reason for that. Those bureaus don’t have any money. See what Parks v. Cooper has to say.

    What this proposal does, most effectively is set up a defacto mechanism for these landowners to extort money from GFP; visa vi the licensed buying public. I will wager that if this farce passes, there will be all sorts of property owners from across the state approaching GFP to sign up their ground under non-meandered water in the WIA program or risk having it posted. They do it now with crop and marginal land just by threatening to lease or charge fees for access if GFP doesn’t acquiesce. The WIA program is rife with land that wouldn’t raise a game bird or animal if it had to but yet the license buying public pays dearly to keep it open to public hunting even though there isn’t anything on the land to hunt and hasn’t had for decades due to lousy stewardship. There are a growing number of landowners that look at GFP and the federal government as a cash cow and this bit of politically inspired slight of hand is just the latest addition to the scam.

  8. I failed to finish a sentence in the previous post!

    GFP hasn’t made an important conservation decision or adopted biologically sound and responsible policy autonomously for at least 25 years. The self acclaiming hodge podge of mission statements published over the years have had little bearing or influence on management and resource stewardship issues like this one. Be it Commission or Staff, the decision makers are appointed and serve at the discretion of the Governor. If you want to keep your job, hope to make a difference one day, and accomplish something meaningful for wildlife and the public, you keep your head down, mouth shut, do as you’re told even if it violates every bit of your benevolent interest and inherited conservation minded principle. There is a reason why we have perpetual government scandals and corruption both here and across the US!

  9. If the current weather patterns continue the whole thing maybe moot. I drove by many of these areas today and notices how fast the Water is disappearing. Most the land in question was farmed in the early nineties and looks like we are headed their again.

  10. Airspace is public property – held in trust for the use and enjoyment of the American people. That which is not needed for defense is managed by the FAA for commerce.

    And yes, I did hover over private land for years. Perfectly legal according to the FARs. And in the rare instance of a nut brandishing a weapon or shooting us, we simply called the FBI to report a federal crime. Problem solved. (The FARs regarding airplanes are more restrictive, more constipated.) The federal airspace goes down to, but not including the surface. And that is where helicopters operate most usefully.

    In South Dakota water is public, held in trust for the use and enjoyment of the public. Cockimamy schemes that preclude the public from lawfully accessing and using waters held in the public trust likely will not survive constitutional challenge.

  11. John,

    What makes you think the Constitution would preclude the government from limiting public access to a public asset? That is exactly what the FAA, FCC, FOrest Service does everyday.

  12. Troy, does the government hand public assets over to the control of private owners?