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Governor Touts Power Shift to Landowners as “Compromise”

I keep hearing this word “compromise” to describe the nonmeandered waters* legislation for which the Governor is convening the Legislature in special session Monday. But the Governor’s own language indicates the proposal to let landowners bar recreational users from their flooded lands is all about knocking recreational users down a peg and easing landowners’ grief. Check out how Governor Daugaard describes the problem prompting his action:

As the waters of nonmeandered lakes expanded, so did their recreational use, much of which is tied to exceptional fishing in some of the new lakes. As fishing became more commonplace, so did conflicts between sportsmen and landowners. Complaints emerged about boat trailers blocking roadways, littering, noise and many others [Gov. Dennis Daugaard, press release, 2017.06.08 (though curiously labeled April 21)].

The Governor mentions no problems about recreational users not getting to enjoy their rights. Landowners are squeaking, and the draft legislation coming up Monday in our special session is designed to grease their wheels.

A compromise generally means all parties are giving something up and meeting in the middle. This legislation has the public giving up water and private landowners giving up gaining new authority while giving up little to nothing.

*Related Language Note: The award for best headline synonym for this arcane term goes to KJAM Radio, which tagged its Thursday story on the topic, “Governor Calls Special Session About Lakes on Private Land.” Much clearer, only two characters longer in print, and same number of characters if hashtagged! #NonmeaneredWaters vs. #LakesOnPrivateLand—well done, KJAM! But they lose a bonus point for referring to “sportsmen” rather than a more sex-inclusive “fishers and hunters.”

20 Comments

  1. Daniel Buresh 2017-06-09 11:05

    I have written all Senators and Representatives and only have received a single response. Even though I don’t agree with him, I commend Rep Willadsen for actually responding.

    “In your first paragraph, you say that the bill does not solve the problem. I believe it does. The bill defines “recreational use of nonmeandered water” in section 5. This answers the Supreme Court’s concerns.
    The bill also opens the 25 lakes closed by the Supreme Court decision in Section 8. Section 6 prevents landowners from closing nonmeandered waters over their land and establishing a “pay to fish” operation. Section 9 permits a landowner to apply to the Game Fish and Parks Commission to close a section of water over their land for “good cause”. The Game Fish and Parks Commission is charged with promulgating rules and assistance to the landowners for marking the boundary. We’ll have to trust the GF&P to act in the best interests of sportsmen and landowners. Section 11 restricts landowner liability for incidents on nonmeandered water over their land.
    After you read the bill, I hope you can agree that it is a good compromise that will get the 25 lakes open to recreational use by sportsmen and women, and provides the landowners with rights to their land. It is not perfect. It does give us a place to start.”

    I don’t have much faith in our leaders when they think we should grant landowners the power to close public waters.

  2. Caroline 2017-06-09 13:01

    Does no one know what the term “landowner ” means? For many of these people it means they have paid property taxes for years and years on land they will never get a return on. Plus they are supposed to be thrilled with strangers fishing in their backyard. And they are at the mercy of the legislature and sportsman lobbyists. I feel for them.

  3. Roger Elgersma 2017-06-09 13:20

    So if there is a picnic table in your back yard and someone wants to have a picnic with their family they should have the right to use your land and table without asking? Not really. This farm land is their land, bought and paid for and strangers want to use it.
    If you have a corn field and there are pheasants on it, you can post no hunting, set up a lodge and get paid very well by the hunters or you can let any one come and hunt or you can just hunt there yourself, BECAUSE YOU ARE THE LAND OWNER. If private hunting has brought so much tourism money to South Dakota, private fishing could as well. We already have a lot of lakes and dams where the public can fish. If a landowner wants to stock only a particular fish and you like fishing for that type of fish, they should be able to charge you if they own the land, dock, fish etc.. This water was a huge financial lose to these people and if they can recoup this lose with a plan B would be fantastic.

  4. Cory Allen Heidelberger Post author | 2017-06-09 13:28

    Daniel, thanks for sharing Rep. Willadsen’s response.

    If this bill is just “a place to start,” then why are we calling a special session for it? Why don’t we wait to pass legislation that actually solves the problem instead of passing the buck to GF&P?

    Rep. Willadsen overstates the opening of waters and understates the private landowners’ power. This bill only opens for sure those 27 (by my count) bodies of water in Section 7. All of the other nonmeandered waters remain open only until the landowners put up their signs. The Section 7 waters remain open only until the landowners exercise their rights, appeal to GF&P, and win their case that the waters flooding their land should be closed.

  5. Cory Allen Heidelberger Post author | 2017-06-09 13:30

    Now, Roger, your analogy fails because their is no public trust doctrine declaring picnic tables to be public property. The public trust doctrine does say water belongs to the people. The draft legislation does a poor job of protecting or clarifying that public ownership.

  6. JLB 2017-06-09 17:24

    Cory, I respectfully disagree. Despite years of improper claims of access by some sportsman and facilitation of access by the State, the Supreme Court first recognized in Parks that “though state law in both South and North Dakota makes all water public property, neither state has gone so far as to hold that non-meandered lakes navigable under the state test are open for public recreational uses.” Parks v. Cooper, 2004 SD 27, ¶ 49. The holding in Duerre was: “Pursuant to Parks v. Cooper, 2004 S.D. 27, 676 N.W.2d 823 and SDCL 46-1-2, the Legislature must determine whether members of the general public may enter or use any of the water or ice located on the Plaintiffs’ private property for any recreational use such as hunting or fishing. Currently, there is no such legislative authorization.”

    The Supreme Court rejected the “public trust doctrine mandates recreational access” arguments. In short, the public has NEVER had the right to recreate on nonmeandered waters, at least nothing in accordance with the law as stated by the Supreme Court. That is why access points were closed. This bill is a win for sportsman, because until now these waters were not open for recreational access. This bill grants limited access, balancing property rights.

  7. Cory Allen Heidelberger Post author | 2017-06-09 18:14

    That limited access is a step down from what was being practiced prior to Duerre. That limited access is also subject to petition and GF&P closure. The Supreme Court may be right that the public’s ownership of that water is more abstract than previously practiced and does not entail permission to use it for recreation. But that doesn’t change the fact that this measure is not a compromise. The public loses; private landowners win.

  8. JLB 2017-06-09 19:31

    It may be a step down then what was practice prior to Duerre, but not a step down from what the law actually was or is. One cannot, or ought not, simply ignore the law.

  9. Caroline 2017-06-09 20:25

    I do not understand why some of you see a need for compromise. A landowner is a landowner, very simple concept. If the landowner wants to make a little money by charging for fishing, good for him. If not, his decision.

  10. John 2017-06-10 00:16

    A landowner is a land title owner. Period. Not a water owner. Not a water access owner if such water is accessible via public land, right-of-way, or air (seaplane). Not an air owner. Not an owner of the fowl of the air, fishes of the waters, or the game of the land. Landownership is a limited title to the first restricted access and use of the surface land. It’s long past time to confine landowner to its true and customary meaning.

    This compromise is a further killer to local economies and businesses.

    Caroline: landowners ‘get a return’ every time they receive a check from the USDA. They should also petition county commissions and the state to stop taxing or greatly reduce taxes on flooded land to deminimus.

    Perhaps now that the upper Plains appears to enter another drought we’ll stop arguing about the bountiful waters we had.

  11. grudznick 2017-06-10 08:57

    Drain the swamps

  12. Porter Lansing 2017-06-10 10:39

    Grudzie … I just read your post about inviting Pat Powers to photograph you eating breakfast. Very nice of you to offer. Just one point, though. Kurtz didn’t lose his teeth from smoking pot. That came from all the cocaine and meth he does, which leads to his foul mouthed tirades.

  13. Cory Allen Heidelberger Post author | 2017-06-10 16:21

    Caroline, I’m not saying there needs to be a compromise. I’m saying that this bill that the Governor keeps calling a compromise isn’t a compromise.

    Note, however, that the draft legislation as written prohibits landowners from making money off fishing access (see Section 6). If this bill is a compromise, it is only in that landowners don’t get as much and recreational water users don’t lose as much as some apparently want.

  14. Lanny Stricherz 2017-06-10 17:58

    John makes some excellent points. I had breakfast this morning in one of those communities, Eden, which is surrounded by many of these meandered lakes. I have been going there for over 50 years and although the heat and wind was unbearable, for fishing, there were the most fisherman from all over the midwest, that I have ever seen there.

    I’ll bet that a lot of those same landowners were petitioning the state to do something about raising the grade on SD 25 and US 12 and other such highways during the start of the wet years when they were having to drive 50 or 100 miles out of their way to get where they wanted to go.

    Eastern South Dakota has experienced the wettest years since the 1940s and starting last year may be coming into a drought. So in other words, the property owners were farming property that they were not able to farm in the 1940s, up until the rising water of the past twenty years.

    Why is it so difficult for the State government to see that the solution lies in reducing the taxes or taking them completely off the tax roles until such time as they can be productive. Another solution would be to institute a State income and corporate income tax and make the state less dependent on sales and property taxes.

  15. Francis Schaffer 2017-06-11 09:00

    Any thoughts on the unintended consequences of declaring water private?

  16. John 2017-06-12 07:41

    The Court and now the legislature are further reducing sales tax revenue, reducing economic activity, furthering the destruction of several small rural towns, and reduceingfreedom – all to placate a handful of “get off my flooded field” land title holders.
    http://www.argusleader.com/story/news/politics/2017/06/09/business-dries-up-after-court-puts-fishing-holes-off-limits/376988001/

    The title holders have a right for being disgruntled. Their county commissions and state legislators ignored their taxing complaints for over a decade. After enacting this non-compromise the landowners’ problem remains. Only after enacting the non-compromise they’ll suffer in silence since it’s unlkely fishers and merchants will care about the problems of a few cranky old about-to-retire-anyway landowners.

    With the Northern Plains returning to a drought, maybe, just maybe, we’ll stop cursing water; doing instead what we should have done all along – been thankful and benevolent when we had it.

  17. Sdslim 2017-06-12 12:21

    For all you folks that think public water should be under the control of private landowners, ponder this. On township roads, the landowner is paying taxes to the section line, most of the time the center of the road. Yet, time and again the SD Supreme Court has ruled the public has every right to recreate on it, including hunting of waterfowl. We have a good number of rivers in SD, take the James for instance, that flow predominantly over private land, yet the public has every right float, fish, hunt and recreate on that water, because it is “navigable”. Every water body, lake if you will, I have fished on that is not meandered, meets the test of “navigable” in SD. What is the legal difference, between fishing the public waters of a non-meandered lake if the public has legal access, and fishing the James River, or hunting and trapping a section line road? All of our neighboring states, with the exception of ND, have either passed legislation declaring public water open to recreation, or had their Supreme Court decide recreation was a public right on public water. I agree with Cory, this is not a compromise. The proposed law is a “taking” of a public resource, by private landowners.

  18. Cory Allen Heidelberger Post author | 2017-06-12 14:34

    Francis, SDSlim captures those thoughts on privatizing public property quite well. The problem is that we have all that public property parked on private land. I’ll go back to my default proposal: nominal title, 100% tax rebate in exchange for guaranteeing public access, with appropriate setbacks, as with hunting, to protect safety and privacy in homes near nonmeandered waters.

  19. grudznick 2017-06-12 18:21

    Mr. Slim, I bet you that Mr. Russell fellow who got sanctioned by the Supreme Court and is lucky to still be a lawyer would disagree with you. He probably would say the overbearing gubbermint is “taking” the private resources. But that’s just my speculation.

  20. SDslim 2017-06-12 18:40

    It sure is Grudz! And the House and Senate just appointed the the committee to work out the difference between the House and Senate bill, moving the sunset date to July, 2018, and it is made up of 4 landowner rights people and 2 middle of the road people. How do you think this vote is going to come out? Same as the Summer Study? Landowners rule and the rest of us go pound sand? This is the epitome of a political hack job, ignoring the majority and passing something from the Republican base, with no fair consideration for side that disagrees. We so need to get some balance in this state.

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