Game Fish & Parks Reopening Boat Ramps Today; Landowners Also Free to Close Waters

Anyone wishing to shift any grief over the Legislature’s stopgap action on nonmeandered waters to the Department of Game Fish & Parks should note GF&P’s swift opening of boat ramps in response to yesterday’s passage of HB 1001:

By the end of today, GFP staff will have removed all cables that previously restricted access to nearly 30 nonmeandered lakes. Full services will be restored by the end of the week; which includes having docks back in the water [SD Game Fish & Parks, press release, 2017.06.13].

Of course, landowners can get to work right away, too, putting up signs and buoys to keep boaters off their flooded lands:

…the department will work closely with the GFP Commission to engage the public in setting rules to implement sections of the bill; including the ability for landowners to mark water above private land closed. In the interim, landowners can still post the waters with conspicuous markers after notifying the department [GF&P, 2017.06.13].

I don’t think Secretary Hepler got that portion of the law correct. Section 13 says, “The owner of private property shall notify the department, within a reasonable time frame, of any area of a nonmeandered lake marked by the owner of private property pursuant to section 5 of this Act.” Marked is in past tense; Section 13 thus appears to allow landowners to put up their “Keep Out!” signs and buoys first, then call GF&P.

22 Responses to Game Fish & Parks Reopening Boat Ramps Today; Landowners Also Free to Close Waters

  1. mike from iowa

    If the land is under water how does one go about establishing boundaries? I’m guessing accuracy could be a problem.

  2. Just like in Iowa, Mike, where you dye your half of the lake with harmless orange food coloring.

  3. So landowners still pay property tax. Have added expense of signage on/off water and have to get permission to protect their property. Is it also true they can’t charge to fish on their underwater land?

  4. Yup, Jana: Section 6: “No owner of private property may receive financial compensation in exchange for granting permission to fish on a portion of a nonmeandered lake overlying the owner’s private property that is marked pursuant to section 5 of this Act.” Now remember, Chris Hesla says there are big loopholes: landowners can’t charge for permission to fish, but they could charge for entry to their land, parking on their land, buying bait or supper, bunking in the barn… and oh, heck, while you’re here, would you like to go fish for free?

  5. Greg "Comrade" Deplorable

    Man, glad that got settled. We call a special session because someone can’t go fishing? Give me a break.
    Meanwhile lets make sure no rancher can hay ditches until after July 10 when grass has completely lost all feed value or been mulched by state hwy dept. workers. Lets make sure all the recreational industries are protected at the expense of the #1 economic industry in the state.

  6. Maybe Mr. Hepler is saying that landowners cannot mark out their pieces of a lake until the Parks Department does those rules that that same section talks about, but the Parks Department will let people start marking before the rules are figured out. The rules will say you need a rubber ducky of such and such color and size and chained to a lead weight no smaller than the head of a Labrador and you must pull them out before the geese fly.

  7. Cory, I hope you will forgive my ignorance on this subject; here on DFP is the only place I have seen much mention of it. Can you or someone here give me a brief rundown of just what the issues are and who, in a general sense, is involved? Could you cite one or two specific areas this applies to? As near as I can tell it’s not something that affects me personally, just curious as it seems to attract some attention here.

  8. JonD, here’s my summary:

    Some wet years in the 1980s and 1990s created some new lakes that have lingered for several years. A lot of that water rests over flooded farm fields. The “public trust doctrine” says water belongs to the public, but the land beneath still belongs to private owners, who still pay property tax on it. People boat in from the roadside, from access points on adjoining public lands, or in some cases from boat ramps that GF&P has gotten permission from landowners to install alongside flooded private land. In some places, GF&P has stocked these new lakes with fish.

    “Nonmeandered” is the legal term for these new lakes. “Meandered” means the surveyors back in pioneer times drew “meander” lines on their maps to mark the high-water marks of existing lakes and streams. Meandered lakes and streams are recognized in state law as public; nonmeandered lakes, having come into existence after the meander lines and state law were put on paper, are in legal limbo.

    In some cases, landowners apparently don’t care if folks are out boating and fishing over their flooded fields. In some cases, fishers come and ask landowners if they can fish on a flood lake, and landowners assent. In others, landowners apparently get cranky about noise, litter, and the mere presence of strangers floating above their land.

    Some landowners (backed by a lawyer who also lobbies for the South Dakota Corn Growers, Matt McCaulley) sued Game Fish and Parks and the state for facilitating access to lakes on their land. The Supreme Court saw their point and said the public’s right to hunt and fish is not superior to landowner’s property rights. (See Duerre v. Hepler 2017.) GF&P read that ruling as a mandate to in April. This decision apparently led to confusion and lots of fishers staying away from all South Dakota lakes, thus causing an economic crisis for outfitters, resorts, and other small-town businesses.

    In Duerre and in the Parks v. Cooper 2004 decision, the Court said the Legislature needed to clarify whether recreational uses like fishing count as one of the “beneficial uses” that make water public property. The Legislature has been aware of this statutory gap since the rain fell and boats started floating, but they’ve managed not to do anything about it. Duerre, GF&P’s action, and the outcry of fishers, farmers, and business people finally pushed the Legislature to action this year.

    For specific areas affected, look at Section 8 of the bill they passed Monday. HB 1001 declares 27 nonmeandered lakes open to the public:

    (1) Casey’s Slough, Cottonwood GPA, Dry #1, Dry #2, Round, and Swan in Clark County;
    (2) Deep and Goose in Codington County;
    (3) East Krause, Lynn, and Middle Lynn, in Day County;
    (4) North Scatterwood in Edmunds County;
    (5) Three Buck in Hamlin County;
    (6) Bullhead, Cattail-Kettle, and Opitz in Marshall County;
    (7) Island South in McCook County;
    (8) Keisz in McPherson County;
    (9) Grass, Loss, Scott, and Twin in Minnehaha County;
    (10) Twin in Sanborn County;
    (11) Cottonwood and Mud in Spink County;
    (12) Cottonwood in Sully County; and
    (13) Dog Ear in Tripp County, South Dakota.

    Now here’s the tricky part: HB 1001 actually declares all nonmeandered lakes open to the public. However, landowners can unilaterally close access to “their” portions of most nonmeandered lakes just by putting up signs or buoys. The Section 8 lakes are special: landowners under those waters must petition GF&P (under rules yet to be promulgated by GF&P) to close them off.

    The short guide: under the new law, if you see water and there are no markers, you can boat in and fish. If you see signs, you need to find the owner and ask to fish.

  9. mike from iowa

    GCD- I am pretty sure all the aluminum cans, odds and ends of fast food lunches, plastic bottles, beer bottles and misc paper products provide adequate nutrition for grass eating critters. plus the late date should ensure a reasonable amount of pheasant nests hatch.

  10. barry freed

    “There are still plenty of computers involved” even without digital touch screens, says Appel. “Even with optical scan voting, it’s not just the voting machines themselves—it’s the desktop and laptop computers that election officials use to prepare the ballots, prepare the electronic files from the OpScan machines, panel voter registration, electronic poll books. And the computers that aggregate the results together from all of the optical scans.”

    “If any of those get hacked, it could could significantly disrupt the election.”

  11. Porter Lansing

    Thanks for the info, Cory. I didn’t know Goose Lake (where I had a home in the 70’s is now a non-meandered lake).
    PS … Greg, you’re not deplorable. Deplorable means you should be condemned. That would mean you’re valid but just misdirected. You’re actually “self loathing” which means you’re someone who hates himself or a group of people to which they belong. Self loathing individuals are often members of one political party who belittle their own people and try to associate themselves with a different political group, or they can be social conservatives who hate themselves and attempt to live and act like moderate people. It is suspected that most politically conservative self loathers are latent liberals who hate themselves enough to deny the people they are actually attracted to.

  12. I want to thank the Governor Daugaard for the great compromise that our legislators voted in on Monday. Yesterday brings new meaning to the minority of sportsmen. On my land which has water on it and has some fishing area is fenced and has crop land bordering the water. Two so called gentlemen from southeast urban South Dakota parked their SUV and trailer on the side of the township road and unlatched the gate and left it open and proceeded to drive their UTV 200 yards through a soybean field after an inch of rain. They must of had an enjoyable day as they left their beer cans and other garbage on the shore. I questioned the two sportsmen after they left another sett of tracks in my field and they said it is their water and they do as they damn please. I know they these two do not represent all sportsmen. Thanks Governor Daugaard for nothing which we have all come to expect.

  13. Dang! That’s straight-up trespassing, not protected by any provisions of the new law. Take pictures of the tracks, report their license plate number, and bust ’em!

  14. mike from iowa

    Is the landowner on the hook for injuries suffered by trespassers in South Dakota?

    Has T Boone bought the surface water rights to all of South Dakota yet?

  15. It is right for the state to store all that Public trust water on private land?

  16. CAH @ 07:14

    Thorough synopsis. Just to clarify, however, I don’t believe the GF&P “facilitated access” to Jesse/Duerre Lake (Duerre v. Hepler) in the sense that they constructed a ramp, dock, restroom, cleaning station, or other facilities at that water body. To my knowledge, the general public was accessing the water solely from public road right-of-ways and other public lands. I believe the same was true for Long Lake, the water body at the center of the Parks v. Cooper lawsuit in 2004.

  17. Interesting! Thanks for that correction, HydroGuy! Jesse/Duerre Lake isn’t one of the Section 8 lakes where GF&P did work.

  18. MC, is it right to say the state is storing water on private land when God/Gaia, not the state, put that water there?

    Mike, Section 11 of HB 1001 limits the liability of landowners. But find me a creative lawyer, and we’ll see if that sticks.

  19. Cory, we both know there will be six to eight bills dealing with this next session including this one from our good friend Rep. May: The state has 30 days to remove all public trust waters from private property or face a $10,000/day fine.

    The private property stays private, the water stays in the public trust; problem solved.

  20. MC—the 30-day bill—I saw that in the interim committee’s collection of drafts. Did Liz May send that to them, or does she have a fellow thinker on that track? It is a novel solution… but is it workable? Could we move that much water if we wanted to, and do we have places to put it? Or is Rep. May just trying to make a point?

  21. Young Ms. May is actually insaner than most. Her brother is the brains behind the operation.

  22. Cory, I think a little of both.

    Could we move that much water in a short period of time? If the heat is on, I believe the state can move heven and earth, to get done what needs to get done.

    If we let it freeze we could just cut the ice into blocks and move it that way. We could move to the Big Sioux or pump it for irrigation. However it won’t be pretty.