Legislature Passes Stopgap Private Lakes Bill, Keeps Nonmeandered Waters Issue Alive for 2018

The nonmeandered waters legislation passed in yesterday’s special session of the Legislature is so bad—

—how bad is it?—

—it’s so bad that the biggest argument the House and Senate had about it was whether it should die four years from now or just one.

The Legislature took ten hours to deliver for Governor Daugaard’s signature the “Open Waters Compromise,” which is still is no compromise and which authorizes the unappealable closure by private parties of far more public water than it opens. In those ten hours, there was less substantive discussion of the core of the conflict—private property rights versus public ownership and use of waters that have flooded farmland—than there was repetition of how impressed legislators were with themselves for working so hard and so fast to put this bill forward (after 25 years of legislative inaction). One of the main arguments made for passing this bill (House Bill 1001) was that failing to do so would disrespect the work of the interim committee, which, sponsors frequently reminded us, made six field trips and took ten hours of testimony from 70 witnesses and on top of that had to take lots of phone calls and e-mails, some of which were mean.

These public servants who regularly humble-brag about their part-time status as citizen legislators sure marvel at their occasional ability to do their job. Good grief, legislators—get over yourselves.

I might be impressed if the Legislature had passed a consistent bill worth keeping around. But the issue that roused the most debate was over the sunset clause. Everyone acknowledged HB 1001 was imperfect and would require subsequent review and tweaking. To force such review, the original version of the bill would have expired July 1, 2021. Apparently wishing to force that review sooner rather than later, Rep. Nancy York (R-5/Watertown) moved to amend that date to July 1, 2018. Rep. York failed to sell that idea to the House, but Senator Jeff Partridge (R-34/Rapid City) moved a similar amendment of the sunset date to June 30, 2018 and won 29–4 approval. Partridge’s rationale was that the legislators who have grappled with this issue should deal with it again next year rather than kicking it down the road to a bunch of noobs in 2021.

Of course, Partridge’s one-year sunset moots the study provision of HB 1001. Section 20 directs Game Fish and Parks to report to the Legislature on closures of nonmeandered waters, negotiations for access, and other results of the law in 2019. But as amended, that directive and the rest of the law goes poof eleven months before GF&P’s report is due. So for all their self-congratulated work, in the three-plus hours it took them to get from Senate approval of its amendments through conference committee to House concurrence, nobody managed to amend Section 20 to direct Game Fish & Parks to provide the information the Legislature will need to assess the effectiveness of its action on nonmeandered waters before it revisits the issue in the 2018 Session.

But here’s the bright side: by passing a law that dies a year from now, legislators have guaranteed that nonmeandered waters will dominate the 2018 Session the same way it has dominated South Dakota political discourse over the past couple months. Farmers and fishers will crowd the Capitol next winter, elbowing aside the Family Heritage Alliance and other culture-war lobbyists and demanding attention for property rights and outdoor sports.

Nonmeandered waters make normal partisan conflicts disappear. Yesterday’s debate included almost no mention of party or ideology. Senate Stace Nelson (R-19/Fulton) tried to force the issue into something vaguely resembling a partisan template, fulminating about the stench of the “hard Left” campaign to subject God-given property rights to negotiation and compromise, but I could hear every other eye in the Senate (except Lance Russell’s) rolling through the SDPB audio feed. If any “hard Left” exists in South Dakota, it collectively cares not one fin about nonmeandered waters. Nonmeandered waters is a uniquely hot and complicated South Dakota issue. The “hard Right” and GOP political hacks can’t fit nonmeandered waters into their templates, either: look how little SDGOP spin blogger Pat Powers and wingnut Gordon Howie have contributed to the discussion of nonmeandered waters. Legislators and concerned citizens can’t get their talking points from Sean Hannity, Ivanka Trump, Rachel Maddow, or Bernie Sanders. South Dakotans have to figure this issue for themselves.

Every hour spent debating nonmeandered waters in the 2018 Session (and possibly the 2018 election) is an hour we don’t spend debating transgender bathroom access. And you know, we may be a lot better off debating where we can fish than where we can piss.

The Legislature worked really hard this spring to come up with a solution that won’t last. But with that little sunset clause, they may have shifted South Dakota political discourse in 2018 for the better.


9 Responses to Legislature Passes Stopgap Private Lakes Bill, Keeps Nonmeandered Waters Issue Alive for 2018

  1. Porter Lansing

    These wishy-washy Republicans couldn’t make a decision or a lasting piece of legislation if their barn was on fire.
    >If there was a Sen. Heidelberger, even social conservatives would listen. “My simple proposal—full property tax refund on flooded land as compensation for public access to public water for recreation.” – mic drop … let’s get on to ethics, campaign finance reform and put some diversity into an initiative and referendum committee. Then a free lunch. :0)

  2. Copied from another thread:

    What a waste of time and money. Nothing was decided. The ’18 sunset clause makes this “legislation” meaningless. There was no need to reconvene over a temporary patch. At least the original sunset clause had some time to it, so it offered a sense of direction. This offers nothing. Those bodies of water didn’t need to be closed to begin with, and the legislature sure didn’t to call a special session just to open them. The expense for this special session lies squarely on the shoulders of the GF&P, and they should cough up the money for it.

  3. This is a hard balance. It isn’t just about property taxes, it isn’t just about privacy, it goes much deeper.

    it is about balancing Public Trust doctrine with the right to keep and own property as guaranteed in the Constitution.

    Right now, for right now, the property owners just want a bit of respect. They want to be asked before driving your boat in their back yard. This bill is just a primer, to help start the conversation. There is still a lot of work to be done.

  4. Porter Lansing

    What you’re saying, MC is that you and your fellow legislators weren’t prepared to address the issue with any solutions in hand? The best you could do on a fairly non complex matter was “just a primer”? It DOESN’T go much deeper, no matter how you backstroke. Cory’s right. If Republicans don’t have Rush Limbaugh, FoxNews and a Koch Bros. template to follow there’s “no there, there”. Make a decision, stand by it, take the heat (it’s what you were elected to do *not you MC) and call it legislation. PS … you can’t legislate respect anymore than you can legislate morality. The state has no validity taxing land that’s underwater and water for duck hunting is open to the public within limits. NEXT ….

  5. mike from iowa

    Would this been a problem in Trash-Can wanted to run a pipeline through people’s underwater back yards?

    What is North Dakota’s solution to an ever expanding Devil’s Lake taking farm lland?

  6. Roger Elgersma

    They obviously do not trust their own judgement if they want it over next year.

  7. Porter Lansing

    Right on, Roger. The process of problem solving isn’t that hard. You make a decision. You implement. You monitor the progress. You tweak. You monitor, again.
    If you’re afraid to make a mistake because you fear for your re-election (maybe because you repealed the ethics package and urinated on the will of your voters) then you’re hamstrung and just punt.

  8. I think part of it is that they’re wanting to see how much land gets posted before moving forward. My money goes on the square that says nothing will change from the way it was before. If it was open, it will still be open. If it was a fight, it will be closed. The same formula that has made NESD a fishing haven. I hope sportsmen can take it for what it’s worth and move on.

    The only good thing I see in waiting to deal with this is that hopefully the full compromise will be more apparent when the land that is flooded adjacent to meandered water will likely be kept open without the right to post it. Even though the meandered part is the tail that wags the dog in cases like Bitter and Waubay lakes.

  9. Balance??? Trying to find weasel words and propositions that attempt to fabricate a compromise in a set of circumstances in which previous legislatures have established absolutely no compromise is gutless and ignorant of a body of law that supersedes the limp wristed wisdom of this legislature by light years. Those that failed to stand up and defend the specific direction of the SD Supreme Court the plain meaning of the language used in Title 46, and the more than obvious precedent established by historical government in the use of the Public Trust Doctrine to craft the intent of public assets held in trust by the State for all citizens, need to be sent down the road kicking their lunch bucket…….. Compromise….. There is no honor or valor in compromise. Take no prisoners legislators or look for another job. This legislature was asked and expected to fix this “IN THE BEST INTERESTS OF THE PUBLIC.” They fixed nothing.