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.