The form is one easy page. Along with contact info, landowners simply check the reason or reasons they want to restrict access to the portion of the lake that lies over their land: Privacy, Safety, or Financial Interests. Landowners need to specify the periods of the year they want to close the water and how long they want that closure in effect. Landowners must include a map of the water they want to close and proof of ownership of the land beneath that water. Petitioners can file the form, map, and deed online or by mailed hard copy.
The GF&P Commission still needs to adopt the final rules for this petition process, so they won’t consider and hold public hearings on petitions until at September at the earliest, so all Section 8 lakes will remain totally open for fishing through summer. Then come winter, the Legislature could throw the whole petition process and any closures out, since the special session produced legislation tagged with a sunset clause of June 30, 2018, requiring the Legislature to take the issue up again during its regular 2018 Session.
When you get back from fishing this weekend, there will be meetings on both sides of the state to discuss the nonmeandered waters issue.
Ken Santema, who is documenting this controversy closely, notes that the South Dakota Wildlife Federation and 29-90 Sportsman’s Club are hosting a meeting in Sioux Falls Tuesday, May 30, from 7 p.m. to 9 p.m. CDT at the Hub building at Southeast Tech. Those two groups oppose the draft legislation and say they have “12 words to fix water law in South Dakota.”
Much of the brouhaha over nonmeandered waters has taken place here in East River, where water is slower and more abundant than in the Black Hills and on the non-glaciated Plains. But West River fishing enthusiasts, wildlife and water advocates, agriculturalists, and property rights defenders can discuss the issue this week at the Prairie Hills Audubon Society‘s Wednesday meeting:
This draft bill will allow (by giving property owners the free choice to restrict access to these non-meandered waters)…. privatization of a large precent of SD water bodies. Violators of restricted access areas will be guilty of criminal trespass. The types of bodies of water in question currently belong to the public. Local private property owners, under the status quo, own the ground beneath the non-meandered lakes in question, but not the lakes themselves or the wildlife, fish, invertebrates and plants that reside in the lakes. The public owns all water and the biodiversity that is above the lake bed. With this bill the landowner can restrict the public access to something the public owns and thus land owners acquire unique access for themselves and their friends. If they commercialize such access — they have successfully privatized some of SD’s wildlife and fish for sale for private gain (you can’t fish, hunt, trap, photograph or “nature study” such without paying for access to do so) [Prairie Hills Audubon Society, online statement, retrieved 2017.05.28].
PHAS and Santema both note that there’s a lot more nonmeandered water that could be affected (i.e., closed to public access) by the draft legislation than I thought. According to this Game Fish and Parks presentation to the nonmeandered waters interim committee, nonmeandered waters make up over 70% of the natural lakes in South Dakota:
But notice in that same presentation that GF&P says 152 of the 267 meandered lakes offer fishing, while only 91 of the 29,033 nonmeandered lakes offer fishing. By those numbers, the draft legislation affects 56,000 nonmeandered lake acres, 9.5% of nonmeandered waters in the state.
Folks attending the Sioux Falls, Watertown, and Rapid City meetings should also arrange their carpools to Pierre for Friday’s meeting of the Legislature’s nonmeandered waters committee. Friday’s confab should be the last committee meeting before the Governor and legislators decide if they have enough support to call the proposed June 12 special session to pass the draft legislation.
The major conflict here is that water, established by the public trust doctrine as a public resource, has submerged private property. The public cannot use its water resources without infringing on private property. The thirteen legislators and roughly 100 citizens gathered in this NSU lecture hall are trying to figure out how to balance those competing rights.
Some speakers have referred to fair compensation for landowners. Local landowner and conservationist Bill Antonides said he’s heard $5 to $7 per acre bandied about as a range of compensation for the rights landowners lose when nature (and increased drainage) dump record-high waters on land that used to stay dry and fishers and boaters come floating above their land to play.
I wonder—is the compensation we’re talking about really a disaster payment for land taken out of production? Or is it more than that? In a way, nature through rains and floods acts as an agent of the state, of the constitution, seizing private property in a way that renders it public domain. Practical private ownership rights disappear under public water. If owners can’t practically exercise their rights, they don’t really own the property. If owners don’t own property, they shouldn’t have to pay tax on it.
So there’s our solution: When water renders land unusable, when it submerges land with publicly accessible water, government cannot levy property tax on that submerged land. We can allow flooded landowners to retain a nominal title that recognizes the owners’ right to sell their land but no right to control access. If the land dries out, landowners can block public access and resume grazing or cultivating it. The state can offer to buy flooded lands and adjoining riparian zones that appear to be staying wet forever.
Nominal title and 100% tax abatement likely would not make up for the complete loss of yearly production value. There is no way to quantify the loss of the ability to control access and not have strangers in boats floating by one’s old silo and barn.
But the public faces a loss as well. Waters are public. When geography and agriculture cause water to collect over private land, that water remains public. I can’t think of the proper price tag for ceding that public ownership to an abstract notion of property over land that is practically useless for anything other than the public’s exercise of its right to use water.
A speaker at the hearing just said there’s no way to separate the land from the water; if you control the water, you control the land. I’ll grant that point. The floods take land. The flood waters that remain are for public use. The state should pay its fair price for that taking, by no longer taxing land that over which the landowner no longer enjoys control or use. The state should perhaps creep right up to the edge of eminent domain, offering to buy out every flooded farmer for whose wetlands there now is justifiable demand for public use but allowing the diehards counting on drier decades to retain a nominal title limited to selling rights.
Speaker of the House G. Mark Mickelson (R-13/Sioux Falls) is a funny guy. The Legislature’s 2017 Interim Study Survey included a comment section where Speaker Mickelson submitted this important guidance for his colleagues’ consideration:
The non-meandered waters issue will take some serious thinking… or maybe just a new survey and a big round of eminent domain (because ultimately, that’s what the fishing advocates are after, the state finishing the taking that the rain gods started). But workforce housing? Come on, G. Mark—that’s just another issue where Republicans and business owners are going to ignore the obvious solution: raise wages, and workers can afford to fix up or buy houses. (There, done, saved you three meetings.)
76 of our 105 legislators* responded to the interim study survey by April 12. Summing their rankings produces this list of preferred topics:
Legislators came nowhere near taking my dare to put refugees on the interim agenda: the three refugee-related topics finished 14th, 19th, and dead-last 22nd. Adding those three topics’ rank points still wouldn’t have beat non-meandered waters or workforce housing (or #3, issues facing the new Government Accountability Task Force). The least popular of those three refugee study proposals, Study “K”, came from Democratic Senator Reynold Nesiba, whose District 15 includes a lot of refugees have settled in Sioux Falls. His proposal was phrased favorably toward refugees, immigrants, and religious minorities, seeking study of these questions:
How do we ameliorate differences and better facilitate cross-cultural understanding to more quickly and effectively integrate new South Dakotans into our workplaces?
What is already working at firms with diverse workforces?
What obstacles exist to further integration? How do we overcome these?
What? Senator Nesiba wanted to get rid of obstacles to making new people part of South Dakota? No wonder it came in last: the only other legislator to express interest in Senator Nesiba’s positive refugee proposal was fellow freshman Rep. Bob Glanzer, Republican from Huron, where a number of Karen refugees have settled to work at the turkey plant.
*p.s.:Legislators not responding by April 12 and not listed on survey tally:
Reps. Anderson, Bartling, Bordeaux, Brunner, Conzet, DiSanto (no guns on topic list, so boring!), Frye-Mueller, Goodwin, Hunhoff, Johns, Kaiser, Latterell, Marty, McCleery, McPherson, Kent Peterson (hey! Mr. Assistant Majority Leader! How about leading?), Qualm (hey! Mr. Majority Leader! Ditto!), Ring, Rozum, Smith, Wiese, and York;
On this week’s show, Spencer Dobson and I discuss Aberdeen’s anti-anti-Islam protest, Kristi Noem’s vanquishing of pine beetles, fishing and private property, and Head Start. Then Spencer and I interview Angie Albonico, leader of an initiative to make it legal for terminally ill South Dakotans to get life-ending drugs from doctors. Have a listen… and if you enjoy the show, help us do more by ringing the Dakota Free Press Tip Jar!
New U.S. Interior Secretary Ryan Zinke on Thursday issued an order overturning an Obama administration ban on the controversial use of lead ammunition and fishing tackle used on federal lands and waters, in a nod to hunters and fishermen on his first day on the job.
…President Barack Obama’s Fish and Wildlife Service had issued the lead ban on Jan. 19, one day before the inauguration of President Donald Trump, to protect birds and fish from lead poisoning. The move was met with sharp criticism from the National Rifle Association (NRA), which called it Obama’s “final assault on gun owners’ and sportsmen’s rights” [Valerie Volcovici, “New Interior Head Lifts Lead Ammunition Ban in Nod to Hunters,” Reuters via KELO Radio, 2017.03.02].
Lead is a metal with no known biologically beneficial role, and its use in gasoline, paint, pesticides and solder in food cans has nearly been eliminated. Although lead shot was banned for waterfowl hunting in 1991, its use in ammunition for upland hunting, shooting sports and in fishing tackle remains widespread.
The most significant hazard to wildlife is through direct ingestion of spent lead shot and bullets, lost fishing sinkers, lead tackle and related fragments, or through consumption of wounded or dead prey containing lead shot, bullets or fragments.
Dr. Barnett Rattner, USGS contaminant expert comments, “The magnitude of poisoning in some species such as waterfowl, eagles, California condors, swans and loons, is daunting. For this reason, on July 1, 2008, the state of California put restrictions on the use of lead ammunition in parts of the range of the endangered California condor because the element poses such a threat to this endangered species” [USGS National Wildlife Health Center, “Concerns Rise over Known and Potential Impacts of Lead on Wildlife,” updated 2016.05.19, retrieved 2017.03.02].
USGS is under Secretary Zinke now. We’ll see if their online information on wildlife lead poisoning meets the Trump scrubber.
Lucas Murray asked the Aberdeen City Council last night why the public can’t fish near the dam on the Elm River next to the city’s water treatment plant. The city replied that a Department of Homeland Security assessment of city property for terrorist risks concluded that it was too dangerous to allow public access to the dam:
“Dam number one is truly the most important portion of our system,” [water treatment plant manager Janel] Ellingson said. “If that were to go away, it would take months to restore the water there. Even if we restored the dam, within hours the water that was lost, it could take months for water to get down to that point of the river” [Elisa Sand, “Access to City Property for Fishing Is Security Issue,” Aberdeen American News, 2016.12.06].
Fisherman Murray despairs for the Republic:
In comments to the council following Ellingson’s explanation, Murray made it clear he wasn’t happy with the city’s answer.
“Essentially you’ve told us the terrorists have won,” Murray said. “It’s changed the enjoyment of this spot” [Sand, 2016.12.06].
Fish and security, beware: shore access is verboten, but pole-bearing marauders can still approach the dam by boat.