The South Dakota Legislature meets in special session today in Pierre to deal with the issue of nonmeandered waters, the lakes over private lands that put fishers and hunters at odds with the flooded landowners. The Legislature is poised to take minimal action favoring property owners and weakening public ownership of water while passing most of the buck to Game Fish and Parks.
The Legislature is poised to ignore an issue that aggrieves every flooded landowner more keenly and regularly than occasional boaters over their former cornfields: the taxes those landowners pay on land they can’t use for anything else but recreation. My local paper says tax reform should be part of today’s debate:
These are people who are paying for land that has been flooded for years, land that they are never getting back. That their flooded land is being valued as usable land is unfair.
We don’t know the exact solution — reassessments by the counties, or blanket property tax relief — but this must be addressed [editorial, Aberdeen American News, 2017.06.11].
Rapid City lawyer David Ganje says the draft legislation lacks numerous other important features, like the clear declaration of whether “recreational use if an acceptable beneficial use of the public waters” that the South Dakota Supreme Court said the Legislature needs to make or explicitly reject. Ganje complains that the draft (I Freudian-slip-typed “drat”) legislation authorizes the state to “buy” public waters, gives landowners no notice or due process relating to improvements on adjoining nonmeandered waters, and doesn’t take on the challenge of establishing clear setbacks or quiet times. Ganje also says the draft creates two confusing and discriminating sets of laws for nonmeandered waters:
The bill legalizes discrimination among the lakes. The plain meaning of words used in the bill create two sets of laws for nonmeandered waters. The bill does this by using the word ‘notwithstanding.’ The late Justice Scalia in a book on statutory interpretations wrote that to use the word ‘notwithstanding’ performs a function opposite that of ‘subject to.’ The bill language ‘Notwithstanding the provisions of this Act’ indicates the provisions which follow the clause are not subject to the other provisions of the Act. The designated lakes listed in the bill, and any landowners owning land underneath the lakes, are not subject to the rules, protections and provisions of the rest of the bill. The bill creates two sets of laws. One for the designated lakes identified in the bill and another set for all other nonmeandered lakes. To explain the correctness of this reading, one need only look at the section of the bill following. Under that section, a landowner on a designated lake must first seek permission from the state before he might put up signs or markers over his property. Other nonmeandered landowners can put up signs. The rights, duties and liabilities of the landowners under the designated lakes are not the same as the rights, duties and liabilities of the landowners under all other nonmeandered lakes [David Ganje, “Legislature’s New Nonmeandered Waters Bill Still Needs Work,” Farm Forum, 2017.06.06].
The federation understands the delicate balance that must be achieved between the public’s right to use public waters and concerns about landowner rights. With that consideration, we attempted to work under the language of this bill, which was drafted in great part by Duerre’s attorneys with little or no public input, by offering a new bill and amendments. The federation made significant concessions, yet included verbiage to protect the rights of the general public. The bill and amendments were offered to and rejected by the summer study group. Assuming the special session will also not address our concerns, the South Dakota Wildlife Federation formally opposes the proposed bill as written [Chris Hesla, “Wildlife Advocate: Nonmeandered Bill Must Not Pass,” Aberdeen American News, 2017.06.12].
Hesla also finds fault with Senator Brock Greenfield’s assertion that his amendment to the draft legislation clarifies that landowners who close access to the public water on their land cannot commercialize that water. Let’s review the Greenfield amendment in 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. A violation of this section is a Class 1 misdemeanor [Draft nonmeandered waters bill, Section 6, posted 2017.06.07].
Landowners can’t charge fishers for plying the waters they close. However, says Hesla, the draft legislation leaves open numerous other routes to making a buck:
Although this bill prohibits landowners from receiving financial compensation in exchange for granting permission to fish closed public waters, it does not prevent other types of compensation; does not apply the same restrictions to lessees; does not prevent an owner from receiving financial compensation in exchange for granting other access including hunting; and does not prevent individuals from forming a legal entity that purchases submerged property and then allows exclusive access to members/shareholders [Hesla, 2017.06.12].
Meanwhile, a Claremont landowner Roger Schuller catches that contradiction and blasts the draft legislation as another disaster for landowners:
It appears that the sportsmen and the state Legislative Task Force agree on one thing in the proposed nonmeandered water bill: The landowner who has suffered a natural disaster and continues to pay the real estate taxes must be punished. If he receives any income from letting people onto his property to fish he will be subject to fine and imprisonment.
…The landowner, who has suffered the disaster to his business and property, must watch while everyone else can receive income and enjoyment off his property. This list includes, to name a few: sportsmen, guides, lodges, bait shops, restaurants, bars, GFP and state government.
What’s next, landowners cannot receive income from hunting? [Roger A. Schuller, letter to the editor, Aberdeen American News, 2017,06.12]
Schuller’s complaint brings us right back to taxes. The draft legislation under consideration in today’s special session lets landowners say, “If I can’t use my land, no one else can, either!” but it denies them real practical relief from paying taxes on otherwise useless land. Instead of avoiding hard decisions, the Legislature should go back to something like my simple May proposal—full property tax refund on flooded land as compensation for public access to public water for recreation.