So I’m hanging out at day #1 of public testimony to the Legislature’s interim committee on non-meandered waters here in Aberdeen. This is the issue flowing from the South Dakota Supreme Court’s decision in March that has led to fishers and boaters losing access to lakes created by recent flooding.
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.
If there’s no way to separate the land from the water then when the new lake goes over an existing state road the owner of the land and water must be made to compensate the state for it’s loss of public property. lol Ownership of the water doesn’t seem as beneficial now, huh?
What goes up later comes down. When the water goes down on a dry year, those land owners will have land again. If you paid top dollar for farm land that was wetter than the typical dry South Dakota land, would you want to just say “oh well” if it flooded for a few years. five to seven dollars an acre is stealing.
Water is public, just as the air is public. However, you cannot come inside my house and breath your portion of public air unless you have my permission. It should be the same on water that is over land that someone is paying property taxes on. If a landowner should decide to allow access to his/her land that is flooded with water they should be compensated by GFP at the same rate as CRP payments in the same county. GFP could raise the money by increasing fishing and hunting license’s. this debate has gone on way too long. the SD legislature is wasting it’s time on gun laws and abortion issues and has failed it’s constituents once again.
p.s. now would be a good time to ask why GFP doesn’t disclose it’s budget.
I would love to see the Legislature spend every moment it usually spends on abortion, God, and guns on this issue instead.
Why should the public be on the hook for a business owner making profits on his investments? I don’t feel the water should ever be considered private, and I don’t think we should have to cover the losses of a private farmer who is victim of mother nature. If an area of a town is reclassified as a flood plain, or falls into disrepair and the neighborhood becomes a ghetto, do homeowners get a payment to cover the loss of equity? Do businesses in areas that become economically nonviable get paid to remain?
The reason the Republican legislature is unwilling to give this issue the attention it does to “abortion, God, and guns” is because this issue divides their Republican base. The Republican strategy in Pierre is not to lead until a crisis faces them head on; and in the meantime to discuss and legislate wedge issues, which give the appearance to their greater base that the Republican legislature is holier-than-thou, while crucial and tough public policy issues often go ignored…..
JKC, I get the impression this issue divides everybody. It does not appear to break neatly along any partisan line.
Roger E., one of the speakers at this morning’s hearing said that we face long-term higher water levels. We’re draining more land and collecting more water in certain areas. Some of that land won’t come back, not on some yearly fluctuation.
Cory, I understand that Democrats may be divided too, but the Republicans, as the vastly dominant political party, do not like issues which divide them and give some members of the opposing minority party a potential to gain politically from it…
That’s just insaner than all get out if the Game and Fishers don’t disclose their budget. An abomination! Or Libbie Fake News, perhaps. That landowner is probably a libbie who wants more government handouts.
JKC, there is a political angle by which we could see harm to the Democratic side, or at least to a constituency that we might view as leaning Democratic. In a conversation with another observer of yesterday’s hearing yesterday and from various speakers, I heard that this conflict puts small farmers at odds with sportsmen. The big ag lobby (e.g. SD Corn Growers, who had their lobbyist there yesterday and who, I hear, helped the landowner lawsuit take place) don’t need allies to win their fights in Pierre; they have money. The small operators, however, need all the friends they can get, and sportsmen, especially with their overlap with the gun lobby, can be really useful friends in Pierre.
When every issue gets reduced to something partisan, we can’t solve problems.
The issue is complex because there are so many competing principles. Part of the problem is the issue itself meanders. In years when water levels are high, you have one set of issues and others go away. When the water levels drops, the issues flip.
SD is not the only state that has had this issue, was there any discussion of how it has been handled in other states? North Dakota and the flooding at Devil’s Lake comes to mind. Maybe we can study other solutions and use them as a template for a South Dakota solution. Isn’t that the definition of Federalism? Let the laboratory of the states develop various solutions and pick what works best.
Daniel, what short memory you have. When your town of Madison flooded in 1993. FEMA came to the rescue with a buyout or moved many houses to a better part of town at taxpayer expense.
“When your town of Madison flooded in 1993. FEMA came to the rescue with a buyout or moved many houses to a better part of town at taxpayer expense.”
Greg, what horrible reading comprehension you have.
A buyout you say? Are you talking about an under market value purchase of privately owned lands by the gov’t to help reduce the losses during a federal emergency? I’d be ok with that, but you must not have read my comments because I was talking about how we shouldn’t be forced to pay them while allowing them to stay. Do you see the difference? Do we pay landowners in Madison to remain in their home in the floodplain until farmer’s quit removing natural drainage barriers which means water won’t get to Madison as fast anymore? The chances of those homes not being in the flood plain is about the same chance that those lands will ever be dry again.
I vehemently disagree. When you start talking tax abatement for lands inundated by freshet waters, you include nearly every stream and river in this and other states where landowners are and have been paying property taxes since property taxes were first enacted. We’re talking about another “public trust” right created in the doctrine called “navigable” waterways. Now before you start thinking about boats and barges and all that maritime stuff; look up the term “navigable” as originally interpreted from water law development under the Doctrine of the Public Trust. https://www.law.cornell.edu/cfr/text/33/part-329 Every primary stream in the Black Hills, as an example, is classified under this principle as a navigable waterway and as such, the public is entitled to traverse it’s course, between the banks, regardless if the land underneath is publicly or privately held. For decades, Black Hills Stream Fishermen have enjoyed this freedom under an entirely different tenet of water law not connected with any method of area mapping such as meandered or non-meandered waters. In real terms, both meandered and non-meandered waters are nothing but enlargements of waterways, some of which flow year round and some that are intermittent. None the less, we can not say that “flooding”, as an act of god is an unusual event upon which the state has a responsibility. Furthermore, we are completely avoiding the cause of this dispute and that is the willful, systematic, and obviously destructive affects of draining, filling, channelizing, or otherwise altering wetlands by agriculture to increase the amount of tillable acreage. We’re still doing it with drain tiling while at the same time coming up with schemes of “tax incentives” to mitigate a continuation of the damage. Often times, with government help and funding, we openly encouraged draining wetlands or rerouting freshet water and now, over 50 years later, some agricultural landowners expect the state to provide them remedy from a condition that they and their constituency helped to create. The vulture has come home to roost. I simply don’t believe the public should be suffered to pay for private negligence and error nor do I believe that the State stands as a proprietor for acts of god.
What we are really talking about here is access and use of a public resource under rules of navigability. That issue has already been decided by virtue of navigability of other water courses.
I say leave things well enough alone! If a piece of property is flooded often enough the state will own it anyway from non payment of taxes. However the taxable valuation should reflect the actual value of the land. Anyone owning this kind of property should have known there was risk associated with it and hopefully acquired it at a low enough cost to reflect that risk. Although I can sympathize somewhat since we owned such a piece of land. Land that had seen very few floods till recent history and now floods almost annually. Of course, for the climate deniers, our weather hasn’t changed.
In state after state, case after case, the courts have decided the public has access to the public waters, included in the Public Trust Doctrine. Water and air belong to the public, going all the way back to England in common law.
In every case I have researched, the courts have found that the public can access public water. There have been disagreements about the landward access from the water, but it has been unanimous about access of the water, with a few states even holding that if the public water is land locked, access cannot be denied. In several cases it mentioned that fish and wildlife are also held in the “public trust”, they belong to everyone.
We are talking about MI, MA, OH, IN, OR, NJ, CA — and the list went on but I got tired.
We have codified law that states 43-17-29; Public rights in lake above high water mark. If any water level rises above the ordinary high water mark of a navigable lake, the right of the public to enjoyment of the entire lake may not be limited, except that access to the lake shall be by public right-of-way or by permission of the riparian landowner.
“Navigable” in SD (the boat test) is defined in 43-17-34 as; “you can float a boat with one or more persons from the first of May and the 13 of Sept., inclusive, in two out of ten years”. Some of these non-meandered lakes have been flooded for over 25 years, others have been flooded since before the first survey in the 1800’s, but they thought they might dry out and be farmed. Who knows, 117 years ago there might just have been some lazy survey crews that did not want to shoot a “meander line” around a body that was very dry in the 1890’s (a dry time in our climate like the 30’s and 70’s).
http://michiganlakes.msue.msu.edu/uploads/files/FAQ%20Page/MI%20Water%20Laws.pdf
https://books.google.com/books?id=gz85AQAAMAAJ&pg=PA42&lpg=PA42&dq=states+that+have+decided+the+public+owns+access+to+water&source=bl&ots=6V5sXzBPgl&sig=LsMPkSuhdvM3vdYkIkEDUG7NV8E&hl=en&sa=X&ved=0ahUKEwiOvOmK6rbTAhXHzIMKHSFYA7EQ6AEISjAG#v=onepage&q=states%20that%20have%20decided%20the%20public%20owns%20access%20to%20water&f=false
http://scholarship.law.edu/cgi/viewcontent.cgi?article=1741&context=scholar
http://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=3238&context=californialawreview
http://www.judges.org/pdf/dtw/Network%20Note%20-%202-14.pdf
http://www.rbmn.com/restoring-public-access-to-public-waters-2/
http://www.state.nj.us/dep/cmp/access/public_access_handbook.pdf
Notice in 43-17-29, it uses the term “navigable”, not meandered! All these waters should be open to the public under that SDCL.
There is also a codified law that says you have to ask permission to hunt and fish. Seems to me this has alreasy been settled.
“Often times, with government help and funding, we openly encouraged draining wetlands or rerouting freshet water and now, over 50 years later, some agricultural landowners expect the state to provide them remedy from a condition that they and their constituency helped to create. The vulture has come home to roost.”
When the upstream neighbor wants to tile, with the laws of our state, it is most likely the tiling will be approved at the county level through a hearing even if the downstream neighbors object. Nobody wants that much water so everyone is forced to move it along, so the reckless federal and state laws contribute to the loss, but the Federal Fish and Wildlife Department will never clean out a waterway in our state, so they back up water to their adjoining neighbors.
The bodies of non-meandered water were around long before the thought of tiling was even a twinkle in anybody’s eye……
*Kermit drinking tea* ;p
But then again that’s none of my business….
Not only that Happy, but farmers were deceived by the NRCS/GF&P for years about their rights on maintaining waterways.
Chip, there is no SDCL that says you have to “ask permission” on public water, just private land. We are not talking about private land, we are talking about public water.
Slim, this was brought up at the first day of meetings in Aberdeen, the numbers of the codified law were given. I haven’t read them for accuracy or context, but they the law was also referenced by others though not directly given because it already had been. Maybe Cory would have some insight on this since he was there?
Dang it—Chip asks me to do real work. ;-)
Let’s go slowly. First, the Court’s main point in Duerre v. Hepler 2017 and Parks v. Cooper 2004 is that the Legislature hasn’t written law to clarify what takes precedence, private land rights or public water rights, when it comes to recreational use like hunting and fishing.
SDCL Title 46 deals with Water Rights. SDCL 46-1-1 says “…the people of the state have a paramount interest in the use of all the water of the state and that the state shall determine what water of the state, surface and underground, can be converted to public use or controlled for public protection.” SDCL 46-1-2 says “…the protection of the public interest in the development of the water resources of the state is of vital concern to the people of the state and that the state shall determine in what way the water of the state, both surface and underground, should be developed for the greatest public benefit.”
Reading those two statutes, you could conclude that the public right to use the water is paramount—i.e., supersedes the property right that the landowner might assert to the land beneath that water. But in Parks and Duerre, the court says the Legislature has not made clear that recreational use is a beneficial use under SDCL 46-1-2 and other statutes.
Now, to SDSlim and Chip’s specific question: the answer may lie in SDCL 41-9-1: “Except as provided in § 41-9-2, no person may fish, hunt, or trap upon any private land without permission from the owner or lessee of the land. A violation of this section is a Class 2 misdemeanor and is subject to § 41-9-8.” (the 41-9-2 exception deals with hunting; the 41-9-8 penalty revokes the hunting/fishing/trapping license.) That statute envisions that public water may lie on private land and dictates that private landowners retain authority over access to that water lying over their land.
Interestingly, SDCL 41-9-1 does not seem to prohibit one from swimming or canoeing on public water on private land. Is that in a different statute?
But you’re so good at it Cory!!
I wonder if boating or swimming could be considered navigating instead of recreating. If you owned property by a body of water, and your only way in or out was to take a boat across, other owners would maybe have to allow you access.
I don’t know when 41-9-1 was written, but doesn’t that seem to clearly distinguish between the two? If it does, it doesn’t make any sense as to why neither Duerre nor Parks would seem to have cited that in their case. Or why it’s constitutionality hasn’t been challenged in court?
Boating and swimming… check out SDCL 43-17-2: “Unless the grant under which the land is held indicates a different intent, the owner of the upland, if it borders upon a navigable lake or stream, takes to the edge of the lake or stream at low water mark. All navigable rivers and lakes are public highways within fifty feet landward from the water’s nearest edge, provided that the outer boundary of such public highway may not expand beyond the ordinary high water mark and may not contract within the ordinary low water mark, and subject to §§ 43-17-29, 43-17-31, 43-17-32, and 43-17-33.”
I apparently need no permission to go swimming on the highway.
Of course, the above may not apply to non-meandered waters. I need to read more.
Interestingly (curse you, Chip, for sending me down this path!), we have precedent in the chapter on Water Boundaries and Riparian Lands for taking newly flooded land for public use, but with compensation in equal amounts of land elsewhere. Under SDCL 43-17-11, if a stream (navigable or non-navigable!) changes course, the owners of the land newly occupied by water get the abandoned stream bed in proportion to the land they’ve lost to the water.
On the public access side, SDCL 43-17-29 says, “If any water level rises above the ordinary high water mark of a navigable lake, the right of the public to enjoyment of the entire lake may not be limited, except that access to the lake shall be by public right-of-way or by permission of the riparian landowner….” So there we have an example of water above flooded land indeed being open to public access, as long as the public accesses that water from the road, from a state-owned access point, or from private land with permission of the owner. That statute seems to contradict Duerre: if we have water that wasn’t there at survey time, it’s still public water for recreation, and the public can go recreate on it, as long as they enter from public land or by owner permission.
Ah, but SDCL 43-17-31 says owners of inundated land can block access to that water… although if I’m reading right, landowners may restrict access only when the inundated land is part of a lake that includes at least 5,000 acres of flooded land. What the heck?
Another issue brought up by some is that there is a different train of thought between what is navigable and what is meandered. To me navigable refers to a body of water that may be partially privately owned but is essential for transportation. Meandered refers to a body of water that was set aside to be owned exclusively by the state for public use. Non-meandered would refer to any bodies. This is a bit above my head as I’m no legal scholar. I can only tell you my personal feelings.
Water is an essential mineral. It’s essential for life. It’s essential for travel. It’s essential for public safety. But there are limitations to everything. You have a constitutional right to owning a gun, but there are restrictions. You have a right to free speech, but that doesn’t mean you have the right to lie about somebody. Why should the right to water be any different? Fishing is not essential to life. If we had a shortage of food, it may be a different story. But we don’t. So sport fishing isn’t reason enough to invoke the Public Trust Doctrine to defend the encroachment of the property of others. If your county was on fire? Sure. If that was the only access to your property? Sure. I think that to say fishing falls under this umbrella is an unfortunate misrepresentation of an essential public policy.
“All navigable rivers and lakes are public highways within fifty feet landward from the water’s nearest edge, provided that the outer boundary of such public highway may not expand beyond the ordinary high water mark and may not contract within the ordinary low water mark, and subject to §§ 43-17-29, 43-17-31, 43-17-32, and 43-17-33.”
We are getting closer to the truth here. If you read the decisions I posted, almost all Supreme Courts used the “Public Trust Doctrine” as their decision for their decision to say the public had every right to access those waters. I have read all the comments, but even with SD, SDCL, being clear as mud, if the legislature tries to limit access to public water, there will be a law suit — and I am pretty sure they will be successful.
There could be restrictions, to protect private property rights, like in road hunting, but the premise that landowners can control access to public water will not be tolerated.
The private property extremists can say all they want, but they do not control air or water, no matter what SDCL they quote.
Private property rights? Seems like there is a lot of people that have been listening to Larry Rhoden again. Everybody seems really quick to wave the property rights flag but I have yet to see anybody identify just exactly what “rights” attach to the ownership of property………. I’d welcome any investigation into the topic that produces a list of specific rights that property owners inherently possess by virtue of fee title to private land. Seems to me, this is yet another conservative hoax foisted on an otherwise apathetic public.
The laws were probably established when change was less anticipated, either natural, manmade or influenced by man.
The fact remains that places like Lake Thompson have evolved, so place yourself in the former landowner’s shoes. If today’s cropland is still $6,000 or $8,000 an acre, that loss warrants attention.
My recent conversation with Fish and Wildlife left me displeased with their complete lack of empathy for adjoining neighbors, in this case someone who is very conservation minded.
“we have precedent in the chapter on Water Boundaries and Riparian Lands for taking newly flooded land for public use,” ““If any water level rises above the ordinary high water mark of a navigable lake,”
The key word here is “navigable”, not meandered. And no one — including the public, is “taking” their land, we are maintaining we are using our water —- and have a right to. The “hunting and fishing” SDCL is BS, because we are not “hunting and fishing” on their land, it is on our water. I own the mineral rights to 2 quarters of land in KS —– does that mean I can tell the surface owner that they cannot get on the land above my rights to farm? I get a check from oil company, pay royalty taxes on my rights —– but some folks are saying I should be able to control the activity on the land above my mineral rights? Isn’t that the same thing we are talking about?
Yes, because codified law is sooo overrated…. It’s tough to say where this will end up at, but the Supreme Court certainly didn’t seem to give any indication that rejecting recreating as a beneficial use would throw a red flag. I believe that this is truly in the hands of the legislature, and what they decide will likely prevail. After listening to the two days of testimony, and the interaction with the committee, I’m feeling pretty comfortable that privacy will be restored for those who want It. It would be interesting to see this come to a public vote. I’m curious to see where those who are not so heavily invested would throw their support if they understood the situation.
I don’t see what’s so “extreme” about being fed up with having to house the state’s water and all of the ungrateful freeloaders that go along with it. I don’t see what’s so “extreme” about feeling disrespected by people who call you things like “private property extremists”, or when somebody asks you “just what rights you think you have” as a property owner. I would never ask to be compensated for letting someone hunt or fish on my land, so what’s so “extreme” about being tired of being disrespected by people who drive up with tens of thousands of dollars worth of fancy vehicles and fishing/hunting equipment, having just spent hundreds of dollars on licenses, lodging, food, beer, etc. and yet the buck stops with you because their entitled to just go on your land because the water that showed up on your land happens to touch a road somewhere?
I don’t generally bring up what I call the nuclear option in mixed company, but when my “I don’t give a schit” button pops then I guess it doesn’t really matter anymore. You guys can push this issue all you want. It’s possible you may even win. But if you do you’ll find out what it’s like to bite the hand that feeds you, and you’d better enjoy the little bit of extra water made available to you, because funding land owners willing to let you hunt anymore will become very tough.
A few remedies I support are:
Better define beneficial use for non-meandered water to include all things vital to life and safety. Not recreation.
Require permission for access just as you would if the water weren’t there.
Have taxes covered by the GF&P(not the county) on land that is inundated with water where landowners allow access.
Bar those who don’t allow access from being allowed to profit of that public water if it is navigable.
Transfer all liability to the state.
Any non-meandered water that is navigable from meandered water is open to the public. Should also have taxes covered.
Any non-meandered body of water that is over 50% open to the public, including state owned land, should all be made open.
Launching a boat, parking, or fishing along any open roadway should be illegal. It’s a huge safety issue. Same should be true with hunting.
I’m sure I’ll remember more…
Chip, The conservation and wildlife groups have backed the idea of full tax abatement on wetlands and flooded ag land for years. I even stood with one of our Senators when he introduced a bill in congress to grant federal tax relief for wetlands and inundated land (it went nowhere). I was the one that introduced the idea of not hunting “terrestrial” (deer, pheasant) wildlife on non-meandered water over private land with out the landowners permission, in SB 169.
I am extremely disappointed and disgusted when I see any trash left behind by people — I will not call them sportsmen. The same with damaging roads and property when the frost is going out or after large rain events. All of the groups I belong to maintain a little common sense would go a long way help close the divide, like not running ice augers a few feet from someone’s house at 4 AM, loud parties going on until the wee hours, etc.
We all have the greatest respect for landowners —- all of the groups I belong to have landowners as members. The problem arises when groups go to court to try to exert control over a public resource. Not only do most of us feel the water is a public resource, but the fish that swim in it and the waterfowl that land on it are in the public domain. In a meeting with a group of the plaintiffs in the last case to see what can be done to resolve the issues, they said nothing can be done short of giving them control of the waters surface. I call that extreme.
SB169 was an insult to the intellegence of land owners. Who hunts deer or pheasants from the water?? Do they think were stupid??? The 40 acre rule did little to address land owner’s concerns about privacy. </= 40 acre bodies of water are also more prone to winter kill, so it's another non issue. I also think it left the county footing the bill for abated taxes. This money needs to come from the sporting world. They are the only ones demanding to use the water.
I'll be honest. To me it's not about the trash. I'm sure it's there, but I've never seen any. It's not about the noise from ice augers. It's not about destroying the roads. The locals do plenty of that themselves. It's not about the money, although the tax abatement just seems fair. It's about the fact that you're there. In their back yard. Without permission. And the notion that there's nothing they can do about it.
Let me ask you a question. If we got some good snow across the state, and the whole thing was covered in two feet of snowpack from one end to the other, would it be acceptable for snowmobiles to go wherever they pleaded? Because snow is water, and the water belongs to everyone. Coukd they set up a tent in your yard and camp for the night as long as they stayed on the snow? Because again, snow is water, and water belongs to everyone.
There’s also a big difference between exerting control over a public resource and being forced to store it on your private property.
In the school districts where this is a significant issue, does anyone know the impact to those districts (absolute $ and % of tax collections)?
Is this really a significant public access issue since we are talking about what is likely small shallow waters (by definition non-meandered waters are less than 40 acres)?
If this is a way for famers to not pay taxes on land they seldom can farm or graze, shouldn’t they also be willing to sell this land to GF&P at a fair value based on its ability to produce income?
School funding is fairly well subsidized by the state. But yes, there are implications. Non-meandered water isn’t necessarily less than 40 acres. That was a proposed fix a few years ago. Meandered water is simply a body of water that was plotted out and designated as public when land was divided up for sale at the time our state was born. All other miscellaneous unusable, non-navigable water was deemed as being non-meandered and sold as part of the plotted land. This was already settled. You can’t renege on this. To do to do so would be a land grab.
It’s not about not wanting to pay taxes on marginal ground. This low lying ground was some of the best hay/pasture ground in the area. Also some of the best crop ground if it was able to be planted in the spring.
It’s about the fact that you’re there. In their back yard. Without permission. And the notion that there’s nothing they can do about it.
And I do agree with you that in the 70’s the only thing that kept some people on the ground was the sloughs like in Clark, Day and other counties. We could get back to that, and there would be no public access, or fish, or water.
“Who hunts deer or pheasants from the water?? Do they think were stupid??? The 40 acre rule did little to address land owner’s concerns about privacy. </= 40 acre bodies of water are also more prone to winter kill, so it's another non issue. I also think it left the county footing the bill for abated taxes. This money needs to come from the sporting world. They are the only ones demanding to use the water.” This whole statement proves you are the one that is not thinking. One of the gripes from landowners is hunting on the ice for deer and pheasants, over private land, and I thought that was a valid argument. Waterfowl is migratory, so we left it in the access part. All of the people of SD enjoy the income from wildlife access and other forms of water and wildlife enjoyment —- like motels, bars, food establishments, gas stations, convenience stores, boat shops, sporting goods stores —- so why are the “sportsmen” the only class that should pay landowners for access? I disagree with the whole concept of paying for access, because that recognizes the landowner has some control of the public water, which they do not. If a decision by the SDSC said you could not use your land for recreation, I think you would be a little upset.
“It's about the fact that you're there. In their back yard. Without permission. And the notion that there's nothing they can do about it.” So if I fly over your land, at 30,000 feet or 500 feet, is that different? Do I get to ask the distant relative what he is doing with the land above my minerals and does he have to get my permission? When the 2 lane road by my house gets turned into a 6 lane freeway, do they have to get my permission? When God put that water on your land, did he ask your permission? There are things none of us can control, but just because you and I own property, that does not change that situation.
I don't know what happened to my first post, but this is the rest of it.
There is no SDCL that states “snow” is in the public domain, but you can try that avenue if you want. Both federal and state laws address water, and it is in the public domain. I am guessing you would have a strong case about camping on the snow in your front yard.
eminent domain. take a pipeline under a major river/reservoir, or allow access on the water, for the public good (or private investment). take the minerals out from under your surface.
you think you’ve got it bad. 80,000 Indians in SD remember how their land was taken for gold, via starvation, and then reservoirs black roiling waters backed up over their prime bottomland. then the national lending system prevents them from loans secured on their own land. how long would you put up with that? you build your new house wherever whenever you want within reason and reasonable regulation, and get the county to build you access roads and bridges.
I am sympathetic to the flooding dilemma your geography/geology created. your politically elected officers will likely help find a reasonable solution.
Chip: “This low lying ground was some of the best hay/pasture ground in the area. Also some of the best crop ground if it was able to be planted in the spring.” That was then. This is now. If those waters now recede and the land drys to a point where it can be tilled, productivity will be less than 1/4 what it once was. Visit with any soil scientist or perhaps just take a drive over to Codington County and visit with some of the old timers that tried to farm or hay places like Goose Lake. The inundated land can no longer be used or taxed as AG ground and the landowner can not legitimately say that he is being deprived of added gross income because of the flooding. Practically and realistically thinking, the chemical and biological changes that occur to that soil underneath the water for that long, make it counter productive to even think about reclaiming it as farm ground or hay pasture- as if there were any honest to goodness, well managed hay and pasture ground left in eastern South Dakota.
Most of the posters here have completely forgotten or never new the terms of trespass on private land as they started out and today, landowners seem to think they have this unalienable right to prohibit any access or egress from privately held land. That would be erroneous. What we’re trying to do here is apply hunting or fishing trespass statutes to the much broader and immense body of “criminal trespass”law and that is wrong. There is always that comparison made by a landowner that wonders how we urban residents would feel if he/she/they came and set up a tent and camped in my front yard. First of all, that act is not, by virtue, unlawful or criminal. There is a specific procedure that I must follow in order for the law to come into play. I must first either post my property against camping or, speak with the campers and request that they leave my land. If they do not, then and only then do I have standing to call the cops, and complain about trespass. And even then, I must be able to show that either me, or my property suffered harm from the incident. This is the way that hunting and fishing trespass use to be until landowners got tired of confronting visitors first and then posting their property against trespass. Posting is still required in some areas of South Dakota as is the provision that landowners instruct people they have to leave in the absence of any posting. This whole non-meandered waters argument isn’t any different than if every neighbor in the neighborhood walks down the sidewalk in front of my house. It’s a public thoroughfare across my private land and I have no standing to complain about it. Trespass is not exclusive and it is not absolute and developing standing to complain about it is not a right but rather a courtesy to property owners rooted in statute law that, like any other law, can be amended or repealed. North Dakota and many other states still require a private property owner to post property in conspicuous places around the property to establish standing to complain about hunting or fishing trespass. The absolute worst thing outdoorsmen in this state did was acquiesce to Ag landowners and support the no posting law we currently have. It eliminates any burden or responsibility for the landowner to oversee his property and vests it all in law enforcement and the judiciary.
I really doubt it Les. After 40 + years of working with the Legislature, I have not seen anything come out of a summer study that got through on the first try. And if it does, I am pretty sure there will be law suits. Anything short of public access, with protection for landowners privacy and protection for their livelihood on their ground, will probably not escape without legal action or an Initiated measure. The wildlife groups have more than enough members to get it on the ballot. The total Ag operators in SD are about 35K, but you have to remember, many are not true ag operators. Many are hobby farmers or people trying to reduce their taxes. There are really probably <25K in the farming/landowner category. All 150 people in a colony are considered "farmers" — really? It only takes 13,871 signatures, at this point, to overrule the court, the legislature, and the landowners —– that is a fairly low bar when our groups have more members than that —– and I would think many more people would join the cause and vote for it. There are 858,469 people in SD, and far more of them depend on a good economy for a living than on farmers. Farmers are our biggest dollar volume industry, but not our biggest people making a living employer.
I just hope the committee and Legislature make good decisions, and reasonable laws —- or we will be back to square one.
So, you can tell us we don't have the right to access public water —- but the numbers are not on your side.
That’s absurd. I lived at ground zero of this fight for 20 years, and hunted deer for as many. I have never seen or heard of anybody complaining about others, or of anybody actually hunting big game from the ice themselves. It certainly couldn’t happen from the water during regular season, it would have to be during the late season, and I know of very few that bother with that. This isn’t a deal. Even if it were why would you draw that arbitrary line? If you saw no issues with fishing there, why would you see an issue with hunting big game there? What’s the difference? It’s a meaningless token concession in search of a problem. It was meant to create the illusion that you were being reasonable.
Since nobody owns air, can I come into your house breath it from there? Or are you going to hoard it? These comartisons can be so silly.
If snow isn’t addressed, do they address ice? Is ice in public trust? If ice is, then snow certainly should be as well. Don’t you think? Having your yard full of ice or snow is the same as having it full of water. If this seems stupid, it’s because it is. All of it.
It’s also amusing to read you count up the troops in your battle to “overrule the landowners”. Kind of a strange way to treat the people who are good enough to let you hunt on their land. It really makes your concern about the sportsmen who leave trash, etc., somewhat less inspiring.
Also yes, that’s fine if business owners want to help cover the costs of the tax abatement, just leave it off the property tax rolls.
You know John, a few producers made the point that if we did give up access to our land that was covered in water, they would be coming for the land next. I was actually a bit upset that they would even mention that. I have always felt that when you are trying to make a stand, just stick to the facts so you don’t water down your message. And the thought of them coming after our land that isn’t under water seemed insane. Now I’m starting to second guess that. After reading your post I’m thinking that it’s all together possible.
There’s no doubt that the biology of soil changes after being submerged for an extended period of time. However tremendous strides have been made in soil health and soil biology in recent years. People are turning dead warn out soils around in just a few years. I see no reason that the same couldn’t be done here. It’s just a matter of reintroducing some biology and OM.
In regard to camping in your yard, loophole or no loophole, I’m sure you’d put an end to it pretty damn fast. We also have sidewalks on our private property. They’re called section lines. Also I don’t know how things are plotted in a city, but in many cases we own to the middle of the road. Which is also accessible to the public. You’re really more referring to navigable water. Non-meandered water doesn’t go anywhere. It’s not like a sidewalk that you can take home.
It’s been fun Chip. I see you are in the camp with Roden, that thinks the lawsuit to try to confiscate public access and resources is right/good, because you have your name on a temporary title to a piece of dirt. Mother Nature and God have showed you, you don’t control things —- but you keep grasping at straws to gain control. You and your ilk have bloodied the nose of property rights fanatics. When we offer some things we think are right, you tell us it is a non-issue, even when it was brought to the table by people on your side. You come to meetings and tell us nothing less than landowner control of public water is acceptable (you were actually less emphatic on that position with your idea of the ownership of a lake), but the plaintiffs in the last case were not. You think sportsmen should compensate you for being on their/public water, when the whole economy benefits from that activity. Good luck with all of this, and we will probably see you in court.
You guys keep saying that. “Land owners want control of public water” That is a shameful misrepresentation of our position and you know it. We don’t want the water and much less the control of it. We want control of our property. The fact that you have to lie to make your point proves that you don’t have the tiniest bit of moral ground to stand on in this argument. Legally speaking, I guess time will tell.
It’s been a pleasure talking to you as well. I wish you a wonderful summer. Full of great memories, and lacking in uninvited guests.
leslie has a point. When we think of the river water, one should think about the DAPL. The public water is being potentially destroyed while the “landowners” down stream are arguing over some flooded or not flooded land they claim ownership on. I say treat the down-streamers just like the Indians were treated, what is sauce for the goose is sauce for the gander. No soup for you.
Just to be clear Jerry, this isn’t remotely close to any rivers. I’m sure that you realize that, but I don’t want anybody who reads this to get the idea that this land is prone to flooding.
I feel for the Native Americans, but I also wonder how many other tribes they may have conquered to be able to claim the rights to these lands? What sort of considerations did they receive? Ultimately it’s up to them to fight their battles, just as it’s up to me to fight mine. Best of luck to them.
Chip,
You are lucky I am not making the decision. You will NEVER, I repeat, NEVER remove the access of all Americans to public waters to appease landowners who think we should change our laws because mother nature ruined their investments and they want us to be on the hook for insuring they don’t lose money. I don’t blame you for trying, but it is never going to happen.
“We want control of our property.”
You have control of your property. What you don’t have control of is the water and air over it.
Chip: rights of way, as established in original platting of the state, are directly correlated with “public thoroughfares” in the same vain as navigable waterways or state School Sections. Sidewalks are a matter of public policy. I own the entirety of the land to the curb yet I’m responsible for maintaining the walkway, keeping it clear and safe for pedestrians 24/7/365; and I pay taxes on the property it’s built on. You may pay taxes to the center line of the right of way but you have no responsibility for maintaining it.
It makes no difference whether the water “goes somewhere” or not; as long as “commerce” of any kind can be conducted on the surface of the water, it is navigable and both state and federal water law are clear that outdoor recreation is an element of both intra and interstate commerce. See any number of Supreme Court Cases on the topic but note that Baldwin vs. Fish and Game Commission of Montana affirms that hunting in particular is, in form and element, an item of commerce. That being said; you can not say, with any confidence that water in all these non-meandered waters does not “go anywhere” because it most certainly does. Every wetland of any size feeds ground water recharge and in many cases, these smaller bodies of water are directly connected to watershed discharge sources like small streams (sometimes underground) that carry both overflow and filtered water “down stream” and there is always, downstream- that is unless one doesn’t understand the laws of hydrology. Just because there is no apparent or visible inlet or outlet to these waters in question, does not infer that the water doesn’t move in and out via geologic avenues. If that were not so, those waters, meandered or not, would dry up with every drought that comes along. And there have been many.
Every body of water, meandered or not, flows, however slowly, from property to property until it reaches the ocean. In western SD, there is more underground water flowing than there is on the surface. It connects to springs, and rivers that re-emerge in places as well as interchanges with different aquifers that supply domestic and agricultural water for all forms of public purposes. See SDCL to confirm that the primary purpose, conservation and use is for “domestic” purposes. Eastern SD is no different. Lawmakers working within the framework of the Public Trust Doctrine understood that all to well and that fact alone motivated the ultimate declaration that all waters should be vested in the public domain. Control of property is a fallacy. Use of property according to personal desires is a more accurate suggestion. Ultimately, mother nature controls property and government is next in line. You pay taxes, you conform to zoning laws, you have to get local and state permits to use or impound water, mine or build structures. Control of land is a fallacy.
In realistic terms, the private landowner can not control land he can’t use or access and in that respect, the only legitimate argument he has in that regard is that he is required to pay taxes on something he can’t use. There can be no legitimate argument about controlling something other than that described in fee title. =Even though I continue to maintain that the state nor any social subculture, has any duty or responsibility to accommodate or compensate landowners for acts of god, (actually agriculture helped in immense proportion to create these conditions by drain and fill practices over the last 50 years) I would propose two options to satisfy the complaining. Offer the landowner a cents on the dollar compensation for flooded land in the process of imminent domain that establishes high water marks on all waters in question or a long term tax abatement plan that also agrees to high water mark establishment along with a permanent vegetative cover agreement on land reclaimed as water recedes. The state should maintain an interest in water quality and sedimentation control- something it hasn’t done for a very long time. There needs to be 100% assurance from legislators and government that anything they decide to do in these circumstances does not amend, in any way, established law governing navigable waterways in the state as it relates to private property interests. And we should not endorse fixes for these circumstances based upon individual bodies of water. All that does is create more problems and questions and perpetuates the conflict.
Hey, did you all see where they have found liquid water on Mars? Pretty soon the property rights lobby will start to say they own the water and they can keep the US off of their land! They can hire Jack Heib and Danny Smeines to defend their position, because God didn’t put that water there, and they should control it, because a bank lent them the money to say they had a temporary title to that piece of dirt/Mars!!!
John, I’m no expert at law, and I’m going to go out on a limb and say that I don’t think you are either. I don’t know how heavily the Supreme Court weighed the public trust docrtine in either the Duerre or the Parks case. I’m also fairly certain that the court can only rule on what’s in front of it, and without a law to go on it may be impossible for them to effectively rule on it. But here’s what I do know. The Supreme Court has said that #1 the legislature has to decide what beneficial interest consists of, and that #2 neither side has the upper hand. I can only assume, unless proven othereise, that the Supreme Court fully considerd the public trust doctrine in their rulings, and still said that the legislature has to decide. If that is the case than any cherry picked precedent is meaningless and serves no purpose in this conversation. The only caveat to that would be if they couldn’t physically rule due to lack of a law to rule on. I don’t see where that’s the case. So unless anybody can prove otherwise I’m going to assume that all necessary considerations were made by the Supreme Court in their rulings and put all this legal mumbo jumbo to rest.
To try to differentiate between a sidewalk, a road, and a section line, in regard to this conversation is a distinction without a difference. If there’s even a distinction.
I’m not sure why you bothered to bring up underground water? Doesn’t seem to add to the conversation. Obviously some water seeps into the ground, but I don’t know what that b has to do with anything. The Coteau Hills are a unique land formation. The Coteau Hills are elevated basin, and supposedly one of only a few in the nation, but I can’t back that up and I’m not going to try. So even being a plateau, much of the water doesn’t drain away. Nobody screwed up here. This water came during extreme flooding and it does dry up. As it thankfully is right now.
Obviously mother nature does what she wants. But how is that in any way relevant to property rights? Why do you suppose they even bothered plotting out the water as meandered and non-meandered? If they looked at it the same way that you do wouldn’t it just be implied? And your pecking order on property rights is absolutely appalling. It goes against every basic fundamental our great state was built on. To say that the government has more right to your property than you do yourself is disgraceful. It’s sad that you have to stoop so low to find something to base your argument on. Again it shows how weak your argument really is.
You know what? Don’t worry about the tax abatement. It’s not that big a deal. No sense in even bringing it up again.
Another lie Daniel. Nobody is complaining about mother nature or the protection of their investment. They just want people off their property. Your whole argument is based on lies, and the notion that control of land is a fallacy.
I don’t see where having the expectation of privacy on your own personal property is either A) a lobby or B) a joke. I guess that makes me an extremist…
Chip, you mean the Dawes Act of course when you say “It goes against every basic fundamental our great state was built on. To say that the government has more right to your property than you do yourself is disgraceful. It’s sad that you have to stoop so low to find something to base your argument on. Again it shows how weak your argument really is.” Your feelings are much the same as the Indians have felt since the betrayal of Fort Laramie. You are the government and have allowed the land grabs for decades as long as it was someone else’s land and not what you called, yours. leslie was showing that now you see what Indians have felt regarding the frustrations in dealing with government.
Also Daniel, I’m wondering since nobody owns the air, can I come breathe it from your living room?
No, you can’t. Just like I can’t breathe the air inside your buildings. I can fly a kite over your house, just like you could do it to mine. I can breathe the air over your property, just as you can mine. I can be on the water over your property, just like you could over mine. Inside of structures is completely irrelevant to the topic at hand. Anymore Red Herrings you want to throw out there?
Why would inside a structure be any different than outside?
Can I fly a drone 6 feet over your house? If I did would you say anything to me? Would you call the cops?
And you seriously think it’s legal for me to park myself in a lawn chair on your yard and breathe the public air?
Property rights vary. Yes you can fly a drone 6ft over my house and I can’t do anything about it. None of this has to do with the public water rights. Maybe we can somehow get mineral rights in here as well to add another herring.
“And you seriously think it’s legal for me to park myself in a lawn chair on your yard and breathe the public air?”
You can’t be on my yard, but if you want to get in a lawn chair with balloons, have at it. Might I suggest: https://goo.gl/ofCwk3
I’m not the one that brought up the air. You did. So spare me your red herring BS.
Why couldn’t I sit on your yard and breath the public air. You can’t hoard air.
Chip, the gov’t is going to take the land, compensate you for it, and the public will have more good lakes for everyone to enjoy for a long time. Take it and run, otherwise, you might end up with a worse deal.
So you support a land grab then? You literally just said it. Another truly inspiring position expressed by your side of the table. Will we be imprisoned as well to keep us quiet? Or will there be an “accident”?
I listened to the two days of public testimony from last week in Aberdeen. Judging by the interactions and comments from the legislators there, I’m feeling pretty comfortable. Either way there are tens of thousands of acres of water in Day county, both meandered and non-meandered that you are more than welcome to fish on. These few pieces of forbidden fruit don’t change that, and they would provide a safe place to spawn and restock other bodies of water. Not to mention the fact that fisherman are not the only sportsmen out there. Waterfowl hunting is equally important, and those birds need some relatively undisturbed water at their disposal.
“So you support a land grab then?”
I really don’t care whether you retain ownership or if the state does, the water will always remain public. If you want to keep paying for a failed investment, by all means, keep your ownership and continue paying taxes. Buyouts generally only come around once.
Hey, remember, nature (Yahweh, Allah, Gaia) grabbed the land.
What do you think Cory? Why make the distinction when dividing up land between meandered and non-meandered if all water is public? Shouldn’t that have just been implied? Shouldn’t that have just been parceled out as is? Somebody woukd have taken it. I say they fulfilled the promise of the public trust doctrine at that time. It may or may not have been an accurate depiction but it is what it is and can’t be changed, regardless of mother nature.
Mother nature put air all around us. Does that mean that we should be able to fly drones in and about peoples property? I realize that there are not many laws pertaining to this yet, but there undoubtedly will be at some point. Don’t you think?
I’m sincerely not trying to be offensive, but I wish you woild have won the election do that I could prod you for your stance on this. 😉
“Does that mean that we should be able to fly drones in and about peoples property? I realize that there are not many laws pertaining to this yet, but there undoubtedly will be at some point. Don’t you think?”
I don’t foresee any laws coming about like you have suggested. I can already fly over your land in a plane, so a drone won’t be any different.
True story:
Last summer I was driving around with my two oldest kids who were 8 and 9. They noticed all the NAF signs posted all over. They wondered what they meant. I explained that it stood for No Access Forever, and went on to explain that some people don’t let others hunt anymore. They of course said “But you do daddy”. True enough I did.
So I explained how important water was. You need water to live. You need water to put out a fire. You need water to for livestock. And because of that there are laws that say that water belongs to everyone. Then I explained how a few years ago it rained a lot and peoples land became covered in water. And how now that there was water on that land some people thought that they should be able to just go play(I said play because… whell…they’re in grade school) on your land without asking because the water belonged to everyone. I explained that there were people in the government that think the land is controlled by the state now that it’s under water and that they can’t have it back again until the water is gone.
Seems accurate, right?
They both got a look on their face like that had just drank rotten milk and said “That’s not right!”
This is so simple that a fourth grader can understand it’s wrong Why is it so hard for adults?
You shouldn’t be able to put your boat on water that covers private property any more than you should be able to drive your snowmobile on snow that covers private property.
Extremist…
How about time for a compromise. All water open to the public, but for safety reasons, no access from public roads. Mother Nature has taken a real toll on these township and county roads and they are no longer fit for public use. Nothing we can do about Mother Nature.
grudznick has no dog in this match, but respects landower rights hugely. grudznick owns no flooded land, but prefers higher, prettier ground for investments. grudznick used to fish, but not for those warm sloppy worm-infested lake fish.
grudznick offers this option: shock-kill all the fish in these lakes and then haul off the carcasses on the Fish Department’s public dime. Then leave the water open for all those who still want to play in it.
To the point and effective. I like it Grundzy. And the third person point of view adds a special touch.
Chip:
The Supreme Court is obliged to use statutory law as collateral authority along with other documentation to arrive at it’s decisions. To say that they may or may not have used the Doctrine of the Public Trust to decide either Parks or Duerre demonstrates that you do not understand either the Public Trust Doctrine or the development of Civil Law. First of all, the evolution of our water law is a story in the application of the Public Trust Doctrine. If you read, the entirety of Parks v. Cooper, it should be imminently clear from the Court’s treatise on how water law was promulgated in South Dakota over nearly the last 100 years, that the legislature ultimately relied on the Doctrine of the Public Trust to produce what we have. I list here 4 controling statutes from SDCL Title 46 to demonstrate that the legislature, at the time this body of law was enacted was firm in it’s assertion that all water is of paramount interest to the public. There is no mention of private ownership or control of water. See these first three statutes of Title 46 1 that establish singular guidance and direction for the remainder of both Title 46 and 46A.
46-1-1. Use of water of state–Paramount interest of people–Conversion to public use. It is hereby declared that the people of the state have a paramount interest in the use of all the water of the state and that the state shall determine what water of the state, surface and underground, can be converted to public use or controlled for public protection.
Source: SL 1955, ch 430, § 1; SDC Supp 1960, § 61.0101 (3).
46-1-2. Development of water resources for public benefit. It is hereby declared that the protection of the public interest in the development of the water resources of the state is of vital concern to the people of the state and that the state shall determine in what way the water of the state, both surface and underground, should be developed for the greatest public benefit.
Source: SL 1955, ch 430, § 1; SDC Supp 1960, § 61.0101 (4); SL 1972, ch 237, § 1; SL 1978, ch 323, § 1.
46-1-3. Water as property of people–Appropriation of right to use. It is hereby declared that all water within the state is the property of the people of the state, but the right to the use of water may be acquired by appropriation as provided by law.
Source: SL 1955, ch 430, § 1; SDC Supp 1960, § 61.0101 (2); SL 1983, ch 314, § 1.
46-1-4. Beneficial use of water resources–Prevention of waste–Right to water from natural stream or watercourse. It is hereby declared that, because of conditions prevailing in this state, the general welfare requires that the water resources of the state be put to beneficial use to the fullest extent of which they are capable, and that the waste or unreasonable method of use of water be prevented, and that the conservation of such water is to be exercised with a view to the reasonable and beneficial use of the water in the interest of the people and for the public welfare. The right to water or to the use or flow of water in or from any natural stream or watercourse in this state is limited to an amount of water reasonably required for the beneficial use to be served, and such right does not extend to the waste or unreasonable use or unreasonable method of diversion of water.
Source: SL 1955, ch 430, § 1; SDC Supp 1960, § 61.0101 (1); SL 2011, ch 165, § 254.
Quoting directly from Park v. Cooper:
What we hold is that, following the act of 1877, if not before, all non-navigable waters then a part of the public domain became publici juris, subject to the plenary control of the designated states, including those since created out of the territories named, with the right in each to determine for itself to what extent the rule of appropriation or the common law rule in respect of riparian rights should obtain.
I will point out operative language in each of the above statutes to show that water and it’s control belong in the public domain. In SDCL 46-1-1, it states that ALL water is of paramount public interest. In 46-1-2, the language is clear and explicit; water of the state, both surface and underground, should be developed for the greatest public benefit. In SDCL 46-1-3, the statute clearly describes water as “public property” thereby distinguishing it from real property, and finally; 46-1-4 unmistakably instructs that “the conservation of such water is to be exercised with a view to the reasonable and beneficial use of the water in the interest of the people and for the public welfare.” Operative in this statute is the language that demands that water be used in the interests of the people and for the “public welfare.”
Now, if you will read the decision in Parks, I think you’ll find that it is very much consistent with these statutes. In case you miss it, I’ll put it in here verbatim:
“In conclusion, the public trust doctrine imposes an obligation on the State to preserve water for public use. It provides that the people of the State own the waters themselves, and that the State, not as a proprietor, but as a trustee, controls the water for the benefit of the public. In keeping with its responsibility, the Legislature has designated the Department of Environment and Natural Resources to manage our public water resources. However, it is ultimately up to the Legislature to decide how these waters are to be beneficially used in the public interest.”
The operative language in this instruction is ‘USED IN THE PUBLIC INTEREST”
The public interest is not served when a private landowner restricts or controls access to water. Period. Unless the legislature is prepared to 1.) rewrite the entire body of water law found in Title 46 to accommodate the long abandoned principles of original federal water law, and 2, contradict the clear message of the SD Supreme Court, then they have no choice except to promulgate law that declares these waters open to public without encumbrance from private property interests. By statute, it can decide that the state has a duty to somehow alter access to prevent specific uses of the water but any movement in that regard immediately invites criticism for violation of the “public interest and use” principle. The only question remaining to be answered is a full definition of beneficial uses and that is poorly dealt with in 41-6-8 but is better measured in Section 3 of SDCL 46-1-6. Over the past 100 years, South Dakotans have used water in all forms (to include these non-meandered waters- including those in dispsute) for recreation and elsewhere in both state and federal law, “recreation” is considered a “beneficial public use” even to include swimming, sailing, fishing. By 60 plus years of default, South Dakotans have been hunting and fishing on all waters in recreational endeavors as well as in pursuit of “wildlife and fisheries” conservation efforts. You will note that “conservation of water” – visa vi, natural resources is also in the best public interest and as a population, we’ve been doing that, unabated, in spite of the fictional assertions of landowner rights of which there are none. It is not for lack of law that the Supreme Court defers to the legislature but for a lack of specific language and intent to define hunting and fishing as a “beneficial public use.” The Court was wise not to make law from the bench but rather remind the legislature that it had a bit of work to do. This is what you said: “It goes against every basic fundamental our great state was built on. To say that the government has more right to your property than you do yourself is disgraceful.” Chip: This state was built on Constitutional Law-both State and Federal and I will challenge you, or anyone else, to find any language, anywhere in those documents, that illustrates “rights of property owners.” There are none beyond the right to own private property. And for the record, you claim to have some right to “privacy” in all this and that also would be a fallacy unless the water in dispute lies within the curtilage of your primary residence and buildings and even then, that right to privacy extends only to intrusions by government. South Dakota has been through debates of the “Open Fields Doctrine” for the past 20 years and none of the principles of the doctrine have fallen to South Dakota’s landed gentry. For explanation of that legal tenet, Google Hester vs. The United States…………. There is no right to privacy in an open field or, for that matter, an open body of water. Period.
You
I don’t have much of a taste for word salad. If this were set in stone why wasn’t this settled long ago by the Supreme Court? Why did the Supreme Court leave it up to the legislature to decide if recreation constituted a beneficial use? Why the injunction in the Duerre case? Why are the non-meandered waters closed? Why is there a law that says you have to get permission to hunt and fish? Doesn’t seem to be as cut and dry as you are implying.
Can’t forget…Why are there hearings for public input?
Always remember Chip, that when it comes to water, think DAPL and those hearings that were had regarding that already decided deal. As the old trappers say, “Don’t count your beavers before setting the traps” I think that was me who said that right after I thought of priming the pump.
The trick in trump politics that is a given, find the guy to bribe.
John,
I don’t have a position but blanket statements like this do not endear me to your position “The public interest is not served when a private landowner restricts or controls access to water. Period. ”
“Public interest” is both a broad and subjective term which is influenced by context, circumstance, and specifics. The person who tries to define “public interest” and then put a period on it is amost always arguing for his personal interest cloaked is a claim of public interest.
Also, by logical extension of your words, a rain puddle gives temporary (until the water evaporates) both temporary control of land by the state and public access. Does this include the toilet in your house? Just wondering.*
*. I know that is taking your words to the absurd but you asked for it since you spoke with such absolute unequivocal terms which means the logical conclusion taken to the extreme is warranted.
Why couldn’t a rearing pond be considered a beneficial public use?
Troy, how come your boy Pat doesn’t mention huge presidential news like Trump firing his FBI director?
That is of utter importance in the political world and for the whole country and the world, why are you reporting it?
Is there an oath to not talk about bad about pubs, Troy? Is that just fake news what’s happening with Trump and the possibility of obstruction of justice implications?
Troy, you need to admit to yourself that the DWC has lost credibility when it doesn’t report news like that.
Why is the SDWC NOT reporting it (I meant)
~ Mr. Powers Two Big Lies ~
Pat wants you curious SoDak voters to believe that …
(1) outsiders are laughing at you
(2) that outside money and ideas are trying to tell you what to do.
Both these “Big Lies” are easily proven to be piled higher than the mystery around the dead Republican bail bond kid.
How Thinking Voters Respond
1. Who cares what people think of you because they rarely do. Most people spend most of their time thinking about themselves.
2. Money and ideas are fungible. They’re mutually interchangeable from person to person, state to state and country to country.
They’re afraid, Porter, very afraid.
Troy: When your remarks are supported by language in statute law, it will be worth considering.
You state an unsubstantiated, subjective theory that I argue as a matter of personal interest rather than one of the public. Conjecture sir. But perhaps for better clarification, I should have said; “Public benefit.” A legal term in it’s own right. My assertions are predicated on the plain meaning of language. Here is the legal definition of “public interest” for your digestion.
Public interest is a common concern among citizens in the management and affairs of local, state, and national government. It does not mean mere curiosity but is a broad term that refers to the body politic and the public weal. A public utility is regulated in the public interest because private individuals rely on such a company for vital services.
My reiteration of ver batim statute law is not a personal opinion but a restatement of the intent of the historical legislatures. I’m sorry if you have a problem with that but it is their wisdom not mine. I just happen to endorse it vigorously. During the 2015 session, when the legislature attempted to craft a bill that would have essentially embarrassed and conflicted Title 46 to rectify this matter, these controlling statutes were used effectively to force withdrawl of the bill that was crafted entirely by plaintiff’s lawyers. Why was that bill withdrawn. Because it failed the public interest, public trustee principles directed by the Supreme Court.
Secondarily, but equally important is the reality that this issue and the laws surrounding it are fully in the “public forum” where they aught to be. If this was a private affair, or private issue of civil process, we wouldn’t be having this debate and the legislature wouldn’t be tasked with resolving the matter in the best public interest. And I stand fully by my statement that the public interest is not well served, or served at all, when a private individual restricts access to what has been lawfully declared “public property.” The language in law is more important and must be more persuasive in decision making than personal position or opinion. To think otherwise is nothing but flimsy, political chess play. For too long, the non-substantive conservative mind set in this state has seen fit to weasel it’s way around the plain meaning of law and language in order to satisfy some special interest lobby. This issue is yet another example of attempts to substitute alternative thinking in order to avoid the plain meaning of words used to carefully construct law for every one of us to follow. It needs to stop.
There is, in definition, Type 1 wetlands which are temporary in nature but yet do have an important water conservation and public interest. In many of those circumstances, those types of wetlands were drained, filled or re-channeled to create the circumstances we are now faced with. There is no similarity between them and my toilet bowl and yes, your mention of what is my personal property that I pay for (allocated water rights to the city as a public entity to sell water) is not only absurd but fully a false equivalent. There are rational, legal assumptions that are made every day and comparing public water to what is in a private commode is the epitome of grasping at straws.
And Chip; I answered your question why the Supreme Court is leaving this up to the legislature. It’s called avoiding legislating from the bench and making sure that the legislature clarify’s law by employing specific, definitive language to ensure that the public interest and welfare is best served and the matter is settled by an open, public process.
Not all , non-meandered waters are presently closed. Just those that were in dispute in Duerre or resemble their characteristics. The Game, Fish and Parks Commission is empowered to close waters to hunting, fishing and boating as a matter of statute law. They are not empowered close waters to all forms of access and use so, if somebody wanted to sail, swim, gather aquatic plants for their water garden or any other number of reasons, that water is still open. I will once again suggest that implying that Chapter 41-9 of SDCL applies to all public use and access to public water or private land adopts the King of England” authority and that authoritarianism we left behind upon adoption of the US Constitution.
Chip,
How about you play ball like ND landowners who work with the fisherman because they know their communities will strive from it even though their investments are lost forever? I was up there a few weeks ago, had farmers building ramps off of road ditches. Had areas that farmers opened up for parking and even went as far to help some fellers get unstuck. Why is the mentality a complete 180 from here? Why is the Devils Lake area thriving so much? Why are people working with the hardship up there while landowners down here are more worried about “mine, mine, mine”?
As it pertains to the public, we are better off keeping those waters open. The tax losses alone would pay for all that flooded land in a year. We already bend over backwards on every issue when it comes to appeasing farmers…..not this time.
Jenny,
Whether the President is Obama or Trump, SDWC has been predominantly a blog that focuses on South Dakota issues. That is different than DFP which has a larger percentage of national items. Neither is better or worse. Just different.
Personally, I’d like to see more national stuff on SDWC and more state stuff here but neither are my blogs. And, maybe the net-net is the right balance.
To your comment “Troy, you need to admit to yourself that the DWC has lost credibility when it doesn’t report news like that.”
1) Neither SDWC or DFP report news. They opine/comment on news even when they give the scoop on the news. Reporting and commenting is different. Neither is better or worse but they are different.
2) I don’t think Pat will lose any sleep over you thinking SDWC has lost credibility because he doesn’t care to talk about a national story. Hhe feels there are plenty of people talking about it.
3) I’m pretty sure you never thought he had any credibility and he will only have credibility with you if he becomes a progressive.
“To say that they may or may not have used the Doctrine of the Public Trust to decide either Parks or Duerre demonstrates that you do not understand either the Public Trust Doctrine or the development of Civil Law.”
You will also notice John that a few short sentences later I said that a can only assume that they fully weighed the public trust doctrine. Try to keep up.
I appreciate you taking the time to look all of that up, but it doesn’t really answer the question. There is no doubt about the necessity of keeping water accessible to all. It can be a matter of life and death. There is also no doubt that taking the known bodies of water at the time, and setting them aside as meandered, for recreational purposes was consistent with and fulfilled the laws you posted. But that time has passed. The train has left the station. They did the best they could and should be commended. The legislators made it very clear that reconstituting that was not an option. Why should this back door method be any different?
You give a very good explanation of why you think land owners shouldn’t have the right to maintain their privacy. I don’t agree with you but you did a good job of skirting the usual misreprensations that those on your side usually have to cling to. If it is as you say it is, then this shouid have been settled a long time ago. But it wasn’t. So it’s obviously not that simple.
This seems to be the statement that ties your opinions to the sections of codified law you posted:
“The public interest is not served when a private landowner restricts or controls access to water. Period.”
The public’s interest is what we are trying to define. I am pleased to finally see that I am not alone in this battle. I was beginning to wonder. But now others have come out in support of property rights as well.
Your comments remind me though of our need to stay vigilant in this as it has become painfully obvious you intend to come after our land that isn’t under water as well.
John,
Well, you said “public interest.” I am unable to read your mind and know you meant “public benefit.”
That said, what is in the public interest is still subjective to context, circumstance and specifics. Further, one person doesn’t get to define it but the PUBLIC. We have private property because the PUBLIC has decided it is in the public interest. Context, circumestnac and specifics determine when public property and private property interests are in conflict.
Just because you “stand fully by my statement that the public interest is not well served, or served at all, when a private individual restricts access to what has been lawfully declared “public property.”” does not mean others can’t legitimately disagree with you and if enough disagree with you, your position is deemed not in the public interest. It is how a democracy works.
By the way, just because you reiterate state law and then interpret the law and the intent of the legislature doesn’t mean I have to accept it. First, I have no idea if you are an experienced judge with an expertise in this area or a guy on a street corner who wants to play judge on a blog. Second, most issues aren’t so cut and dried as you keep trying to make the issue. A little humility in yourself and a bit more articulation of the matter might help your cause because as I said in the beginning your “absoluteleness” isn’t moving me in your direction despite my visceral inclination to support your position.
Daniel
The majority of the non-meandered is that way. There are only a couple pieces of forbidden fruit and that really bothers sportsmen. I’ve always let guys hunt. I have a very small amount of water and it’s down far enough now that it’s not even fishable. I refuse to give permission there until the circumstances are the same as hunting.
I’m wondering though if ND sportsmen trash land owners the way SD ones do? I’m wondering if their GF&P sues it’s landowners?
Gentlemen:
Read, in summa, the dictum in Parks v. Cooper and absorb the rule of law from it.
Nobody has suggested nor denied anyones disagreement or it’s viability. Disagree all you wish. That is your priviledge but disagreeing with established law is a socio/political exercise which seldom represents fact or honesty. The law, in any case, is absolute even though it makes little pretense of individual truth. Your ad hominen argument only acknowledges your disagreement. It doesn’t add any substance to winning the debate. I learned, in law school, that facts and language are relevant and arguable at any level and I’ve done that. I hold myself out to be a product of my life experience, education, and training nothing more and nothing less. I don’t manage your ability to cope with that. On that basis, there is no cause for humility. I’m proud of it and I’m not the least bit prone to adopt advice from somebody that doesn’t know me or my background from a load of rocks.
I’ve presented my arguments and collateral references, no differently than anyone else. If you can’t agree with them, that is fine but resorting to speculation, and assumption doesn’t persuade me to accept your opinions either. Unlike most, I’m not the least bit afraid to take a stand. A person must stand for something or he stands for nothing and I find nothing wrong with being politically difficult and uncompromising.
@John W: “I will once again suggest that implying that Chapter 41-9 of SDCL applies to all public use and access to public water or private land adopts the King of England” authority and that authoritarianism we left behind upon adoption of the US Constitution.”
What? For someone who professes to know as much about the law as yourself, you should certainly be aware that the public trust doctrine and riparian rights in the US are ensconced in English Common Law going back to the signing of the Magna Carta. You also seem to forget that King George III was hardly the absolute monarch as you portray him since Great Britain in 1776 was (and still is) a parliamentary monarchy where much of the power resides in a parliament and a prime minister. Sorry, no gold star for you in history.
Hi John. Thank you for the invitation to read the Parks vs Copper case in it’s entirety. It was very informative. In the ruling they really reinforced the long standing tradition of public water. However as stated many times they also ruled that recreation was not guaranteed.
It’s interesting to note that cases they offered as comparisons were all in regard to water that was commingled with water that was decidedly public. This is not the case here. In the following excerpt from the ruling I will denote the things I see most relevant by using **____**
D. Extent of Public’s Right to Use Water.
[¶ 47.] Having determined that the waters in question are public waters held in trust for the people, the more narrow inquiry is whether the public has a right to use these waters for recreation. As previously mentioned, some states have recognized that the public trust extends to recreational use of public waters independent of bed or adjacent land ownership. Picabo Livestock, Inc., 96 Idaho 360, 528 P.2d 1295 (**navigable creek**); Sorensen, 436 N.W.2d 358 (**land adjacent to Missouri River**); Hildreth, 211 Mont. 29, 684 P.2d 1088 (**navigable stream flowing over possibly private land**); Curran, 210 Mont. 38, 682 P.2d 163 (**navigable stream flowing over private land**); Armstrong, 362 P.2d 137 (**regardless of whether it was navigable or nonnavigable river channel open for recreational use**); Orion Corp. v. State, 109 Wash.2d 621, 747 P.2d 1062 (1987) cert. denied 486 U.S. 1022, 108 S.Ct. 1996, 100 L.Ed.2d 227 (owner purchased tidelands subject to requirements of public trust doctrine).
[¶ 48.] In interpreting statutes similar to our Water Resources Act, the Utah Supreme Court held in J.J.N.P. Co. v. State, 655 P.2d 1133, 1136, 1137 (Utah 1982):
Although “navigability” is a standard used to determine title to waterbeds ․ it does not establish the extent of the State’s interest in the waters of the State․ Section 73-1-1 states: “All waters in this state, whether above or under the ground are hereby declared to be the property of the public, subject to all existing rights to the use thereof.”
* * *
Private ownership of the land underlying natural lakes and streams does not defeat the State’s power to regulate the use of the water or defeat whatever right the public has to be on the water. Irrespective of the ownership of the bed and navigability of the water, the public, if it can obtain lawful access to a body of water, has the right to float leisure craft, hunt, fish, and participate in any lawful activity when utilizing that water.
(Internal citations omitted.) (Emphasis added.) Yet, it must be noted, the lake in J.J.N.P. Co. and the waters considered in the cases cited in the previous paragraph do not compare with the lakes at issue here. In J.J.N.P. Co., the lake was “natural” and permanent. ****In the cases cited in the previous paragraph, the waters were permanent in nature, being flowing streams, rivers, or tidewaters. Here, the trial court found that during the past 125 years the land on which the lakes now exist had been completely dry, marshy, or covered by shallow, seasonal waters. This land in the past seventy years had been used to pasture cattle and raise crops. It has only been in the last five or six years that the land has been continuously covered by water far deeper than previously experienced.****
[¶ 49.] ****Furthermore, although state law in both South and North Dakota makes all water public property, neither state has gone so far as to hold that non-meandered lakes navigable under the state test are open for public recreational uses.**** Flisrand, 35 S.D. 457, 152 N.W. 796 (meandered lake); Hillebrand, 65 S.D. 414, 274 N.W. 821 (meandered lake); Roberts v. Taylor, 47 N.D. 146, 181 N.W. 622 (N.D.1921) (meandered lake). It is true, as the State contends, that our standard for determining public use is “whether the water is capable of use by the public for public purposes.” Flisrand, 152 N.W. at 800 (meandered lake) (emphasis added). SDCL 43-17-2.20 “Public purposes” are defined in SDCL 43-17-21 as “including, but not limited to boating, fishing, swimming, hunting, skating, picnicking and similar recreational pursuits.” 21 This test is derived from the “pleasure boat” test for navigability in Flisrand, Hillebrand, and Lamprey.22 Nonetheless, this test has only been applied to areas where the State owns both the lake and the bed. We face a more unique question here.
[¶ 50.] ****In abolishing private ownership of “standing water,” the Legislature did not necessarily intend that such waters would become open for recreation. On the contrary, in the very Act that abolished this provision, our Legislature appears to have provided reasonable limits respecting vested rights.**** Thus in eliminating ownership of standing water by private parties, the intent was to preserve water for specific “beneficial” uses. The Water Resources Act states that “Beneficial use is the basis, the measure and the limit of the right to the use of waters described in this title.” SDCL 46-1-8. And “beneficial use” is defined as “any use of water within or outside the state, that is reasonable and useful and beneficial to the appropriator, and at the same time is consistent with the interests of the public of this state in the best utilization of water supplies[.]” SDCL 46-1-6(3). Indeed, the highest use for public water in South Dakota has been declared to be “domestic use.” SDCL 46-1-5.
[¶ 51.] The Water Resources Act does not explicitly grant to the Water Management Board the responsibility to determine recreational use of public waters. Nonetheless, because the Water Resources Act (SDCL 46) and the Water Resources Management Act (SDCL 46A) are the provisions governing public water lying on or under private property, the Department of Environment and Natural Resources is the agency at present given oversight of these lakes. ****It is the clear intent of our Legislature to provide for the “general health, welfare and safety of the people” through “the conservation, development, management, and optimum use of all this state’s water resources.”**** 23 To balance these multiple uses, the Legislature and Governor formulate policies in the public interest to “be carried out through a coordination of all state agencies and resources.” Id; SDCL 46A-1-10. Therefore, it is not for us now to proclaim the highest and best use of these public waters in the interest of the “general health, welfare and safety of the people.” Id. Decisions on beneficial use belong ultimately to the Legislature. SDCL 46-2-11. Deciding how these waters and immediate shorelines should be managed and what constitutes a proper use goes beyond the scope of this opinion. The trial court erred in declaring these waters to be private and in granting an injunction on that basis. In the meantime, in the interest of maintaining the status quo, we leave the injunction intact until such time as, on remand, the trial court has the opportunity to consider the positions of the parties, the state agencies, and the public and grant such relief as it deems appropriate, in light of this opinion.
[¶ 52.] We recognize that it is likely that these lakes will diminish over time. At the time of the trial in this case, the waters had increased. As the circuit court noted, however, the evidence indicates that this increase is temporary, the result of cyclic meteorological changes. In the future, the waters will probably recede and the surface area subject to the public trust will be reduced in proportion, and during that period the landowners will be able to use more of their property. The Legislature may conclude that the public expenditure of money for services and infrastructure to support recreational uses may not be wisely spent, in view of the inevitable reality that these waters will diminish, and perhaps disappear, in the near future. Other, more useful public purposes may be assigned to these lakes, such as wildlife habitat. It remains finally for the Legislature to decide these questions.
[¶ 53.] ******In conclusion, the public trust doctrine imposes an obligation on the State to preserve water for public use. It provides that the people of the State own the waters themselves, and that the State, not as a proprietor, but as a trustee, controls the water for the benefit of the public. In keeping with its responsibility, the Legislature has designated the Department of Environment and Natural Resources to manage our public water resources. However, it is ultimately up to the Legislature to decide how these waters are to be beneficially used in the public interest.*****
Don: Exactly my point. Prior to signing the Magna Carta, the English King (John by the way) and his aristocracy controlled all land and rights to access and egress of land and water remained exclusively with the monarchy. The king and was the landed gentry and the serfdom was not entitled to share resources or land use except by decree of the king. You hunt on the kings land or use his water to swim in and you go to the dungeon.
Those rights and authorities were and are divested from the executive in the United States within the framework of the Constitution and vested within the authority of the public law making process. It remains a public process and decision exactly what can and can not be done with either, apart from authorizing the individual ownership of land. Under the state’s police powers, (See 10th Amendment to the US Constitution) we make law like Title 46 and Title 41 to establish and enforce laws protecting the welfare, safety, and health of the public. The Public Trust Doctrine arose out of application of those police powers and had nothing to do with the English Common Law in the United States and for affirmation of that, please consult Illinois Central Railroad Company vs. Illinois where the theory was first argued. Just an FYI, our law is a collection of Roman, English, and Greek and the greatest influence in civil process was and is English Common Law. However, we’re not talking about civil remedy here although there seems to be a few folks that are bent on twisting the debate that direction. The state does not owe civil remedy to it’s citizens in a sovereign capacity except by choice and that is exactly what this debate is all about.
As far as Title 41-9 is concerned, it’s origins are a hybrid law that criminalizes an otherwise civil issue ensconced from English Common Law. Early in the 20th century, under our democratic form of government, there was no such thing as trespass in an open field. Hunters, fishermen et al took full advantage of that condition and hunted or fished where they pleased – often times along side the private landowner. If a landowner had an issue with someone traversing or occupying his property for the purpose of hunting and fishing, he had to experience damage to his property and remedy was found in civil process. You note that Title 41-9 applies and only addresses the activities of hunting and fishing. We progressed from there to criminalize trespass only after being told to leave. ( which remains the principle in criminal trespass) We then said that landowners had to post their property and if it was not posted, the public could hunt, fish, etc as it pleased until being told to leave. We now experience a complete abandonment of personal responsibility in land ownership and stewardship, by removing the notice or posting requirement in the instance of hunting and fishing but not so in the remainder of criminal law. See how you come out when you try to use Title 41-9 to prosecute the local newspaper photographer for entering private property to take photos of nature for the next story. Or, in this case, launch a sailboat on one of the waters in the instant case and see how far the judiciary will go to declare criminality. Criminal Trespass is an entirely different body of law and still requires the elements of “due notice” to leave without penalty of law. We shouldn’t aught to confuse the two and we shouldn’t aught to rely on a single point in history either.
And Chip: What part of that dictum in Parks is inconsistent with anything I’ve said. What you posted is reasoning and rational that drove the court to its’ conclusion that the State must develop policy on the use of this water that serves the best interests of the public. My contention is that the best interests of the public or the best public benefit can not be found in establishing policy that permits a private property owner to regulate access or use of the public domain. Private regulation of a public asset, regardless of it’s location or condition, is not consistent with the language in law that clearly and unequivocally declares all water public property. If that were not so, the state would not be able to issue water rights, well and dam permits and so on. The conundrum is whether water over private land should be treated and managed differently than other waters and my entire contention is that it can’t without complete overhaul of current water law and revision of long standing rules of navigability that have governed other “public waters” in South Dakota for nearly 100 years. I’m simply am not willing to tamper with an entire body of well developed water law that has worked well in this since the late 1950’s in order to satisfy the complaints of a handful of citizens that maintain their rights are being abused. I don’t disagree that there is potential conflict and social discord due to the condition, nor do I disagree with the suggestion that the State should be modestly benevolent in compensating some private individuals for natural acts but I do vigorously disagree with the proposition that an entire body of statute law be compromised for the express purpose of finding remedy for a political argument.
Not speaking to your consistency at all in that post John. Just posting the parts left out in all your previous posts. They seemed relevant to me and thought I should share since you hadn’t.
I think the most important takeaway is the fact that precedent is nearly non-existent here. Most previous cases, I can’t remember if you posted any in particular, that have been posted have missed the target. In fact I think that a lack of precedent is in many ways a precedent in itself. The fact that neither SD or ND has ever held that non-meandered was open to the public for recreational use carrys it’s own relevance.
This is such a unique situation that I don’t see where your “If it ain’t broke, don’t fix it” philosophy applies. We haven’t seen anything like this in the last 100 years. Also this is not a simple political argument. This will be a component of what defines property rights in SD. Drastic times call for drastic measures. And it’s not all that drastic. It’s simply defining whether recreation constitutes a beneficial use, which it hasn’t up to this point on non-meandered water. So nothing would actually have to change at all. Nothing else would change.
Chip and others; “I don’t have much of a taste for word salad.” That would indicate you didn’t know you are dealing with the Lawyer/Educator of the majority of the SD Supreme Court. Kind of makes this statement look very stupid doesn’t it. “John, I’m no expert at law, and I’m going to go out on a limb and say that I don’t think you are either.” I just sawed your limb off. Both John and I have tried to use reason, thought, logic and law to back up our arguments. The main points of both decisions are that the Legislature has to decide what is a “beneficial use” of non-meandered water (unlike the 7 states that the State Supreme Court used the public trust doctrine to make a decision, like I posted), and all water belongs to the public —- including you. The Supreme Court of SD and the Legislature could have fixed this years ago. They were heavily lobbied by the landowner rights people to ignore established law, as John mentioned, and political party activists from the majority party in SD —- so no agreement has been reached. I actually agree with your post about compromise that all water should be public, but the GF&P or a public entity like a county or city, would have to provide access and parking. We would have to change several statutes, but I would not oppose that, unless the section line dead ends in the water. We should also make it illegal to close section lines to prohibit access. I think there should be tax abatement for wetlands and inundation in the bill, but the replacement burden should be all of the people in SD, because we all own the water, we all own the wildlife, and we should all share the burden. I think we could strengthen the laws about privacy and public disturbance (like most towns do not let trucks use Jake brakes, and you cannot shoot less than 660’ from an occupied dwelling or livestock on a public road). There are probably many other things we agree on.
And if they don’t compromise by the end of June, put it in the laws that we kill all the fish in those lakes and then put in public access for everybody and maybe add a few beaches using 50% fishing license money and 50% property taxes on agriculture land.
Hey Slim, of the 7 supreme court decisions you posted, how many were under the exact same circumstances as what we are dealing with?
My reason for asking:
Having determined that the waters in question are public waters held in trust for the people, the more narrow inquiry is whether the public has a right to use these waters for recreation. As previously mentioned, some states have recognized that the public trust extends to recreational use of public waters independent of bed or adjacent land ownership. Picabo Livestock, Inc., 96 Idaho 360, 528 P.2d 1295 (navigable creek); Sorensen, 436 N.W.2d 358 (land adjacent to Missouri River); Hildreth, 211 Mont. 29, 684 P.2d 1088 (navigable stream flowing over possibly private land); Curran, 210 Mont. 38, 682 P.2d 163 (navigable stream flowing over private land); Armstrong, 362 P.2d 137 (regardless of whether it was navigable or nonnavigable river channel open for recreational use); Orion Corp. v. State, 109 Wash.2d 621, 747 P.2d 1062 (1987) cert. denied 486 U.S. 1022, 108 S.Ct. 1996, 100 L.Ed.2d 227 (owner purchased tidelands subject to requirements of public trust doctrine).
Furthermore, although state law in both South and North Dakota makes all water public property, neither state has gone so far as to hold that non-meandered lakes navigable under the state test are open for public recreational uses. Flisrand, 35 S.D. 457, 152 N.W. 796 (meandered lake); Hillebrand, 65 S.D. 414, 274 N.W. 821 (meandered lake); Roberts v. Taylor, 47 N.D. 146, 181 N.W. 622 (N.D.1921) (meandered lake). It is true, as the State contends, that our standard for determining public use is “whether the water is capable of use by the public for public purposes.” Flisrand, 152 N.W. at 800 (meandered lake) (emphasis added). SDCL 43-17-2.20 “Public purposes” are defined in SDCL 43-17-21 as “including, but not limited to boating, fishing, swimming, hunting, skating, picnicking and similar recreational pursuits.” 21 This test is derived from the “pleasure boat” test for navigability in Flisrand, Hillebrand, and Lamprey.22 Nonetheless, this test has only been applied to areas where the State owns both the lake and the bed. We face a more unique question here.
These are two pieces from the Parks decision. You say you are trying to reason with me and that’s fine. Let’s reason. As explained in these two paragraphs there are several cases dealing with the public trust doctrine, but not all deal with these particular circumstances. Am I reading this wrong?
Actually in my compromise Slim, it would be up to you to find access on the private land that holds the water. You just can’t use a public road to get launch or park on.
Also Slim in regard to John’s position, it sure does make for an ironic twist.😂 I’m not sure what that job entails but the level of my feeling stupid depends entirely on what the requirements are for him to conduct his job without bias.
Only if they are nude beaches Grudzy. 😍
John:
“And Chip; I answered your question why the Supreme Court is leaving this up to the legislature. It’s called avoiding legislating from the bench”
My point is that they wouldn’t have to legislate from the bench if there were a clear path to follow. A path that meets this specific criteria or something very similar:
“In the cases cited in the previous paragraph, the waters were permanent in nature, being flowing streams, rivers, or tidewaters. Here, the trial court found that during the past 125 years the land on which the lakes now exist had been completely dry, marshy, or covered by shallow, seasonal waters. This land in the past seventy years had been used to pasture cattle and raise crops. It has only been in the last five or six years that the land has been continuously covered by water far deeper than previously experienced.”
If they could have met that criteria couldn’t they have used that as precedent? Is it legislating from the bench when there’s precedent, or is it simply making a ruling?
If the legislature chose to require permission to fish on non-meandered water, how do you think a challenge to that would turn out in the Supreme Court?
“some states have recognized that the public trust extends to recreational use of public waters independent of bed or adjacent land ownership.” The key part of all the decisions. Non-meandered water would fit in this category. It would not make any difference if it was a creek, river, or a body of water that was “non-meandered”, the public ownership would be the same. No one has ever tried to say that the public owns the river “bed under the James river”, but established law says we have the right to traverse and recreate on that water. It is the same with “non-meandered water”. As John said, for over 100 years, it has been the law that people can access their public water, and use it for any purpose, like recreation —— just like the 66 feet of section lines on the private landowners land, are open to trapping, hunting, fishing, and the public. The basic tenant you are arguing is that, you own the land under non-meandered water that the public owns, so therefore you have the right to control who is using or on that water. How is that different than the 66 feet on a section line?? The point is, all the lawsuits say the public owns the water. It is dedicated to the public use, benefit and ownership. The Legislature and the SD Supreme Court, have balked at providing a definitive decision, unlike they have on the 66 foot ROW on private land. I am thinking there is probably a large argument going on in the majority party, because most business people are probably Republicans, and they are losing their ass, and most landowners are Republicans, and they are in your camp. The legislature make the laws so they don’t have to adhere to anything, but the courts can overturn them, and so can the voters, so they better get this right. The best solution would be to have the landowners and public agree on a bill, and present it to the legislature. I have not seen any effort to do that. The Legislature is the absolute worst way to try to fix things, and it looks like that is what is going to happen. As I said, anyone can file a lawsuit, and if either side feels slighted, that is probably going to happen.
Also please consider this Slim
In abolishing private ownership of “standing water,” the Legislature did not necessarily intend that such waters would become open for recreation. On the contrary, in the very Act that abolished this provision, our Legislature appears to have provided reasonable limits respecting vested rights. Thus in eliminating ownership of standing water by private parties, the intent was to preserve water for specific “beneficial” uses. The Water Resources Act states that “Beneficial use is the basis, the measure and the limit of the right to the use of waters described in this title.” SDCL 46-1-8. And “beneficial use” is defined as “any use of water within or outside the state, that is reasonable and useful and beneficial to the appropriator, and at the same time is consistent with the interests of the public of this state in the best utilization of water supplies[.]” SDCL 46-1-6(3). Indeed, the highest use for public water in South Dakota has been declared to be “domestic use.” SDCL 46-1-5.
I don’t disagree with some of your comment, but the most important statement is this one, “any use of water within or outside the state, that is reasonable and useful and beneficial to the appropriator, and at the same time is consistent with the interests of the public of this state in the best utilization of water supplies”. That would turn the decision over to the state Water Board, because the non-meandered water would have to be “appropriated” by the underlying landowner, and granted by the board. To my knowledge that has not happened on many of the lakes, and I would question it would be granted. The Colony on dry lake #2 (Mayfield), applied for an irrigation permit out of the lake, and the state granted it, but they could only use the water until it was lower than the elevation of their lowest land. They have several pivots, and at 1600 GPM per pivot, they can draw a lake down fast. They have already drained several permanent wetlands into the lake. They have also drained several wetlands into a slough that is connected to a WPA owned by us, via a culvert under highway 25. It made our Waterfowl Production Area (WPA), into a lake with no waterfowl habitat.
Slim, you’ll need you re-read the first paragraph cited in my original post for better context. The part you quoted
“some states have recognized that the public trust extends to recreational use of public waters independent of bed or adjacent land ownership.”
The paragraph references cases where there was a mix of both private and public property where the well established water on public property spilled over on private property.
Here’s another paragraph that references the stark difference between those cases and our current situation.
“Yet, it must be noted, the lake in J.J.N.P. Co. and the waters considered in the cases cited in the previous paragraph do not compare with the lakes at issue here. In J.J.N.P. Co., the lake was “natural” and permanent. ****In the cases cited in the previous paragraph, the waters were permanent in nature, being flowing streams, rivers, or tidewaters. Here, the trial court found that during the past 125 years the land on which the lakes now exist had been completely dry, marshy, or covered by shallow, seasonal waters. This land in the past seventy years had been used to pasture cattle and raise crops. It has only been in the last five or six years that the land has been continuously covered by water far deeper than previously experienced.****
Is this apples for apples? Is this why they acknowledged the public trust doctrine but had to keep on moving?
This statement isn’t important?
“In abolishing private ownership of “standing water,” the Legislature did not necessarily intend that such waters would become open for recreation.”
Chip — do you have a legal definition of permanent, with respect to a water body? At what point does the water body become a defined lake? 10 years, 15 years, 20 years? Many of the non-meandered water bodies have been in existence, continuously, for the last 25+ years, and have met the SD navigable test for considerably more than that in the last 100. I have been in SD for 53 years, and Dry Lake #2 has had water in it that entire time.
“the Legislature did not necessarily intend that such waters would become open for recreation.”
Or, maybe they did— we don’t know because they didn’t put it in statute.
If you remember the OHWM that was politically imposed on lake Waubay, is now about 12 feet under water, I don’t always trust the Legislature to do things right. That is why we have courts, citizen Initiated Measures, and referred laws.
I don’t have an answer for that time frame Slim. I do know there were a couple legislators that made it very clear that reconstituting the meandered vs non-meandered water was not an option.
I understand that the recreational rights could go either way, but at least consider the source of the statement. This isn’t some no name idiot like me spoutung this off on somebody else’s blog(you’ll notice that I only refereed to myseld this time so as not to offend anyone). This is the South Dakota Supreme Court. So let’s lay to rest the notion that the right to fish these waters is guaranteed. That would make this conversation would be much more productive.
I fully understand that this may eventually go to a public vote. I’ve said so myself. I personally feel very comfortable with that as long as both sides can stay above the belt. None of this “Land owners are trying to control public water” or “Land owners are trying to make us pay for their failed investments” crap. That’s simply not true. Stick to the facts there and the facts surrounding the Parks case, and I’d be fine with it.
“I do know there were a couple legislators that made it very clear that reconstituting the meandered vs non-meandered water was not an option.” The decision on meandered V non-meandered was not a state decision. It was the Surveyor General of the US, as applied by government hired survey crews (that have been known to be crooked, look at counties like Aurora and Trip, where the section lines were influenced by whiskey, landowners, and ineptitude/inaccuracy). My business/company is easements and land survey, so I know a little about this. I have been in almost every Register of Deeds office in eastern SD. In the last 30 years I have set up more property lines, corners and section lines than I care to remember. I have even set points in the middle of lakes to establish section lines, for crews on barges.
So once again, just because some “legislator” says something about the meandered issue, I don’t put much faith in it. With what you have been posting, you probably have much more knowledge of the laws and precedent than they do. You at least read —- I am not sure they do.
I hear you there Slim, but I’m a big fan of Jason Frerichs. He seems very level headed to me and he was one of the ones saying it.
Chip: The language you discovered in Parks is the precise fulcrum of the instant issue and the exact reason why the Court directed the legislature to “clarify” the law to resolve the dispute. When the legislature promulgated that law, the language used did not provide clear intent. That is typical of any law making effort but it has become much moreso in the past 25 years or so. Our citizen legislature rarely if ever takes the time to do research sufficiently to understand if the law they propose to pass will compromise either letter or intent of established law and the rush to fix individual problems turns into a complicated mess. The problem is chronic. Our codified law is chock full of contradictions, duplication, poorly written confusion that is both impossible to understand much less enforce and it causes unintended consequences at all four corners that nobody wants to deal with. That is my greatest concern here.
In the late 1970’s under the Kneip Administration, the legislature made a valiant attempt to address this by “sunsetting” entire chapters of codified law and the state agencies that administered them. The process was timed and required the administration, lawmakers and others to go through the entire body of law and editing, repealing duplication, revising language to improve intent etc and coming back to the following year’s legislature with a full package of repairs. In most circumstances, it worked really well and make government more understandable, accountable, and efficient. We’ve had over 30 years now to screw that up and we’ve done it; mostly by quick fix bills that address a specific complaint or problem and ignore the consequences imposed on everything else.
A really good example of this occurred about 4 years ago when a former legislator and a few cronies persuaded the legislature to “repeal” a goodly portion of a section of law that dealt with environmental oversight of mining and standards of water quality and permitting to grease the skids for a fly by nite in situ uranium mining venture owned and financed by a compamy that currently trades on the Canadian Securities Market at less than .08/ share. What that did is compromise every bit of the minimal amount of legal oversight the state had over mining operations and just opened the door for environmental havoc that we have no money to pay for clean up. This is just one example of why our state legislature needs to be exceptionally cautious about catering to special interests. This state has a horrid record of bad, irresponsible and negligent stewardship of water resources dating clear back to Whitewood Creek and beyond and it needs to come to a screeching halt.
Chip: The language you discovered in Parks is the precise fulcrum of the instant issue and the exact reason why the Court directed the legislature to “clarify” the law to resolve the dispute. When the legislature promulgated that law, the language used did not provide clear intent. That is typical of any law making effort but it has become much moreso in the past 25 years or so. Our citizen legislature rarely if ever takes the time to do research sufficiently to understand if the law they propose to pass will compromise either letter or intent of established law and the rush to fix individual problems turns into a complicated mess. The problem is chronic. Our codified law is chock full of contradictions, duplication, poorly written confusion that is both impossible to understand much less enforce and it causes unintended consequences at all four corners that nobody wants to deal with. That is my greatest concern here.
In the late 1970’s under the Kneip Administration, the legislature made a valiant attempt to address this by “sunsetting” entire chapters of codified law and the state agencies that administered them. The process was timed and required the administration, lawmakers and others to go through the entire body of law and editing, repealing duplication, revising language to improve intent etc and coming back to the following year’s legislature with a full package of repairs. In most circumstances, it worked really well and make government more understandable, accountable, and efficient. We’ve had over 30 years now to screw that up and we’ve done it; mostly by quick fix bills that address a specific complaint or problem and ignore the consequences imposed on everything else.
A really good example of this occurred about 4 years ago when a former legislator and a few cronies persuaded the legislature to “repeal” a goodly portion of a section of law that dealt with environmental oversight of mining and standards of water quality and permitting to grease the skids for a fly by nite in situ uranium mining venture owned and financed by a compamy that currently trades on the Canadian Securities Market at less than .08/ share. What that did is compromise every bit of the minimal amount of legal oversight the state had over mining operations and just opened the door for environmental havoc that we have no money to pay for clean up. This is just one example of why our state legislature needs to be exceptionally cautious about catering to special interests. This state has a horrid record of bad, irresponsible and negligent stewardship of water resources dating clear back to Whitewood Creek and beyond and it needs to come to a screeching halt.
I have to apologize John. I had no idea that people with your type of education and background frequented places like this. I thought it was just know it alls like me. I guess from now on when my daughter tells me she saw a unicorn I’ll have to take a second look. Also I have to give props to Cory, you run i tighter ship than I ever would have ever dreamed.
That being said, I’d like to take a new approach with this question to you John:
In 25 words or less, with one of those words being either ‘yes’ or ‘no’, do you think in your expert opinion, if the legislature were to require permission from the owners of the land under non-meandered water to recreate on that water, could that be successfully challenged in the Supreme Court?
I’m a student of the law, not philosophy. Successfully challenged?? I’d say no- the key word being successfully. Challenged??? Anything is challengable but, it would be folly to say whether the challenge would be successful or not. I have my doubts simply because of the trend history of trespass law in SD. Would I support such a measure…….. No………. Why? Because 1.) it won’t resolve the issue, 2,) it is impossible to enforce, and 3.) it represents a single issue compromise that weakens and further confuses the laws we have and sets the stage for more future political wrangling. Remember the story about the history of Trespass in SD. It took us down a road we didn’t need to go and it created even more problems than it did when all private land was accessible by anyone unless specifically told otherwise or by posting.. It is absolutely essential for our public and our legislators to understand that a law may attempt to correct a wrong or bring fairness to an issue, but it ALWAYS complicates life and adds confusion while failing to add order and civility to our society. We already have alleged trespass situations that fail on merit simply because of issues of “standing” or failure to properly define the ownership of the property or where the trespass took place. Alleging trespass on water where private land is not accurately identified by some barrier like a fence just begs a legal fight and I can’t think of a court or a prosecutor that is going to want to try and prosecute something like that.
I’m not a prophet but I would predict that since trespass law is a function of the state’s police power – which is essentially unlimited, it is not likely that a plaintiff could be found to challenge such a law much less have it declared unconsitutional which is about the only way to nullify such an act in my opinion. It most certainly would be inconsistent with the intent of language in Title 46 and it would be highly antagonistic to current law regulating access to navigable waterways in South Dakota and in particular, Black Hills Streams and West River waterways such as the Cheyenne, Moreau, Grand, Bad and White Rivers.
While I no longer have much of an interest in fur harvest, canoeing or tubing, there remains a few citizens who actively canoe and boat our streams and rivers to trap or shoot beavers along those water courses- much of the time in very shallow water. Were sandbars and islands form and reduce water flow to a trickle, portaging and even camping and picnicking are permissible. There are also a few die hards that put canoes, kayaks and even inner tubes tied together to float sections of the Cheyenne and parts of the Bad River as it enlarges in Stanley County. I’ve even seen an international competition raft portions of the Cheyenne as part of a marathon event. All of that takes place over and on private property without landowner permission; no differently than a fly fisherman who enters the waters of Rapid Creek at a public right of way and wades the stream for perhaps a mile or two in between the banks without concern that the private property under the stream upon which he treads will be protected by it’s owner with a criminal complaint. These circumstances have been established law and policy since the 1960’s without any grievance from property owners and I see no difference between these circumstances and those of shallow, non-meandered waters bordering a farm stead. Because any such “landowner permission” on non-meandered waters threatens to compromise and erode the rules of navigability in these waters, I am dead set apposed to it. If property owners in Western SD and elsewhere like Montana can learn to live with the public in this regard, the SD landowner can too.
These are all long, and you can go on YouTube and see the first day of the public hearings, but you could glean some good information. Especially the GF&P presentation to the Legislators. Pretty concise. The 12 word fix, and then work on the private property rights issues seems logical. We tried to fix everything in SB 169 and got nowhere. I can remember the closed trespass law that the sportsmen supported, and then we got kicked in the teeth. I have heard about 12 iterations of “respect” from the property rights people. We are more than willing to work on privacy issues — but let’s get the lakes back open, and then work on them in the next session.
https://www.youtube.com/watch?v=VZNl6JmgmBg
https://www.youtube.com/watch?v=cWetNtTljqc
https://www.youtube.com/watch?v=JFl1kGSVEgg
Did SB169 reflect this?
“In abolishing private ownership of “standing water,” the Legislature did not necessarily intend that such waters would become open for recreation.”
I’ve touched on this before, but I’m going to hit it again. I think that any overflow from a named lake or river should be automatically granted recreational access. This is literally tens of thousands of acres and I would guesstimate makes up 65% of fishable water. All other water would require 50% of land owners to allow recreation, and that would include publicly owned land. I’m going to call this 25% of the fishable water. This is 90%. How generous is that?? How many compromises have you made where you’ve gotten 90% of what you wanted? It doesn’t seem complicated.
“SB169 was an insult to the intellegence of land owners.” Your quote. Things change. As with the snap shot in time that established the “meandered lakes”, and the idea that other land was sold by the US government, doesn’t grant any right to the water —- both decisions have confirmed that. We didn’t used to have 300 HP outboards, ice houses that cost as much as some homes, and the ability to see where you are on the water and its depth. We used to be able to have slaves. You used to have to be a landowner to vote. We had laws that said a woman couldn’t vote, and in some states you had to pay a poll tax to vote. So do you really think property rights laws that were established at that same time are valid?
SB 169 was not liked by either side —– that would indicate a good compromise. After shutting off the access to the lakes, I am not sure we can ever get back to that place. Those of us working on it, thought it was a place to start, but now I fear the public side is more entrenched. We have laws called “adverse possession”, no one has complained for 21 years, and a “prescriptive easement”, in which you have been on this water for some time, “easements by Implication from Prior Use.” is the definition. Both arguments are shored up by the point the public owns the water.
So we can argue semantics, the law, or get something done. You are only killing your small communities if you persist —– but you will have respect —- of less than .03% of the population in South Dakota.
I disagree: We are then down to identifying and measuring bodies of water that change size and shape as fast as most of us change motor vehicles. Adding to rigidity to something that doesn’t have it in the first place. Has nothing to do with compromise but everything to do with practical and simple living. At the rate of change in Agriculture and landownership patterns and population growth, it won’t be long that a lot of these alleged private lake shores will wind up in sub-development and 3 landowners representing 50 percent will turn into 20. This is precisely what legislators do. They focus on the present and the immediate past and don’t give one thought to the future. From a historical perspective; every last bit of our water law was crafted with an eye on stewardship and future generations and I find no compelling reason to depart from that theme. Slim; why do we lend credibility to the term “landowner rights.” We have a right to own land! That right to ownership doesn’t convey immunity or refuge from the rest of society. We’ve got a double standard of property interest between urban/suburban property owners and all those others that use property as a means to earn an income in agriculture. Why? Has nothing to do with fairness but everything to do with manipulation of law and policy in favor of a subculture with the greatest political influence. That might sound a bit rude, politically incorrect and offensive to some but it is the honest reality of it. If we’re going to consider “fairness” in all of this, the reality has to be considered.
“SB169 was an insult to the intellegence of land owners.” Your quote. Things change. As with the snap shot in time that established the “meandered lakes”, and the idea that other land was sold by the US government, doesn’t grant any right to the water —- both decisions have confirmed that. You have to remember, they didn’t have gas ice augers, GPS navigation and depth sounders, we didn’t used to have 300 HP outboards, ice houses that cost as much as some homes, and the ability to see where you are on the water and its depth. Or, the realization that the water could cover 10 to 20 times the surface area of a body of water at the time. Things change, times change, technology changes, the environment changes, rights change. We used to be able to have slaves. You used to have to be a landowner to vote. We had laws that said a woman couldn’t vote, and in some states you had to pay a poll tax to vote. So do you really think property rights laws that were established at that same time are valid?
SB 169 was not liked by either side —– that would indicate a good compromise. After shutting off the access to the lakes, I am not sure we can ever get back to that place. Those of us working on it, thought it was a place to start, but now I fear the public side is more entrenched. We have laws called “adverse possession”, no one has complained for 21 years, and a “prescriptive easement”, in which you have been on this water for some time, “easements by Implication from Prior Use.” is the definition. Both arguments are shored up by the point the public owns the water.
Now we have the SDSC saying neither side has a “superior” right to the water, and the legislature needs to decide what is a “beneficial” use of the water FOR THE PUBLIC THAT OWNS THE WATER! Not the landowners or the public.
So we can argue semantics, the law, or get something done. You are only killing your small communities if you persist —– but you will have respect —- of less than .03% of the population in South Dakota.
Sorry, I hit the button twice ——
Great synopsis, Slim
“SB169 was an insult to the intellegence of land owners.” Your quote.
Sill is.
You are only killing your small communities if you persist —– but you will have respect —- of less than .03% of the population in South Dakota.
Don’t lay this at my feet… I’m giving you 90%. 9-0-% What more do you need?
“Both arguments are shored up by the point the public owns the water.”
“In abolishing private ownership of “standing water,” the Legislature did not necessarily intend that such waters would become open for recreation.”
Let’s try to stay away from comparing a slavery, or woman’s suffrage to the right to fish. It may give people the wrong idea.
“We are then down to identifying and measuring bodies of water that change size and shape as fast as most of us change motor vehicles. Adding to rigidity to something that doesn’t have it in the first place.”
They’re already identified. They’re meandered.
Don’t we have maps showing where walk in areas are? How could this be any more confusing than walk in?
“Let’s try to stay away from comparing a slavery, or woman’s suffrage to the right to fish. It may give people the wrong idea.” —— Oh, kind of like talking about people camping in my front yard on the ice and snow? I get it, it is OK for you but not us?
I am like you, I am not a college professor and have no law degree. But, I can tell you that I was an Army Officer, and one of the things I learned in tactics, if you are out-numbered and have no defensible position, give up that ground and fall back.
It would be far better for the landowners and public to come up with a solution, than trust that decision to the legislature, which will probably result in lawsuits.
This whole situation was manufactured by some landowners that wanted to control who was on their water —– Oh wait, you said it was not about control of the water. You said “we don’t want compensation, just respect”, but the idea of the GF&P or the government paying for access was brought up at every meeting. You even said the sportsmen should pay for it, not the landowners and county.
Jack Heib does not work for nothing. The money paying Heib comes from several sources, but one of them is the out of state money that runs a hunting camp on a “meandered lake” and want control of the water. Out of state money is a bad thing in SD, unless it is to fight a property rights issue?
If you watched the GF&P presentation on hunting on the ice, you would see the issue, but you said that was a “non issue” . If you listened to your respected leader, Jason, about how the fish got in these lakes, you could tell they were pointed questions trying to blame the GF&P for stocking the fish and creating the problem. We have many lakes that landowners stocked the lakes from public lakes, and want to claim it is not a public resource. I talked to the retired fisheries manager, that worked in Webster, and he said their were many people heading out of the lake with horse tanks in the pickup, which was not illegal at the time, and knew the fish were going to stock a private slough in the 90’s.
I know the laws and statute, we have a disagreement about how they should be applied. If what comes out of the summer study is bad —– I am sure it will be challenged — by both sides.
C’mon, Slim. – What kind of isolationist bubble do you think you live in, anyway? Everything in SoDak that’s built to last has come from out of state money. Everything in every state that’s built to last comes from out of state money. Money says USA on it, not South Dakota or New York or Alaska. Your Interstate’s, Oahe Dam, Black Hills, farm programs that stopped the dust bowl and hundreds of more things came from Washington money. Your hunting lodges, fishing lodges, recreation places are all a combination of money from whomever thinks it’s a good investment. What in any state has come without combined investment? Nothing! And, investment is money and money is fungible. It moves from person to person, town to town and state to state. Without it South Dakota would dry up and blow into Minnesota, which by the way, knows the value of “out of state money”. That’s why it’s doing so much better than the isolationist, protectionist, revisionist myth known as South Dakota social conservatism.
How would me camping on snow in your front yard be any different than you fishing on ice on my property? Private property is private property whether is 1/3 of an acre or 10,000 acres. I realize you don’t see it that way, but please understand that this mentality is at the root of the problem. We can’t solve this without changing that mindset.
“This whole situation was manufactured by some landowners that wanted to control who was on their water”— Lie. We’ve been over this.
“You said “we don’t want compensation, just respect”, but the idea of the GF&P or the government paying for access was brought up at every meeting. You even said the sportsmen should pay for it, not the landowners and county.” — I also called it a nice gesture, not so much a solution. I will agree that landowners have beat around the bush a bit too much on this. When you do this is what happens. You leave an opportunity to compromise without really fixing the problem. It’s like when they make a big deal out of the trash. Then somebody gets some great idea that you should send someone to jail for a year for littering, and think they have the problem fixed. The hunting from the ice deal is a prime example of this.
There’s no need to beat around the bush. It needs to be taken right up the gut. The SDSC provided the path in saying that public water didn’t necessarily mean you had the right to fish.
I agree that it would be nice to go to the legislature with a compromise. I think that offering 90% access, as I have, is more than fair. It also illustrates the giving attitude we as farmers/landowners have always expressed. I have certainly always let people hunt even though many have locked their ground up in the last few years. I hate to see that happen.
One would have to ask yourself, considering the SDSC ruling, and the almost full access I’ve offered, am I the one being unreasonable?
Which hunting camp are you referring to?
“This whole situation was manufactured by some landowners that wanted to control who was on their water”— Lie. We’ve been over this. No, you have said you don’t, that doesn’t mean the Dureere and Indian Springs clan, plus a bunch of others haven’t brought it up. Look at the tape.
I had a hired man trying to block my access with a tractor on a county road in Clark county, when I was driving away from the lake. He was trying to stop me but I didn’t. Everyone is not as reasonable as you.
My front yard is not covered with water, and neither is yours. I go to great extremes to not bother people when hunting or fishing. I know I can shoot 660 feet from your house, if it is not occupied. I will not shoot closer than ½ mile from any buildings. I will not fish closer than that either —– water or ice. I guess that goes back to my statement about common sense.
You usually make sense, but you will not accept that things have changed. I have read my abstract for my house and it states that “no alcohol will be consumed on the property” for my whole addition. How far would you get with that argument today, if someone called the police and said I was drinking in my house? Same deal. You are talking about decisions about land use and private property protections in a whole different time —– like the turn of the 20th century, since we have been keeping records. I don’t agree with John about the property rights thing. They changed the law and that is the way it is. I do think the difference between water and land should still be respected. We have to separate them. Water flowing over private land in the James river is accessible and you can even use the incidental contact laws about anchors and fishing equipment, plus you have a 50 foot access right above the high water mark. How is water on your land any different?
I still think we should have a package of reasonable restrictions for privacy and safety, and have access to the water for the public.
“This whole situation was manufactured by some landowners that wanted to control who was on their water”— Lie. We’ve been over this. No, you have said you don’t, that doesn’t mean the Dureere and Indian Springs clan, plus a bunch of others haven’t brought it up. Look at the tape.
I can’t speak for the Indian Springs deal because I am not familiar with Clark county, but I can tell you that Duerre’s weren’t trying to kick you off any water. They wanted you off their land. And the business I see at Iron Springs doesn’t appear to be doing a guide deal or anything. Why would they want to keep people from the water? Doesn’t make sense. It looks like a rather small body of water. Was it getting overfished? I would say that if you don’t allow fishing on your property, you shouldn’t be allowed to make money off of it. Assuming it has some sort of public access. To be clear, this goes against what I believe, so this is another give on my part. On top of allowing 90% access. Not bad huh?
“How is water on your land any different?”— from the Parks case: “In the cases cited in the previous paragraph, the waters were permanent in nature, being flowing streams, rivers, or tidewaters. Here, the trial court found that during the past 125 years the land on which the lakes now exist had been completely dry, marshy, or covered by shallow, seasonal waters. This land in the past seventy years had been used to pasture cattle and raise crops. It has only been in the last five or six years that the land has been continuously covered by water far deeper than previously experienced.”
‘I still think we should have a package of reasonable restrictions for privacy and safety, and have access to the water for the public.” — Reasonable restrictions for privacy? How about getting permission to go on private property, whether there’s water on it or not? How about 90% access? Is that close enough? Because I’ve offered to do that…
I suppose the other thing could have been that the fisherman were coming there and not supporting him. Maybe he was mad and catering to those who supported him. That would be a shame with all this talk about how great this fishing is for the local businesses.
Chip, you have at least been reasonable about talking. You have some good ideas. I agree with a lot of your points. The deal in Clark county is some people from MN bought land on a meandered lake, Antelope, and want to close access to that and the conjoined body of Indian Springs —– even though several other landowners of the lake bed have built a bait shop and boat ramp. I’m sure you must have some of those deals in Day County. They made lemonade out of lemons, just like the Flood Club at Lake Thompson when it first flooded. The Flood Club eventually sold to the state for the appraised value of the land (which at the time was the same as crop land, even though it was under water), and took a raft of crap from their neighbors. Their land was under water since about 1991. That is 27 years. Thompson and Henry were one lake for about 5 years in the late 90’s, and connected to the Vermillion River for a few years when Thompson reached a level that it flooded a creek that ran to the Vermillion. Janklow ordered that water control structures be established in a county road on the south end of Thompson, so they could evacuate water to the Vermillion River. The downstream landowners didn’t want that water, but they did it anyway.
But every time someone drains a 5 acre wetland to a creek or drainage, where do they think that water goes? It could be a closed basin lake —- like Thompson, Dry, Bitter —– and the list goes on.
I would just once like to drive buy a sign on a closed basin lake that states “quit draining your land — it ends up here on my land!”—- instead of fighting the public that has the right to fish those waters (at least the meandered ones).
So it is a multi-faceted problem, with no solution in sight. I have not fished any lakes that the public didn’t own the majority of the lake bed. Sadly, most of them are on the list of closed lakes. That is what is going to make it really hard to get the sportsmen on board for any compromise. I am open to any ideas, but as you said, comparing what you think your landowner rights are and what public water rights are, is a steep hill. It would be a stroke of genius if the legislature comes up with something everybody will go along with —– I will not hold my breath.
water law protects you from intentional drainage onto your property.
Oh really Les —– then what are all those stacks of perforated drain tile I see at all the farm stores in the north east? SD has no law about registering a drainage plan, they have no law that states drain tile has to be mapped or approved by anyone, some counties have drainage boards —– that are a joke and only consider the downstream people for less than 2 miles —– so do you really think this is effective??
file:///C:/Users/chuck/AppData/Local/Microsoft/Windows/INetCache/IE/T76JQTD3/5-Open%20Compromise%205-22-17%20(250%20PM).pdf
I could live with this.
5 Open Compromise
1
State of South Dakota 1
_______________ SESSION 2
LEGISLATIVE ASSEMBLY, 201__ 3
BILL NO. _____ 4
Introduced by: ________ 5
________ 6
FOR AN ACT ENTITLED, An Act to provide for public recreational use of certain waters 7
overlying public and private property and to declare an emergency. 8
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF SOUTH DAKOTA: 9
Section 1. Findings. The Legislature finds: 10
(1) The South Dakota Supreme Court, in Parks v. Cooper, 2004 SD 27 and Duerre v. 11
Hepler, 2017 SD 8, held that the Legislature has the obligation to determine the 12
extent of public use of water overlying private property for recreational purposes; 13
and 14
(2) It must balance the interests of recreational users and the rights of private property 15
owners to provide a constitutionally sound and manageable basis for establishing 16
public recreational use of water overlying private property in accordance with this 17
Act. 18
Section 2. Definitions. Terms used in this Act mean: 19
(1) “Commission,” the Game, Fish and Parks Commission; 20
(2) “Department,” the Department of Game, Fish and Parks; 21
(3) “Meandered lake,” any natural water body, except rivers and streams, for which a 22
meander line survey was included as part of the official survey conducted by the 23
United States Surveyor General for the land on which the lake is situated and which 24
meander lines are shown on plats made by the United States General Land Office; 25
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(4) “Nonmeandered lake,” any natural lake which is not a meandered lake; 26
(5) “Recreational use,” use for one or more of the following activities, except as 27
otherwise limited by law: hunting, fishing, swimming, floating, boating, trapping, off-28
road driving, water sports, or snowmobiling. 29
Section 3. Open: Meandered Lakes. The bed of all meandered lakes within their ordinary 30
high water marks and the waters of all meandered lakes are open to recreational use. 31
Section 4. Open: Agreement. The Department, on behalf of and in the name of the state, 32
may negotiate with each landowner to acquire, by gift, grant, devise, purchase, lease, or license, 33
recreational use of all or any portion of any nonmeandered lake overlying private property. Any 34
agreement reached pursuant to this section, or any failure to reach an agreement, does not 35
constitute appealable final action of the Department. 36
Section 5. Open: Permission. Any person is entitled to recreational use of the portions of 37
nonmeandered lakes which overlie private property if that person has permission from the owner 38
of the private property under the water. 39
Section 6. Open: Default Rule; Marking. Any nonmeandered lake overlying private 40
property is open to recreational use without permission of any owner of the private property 41
underlying the nonmeandered lake unless the owner of the private property installs conspicuous 42
markers, which may consist of signs or buoys, to identify the area of the nonmeandered lake 43
which is not open to public recreational use without permission or agreement as provided under 44
this Act. 45
Section 7. Open: Section 8 Lakes. Notwithstanding the provisions of this Act, the 46
nonmeandered lakes listed in Section 8 of this Act are declared open for recreational use, based 47
on the following conditions occurring prior to January 1, 2017: 48
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(1) the open, obvious and continuous recreational use by the public for a significant 49
period; and 50
(2) the expenditure of public funds for the construction of one or more boat ramps. 51
Section 8. Open: 28 Lakes. The following nonmeandered lakes are declared open for 52
recreational use pursuant to Section 7 of this Act: 53
(1) Highway 81 East in Brookings County, South Dakota, 54
(2) Casey’s Slough, Cottonwood GPA, Dry #1, Dry #2, Round, and Swan in Clark 55
County, South Dakota, 56
(3) Deep and Goose in Codington County, South Dakota, 57
(4) East Krause, Lynn, Middle Lynn, and Reetz in Day County, South Dakota, 58
(5) North Scatterwood in Edmunds County, South Dakota, 59
(6) Three Buck in Hamlin County, South Dakota, 60
(7) Highway 81 West in Kingsbury County, South Dakota, 61
(8) Bullhead, Cattail-Kettle, and Opitz in Marshall County, South Dakota, 62
(9) Island South in McCook County, South Dakota, 63
(10) Keisz in McPherson County, South Dakota, 64
(11) Grass, Loss, Scott, and Twin in Minnehaha County, South Dakota, 65
(12) Twin in Sanborn County, South Dakota, 66
(13) Cottonwood and Mud in Spink County, South Dakota, 67
(14) Cottonwood in Sully County, South Dakota, and 68
(15) Dog Ear in Tripp County, South Dakota. 69
Section 9. Marking Standards. The Commission shall promulgate rules pursuant to chapter 70
1-26 to establish a process whereby an owner of private property underlying any nonmeandered 71
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4
lake listed in Section 8 of this Act may petition the Commission to allow the owner of private 72
property to restrict recreational use of the water overlying the owner’s private property. The 73
Commission shall determine whether to grant, deny or modify the petition, and the Commission 74
shall consider the privacy, safety, and substantially affected financial interests of the owner of 75
the private property underlying the water, as well as history of use, water quality, water quantity, 76
and the public’s interest in recreational use of the water. 77
Section 10. Lease Renewal. No lease or license entered into under Section 4 of this Act may 78
be for a term exceeding ten years. 79
Section 11. Landowner Liability. The liability of any owner of private property underlying 80
a meandered or nonmeandered lake is limited as provided in §§ 20-9-12 to 20-9-18, inclusive. 81
Section 12. Marker Standards. The Commission shall promulgate rules pursuant to 82
chapter 1-26 to specify standards for the markers as described in Section 6 after weighing the 83
cost and burden of compliance by the owner of private property against the visibility of the 84
markers to the public. 85
Section 13. Technology; Public Notification. The owner of private property shall notify 86
the Department, within a reasonable time frame, of any areas of a nonmeandered lake marked by 87
the owner of private property pursuant to Section 6. The Department shall, within a reasonable 88
time frame, identify the marked area and applicable restrictions in any map, guide, mobile 89
application, or website maintained by the state to assist the public in identifying public hunting 90
or fishing areas. 91
Section 14. Means of Access. Access to any nonmeandered lake for recreational use shall 92
only be by public roadway, public right-of-way, or other lawful means. Nothing in this Act 93
creates a right of ingress or egress on private property to access a nonmeandered lake. 94
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Section 15. Bed and Frozen Surface Usage. No person may walk, wade, stand, or operate a 95
motor vehicle on the bed of a nonmeandered lake, or trap or hunt on the frozen surface above 96
private land, without permission from the landowner or any other person legally in possession of 97
the privately owned property underlying the waters of that portion of the nonmeandered lake. 98
Section 16. Transportation Lane. The Commission shall promulgate rules pursuant to 99
chapter 1-26 to establish a process whereby a person may petition the Commission to open a 100
portion of the waters or ice of a nonmeandered lake marked pursuant to Section 6 for the limited 101
purpose of transportation to a portion of the nonmeandered lake that is open for recreational use 102
under the following conditions: 103
(1) The marked portion of the nonmeandered lake is directly between a point of legal 104
public access and a portion of the nonmeandered lake open for recreational use; and 105
(2) There is no alternative legal public access or improved legal public access to the 106
portion of the nonmeandered lake open for recreational use. 107
Section 17. Transportation Lane Standards. The Commission shall set the size and 108
location of the area of the marked portion of a nonmeandered lake opened for transportation 109
pursuant to Section 18 and set reasonable speed, wake and other limitations to protect the 110
privacy, safety, and substantially affected financial interests of the owner of private property 111
underlying the marked portion of the nonmeandered lake. 112
Section 18. Penalties. Any person who enters or remains upon private property or waters 113
overlying private property in violation of this Act is guilty of a criminal trespass in accordance 114
with the applicable provisions of chapters 41-9 and 22-35, except for unarmed retrieval of 115
lawfully taken small game as authorized in § 41-9-8 and subject to the affirmative defenses set 116
forth in § 22-35-7. 117
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6
Section 19. GFP Regulatory Authority. That § 41-2-18(5) be amended as follows: 118
(5) The management, use, and improvement of all meandered lakes and non-meandered 119
lakes, sloughs, marshes, and streams extending to and over dry or partially dry 120
meandered lakes, sloughs, marshes, and streams, including all lands to which the state 121
has acquired any right, title or interest for the purpose of water conservation or 122
recreation; 123
Section 20. Emergency Clause. Whereas, this Act is necessary for the support of the state 124
government and its existing public institutions, an emergency is hereby declared to exist, and this 125
Act shall be in full force and effect from and after its passage and approval.
Chuck…er…Slim, that is an interesting proposal indeed.
I don’t know how the Chuck thing got in there because the gal that sent it to me was Nancy. I tried to copy a PDF, and that was the address, but it didn’t work.
but I am not conversant in tile practices. I didn’t know east river had water rights:) western is more about mining. but we just don’t have any water!
chip-at 14:03, what is the date and citation? I’ll read cory’s march 2017 SCOTSD link. are **, ***, * * *, ****, *****, and ****** ect., throughout above, intentional differences? in para 48 is: “waterbeds ․ [sic] it does…” your or someone else’s typo?
wondering aside, does WOTUS EPA reg have any application
to this discussion?
WOTUS/EPA has nothing to do with what we are talking about. It is access for the people that own the water V private landowners that think they can control the water. The EPA part is only about control of what gets into the water, which I think if it is public water, there should be some control. All the proposed solution does is privatize public water if you own the land it is over. As Larry Rhoden told one of the presenters at the public hearing, if we just add the 12 words to the statute to recognize that the “public owns the water, we would be codifying the problem”. Well, this proposal would be doing the exact same thing for landowners. Codifying that the landowners have control of the public water. Kind of like Grudz suggested, we should trap all the fish out of these “non-meandered” lakes (they belong to the public by law), poison the rest of the fish, and pass a state law that the landowner has to pay full property taxes on inundated land if they want to retain ownership.
I had a rancher that owned grazing land that was fenced that if someone got hurt or killed on his land that is covered with water he would be liable. Can that be true?
Yes Leslie, I put those there in lieu of the ability to highlight certain things. I put more asterisks by the ones I thought were more prudent, which turned out to be several. If you read my comments immediately before the citation you’ll see the explanation.
Yes Greg, that type of liability is a huge concern. It could suddenly become entirely your property again if something like that were to happen.
Looks as if there was some work done on this today. Hopefully Cory starts another thread to talk about the progress. 😉
That is a false narrative put out by the property rights group. First, you would have to prove gross negligence, or malicious intent. If the landowner created a hazard on the public water, and didn’t post it and notify the public of the danger, that would be the case. The other reason would be if the landowner put in steel fence posts angled at boats to cause damage or injury, then that would be grounds for legal action. If you hit a tree stump, old fence or old piece of farm equipment, you would be hard pressed to get any compensation for your damage. In the US, you can sue any body for anything. If we would just pass a law that said if you are on public water, you would have to sue the public, not the landowner that owns the land beneath. One of the proposals before the committee resolves the landowner from all liability.
“That is a false narrative put out by the property rights group.”
Then this
“In the US, you can sue any body for anything. If we would just pass a law that said if you are on public water, you would have to sue the public, not the landowner that owns the land beneath. One of the proposals before the committee resolves the landowner from all liability.”
I’m confused…
Would the cheapest thing be to just poison all these lakes to the point of making them worthless? Just piss everybody off and then the legislatures have done a good job.
I got a better idea Grudsy… Take an excavator, and dig a trench to let the water go. They can have their fish and their water.
Across whose land would the trench be dug, who would pay for the digging, and are there any legal ramifications of flooding out your neighbors with water coming from private land?
Seems like an aquatic version of taking out a chainsaw and cutting down a tree to just let it fall on your neighbor’s yard/shed/dog.
I think they should do it and see what happens!
Any thoughts on the proposed legislation? Anybody?
Legal ramifications?? Nah…. Simply giving back what is theirs, as per their request…😂
The scary thing is that Duerre’s slough came within a foot of probably fixing itself. It doesn’t drain. That’s the whole issue here. It almost ran over a driveway roadbed about 5 years ago. Somebody with a few hours and a tiling spade could have gotten it started and nobody would have ever known the difference. Had it started draining it would have taken out that roadbed and dropped that lake 6 feet right there. General consensus is that it would have cut a trench 15 feet deep though and dropped the lake 15 feet. Unfortunately it quit raining…
The proposed legislation is just what you would expect from a group of landowners crafting the proposal. Give them the option of a buyout. If they don’t take it, they can keep paying taxes on the flooded land but no way in hell should they allow the control of public water over private land by the landowner. That will never hold up in court. Their failed investments are not our problem and we shouldn’t be forced to change 100’s of years of water law that affects the rights of every citizen to appease 50 landowners who picked the wrong land to buy. Welcome to business where your investments aren’t guaranteed. Farmers seem to forget that they are no different than the business on main street and that is how they should be treated. No differently.
I skimmed over it last night, but did not read it closely. I’m not excited about the GF&P having such deep hand in this, but as long as they are neutered I’m slightly better with it. I can’t see if it addressed the non-meandered that touched meandered water differently. I don’t like that it named the non-meandered bodies of water. It gives them to much recognition IMO. All bodies of water need to be all or none IMO. I don’t know if this is addressed in this legislation. Needs to address road fishing and parking, but the same needs to be done in hunting, so that could be addressed later. Overall it looks promising to me though it appears the vast majority of water will be accessible, which is great. Sportsmen should be thrilled.
Daniel
“The proposed legislation is just what you would expect from a group of landowners crafting the proposal.”
Here’s your chance to vote more liberally in the next election.
“Give them the option of a buyout. If they don’t take it, they can keep paying taxes on the flooded land but no way in hell should they allow the control of public water over private land by the landowner. **That will never hold up in court.**”
“In abolishing private ownership of “standing water,” the Legislature did not necessarily intend that such waters would become open for recreation.”
“Their failed investments are not our problem”
Nobody said they were
“and we shouldn’t be forced to change 100’s of years of water law…”
What would change? That water will always be there if the need arises.
“…that affects the rights of every citizen to appease 50 landowners who picked the wrong land to buy. Welcome to business where your investments aren’t guaranteed. Farmers seem to forget that they are no different than the business on main street and that is how they should be treated. No differently.”
Nobody is looking for special treatment. Just their privacy on their private property. Again, you’re lying to make your point.
It doesn’t address the waters outside of Section 8 that could be affected. No way will it stand, if it does, these legislators are going to be gone next term.
“Here’s your chance to vote more liberally in the next election.”
We’ll just form a PAC and remove them entirely. 50 landowners aren’t going to be able to stop a few hundred thousand sportsman and national orgs that will feed us money. We’ll put the people in the positions that we need to.
“Nobody is looking for special treatment.”
Yes they are. They want us to change our laws and water rights to make them happy. We should not bend.
Tell me Mr. Buresh, who would replace those that will follow the money? Just more of the same, who will follow the money. The trick is to bring in opposition to the corruption, not to just move the deck chairs on the Titanic. South Dakota needs balanced government to stop the corruption, look around and tell me differently. From Gear up to EB5, all scams perpetuated by a willing one party rule. You want change, insist on it.
“Sportsmen should be thrilled.” Well, we are not. As Dan said it privatizes 2,000 lakes, plus the ones involved in the law suits, including the fish in all of those lakes. Most water bodies that have sustainable populations of fish, have either been stocked by the public, or by flooding from publicly stocked fish. If it were a true compromise, then if the landowner wanted a section of public water closed, give them that option, but then the public water is closed to everyone including themselves. On at least one of the lakes in the lawsuits, the public owns a large portion of the lake bed. Shouldn’t that be open to the public? Even under Duerre, there is a good sized chunk of public land. Why is that not open under this proposal?
2000 lakes? Do we even have 2000 fishable lakes in SD?? What percentage of those are on private land that is not accessible from meandered or otherwise public water? Of that portion, what percentage are not going to be open?
174 comments on this site and not a one of them is mine.
The public shooting area is actually on Lake Lily not Duerre’s, and there’s no roads to get there. Somebody would have to build that road.
congrats on being 175!! woo woo
The only solution is to vote for an opposition to stop this kind of nonsense in government.
Daniel
“Yes they are. They want us to change our laws and water rights to make them happy. We should not bend.”
That is a lie. Nobody is asking for any laws to change, because according to the SDSC nobody has ever said that recreation was a beneficial use.
And if they don’t recognize recreation as a beneficial use, we will find those who will and make sure every incumbent is removed. Should be pretty easy to do with how pissed off the locals are. These incumbents need to quit surrounding themselves by landowners. They are going to find out they don’t have enough pull to allow them to keep their jobs. In-state and out-of-state money will destroy them.
“2000 lakes? Do we even have 2000 fishable lakes in SD?? What percentage of those are on private land that is not accessible from meandered or otherwise public water?” According to GIS mapping, there are 2,300 + non-meandered water bodies in SD. I can’t answer the second part, but there are way more than 27.
“The public shooting area is actually on Lake Lily not Duerre’s, and there’s no roads to get there. Somebody would have to build that road.” It is all the same body of water when I was there. Some jerk in a pontoon came out on the water, over the public land, and told us we could not be there. We were trespassing. There are right of ways from both the east and west that go to the public land, and we should be able to use them, but they were fenced off, including a well-traveled road. The Duerre’s got their fish from a state stocking program with the GF&P, and now they want to privatize the water.
Not sure if this will work
From the East:
http://imgur.com/a/a8ir7
Doesn’t go West
http://imgur.com/a/RUoli
Also they’re not Duerre’s fish. The State contracted with them to breed fish there. Which they did. They fulfilled all their obligations. Had they known then what they know now, they never would have done it.
Chip; it worked fine, and I have documented all of that for the people I know. The section Line coming in from the east actually has a boat ramp just to the north of the section line, in an area that is getting payments for being in a federal program (white markers). The section line from the west was heavily fenced off, and the one that went to the north, where most people were putting in to fish it, ended up with steel fence posts driven in the road so people could not launch from there. We were launching from the south on the county road, until they started putting large rocks on the shoulder to stop us. There were some windows shot out of pickups, and 4 tires were slashed on a truck parked on the abandoned road bed. Great way to solve issues. A friend of mine hunted the trees to the west of all this by the abandoned farm for archery deer for many years.If you live just east of the state Lilly area, I tried to stop and talk to you one day. No one home.
What the state does is release fry in a lake that has no predators and great small fish habitat, and then trap them in the fall and move them to bigger lakes —– but they never get them all. Many times they freeze out because the basin is to shallow. In this case, the ones that didn’t get caught in the nets, grew exponentially. Great food, habitat, the lake kept rising over new vegetation, aquatic insects —— the perfect storm for big walleyes. Don’t know how the perch got in there, but probably came with the walleye fry —- and they did well also. Perch could probably reproduce in that basin. They could have been introduced intentionally with the Walleye. Perch string their eggs on vegetation, so they aerate even in turbid waters. Walleyes need gravel/sand bottom to lay their eggs, and the water has to be sediment free, or the eggs will smother —– which is in most SD lakes. Most prairie basin lakes have little to no natural reproduction. Walleye, with out stocking programs (like Duerre Slough), would probably not exist in many NE lakes. But, public water over public land should still be open for public enjoyment at a minimum, and I still think public water should be open to the public, with reasonable restrictions for privacy and safety.
Who’s boat ramp? Is it the GF&P’s? I don’t think they have one there. Truthfully, by even my standard that would be open. That’s not to say something couldn’t come along and change my mind. It’s not the township’s job though to maintain access. A couple miles of dirt path section line is hardly sufficient for the hundreds of boats that would drive in and out of there daily. How else are you going to get there? Nowhere. Why hasn’t the GF&P put a dock out there and built a road? That’s what any of us would have to do if we wanted that type of access. I purchased a few separate pieces of property at once a few years ago. I sold one because it had no access except for section lines. I didn’t want to sell it, but what good did it do me if I couldn’t get there? I certainly wasn’t going to throw a fit and demand a road be built.
Lilly Lake was stocked and has been stocked and has been directly connected via a navigable water-way to both Jesse and Duerre. The GFP stuck fish in those lakes as well. The public owns the fish and owns the water. Jesse Lake is the third deepest natural body of water in the state of South Dakota. The adjoining landowners who own land adjacent to the surface of these or any body of the public’s water currently have the land right to build a resort, provide camping and or any access for hunting or fishing at a fee of their choice. No single person has the right to say who can and who cannot use public’s water resource for recreation and if they feel recreation should not be allowed on the peoples water that would then include themselves and any other individual. The supreme court was very clear – no one individual or land owner has a superior right to the public’s water. Is recreation a beneficial use of the public water resource? What appeared to be a bill that was going to be brought forward last week did not address what the supreme court asked the legislator to do. It was no mistake that Jesse, Duerre and Lilly where not on the list of 28 lakes, those three lakes have been actively fished during the last three decades, maybe longer and have been hunted much much longer. There is a federally owned WPA smack dab in the middle of Jesse As if the legislator was going to deem it ok for some and not for others… without a doubt this last bill was written by someone before the summer study even started and if I had to guess who I would guess the attorney for Duerre wrote it. Our legislators realistically should not have even considered his opinions on how the most important publicly owned resource “water” rights should be privatized as they did.
I not only agree PSD, I have been saying the same thing. The proposed bill would not only privatize public water, it would give the control of public resources to private landowners. Water, fish and wildlife are public resources. The proposed bill would let private landowners control all of them.