When you get back from fishing this weekend, there will be meetings on both sides of the state to discuss the nonmeandered waters issue.
Ken Santema, who is documenting this controversy closely, notes that the South Dakota Wildlife Federation and 29-90 Sportsman’s Club are hosting a meeting in Sioux Falls Tuesday, May 30, from 7 p.m. to 9 p.m. CDT at the Hub building at Southeast Tech. Those two groups oppose the draft legislation and say they have “12 words to fix water law in South Dakota.”
Rep. Hugh Bartels (R-5/Watertown) and the Kampeska Chapter of the Izaak Walton League are hosting a meeting in Watertown on Wednesday, May 31, starting at 7 p.m. CDT on the fourth floor of Lake Area Tech.
Much of the brouhaha over nonmeandered waters has taken place here in East River, where water is slower and more abundant than in the Black Hills and on the non-glaciated Plains. But West River fishing enthusiasts, wildlife and water advocates, agriculturalists, and property rights defenders can discuss the issue this week at the Prairie Hills Audubon Society‘s Wednesday meeting:
- What: PHAS Meeting
- When: Wednesday, May 31, 6:30 p.m. MDT
- Where: Outdoor Campus West, Rapid City
PHAS opposes the special-session legislation, which was drafted by the Governor’s office and the Big Ag lobby. PHAS says the draft legislation leans far too much toward allowing business interests to privatize and commercialize to public water:
This draft bill will allow (by giving property owners the free choice to restrict access to these non-meandered waters)…. privatization of a large precent of SD water bodies. Violators of restricted access areas will be guilty of criminal trespass. The types of bodies of water in question currently belong to the public. Local private property owners, under the status quo, own the ground beneath the non-meandered lakes in question, but not the lakes themselves or the wildlife, fish, invertebrates and plants that reside in the lakes. The public owns all water and the biodiversity that is above the lake bed. With this bill the landowner can restrict the public access to something the public owns and thus land owners acquire unique access for themselves and their friends. If they commercialize such access — they have successfully privatized some of SD’s wildlife and fish for sale for private gain (you can’t fish, hunt, trap, photograph or “nature study” such without paying for access to do so) [Prairie Hills Audubon Society, online statement, retrieved 2017.05.28].
PHAS and Santema both note that there’s a lot more nonmeandered water that could be affected (i.e., closed to public access) by the draft legislation than I thought. According to this Game Fish and Parks presentation to the nonmeandered waters interim committee, nonmeandered waters make up over 70% of the natural lakes in South Dakota:
But notice in that same presentation that GF&P says 152 of the 267 meandered lakes offer fishing, while only 91 of the 29,033 nonmeandered lakes offer fishing. By those numbers, the draft legislation affects 56,000 nonmeandered lake acres, 9.5% of nonmeandered waters in the state.
Folks attending the Sioux Falls, Watertown, and Rapid City meetings should also arrange their carpools to Pierre for Friday’s meeting of the Legislature’s nonmeandered waters committee. Friday’s confab should be the last committee meeting before the Governor and legislators decide if they have enough support to call the proposed June 12 special session to pass the draft legislation.
I can’t imagine how anybody could find so much enjoyment in exploiting the misfortunes of others.
Instead of graphs, I would like to see maps of all the bodies of water they are counting in their figures with acres printed on each one. I would also like to see maps and acres of the bodies of water that are currently being fished, aside from the GF&P lockout, whether they are currently open to the public or not. Precedent has shown that private land flooded by public water is open to the public. I don’t think those graphs account for that, but I don’t think the legislation does either. (Cory😁?)
The PHAS is essentially a single crazy woman who is out to shut down hunting.
The proposed legislation is just another greedy private grab at public resources.
The legislation should do 2 things: 1) invoke the public trust doctrine re-affirming that all waters in South Dakota are public; and 2) waive property taxes on perennially flooded land – not invoking a tax unless its possible to take a crop from the land (whether planted, hayed, or grazed), taxing the portion thereof that contributes to income. This provision at least gives wetlands a tangible economic value as opposed their present negative economic value (in the eyes of narrow thinkers).
Mr. John, would your idea exempt landowners who have a bog mostly dry up from paying taxes if they idle the land, don’t hay, graze or plant it, but just have big rich out-of-state libbies come in and pay $1000 a day to hunt the public’s birds?
These Duerres really opened a can of worms, didn’t they? Or maybe it’s a bucket of minnows, but I bet they giggle themselves to sleep every night over this pickle. I suppose it’s too late for a re-do?
I’d say that second graph is pretty vague. There should be two more shades of yellow. One that represents overflow on private property, and another that represents water on almost entirely private property that is open to fishing. Then there needs to be another shade of red for water over private property that is not reasonably accessible. Or just black since it wouldn’t count.
As far as I’m concerned there’s no need for bouys. There’s no need for signs. Either a body of water is open or it’s closed. If it’s open there will be a ramp and a parking lot. Maybe a few designated areas for shore fishing that won’t impede traffic.
Although I haven’t read it, this bill seems pretty friendly to land owners. The “12 word” fix and HB169 favor sportsmen. The answer will likely be found somewhere in the middle. The compromise I have offered seems to do just that.
Again, My offer:
1. All flooded private land that touches an established body of water(meandered, James River, etc) is open for recreation.
2. All non-meandered water requires 50% cooperation from land owners under the water to be allowed. This includes all publicly owned land, and would likely need to be reassesed every few years as water changes.
3. Boats are only to be launched in approved areas. Launching from any roadbed, ditch, section lines, etc. would be illegal. Shore fishing in approved areas.
4. No tax abatement. There already programs in place. Besides the abatements leave too much room for mindless bashing of land owners.
5. Recreation will not be considered to be “beneficial” under the Water Resources Act on non-meandered water. Before you fly off the handle, remember the the vast majorty of water would already open, and this is after all a compromise.
6. You can’t make money off of water that is not open to the public unless it is landlocked on your own property. This law would be very hard to write though considering what I’ve already outlined.
Can’t think of much else right now.
Well Grudzy, I’m not sure who opend the can of worms here, but they’re definately open and on the lose. 😁 The Parks gang could also be considered to be the ones that opened it in 2004. GF&P certainty played a huge role along side the sportsmen. The legislature played a role in not fixing this years ago. I don’t know if giggle is quite the right word for it, but they definitely don’t mind a good fight, especially where their privacy and their family’s heritage is concerned.
As the spokesperson for the Duerre family, you do well, Mr. Chip. I shall watch the interesting debates. As an owner of land which does not flood I understand how bad the sadness must be when nature shows you how bad your land is, and as a former catcher of fish I understand the foaming-at-the-mouth madness I see brewing in the militant fisherman who frequent our various bait shops, some sporting the open carry signs.
It should be entertaining.
I’m confused Grudznick. I originally thought you were pretty hard core for property rights. I’m not so sure any more. I’m not a spokesman for the Duerre’s at all. I’m a spokesman for property rights. Just as anybody, they knew what they were buying when they bought that land. I’m sure the price reflected that. But surrendering your land to the state just because there’s some water on it was never part of the deal.
I do very much like property rights, Mr. Chip. I don’t like it when people buy or own stuff and bad things happen to it and then they want the public to bail them out. That’s freeloading. Own your screwups or what nature dealt you, that’s what I always say. Hey, if the Duerres find gold or diamonds in the bed of that lake on their property, then more power to them!
Let it never been said that grudznick has a dog in this fight. I just enjoy watching it.
Again, the vast majority just want people off their land. I hope that no abatement is offered and I wouldn’t support it if they did. I realize that many bring up taxes to make a point, just as they do garbage, loud noise, and drinking, but they are foolish to do so because takes their argument off track. Plus there are plenty of conservation and wildlife habitat agreements land owners can enter into that would more than offset those costs and still leave the land available when it eventually comes out of water.
I’m with you. No handouts, no trespassing.
Very well put. No handouts, no trespassing. I suppose the sticky part is when people are on the water that they say is owned by the public. I don’t have a good answer for you.
Chip, I’d love to see a zoomable, clickable map, too. I hope someone puts one together!
I definitely advocate property rights. But the issue isn’t simply “your land” vs. “some water” (note how Chip invokes the personal possessive to emphasize the Lockean/Jeffersonian sanctity of personal property over the the more vague, ownerless “some” in front of that dreaded, intrusive water). It’s land that belongs to one person versus water that belongs to all people. State law recognizes water as public property, so, in a way, we could argue that surrendering inundated land to public use is part of the deal laid out by state law.
The Supreme Court agrees with Chip that state law does not spell out any clear process by which the state may seize flooded land (although it does: eminent domain, condemning blighted land for public purposes). But state law bears an equal gap on the other side: it does not spell out a process by which an individual may seize public property—i.e., the water that Nature and drain tile have dumped onto the individual’s land in great, persistent, and fishable quantities.
Chip, if we believe in property rights, are we not also obliged to recognize the property right the public has in water? What criteria allow us to say that, when individual land ownership and public water ownership conflict, individual land ownership takes precedence? Why is it better for all South Dakotans to cede their deed to water than for some individual landowners to cede their deed to land?
Cory~
“I definitely advocate property rights. But the issue isn’t simply “your land” vs. “some water” (note how Chip invokes the personal possessive to emphasize the Lockean/Jeffersonian sanctity of personal property over the the more vague, ownerless “some” in front of that dreaded, intrusive water).”
I’m a big fan of both Locke and Jefferson. It’s an honor to be mentioned in the same paragraph as them.🇺🇸🇺🇸🇺🇸
“It’s land that belongs to one person versus water that belongs to all people. State law recognizes water as public property, so, *in a way*, we could argue that surrendering inundated land to public use is part of the deal laid out by state law.”
Not in any way that’s in any way consistent with what the SDSC said in the Parks case.
“The Supreme Court agrees with Chip that state law does not spell out any clear process by which the state may seize flooded land (although it does: eminent domain, condemning blighted land for public purposes).”
I don’t see where seizing flooded private land was even remotely considered by the Supreme Court. In skimming over the ruling I don’t see eminent domain mentioned once. To try to connect those dots would severely overstate the SDSC’s position on this. However they very clearly stated that the right to fish these waters was not guaranteed.
“But state law bears an equal gap on the other side: it does not spell out a process by which an individual may seize public property—i.e., the water that Nature and drain tile have dumped onto the individual’s land in great, persistent, and fishable quantities.”
And the Parks ruling reinforced that. As it should have. But they also went on to say that fishing wasn’t necessarily protected under those laws. Now we have to decide if and where there is a balance between necessity and luxury where it is no longer acceptable to encroach on somebody’s private property.
Also I want to take another swipe at knocking this tiling thing in the head. This water was here long before anybody ever even thought of tiling. People have only been tiling around here for the last few years. This water was put here 20 years ago. We’ve hit some wet streaks since then that have realky topped it off, but water levels have dropped drastically since people have started tiling. I’m not saying that they are connected, it’s just a coincidence.
“Chip, if we believe in property rights, are we not also obliged to recognize the property right the public has in water?”
What rights the public has to that water remains to be seen.
“What criteria allow us to say that, when individual land ownership and public water ownership conflict, individual land ownership takes precedence? Why is it better for all South Dakotans to cede their deed to water than for some individual landowners to cede their deed to land?”
I’ve moved from the immediate area that we have been talking about, but I’ve still had to deal with water issues. I live in a development outside of a pretty good sized town. There is a creek that runs along side the development that used too come out of it’s banks every year, until this past few years. Not too far away, where the railroad came through, there is a man-made dam that is set at the proper height so that the water will run over before it could take out the tracks. The problem is that when it runs over it goes toward town. The city didn’t want the water either, so they came out and sandbagged the dam up a few feet. First off, this is retarded because it would have run over or taken out the tracks. Secondly, it would have backed the water up on us. I knew that the RR would be on this like stink on s—, but just to be safe I called my lawyer to see if the city could legally back up water on me. He said absolutely not. It doesn’t matter if it’s a handful of people or 100,000, their collective rights aren’t more valuble than yours as as individual. Plus we are not talking about life or death here. We are talking about fishing. Is ones right too fish greater than another’s right to privacy?
I don’t mean to say that the SD Supreme Court mentioned eminent domain. My parentheses show the thought that occurs to me as I write, the principles with which the state could answer the statutory gap Duerre and Parks identify. If public property has fallen onto private land, what recourse does the state have to retrieve that public property and make it available to the public? Remember, I’m not fond of eminent domain, but if the state can make a case for claiming private property to create a new right of way that does not exist yet to serve the public interest, can the state not make an even more compelling case to claim private property in order to claim water that the public already owns?
Necessity vs. luxury—indeed, that is an important point to remember here. We are on the edge of calling a special session for sport. I know the outfitters can talk about economic necessity, but they have built their business model on facilitating sport, on enhancing vacation activities. If we were feeding hungry people with those fish, or if there were a drought and we were pumping and distributing that water to thirsty cattle and humans, then we could make a slam-dunkier case for saying to the flooded farmers, “Take down your signs and stand aside: we’re coming to take what belongs to all the people for the general welfare.” But in this case, we’re sailing and skating on public water/ice over private land for play. That helps me put in perspective your point about play vs. privacy…
…but does it help me resolve the question or public property versus private property? Chip, doesn’t the law say the water belongs to us? What more needs to be said to establish public ownership? Bob owns the land; the people own the water. Is the right of everyone to a public good to be denied in favor of the right of one man to a quiet evening?
I can knock the public’s interest as mere play. But what is the private interest? What is the flooded landowner doing with the flooded land? If the problem is litter, then sure, bust people for litter. If the problem is rude behavior, bust people for… violations of noise ordinances? If the problem is footyprints on land that’s not flooded, bust the footyprinters for straight up trespassing, which applies right now on any private non-flooded ground. But the flooded landowner is deriving no practical utility from the flooded land unless he’s planting tall rice. All that’s at stake for the landowner is the abstract principle of ownership, the ability to say, “That’s mine”… and that stake is no less abstract than the people’s claim to own the water.
The thoughtless sandbagging of that dam is an interesting example of a very different problem with a clear legal solution. I can’t act unilaterally to deny you your property by flooding you out, not even for my own protection. The city can’t up and do it, either, not without undertaking eminent domain and making the case in court that they have to claim your land (and compensate you royally) to build a holding pond or diversion channel or some such floodworks. I wouldn’t support the city’s taking that action; I’d hope the judge would say to the city engineer, “Bull! Figure out an alternative plan that doesn’t do such violence to private property owners.” But I also recognize that there are times where the collective rights of the city/state/nation as a whole do take precedence over mine as an individual, and if the city/state/nation can show that there’s no other way or place to build such a vital channel/highway/airbase, then as long as they offer due process and fair compensation, they can use eminent domain to carry out their plan.
But now that you get me thinking, I recall a debate about a proposed bicycle trail in Madison. While the case never came to fruition, I expressed great hesitance about using eminent domain for mere recreation.
Hey, could we avoid a big discussion of principle and solve the privacy issue with a practical compromise: no fishing within 100 yards of a private residence, similar to no hunting within 660 feet of occupied dwellings?
Back in the early 1980’s and continuing from there, Western States in particular have been battling and arguing about the private land/public resources conundrum with no seeming light at the end of the tunnel. If we consider all of what is considered “public assets” that have been either legally set aside for enjoyment by the commons, or have been traditionally regarded as culturally mutual amenities, water is no different than wildlife and fish which many of the landed gentry have “privatized” for fun and profit for a very very long time. In 1985, the State of Wyoming held a west wide conference and meeting of the minds to discuss “The Privatization of Wildlife and Public Lands Access.” Essentially, what happened and what continues to happen is the private land owner is using the laws of trespass and so called property rights to either restrict or place conditions of access to resources belonging to the public that occur, with whatever frequency, on private property. It even extends as far as public thoroughfares. Wildlife is and was the first public resource to be de facto privatized by the private property owner and now, in South Dakota at least, the privatizers are extending their “value added” agricultural propositions to the public’s water. Privatization of public assets for the personal gain of private individuals has been a cancer growing in our culture that has begged a cure for at least 3 decades.
The State of Montana has it right. Did anyone see where the newly elected US Representative in Montana Greg Gianforte (sp) (you know, the conservative millionaire, property owner that likes to body slam members of the press, and flaunt his big spread of land in Montana) lost his case in the Montana Supreme Court to prohibit access to public waters that flow through his property in Montana. South Dakota needs to take that Montana lesson to heart and put all this private property rights agenda in better perspective. I’m sure the dictum in that supreme court case would provide substantive and meaningful rebuttal to the continuing privatization of public assets that continues in South Dakota with the help of big Ag and the typical “whats mine is mine and what is the public’s is mine too when it’s on my land” theories of the conservative republican machine in South Dakota. Anybody lose their pheasant hunting spot on private land to some non-resident with jingle in his jeans that commands exclusive access to the public’s pheasants? Get ready folks because the same thing is going to happen with the public’s fish and the public’s water. Follow the money!!!! And the sad thing is that our government agrees with this; visa vi the bill written by the state’s political friends. It’s called economic development. Not only does government strategize how to use the publics money to build private enterprise but it also schemes to exploit the public’s assets for the benefit of private enterprise and the landed gentry. Privatization of wildlife, water, public land, and public rights of way…… The only thing that is left is the air we breath.
Cory~
I just don’t want people to get the idea that eminent domain was even mentioned by the Supreme Court or is a possible or practical solution to this problem. This is confusing enough as it is.
I think the context is crucial here:
“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.
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.”
Indeed the water does belong to everyone. It doesn’t appear though that the SDSC views not allowing recreating as a taking of that water. The “general health, welfare and safety of the people” is what is paramount in keeping water public property. You can easily do that while still respecting private property.
Farmers/ranchers don’t always differentiate between property that does or does not have a building or home on it. It’s also not necessarily about having a quiet night to yourself. It’s about property rights. In town the property lines around your home outline the perimeter of the area where you would expect to enjoy the privacy of your private property. What if you purchased an empty lot next to your home? Would you not expect the same privacy on that lot even though there is no dwelling there and it is outside the perimeter of what you would expect to be private?
The reason I brought up the story about the city sandbagging was to illustrate the fact that numbers are irrelevant. It could be 100,000 fisherman to 1 landowner, makes no difference.
I went to a meeting tonight in Webster. Kind of interesting, but not really. GF&P supports the legislation, which is surprising. The bill doesn’t address any water that touches meandered water, just non-meandered water. I’m sure that day will come. Basically said they did not feel comfirtable raising recreation to the same level of importance as other more essential uses, just as a matter of policy. Not even necessarily in regard to landowner rights. As far as I’m concerned, this bill is sound and should be voted on.
You seem a little anti-sportsman, Mr. Chip. Remember, grudznick has no duck in this pond but I think the Fish Department siding with the landowners shows a lot of crony capitalism. Or at least, that is what the fisherpeople might say.
Meeting in Webster tonight was a Landowner love fest between committee members and a landowner crowd. Literally one person spoke in any way against the landowners freight train that is rolling on. I thought the most telling statement was by one legislator stating that we need to get this done and then we can talk about all of the flooded land under meandered lakes that have water on them now. This is the foot in the door they need for privatization of water. 20 years from now we will ask how in the world this happened.
Grudznick~
You’ll remember that I’ve always let people hunt, I just think that the same rules should apply where fishing is involved. Those fisherpeople would have to be deaf, dumb, and blind to think that the GF&P would get in bed with landowners. The two have been at odds for years. I don’t see that changing any time soon. Duck or not, you seem to have taken a 180 on this. Your last couple posts seem to be a far cry from the “poison all the fish” comments you made earlier. Has your position on this changed? Do you think I’m unreasonable in thinking they should ask peemission?
I think the funniest thing of the last couple days was an article where the head of the Wildlife Federation was that they weren’t invilved in the writing of this legislation. Whaa?? What makes them think they were entitled to a special invitation? GF&P was already on their behalf.