The South Dakota Legislature meets in special session today in Pierre to deal with the issue of nonmeandered waters, the lakes over private lands that put fishers and hunters at odds with the flooded landowners. The Legislature is poised to take minimal action favoring property owners and weakening public ownership of water while passing most of the buck to Game Fish and Parks.
The Legislature is poised to ignore an issue that aggrieves every flooded landowner more keenly and regularly than occasional boaters over their former cornfields: the taxes those landowners pay on land they can’t use for anything else but recreation. My local paper says tax reform should be part of today’s debate:
These are people who are paying for land that has been flooded for years, land that they are never getting back. That their flooded land is being valued as usable land is unfair.
We don’t know the exact solution — reassessments by the counties, or blanket property tax relief — but this must be addressed [editorial, Aberdeen American News, 2017.06.11].
Rapid City lawyer David Ganje says the draft legislation lacks numerous other important features, like the clear declaration of whether “recreational use if an acceptable beneficial use of the public waters” that the South Dakota Supreme Court said the Legislature needs to make or explicitly reject. Ganje complains that the draft (I Freudian-slip-typed “drat”) legislation authorizes the state to “buy” public waters, gives landowners no notice or due process relating to improvements on adjoining nonmeandered waters, and doesn’t take on the challenge of establishing clear setbacks or quiet times. Ganje also says the draft creates two confusing and discriminating sets of laws for nonmeandered waters:
The bill legalizes discrimination among the lakes. The plain meaning of words used in the bill create two sets of laws for nonmeandered waters. The bill does this by using the word ‘notwithstanding.’ The late Justice Scalia in a book on statutory interpretations wrote that to use the word ‘notwithstanding’ performs a function opposite that of ‘subject to.’ The bill language ‘Notwithstanding the provisions of this Act’ indicates the provisions which follow the clause are not subject to the other provisions of the Act. The designated lakes listed in the bill, and any landowners owning land underneath the lakes, are not subject to the rules, protections and provisions of the rest of the bill. The bill creates two sets of laws. One for the designated lakes identified in the bill and another set for all other nonmeandered lakes. To explain the correctness of this reading, one need only look at the section of the bill following. Under that section, a landowner on a designated lake must first seek permission from the state before he might put up signs or markers over his property. Other nonmeandered landowners can put up signs. The rights, duties and liabilities of the landowners under the designated lakes are not the same as the rights, duties and liabilities of the landowners under all other nonmeandered lakes [David Ganje, “Legislature’s New Nonmeandered Waters Bill Still Needs Work,” Farm Forum, 2017.06.06].
Chris Hesla of the South Dakota Wildlife Federation rejects the assertion of the Governor’s office that the draft legislation represents a compromise among all parties:
The federation understands the delicate balance that must be achieved between the public’s right to use public waters and concerns about landowner rights. With that consideration, we attempted to work under the language of this bill, which was drafted in great part by Duerre’s attorneys with little or no public input, by offering a new bill and amendments. The federation made significant concessions, yet included verbiage to protect the rights of the general public. The bill and amendments were offered to and rejected by the summer study group. Assuming the special session will also not address our concerns, the South Dakota Wildlife Federation formally opposes the proposed bill as written [Chris Hesla, “Wildlife Advocate: Nonmeandered Bill Must Not Pass,” Aberdeen American News, 2017.06.12].
Hesla also finds fault with Senator Brock Greenfield’s assertion that his amendment to the draft legislation clarifies that landowners who close access to the public water on their land cannot commercialize that water. Let’s review the Greenfield amendment in Section 6:
No owner of private property may receive financial compensation in exchange for granting permission to fish on a portion of a nonmeandered lake overlying the owner’s private property that is marked pursuant to section 5 of this Act. A violation of this section is a Class 1 misdemeanor [Draft nonmeandered waters bill, Section 6, posted 2017.06.07].
Landowners can’t charge fishers for plying the waters they close. However, says Hesla, the draft legislation leaves open numerous other routes to making a buck:
Although this bill prohibits landowners from receiving financial compensation in exchange for granting permission to fish closed public waters, it does not prevent other types of compensation; does not apply the same restrictions to lessees; does not prevent an owner from receiving financial compensation in exchange for granting other access including hunting; and does not prevent individuals from forming a legal entity that purchases submerged property and then allows exclusive access to members/shareholders [Hesla, 2017.06.12].
Meanwhile, a Claremont landowner Roger Schuller catches that contradiction and blasts the draft legislation as another disaster for landowners:
It appears that the sportsmen and the state Legislative Task Force agree on one thing in the proposed nonmeandered water bill: The landowner who has suffered a natural disaster and continues to pay the real estate taxes must be punished. If he receives any income from letting people onto his property to fish he will be subject to fine and imprisonment.
…The landowner, who has suffered the disaster to his business and property, must watch while everyone else can receive income and enjoyment off his property. This list includes, to name a few: sportsmen, guides, lodges, bait shops, restaurants, bars, GFP and state government.
What’s next, landowners cannot receive income from hunting? [Roger A. Schuller, letter to the editor, Aberdeen American News, 2017,06.12]
Schuller’s complaint brings us right back to taxes. The draft legislation under consideration in today’s special session lets landowners say, “If I can’t use my land, no one else can, either!” but it denies them real practical relief from paying taxes on otherwise useless land. Instead of avoiding hard decisions, the Legislature should go back to something like my simple May proposal—full property tax refund on flooded land as compensation for public access to public water for recreation.
It’s not a fishing fee they are paying, it’s a lodging fee that allows for the free use of our other amenities which just happens to be a 300 acre private lake stocked by the public with their tax dollars. How many of us would need to chip in $50k to purchase our own lakeside property and private waters to fish?
The legislature is prepared to enact an unworkable solution. Policing the proposed solution will be nearly impossible. How does a landowner determine from across a lake that some boat is crossing a submerged property line? Will the GP&P mark all corners and property lines with a uniform system of buoys? Will they have to pull the buoys before freeze up and replace them again in the spring? If land owners are tasked to mark their property there will be as many buoys designs and placement techniques as there are landowners. Can we expect, or trust landowners to accurately mark submerged property lines?
We are creating two classes of landowners depending on which lake they have land on. There are many meandered lakes like Bitter and Thompson that also have flooded private property but the landowners on those lakes will be treated differently under this proposal than landowners on non-meandered lakes because their now flooded land is part of a “real” lake rather than a “temporary” lake.
The simplest and easiest solution is to forgive all property taxes on submerged land and open it to recreation. Possibly include 50-100 foot setbacks from shore and expanded no wake zones as an answer to some of the complaints of landowners.
Senator Sutton is in a tight spot and all eyes will be on him and his vote. At first glance, because of his West River cowboy roots one might think he would side with the landowners and property rights types and vote for this proposal, but he would do his campaign a lot of good with East River sportsmen and women and provide a strong rebuttal to the false line that he doesn’t care about East River or Sioux Falls by voting against this proposal and at least trying to lead legislators in a compromise effort to address the issue. The tax forgiveness is the easiest solution out there, but will face opposition from those who will say property tax is a zero sum game and forgiveness will just shift the tax to other properties.
Exactly, Daniel. Think timeshares. Nothing in the Greenfield amendment prevents that.
No-wake zones! Excellent idea, Nick, and probably justifiable from an ecological point of view, given we’re talking about new lakes in areas with more easily erodable shorelines.
Curious: does anyone waterski on these nonmeandered lakes?
Where I live we tax the heck out of timeshares, hotel rooms, ski areas, cross x ski area, rafting companies, climbing companies, zip line companies, hunting/fishing lodges and the vehicles tourists rent to get to them. Are you willing to declare your “new aqua business” eligible for taxation, small government advocates? SoDak needs money and money is taxes.
It’s too bad there seems to be no solution for this issue that will satisfy both sportsmen and landowners. For the most part this is not a big issue, most sportsmen and landowners do get along. Somehow the legislators need come up with a plan that will bring back mutual respect for both sportsmen and landowners.
There’s absolutely a way to satisfy both (and I have the way) except that in SoDak the second biggest hobby next to hunting/fishing is criticizing and complaining. Even when a solution is evident, the negativity bias from the sportsmen and the landowners alike won’t allow it to happen. It’s not the problem that lacks a solution. It’s the people involved, who spend twice as much time thinking about why a new idea won’t work instead of spending half that time trying to think of a way to make it work. Negativity bias is another term for “lazy thinking” and the only place I’ve seen it more prevalent is in the enlisted members of our armed forces.
Update: House has passed HB 1001 unamended 52–16. DiSanto and Tieszen are absent; both Dennert and Kaiser voted Nay, but Democratic caucus secured passage since all but Rep. Bordeaux voted Aye. Senate is waiting to reconvene and debate.
Perfect thoughts, Nick.
Glad seeing Ganje belatedly lent his thoughts to the non-compromise; yet sorry to see that his is not an independent voice. But we all have to eat.
This non-compromise will be a disaster for small rural businesses, then small towns, then sales tax revenue collections, and for freedom and the public trust doctrine. The legislature will tie the SDGFP in knots trying to craft administrative law to implement this debacle. It will likely prove virtually arbitrary and capricious in its field marking and enforcement.
What a waste of time and money. Nothing was decided. The ’18 sunset clause makes this “legislation” meaningless. There was no need to reconvene over a temporary patch. At least the original sunset clause had some time to it, so it offered a sense of direction. This offers nothing. Those bodies of water didn’t need to be closed to begin with, and the legislature sure didn’t to call a special session just to open them. The expense for this special session lies squarely on the shoulders of the GF&P, and they should cough up the money for it.