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HB 1140 Says Counties/Townships Can’t Vacate Roads to End Public Water Access

Should State Take Responsibility for Roads to Nonmeandered Lakes?

My neighbor to the north Herb Schaunaman got legislators at Saturday’s Aberdeen crackerbarrel talking about House Bill 1140, which would prohibit counties and townships from vacating roads that provide access to public waters. As Rep. Dan Kaiser (R-3/Aberdeen) ably explained, HB 1140 is a response to efforts in Day County to close roads to nonmeandered waters that were re-opened for public use by last summer’s Special Session legislation.

Senator Al Novstrup (R-3/Aberdeen) raised an interesting jurisdictional justification for HB 1140 (scroll to 4:00). State law has opened certain waters for public use; by vacating roads to those waters, counties and townships effectively override that state law. It’s like saying the Moon belongs to everybody but then not allowing private voyagers to launch lunar rockets. Even a local control advocate can recognize that the state can’t allow local governments to usurp decision-making power currently reserved to the state by constitution and statute.

But long-time township board member Larry Stroschien offered another take on the matter. The whole purpose of township roads is to ensure local farmers can move their products to market. If a township road leads to nothing but perennially flooded land, it’s not moving any agricultural products. It’s providing access to water used for recreation. The state has correctly declared such recreational waters a public resource, but doesn’t such a declaration make access to that resource the state’s responsibility?

Vacate a township road, and a landowner reclaiming the 33-foot-wide right of way on her side of the center line could plant another acre of corn along every quarter of a mile. I’ll let my farm readers tune in on whether that marginal increase in production for one farmer is worth denial of access to public water to all South Dakotans.

But might my friend Larry have an argument here? If public recreational water has replaced private productive farmland, should the state replace the county or township as the entity responsible for maintaining—i.e., paying for—the road leading to that water? Or should we strike this deal: since Mother Nature has “taken” property for the state by flooding it, should the state compensate the affected local governments by allowing the locals to transfer the rights-of-way of roads they’d otherwise vacate to the state?

3 Comments

  1. Rorschach 2018-02-05 18:38

    Larry is right. The township should be able to vacate any township road it chooses to vacate. Perhaps the bill should provide that the county or state has a right of refusal to take over maintenance of any road the township proposes to vacate. If the county or state fail to act within a certain period of time, the township can proceed to vacate.

  2. John 2018-02-06 08:27

    Larry is wrong. Flat wrong. Dead wrong in saying . . .”township board member Larry Stroschien offered another take on the matter. The whole purpose of township roads is to ensure local farmers can move their products to market.”

    Township roads have many public purposes – to include access to public land. No roads shall be vacated that accesses public land – and that should also be the case for accessing public water. So readeth, SDCL 31-3-6.1.

    Other purposes include but are not limited to firebreaks, utility corridors, etc.

  3. Cory Allen Heidelberger Post author | 2018-02-06 11:54

    That’s a fair point, John. The statute HB 1140 amends already recognizes access to public land as an overriding interest in keeping roads open. Public water deserves the same consideration as public land, right?

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