Meet In The Middle? | TSLN.com

Meet In The Middle?

The public access road to Twin Lakes near Woonsocket, S.D. has been marked by GF&P as one of the non-meandered waters in South Dakota. Recreational users and cabin owners who reside along the lake are left wondering their rights as the summer months begin. Photo by Amanda Radke

Could South Dakota's non-meandered lakes re-open in time for summer?

The 15-member South Dakota legislative study committee for the non-meandered waters issue met last week to discuss a proposed draft that would address concerns regarding public access to privately-owned land that is underwater.

This is the third time the committee has met to determine a course of action for the 25 popular non-meandered lakes that were closed to the public by the South Dakota Game Fish & Parks Department (GF&P) on April 6.

The closing of these non-meandered waters was the result of a March South Dakota Supreme Court decision, which charged the South Dakota Legislature with defining the recreational public use of these non-meandered waters.

"The proposed draft solves a few key problems for both sportsmen and landowners," said Jason Frerichs, farmer, rancher and state Senator from Wilmot, S.D. "First, it opens up the bodies of water that have been closed by GF&P. These lakes have a history of being utilized by the public with developed access points. For the rest of the flooded private lands that are not near meandered or proven lakes, it gives landowners the option to mark where they don't want the public to go on their property."

The 10-page draft has been dubbed, "5 Open Compromise" and states that the state's non-meandered lakes will be reopened, but that landowners will have the option to restrict public access on the sections of the bodies of water that they own.

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"The draft bill is a reasonable compromise that balances recreation for sportsmen and respect for landowners," said Nathan Sanderson, Ph.D., South Dakota Governor Daugaard's director of policy and operations. "The legislature's summer study group is planning to meet next Friday, June 2. It's my understanding that they will seek consensus on the draft at that time; if there is support, I believe they would request that the Governor call a special session of the legislature. If the draft bill has enough support, Governor Daugaard is open to calling a special session, which would likely take place sometime in June."

"For the most part, landowners I've visited with have been pleased with the direction we are headed with this draft," added Frerichs, who serves on the legislative study committee. "By the final meeting on June 2, I would expect that we would move forward with the draft presented, but there will be some significant changes made once we address some of the legal concerns and consider feedback from the public."

Business owners who rely on sportsmen and tourists during the summer months are keen for a decision to be made to hopefully recover the financial losses they've incurred since the ruling.

"Our business is down 82 percent compared to last year," said Paul Johnson, owner of the Lynn Lake Lodge. "We support the proposed draft that would reopen the lakes to the public this summer, but it will need some fine tuning at the next legislative session this winter.

At quick glance, Johnson sees a few glitches in the draft proposal.

"From what I've read in the draft, I don't see the tax relief that the landowners are looking for," he said. "I also don't think a buoy system would work. Take for example, Lynn Lake, which has 14 different landowners on it. If half of the owners decide to put up buoys, can you imagine how confusing it would be to navigate the areas of the lake that you're allowed on and the places you should steer clear of? To me, if there is a lake with state- and federally-owned land underneath it, then those should still be accessible to visitors. However, if it's a lake that's totally land-locked without state or federally-owned land, then it shouldn't be open to the public without permission. I think these specifics would give us an instant law to follow and would appease most people."

Despite the outcry of recreational users of these popular lakes, South Dakota GF&P Secretary Kelly Hepler is encouraging folks to get out and explore the many public lakes the state has to offer.

"Over 150 meandered lakes are open to provide fishing and access opportunity; most of which are on the eastern side of the state," said Hepler, in a recent GF&P press release. "Even though access has been restricted on 25 non-meandered lakes, there is still plenty of room and plenty of fishing to be had this summer on the quality fisheries that exist in our state."

Hepler added, "There has been much talk about the non-meandered waters in northeastern South Dakota. While it is important to have state leaders, landowners, sportsmen and women, tourism and business groups working together to resolve this issue, it is also important to remember that there are many lakes in South Dakota accessible for fishing, boating and other recreational activities."

He advises sportsmen to stay tuned for updates from the legislative task force as they work toward a reasonable solution, and in the meantime, to go out and enjoy the state's recreational resources.

"Do your part to know what is happening with this issue, but don't let this issue stop you from enjoying the great outdoor resources South Dakota has to offer. Fishing and boating add to our quality of life and it is important to spend time with family and friends outdoors," said Hepler.

If the draft is implemented, the GF&P would be responsible for negotiating public accessibility of non-meandered waters with private landowners on a case-by-case scenario.

Understandably, local businesses fear the closing of the lakes during the prime tourist season will result in massive financial losses as tourists go elsewhere this summer.

Meanwhile, landowners are thankful their concerns about their privately-owned land, which, by no fault of their own, flooded in the 1990s and has stayed underwater since, will now be addressed.

"The South Dakota Cattlemen's Association (SDCA) policy regarding flooded private property indicates support for private property rights, and, while we recognize it may not go as far as some would hope in protecting our private property rights, we are inclined to support the proposed legislation as it appears to be a step in the right direction to manage the tension that exists between private property rights and the public's right to utilize the water," said Jodie Anderson, SDCA executive director.

"As might be expected, some sportsmen and sportsmen organizations have expressed opposition to the proposal as it will provide some limitations regarding recreational access to flooded private property," she added. "However, if legislation could be passed during a special legislative session in June, that would allow waters that have been closed to be re-opened and would provide relief to those small businesses and communities in northeastern South Dakota who are suffering from decreased revenues due to the absence of fishermen."

Although Anderson is waiting for membership feedback on the draft, she says SDCA will likely back the proposed draft as a reasonable solution for the summer of 2017.

"Keeping in mind that whatever action might be taken during a special legislative session could be changed during the 2018 session that begins in January, we believe the proposal is likely a good compromise," she said. "There will likely be some additional issues we would like to see addressed during the 2018 session, too, such as specifics regarding who will be charged with enforcement and ways to better address access and safety concerns when there are vehicles and boat trailers parked haphazardly on the roads."

The draft proposal can be read in its entirety here: http://sdlegislature.gov/docs/interim/2017/documents/DNMW05242017.pdf

Interested stakeholders are encouraged to provide feedback and suggestions prior to the final committee meeting on June 2.

Oregon favors land owners in Kramer v. City of Lake Oswego

The heated discussions amongst elected officials, business owners, sportsmen and landowners over the legality of private property and public waters may feel like unchartered territory; however, in Oregon, lawmakers have rejected public access to private lakes in the case of Kramer v. City of Lake Oswego.

As previously reported in the Tri-State Livestock News, activists argued that the public trust doctrine should be extended to create easements across dry, upland property in order for the public to gain access to navigable waters throughout the state of Oregon regardless of ownership. However, the courts sided with Oregon property owners, who called the claims of public trust doctrine, trespassing.

In the case of Lake Oswego, a private, man-made lake, the courts determined that there is nothing in the doctrine that would allow the pubic to cross over private land to access the water.

According to attorney Brian T. Hodges, for the Liberty Blog, "Over a century ago, the Oregon Supreme Court held that the public trust doctrine provides no right of access across upland properties—such a right can only be secured by the exercise of the State's eminent domain powers and payment of just compensation. The court of appeals' lengthy discussion of the public trust doctrine provides a valuable resource for property owners facing similar claims of public access right."

Oregon favors land owners in Kramer v. City of Lake Oswego

The heated discussions amongst elected officials, business owners, sportsmen and landowners over the legality of private property and public waters may feel like unchartered territory; however, in Oregon, lawmakers have rejected public access to private lakes in the case of Kramer v. City of Lake Oswego.

As previously reported in the Tri-State Livestock News, activists argued that the public trust doctrine should be extended to create easements across dry, upland property in order for the public to gain access to navigable waters throughout the state of Oregon regardless of ownership. However, the courts sided with Oregon property owners, who called the claims of public trust doctrine, trespassing.

In the case of Lake Oswego, a private, man-made lake, the courts determined that there is nothing in the doctrine that would allow the pubic to cross over private land to access the water.

According to attorney Brian T. Hodges, for the Liberty Blog, “Over a century ago, the Oregon Supreme Court held that the public trust doctrine provides no right of access across upland properties—such a right can only be secured by the exercise of the State’s eminent domain powers and payment of just compensation. The court of appeals’ lengthy discussion of the public trust doctrine provides a valuable resource for property owners facing similar claims of public access right.”

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