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Open Waters Compromise becomes law

According to the South Dakota Legislative Research Council, public water is defined as: “all meandered lakes, rivers, and streams and their shores to the high-water mark; all waters and shores of reservoirs constructed with public funds; and all other lakes, rivers, and streams that may be used by the public for boating, fishing, hunting, trapping, bathing, skating, and other activities for pleasure and recreation. Lakes, rivers, and streams that become dry during certain seasons of the year or periods of drought remain public waters.”

“Non-meandered waters” in layman’s terms refers to bodies of water that grow outside of their low water mark and sloughs that have developed due to flooding on previously farmable land.

After months of debate, a summer legislative study and a special session, a compromise has been decided regarding the "non-meandered" lakes of South Dakota.

On Monday, June 12, South Dakota Governor Dennis Daugaard signed into law new rules, which will govern over the recreational use of public waters on private land. The bill passed both houses with the required two-thirds majority.

"I thank the legislature for recognizing the urgency of passing the Open Waters Compromise," said Gov. Daugaard, in an official press release. "With the signing of this bill, we are opening up tens of thousands of acres of non-meandered waters to public recreation, while respecting the property rights of landowners."

Effective immediately, the bill opens more than two dozen bodies of water to the public while also giving landowners the ability to mark and close off areas of non-meandered waters.

“Landowners will be able to post areas where they don’t want people on their flooded land, and outdoor enthusiasts will know that if it isn’t posted, they can access the water from a public access point. I realize both sportsmen and landowners aren’t happy with this proposal, but I don’t see a better alternative to move this issue along.” Jason Frerichs, Democratic Minority Whip in S.D. Senate

"Even though two-thirds of the state is dealing with drought conditions, we had a special session to deal with flooded lands and recreational use of that water," said Jason Frerichs, a farmer/rancher from Wilmot, S.D. and the Democratic Minority Whip in the state Senate. "Landowners will be able to post areas where they don't want people on their flooded land, and outdoor enthusiasts will know that if it isn't posted, they can access the water from a public access point. I realize both sportsmen and landowners aren't happy with this proposal, but I don't see a better alternative to move this issue along."

In order to come to a consensus on the issue, an amendment was added to the bill, which sunsets (or expires) the legislation on July 1, 2018. This means the legislature will need to revisit this issue during the 2018 legislative session.

"This bill has the shortest sunset provision of any natural resource law I've ever seen in my career," said David Ganje, of Ganje Law Offices, an attorney who practices natural resources, environmental and commercial law. "I sense that there are many unaddressed issues with this bill, so that is why both houses set such a short sunset rule on this."

Ganje has been working with the South Dakota Farmer's Union (SDFU) on this issue and says SDFU was a proponent of the bill and of re-opening the waters, but as it stands today, the legislation needs some work.

"As it's written, the bill has some valuable provisions in it, but it's very incomplete work," said Ganje. "It does open up the waters, and it puts into place some rules of the road. It grants property owners immunity from liability issues, which is a good thing, too. Still, the committee opted for a bill that is unfinished, even for the limited, immediate issues the bill seeks to remedy. To create remedies quickly does not always work well when writing new law. The bill was only in the public's eye for ten days before it passed."

Ganje listed several of his and SDFU's concerns with the new legislation.

First, he says the bill legalizes discrimination among the lakes.

"The bill creates two sets of laws," he said. "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 non-meandered 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 non-meandered lakes."

Second, the bill lacks a setback rule based on the distance and type of weapon, an issue that SDFU lobbied heavily for.

"South Dakota law prohibits hunting from the water in close proximity to a dwelling unless permission is given," said Ganje. "The bill contradicts this, and requires a landowner to install 'conspicuous markers' on his property, or be subject to hunting all the way up to his home. The bill does not provide for a minimum setback of all sportsmen's activities. The bill should establish a uniform setback near dwellings and confined livestock which will be understandable by sportsman and landowners alike."

Third, the bill does not include a quiet time rule.

"The bill does not establish a quiet time for sportsmen's activities near dwellings and confined livestock," said Ganje. "The purpose of a quiet time rule is to preserve a landowner's right to sleep and repose. Landowners want to be good hosts on these waters, but don't want to become indisposed at all hours of the day or night. No host would. No one wants a two-stroke ice auger running next to their home at 5 in the morning."

Ganje also said the bill does not declare that recreational use is an acceptable beneficial use of public waters.

"The Supreme Court stated in two cases that the legislature needs to make a declaration one way or the other about recreational use of public waters," he said. "California, Idaho, Kansas, Minnesota, Montana, Nevada, Oregon, and Wyoming have done it. A properly drafted declaration of recreational use will not give recreational use priority or preference over other uses."

The bill, he said, also authorizes the state to buy waters, which in this context, doesn't make ay sense at all.

"The bill authorizes the state to buy or lease from private landowners recreational use of public waters," he said. "The state cannot buy or lease from private citizens water already held in trust for the public. All public waters in South Dakota, including non-meandered waters, are held in trust by the state for the benefit of the people of that state. Recreational use is not a property right in the water held by a lakebed owner. Recreational use cannot be bought, sold or leased. If the purpose of the bill is to buy or lease property rights from private landowners, the bill does not achieve this purpose."

Equally troubling, Ganje said that because this bill is effective immediately, there will be much confusion amongst anglers, landowners and the Game Fish & Parks (GF&P).

"The current bill creates two sets of rules, and it's going to leave a lot of ambiguity," said Ganje. "The purpose of the legislation is to create comfort rules that both landowners and sportsmen can easily follow. The GF&P is trying to grapple with how they are going to implement this right now, but anytime a government agency is given responsibility instantaneously, it's never a clean job."

However, despite the numerous issues that will need to be addressed in the next legislative session, many are relieved to see a temporary resolution to a hotly debated topic.

"The South Dakota Cattlemen's Association (SDCA) supported the compromise legislation as a first step in what we believe will be a long process of balancing private property rights with the public's right to utilize the water," said Jodie Anderson, SDCA executive director. "While the legislation was far from perfect, it at least provides additional private property protections in some areas as compared to what had been the practice prior to enactment. We weren't happy with the inclusion of the sunset in the committee's bill and are even less happy about the accelerated sunset added yesterday, but we remain supportive. There remain other issues we would like to see addressed, and we anticipate it will be back on the front burner during the 2018 Session."

Meanwhile, the GF&P has been busy removing cables from previously restricted access points and installing docks back into the water. Full service will be restored by the end of the week.

"I want to thank the legislature for taking quick action," said Kelly Hepler, GF&P secretary, in a recent press release. "I encourage everyone to join together for implementation of the Open Waters Compromise."

Moving forward, landowners are instructed to contact GF&P if they plan to post the waters with conspicuous markers. GF&P says they will work closely with landowners to maintain the public's recreational use on these waters.