In SD, sportsmen are pitted against landowners in a battle over public access of open waters on privately-owned land
April 20, 2017
Summer is quickly approaching, but tourists planning to fish on their familiar stomping grounds in South Dakota may have to rethink their plans.
In March, the South Dakota Supreme Court's decision in the case of Duerre v. Hepler set a legal precedent for all non-meandered waters in the state.
The case, which involved multiple Day County landowners against the South Dakota Game, Fish and Parks (GF&P), Secretary Jeffrey Vonk and the state of South Dakota, brought injunctive relief concerning the public's right to use the waters and ice overlying landowners' private property for recreational purposes.
According to the South Dakota Legislative Research Council, public water is defined as:
“They’ve used the landowners’ private land for years for free; it’s not right. They’ve gotten away with 20 years of robbery already, and most people don’t realize and understand that somebody is paying taxes on that land. Whether it’s underwater or dried up, I still pay. It should be up to the landowner and the government to negotiate out a deal if they want to allow access to the public, how much they want to be compensated or if they want to opt out.Herbie Allen, Lake City, S.D., rancher
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"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."
According to the GF&P, meandered waters are waters that at the time of the original survey of South Dakota, the U.S. government surveyor estimated them to be larger than 40 acres and of a permanent nature. Land within the defined meander line, or surveyed boundary, became state trust property. Non-meandered waters are all other lakes, ponds or sloughs that did not meet the above definition at the time of the original survey. The lands beneath the waters in these basins were made available for homesteading and would become privately owned. Over time, GFP or other government agencies may have acquired lands within some of these non-meandered basins.
"Non-meandered waters" in laymans 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.
Ruling in favor of the landowners, the Supreme Court prohibits the GF&P from facilitating public access to these non-meandered bodies of water for recreational purposes.
According to the GF&P website, "As per the directive of the court order, GF&P will no longer facilitate the public's access to non-meandered waters. Therefore, we will discontinue facilitating public access via boat ramps and docks placed on these non-meandered waters. GF&P will not construct any new access facilities, such as boat ramps, docks, fishing piers and associated facilities on non-meandered bodies of water in the absence of authorization from the state Legislature. Mowing and weed control in and around these areas will continue to protect the investment of this infrastructure. In terms of facilitating access, there are other activities that have been temporarily halted on non-meandered waters in the absence of legislation. These include fish stockings, creel surveys, canoe and kayak rentals and permitting of fishing tournaments and special events."
To date, the GF&P has closed boat ramps at the following bodies of water to comply with the Supreme Court decision: Clark County — Caseys Slough, Cottonwood GPA, Dry #1, Dry #2 and Swan; Codington County — Deep and Goose; Day County — East Krause, Lynn, Middle Lynn and Reetz; Edmunds County — North Scatterwood; Hamlin County — Three Buck; Marshall County — Bullhead and Cattail-Kettle; McPherson County — Keisz; Minnehaha County — Grass, Loss, Scott and Twin; Sanborn County — Twin; Spink County — Cottonwood and Mud; Sully County — Cottonwood; and Tripp County — Dog Ear.
Emotions are running high for many sportsmen following the court's decision, but many landowners are favoring the victory, which for them, has been long-awaited.
"I have a thousand acres of water on my land, and I've paid $5/acre in taxes for the last 20 years," said Herbie Allen, a rancher from Lake City, S.D. "Landowners should be entitled to at least their taxes and some kind of compensation. Landowners should also still have a say for who goes onto their private property."
Allen owns land that was once fertile pasture and now sits underwater, on parts of Two Mile and Mallard, which are part of a chain of lakes located north of Fort Sisseton. He runs cattle adjacent to the lakes and says it's been a huge liability to have people fishing on his land.
"I've had to increase my farm liability insurance to protect myself and my ranch," he said. "I never give permission to people who ask to go on the lakes because there are too many frivolous lawsuits in this country anymore. One year, the neighbors gave permission to a guy to drive his truck on the ice and go fishing. His truck fell through the ice on my part of the lake, and the neighbors called me and told me the fisherman wanted to sue me for not marking the weak spot in the ice. But I never gave permission, so I wasn't liable. This liability is unfair to landowners who have to pay the taxes, can't use the private property for themselves, and have to obey the authority of the GF&P who claims the water and has jurisdiction."
Not only does Allen have to pay taxes on the water and receive no compensation for the revenue that his land brings to the state of South Dakota, but he says his privacy is also being invaded by unwelcome visitors to his ranch.
Allen said, "I've had my fences cut. Cattle have stampeded and killed calves after being spooked by visitors. I've been told that my half-mile fence that's under water is inhibiting the sportsmen and hindering them from fishing on the lake. They leave garbage. They've fished out the lakes down to nothing, and they've chased away the deer. My family homesteaded here long before Fort Sisseton was even here, and we love to live in this gorgeous country to raise cattle, to hunt and to fish. Of course, if I have a say, I don't want people messing around on my private property."
Allen believes if the government would have come to an agreement that appeased the landowners years ago, the state wouldn't be in this current situation.
"They've used the landowners' private land for years for free; it's not right," he said. "They've gotten away with 20 years of robbery already, and most people don't realize and understand that somebody is paying taxes on that land. Whether it's underwater or dried up, I still pay. It should be up to the landowner and the government to negotiate out a deal if they want to allow access to the public, how much they want to be compensated or if they want to opt out. For the people who are whining that there will be millions of dollars lost in revenue, I say if the state is making so much money off of all of this water, then why didn't they do something a long time ago to compensate the landowner for his fair share?"
While landowners are celebrating this injunction to keep visitors off their private property, the ruling has devastated sportsmen who enjoy fishing, ice fishing, boating, swimming and other recreational uses of these lakes. In response to the court decision, Derek Garner, who works as a fishing guide on Dry Lake #2, started a petition on change.org, which states, "South Dakota citizens, small local businesses, sportsmen and landowners are suffering from this recent ruling and do not have time to wait until the next legislative meeting in January 2018. We need to all come together and support the small communities, landowners and sportsmen, so we can all enjoy South Dakota's natural resources. There are thousands of people who rely on these natural resources to attract people to these small communities and also for enjoyment with friends and families. It will be a pretty quiet year for these well-sought fishing grounds that have been funded by the general public. Please sign this petition if you are in favor of an immediate response to this serious matter through a legislature special session in 2017."
More than 4,820 people have Garner's petition so far with many detailing how the decision will impact their plans to visit the state and concerns of the loss of revenue to small communities.
However, a special session of the legislature is unlikely according to Kelsey Pritchard, spokesperson for Governor Dennis Daugaard, in a statement to the Watertown Public Opinion, "We think an interim committee of the legislature is the best way to reach a proposal. That way the legislators can reach all the stakeholders. People are talking about a special session now, but it doesn't make sense to call a special session until there's a proposal."
Per the court's ruling, the legislature will be responsible for defining how non-meandered waters are to be beneficially used by the public, and until a decision is reached, superior rights to the water don't belong to the public or the landowners.
Until the legislature agrees on a proposal for what constitutes beneficial use, sportsmen would be well advised to ask permission before entering any body of water this summer in South Dakota or stick to well-established meandered lakes where the public is certainly welcome.