Bill to make compromise permanent moves ahead
February 16, 2018
The topic of non-meandered waters is back in the 2018 South Dakota Legislative Session and looks to be a topic of much debate once again.
In June 2017, the South Dakota Legislature convened a special session to pass a non-meandered waters bill into law. The law defined non-meandered waters and allowed access to these waters over private land by default. Private landowners who wished to have their land off-limits for recreation could post markers or bouys at their own cost to designate their as so.
There are 28 of these flooded "lakes" named in the compromise language wherein the landowners must petition the state Game Fish and Parks Commission for permission to restrict access. These lakes are listed in section 8 of the June 2017 compromise, HB 1001, and are sometimes known as "section 8" lakes.
Roy Gjerde, a farmer from Clark County who has land under "Dry Lake Number 2" said that if someone petitions the SD GFP Commission and is given permission to restrict access on the "section 8" land, he or she would mark their own land with buoys, but the remainder of that particular lake would still be open to the public.
But he doesn't believe that the SD GFP, a group appointed by the governor, should have the power to grant or deny private landowners rights on their own land. "You don't give anyone that much power in this country. It goes against everything our country stands for." The GFP commission established a set of criteria by which they determine whether to allow or deny landowners the right to close their land on the "section 8" lakes.
Those seeking to use nonmeandered water for recreation must access those waters legally, by either using a right-of-way, public roadway, or other public land connected to that non-meandered body.
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This law had a sunset clause built in that would end it in June 2018 unless the legislature chose to amend it.
On Jan. 25, the House passed HB 1081, a bill that would repeal this sunset clause and make the law permanent. The Senate Ag and Natural Resources Committee will hear this bill next.
Another bill, Senate Bill 199 was approved by the Senate Ag Committee on Feb. 7. It sought to amend the law to state that a private landowner wishing to set land covered by nonmeandered water as off-limits must petition the Game, Fish, and Parks Commission to have that portion of the water closed to recreational use by any person. The bill was not approved by the Senate.
Gjerde was pleased to see the bill die.
"In my opinion, SB 199 was the largest land grab in the history of South Dakota," he said.
About 140 acres that Gjerde owns and about 60 that he rents are under the Dry Lake Number 2 which is not dry at all, but is a lake that covers around 10,000 acres. At one point it covered about 20,000, he said.
"When the water was high, it came close to my house – I would estimate I had 600-700 acres of owned or rented farmland under it at one point."
The fishing in the lake is good enough that the SD GFP installed a boat ramp recently, he said.
But one of Gjerde's concerns with the compromise that will be made permanent if approved by the Senate and the Governor's office, is that it not only opens some land to fishing, but opens the "section 8" lakes, to all recreation including hunting, trapping and more.
"Now, out of my 200 acres that have ice on it today, 50 acres are cattails. This law opens those acres to all recreational uses. Now sportsmen can hunt and trap on my land without my permission. My point is – this law goes well beyond fishing on flooded land, it gives the use of my land to the public."
With the state allowing access to privately owned land that is flooded unless the landowner specifically marks off, Gjerde feels the door is being opened for the same mentality to be applied to all property. "They could say that pheasants are a natural resource, and that it just happens that they are on your property, so they have to be on your property to hunt."
There is a program that allows for taxes on flooded lands to be decreased, but the taxes on other land go higher, he said. "It's not like nobody is paying that tax, it's just being spread out over other landowners."
He isn't bothered by folks fishing on his land, Gjerde said, but he's concerned about the erosion of property rights. "I don't care if someone fishes it, but I need to keep the option to restrict it."
There are legislators and organizations in the state that believe landowners are gaining too much control of the water in the compromise. Some believe, that because the state's water is intended to be used by the public, that the public should be able to access the water – even flooded farmground – without asking permission.
"We make it a crime for the public to use a public resource when the process for closing that public resource off is such that it can be done unilaterally by a private landowner without the opportunity for the public to participate in a hearing process," said Roger Ellinghuisen, a Rapid City attorney who serves as a lobbyist for the Wildlife Federation.
He also said that the landowners' ability to restrict access to the public but allow those of their choosing to use the water on their own land was unfair. "that places the landowner in my opinion at a higher level of this hierarchy or this balancing test that is in your bill to begin with."
The compromise also would allow private landowners to set aside a portion of the water without petition as a privacy zone overlying the owner's property within six-hundred sixty feet of the owner's occupied dwelling, a church, a school, or a permitted concentrated animal feeding operation. The public may not access or use the nonmeandered water within the privacy zone without permission from the owner of the property underlying the privacy zone. If the only reasonable means to access other waters open to recreational use is to traverse a privacy zone, the public may pass through the privacy zone.
The issue of nonmeandered waters was been a decades-long debate that has drawn strong opinions from every side. For landowners, it's an issue of property rights. For sportsmans and recreationists, it's about water rights. For South Dakota lawmakers, it appears it's an issue that will continue to be discussed during the 2018 legislative session.