Slow steady death of property rights continues

This opinion piece is not dismissive of environmental issues affecting the lands and waters of South Dakota. This opinion piece is not dismissive of the important rights and privileges of sportsman in the state. This piece discusses the long slow death of property rights in the state. Do property rights in the current environment of lawmaking and with political leader’s priorities now play second fiddle to the almighty dollar? One bill filed this 2018 session proposed private animal waste pipelines in order that CAFO wastes could be transported by pipeline over other property owner’s property without compensation. Fortuitously some sounder heads were found and the bill got killed. Yet the risks remain. Only just consider the non-meandered waters law shortly to be extended by the governor’s signature.

Non-meandered waters are public waters, according to a ruling last year from the South Dakota Supreme Court, even if the waters cover private lands. In 2017 the legislature after fumbling for years trying and failing to fix the non-meandered waters issue “fixed the water problem” by a new law. At the special session of the legislature of 2017 a so-called compromise bill was passed which included a short sun set provision. The legislature was obliged this current session, 2018, to have a hard look at the 2017 law and see if all was good. All is not good with the law but the legislature, in a hurry to perhaps mess up other things, kicked the non-meandered waters can down the road anyway. The 2017 law will now continue without corrections. The sun set provision was removed. Not a swell idea.

How did the legislature and the governor mess it up? Let me count the ways. But first it must be said that each of the following problems were pointed out to the legislature right after they passed in the summer of 2017. And they are still in the law.

1. In the statute the term “owner” of lakebeds is not described or defined even though the word “owner” is used several times in the law. This will cause problems. One cannot determine liability of an owner or declare immunity from liability of an owner unless the term “owner” is defined. The law says that, “the liability of any owner of private property underlying a meandered or non-meandered lake is limited.” Is it limited to a title holder only? What about a tenant? What about a tenant in possession of the lands? What about a leaseholder using and managing the lands? The law does not say. These parties do not have legal immunity under the new law. In another illustration, even if a legal tenant or lessee in possession should be the proper party to give permission to access waters or to take other necessary acts described under the law, he cannot. The law only permits a “title holder” to take such acts.

2. The Act creates two sets of laws for non-meandered lakes. The rights, duties and liabilities of landowners under the law’s designated non-meandered lakes are not the same as the rights, duties and liabilities of the landowners under all other non-meandered lakes. Certain lakes are earmarked specifically and in effect the owners of these lakes are second class citizens with rights more limited than those not earmarked. Has South Dakota created a new version of Jim Crow laws?

3. The second class of property owners who may wish to restrict certain access to waters lying over their private property are required to petition the GF&P Commission before such a closure could be granted. In civil law in South Dakota, as well as in jurisdictions using Anglo-American law, access to property or access which affects property rights may be legal if granted by consent of the property owner (except in the case of government imposed condemnation of property). Consent by the property owner is an essential element in granting access. Consent given by a third party or a government is not the proper way to give consent. However the 2017 law, now extended, provides that any act to restrict access to waters over a landowner’s property and near a landowner’s surface lands is determined by the government. This is contrary to the long-established law of property rights. The burden of proof, when restricted access is requested by a landowner, should be upon the GF&P Commission once a landowner files a petition. This property rights problem has already been tested by an actual hearing, and the Commission ruled that the burden of proof rests with the landowner. How could one devise a clearer example of the whittling away of property rights?

4. No mandatory setback rule is created. The law does not provide for a minimum setback from dwellings or confined livestock concerning sportsmen’s activities on the waters. A uniform setback near dwellings and confined livestock which will be easily understandable by both sportsman and landowners alike should have been established.

5. The emperor has no clothes. No legal declaration was made in the law stating that recreational use is a beneficial use of public waters. The South Dakota Supreme Court in two cases said the legislature needs to make a declaration one way or the other about recreational use of public waters. A properly drafted declaration of recreational use will not give recreational use priority or preference over other uses.

6. No mandatory quiet time for sportsmen’s activities near dwellings and confined livestock was established. The purpose of a quiet time rule is to preserve a landowner’s privacy and 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.

7. The law permits a lease or purchase of public water rights. But it does not work that way. The state cannot buy or lease from private lakebed owners the “recreational use” of the waters. All public waters in South Dakota, including nonmeandered waters, are held in trust by the state for the benefit of the people of that state. The law now authorizes the state to buy recreational use of waters overlying private property. GF&P would be making a mistake if it attempted to exercise this provision of the law.

8. All infrastructure activity on non-meandered waters is managed by GF&P. However, the law does not include a due process provision giving a landowner advance notice of proposed activity to be taken in the immediate area near a landowner’s private property. Providing for advance notice safeguards the landowner’s ability to know what is going on before it happens. Other law in the state provides a property owner with advance notice when property is to be affected by other state approved projects.

David Ganje of Ganje Law Offices practices in the area of natural resources, environmental and commercial law.