CURRENT ISSUE
JULY 3, 2017 - VOL. 53 No. 10

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A meandering road to a nonmeandered waters solution

By Mark Lee
Sioux Falls Area Chamber of Commerce

On June 12 the State Legislature met in a special session and passed HB 1001. The Governor signed the bill. In this article, we'll trace the history of the issue of nonmeandered waters and outline some specifics in the compromise legislation. Be warned, however, that HB 1001 includes a sunset clause for June 30, 2018 meaning the 2018 Legislature will need to address the issue at some level. Also, this is a highly technical issue and somewhat difficult to explain.

Historical Context

In 1868, a survey of all the state's waters was authorized by the federal government using the following guidelines. Any body of water over 40 acres and deemed to be of a permanent nature would be surveyed as a meandered or navigable water. These waters were deemed "public" and available for a variety of public uses. In short, the state owns the lakebed and the water above it. Any body of water that was less than 40 acres or shallow or likely to be dried-up due to weather or other reasons, resulted in it identified as a "nonmeandered water." The land in these lakebeds was available for settlement and dryland uses. Thus, whoever settled the land owned the lake bed of nonmeandered waters.

In 1955, the state legislature passed significant water rights legislation that embraced the "public trust doctrine" with respect to all the waters of this state (meandered and nonmeandered). In short, declaring the public's interest and specifying that all water is the property of the people of the state and subject to appropriation for public use.

For nearly all of South Dakota's history, this issue was rather dormant. But, beginning in the late 1980s and more significantly in the early 1990s, unusual amounts of precipitation changed the landscape significantly and in particular for eastern and northeastern South Dakota. What once were dry sloughs or lakebeds swelled to enormous proportions. In some instances 20-30 feet of water stood over previously dry land. The unique topography of northeastern South Dakota and the lack of natural drainage basins meant these new 'lakes' were held hostage – the water had nowhere to go. And, as they swelled, they swallowed-up farms and farmland and they traversed over many county and township roads. By about 2001, these new waters were viewed as viable fisheries and many were stocked by Game, Fish and Parks. The position of the state was that as long as a fisherman could gain access via a public right-of-way, they could access the surface of the water and use the waterbody. In numerous instances, GF&P built boat ramps and facilities to support access.

We would summarize the dispute in few ways. First, many landowners believe they have a legitimate property right that should allow them to control access to these waters based on the fact they own the underlying ground. Second, sportsmen believe that these waters are held in the public trust for the beneficial use of the public and recreation is a beneficial use. Third, landowners have logged complaints about sportsman behavior and the disruptions caused by access. All these positions seem to have some merit. Based on these contrary positions, conflict seems inevitable.

Parks v. Cooper

So, why would we believe that the public should have access to these waters over private land? That was the question posed in Parks v. Cooper and the State Supreme Court issued their unanimous opinion in February 2004. In this case, the Circuit Court found for the landowners, but the Supreme Court reversed the finding. Section 37 in Parks says the following, in part: "Their (landowners) claim is that because they own the land underlying the lakes, they own the water as well. Yet, notwithstanding private ownership of beds underlying water bodies, a number of state courts have recognized the application of the public trust doctrine to their water resources, holding that where a body of water is suitable for public use according to state law standards, a public right to use that water will be recognized."

The court went on to conclude that the State of South Dakota retains the right to use, control and develop the water in these lakes as a separate asset in trust for the public. Even further, the Court noted that the public trust doctrine imposes an obligation on the State to preserve water for public use. Since the people of the State own the waters themselves, and that the State controls the water for the benefit of the public, it is ultimately up to the Legislature to decide how these waters are to be beneficially used in the public interest.

Going forward it seems that Parks is important for at least three reasons: 1) Parks affirmed the public trust doctrine for waters of the state laying over private land. Thus, the public has a legitimate interest in these waters and recreation could be a permissable use; 2) The Court's affirmation of the public trust doctrine stops short the argument that allowing public use of water over private land is an illegal taking; and 3) Determining the extent of public use of these waters is the province of the Legislature.

Duerre v. Hepler

Following Parks, the Legislature attempted to address this issue during the 2006, 2013 and 2014 sessions, but failed in each instance to reach a compromise. In August 2014, another group of landowners brought suit regarding the public's right to access and use water overlaying private property. They argued, in part, that the Parks decision is controlling and the Legislature has not specified recreational use as a beneficial use so these waters should be off limits.

The State, on the other hand, relied on a broad policy of the Legislature that the public has a right to the recreational use of nonmeandered waters as a beneficial use of the waters of the state.

In a unanimous decision filed March 15, 2017, the Court held that until the Legislature acts neither the underlying landowner nor the public have rights to these waters existing in their favor and that the State is prohibited from providing access to these waters. Legal uncertainty and the removal of access facilities rendered these waters unusable from a practical perspective and activity on these waters and in the communities and businesses near them dwindled.

Special Session

The Legislature's Executive Committee identified the regulation and use of nonmeandered waters as a key topic for the interim. Once committee members were identified, they moved quickly and held public hearings in northeast South Dakota and Pierre. These were supplemented by other listening sessions where landowners and sportsmen gathered to share their opinions. Official testimony from over 70 people helped inform the process. The interim committee agreed to a draft bill on a 13-2 vote on June 2. As he had promised to do, the Governor called a special session.

The Legislature met in Special Session June 12, and passed HB 1001 as a compromise bill with a sunset clause of June 30, 2018. The original sunset clause on the bill was June 30, 2021, but the Senate insisted on this change and the House felt obligated to accept it or face the probability of nothing happening.

A few key provisions include (as summarized):

  • All nonmeandered waters are considered open unless specifically marked by a landowner using signs or buoys. Thus, it takes an affirmative action by the landowner to close the water or any part of the water.
  • The access the public has is to the surface of the water for fishing and ice fishing, for example. It does not include wading and standing on the lakebed or hunting or trapping on the frozen surface.
  • The state is authorized to negotiate with landowners for access.
  • Section 8 of the bill reclassifies 27 well-known bodies of water. These bodies were previously nonmeandered waters and part of the dispute. Now they are open and not subject to landowners closing them unless they successfully petition the GF&P Commission.
  • The bill limits liability for landowners for injury to people using these waters.
  • Nothing requires a landowner to provide access across private dryland property to a nonmeandered water. Thus, if it cannot be accessed from a public right-of-way, permission is required.

Landowners cannot charge for access to water that has been closed to the public.

Please do not rely on this brief summary to cover all the issues relating to the regulation and use of nonmeandered waters by the public. Guidance from GF&P and the text of the bill itself will have more details.

Recreation and Respect - For Now

We acknowledge that both landowners and sportsmen have legitimate interests to consider. Further, the State of South Dakota has a legitimate interest in the issue from the perspectives of stable public policy, tourism, commerce and tax revenues. When multiple parties have legitimate – and maybe competing – interests in an issue, compromise is needed to move forward. Further, we believe given the nature of the conflict, and the language and timing of the Supreme Court ruling, a special session of the legislature was an appropriate way to address the issue.

Finally, we encourage compromise on issues like this. It was the failure to compromise that derailed legislative attempts in years past and brought us to this point. Due to the sunset provision we will remain engaged in this issue as we consider our position on proposals offered during the 2018 session.

Now, that the section 8 lakes are open – as are other nonmeandered waters if they are not marked – the hope is that sportsmen and landowners abide by the tenor of the compromise which is recreation and respect.


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