Please get the word out and let all your fellow fisherman know they may lose their right to fish on many South Dakota lakes and rivers.
South Dakota House Bill 1035 passed this week. This bill will close access to public waters.
Below are some article about the bill and how to contact your legislators…
http://gowatertown.net/HB-1135-Could-Change-South-Dakota-As-We-Know-It/15491094
http://articles.aberdeennews.com/2013-02-15/news/37125357_1_public-access-laws-house-bill-water
Fill us in a little here. Would there not be an easement point or public access point created? Here in MN I can not just walk through someones yard or property just because I want to fish the structure in front of their house. I have to use a public or paid private access (resort) then once on the water get to where I want to fish.
Like I said help us/me understand, am I missing something?
Below is part of one of the articles that explains it better than I can. I’m trying to find the Attorney Generals interpretation of this bill. I’ll post more as I find the infomation….
Quote from Article….
> The bill is designed to close nearly every non-meandered body of water in SD to public use and turn it over to private control. The bill essentially says the public owns the water, but cant use it. This legislation would close all non-meandered bodies of water unless the public could prove on each body of water the existence of a right to public recreational access…by clear and convincing evidence.
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> The evidence required by the law consists of proof of continuous use in an open, notorious and adverse manner for 21 years in order to establish a pattern of public use. This is an impossible burden.
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> With private parties on land, it is possible to occupy land without interruption and provide proof, such as a fence or building on anothers property. Water is different. Water use varies with seasons, with weather conditions, and with preferred economic uses. Years may be go by when the public does not use a body of water, and then conditions in the economy, or in weather, or in wildlife populations will provide a reason for the public to make use of a lake, stream or wetlands.
Yes it means you need land owner permission to fish over their land. This includes lots of major lakes lakes and rivers. It would be a nightmare for sportsman resident and non resident. All of those lakes that expanded in the 90’s would likely become private lakes. I would imagine some greedy landowners are seeing green money. I hope this does not pass. I have reservations for this summer in the Webster area if this passes this would my last trip. You would need permission for every landowner whose land you boat over. Also since that bill turn the water private I would assume all fish stocking would cease. Why stock fish for the benefit of private parties. Very bad bill. We enjoy our trip to SD each year.
Mwal
My simplest analogy would be think Red Lake x 10,000. Lots and lots of off limit areas. Scary it passed so easily in the house. This bill is in the Senate committee. Please contact the governor and those in the Senate.
Having read the bill, it clearly states that all meandered lakes and streams would not be impacted, it only applies to nonmeandered bodies (i.e. flooded deeded land/private property that the property owners pay taxes on).
The SD Sportsmen’s groups, which normally advocate reasonable policies I support, seem to have zero respect for private property rights when it comes to this issue. Their position is that under the auspices of the public trust doctrine (which protects all water for the benefit of the people, much like air is a protected resource), ALL water should be able to be recreated on in whatever manner they see fit. Just because a farmers cattail slough has water in it, should that entitle the public to trespass in that slough and fish/pheasant hunt/duck hunt? Many SD farmers have lost considerable tillable ground to flooding in the past 10-15 years, meaning they have lost the ability to farm and make a living from that ground. As if that is not bad enough, should they now they lose all rights they once had on that property and cede it to the public simply because it is wet? Hunting and fishing rights are constitutionally protected rights of landowners in SD; these rights may be utilized, shared with friends, or even sold or leased (they are severable from title). No one seems to think it right that one should legally be able to trespass and hunt on private property; why should people be able to fish (or hunt) when that that property temporarily floods?
If your backyard flooded, would you think it right that the public be allowed to boat in it? Would it be right for ice fisherman to set up shanties outside your bedroom window all winter (when your backyard property line extends 1/4 mile or more from your house)?
If the state of SD wants the public to be able to recreate on (or float above) flooded private property, there is a mechanism in place for the state to acquire an easement to that property, eminent domain. Outside of that, the taking of private property without compensation is not just.
We as sportsmen generally do a pretty good job of banding together when it comes to protecting our constitutional rights, such as is happening lately in fighting the attacks on the 2nd amendment. I don’t understand why many of those same good folks feel it fair to urge the govt to eviscerate property rights simply so they can fish or hunt on someone else’s private property.
No doubt the land owners are getting a raw deal losing lands that most likely they are still paying taxes on. I can only imagine the costs involved to re-survey all those lakes and finding ways to mark the borders. Anything that was “private” in the last 20 years will now be off limits. Cripes, how is that going to be determined?
If this bill becomes law, it will forever change the landscape of the SD prairie. As somone who grew up hunting and fishing public land I’m very saddened to see this. I have so any great memories growing up out there. If Dad and I didn’t have easy access to all those public places I’m not sure I’d be the hunter/fisherman I am today. As good public hunting lands continue to get harder and harder to come by the more pressured those remaining open areas will become. Eventually, only the wealthy will be able to access these great lands.
As sportsman, we should be policing ourselves. You see someone littering or doing something you shouldnt use the tips line. That what it’s for. As sportsman, we should be doing all we can to attempt to weed out those bad eggs. They are a part of the argument for this new law.
I’m suprised the economic impact this will have on SD hasn’t stopped this bill in it’s tracks. Last year the Game & Fish raised the price deer licenses 45%. The reasoning was based loosely around they feel they are on the same level as western states. Which is ironic since they don’t offer nearly as many hunts or public land acres to access. Now a bill like this comes along to take away another 1 million + acres. Again, SD will be forever changed, not for the positive in my humble opinion.
Have you actually read the bill? If anything, the bill should likely open up much more water to public access, provide the comfort of knowing any slough can be recreated upon if not conspicuously posted. If you are basing your perspective on the press releases from the Various sportsmen’s lobbying groups, I’d urge you to read the bill before drawing conclusions.
The bill does NOT close all nonmeandered sloughs/bodies to the public, it gives the property owner the right to post their land if trespassing has gotten so out of hand that their right to the quiet enjoyment of their public property has been compromised (likely in instances where the flooded waters have come near their livestock or their home). If ANY body of water is not posted, it may then be recreated upon provided there is public access via a right-of-way.
Did you know that it is the law in SD that in the case of any MEANDERED body of water (i.e. Lake Thompson and several others), if the level of that naturally occurring lake rises such that more than 5,000 acres of private land is inundated, then the property owners who wish to exclude trespassers from recreating upon their flooded property may do so by requesting that G,F&P post their property for them (via marker buoys or wherever mechanism)? And if the property owners do not object to the water over their property being recreated upon, they may request that G,F&P pay their property taxes on their land under water? Why do you think this is case? Because there exist things called “property rights” that are protected in articles 1 and 13 of the SD Bill of Rights. If the government wants to take land from property owners they may do so, but not without compensation. Here are the laws I am referring to:
43-17-31. Landowner’s right to deny public access to taxable property–Department to clearly mark certain inundated property–Exception. The provisions of §§ 43-17-2 and 43-17-29 notwithstanding, any landowner may deny public access to his taxable property, including inundated property if such property has been inundated for a period of at least three years, borders the water’s edge and lies above the ordinary high water mark of a navigable lake that includes at least five thousand acres of inundated land in private ownership. A landowner who chooses to deny access to his inundated lake property pursuant to this section shall request the Department of Game, Fish and Parks to mark the boundaries of the affected property, and the department shall, upon request, clearly mark the restricted area so that the markings are plainly visible and understandable to a user of the lake. This section does not apply to public highways that are maintained for use by motor vehicles.
Source: SL 1989, ch 379, § 3.
43-17-32. Landowner’s right to deny state agency use of taxable property–Conditions for public access–Exceptions. Any landowner may deny a state agency the use of his taxable property, including inundated property if such property has been inundated for a period of at least three years, borders the water’s edge and lies above the ordinary high water mark of a navigable lake that includes at least five thousand acres of inundated land in private ownership. Any state agency may allow public access for stated purposes to taxable private property if the landowner has given his permission for such access and use and if all taxes paid by the landowner on the property for the period in which the property is open to public use are reimbursed by the state agency. This section does not apply to public highways that are maintained for use by motor vehicles.
Source: SL 1989, ch 379, § 4.
Certainly these laws point to the fact that even the state realizes is is not right that when a landowners property floods, that it become “public property”, and this law applies to meandered lakes where the state owns the original bed!
Do you know how many landowners have actually asked G,F&P to post their water, or have them pay their taxes, since those bills were passed in 1989? Exactly zero, not one.
The alarmist outcry that this bill will close “millions of acres or water to public use” is hogwash. This bill will not close any waters, but it will give a tiny handful of property owners who are significantly negatively impacted by unfettered public recreation upon their private property (near their livestock or their homes) the right to post their property at their own expense. And it will expand public recreational opportunities because it will now be legal to recreate on any slough that is not posted.
In the Parks v Cooper case, the SD Supreme Court held that while all water is held in trust for the benefit of the people (groundwater, surface water, the water in ones swimming pool), it is up to the legislature to decide how, when and by whom water that water may be utilized. There needs to be some compromise between sportsmen wanting to trespass on flooded private property and the constitutionally protected rights of property owners.
Air is a public trust; you cannot pollute the air at your whim because doing so could be severely detrimental to the public good. However, just because the public owns the air doesn’t mean that I can ride a hovercraft in your backyard or hover a helicopter outside your bedroom window. There need to be reasonable limits to the public trust that protect that trust yet also protect the rights of landowners.
Yes I’ve read it. Like any law, it’s open to interpretation. You seemed to be more versed in the “lawyer speak” than I but it’s clear to me our interpretation is very different.
According to your info above, why would they even need this new law that further limits access? It’s clear there are already lots of laws on the books that prevent the abuse of private property.
Quote:
According to your info above, why would they even need this new law that further limits access? It’s clear there are already lots of laws on the books that prevent the abuse of private property.
There are many laws on the books that prevent the abuse of private property, but they simply are not being enforced in a handful of counties. A handful of county States Attorneys feel that large number of laws protecting private property (the definition of trespass is to touch the ground or violate the airspace, the SD constitution guarantees property owners the right to hunt and fish on one’s own property to the exclusion of others, etc.) are simply rendered invalid by the public trust doctrine; is is their opinion or feeling that the public can use any and all water in whatever manner this wish. There is no law that says the public may recreate on nonmeandered waters; this is the very point of the Supreme Courts decision in Parks v Cooper, it is up to the legislature to determine how to balance property rights with the public trust doctrine.
States Attorneys are elected officials. In this case there are many vocal fisherman and hunters who seem more than happy to trespass on private property without asking permission, and in some counties the states attorney (and thus the sheriff or police) will do nothing about this situation because they perceive that there are more people wanting to trespass than there are landowners whose property is being trespassed upon (and thus they are more likely to be reelected if they take this position). It is as simple as that. Some might see this as corrupt, other may feel it is appropriate to take away property owners constitutionally protected rights for the benefit of the public at large (isn’t this a communist philosophy?).
This is all the result of the legislature failing to act when called upon to do so by the Supreme Court in Parks v Cooper.
The opponents against this bill have written op-ed pieces in the major newspapers, they have published alarmist misinformation that has no basis in fact, and are doing everything in their power to convince the public that is law will “change 130 years of water law” and close hundreds of lakes to public use. Nothing could be farther from the truth. While I repectfully disagree 100% with the manner in which the opponents of this bill are fighting it, I’d rather rely on facts, history, laws, logic and the constitution rather than ficticious rants to support my perspective.
Rather than try to work with property owners, some sportsmens groups are advocating that the public should be able to recreate on any ground as long as it is under water in whatever manner they wish. I listened to the debate in the House on the internet, one of the legislators made a point that really resonated with me. He talked about road hunting in SD, where it is legal to shoot at a pheasant that flies out of a road ditch right of way over private property. If a hunter shoots a pheasant that flies out of the ditch over private property, he may retrieve it, but he may not take his gun, and he must immediately upon retrieving that bird leave the private property. But if that same hunter drives down the road a mile, sees a pheasant in the ditch, shoots at it and misses and it flies into a frozen cattail slough, that hunter can walk 1/2 mile into that slough, shoot his limit of pheasants, duck hunt, deer hunt, whatever he wants.
This is just not right. I have read posts on other forums saying that “the fish belong to the people, they have a right to fish for them”. I agree that fish and all game for that matter belong to the people (pheasants/deer/ducks/etc), but I cannot imagine that any sportsman with integrity would think that trespassing on on private property to hunt pheasants is his “right”. How can you justify, when that same property floods, that the public should then be able to fish it or hunt it as they see fit?
Here’s another example that illustrates the current problem. A friend of mine who is a property owner and his son went to duck hunt in their slough where they had built a blind on a small peninsula of dry ground surrounded by cattails that jutted out into their slough. After walking 300? or so yards across a field and into the slough, as they approached the blind they heard voices. There was a boat pulled up into the cattails, anchored in 3 inches of water within 10 feet of the blind. The “sportsmen” in the boat yelled at my friend to to “get the hell away from us, we’ll call the sheriff on you if you don’t leave immediately” and went on and on about harassment laws. That property owner was told by the “sportsmen” that they could not hunt on their own property. A friend of his was fishing by himself in his slough when another boat with three young people saw him catch a fish. They pulled up along side and said “hey old man, why don’t you move your boat and share the wealth, you don’t own this lake.”
There is a real problem that needs to be addressed. It is not right that private property becomes a place of public recreation simply because if floods. At least property owners are coming forward with potential solutions; the sportsmen and GF&P simply see an opportunity to gain new places to fish and hunt (and create more revenue) at the expense of private property owners.
Most sportsmen are staunch supporters of the 2nd amendment; none of us want the government to deprive us of our right to own firearms as protected by the constitution simply because those who want to take our guns may claim doing so will benefit the public. Sporstmen should also respect the fact that the constitution protects fundamental property rights as well. We all must ask ourselves if we want the government to be able to take our property simply because some would argue that doing so would benefit the public.
The Bill of Rights of the SD Constitution reads:
Article VI section 1: Inherent rights. All men are born equally free and independent, and have certain inherent rights, among which are those of enjoying and defending life and liberty, of acquiring and protecting property and the pursuit of happiness. To secure these rights governments are instituted among men, deriving their just powers from the consent of the governed.
Article VI section 13: Private property not taken without just compensation–Benefit to owner–Fee in highways. Private property shall not be taken for public use, or damaged, without just compensation, which will be determined according to legal procedure established by the Legislature and according to § 6 of this article. No benefit which may accrue to the owner as the result of an improvement made by any private corporation shall be considered in fixing the compensation for property taken or damaged. The fee of land taken for railroad tracks or other highways shall remain in such owners, subject to the use for which it is taken
It sounds like a few isolated incidents from a vocal minority is once again driving laws. When I lived in the Watertown area I always asked land owners to access “public” waters. It’s just the right thing to do and it saved me several 
chewings I’m sure.
If the stories your friends relayed are factual, they should have called the sheriff immediately. Operating a boat while intoxicated is illegal and it sounds like the guys who were “trespassing” in your opinion were the ones who were harassing the land owners.
I am very sympathetic to the land owners. I can’t imagine the untold millions lost in crops/hay/grazing ground due to the lake sizes growing. And yet, I’m sure the government is still collecting taxes on that land. I don’t know what the solution is, it seems there has to be a happy medium somewhere.
I’m calling in to tell them to vote it down. Surely there are always disputes between the landowner and the public. Regarding Government property along the reserviors, does the government allow farmers to graze their cattle on such property? Now the lakes that are flooding and many lakes are double the size in 10 years, why does the land owner still pay property taxes? It really sounds that the trouble goes deeper than the public access issue. All water should be public, access to public water can be private, and if a land owner profits from allowing access, good for them. What I don’t understand is how can land under water from public water stiil be private, and still have property taxes being collected off of? I think of Devils Lake. there were a lot of entire farmers, land owners displaced, there’s no ropes keeping you out of a bay because the land under the water is private.
Here’s one of the opinions which impacted my opinion. Heck, we now have to pay property taxes on the enclosed 2 season porches attached to seasonal campers.
“The bill is designed to close nearly every non-meandered body of water in SD to public use and turn it over to private control. The bill essentially says the public owns the water, but can’t use it. The latest figures I have indicate this legislation would close something like 8,000 “permanent” lakes, several hundred thousand seasonal and semi-permanent waters, and innumerable rivers, creeks and streams unless the public could prove on each body of water the right to access by proof of continuous use in an open, notorious and adverse manner for 21 years. This is an impossible standard to meet, and the framers of the bill know it.
There are twelve sections to this bill, and so far I have not identified one single benefit to the public. They’ve even included a section to quiet or punish those persons foolhardy enough to question an access decision made by a lower court. In my opinion, this bill was written primarily with commercial hunting and fishing operations in mind, if not just plain greed, but will hurt every single member of the general public. The financial cost alone to the state will be in the hundreds of millions of dollars.”
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