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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