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  • Love to Troll
    Posts: 116
    #1142865

    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

    Love to Troll
    Posts: 116
    #1142768

    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.

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    Posts: 116
    #1142722

    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.

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    #32169

    Spinner Dave, THAT is a beautiful 8 point! Wow!

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    #610663

    Spinner Dave, THAT is a beautiful 8 point! Wow!

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    #34600

    Here’s a big guy, we’ve got a number of pictures of this deer and he’s BIG bodied (he’s got a nice rack too!).

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    #603302

    Here’s a big guy, we’ve got a number of pictures of this deer and he’s BIG bodied (he’s got a nice rack too!).

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    #34598

    On his way out to pick up a trail cam yesterday my brother had a close encounter with the herd; lots of bucks already sparring (he got before and after pics of a big four point poking a 16 point in the butt… ouch!). Here’s the before…

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    #603299

    On his way out to pick up a trail cam yesterday my brother had a close encounter with the herd; lots of bucks already sparring (he got before and after pics of a big four point poking a 16 point in the butt… ouch!). Here’s the before…

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    #33601

    Wow Fishsjj! If that guy is a 10 pointer he’s somethin’ else! LONG tines! Nice buck!

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    Posts: 116
    #597243

    Wow Fishsjj! If that guy is a 10 pointer he’s somethin’ else! LONG tines! Nice buck!

Viewing 30 posts - 1 through 30 (of 108 total)