If you hunt SD - you better read this

[h2ofwlr]

http://www.argusleader.com/story/news/2 ... /99302730/

High court strikes victory for private property rights
Jonathan Ellis , jonellis@argusleader.com Published 4:34 p.m. CT March 17, 2017 | Updated 5:00 p.m. CT March 17, 2017

The South Dakota Supreme Court dealt a victory to private property owners in a ruling that says a state agency doesn’t have the legal authority to allow people access to flooded waters or ice over private property without legislative approval.

The decision represents a blow to South Dakota Game Fish & Parks, which had argued that all water was accessible to the public if it could be reached without trespassing on private land. It also represents a defeat for hunters and anglers who argued that all waters in the state should be accessible to the public.

The decision stems from a lawsuit brought by landowners in Day County against the GF&P as well as a class action against people accessing two sloughs. The two sloughs grew in the 1990s after heavy rains and snows, and in 2001, the public began using them for recreation, even though they were on private property.
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“Members of the public would set up villages of ice shacks, drive their vehicles on the ice, camp on the ice and, according to the landowners, fire guns, blare music, operate loud machinery, get drunk, litter, cookout, etc.,” wrote Supreme Court Justice Lori Wilbur in the court’s opinion. “The Landowners claimed that, on certain days in the spring and fall, over 200 boats would launch into the waters. In the winter, over 70 ice shacks and vehicles would be present.”

The dispute has its roots in the late 1800s when South Dakota’s waters were first surveyed. The survey included lines around lakes and other bodies of water greater than 40 acres that were considered meandered bodies. Water bodies that didn’t meet the requirements were noted on the survey without lines around them, classifying them as non-meandered.

By law, the state owned the land under meandered bodies but private landowners owned title to land under non-meandered bodies, the conclusion being that non-meandered bodies of water were temporary and the land might be suitable for agriculture.

In 2004, the court ruled that all waters belonged to the public. But even so, the ruling stipulated that it was up to the Legislature to decide whether non-meandered bodies of water served a beneficial use to the public.

In the latest ruling, the court noted that the Legislature had considered the issue three times since the 2004 ruling but had not voted to make non-meandered waters open to the public. The ruling also forbids GF&P from facilitating access to the public on waters and ice over private property.

“We’re pleased that the South Dakota Supreme Court has reaffirmed that only the Legislature can authorize hunting and fishing on private flooded lands, and the Legislature has not done so,” said Ron Parsons, who with Jack Hieb represented the landowners. “This is a victory for farmers and landowners, private property rights, and our constitutional separation of powers.”

A spokeswoman with GF&P did not return a message or email.

Agriculture groups including the South Dakota Cattlemen’s Association, the South Dakota Corn Growers Association and the South Dakota Farm Bureau submitted a brief in support of the Day County landowners. They argued GF&P was motivated to open additional lands to hunting and fishing without seeking legislative approval.

“A judicial or bureaucratic decision to open the flooded private lands in northeastern South Dakota to public use would raise serious taking questions because it would subject South Dakota property owners to the risk of repeated and hard to police trespass, nuisance-like conditions, loss of property value, and loss of privacy,” their brief argued.

On the other side, the South Dakota Wildlife Foundation said the waters should be open to the public, arguing it would be “a great wrong” if they weren’t.

[lanyard]

Seems reasonable to me. My assumption, not addressed by the article, is non-meandered land is still taxed.

Additionally, not addressed by this article, is the flooding of meandered waters over private land and connections to formerly non-meandered sloughs.

GF&P knows out of state $ butters their bread.

[h2ofwlr]

per what I have learned from the locals in SD, actually the land owner get both property tax and crop relief too due to flooded areas.

The real bone of contention is when is the water actually public (over 40 acres) VS private. Everything goes back to the 1880s survey and an assumption that was the "normal" water level and thus acreage. There is no account of long term data now at hand that shows what is "normal", which the SD GFP was going by

Make no mistake - this is a $ grab by landowners. And a major defeat for the outdoors people.

[Hansen]

Several years ago I hunted a back water area on Dry Lake and we got permission from the land owner. Half his land was underwater, since dry is many times bigger than back in the 80's, 70's etc. They still have to pay property tax that is under water, lol.

[h2ofwlr]

Actually from I was told by SD residents, he gets property tax relief since it's under water.

[lanyard]

The f'ed upness in this is that the court upheld the ruling because the Legislature didn't have the balls to address the 1880 precedent.

To fix this according to property rights:
1) IF the water floods to public accessible and the landowner chooses property tax relief, then water becomes public access via Meandered rules until such point water shrinks to within non-meandered boundary or is thereby no longer accessible by public access.

2) IF the water floods to public access and landowner chooses to own the the non-meandered property and limit access as per non-meandered, they can do so and pay the freaking property taxes.

But when you have a state population of 850k, property owners going to have helluva lot more pull, particularly since, and correct me if I'm wrong, but out of state hunters/fishers out number of in state participants?

In MN you have 75% of 4 million people amassed in the metro and their spending and 2nd home property taxes make a disproportionate amount of local tax bases. So, the locals don't get much pull on the public waterway issues; however, they maybe get a bit better deal on permitting/variances/etc.

It's all a wash, power to the property owner. Does SD have a program similar to ND PLOTS? I hope the MN WIA program continues to develop and we see it affect more opportunities for access along the PLOTS line.

[Quack]

Make no mistake - this is a $ grab by landowners. And a major defeat for the outdoors people.

Not really a land grab or a defeat. Legislative failure is all. It is, however, a massive failure since there so much flooded land out there.

One interpretation said the landowners can't legally hunt or fish these flooded lands since the legislature has not confronted the issue and permitted such activity in such places.

[lanyard]

^^^^ investing take: the landowners become "adjacent public" with no greater access rights.... that's what I get all policy wonky over, good take

[h2ofwlr]

Panel OKs access to lakes on private land in South Dakota; special session on issue looms
June 6, 2017
Associated Press


PIERRE, S.D. — A South Dakota legislative panel endorsed a set of rules recently for outdoor enthusiasts who want to use lakes on private land for recreation, teeing up a special legislative session on the issue as early as this month.

Lawmakers on the study committee voted 13-2 for a draft bill that restores access to nearly 30 lakes for public recreation hampered after a recent state Supreme Court decision on publicly-owned bodies of water over privately-owned land. The longstanding issue has vexed landowners and outdoor enthusiasts alike.

The study was in response to a high court ruling that said the Legislature must determine if and how the public can use so-called nonmeandered waters for recreation. Since the decision, South Dakota Game, Fish and Parks has limited access to infrastructure on more than 20 lakes in the state.

It came after Day County landowners filed a lawsuit seeking to secure injunctions against hunters and anglers and the department that would prevent public use of lakes on their property.

All waters in South Dakota are public property. Nonmeandered waters are bodies of water — usually smaller in size — that weren’t specially designated during government surveys in the late 1800s.

Bodies of water have since formed on flooded private property and created good fishing, but it’s come at the cost of productive land that agriculture producers have lost.

Republican Sen. Brock Greenfield, the panel’s vice chairman, said the committee tried to recognize the interests of the state, sportsmen, landowners and “main street South Dakota.”

“Our state needs clarity on this issue, and frankly we can’t afford to go a whole summer without the kind of recreation that we’ve currently lost to surrounding states,” Greenfield said.

The bill specifies that lakes on private property are open for recreational use unless a landowner installs signs saying an area is closed. Property owners could grant permission to use the water, but the measure would bar them from getting compensation in exchange for allowing fishing on a lake over their land.

Officials hope to hold a special legislative session soon to consider the proposal, which would sunset in 2021. Gov. Dennis Daugaard in a statement encouraged the Legislature to work together to find a solution to the long-standing issue.

“This bill is a good compromise that balances the rights of landowners with the ability for sportsmen to use public waters for recreation,” Daugaard said.