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.