Posts Tagged ‘14th Amendment’

A few thoughts about why I think the Non-Meandered waters draft legislation is bad

June 9, 2017 2 comments

Highway 81 South of Arlington. Photo by Ken Santema 6/9/17.

Edited 6/10/17 – Changed wording about the lawyer as the old wording made is sound like he represented families in non-meandered waters lawsuits.

Yesterday I posted a look at the draft non-meandered waters legislation which the legislature will vote on in a special session on Monday. As I  mentioned in that post, I really do not like this bill  and hope it is defeated in special session. In this post I will look at a few reasons I oppose the bill. I will also mention that even though I am a sportsman, I am coming at this purely from a landowner perspective. There are sportsmen groups out there giving many good reasons for sportsmen to oppose this bill.

The good of the bill

Even though I oppose the bill I do think there are a few good parts to it. I thought it might be worth mentioning those parts there. I like the fact there is a liability clause added for non-meandered water which has been opened to the public. There is no reason the landowner should burden the cost of any accidents which occurs on waters landowners are forced to open to the public. Second, I like that there is a sunset. If the bill ends up making matters worse (which I think it will) there is hope it will go away. That about sums up the really good parts of the bill.

First bad thing: This bill does not come from the legislative committee

I will only mention this briefly. The legislative committee did not write this bill. They did a little amending to the bill during the final committee meeting, but overall this is not their bill. It appears the legislation was written by lawyer and lobbyist Matt McCaulley, who also represents landowners as a lobbyist during these proceedings. The Governors office and GFP also seem to have had major input into the drafting of the bill.

I commend some of the legislators for getting out there and listening to the concerns of constituents. But in the end the solution going forth is not one created by the legislature. Instead it was created by a special interest lawyer, the GFP, and the Governor’s Office.

Property rights are important!

For this section I will defer to part of what Rep Elizabeth May (R, Dist 27) posted on Facebook.

Both the Fifth and the Fourteenth Amendments to the Constitution provide “due process” protections for “life, liberty and PROPERTY” We hear a lot about courts and POLITICIANS protecting the rights to life and liberty – but we don’t hear so much about PROPERTY. Property rights are clearly as important as other individual rights in the US Constitution that protects the individual right to ownership of private property against infringement by national and state government power.

As Rep May says, the Fifth and Fourteen Amendments are in place for a reason.

Here is the text from the Fifth Amendment. I have highlighted the important portion:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

 As written this draft legislation opens a landowners property. The landowner does have a way to mark their property off-limits. Yet the way the law is written opens the landowners property up to the public by default. To make matters worse there are some waters, called the Section 8 lakes, which are being treated differently. These lakes are automatically opened to the public and cannot be marked off unless the landowner can convince the GFP commission why any particular portion of the lake should be closed. These landowners are definitely being deprived of property without due process.

Which leads us to the Fourteenth Amendment:

All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Just as with the Fifth Amendment, the Fourteenth Amendment ensures the State does not deprive any landowner of their property without due process. But even more, the Fourteenth Amendment also ensures people within the State have their rights equally protected. To expand upon this I will defer to an article written by David Ganje for the Farm Forum:

The bill legalizes discrimination among the lakes. The plain meaning of words used in the bill create two sets of laws for nonmeandered waters. The bill does this by using the word ‘notwithstanding.’ The late Justice Scalia in a book on statutory interpretations wrote that to use the word ‘notwithstanding’ performs a function opposite that of ‘subject to.’ The bill language ‘Notwithstanding the provisions of this Act’ indicates the provisions which follow the clause are not subject to the other provisions of the Act. The designated lakes listed in the bill, and any landowners owning land underneath the lakes, are not subject to the rules, protections and provisions of the rest of the bill. The bill creates two sets of laws. One for the designated lakes identified in the bill and another set for all other nonmeandered lakes. To explain the correctness of this reading, one need only look at the section of the bill following. Under that section, a landowner on a designated lake must first seek permission from the state before he might put up signs or markers over his property. Other nonmeandered landowners can put up signs. The rights, duties and liabilities of the landowners under the designated lakes are not the same as the rights, duties and liabilities of the landowners under all other nonmeandered lakes.

I would highly recommend reading the whole article here. Ganje lists many reasons to oppose this legislation. I wonder how long it will take before a landowner sues the state just for the reasons Ganje states above.

The public trust doctrine does not mean there has to be access to the water by the public

I’ve spent more time than I thought possible researching the public trust doctrine (for a different project). Nothing in my research leaves me to believe the public trust doctrine means that anyone in the public, including sportsmen, have a right to water over private property. And from reading the SD Supreme Court cases,  I don’t see where the legislature has to open up any waters for recreating. Instead the Supreme Court said it is up to the legislature to decide whether recreation would be a beneficial use.

Now, at the same time the current state law does not seem to allow landowners to utilize these non-meandered waters. There are some special exceptions for landowners to use water, such as for irrigation and dams to water cattle. But overall it would appear nobody should be doing anything with non-meandered waters. This is where the legislature should be focusing. Make a law that clearly states how waters on private property should be treated.

Game, Fish, and Parks already has too much power

Actually my biggest heartache with this proposed legislation has to do with giving the GFP regulatory authority over all non-meandered lakes. Part of the bill gives the GFP the power to regulate “The management, use, and improvement of all … nonmeandered lakes … for the purpose of water conservation or recreation”. There are no restrictions saying this is only for nonmeandered lakes with public access. There are no restrictions about the size or age of a lake.

Actually the definition of a lake is itself a problem. During testimony it was mentioned that lakes are defined in an Administrative Rule, specifically 74:51:01:01. Here is the definition of lake from that rule:

“Lake,” a pond, reservoir, or other body of water, created by either natural or artificial means, but not a pond or appurtenance that is used for the treatment and disposal of wastes and that is permitted for such uses

I don’t think this definition really reduces the qualms many have. Why would the legislature agree to give GFP regulatory access over non-meandered waters; especially when it appears any little puddle on a field could be counted as a non-meandered lake.

It might be worth mentioning that the GFP is one of the (if not the) largest law enforcement agency in the state. The GFP is not the tree-hugging bear-loving rangers from kids cartoons. The GFP officers are gun-carrying law enforcement officers with search and seizure powers other law enforcement agencies don’t have. Additionally the GFP has a highly closed budgetary process and no true oversight from outside of the executive branch. Some will say the GFP is overseen by a board, but this board is appointed by the Governor and at times seems to be more of a board which enables the GFP to do whatever  it wants. I would be much better if the GFP Commission actually provided oversight and was chosen by either the people or the legislative branch.

Words from a landowner on 81

Here is a short audio clip worth listening to. It was the testimony given by a landowner before the legislative committee. I think this landowner does a good job relaying the frustrations many farmers are feeling.

Semi-final thoughts

I have more reasons to oppose this bill. yet I am already making this post much longer than I intended. If I have time before the special session I shall post more about why I hope this bill is defeated.

The Fourteenth Amendment – a way for the President to raise the debt ceiling?

January 5, 2013 2 comments

458px-14th_Amendment_Pg1of2_ACPolitico posted an interesting story about Democrats asking Obama to raise the debt ceiling via power granted in the Fourteenth Amendment. The Fourteenth Amendment was passed after the Civil War. Together the Thirteenth, Fourteenth, and Fifteenth Amendments are called the Reconstruction Amendments.

Since this issue has come up I think its important for citizens to actually ready the Fourteenth Amendment. I will continue my thoughts below the text of the Fourteenth Amendment.



All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.


Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the executive and judicial officers of a state, or the members of the legislature thereof, is denied to any of the male inhabitants of such state, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state.


No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.


The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any state shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.


The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

This is actually a pretty powerful amendment. It gave citizenship to the slaves and forbids States from depriving any person “of life, liberty or property, without due process of law”. In addition the Civil Rights Act of 1964 and the Voting Rights Act of 1965 used the power from this Amendment to become reality.

It’s easy to understand how this is a landmark amendment. But how does it possibly give power to the President to raise the debt ceiling without Congress?

Here is the first sentence in Section 4:

The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned.

According to Democrats this gives the President authorization to raise the debt ceiling without question. This interpretation has been brought up before when the Federal Government hit the debt ceiling. I don’t agree the Fourteenth Amendment gives the President debt ceiling power.

As I understand Section 4 of the Fourteenth Amendment it was designed to do two important things:

  1. It ensured the Federal Government had to pay its Civil War debt. This is the first sentence of Section 4.
  2. It ensured the Federal Government was not responsible for debt incurred by the Confederation.  This is the second sentence of Section 4.

I do take this to mean that the Federal Government cannot default on legally authorized debt. But I don’t see how this gives power to the President to change the debt ceiling. Since I am not a law scholar I cannot say for certain my understanding is correct. Hopefully Obama will stick with his word and not invoke this amendment; and if he does decided I hope he asks the Supreme Court for an opinion.

No matter what I find it worth reviewing the Fourteenth Amendment. It’s always a good idea for citizens to read and understand our Constitution and all of its Amendments.

%d bloggers like this: