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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.

Non-meandered waters special session on Mon June 12, posts forthcoming

June 7, 2017 Comments off

This afternoon SD Governor Dennis Daugaard called the special session to deal with non-meandered waters will be on Monday, June 12, at 10:00 am. Here is the press release sent out by the Governor’s office:

PIERRE, S.D. – Gov. Dennis Daugaard has called a special legislative session to consider legislation relating to public recreational use of non-meandered waters overlying private property.

After consulting with legislative leaders from both political parties, the Governor is calling the special session for Monday, June 12, 2017, at 10 a.m. CDT, at the State Capitol in Pierre.

“The interim legislative committee considered hours of testimony and struck a good compromise that balanced the rights of landowners with the ability for sportsmen to use public waters for recreation,” said the Governor. “I hope the Legislature can act quickly to resolve this long-standing issue.”

I will have a post looking at the current draft legislation posted some time tomorrow (June 8). Following that I will have a post giving my opinion of the legislation. Spoiler alert: I do not like the current legislation at all in its current form and hope the Governor’s office has not been able to strong-arm the 2/3 votes necessary to pass the legislation. This legislation may fix the tourism industry crisis created by the Governor’s office and GFP, but is a direct attack on property rights. Actually many sportsmen groups also feel the current draft legislation is an attack on public doctrine rights.

I plan to be in attendance on June 12 to witness this special session in person. We will see how many legislators make it (any legislator unwilling or unable to make the trip are an automatic no vote!).

DOR decides against forcing farmers market in Sioux Falls to collect tourism tax

May 26, 2017 Comments off

Farmers market

Two days ago I published a post about the SD Department of Revenue (DOR) trying to force the farmers marking in Sioux Falls into collecting an additional 1.5% tourism tax. Actually I think just about every media organization in South Dakota did at least some coverage of the story. Apparently that caused enough of a backlash that the Department of Revenue has changed its mind. Here is what KELO is reporting:

However, Secretary of Revenue Andy Gerlach reviewed the case and determined the tax wasn’t applicable. He says the majority of people going to the market are consumers, not necessarily tourists.

He says any money the vendors have collected will be refunded back.

Gerlach calls the situation unique, but they will look at other cases in the state, and will talk with legislators about potential changes if the department sees a need.

It is good Gerlach decided to reverse the decision made by the DOR.  But this is not the first time the DOR has suddenly decided a sales tax should be collected in new ways. A few years ago the DOR suddenly decided that baseball coaches paid by the American Legion should be paying sales tax. This was due to a sudden reinterpretation of law by the DOR. To his credit Sen Brock Greenfield  (R, Dist 2) tried to fight the the DOR on the sudden reinterpretation of sales tax law; and tried to bring forth legislation to reverse the DOR’s decision a couple of times. Greenfield was even able to get SB 159 (SoDakLiberty Posts) passed through both chambers in 2015 to exempt American Legion and VFW coaches from sales and use tax. But the bill was vetoed by Governor Dennis Daugaard; who also happens the be the top elected official above the DOR.

As I said earlier this week, I think something needs to be done to keep state agencies from arbitrarily changing how the laws are interpreted. State departments should have to go through some sort of public and legislative review process before doing so. Doing so might prevent more state agency overreaches in the future.

A farmers market tourism tax? Should state agencies have to hold a hearing before reinterpreting rules?

May 24, 2017 Comments off

Farmers Market

The Argus Leader has an interesting story about the SD Department of Revenue (DOR) forcing a farmers market in Sioux Falls to collect an additional 1.5% tourism sales tax on the goods sold. There apparently has been a battle between the farmers market and the DOR over whether the farmers market should be subject to the tax. Here is what the article says about the DOR’s stance:

The state says because the market is held at Falls Park, a major tourist destination for the city of Sioux Falls, it is subject to the state’s tourism tax and could be subject to three-year’s worth of back taxes.

To keep the vendors from having to owe three years of back taxes a deal was worked out “allowing” vendors to collect the extra tax going forward. Doing so the DOR said the state agency will not go after the back taxes they say are due to the state. The article goes on to state the vendors are not happy about the agreement, but they will do so in order to keep operating; especially since the DOR could find a way to impose the tourism tax if they moved to a new location.

The reasoning behind the DOR’s move is that the farmers market is held in Falls Park, which is a tourism destination for Sioux Falls. As such sales made at the park are subject to the tourism tax. But the farmers market is not a tourism draw, and according to the vendors few sales are actually made to non-residents.

As I read the DOR’s publication on the tourism tax I see Falls Park likely falls under the “Visitor Attraction” purpose of the tourism tax. So, since the farmers market is being held on a site that could be classified as a visitors attraction, the DOR wants to treat the farmers market as subject to the tourism tax. Previously the farmers market has not been subject to the tourism tax. It is only now, after the Daugaard administration is looking for more revenue sources due to declining sales tax income for the state, that the DOR seems to be finding new areas to collect taxes.

Personally I believe this use of tourism tax goes against the intent of the law. Using the same reasoning as the DOR I could see many other farmers markets in the state being forced to pay the tourism tax. For instance, here in Aberdeen the farmers market is held at Central Park. This park also occasionally hosts special events such as concerts, which are subject to the tourism tax. Is the DOR now going to go after the vendors at the farmers market in Aberdeen and tell them they must pay three years worth of back taxes? By their reasoning with Falls Park I could see the DOR making the same case for Central Park.

But to me the more important question is whether the DOR should be allowed to reinterpret current laws and regulations without a public hearing. Currently state agencies must go through a public rules review process anytime they create a new regulation or change and existing regulation. Yet there is no process in place for when state agencies decided to reinterpret current laws and regulations. In fact state agencies don’t even have to notify the public. State agencies can simply mail threatening letters to people they believe are breaking their new reinterpretation of the law; as they did in this case.

Perhaps it is time for the legislature to change the rules review process. A legislator could bring forth a bill in the 2018 session requiring state agencies to follow the same rules review process for reinterpretations of rules that must be followed for rule additions or changes. This would ensure the public is able to get their say on the new reinterpretation of rules and the legislative rules review committee can possibly stop rule reinterpretations before they are implemented.  In this case the DOR will simply try to state they are not reinterpreting a law or regulation, but they are instead enforcing a law that had not been previously enforced. But I would contend that would fall within the definition of a rule reinterpretation. Making state agencies answer to the public about reinterpretations in rules would at least add some transparency and accountability to those same state agencies.

PS. It will be interesting to see if the SDDP decry’s the DOR’s move to add more tax to food. The SDDP legislators in Pierre have tried many times to repeal any sales tax on food; and here we have the DOR trying to add a 1.5% sales tax on healthy food.

Daugaard signed Executive Order to rename WTN readiness center

September 27, 2016 Comments off

Generally I don’t care about the names of facilities; at least not in regards to this blog. But since I have been tracking Executive Orders from Governor Daugaard I guess I better at least give a small mention of this name change. Here is the Executive Order issued by Daugaard on September 15:

SD Executive Order renaming Readiness Center in Watertown. Downloaded from SD SOS website.

SD Executive Order renaming Readiness Center in Watertown. Downloaded from SD SOS website.

Basically this renames the National Guard’s Watertown Readiness Center to the Brigadier General Ernie Edwards Readiness Center. There will be an official renaming ceremony on October 2 for any of the public that wish to attend.

Drought condition executive order was rescinded by Daugaard on Sept 8

September 27, 2016 Comments off

Back in July I noted Governor Daugaard had filed an executive order declaring a state of emergency due to drought conditions in western South Dakota. In August I also did a short post about the Drought Task Force website created to deal with the drought. As of September 8th this emergency is apparently officially over. Here is the new executive order from Daugaard rescinding the original executive order declaring a state of emergency:

Executive Order rescinding drought state of emergency. Downloaded from SD SOS website.

Executive Order rescinding drought state of emergency. Downloaded from SD SOS website.

The drought conditions have definitely improved. Here is a screenshot of the drought conditions from July 19.

Screenshot of SD Drought Monitor conditions on July 19 from the US Drought Monitor website.

Screenshot of SD Drought Monitor conditions on July 19 from the US Drought Monitor website.

Here are the drought conditions as of September 20:

Screenshot of SD Drought Monitor conditions on Sept 20 from the US Drought Monitor website.

Screenshot of SD Drought Monitor conditions on Sept 20 from the US Drought Monitor website.

Hopefully the turnaround in drought conditions have helped ranchers and farmers in western South Dakota.

SD Executive Appointments listed in Sept 6 and Sept 12 registers, appointments to the School Finance Accountability Board

September 21, 2016 Comments off

21786041September had a good number of executive appointments and reappointment made by South Dakota Governor Dennis Daugaard. The September 6 and September 12 South Dakota LRC Registers list the appointments made in the latter part of August. One interesting thing to note with this round of executive appointments is filling the new School Finance Accountability Board; I will look briefly at that board in this post.

Below I will look briefly at the new School Finance Accountability Board. Then I have provided a list of the executive appointments and executive reappointments. If I find anything interesting about any of these appointments I’ve included that information.

School Finance Accountability Board

This is a new board created during the 2016 legislative session. Specifically the policy bill SB 131 (SoDakLiberty Posts) which accompanied the Governor’s sales tax increase is where the authority for this new School Finance Accountability Board comes from.

Here is how the board is described on the Board and Commissions website:

The board will review appeals from school districts who, due to special circumstances, fail to comply with the provisions for increases in teacher compensation set forth in SDCL 13-13-73.6 and for general fund cash balance caps set forth in 13-13-73.5. Additionally, the School Finance Accountability Board shall promulgate rules, pursuant to chapter 1-26, to establish the appeals process provided for in SDCL 13-13-73.6, and to establish the factors that may be taken into account when considering a waiver requested by a school district in meeting the provisions for increases in teacher compensation , which shall include the impact of retirements.

The board already met on September 9. Looking at the minutes it appears the meeting was mostly about electing the president/vp and figuring out what their job was.

Governor Daugaard made the five appointments to this board, which appear later in this post.

Executive Appointments

Jason Dilges, Pierre, was appointed on August 24, 2016, to the School Finance Accountability Board, effective immediately and shall continue until June 30, 2020.

Dilges is the Commissioner of the State’s Bureau of Finance and Management.

Jarod Larson, Brandon, was appointed on August 24, 2016, to the School Finance Accountability Board, effective immediately and shall continue until June 30, 2020

Larson is the superintendent of the Brandon school district.

Mike Lodmel, Colton, was appointed on August 24, 2016, to the School Finance Accountability Board, effective immediately and shall continue until June 30, 2020.

Lodmel is the superintendent of the Tri-Valley school district.

Susan Proefrock, Belle Fourche, was appointed on August 24, 2016, to the School Finance Accountability Board, effective immediately and shall continue until June 30, 2020.

Proefrock is the business manager for Belle Fourche school district.

Eric Stoeder, Glenham, was appointed on August 24, 2016, to the School Finance Accountability Board, effective immediately and shall continue until June 30, 2020.

Stoeder is a Mobridge school board member.

Carla J. Borchardt, Sioux Falls, was appointed on August 25, 2016, to the South Dakota Board of Nursing, to fill a new position, effective immediately and shall continue until October 30, 2016.

Borchardt fills an RN position on the board.

Scott A. Duke, Sioux Falls, was appointed on August 26, 2016, to the South Dakota Public Safety Communications Council, to replace Rebekah Cradduck, effective immediately and shall continue until June 30, 2019.

Duke is the President of the South Dakota Association of Healthcare Organizations

David Goodwin, Black Hawk, was appointed on August 26, 2016, to the South Dakota Public Safety Communications Council, to replace Dalton Myers, effective immediately and shall continue until June 30, 2019.

Goodwin holds a position on the board on behalf of the South Dakota National Guard.

David Kull, Brandon, was appointed on August 26, 2016, to the South Dakota Public Safety Communications Council, to replace Brandon Semmler, effective immediately and shall continue until June 30, 2019.

Kull fills a position on behalf of the South Dakota Police Chief’s Association.

Dr. Mike Rush, Pierre, was appointed on August 26, 2016, to the Research and Commercialization Council, to replace Dr. Jack Warner, effective immediately.

Rush fills the position as the Executive Director, SD Board of Regents.

Scott Stern, Pierre, was appointed on August 26, 2016, to the Research and Commercialization Council, to replace Pat Costello, effective immediately

Stern is on the board as the newly anointed  Commissioner of the Governor’s Office of Economic Development

Jeffory Erickson, Sioux Falls, was appointed on August 31, 2016, to the South Dakota Economic Development Finance Authority Board of Directors, to replace Stephen Jones, effective immediately and shall continue until June 30, 2020.

Don Kettering, Yankton, was appointed on August 31, 2016, to the South Dakota Economic Development Finance Authority Board of Directors, to replace Mike Kellar, effective immediately and shall continue until June 30, 2017.

Executive Reappointments

David Ackerman, Leola, was reappointed on August 25, 2016, to the South Dakota Public Safety Communications Council, effective immediately and shall continue until June 30, 2019.

Ackerman represents the South Dakota Sheriff’s Association on the board.

J. D. Geigle, Spearfish, was reappointed on August 25, 2016, to the South Dakota Public Safety Communications Council, effective immediately and shall continue until June 30, 2019

Geigle represents the South Dakota Emergency Medical Technician’s Association on the board.

Dennis Gorton, Rapid City, was reappointed on August 25, 2016, to the South Dakota Public Safety Communications Council, effective immediately and shall continue until June 30, 2019.

Gorton represents the South Dakota Fire Fighters Association on the board.

Harold Timmerman, Canton, was reappointed on August 25, 2016, to the South Dakota Public Safety Communications Council, effective immediately and shall continue until June 30, 2019.

Timmerman represents the South Dakota Emergency Managers Association on the board.

Matt A. Tooley, Sioux Falls, was reappointed on August 25, 2016, to the South Dakota Public Safety Communications Council, effective immediately and shall continue until June 30, 2019.

Tooley represents the South Dakota APCO/NENA Chapter on the board.

Bob Wilcox, Pierre, was reappointed on August 25, 2016, to the South Dakota Public Safety Communications Council, effective immediately and shall continue until June 30, 2019

Wilcox represents the South Dakota Association of County Commissioners on the board.

Larry Jandreau, Lower Brule, was reappointed on August 25, 2016, to the South Dakota Public Safety Communications Council, effective immediately and shall continue until June 30, 2019.

Jandreau is the Tribal Government Representative on the board.

Bradford J. Wheeler, Lemmon, was reappointed on August 25, 2016, to the Research and Commercialization Council, effective immediately and shall continue until June 30, 2018.

Wheeler fills a Member at Large position on the board.

Terry G. Nelson, Black Hawk, was reappointed on August 31, 2016, to the South Dakota Economic Development Finance Authority Board of Directors, effective immediately and shall continue until June 30, 2020.

Vernon Brown, Sioux Falls, was reappointed on August 29, 2016, to the South Dakota 911 Coordination Board, effective immediately and shall continue until June 30, 2019.

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