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Viewpoints from a couple of sportsmen groups opposed to the draft non-meandered water legislation

June 10, 2017 1 comment

Yesterday I published a post explaining why I think from a property rights perspective the draft non-meandered waters legislation is bad. I do understand there will be some give/take in the final solution (which may or may not be the draft legislation). I’ve had some people ask me to post some points the sportsmen groups are opposed to. In this post I will look at what a couple of sportsmen groups are saying is bad with the current draft legislation.

First there is an opinion piece published in the Rapid City Journal by Chris Hesla, South Dakota Wildlife Federation Executive Director. The SDWF currently opposes the draft legislation. Here are a few reasons given by Hesla:

This bill allows private individuals to close public waters overlying private property without public input and without a process for the public to petition to open closed waters. This is not balance. Balance is, at the least, allowing the public a right to petition to open closed waters.

Further, this bill allows mass commercialization of a public resource. Although the bill prohibits landowners from receiving financial compensation in exchange for granting permission to fish closed public waters, it does not prevent other types of compensation; does not apply the same restrictions to lessees; does not prevent an owner from receiving financial compensation in exchange for granting other access including hunting; and does not prevent individuals from forming a legal entity that purchases submerged property and then allows exclusive access to members/shareholders. This is not balance. Balance is either opening public waters to all or closing public waters to all.

Hesla also notes that the legislature never actually states recreational use is a beneficial use for waters of South Dakota. For the last couple of months the SDWF has been promoting its twelve words fix to South Dakota Water Law. This fix would have modified SD Codified Law 46-1-3; the law which says that water is the property of the people. Here is the current text of this law:

 It is hereby declared that all water within the state is the property of the people of the state, but the right to the use of water may be acquired by appropriation as provided by law.

Here is the 12 word fix promoted by the SDWF, the language they would add has been underlined:

 It is hereby declared that all water within the state is the property of the people of the state, and recreational use is a beneficial and lawful use of these waters.  but the right to the use of water may be acquired by appropriation as provided by law.

That particular solution did not gain any traction with the summer study committee.

I’ve also seen many sportsmen and sportsmen groups passing around links on social media asking them to utilize the Take Action listed on the Backcountry Hunters & Anglers website. Here is the letter the group wants people to send to the Governor and state legislators (plus some personal words added, always a good idea when sending form letters):

South Dakota hunters and anglers ask you to join us in defending public recreational use of the state’s non-meandered waters by working with sportsmen on a more realistic legislative solution which honors the state’s obligation to manage the state’s waters under the public trust, for the benefit of the people of South Dakota.

While improvements have been made, the current draft legislation would allow the privatization of the public access to public waters that has been enjoyed by generations of sportsmen. We urge the legislature to amend the bill in the following ways:

-Section 6 needs to prohibit any fee for access to public waters for hunting, fishing, and other recreation.
-Section 5 and section 9 need to specify that if a body of water is closed to public recreation, it must be closed for everyone including the landowner.
-Section 9 needs to include a process whereby the public can petition to have a portion of a water opened for public recreational use.

Public recreational use of the state’s waters helps sustain 13,380 jobs and $69,457,706 in state and local taxes generated from hunting, fishing, boating and wildlife viewing annually. Any loss in public water access threatens this growing economic driver, as well as the ability of future generations of sportsmen to enjoy our state-owned waters.

This particular letter does specifically call out sections 5, 6, and 9 as needing changed from a sportsmen perspective. I think the group did a good job of explaining why they think these sections are bad.

I do understand where the sportsmen groups are coming from. Like most people I want to find a solution which allows the recreation industry in South Dakota to flourish while respecting property rights. It should be interesting to see what happens during the special session on Monday.

Video: Non-meandered waters meeting in Webster, this one was more landowner oriented

June 1, 2017 Comments off

Large crowd at the non-meandered waters meeting in Webster.

Last night I attended a non-meandered meeting at The Galley in Webster. The meeting was organized by the Webster Area Chamber of Commerce. The purpose of this meeting was to provide an updated to the public about the current draft legislation and receive input from the public. I attended and recorded the meeting for all to view. This meeting was interesting because it was more property-owner oriented; as opposed to the previous meeting I recorded in Watertown, which was more sportsman oriented. This meeting accepted questions and comments directly from the public.

Here is the list of speakers at the event:

  • Marcia Lefman – Marcia opened the meeting as a representative of the Webster Chamber of Commerce. My hats off to her and others for organizing this event on very short notice!
  • Sen Jason Frerichs (D, Dist 1) – Frerichs is a member of the Summer Study trying to come up with a solution to some of the non-meandered waters issues.
  • Rep Steven McCleerey (D, Dist 1) – McCleerey is also on the non-meandered waters summer study.
  • Mark Ermer – Ermer works for GFP in Webster as the Regional Program Manager- Fisheries at South Dakota Game, Fish and Parks.
  • Mike Klosowski – Klosowski is out of the Watertown GFP office and is the NE SD Regional Conservation Officer Supervisor.

In the audience Paul Dennert was in attendance; who happens to be one of the GFP Commissioners. Also in attendance from the state level was Rep Drew Dennert (R, Dist 3).

This was a huge crowd. I would estimate there were over two-hundred in attendance, probably closer to two hundred and fifty.

Below is the video of this event. It is just under one hour and forty-five minutes long. The video can alternatively be viewed directly on YouTube.

Tomorrow is the next and possibly final meeting of the Summer Study. I plan to be in attendance to see first-hand what occurs.

Non-meandered waters meetings in Webster and Rapid City on Weds May 31

May 30, 2017 Comments off

Ducks on a lake

The final (maybe) meeting of the Regulation of Access to and Use of Non-Meandered Waters on Public and Private Property Study legislative committee this Friday, June 2; which will lead into a likely July 12 special session for the legislature. With the issue of non-meandered waters being so important there have been public meetings announced around the state to discuss the issue. Earlier I noted a meeting will happen tonight (May 30) in Sioux Falls and a meeting tomorrow (May 31) in Watertown. I now have information about two more meetings, one in Webster and one in Rapid City.

The Webster meeting is being held on Wednesday, May 31, at 7:00 pm at The Galley. Here is the information about the meeting from the Webster Area Chamber of Commerce Facebook Event:

Hello:
Please pass the word to everyone that there will be a discussion in Webster on Wednesday, May 31 at 7 p.m. at The Galley, 230 Hwy 12, Webster to talk about the non-meandered waters use.

The State Legislature must determine whether and how the public may use non-meandered waters for recreational purposes. State leaders are encouraging everyone to stay informed as the Legislative Task Force works toward a solution. The Webster Area Chamber of Commerce has helped organize the event and it will just be an update on our status and gather some feedback.

We are happy to host Senator Jason Frerichs (serving Brown, Day, Marshall and Roberts counties) along with the House Representative Steven McCleerey (serving Brown, Day, Marshall & Roberts counties) plans to attend and possibly Senator Brock Greenfield (serving Brown, Clark, Hamlin & Spink counties) if it works in his schedule. Also, South Dakota Game, Fish and Parks will be there along with various stakeholders.

We need all of you there so you’ll stay informed and help input your thoughts concerning this issue so that our State Legislature will consider your feedback when putting this into law for the state.

Everyone is welcome. Please join us!

Sincerely,

Marcia Lefman
Secretary/Treasurer
Webster Area Chamber of Commerce

I had originally planned on going to the Watertown event tomorrow. But I’ve already attended and recorded one Watertown event, and Webster is closer to me, so I believe I will be attending the Webster meeting.

The Rapid City meeting is somewhat less of a public event, but it might be interesting for people in that area to attend. It is being hosted by the Prairie Hills Audubon Society (PHAS). I believe this is the regular meeting of the PHAS, but it does say everyone is welcome on their webpage. Here is the info about the event from the PHAS website:

May, 31st, Wednesday eve, Topic: Non-meandered Waters Legislative Summer Study and associated issues

Prairie Hills Audubon Society evening meeting
Outdoor Campus West, Rapid City
6:30 pm start.

If you scroll down the front page of the PHAS website there is actually quite a bit of good information and links for people trying to understand the issue of non-meandered waters. As Cory Heidelberger over at Dakota Free Press points out, the PHAS is opposed to the current draft legislation. I think it is important for all parties in support or opposition of this legislation be heard.

I would urge anyone able to attend the meetings in Webster, Watertown, Sioux Falls, or Rapid City to do so if possible. And if anyone hears of any other meeting please let me know. I’ll bring some attention to it here, and I will attend if possible.

Legislators may want to have multiple options available going into a possible special session

May 27, 2017 Comments off

Slough or lake?

On June 2 the  Regulation of Access to and Use of Non-Meandered Waters on Public and Private Property Study legislative committee will meet to look at draft legislation for a possible June 12 special session. The current draft legislation will likely be updated before the June 2 meeting so they can hammer out a version of the legislation they feel will pass both chambers of the Legislature in special session. The committee members might want to consider having backup legislation in case their favored solution is not able to get that two-thirds majority. A two-thirds majority will be necessary because whatever legislation is passed will need to be passed into law immediately; without that emergency clause the legislation would have to wait 90 days to take effect.

One possible thing for the committee to do is split the current legislation into multiple smaller bills. Yes the current bill was written as one package, but parts of that package may prevent the overall bill from passing. They can possibly break it into smaller bills in the following categories:

  • Force the GFP to reopen access to the non-meandered lakes where they shut down access. This would be minus the lakes involved in the lawsuits. Getting this bill passed would solve the current crisis for the fishing industry in NE SD. It however would not solve ANY of the problems dealing with non-meandered lakes.
  • Provide access to non-meandered lakes from public right-of-ways.
  • Allow landowners to mark their section of a non-meandered water off-limits. This part of the bill might keep the overall bill from passing anyhow, so splitting it out may help.
  • Release landowners from liability on non-meandered waters the public accesses.
  • Give GFP regulatory authority over non-meandered lakes. This is another part of the bill I could see preventing the overall larger bill from passing.

Splitting out the larger bill into smaller bills like that might allow the special session to avoid a long and fruitless battle. There is also a chance legislators could make a point of order on the larger bill and say it goes against the SD Constitution because multiple topics are included in the bill. Splitting the bill apart avoids that possibility.

Personally I think the legislature should pass just three bills. Here are the three bills I would pass:

  1. Pass a bill forcing the GFP to reopen the access to the non-meandered lakes they barred entrance to after the supreme court ruling. The lakes involved in the lawsuit would probably have to be exempt and remain closed in this approach. I would also add a sunset to this bill of March, 2018. This will allow NE SD to get past its current crisis and force the legislature to come up with permanent long-term solutions before the end of the 2018 session. There might need to be a little more to this bill, but basically this bill is to reset things to how they were before the Supreme Court decision. This isn’t the most ideal thing to do, but if the legislature isn’t able to come up with a compromise during a special session this will buy a little more time.
  2. Pass a bill releasing landowners from liability on non-meandered waters the public accesses. This is something which should have always been in law from my perspective.
  3. Pass a bill extending and funding the Regulation of Access to and Use of Non-Meandered Waters on Public and Private Property Study legislative committee. Actually I think this bill needs to be passed no matter what happens. There are a LOT of issues with non-meandered waters and only a few of them are going to be dealt with in a special session. This committee needs to keep working up until the 2018 legislative session so the legislature can find long-term solutions and stop kicking the can down to future sessions.

Now I’m sure there are other and possibly better contingency plans for the legislature to follow. But no matter what I think the legislature has to come up with some sort of plan if the body is unable to get a 2/3 majority on the draft legislation coming out of the June 2 meeting.

Sioux Falls public meeting about Meandered and Non-Meandered waters on Tues May 30

May 27, 2017 Comments off

Photo from Facebook Event

On Tuesday, May 30, there will be a public meeting about Meandered and Non-Meandered waters. This meeting is being hosted by the 29-90 Sportsman’s Club and the South Dakota Wildlife Federation (SDWF).

Here is the information about the meeting listed in the Facebook Event:

The 29-90 Sportsman’s Club, Sioux Falls, along with South Dakota Wildlife Federation (SDWF) would like to invite sportsmen/women to our public meeting about Meandered and Non-Meandered water here in South Dakota.
The presentation is open to the public and will be held on; Tuesday, May 30th at 7:00 PM in the Hub building, 2001 N Career Ave located on the SE Tech campus.
There will be a Power Point presentation covering the history of water, The Public Trust Doctrine and our 12 words to fix water law in SD. We will also hear about the “Economic Impacts” of the recent Supreme Court Decision Duerrer V. Hepler that Northeast SD and sportsmen/women of SD are currently experiencing.
29-90 Sportsman and SDWF are trying to be proactive in moving in the right direction for everyone. We have invited all Sioux Empire Legislators to this meeting. It is a state-wide issue and affects all of us.
29-90 Sportsman is about 150 members strong and is one of SDWF’s 16 Affiliate Clubs and is located in Sioux Falls.
Our goal is to disseminate accurate and factual information to the public and too help everyone understand the recent decision. We are also soliciting questions from the public to be presented to the speakers. If you have a question which you would like answered, please E-mail them to sdwf@mncomm.com. We are expecting a large crowd so individual questions from the audience will not be taken or asked for. We are hoping to select 10 submitted questions to present to the speakers.

This meeting looks like it will be similar to the one I recorded in Watertown a couple of weeks ago.  Although that meeting didn’t have draft legislation to actually speak about.

If I see any more public meetings between now and June 2 I’ll try to list them on the blog. I doubt I’ll make this meeting as I already plan to be in Watertown, Pierre and Rapid City this week (plus hopefully some time at home in Aberdeen).

The non-meandered waters issues go way beyond a couple dozen lakes or property taxes

May 26, 2017 2 comments

I just had someone ask why the legislature will go special session over a couple dozen lakes when all that needs to be done is get rid of property taxes for any land under water. This isn’t the first time I’ve heard this question, or variations of it anyhow. It’s a fair question considering most of the coverage in the news has been focused on the lakes GFP shut down public access to. In my attempt to answer some of the questions people have about non-meandered waters I seem to have forgotten some important points. I’ll try to answer a few more questions about non-meandered waters here as best as I can.

I’ll probably do more of these posts as June 2 approaches to help people have conversations regarding non-meandered waters.

How many non-meandered lakes are there in SD?

To answer this one I’ll defer to a chart included in the power point presentation GFP gave to the legislature:

Natural Lakes in South Dakota. Graph from GFP PowerPoint Presentation.

Looking at the graph above there are 2,324 nonmeandered lakes covering 325,000 acres in South Dakota which are over 40 acres in size. When adding in the lakes under 40 acres, there are 29,033 lakes covering 588,000 acres in South Dakota. The twenty-plus lakes GFP closed access to are just a drop in the bucket compared to how many lakes are being talked about. There is a lot of flooded farm land in NE South Dakota; a lot of which formed in the 1990’s.

Most of these nonmeandered lakes do not have fish in them. Here is another chart from the GFP presentation:

Non-meandered Lakes with Fishing. Chart from GFP PowerPoint presentation.

So of the thousands of non-meandered lakes in SD, GFP has determine only 91 of those lakes have fishing. Just under 2/3 of the land under these non-meandered lakes with fishing belongs to private landowners.

I think the above charts do a good job of showing that dealing with non-meandered waters is more than just a couple dozen lakes.

So are the 91 fish-able non-meandered lakes the only ones that have to be dealt with?

Simple answer: No (despite what I heard incorrectly noted during a radio news story earlier this week).

The legislature is tasked with determining if the public has a right to enter or use non-meandered waters for recreational purposes, and what the conditions are in order to utilize non-meandered waters for recreational purposes. There are recreational uses other than fishing. Common recreational uses include hunting, trapping, snowmobiling, swimming, boating, kayaking, and many other activities. Just because a lake doesn’t have fish it doesn’t mean it can’t be used for recreation.

Going back up to the numbers shown above, this issue has to do with thousands of bodies of waters covering hundreds of thousands of acres. That number is greatly reduced when counting only bodies of water where the public can gain access (such as from a road), but even that number is going to be very high.

Won’t abating property taxes on flooded lands please the landowners?

I hear this solution a lot. In reality I don’t think this is a solution. Many of nonmeandered waters being discussed are flooded farm lands. Yes, some landowners would like a property tax abatement. And yes, some already have an abatement of up to 90% depending on the county their flooded land is in. But in reality what is really frustrating many of these landowners is that they have farmland that has been taken out of production because of this water. A lot of these farmers would love to find a way to remove the water altogether. With commodity prices dropping it places even more of a financial burden on these farmers as they potentially have a large number of farm acres inaccessible. Some of these lands may actually have loans against them, which the yearly payments they make on the land make the property taxes look like a pittance.

Property tax abatement or supplement may be part of a solution, but I don’t think property taxes is as big of an issue as many think it is (although I could be wrong).

Rep Bartels hosting Non-meandered waters public meeting at LATI on May 31

May 26, 2017 Comments off

Rep Hugh Bartels at the non-meandered water hearing in Aberdeen on May 10, 2017.

On Wednesday, May 31, there will be a meeting held in Watertown to discuss non-meandered waters. The meeting is being hosted by the Kampeska Chapter of the Izaak Walton League and Rep Hugh Bartels (R, Dist 5). The meeting will begin at 7:00 pm on the fourth floor of Lake Area Technical Institute.

Here is part of what Rep Bartels said about the event on Facebook:

They have asked that I address the provisions of the draft bill being considered by the Legislative Summer Study on this issue. I have asked that the Secretary of Game Fish and Parks attend the meeting and have received confirmation that he will be attending.

The current draft of the proposed legislation can be read here.  Additionally, my look at this draft legislation can be read here.  I don’t know if I will be able to attend this particular meeting. But I would recommend anyone in the Watertown area to attend.

If anyone hears of any other legislators on the non-meandered waters hosting an event prior to the upcoming committee meeting on June 2 please let me know. I’ll bring attention to any the meetings leading up to the imminent non-meandered waters special session.

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