Ganje: Legislature’s new nonmeandered waters bill still needs work

David Ganje

by David Ganje
Ganje Law Offices

The summer committee of the legislature voted approval of a nonmeandered waters bill on June 2. Lakes closed to public access, poor local business revenues and weak revenues for the state made it understandable why the summer legislative committee was determined to write a bill. The bill includes several workable and good provisions. Still, the committee opted for a bill that is unfinished, even for the limited, immediate issues the bill seeks to remedy. To create remedies quickly does not always work well when writing new law. The bill was only in the public’s eye for ten days before it passed. Beyond the headlines, the bill should be made sound—and then passed. Well done is twice done.

Some issues with the bill:

• 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.

• The bill contains no setback rule. South Dakota law prohibits hunting from the water in close proximity to a dwelling unless permission is given. The bill contradicts this, and requires a landowner to install “conspicuous markers” on his property, or be subject to hunting all the way up to his home. The bill does not provide for a minimum setback of all sportsmen’s activities. The bill should establish a uniform setback near dwellings and confined livestock which will be understandable by sportsman and landowners alike.

• The bill avoids the Supreme Court’s advice. In the recent Duerre case the Supreme Court stated, “… the Legislature has not yet said that ‘public puposes’ includes a right to use this State’s non-meandered waters for recreational purposes.” The Duerre case also said that agencies, commissions and departments could not make this decision. The current bill allows the public to use nonmeandered waters for recreational purposes. The bill does not declare that recreational use is an acceptable beneficial use of the public waters. The Supreme Court stated in two cases that the legislature needs to make a declaration one way or the other about recreational use of public waters. California, Idaho, Kansas, Minnesota, Montana, Nevada, Oregon, and Wyoming have done it. A properly drafted declaration of recreational use will not give recreational use priority or preference over other uses.

• The bill does not include a quiet time rule. The bill does not establish a quiet time for sportsmen’s activities near dwellings and confined livestock. The purpose of a quiet time rule is to preserve a landowner’s right to sleep and repose. Landowners want to be good hosts on these waters, but don’t want to become indisposed at all hours of the day or night. No host would. No one wants a two-stroke ice auger running next to their home at 5 in the morning.

• The bill contains no provision for notice to landowners. Creating or managing ramps and other public access to nonmeandered waters will affect neighboring landowners. All infrastructure activity on nonmeandered waters is constructed and managed by GF&P. The bill does not include a due process provision giving a landowner notice of any proposed structural activity taken by the state in the immediate area near a landowner’s private property. Providing a requirement for formal notice safeguards the landowner’s ability to know what is going on before it happens. Other law in the state provides a property owner with advance notice when property is to be affected by a project.

• The bill authorizes the state to ‘buy’ waters. The bill authorizes the state to buy or lease from private landowners recreational use of public waters. The state cannot buy or lease from private citizens’ water already held in trust for the public. All public waters in South Dakota, including nonmeandered waters, are held in trust by the state for the benefit of the people of that state. Recreational use is not a property right in the water held by a lakebed owner. Recreational use cannot be bought, sold or leased. The bill authorizes the state to ‘buy’ recreational use of waters overlying private property. This use of public waters cannot be bought or leased by the state. If the purpose of the bill is to buy or lease property rights from private landowners, the bill does not achieve this purpose.

David Ganje practices in the area of natural resources, environmental and commercial law. Mr. Ganje is working with the South Dakota Farmers Union on this matter.