South Dakota is on the eve of a great wrong — where over 40 percent of the water in our natural lakes may be closed at the whim of private individuals.
The South Dakota Wildlife Federation cannot support a bill that delegates authority to private individuals to restrict access to massive amounts of publicly owned water with zero public due process — and then allows those private individuals to use public waters for their own ends.
We understand the delicate balance that must be achieved between the public’s right to use public waters and landowner rights. With that consideration, we attempted to work under the language of this bill, which was drafted in great part by a Day County landowner's attorneys with little or no public input, by offering a new bill and amendments.
We made significant concessions, yet included verbiage to protect the rights of the public. The bill and amendments were offered to and rejected by the summer study group. Assuming the special session will also not address our concerns, the South Dakota Wildlife Federation formally opposes the proposed bill.
Despite our best efforts, critical and fatal components in this bill remain. Specifically, this bill authorizes private individuals to restrict access to massive amounts of public water with no due process for the public. Seventy-one percent of the natural lakes in South Dakota are nonmeandered with approximately two-thirds of those beds belonging in private ownership.
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.
We have other concerns, including no specific recognition that recreational use is a beneficial or lawful use of water; not allowing certain recreation activity on the bed of nonmeandered lakes or their frozen surfaces; and amending criminal trespass in the light of inconsistent marking standards. Further, the sunset provision gives us no solace given the political climate where a passed bill would likely be subsequently continued to avoid conflict. Nor do we find solace in the hope landowners will not post public waters closed — under this bill, once public waters are closed they can be closed forever. But we are willing to work through those issues so long as the public has the right to petition to open closed waters, and recognition that if waters are closed, they are closed to all.
In a prophetic statement, the South Dakota Supreme Court in 1915 quoted the following: “To hand over all these lakes to private ownership, under any old or narrow test of navigability, would be a great wrong upon the public for all time, the extent of which cannot, perhaps, be now even anticipated.” Flisrand v. Madson, 152 N.W. 796, 799 (S.D. 1915).
South Dakota is on the eve of that great wrong. Our ancestors had the foresight and intestinal fortitude to keep our natural resources in the public trust for us. We have a duty to future generations to do the same for them. This bill, as written, must not pass.