Double standards are driving water dispute


South Dakota’s laws presume that private property is private property.
Landowners can ask law enforcement to charge criminal-trespass against people caught on the wrong side of the fence.
But that standard hasn’t applied to water and ice. Recreational users have enjoyed largely free access, unless the water or ice didn’t touch a public road.
The South Dakota Supreme Court exposed the conflicting standards, yet again, in the Duerre v. Hepler decision, released March 15.
The five justices declared neither landowners nor recreational users have a superior right to use water and ice over flooded private land in Day County.
The resolution could come in the next few weeks, with a special session of the Legislature scheduled June 12.

What happens that day is partially up to groups such as South Dakota Wildlife Federation and South Dakota Farmers Union.
Their thousands of members have sway, in very big ways, among many of the 105 legislators.
The state Game, Fish and Parks Department responded to the Supreme Court by pulling docks, and cabling-off ramps, at 25 lakes and sloughs in April.
GFP consulted first with Gov. Dennis Daugaard and top staff members.
GFP’s action triggered the Legislature to get a task force working on possible regulations. The 15 lawmakers plan a final meeting Friday at the Capitol.
There doesn’t seem to be a question of keeping established lakes open to the public, if the water is meandered.
Meandered means government surveyors, during the Dakota Territorial era, more than a century ago, established boundaries around the waters.
The issue at hand is nonmeandered waters. Territorial surveyors didn’t set the boundaries. The waters weren’t permanent. Instead the waters came and went, and came and went.
The waters came again in the 1980s and 1990s throughout much of eastern South Dakota. In many places the waters haven’t left.
Landowners still pay taxes on the private property beneath those waters. Many landowners are frustrated.
Here is a key piece from the South Dakota Supreme Court decision of March 15. Justice Lori Wilbur wrote:
“But the Legislature has not yet said that ‘public purposes’ includes a right to use this state’s non-meandered waters for recreational purposes.
“So until the Legislature acts, neither the public nor the landowners have a superior right to use the waters and ice overlying the landowners’ private property.
“Similarly, until the Legislature acts, the GF&P and other state defendants cannot facilitate access for members of the public to enter or use, for recreational purposes, the waters and ice overlying the landowners’ private property.”
Matt McCaulley, a Sioux Falls lawyer and former legislator, testified Wednesday.
He said he represents the Duerre and Herr families involved in the decision.
He explained, with credit given to Aberdeen lawyer Jack Hieb who represented the families in court, that property owners could get two crops from their land.
One is production, whether crop or pasture. The second comes in fall and winter through hunters and other users.
McCaulley said water and ice over private property deny both if left open to unrestricted public use.


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