Property rights, access to water highlighted at monthly Democratic forum

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HURON – A complex issue involving private property rights and access to surface waters held in trust by state government for the public remains troubled despite a bill passed in a special legislative session earlier this week, a past president of the Izaak Walton League of America said Thursday.
Outdoor ethusiast Chuck Clayton said he understands the frustrations of landowners of nonmeandered waters who have been dealing with late-night parties and trash left behind, but that there are ways to address that without closing off public access.
He suggests barriers or a quiet zone in areas where there are nearby residences. Hiring enough people to patrol around nonmeandered waters isn’t practical, he said.
But shutting down activities at 10 at night, for example, could help.
“That would be reasonable,” Clayton said at the District 22 Democratic Forum. “But don’t close down all public water.”
Nonmeandered waters have been a sticking point for years, pitting landowners and fishing, hunting and recreation interests against each other.
Such waters were those not specifically designated on government survey maps in the 1840s, but in the last few decades sloughs have grown into large bodies of water that has attracted good fishing opportunities.
The bill passed in the special session returns public access to two dozen lakes. It also declares lakes on private property are open for recreational use unless a landowner installs signs or buoys saying an area is closed.
Clayton maintains that while the land underneath it is privately owned, the water above it belongs to the public, and has for more than 100 years.
Lake Byron is an example of a meandered lake. But 71 percent of the natural lakes in South Dakota are nonmeandered, meaning there is no meander line around them, Clayton said.
He said the issue of property taxes on the land is a county issue, not a state one.
“We have encouraged the state for years to come up with a state policy on inundated land,” he said. “They refuse to even take it up. They won’t do it.”
Each individual county sets its own rules for how they want the land to be taxed, he said.
Clayton said he agrees that something must be done to curb misbehavior, late-night partying and trash that has so angered private property owners.
“Nothing makes me madder than that,” he said. “I understand why landowners get upset.”
“The water is public and it has been for 100 years,” Clayton said. “This bill changes that. No longer does the public have control of that water if it’s over private land.”
In March, the state Supreme Court ruled that the Legislature must decide the extent the public can use the waters on private land for recreation.
In the original survey, meandered lakes were identified and allowed to be fished by the public even if they went over the ordinary high water mark.
“But if a nonmeandered lake expands, they treat it differently,” Clayton said.
The law expires next June, so legislators will be discussing the issue again this winter.
“Nothing is to say that they can’t turn right around and just say, OK, this is the law forever now,” he said.
There’s always a chance it could be changed, he said.
“But I would say when you have given private landowners the ability to control public water, that there’s a very, very, very slim chance of them pulling that back,” Clayton said.

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