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SD legislators reopen submerged farmland in northeast corner to fishing again

Jack Hieb is an Aberdeen, S.D., lawyer who prevailed for clients in Day County lawsuits over their rights to control activity on waters that flood their private farmland. Forum News Service/ Mikkel Pates)1 / 3
State Sen. Jason Frerichs, D-Wilmot, S.D., speaks to the South Dakota Legislature on June 12, discussing a compromise bill that will reopen some non-meandered waters in South Dakota but also allow farmers to post some of the waters. Photo taken June 12, Pierre, S.D. (Forum News Service/ Mikkel Pates)2 / 3
The South Dakota Senate was part of an 11-hour special session to determine the management of non-meandered waters, which allows the reopening of some lakes to fishermen but also the posting of some waters by farmers and landowners. Photo taken June 12, 2017, Pierre, S.D. (Forum News Service/Agweek/Mikkel Pates) 3 / 3

PIERRE, S.D. — The South Dakota Legislature passed a compromise bill designed to reopen some submerged farmland to fishing in the northeast part of the state in a special session Monday.

The special session was forced by successful lawsuits by landowners who had gone to the South Dakota Supreme Court. The governor and lawmakers were responding to commercial interests primarily in Day, Marshall and Clark counties in the northeast corner. These areas are on a glacial ridge pocked with shallow basins or potholes.

The House passed the original bill with a 52-19 majority, which exceeded the 47 needed for a super majority. The Senate passed the bill 26-7, but amended it to step up the "sunset" to 2018 — not the June 2021 sunset originally in the bill.

The bill that was written by a 15-member group of legislators in a task force. The House initially balked at the 2018 sunset from the Senate, but later both houses reconfirmed with the two-thirds majority. Gov. Dennis Daugaard later signed the bill, putting it into effect immediately.

The new law will immediately reopen 25 significant long-standing fishing lakes, plus allow opening or posting of dozens of smaller lake basins on farmland where rising waters since 1993 have flooded because of excessive precipitation. There are no creeks or river outlets to drain these lakes so they remain full until they evaporate.

Commercial interests — lodging, bait and hospitality — have expanded as the South Dakota Game and Fish Department has stocked many of the lakes with fish or used them to raise small fish for stocking elsewhere. This has been good for sportsmen but has caused tension with landowners because of questions about how much access the public is entitled to without permission.

Proponents say the new bill for the first time allows some certainty on what farmers and other landowners can do for posting the non-meandered water.

The bill specifies the kind of signage rules and regulations passed pursuant to the law. It allows an appeal process for landowners to challenge the access on a list of 25 larger, more long-standing lakes. It allows immediate, non-restricted ability to post smaller, lesser-used lakes. For those smaller lakes, it requires specific methods of posting, as well as notification requirements.

Seeking respect

Sen. Gary Cammack, R-Union Center, who was on the committee, said he was in favor of the compromise bill and voted for it even though he opposed the sunset amendment.

"The individuals who have the flooded lands aren't asking for money; they're asking for respect and have a say in how those waters are used — in some cases within 100 feet of their house, and their barns and their corrals," he said.

Cammack, the chairman of the Senate Agriculture Committee, says he thinks the bill will benefit sportsmen, too.

State Sen. Jason Frerichs, D-Wilmot, who represents the most affected region, said the compromise was a good one — necessary for both farmers and fishermen.

Donna Bumann, a Lake Preston motel and bait shop owner, hasn't been able to make her mortgage payments since the closing of lakes in her area, including "Dry 2" and "Willow Lake." She said fishermen from Nebraska and Iowa had been waiting to come, depending on the outcome of the special session.

Jerry Schmitz from Vermillion, president of the South Dakota Soybean Growers Association, said his organization was among the ag groups in Pierre to watch the issue. He said the association was in favor of the bill as a property rights issue and hoped it would be a "product we can go forward in the future with."

He said farmers want sportsmen to have access but have "protections in liability, trash and where vehicles are parked so they don't disrupt the business of farming."

Legal moves

Jack Hieb, an Aberdeen lawyer, testified before the study committee and attended the special session. He has represented two sets of farmers in lawsuits that went to the South Dakota Supreme Court, and he explained that the issue is technically over "non-meandered waters."

When the Dakotas were settled in the 1880s, surveyors had to decide which lands were available for settlement. They would "meander around a body of water of a certain size that did not appear to be temporary in nature." A non-meandered body of water is "simply standing water that is sitting on top of land" and available for a claim or land patent.

Hieb in 2004 represented a group of 30 landowners and verified they could exclude fishermen from non-meandered water that had been farmland when it was dry. The "Parks" case landowners won, but the decision applied only to their land.

"The state and the sportsmen continued to ignore that ruling and used these bodies of water — other than the three I had injunctions on — and people want this to stop," Hieb said.

In 2017, Hieb won a second similar case, and the Supreme Court said the water is all "public" for private uses including irrigation or cattle water. But the court said the public doesn't have the right to use water over private lands without permission.

The South Dakota State Game and Fish Department reacted by stopping providing public access to a wide range of these lakes, including some of the largest on a list of about 25 that had been historically used by large amounts of fishermen, or perhaps enhanced with dams or lake cabins, or that the state had invested heavily in infrastructure, including boat ramps.

Necessary?

"Do I believe that necessarily had to be done? No," Hieb said. Some of these lakes were probably legally public through "prescriptive easement" or "adverse possession" he said. The smaller, newer bodies probably weren't. Cammack declined to speculate whether all of the closings were necessary.

Legislators at the special session said the lawmakers repeatedly tried to solve the problem of land versus water rights, but the sides were polarized and nothing happened until the Supreme Court decision. Hieb and others said the controversy has had a beneficial effect for trying to get something done.

"If you want to take the sportsmen's position, you talk about the water, not the land," Hieb said. "If you take the landowner's position, all you talk about is the land. Underneath this water is private property that was nothing but private every day since it was homesteaded, in most cases. That landowner had complete control over what went on above that land until they had the misfortune of having that land flood. None of this land flooded because the landowners flooded it."

Sportsmen typically touch the bottom the land with things like anchors, fishing equipment or duck decoy weights. Some of the legislators say that landowners in the non-meandered waters should be able to either exclude its use or even charge fishermen for access. The case would not involve cases like Trout Haven, a Black Hills business that charges fees for fishing in a pond. The difference is that pond is fed by a stream, Hieb said.

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