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A Bill of Particulars for the legislature

Posted on: June 26th, 2017
by David Ganje

The nonmeandered waters bill passed the legislature and was signed into law on June 12th. The nonmeandered waters problem was not ‘manufactured’ by the governor’s office nor by the state courts as some argued. This argument ignores the fact that mother nature created this problem and unhappily left it in man’s incompetent lap. Another argument is that the new water law has the problem ‘backwards.’ The world is not black and white. Such an extreme view of nature and of the law will at best wrongly color one’s vision, if it does not blind one’s vision completely.

The vote on the new law during the legislature’s special session was a reflection of democracy in action. Yet the drafting and consideration of the bill was a less virtuous undertaking. Lawmakers in reviewing the bill chose to drive quickly past posted and clearly marked signs warning of hazards to be avoided. Doubtful provisions of a bill do not disappear when they are written into a new law.

The new law creates the shortest sunset provision of any natural resource law I have dealt with in my career. The law’s short life-cycle a good thing. As they say in academia, this law don’t have no tenure. The legislature now has a limited period of time for reflection on the language, intent and purpose of the law. Reflection is necessary. I will give a brief bill of particulars for the legislature’s review.

Problematic laws are sometimes passed based on otherwise justifiable legal measures. What are the faults in the new law? What particulars of the new law are in error? The following comments discuss important, unresolved issues.

1. In the statute the term “owner” of lakebeds is not described or defined. This will cause several problems. One cannot determine liability of an owner or declare immunity from liability of an owner unless the term “owner” is defined. Tenants for example do not have legal immunity under the new law. In another illustration, when a legal tenant-in-possession is the proper party to give permission to access waters, or to take other necessary acts described under the law, he cannot. The law only permits a title holder to take such acts.

2. The Act creates two sets of laws for nonmeandered lakes. The rights, duties and liabilities of landowners under the law’s designated nonmeandered lakes are not the same as the rights, duties and liabilities of the landowners under all other nonmeandered lakes.

3. No setback rule is created. The law does not provide for a minimum setback from dwellings or confined livestock concerning sportsmen’s activities on the waters. A uniform setback near dwellings and confined livestock which will be easily understandable by both sportsman and landowners alike should be established.

4. The emperor has no clothes. No express declaration is made in the law stating that recreational use is a beneficial use of public waters. The SD Supreme Court in two cases said the legislature needs to make a declaration one way or the other about recreational use of public waters.  A properly drafted declaration of recreational use will not give recreational use priority or preference over other uses.

5. No quiet time for sportsmen’s activities near dwellings and confined livestock is established. The purpose of a quiet time rule is to preserve a landowner’s privacy and 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.

6. The new law permits a lease or purchase of public water rights. But it does not work that way. The state cannot buy or lease from private lakebed owners the ‘recreational use’ of the waters. 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. The law now authorizes the state to ‘buy’ recreational use of waters overlying private property. GF&P would be making a mistake if it attempted to exercise this provision of the law.

7. All infrastructure activity on nonmeandered waters is managed by GF&P. However the law does not include a due process provision giving a landowner advance notice of proposed activity to be taken in the immediate area near a landowner’s private property.  Providing for advance 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 other state approved projects.

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