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Flooded-lands plan is thrown overboard by SD senators

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outdoors Mitchell,South Dakota 57301
The Daily Republic
Flooded-lands plan is thrown overboard by SD senators
Mitchell South Dakota 120 South Lawler 57301

PIERRE -- State senators killed flooded-lands legislation Tuesday that had been approved nearly unanimously by the House of Representatives just last week.


No one at a Senate hearing Tuesday supported Rep. Brock Greenfield's plan. The Senate Agriculture and Natural Resources Committee rejected his bill 7-0. The House passed it 63-6 on Feb. 25.

Greenfield, R-Clark, wanted restrictions that would limit use of motorized vehicles and internal combustion engines on floodwaters over private land in specific situations.

"This is the product of my conversation with people on both sides," he said. "I would defer to the wisdom of the committee, but what we have here is reasonable."

For years, people have been launching watercraft from public access points, including road ditches, to fish, hunt and trap on water over private property in South Dakota.

Many landowners feel their rights are being violated. That impasse will continue beyond the 2014 legislative session, because all of the bills dealing with the issue are now dead.

Several landowners spoke against Greenfield's HB 1108 Tuesday, as did lobbyist Mike Shaw. He represents the Nonmeandered Waters of South Dakota Association.

Shaw, a lawyer, said there is a standard in South Dakota courts that banning some activities means others aren't prohibited.

He said Greenfield's legislation could have "serious unintended consequences" for landowners.

"The exclusion of one is the inclusion of the other," Shaw said.

Some of the association's members have been battling in state courts for more than a decade, trying to keep members of the public off water over flooded private land.

The South Dakota Supreme Court ruled in its Parks v. Cooper decision that the water is held in public trust but the Legislature needs to define its public uses.

"That is a question that has yet to be answered in the legislative process," GF&P Wildlife Division Director Tony Leif said.

County prosecutors are left with the decisions, he said. "(Conservation) officers are caught in a tough spot right now."

Greenfield has always been "rock-solid" on property rights, according to Sen. Larry Rhoden, R-Union Center, who said Greenfield's bill wasn't the right solution.

"I don't have the answer, but the starting point has to be just compensation (for landowners)," Rhoden said.

The Senate failed to pass a compromise piece of legislation, SB 169, last month because landowners weren't satisfied. Rhoden wanted to amend that bill to require compensation but said Tuesday he's now glad his amendment failed.

Senate Democratic leader Jason Frerichs, of Wilmot, also wanted amendments, but the bill's prime sponsor, Sen. Corey Brown, R-Gettysburg, called for it to be killed because the matter was so divisive.

Frerichs said Tuesday "an immense amount of uncertainty" faces GF&P conservation officers and called it "unfortunate" the matter has gone unresolved for more than a decade.

"This issue is not going away," Sen. Mike Vehle, R-Mitchell, said.

The committee's chairman, Sen. Shantel Krebs, R-Renner, took a different tack. She said it's time to send the matter back to the court.