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Governor’s office: Study best approach for non-meandered water issue

Anglers use the dock at Clark County's Dry Lake #2, one of several lakes where South Dakota's Department of Game, Fish & Parks will close the public access point. (Matt Gade / Republic)

Gov. Dennis Daugaard anticipates a proposal to be offered next session on the public’s use of non-meandered waters for recreational purposes, such as angling.

On Monday, Daugaard’s Chief of Staff Tony Venhuizen said in an email response to The Daily Republic that “ … given that the Court held that the Legislature has to act to resolve this, the Governor believes an interim legislative study that brings together all interested parties is the best way to reach a resolution.”

When asked whether the governor is considering calling a special session this year to address the issue, Venhuizen said Daugaard “wouldn’t foreclose any option at this point.”

Following a Supreme Court ruling in late March, Attorney General Marty Jackley issued a letter to state legislators to ensure they are aware of the decisions they’ll likely be discussing starting in January when the 2018 legislative session begins.

March's Supreme Court ruling explained the South Dakota Legislature must determine whether members of the public may enter or use any of the non-meandered water or ice overlying private property for any recreational use.

The ruling set a legal precedent for all non-meandered waters in the state following a court battle in which a landowner in northeastern South Dakota became upset that anglers were accessing private land from public property due to lakes expanding from certain flooded areas.

Following the ruling, the South Dakota Game, Fish & Parks Department issued a list of lakes in the state that would have their accesses closed. Part of the legal ruling stated that “until the Legislature acts, the GF&P and other State defendants cannot facilitate access” to enter the waters and ice overlying private property.

Sara Rabern, spokeswoman for Jackley’s office, said the attorney general will not be issuing an opinion at this time as to whether the public can legally enter this land.

Jackley’s letter to legislators states that until the Legislature acts, “both the rights of landowners and the public to use these waters remain a point of contention.” The letter also pointed out that the Supreme Court ruled that “neither the public nor the Landowners have a superior right to use the waters and ice” over private property.  

While much uncertainty remains following the ruling, Venhuizen explained the public should seek advice on their own as to whether it is trespassing while using the specific bodies of water.

“The Supreme Court’s decision stated the law generally in this area, and the Governor believes the safest course for anyone with questions about this ruling’s effect is to seek legal advice about that person’s particular situation,” Venhuizen said in an email.  

On Monday, an online petition for Daugaard to call a special session had more than 2,300 signatures as of 5 p.m.

“Local businesses of the small rural towns are suffering now from this recent ruling and do not have time to wait until the next legislature meeting in January 2018,” the website said. “We need to all come together and support the small communities, landowners and sportsmen so we can all enjoy South Dakota's natural resources. There are thousands of people who rely on these natural resources to attract people to these small communities and also for enjoyment with friends and families.”

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