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Trespassing or not? State's attorneys weigh in on non-meandered waters

The public notice sign that will be placed at bodies of water blocked off by the South Dakota Game, Fish & Parks Department following a state Supreme Court decision. (Photo credit to South Dakota Game, Fish & Parks)

A state Game, Fish & Parks Department decision to close access to a select group of lakes was an overreaction and caused significant confusion, some state's attorneys agree.

South Dakota anglers are now seeking answers and legal advice following GF&P's reaction to a state Supreme Court decision to gate off public boat ramps in an attempt to avoid facilitating access to non-meandered waters.

And that's putting a burden on state's attorneys to interpret the ruling.

While discussing the backlash of the GF&P and Supreme Court decisions, Day County State's Attorney Danny Smeins speculated GF&P closed access to about two dozen bodies of water "for effect."

"How they got the Legislature's attention is by creating a public relations storm from not only the media but also the people who fish," Smeins said this week in an interview with The Daily Republic.

In late March, the state Supreme Court ruled 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. 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. The case originated due to flooded areas that connected public and private property.

As the state's attorney for Day County where the 2014 lawsuit originated, Smeins said it's important to consider that "the lawsuit really only involved the plaintiffs and bodies of water reviewed by the court. The circumstance of every body of non-meandered are different."

"The plaintiffs weren't suing on behalf of every landowner in the state of South Dakota," Smeins said.

That's why he believes GF&P "overreacted" with its decision to close accesses to so many lakes. GF&P maintains its stance that it cannot facilitate access to any non-meandered body of water.

As to whether Smeins will prosecute trespass, he replied, "Like most attorneys, give me the circumstances and I'll tell you if it's trespass."

Since the announcement to close some accesses became public at a GF&P commission meeting earlier this month, anglers have organized online petitions urging the Legislature to gather for a special session this year.

Trespass decision

GF&P Secretary Kelly Hepler said his department — which includes conservation officers — will not be giving "black-and-white answers" as to whether people use closed-access bodies of water for recreation before lawmakers discuss the topic, which could be during a special session or when the 2018 session begins in January.

The department is attempting to stay neutral given the Supreme Court's decision that "neither the public nor the Landowners have a superior right to use the waters and ice" over private property.

GF&P closed access to bodies of water in 11 South Dakota counties on the advice of an attorney as the department felt the Supreme Court ruling set a legal precedent throughout the state.

And while GF&P stated it will not give an opinion as to whether anglers can use specified lakes before the Legislature acts, state's attorneys are forced to consider the legal ramifications if members of the public enter them.

"I would still agree that if they wanted to fish, you go back to the common sense rule: If you want to fish over private land, go ask," Smeins said. "If the landowner doesn't care, then why should I care?"

Hamlin County State's Attorney John Delzer said he will be inclined to prosecute anglers for trespass but said he has not yet discussed the matter with local law enforcement.

Three Buck Lake is the lone body of water in Hamlin county impacted by GF&P's decision, and Delzer scoffed at the notion that a proposed legislative study over summer could help solve these issues.

"Landowners want the right to exclude others from property, and no matter how many meetings you have, how do you put a value on that?" he said.

In Clark County, State's Attorney Chad Fjelland responded via email by saying the Supreme Court's decision "raises more questions than answers" and his office is assessing the situation by "working with Game, Fish and Parks to develop a coherent and consistent policy."

"I know the public wants a black and white answer as to the question of criminal trespass," he wrote. "At present, I'm simply not in a position to give one. I can say that from a personal perspective, I will not fish these waters under the Court's current ruling."

Meanwhile, Codington County State's Attorney Patrick McCann is taking a different approach.

"From my standpoint, what I look at in order to determine whether I can criminally prosecute someone for a trespass is I have to know who has control over that property," McCann said. "And after the Supreme Court's opinion, I don't think I can definitely say beyond a reasonable doubt that the private landowner has absolute control over that water."

State's attorneys in Spink and McPherson counties said they will be willing to prosecute trespass, but they don't have a firm position yet. Other officials in impacted counties did not immediately respond to requests for comment.

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