PIERRE – The South Dakota Game, Fish and Parks Department is limiting access to infrastructure on more than 20 lakes in the state following a recent state Supreme Court decision.
In a decision dated March 15 on a case known as Duerre V. Hepler, the state’s high court affirmed, reversed and remanded separate pieces of a lower court decision from 2014. The lower court’s decision would have, in effect, prevented the public from hunting or fishing on numerous non-meandered lakes in the state.
The recent Supreme Court decision, however, reintroduced a bit more ambiguity into the already complex problem of how South Dakota’s non-meandered lakes should be used. The court declared that neither outdoors enthusiasts nor private landowners have a superior right to the water.
“We’ve spoken with several attorneys and the GF&P and everyone has a different opinion of what it means,” said Rich Widman, president of the South Dakota Wildlife Federation, the state’s largest public hunting and fishing advocacy organization.
Started as lawsuit
The case was originally filed as a lawsuit by several Day County landowners against essentially all of South Dakota’s hunters and anglers, the state and the state Game, Fish and Parks Department.
The landowners, members of the Duerre family and their neighbor LeRon Herr, own the land surrounding, and now, under two sloughs that have become fish-filled lakes over the last 25 to 30 years. They wanted to secure injunctions against hunters and anglers and the GF&P that would prevent public use of Duerre and Jesse Lakes. Both lakes formed relatively recently over the landowners’ farm fields.
It’s a phenomenon that has become quite common over the last couple of decades in the Prairie Pothole Region of South Dakota. Since the late 1980s, the region has seen a long period of above-average moisture levels on the landscape. In that time, hundreds of sloughs and potholes that, in the 1870s when the state first was surveyed, were dry, mostly dry or only filled with water for a few months at a time, have flooded and not gone dry again.
During that original survey, lakes over 40-acres in diameter and permanent stream courses were recorded as meandered bodies of water, which can’t be considered deeded property under South Dakota state law.
Because the sloughs and potholes in question were dry most of the time, the folks who surveyed South Dakota recorded them as dry land that could be granted or sold as deeded property. Today, depending on who’s doing the talking, these relatively new lakes are called either non-meandered waters, flooded private land or water over private land.
For the sake of clarity, the Capital Journal has chosen to refer to these lakes as non-meandered waters.
What to do?
What to do with non-meandered waters has proven to be a tough nut to crack for every branch of state government. That’s because it involves two things that are constitutionally protected. The first is the right to own and be secure in one’s property.
The second is the public ownership of South Dakota’s water. The state’s constitution holds that surface waters are to be held in trust by state government for the public. State government oversees who uses the water and for what purposes it is used. The idea is to make sure the water is used for the most benefit to the people of South Dakota. Among the beneficial uses of public water specified by the constitution are domestic consumption and irrigation. Noticeably absent from the state constitution’s list of beneficial uses is recreation.
These private property and public water really began to collide in the late 1990s. By then, many of the non-meandered sloughs had become lakes and developed abundant fisheries. That attracted anglers. Lots of anglers. And duck hunters, too. Because surface water belongs to the public, as long as the hunters and anglers accessed the water without touching private property, they felt they were well within their rights to hunt and fish there.
Many of the folks who own and used to farm the land underneath those new lakes weren’t real happy about hundreds of people fishing and hunting over what they felt was their land.
Came to a head
This issue most recently came to a head in 2014, when the Duerre family along with their neighbor LaRon Herr sued pretty much anyone who hunts or fishes in South Dakota, as well as the state government and the the GF&P specifically.
The landowners wanted the public barred from hunting or fishing on a pair of non-meandered lakes in Day County, Duerre Lake and Jesse Lake, without permission and prevent the GF&P from facilitating access to the lakes. Both lakes cover more than 1,000 acres and had become popular fisheries.
So popular, in fact, that by 2014, when the landowners filed their lawsuit, they claimed “villages” of ice shacks could regularly be seen on the lakes during the winter.
On some summer days, up to 200 boats would launch onto the lakes, the landowners claimed. All this, they believed, was trespassing, which they attempted to report to the Game, Fish and Parks Department. The Department’s response, the landowners said, was that water is held in the public trust and therefore recreation on the water is legal, provided anglers or hunters in question can launch their boats or get on the ice without trespassing.
The GF&P’s response was based on a 2004 state Supreme Court decision known as Parks v. Cooper. That case dealt with the exact same issue – public use of water that had flooded private land. In the 2004 case, high court’s first foray into non-meandered waters, the court found that the South Dakota Constitution does indeed hold that all surface water in the state is held in public trust for the beneficial use of the state’s citizens.
The problem then, as it was in the Duerre lawsuit 10 years later, was that recreation isn’t clearly stated to be a beneficial use of the public’s water. In the Parks v. Cooper decision, the Supreme Court said the Legislature and only the Legislature could make that distinction.
In the end, the Parks v. Cooper decision didn’t change much when it came to recreating on non-meandered waters. The public still was allowed to hunt and fish on the water, provided the water was accessed from a public right-of-way and the person using the water didn’t touch the bottom of the lake. The ground underneath the water still was private land.
Tried to clarify
The Legislature tried in 2006, in 2013 and 2014 to pass bills that would clarify just who had which rights to the growing number of non-meandered lakes in South Dakota. All three efforts failed. So, when the Duerre family and Herr, sued the state to try and stop the public from using Duerre and Jesse Lakes, little had changed from 2004.
State circuit Judge Jon S. Flemmer heard the Duerre lawsuit in a Day County courtroom and ruled in favor of the landowners. He issued injunctions preventing members of the public from hunting or fishing on the lakes without permission from the landowners, and preventing the state from facilitating access to the lakes.
The state appealed the injunctions.
In its March 15 decision, the state Supreme Court said that neither the landowners nor members of the public have a superior right to the water. That means a landowner can’t give or deny someone permission to use the water for any reason. Instead, that power lies with state government as the public’s trustee. The court decided that Flemmer’s original injunction had to be changed to remove the requirement for the public to seek permission to use the water for hunting or fishing.
The public, meanwhile, doesn’t have a right to hunt or fish on the water unless or until the Legislature says recreation is considered a beneficial use of the public’s water, the Supreme Court’s decision said.
The Court upheld the part of Flemmer’s decision that said until the legislature acts, the state can’t help anyone access Duerre or Jesse Lakes for hunting or fishing, which prompted the GF&P’s decision on April 6, to limit access to infrastructure placed at non-meandered lakes.
“Recreational access to non-meandered waters is a complex issue that has impacted our state for decades,” said Kelly Hepler, GF&P department secretary in a news release. “Under this Supreme Court decision, GFP cannot facilitate access to non-meandered waters for recreational purposes.”
What does it mean?
Nobody seems quite sure what the court’s March decision means for either landowners or outdoors enthusiasts, though.
“This doesn’t say that sportsmen can’t use non-meandered waters,” said Bill Antonides, a past president of the S.D. Wildlife Federation who has worked on the non-meandered waters issue for several years. “It does not clarify the issue of criminal trespass … The issue here is as murky as the water.”
Attorney General Marty Jackley even penned a letter to South Dakota’s 105 legislators explaining that the court laid responsibility for clarifying the situation squarely at their feet. Jackley reiterated in his letter to legislators that the Supreme Court actually pulled the piece of Flemmer’s decision that prevented the public from using non-meandered waters without permission.
“In making its decision, the court lifted the portion of the injunction prohibiting the public from using those waters for recreational purposes,” Jackley wrote.
Still, Antonides said, for now he’s advising SDWF’s members to keep their heads down.
“My advice to people is to find someplace to go fishing where you aren’t going to get into trouble until we can get this sorted out,” Antonides said.
Which lakes are affected?
To comply with the Supreme Court ruling, GFP is posting signage and limiting access to infrastructure at the following water bodies, with the potential for additional water bodies to be added:
• Caseys Slough, Cottonwood Lake GPA, Dry Lake #1, Dry Lake #2 and Swan Lake in Clark County;
• Deep Lake and Goose Lake in Codington County;
• East Krause Lake, Lynn Lake, Middle Lynn Lake and Reetz Lake in Day County;
• North Scatterwood Lake in Edmunds County;
• Three Buck Lake in Hamlin County;
• Bullhead Lake, Cattail-Kettle Lake and Cottonwood Lake in Marshall County;
• Keisz Lake in McPherson County;
• Grass Lake, Lost Lake, Scott Lake and Twin Lakes in Minnehaha County;
• Twin Lakes in Sanborn County;
• Cottonwood Lake and Mud Lake in Spink County; and
• Dog Ear Lake in Tripp County.
Public notice signs will be posted in these areas by the end of April.
