By Andrew Johnson
A recent South Dakota Supreme Court ruling on nonmeandered waters has the fishing community literally reeling. The decision stems from a lawsuit — Duerre v. Hepler — brought by several landowners against the South Dakota Game, Fish and Parks Department, as well as a class action against hunters and fishermen accessing two sloughs in Day County.
The court’s ruling basically stated that recreational use on nonmeandered waters is not inherent to the public trust. In other words, nonmeandered bodies of water are no longer accessible via legal, public access points, such as road rights of way, for hunters and fishermen. Even further, the ruling stated that GFP cannot facilitate access to these bodies of water, a move that forced GFP’s hand in closing department-managed boat ramps on over two dozen nonmeandered water bodies statewide. The ruling doesn’t officially close down these waters, but it muddies the water enough to where access is nearly impossible.
Now, it’s very important to understand what meandered versus nonmeandered means, even though it’s somewhat of a moving target. In a nutshell, nonmeandered means that when the land was surveyed over 100 years ago there wasn’t enough water present to draw a meander line around it (that’s a very rough explanation). Nonmeandered waters sit above private land, and there is no public ownership of that land or lake bed. Meandered bodies of water, on the other hand, are those that have a definitive meander line drawn around them, meaning that the bed of the lake is public domain and belongs to the state.
The problem with the recent ruling, however, is that even though it applies to two specific bodies of water, it sets a precedent that will likely be applied to nonmeandered waters across the state. This ruling was the inevitable outcome of legislative inaction. In 2004 in a separate lawsuit the court ruled that all waters, even nonmeandered waters, belonged to the public, but, at the same time, it put the ball in the South Dakota State Legislature’s court as to whether nonmeandered waters should be accessible by legal means for recreational purposes.
Several bills addressing the issue were introduced during legislative sessions in the years to follow, but nothing really changed, as neither landowners or sportsmen were willing to budge. One side wanted access closed, and the other wanted free reign, meaning a topic with so many gray areas was debated as a black and white issue with no room for compromise.
In my opinion, there are bodies of water that absolutely shouldn’t be accessed by the public. That might draw the ire of some folks, but the worst thing we can do as sportsmen is fail to listen to reason or act toward suitable compromise. An example is when a slough floods just enough to touch a public right of way for a day, a month or even a couple years. In these temporary scenarios, I don’t think it’s my right to hunt or fish that water body the first chance I get. That doesn’t make sense, and I sympathize with landowners who have encountered this issue.
However, if a nonmeandered body of water has been a viable fishery for 20 years and GFP has stocked it and opened boat ramps on it, I don’t think a court ruling or future legislation should sweep in and take that public resource away due to the vested interest of a small group of landowners.
There has to be a compromise in there somewhere, and the hope is that the court’s ruling drives tempered, meaningful conversation and spurs decisive action from our legislature. The people of South Dakota — landowners and sportsmen — deserve better, and it’s time we can confidently hang signs on the door saying “Gone Fishin” rather than worrying about reduced access and fishing opportunities that are now, at least for the time being, gone.