Decades Old Water Issue Centers On Future Generations... For Recreation Or For Peace

May 8, 2017

A South Dakota Game, Fish, and Parks sign restricting public access to a non-meandered body of water in Day County
Credit Lee Strubinger / SDPB

An issue that infiltrated the 1990's is catching the eye of South Dakotans who fish.

The South Dakota Supreme Court will rule on the second of two lawsuits pertaining to public access to bodies of water for recreation. It’s an issue that took center stage in Day County where several bodies of water formed more than two decades ago following heavy snow and spring rains.

Since then sportsmen have wanted access to the water that pools on private property, but landowners want their privacy. State law holds water in trust for “beneficial use” for the public.

As for what beneficial use actually means? That’s now for lawmakers to decide.

Day County is where the lawsuits began.

A slight breeze ripples water from the southern end of Long Lake onto the property where Frank James’ great-grandparents first homesteaded in Northeastern South Dakota. James is a Day County Commissioner. He points to some grain bins about 50 yards from where the lake ends.
 
“My grandfather was born right up there in 1888," James says. "My mother’s family has been here for that long.”

Day County residents Bob Whitmyre and Frank James stand near the spot where James' family first homsteaded in South Dakota.
Credit Lee Strubinger / SDPB

James’ roots run deep here. Land passes from generation to generation. Settlers established some farms and ranches even before statehood. Now chunks of the land are underwater.
 
Across the way, two empty houses stand on a patch of land just next to the water, which is down about six feet this year.
 
“My last aunt died when she was 94. She couldn’t believe she walked this stretch here to get to the old farm place," James says. "It was quite a shock to her how much water—how much had deteriorated. There’s nothing left of a pretty good farmstead there.”
 
In 1993, heavy snowfall and an unusually wet spring flooded several sloughs that had previously been used as good farm and ranching ground.
 
“On a normal summer there’d be water here, but the cattle could walk from one end of the pasture to the other without any trouble. But it was mostly just rushes… really good pheasant hunting.”
 
James says there’s been water ever since.
 
Day County is situated in the middle of the Coteau Des Praries. It’s an A-shaped formation that was pushed up by the glacier when it receded over eastern South Dakota. This created several prairie potholes and sloughs inside of a closed basin or bathtub like formation. The water collects and has nowhere to go.
 

A gravel road leading to two homes in Day County near Long Lake is closed off and barely above water.
Credit Lee Strubinger / SDPB

“There’s an old saying that the whiskey is for drinking and the water is for fighting and that’s very real. We see that here in the legislature and we see that in our rural communities,” says State Senator Jason Frerichs. He represents District 1, which encompasses Day County.

The fight Senator Frerichs is talking about references this: In 1868, when surveyors first marked bodies of water, they drew meander lines around several large lakes in the area. Those meandering bodies of water are managed by the state for public use.
 
Over the last two decades, rainfall has turned many of these prairie potholes and sloughs in Northeaster South Dakota into more lakes. These are considered non-meandered bodies of water. Thousands of once farmable acres have been flooded since 1993.

A map of the Coteau Des Prairies in Northeastern South Dakota. The purple is water levels from 1994. The blue is where water levels were estimated to reach. Some landowners say 2011 rains exceeded the blue expectations
Credit Lee Strubinger / SDPB

Landowners now pay taxes on the flooded property, at a reduced rate. However, state law maintains that water is held in public trust, which includes recreational uses like fishing, duck hunting, and snowmobiling.
 
But landowners say use of their property has gotten out of hand. Sportsmen contend that water is held in the public interest for their use.
 
A recent South Dakota Supreme Court decision affirmed a nearly decade old decision that until there is legislative authority, South Dakota Game, Fish and Parks cannot facilitate public access to the flooded sloughs. That means the burden shifts onto state lawmakers like Frerichs.
 
“Until we start to manage that and strike a balance, that’ll continue to be a problem.”
 

Bill Antonides is a retired wildlife conservation officer and with the South Dakota Wildlife Federation. He’s sitting at a picnic table at Wylie Park in Aberdeen. 

“The legislature has not done that," Antonides says. "Since they have not determined how the water can best be used, then by golly, nobody can use it, is what the Supreme Court is essentially saying."
 
Before the latest ruling, boaters and people fishing could access non-meandered waters from either a township section line road or highway. Antonides says the sportsmen are making sure generations to come will have access to these waters for fishing and hunting. Even, he says, for the landowners’ grandchildren.
 
“People are moving to town and they’re going to be in the same situation: looking for a piece of water that they can go recreate on. We shouldn’t give that water away," Antonides says. "We don’t have a right to give that water away. It belongs to our grandchildren and to kids that haven’t even been born yet. We do not have that right to give that water away, we just don’t.”

Many landowners in Day County say they have no problem with the public using their land. They say ask and you shall receive.
 
The Lutheran church in Butler, South Dakota attracts a dozen people for coffee Monday morning. The church used to be two separate buildings, until the Germans and Norwegians combined churches. They pass around brownies and cake in the church basement. The men sit on one half of the table, and the women take the other end.
 
“We’ve always been proud of our property, we’ve always been proud of who we are as South Dakotans,” says Bob Whitmyre. He owns land in Day County. “We’re trying to hold onto that so the next generation can live in peace as well and that they can look to outdoor recreation favorably as we did.”
 
Robert Duerre also sits in the Lutheran Church basement. He’s a farmer whose name is attached to a recent Supreme Court decision. He says he’s paid thousands in taxes on land that unusable.
 
“2011 was the high point. And it encompassed close to 1,500 acres of our private property," Duerre says. "The taxes on them have varied, we’ve abated them so it has been reduced. But, I think over the last 23 years it’s been $100,000 in tax we’ve paid on that water that has no financial reward at all.”
 
Since taxes on several thousand acres in Day County have been abated, or reduced, the price on dry land has increased.
 
Dari Schlottee is the Day County Director of Equalization
 
“So when you lower X amount of dollars of value here, the tax dollars still need to be generated," he says. So when the values go down, the levies go up.”
 
That means people who don’t own land underwater help make up the difference in their taxes.
 
That’s not the only way non-meandered waters impact dollars. The South Dakota Game, Fish & Parks department pulled boat ramps from these waters in April. A bait shop owner says that affects his bottom line.
 
Taxidermy game and fish line the walls of the Sportsman’s Cove bait and tackle shop. Doug Johnson owns the Webster business. He says uncertainty around the Supreme Court ruling isn’t helping. He says he’s ready for the legislature to come up with rules on non-meandered water so everyone is certain.
 
“The negativity that surrounds it. That’s what I want to go away. I want it decided. We’ll live with whatever’s decided whatever ruling comes of it," Johnson says. "We’ve had a grey area regarding the non-meandereds for years. Now the supreme court ruling has made the grey areas much much wider.”
 
The state legislature has tried several times in the past to find a compromise between landowners and sportsmen. The last time lawmakers held a summer study session to address the issue was 16 years ago.
 
After decades of discussion, this legislature now looks at crafting a new solution over the coming months.