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Concerns persist over law limiting public access to lakes

A state law allowing landowners to privatize access to sections of public lakes continues to cause confusion in northeastern South Dakota.

Ryan Roehr has been fishing in the Webster area all his life. He’s also a board member for the South Dakota Wildlife Federation.

Roehr said the state has closed off access to some prime fishing spots.

“This is Mallard and Two Mile Lake by Fort Sisseton, and it is closed off, 90% closed off to the public,” Roehr said. “There’s a person that got a ticket recently for fishing from the shore here, got a ticket from the Game, Fish and Parks.”

A 2017 law gives landowners private access to almost 5,800 acres of surface water.

Background

In the early ‘90s, the northeastern part of the state started to see a rapid increase in moisture. Small bodies of water grew into lakes, and some lakes doubled in size. Some landowners suddenly found themselves paying taxes on land now underwater.

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Google
Day County water in 1990 vs 2020

Simultaneously, waterfowl hunters and anglers were discovering new areas to explore — sometimes scaring livestock and even causing property damage.

Doug Johnson owns the Sportsman's Cove, a bait shop in Webster.

“People didn't know what they could do and where they could fish, where they couldn't fish,” Johnson said.

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SDPB
Doug Johnson with the Sportsman's Cove in Webster.

The contentious issue was a source of debate for almost two decades.

Frank James owns land near Webster. Some of that land was flooded during the early 1990s.

But for James, the issue has never been about the flooding.

“If you pay the tax, you control the property. He's paying tax on it. And you should be able to control the property. That's the American way, isn't it?” James said.

However, a 2004 state Supreme Court ruling had some anglers thinking the matter was settled — and in favor of public access.

The court ruled in Parks v. Cooper that under the public trust doctrine, the lakes are to be used however is most beneficial to the public — and that the Legislature was to sort out the nuances.

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Supreme Court's Conclusion

Then, a couple of Webster area landowners sued the state in 2017.

The South Dakota Supreme Court heard that case and ruled that lakes are a public trust resource. But justices said until the Legislature sorted out the nuances, there would be no access to the lakes in question.

Bait shop owner Doug Johnson said that move was trouble for the regional fishing economy.

“It was a definite couple of months that were very, very quiet,” Johnson said. “There were a lot less boats in town, a lot less tourism.”

That’s what prompted the Legislature to pass the Open Waters Compromise. It splits lakes into two categories — meandered and nonmeandered.

Meandered lakes are those that mapmakers drew during early statehood.

Nonmeandered lakes are all other lakes.

The law allows landowners to petition to close off part of a nonmeadered lake if they own the land underwater.

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If landowners want part of a lake sectioned off, they submit a petition to Game Fish and Parks. If it’s approved, the landowner must post private property signs and buoy off the section.

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SDPB
This public access point was built on a lake that grew after large amounts of moisture in the early '90s.

Disputes continue

But outdoorsman Ryan Roehr said the state is now closing off parts of lakes federal surveyors included in their maps.

“Waubay Lake, part of it is being closed off. Part of Antelope Lake and Swan Lake are being closed off. And so I see the slow, slippery slope started,” Roehr said. “And I don't see where in the law that can happen. I've asked around about it and I haven't got a clear answer."

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Examples of meandering lakes having sections closed off to public access.

As water levels rise, meandered lakes grow outside of their originally drawn boundaries — putting parts of those lakes over private land.

However, the Game, Fish, and Parks 2015 survey of those lakes identifies them as lakes mapmakers drew.

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GFP

Robert Whitmyre advocated for landowners to have the right to privatize access to sections of lakes back in 2017.

Today, he sits on the Game, Fish, and Parks Commission — a body picked by the governor that helps oversee the department.

Whitmyre said limiting access to sections of map-drawn lakes is legal because the water covers private land.

"I want to make the point that this is far from prevalent and it's far from significant, I mean if you look at the total acreage privately held," Whitmyre said.

SDPB was unable to find any records of public hearings regarding the privatization of access to the lakes in question — something Roehr said should happen when closing access to a public trust resource.

The Game, Fish and Parks Department did not reply to requests for an interview or an inquiry into how many citations have been issued for trespassing.

However, Secretary Kevin Robling said in a statement that the Open Waters Compromise has kept over 230,000 acres of publicly accessible water open for recreational use, while providing landowners the ability to close access to certain areas.

John Cooper is a past secretary of the Game, Fish and Parks Department, now retired.

Cooper said he’s glad the Legislature finally made a decision, but he said the state law is ill-informed.

“The problem that we have is that what they tried to do is take the nonmeandered water, and they tried to figure out a way to quote, divvy it up, and said, ‘Well, geez, maybe we ought to also limit some of the meandered water that's gone way over the top of public property,’” Cooper said.

Cooper said the state is undermining what’s called the public trust doctrine. That says public lakes should be used to benefit the public.

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SDPB
A public access point is more-or-less blocked and fenced off, deterring recreational users from utilizing their water.

Bait shop owner Doug Johnson said he’s worried confusion over what’s open for public fishing will prevent people from going.

“I think a lot of our general public comes and just wants to have an enjoyable time here. They don't want confrontation. They don't want to get chewed out for being where they shouldn't be,” Johnson said.

Johnson said the results of the 2017 law do offer some clarity for anglers — if a lake is not officially marked closed, it's open to public access.

Doug Johnson’s brother, Paul, runs a hunting and fishing lodge in the Webster area. Paul Johnson and his family converted their dairy farm into a hunting lodge after an increase in moisture, but never petitioned the state to restrict access to a portion of lake that covers their private property.

Paul Johnson said it's not just people who lost land to the flooding of the early '90s that are looking to get a private piece of lake.

"Now it's all going commercial, the way it looks," Johnson said. "There are out-of-state people buying a piece of the pie now and trying either to commercialize or have their own hunting groups."

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Paul Johnson

Landowner Frank James now has some private lake access. And to have more private lake access, he later bought more land under water.

James said anyone should be able to privatize access to parts of a lake that are on their land.

“I don't see how in this free country you could deny someone the right to buy that property and control it the way they want because they weren't here when the law was passed,” James said.

James knows another landowner with private lake access that started an outdoorsmen’s club where members pay a fee to join to use the land and lake. He said the idea that the fish are GFP’s natural resource is a farce.

“The people are disgusted because the person that has the property is going to make some money off the property,” James said. “Why can't the guy that has lakeshore property charge somebody to join this club?”

Commissioner Whitmyre said the law states it is illegal for a landowner to make money on a section of a lake that has been awarded private access. He said he is unaware of anyone doing that, and that wealthy out-of-staters buying up lakeshore land is not a growing trend.

See the nearly 5,800 acres of lake awarded private access in South Dakota below:

Joshua is the business and economics reporter with SDPB News.