Gone fishin' on farmland

WEBSTER, S.D. -- The South Dakota Legislature put a temporary bandage on the festering conflict between land and water rights in northeast South Dakota, but farmers say they're waiting for permanent solutions.

Frank James Sr. is a Day County commissioner and farmer from Lilly, S.D. James is a descendant of homesteaders predating statehood, started a "No Access Forever" concept that friends turned into an effort for permanent signage. Someone with a shotgun has damaged the signs. Photo taken June 6, 2017, Webster, S.D. (Forum News Service/Agweek/Mikkel Pates)

WEBSTER, S.D. - The South Dakota Legislature put a temporary bandage on the festering conflict between land and water rights in northeast South Dakota, but farmers say they're waiting for permanent solutions.

The issue has been between landowners and the South Dakota Game, Fish and Parks Department (SDGFPD), which has helped sportsmen take advantage of rising waters that have flooded farmland over the last 25 years.

Two landowner groups had won court cases asserting their land rights beneath those waters. The South Dakota Supreme Court put the matter in the hands of the state Legislature and the SDGFPD had forced the issue by shutting down access to all so-called "non-meandered" lakes, including 25 larger ones that been in heavy use for most of 100 years.

Gov. Dennis Daugaard called a special session of the Legislature, which on June 12 passed an emergency bill. The bill will expire in 2018, and the Legislature will take up the issue again in the coming session.

It is difficult to say whether the legislative fix helped summer tourism.


Jay Pereboom, his wife, Janice, and their family run restaurant and lodging businesses that have catered to sportsmen since 1976. About three-quarters of that is fishing. Bookings were made through June, and it's difficult to say if the controversy - or break - has changed things.

Pereboom says he understands farmers' frustrations but would like lakes that "have been proven for over 20 years to remain open and stay the same."

Wet or dry

Bob Whitmyre, 53, works in a manufacturing career in Watertown, S.D., and farms the family land near Webster. He says the legislation "reinforces the long-standing concept that private property - wet or dry - is still private property." It also allows access where landowners permit use of property but allows landowners to post property where they want it.

"It's a step back from where we were 15 years ago, where you were never questioned whether anyone could go on your property without permission," Whitmyre says. "We have the burden of posting our property, but we do have that option."

He would have liked to see the law last through 2021, for a test of the concept and as a "reprieve from having to advocate for property rights."

Whitmyre's farm has 1,100 acres and 28 wetlands. If the fishermen and waterfowling access were unfettered, he'd have almost no private property left.

"The essence of it being private would be gone," he says.


Value is paramount

One concern is livestock production in which electric line goes as far as possible into the water to keep the cattle in. SDGFPD tells people who can access a pond from a public access that they have the right to be on the entire surface.

"We end up with liability for all of these fences and fence posts sticking up from the water," Whitmyre says.

"The jury is still out on the solution," says Frank James Sr., a Day County commissioner and farmer from Lilly, S.D. James is a descendent of homesteaders predating statehood and has been active in pursuing property rights for landowners. "We don't think this present bill satisfies property rights, and we feel there is a 'taking' there."

Troy, Butler and Valley townships have vacated unimproved section lines in an attempt to limit access to sportsmen and others. The district court in Webster found in favor of the townships, but SDGFPD has sued the townships and the case is in the South Dakota Supreme Court. A York Township case is awaiting in district court.

South Dakota has 700,000 acres of public lakes for 215,000 fishing licenses - 3.2 acres per fisherman. Fishermen fish only 15 days a year. Whatever that value is must be balanced against the economics of farming - $600 an acre in value for corn, plus a multiplier effect, Whitmyer says.

"That value needs to be paramount," Whitmyre says. "It's really difficult to hear how the pennies per acre for fishing bring into these communities when we have hundreds of thousands - into the millions - of lost agricultural productivity that's been idle for 24 years in some cases."

He worries about 30 years from now, when there are even fewer rural legislators than there are today.


Bill Simonson, Roslyn, S.D., says the compromise is "far from a perfect law" but will help some, giving "some rights back to some of us." He says allowing some posting gives "a small portion of our rights back that we've lost over the years."

Farmers still own the land under the water and pay taxes on it, even at reduced rates at times.

Simonson and other landowners were approached by the SDGFPD to rear fish fingerlings in sloughs that were rising and had no fish in them. The areas were expected to be temporary nurseries that would freeze out annually. But heavy rains doubled the depth, and lakes in a week quickly became an attraction to outsiders. The list of these rearing-pond-turned lakes became magnets for fishermen who have "kind of run all over us."

Danny Smeins, part-time Day County state's attorney, says as the water rose there was a succession of relief for rising water - crop insurance, disaster payments, Conservation Reserve Program - but tools don't apply to grassland or pasture that's been flooded.

His office has dealt with issues involving people launching boats off county roads or trespassing across lands, as well as problems with parking and people blocking approaches.

"We've just been trying to keep the peace," Smeins says.

Mikkel Pates is an agricultural journalist, creating print, online and television stories for Agweek magazine and Agweek TV.
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