Public Access To Private Land Via Water

Overview

Private property and the ability to exclude others is very important to farmers and ranchers.  Land is typically the largest asset in terms of value that an ag producer owns and much farm and ranch machinery and equipment is often outdoors frequently during planting and harvesting.  Not to mention buildings and livestock.  So, trespassing is a big issue for rural landowners. 

One issue that has popped-up recently in South Dakota involves public access to farmland that has become flooded.  What are the rules associated with the recreational use of water?  That’s the focus of today’s post.

Public Access

In the United States, the individual states own the beds of navigable streams or lakes that flow or exist within their borders, and hold them in trust for their citizens.  Under this public ownership concept, states may license use of the beds or lease rights to minerals found there.  The right of the public to recreate over the bed can be asserted either because there is a federal navigational servitude or because the state has an expanded definition of navigability which allows more public uses than exist under federal law.

Under state law, the public's right to use rivers or lakes for recreational purposes is typically limited to those waters where the state owns the bed.  For non-navigable streams, the title to the bed is held by the adjacent upland owner.  Consequently, ownership of the bed is related to the concept of navigability.  In general, navigability for title purposes is determined by the “natural and ordinary condition” of the water. 

Although a federal test for bed title controlled the rights that states received upon joining the Union, state title tests are still important.  When the states received title to the beds, they had the power to keep or dispose of them.  Before the Supreme Court decisions which required federal law to be used in determining bed ownership, there were many state court decisions.  These tests are still in use today and many conflict with federal law.  When they do, federal law controls for title purposes (under the definition of “navigability”), but state law has been incorporated into this to determine what rights the state retains and what rights were granted to adjacent landowners.  For example, some states keep title to watercourse beds only where there is a title influence.  Other states follow a rule of “navigability in fact” similar to the federal rule.  In these jurisdictions, the state retains title to watercourse beds only if the watercourse is navigable in fact.  The remaining states use other approaches. 

In early 2014, the New Mexico attorney general issued a non-binding opinion taking the position that a private landowner cannot prevent persons from fishing in a public stream that flows across a landowner’s property if the stream is accessible without trespassing across privately owned adjacent lands.  Att’y. Gen. Op. 14-04 (Apr. 1, 2014).  That opinion was based on New Mexico being a prior appropriation state and, as a result, unappropriated water in streams belongs to the public and is subject to appropriation for beneficial use irrespective of whether the adjacent landowner owns the streambed.  Thus, the public has an easement to use stream water for fishing purposes if they can access the stream without trespassing on private property.

There are several other ways states have power over the water within their boundaries.  Under its police power, a state may regulate its waters, whether or not they are navigable under the federal test, in order to protect the public's health, safety, and general welfare.  Some western states claim ownership of all the water in the state, and as the owner, they claim the power to regulate.  Other states limit their control to those waters considered navigable under bed ownership tests.  As a result, state laws on public use of watercourses are a complex mix of cases and legislation. 

The South Dakota Situation

Under South Dakota law, “the owner of land in fee has the right to the surface and everything permanently situated beneath or above it.”  S.D.C.L. §43-16-1.  In addition, South Dakota law provides that (with some specifically delineated exceptions), “…no person may fish, hunt or trap upon any private land without permission from the owner or lessee of the land….”.  S.D.C.L. §41-9-1.  Numerous states have similar statutory provisions.  South Dakota also claims to own all wildlife in the state, including wildlife on private land.  But, hunters cannot hunt that wildlife without the landowner’s permission unless the landowner is participating with the South Dakota Department of Game, Fish and Parks (GFP) in the “walk-in” program.  Under that program, and landowner can give permission to the public to hunt on the landowner’s property in exchange for a payment from the GFP.  Many other states also claim to own the wildlife found in the state and offer some sort of “walk-in” program. 

South Dakota law, just like the laws of many other states, also bars “road hunting” outside of the public right-of-way.  Thus, by barring hunting over private land from a public roadway, the state is recognizing landowners have “air rights” over their private property.  

But, what about fishing?  In a March decision, the South Dakota Supreme Court ruled that all water in the state is held in the public trust for “beneficial use.”  That doesn’t seem unreasonable – other state high courts have reached the same conclusion.  But, the Court held that the “beneficial use” rule applies to flooded private land (non-meandered lakes).  This became an issue in South Dakota due to excess rainfall in 1993 which caused the formation of large lakes on private land in the northeastern part of the state.  Fishermen flocked to the expanded lakes and the SD GFP didn’t stop them.  The matter boiled over into litigation resulting in the Court’s recent decision. 

The South Dakota Case

In Duerre v. Hepler, No. 27885, 2017 S.D. LEXIS 29 (S.D. Sup. Ct. Mar. 15, 2017), landowners sued the SD GFP for declaratory and injunctive relief concerning the public’s right to use the waters and ice overlying the landowners’ private property for recreational purposes.  As noted above, in 1993, excessive rainfall submerged portions of the landowners’ property. In accordance with instructions from the United States Surveyor General’s Office, commissioned surveyors surveyed bodies of water in SD in the late 1800s. Pursuant to those survey instructions, if a body of water was 40 acres or less or shallow or likely to dry up or be greatly reduced by evaporation, drainage or other causes, surveyors were not to draw meander lines around the body of water but include it as land available for settlement.  The meander lines delineated the water body for the purpose of measuring the property that abuts the water.   When originally surveyed, the lands presently in question were small sized sloughs that were not meandered. Thus, the landowners owned the lakebeds under them. The 1993 flooding resulted in the sloughs expanding in size to over 1,000 acres each. The public started using the sloughs in 2001 and established villages of ice shacks, etc. In the spring and fall, boats would launch in to the waters via county roads. After the landowners complained to the GFP about trash, noise and related issues, the GFP determined that the public could use the waters if they entered them without trespassing.  That’s sounds exactly like the New Mexico Attorney General opinion in 2014. 

In 2014, the landowners sued. The trial court certified a defendant class to include those individuals who used or intended to use the floodwaters for recreational purposes, appointing the Secretary of the GFP as the class representative. On cross motions for summary judgment, the trial court entered declaratory and injunctive relief against the defendants. The trial court held that the public had no right of entry onto the water or ice without a landowner’s permission, and entered a permanent injunction in favor of the landowners.

On appeal, the South Dakota Supreme Court upheld the trial court’s decision to certify the class and include non-residents users in the class. The Court also upheld the trial court’s determination that the landowners had established the elements necessary for class certification and that the GFP Secretary was the appropriate class representative. The Court also upheld the trial court’s grant of declaratory relief to the landowners, noting that prior caselaw had left the matter up to the legislature and the legislature had not yet enacted legislation dealing with the issue. The legislature had neither declared that the public must obtain permission from private landowners, nor declared that the public’s right to use waters of the State includes the right to use waters for recreational purposes.

The Court remanded the order of declaratory relief and modified it to direct the legislature to determine whether the public can enter or use any of the water or ice located on the landowners’ property for any recreational use. As for the injunctive relief, the Court modified the trial court’s order to state that the GFP was barred from facilitating public access to enter or use the bodies of water or ice on the landowners’ property for any recreational purpose. 

Conclusion

In short, the SD Supreme Court found that neither the GFP nor the landowners have a superior property right, but that the issue is up to the legislature to determine if recreation is a “beneficial use.”  The issue is not just an important one for landowners in South Dakota.  State rules for determining access rights to private property are important in every state.  It certainly seems like a reasonable solution could be reached in South Dakota to protect private property rights while simultaneously providing reasonable access for fishermen.  Time will tell.