State of South Dakota
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EIGHTY-EIGHTH SESSION
LEGISLATIVE ASSEMBLY, 2013
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309U0441
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HOUSE ENGROSSED NO. HB 1135 - 02/13/2013
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Introduced by: Representatives Hoffman, Craig, Cronin, Duvall, Feickert, Gosch, Greenfield,
Kopp, May, Nelson, Olson (Betty), Qualm, Schaefer, Schoenfish, and
Schrempp and Senators Rhoden, Begalka, Bradford, Brown, Ewing, Frerichs,
Lucas, Maher, Monroe, Novstrup (Al), Rampelberg, and Vehle
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FOR AN ACT ENTITLED, An Act to regulate access to and use of public waters on public and
private property.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF SOUTH DAKOTA:
Section 1. The Legislature finds:
(1) The South Dakota Constitution's specific private property protections, including
recognition of the inherent right of acquiring and protecting property and the
prohibition on taking or damaging private property for public use without just
compensation, protect against government's broad recognition or grant of a public
recreation easement to access or use public water on private property;
(2) General statutory provisions declaring public ownership of water and recognizing
existing rights of use are insufficient to overcome the specific constitutional
protections for private property and do not justify inviting widespread unauthorized
invasion of private property for recreation purposes where public access has never
existed or has not existed for a sufficient period and under the conditions required to
support recognition under this Act;
(3) Whether, or to what extent, a public easement exists for recreational use of public
waters on private property is uncertain after judicial decision in the case of Parks v.
Cooper, 2004 SD 27. This decision held that the Legislature, rather than the courts,
has an obligation to determine the extent of the public's right to use nonmeandered
bodies of water held in trust for the public by the state, and did not address the
constitutional prohibition on taking or damaging private property without just
compensation;
(4) It is necessary to foster restoration of accommodation existing between recreational
users and private property owners and recognize adverse use as a constitutionally
sound and manageable basis for establishing a limited right of public recreational
access on private property in accordance with this chapter.
Section 2. Terms used in this Act mean:
(1) "Department," the Department of Game, Fish and Parks;
(2) "Private property to which access is restricted," privately-owned real property in
which fishing, hunting, or trapping is prohibited pursuant to § 41-9-1. The term
includes privately-owned real property that lies beneath nonmeandered public waters,
in which the owner or any other person legally in possession of the property posts
conspicuous markings that are plainly visible and understandable to the public
restricting or prohibiting recreational use of the water overlying the private property
at all public roadways, public rights-of-way, or other lawful points of public access
that abut the public water on private property;
(3) "Public access area," the limited part of privately-owned property that:
(a) Lies beneath or within three feet of a public water or that is the most direct,
least invasive, and closest means of portage around an obstruction in a public
water;
(b) Is open to public recreational access; and
(c) Can be accessed from an adjoining public access area or public right-of-way;
(4) "Public recreational access," the right to engage in recreational access established in
accordance with section 4 of this Act;
(5) "Public water," water as described in § 46-1-3. Recreational access to public water
does not include water flowing or collecting on private property in a manmade
irrigation canal, irrigation ditch, or impoundment or reservoir constructed outside a
natural or realigned channel;
(6) "Recreational access," the use of public water, and the touching of a public access
area incidental to the use of the public water, for floating, fishing, or waterfowl
hunting conducted in compliance with applicable law or rule.
Section 3. The public may use a public water for recreational activity to the extent the
recreational activity is not otherwise prohibited by law, unless the public water is on private
property to which access is restricted. A person may access and use a public water on private
property to which access is restricted for any lawful purpose with the private property owner's
permission. A person may not access or use a public water on private property for recreational
activity if the private property is property to which access is restricted, unless public recreational
access is established under section 4 of this Act.
Section 4. The following principles, requirements, and restrictions apply to public
recreational access to public water on private property:
(1) Public recreational access is established if:
(a) The nonmeandered public water overlying private property has been used by
the public for recreational access for a period of at least twenty-one
consecutive years; and
(b) The public use has been:
(i) Continuous during the season conducive to the recreational access;
(ii) Open and notorious;
(iii) Adverse; and
(iv) Without interruption;
(2) The permissive use of a public water on private property granted by the owner is not
an adverse use;
(3) A property owner's overt act intended to interrupt uninvited recreational access is a
sufficient interruption to restart any period of use that may have already begun under
subdivision (1) if the evidence, taken as a whole, shows that the act came to the
attention of the public or resulted in actual interruption. If an overt act is established
in a final judgment to have interrupted recreational access, no other person may
challenge the existence of the overt act in a subsequent action;
(4) The extent and nature of the public recreational access permitted under subdivision
(1) is determined by the nature of the historical recreational access during the
twenty-one consecutive years required under subdivision (1);
(5) If a public water is a lake, pond, or reservoir located on private property, any portion
that has been developed or protected for private hunting is not subject to public
recreational access even though the remainder of the public water qualifies for public
recreational access under this section;
(6) A right of public recreational access on private property, established in accordance
with this section, may not be closed without authorization of other law.
Section 5. The following principles, requirements, and restrictions apply to actions to
determine the existence of public recreational access to public waters on private land:
(1) A person, including the department, may file a quiet title action in accordance with
chapter 21-41 to obtain a judicial declaration of the existence of a right to public
recreational access under section 4 of this Act. The department may intervene in a
quiet title action filed in accordance with this subdivision. The department may not
be compelled to file a quiet title action or join a quiet title action filed by another
person;
(2) The claimant in a quiet title action under subdivision (1) shall name each property
owner of record as a party and notify the department of the suit by certified mail no
later than twenty days after the day on which the quiet title action is filed;
(3) Within five days after receiving notice in accordance with subdivision (2), the
department shall post notice of a quiet title action under this section on its internet
website;
(4) A quiet title action under this section shall be commenced within four years after the
day on which a period of prescriptive use ceases;
(5) The burden of proof for a quiet title action under this section is on the claimant to
prove the existence of a right to public recreational access under section 4 of this Act
by clear and convincing evidence;
(6) A quiet title action under this section is limited to a declaration concerning the
property and property owner joined in the action;
(7) Multiple claimants and multiple property owners may be included in a quiet title
action concerning public water common to the property owners. In a case with
multiple property owners, the court shall make a separate finding concerning each
property owner included in the action;
(8) A final judgment on the merits that a piece of private property is not subject to public
recreational access is binding and may not be challenged in subsequent litigation;
(9) The court may award attorney fees and costs in an action under this section if the
court finds that the losing party's arguments lack a reasonable basis in law or fact.
Section 6. The following principles, requirements, and restrictions apply to actions for
injunctive relief relating to recreational use of public waters on private land:
(1) The owner of private property may obtain injunctive relief against a person who,
without permission, enters, remains, or persists in an effort to enter or remain on the
owner's property for recreational use of public water other than use in accordance
with section 4 of this Act, when effective;
(2) An injunction under this section is in addition to any remedy for trespass;
(3) The existence of an easement under section 4 of this Act is a defense in an action for
injunctive relief under this section or a claim of trespass under other law;
(4) If a person against whom an injunction is sought, or a person charged with trespass,
establishes by clear and convincing evidence the existence of an easement for defense
purposes, as described in subdivision (3), the establishment of the existence of the
easement applies only to the defense and does not constitute a judicial declaration of
the easement's existence for another purpose;
(5) If an owner obtains an injunction against a person under this section, the injunction
does not serve as a declaration that there is no public easement on the owner's
property;
(6) The court may award attorney fees and costs in an action under this section if the
court finds that the losing party's arguments lack a reasonable basis in law or fact.
Section 7. Nothing in this Act affects the right of the public to use public water for public
recreational access, including the touching of the bed beneath the public water, if the bed
beneath the public water is public property or the bed beneath the public water is private
property to which access is not restricted. A person using a public water for public recreational
access is subject to any other restriction lawfully placed on the use of the public water by a
governmental entity with authority to restrict the use of the public water. Nothing in this Act
limits or enlarges any right granted by express easement. When leaving a public access area, a
person shall remove any refuse or tangible personal property the person brought into the public
access area.
Section 8. The owner of a public access area adjacent to and lying beneath a public water
may place a fence or obstruction across the public water for agricultural, livestock, or other
lawful purposes. The fence or other obstruction shall comply with any applicable federal, state,
or local law and be constructed in a manner that does not create an unreasonably dangerous
condition to the public lawfully using the public water. The owner of a public access area shall
place or allow the placement of a ladder, gate, or other facility allowing portage around a fence
or obstruction if the owner places a fence or obstruction across a public water in accordance
with this section and the water is open to public recreational access by permission or under
section 4 of this Act.
Section 9. A property owner or person legally in possession of the private property who
posts conspicuous markings that are plainly visible and understandable to the public restricting
or prohibiting recreational use of the water overlying the private property at all public roadways,
public rights-of-way, or other lawful points of public access that abut the public water on private
property shall file a notice with the department verifying that the area was marked in accordance
with this Act.
Section 10. The liability of any landowner owning private land underlying a public water
open to use under section 4 of this Act is limited as provided for in §§ 20-9-12 to 20-9-18,
inclusive.
Section 11. That § 46-1-3 be amended to read as follows:
46-1-3. It is hereby declared that all water within the state is the property of the people of
the state, but the right to the use of water may be acquired by appropriation as provided by law.
The declaration of public ownership of water in this section does not create or recognize an
easement for public recreational use on private property. The Legislature shall govern the use
of public water for beneficial purposes, as limited by constitutional protections for private
property. The right of the public to use public water for recreational purposes is governed by this
Act.
Section 12. Nothing in this Act limits or restricts the public's right to recreational use of any
river designated as navigable pursuant to federal law, stream defined as navigable by § 43-17-34, or any meandered lake.
Section 13. On any meandered lake, the provisions of this Act are subject to § 43-17-29.