The third and final meeting of the interim Agriculture and Natural Resources Committee was called to order by Chair Kenneth Wetz at 8:35 a.m., October 30, 2000, in Legislative Conference Rooms 1 and 2 of the State Capitol, Pierre, South Dakota.

A quorum was determined with the following members answering the roll call: Senators Bob Drake, Paul N. Symens, and Drue J. Vitter; and Representatives William F. Cerny, Elmer Diedtrich, Art Fryslie, Gary D. Hanson, Doug Kazmerzak, Claire B. Konold, Jim Lintz, Joanne Lockner, Robert R. Weber, and Kenneth Wetz. Senators Frank J. Kloucek and Paul Valandra were unable to attend.

Staff members present included Reuben D. Bezpaletz, Chief of Research Analysis and Legal Services; David L. Becker, Senior Fiscal Analyst; and Teri Retrum, Senior Legislative Secretary.

(NOTE: For sake of continuity, the following minutes are not necessarily in chronological order. Also, all referenced documents are on file with the Master Minutes.)

SENATOR SYMENS MOVED, SECONDED BY REPRESENTATIVE WEBER, THAT THE MINUTES OF THE SECOND MEETING (AUGUST 28 & 29, 2000) BE APPROVED. The motion prevailed unanimously on a voice vote.

Mr. Bezpaletz noted a letter received from Mr. Jack H. Hieb, State's Attorney, Day County, in which Mr. Hieb discusses some of the legislation (Document #2).

Mr. Bezpaletz also distributed copies of a "Summary of Studies of the Waubay Lakes Chain and Adjoining Closed Basins in Northeastern South Dakota" (Document #3).

Draft E0045 (Mellette)?An Act to permit the fencing of certain lakes, ponds, and sloughs for contamination of livestock.

SENATOR SYMENS MOVED, SECONDED BY REPRESENTATIVE WEBER, THAT THE COMMITTEE ADOPT DRAFT LEGISLATION E0045 (MELLETTE) FOR INTRODUCTION AS A COMMITTEE BILL IN THE 2001 LEGISLATIVE SESSION.

Committee discussion ensued. Senator Paul Symens stated that the draft legislation outlines the law in a very simple and clear manner. Mr. Bezpaletz said that the draft only addresses stationary bodies of water; it does not address streams. Senator Bob Drake expressed concern that the draft legislation does not specifically state that a fence must be highly visible. Senator Symens said that a landowner must be able to drive a fence to contain cattle. Representative Jim Lintz said that a legislative body has "no right to dictate to a landowner that private property cannot be fenced to contain livestock." Senator Drake said that his only concern is that an individual accessing the water be able to see the fence and that a gate be available in the fence so that access is not hindered.

SENATOR DRAKE MOVED, SECONDED BY REPRESENTATIVE KONOLD, THAT DRAFT E0045 (MELLETTE) BE AMENDED AS FOLLOWS:

ON PAGE 1, LINE 10, AFTER THE PERIOD, INSERT "THE FENCE MUST BE CLEARLY VISIBLE WITH AN AVAILABLE GATE FOR PUBLIC ACCESS."

ON PAGE 1, LINE 13, DELETE EVERYTHING AFTER "DAMAGES" AND INSERT "OR INJURIES SUSTAINED BY THE CONSTRUCTION AND MAINTENANCE OF ANY FENCE PROVIDED FOR".

ON PAGE 1, DELETE LINE 14.

Committee discussion ensued. Senator Symens said that anyone who accesses water which lies over private land for recreational purposes has to assume "some responsibility to know where he is going and what he is doing" in order to avoid injury. Representative William Cerny expressed concern about mandating gates in fences and said that perhaps signs could be placed around a lake warning that a lake contains a fence. Representative Claire Konold said that permitting fencing of certain waters "could be a real donnybrook for safety?what about water skiing, jet skiing?" Senator Drue Vitter suggested that Senator Drake's amendment be divided and that the committee vote on the two portions separately. Representative Elmer Diedtrich expressed support for the draft legislation as written. Senator Symens said that he was more comfortable with the second portion of the amendment than the first portion.

Chair Wetz declared that the amendment would be separated as follows and voted on accordingly:

ON PAGE 1, LINE 10 OF DRAFT 0045 (MELLETTE), AFTER THE PERIOD, INSERT "THE FENCE MUST BE CLEARLY VISIBLE WITH AN AVAILABLE GATE FOR PUBLIC ACCESS." This portion failed on a roll call vote with 2 voting AYE, 11 voting NAY, and 2 EXCUSED. Those voting AYE: Drake and Konold. Those voting NAY: Symens, Vitter, Cerny, Diedtrich, Fryslie, Hanson, Kazmerzak, Lintz, Lockner, Weber, and Wetz. Those EXCUSED: Kloucek and Valandra.

ON PAGE 1, LINE 13, DELETE EVERYTHING AFTER "DAMAGES" AND INSERT "OR INJURIES SUSTAINED BY THE CONSTRUCTION AND MAINTENANCE OF ANY FENCE PROVIDED FOR".

ON PAGE 1, DELETE LINE 14.

This portion prevailed on a roll call vote with 11 voting AYE, 2 voting NAY, and 2 EXCUSED. Those voting AYE: Symens, Vitter, Cerny, Diedtrich, Fryslie, Hanson, Kazmerzak, Lintz, Lockner, Weber, and Wetz, Those voting NAY: Drake and Konold. Those EXCUSED: Kloucek and Valandra.

REPRESENTATIVE HANSON MOVED, SECONDED BY SENATOR SYMENS, THAT THE COMMITTEE ADOPT DRAFT LEGISLATION E0045 (MELLETTE), AS AMENDED, FOR INTRODUCTION AS A COMMITTEE BILL IN THE 2001 LEGISLATIVE SESSION. The motion prevailed on a roll call vote with 11 voting AYE, 2 voting NAY, and 2 EXCUSED. Those voting AYE: Symens, Vitter, Cerny, Diedtrich, Fryslie, Hanson, Kazmerzak, Lintz, Lockner, Weber, and Wetz, Those voting NAY: Drake and Konold. Those EXCUSED: Kloucek and Valandra.

Draft 0044 (Sheldon)?An Act to prohibit the launching of boats from public highways under certain circumstances and to provide penalties therefor.

REPRESENTATIVE KAZMERZAK MOVED, SECONDED BY SENATOR SYMENS, THAT THE COMMITTEE ADOPT DRAFT LEGISLATION E0044 (SHELDON) FOR INTRODUCTION AS A COMMITTEE BILL IN THE 2001 LEGISLATIVE SESSION.

Mr. Glen Gebur, Lily, SD, stated: "I am glad to see people are addressing this issue. We will need people to catch the person launching a boat. We will have to have someone to call so they can be caught."

Representative Konold said that in his opinion the provisions in the draft are not enforceable.

Representative Doug Kazmerzak said that "it is the same thing with driving on the highway?numerous drivers can be speeding and you're the one picked up; that's the way life is?this legislation is the same principle." He expressed support for the draft.

Senator Symens said that the language could be included in the Department of Game, Fish and Parks handbooks for hunters, recreationists, and fishermen so that everyone would be aware of the law. He said that individuals using the water would have to be responsible for obeying the law. Senator Symens said that this is responsible legislation.

The motion prevailed on a roll call vote with 10 voting AYE, 3 voting NAY, and 2 EXCUSED. Those voting AYE: Symens, Vitter, Cerny, Diedtrich, Fryslie, Hanson, Kazmerzak, Lintz, Lockner, and Weber, Those voting NAY: Drake, Konold, and Wetz. Those EXCUSED: Kloucek and Valandra.

Draft 0038 (Lee)?An Act to create a compensation program for inundated private land.

SENATOR SYMENS MOVED, SECONDED BY REPRESENTATIVE WEBER, THAT THE COMMITTEE ADOPT DRAFT LEGISLATION E0038 (LEE) FOR INTRODUCTION AS A COMMITTEE BILL IN THE 2001 LEGISLATIVE SESSION.

Senator Symens said that this draft legislation concerns a property rights issue more than a compensation issue. He said that it would be a responsible action by the Legislature to direct the Department of Game, Fish and Parks to develop a mechanism to enable hunters, fishermen, and recreationists to work in concert with the department to create some type of program to compensate the landowner for use of the land.

Senator Drake said that, after touring the area and viewing the video and seeing the private property inundated by water, a monetary solution would be cost prohibitive.

Representative Robert Weber said that a program similar to the Walk-in Program could be developed. He said that the program has been very successful, and he expressed support for the draft legislation.

Mr. Doug Hansen, Department of Game, Fish and Parks, said that there are approximately 800,000 acres in South Dakota which are part of the Walk-in Program. He questioned whether the department should be involved in paying for water that is already open to the public.

Representative Kazmerzak said that the idea of compensation was not a highlighted issue among those testifying at the committee's meeting in northeastern South Dakota. He said that perhaps it is premature to discuss compensation. Representative Kazmerzak said that he could not support the draft legislation at this time.

The motion failed on a roll call vote with 3 voting AYE, 10 voting NAY, and 2 EXCUSED. Those voting AYE: Symens, Lockner, and Weber. Those voting NAY: Drake, Vitter, Cerny, Diedtrich, Fryslie, Hanson, Kazmerzak, Konold, Lintz, and Wetz. Those EXCUSED: Kloucek and Valandra.

Draft E0042 (Herreid)?An Act to prohibit hunting on public waters within six hundred sixty feet of an occupied dwelling, church, schoolhouse, or livestock without written permission from the adjoining landowner.

REPRESENTATIVE WEBER, MOVED, SECONDED BY SENATOR SYMENS, THAT THE COMMITTEE ADOPT DRAFT LEGISLATION E0042 (HERREID) FOR INTRODUCTION AS A COMMITTEE BILL IN THE 2001 LEGISLATIVE SESSION. The motion prevailed unanimously on a roll call vote with 13 voting AYE, 0 voting NAY, and 2 EXCUSED. Those voting AYE: Drake, Symens, Vitter, Cerny, Diedtrich, Fryslie, Hanson, Kazmerzak, Konold, Lintz, Lockner, Weber, and Wetz, Those voting NAY: None. Those EXCUSED: Kloucek and Valandra.

Draft E0049 (Elrod)?An Act to establish a public policy of protecting cropland and pasture in county drainage plans.

SENATOR DRAKE MOVED, SECONDED BY REPRESENTATIVE KONOLD, THAT THE COMMITTEE DO NOT ADOPT DRAFT LEGISLATION E0049 (ELROD) FOR INTRODUCTION AS A COMMITTEE BILL IN THE 2001 LEGISLATIVE SESSION.

REPRESENTATIVE KAZMERZAK MADE A SUBSTITUTE MOTION, SECONDED BY REPRESENTATIVE CERNY, THAT THE COMMITTEE ADOPT DRAFT LEGISLATION E0049 (ELROD) FOR INTRODUCTION AS A COMMITTEE BILL IN THE 2001 LEGISLATIVE SESSION.

The substitute motion prevailed on a roll call vote with 9 voting AYE, 4 voting NAY, and 2 EXCUSED. Those voting AYE: Symens, Vitter, Cerny, Diedtrich, Fryslie, Hanson, Kazmerzak, Lockner, and Weber. Those voting NAY: Drake. Konold, Lintz, and Wetz. Those EXCUSED: Kloucek and Valandra.

Draft E0047 (Crawford)?An Act to clarify certain provisions concerning the ownership of public water and public access thereto.

Mr. Randy Knutson, Lily, SD, stated: "This simplifies and clarifies what a lot of us believe is already law. I really like this legislation."

SENATOR SYMENS MOVED, SECONDED BY REPRESENTATIVE KAZMERZAK, THAT THE COMMITTEE ADOPT DRAFT LEGISLATION E0047 (CRAWFORD) FOR INTRODUCTION AS A COMMITTEE BILL IN THE 2001 LEGISLATIVE SESSION.

Discussion ensued. Senator Symens said that "this is what people believe to be true, but this just clarifies it." He said that adopting the draft will allow the debate to continue in the 2001 Legislative Session. Representative Konold expressed his opposition to the draft.

The motion prevailed on a roll call vote with 10 voting AYE, 3 voting NAY, and 2 EXCUSED. Those voting AYE: Symens, Cerny, Diedtrich, Fryslie, Hanson, Kazmerzak, Lintz, Lockner, Weber, and Wetz, Those voting NAY: Drake, Vitter, and Konold. Those EXCUSED: Kloucek and Valandra.

Senator Vitter requested to change his vote. Chair Wetz ruled the request out of order.

The committee recessed at 11:53 a.m. and reconvened at 1:05 p.m.

Draft 0048 (Vessey)?An Act to revise certain provisions pertaining to landowner liability for injuries sustained by trespassers on flooded land.

SENATOR VITTER MOVED, SECONDED BY REPRESENTATIVE CERNY, THAT THE COMMITTEE ADOPT DRAFT LEGISLATION E0048 (VESSEY) FOR INTRODUCTION AS A COMMITTEE BILL IN THE 2001 LEGISLATIVE SESSION. The motion prevailed unanimously on a roll call vote with 13 voting AYE, 0 voting NAY, and 2 EXCUSED. Those voting AYE: Drake, Symens, Vitter, Cerny, Diedtrich, Fryslie, Hanson, Kazmerzak, Konold, Lintz, Lockner, Weber, and Wetz, Those voting NAY: None. Those EXCUSED: Kloucek and Valandra.

Draft E0046 (Norbeck)?An Act to clarify certain provisions concerning access to inundated private land.

Mr. Greg J. Pesall, Lily, SD, expressed support for the draft. He said that it clarifies access.

Mr. Ordean Parks, Day County, SD, expressed support for all the drafts. He said that they "clarify what is law."

SENATOR SYMENS MOVED, SECONDED BY REPRESENTATIVE WEBER, THAT THE COMMITTEE ADOPT DRAFT LEGISLATION E0046 (NORBECK) FOR INTRODUCTION AS A COMMITTEE BILL IN THE 2001 LEGISLATIVE SESSION.

Senator Symens said that the draft defines what constitutes access to inundated private land. He said that in those instances where water is over private land, the landowner has the right to determine access.

Representative Konold said that in his opinion the draft legislation goes too far regarding access.

Representative Kazmerzak said that the draft simply gives a landowner the right to grant permission to access his property. He said that the provisions in the draft are very much needed.

The motion failed on a roll call vote with 6 voting AYE, 7 voting NAY, and 2 EXCUSED. Those voting AYE: Symens, Cerny, Hanson, Kazmerzak, Lockner, and Weber. Those voting NAY: Drake, Vitter, Diedtrich, Fryslie, Konold, Lintz, and Wetz. Those EXCUSED: Kloucek and Valandra.

Draft 0043 (McMaster)?An Act to prohibit fishing from certain public waters, highways, or rights-of-way within six hundred sixty feet of an occupied dwelling, church, schoolhouse, or livestock without written permission from the adjoining landowner.

REPRESENTATIVE KAZMERZAK MOVED, SECONDED BY SENATOR SYMENS, THAT THE COMMITTEE ADOPT DRAFT LEGISLATION E0043 (MC MASTER) FOR INTRODUCTION AS A COMMITTEE BILL IN THE 2001 LEGISLATIVE SESSION.

REPRESENTATIVE KONOLD MADE A SUBSTITUTE MOTION, SECONDED BY SENATOR DRAKE, THAT THE COMMITTEE DO NOT ADOPT DRAFT LEGISLATION E0043 (MC MASTER) FOR INTRODUCTION AS A COMMITTEE BILL IN THE 2001 LEGISLATIVE SESSION.

The substitute motion prevailed on a roll call vote with 7 voting AYE, 6 voting NAY, and 2 EXCUSED. Those voting AYE: Drake, Vitter, Diedtrich, Fryslie, Konold, Lintz, and Wetz. Those voting NAY: Symens, Cerny, Hanson, Kazmerzak, Lockner, and Weber. Those EXCUSED: Kloucek and Valandra.

REPRESENTATIVE KONOLD MOVED, SECONDED BY REPRESENTATIVE CERNY, THAT THE COMMITTEE BE ADJOURNED. The motion prevailed on a voice vote.

The committee adjourned at 1:40 p.m.

These minutes and all LRC interim committee minutes are available at the South Dakota Legislature's Homepage (http://legis.state.sd.us