The government’s control of property — for a public road, for a pipeline right-of-way, or by the declaration of non-meandered waters as subject to public access — are examples of a government taking. The concept of a government ‘taking’ should not be considered literally. This would be a grave, although common, mistake made by legislatures and the public alike. If an owner is to be granted compensation from a government only when there is a visible grabbing of a chunk of one’s property, the constitutional right to just compensation would be reduced to only land grabs. A taking by a government means more than an old fashioned land grab. When a property owner lives with a discernible deprivation in the ordinary use of his property, or when the value of the property is diminished in other significant ways by an act of government, this can be a ‘taking.’
Takings occur even without a formal government-filed lawsuit for the condemnation of property. A private landowner may in his own name claim that a taking has occurred. “Inverse condemnation” is a lawsuit brought by a private property owner to recover the value of property ‘taken’ for public use by a governmental even though no formal condemnation proceedings under a government’s power of eminent domain were filed. A taking can occur when a governmental with the power of eminent domain takes action which destroys, interrupts, or interferes with significant use or the value of real property owned by a private property owner. In a taking there must be substantial interference with the beneficial use and enjoyment of a private property owner’s property. In South Dakota there does not have to be a physical invasion of the property for damages to occur. Damage to property is compensable under the SD Constitution. The South Dakota Supreme Court has ruled, “Our case law provides that the “damage” clause in our State Constitution affords more rights to our citizens than the Fifth Amendment to the Federal Constitution.”
A state legislature can go too far in regulating public trust properties. Public waters in SD are held in a public trust for the benefit of the citizens of the state. Even so, a state legislature or state agency may go only so far in declaring and setting public trust rules. The state legislature in the special session of 2017 went too far. The legislative opposite of fairness and equity is not arbitrariness; but rather it is legislative indifference. Without taking recommendations suggesting the use of property setback rules and quiet time rules to protect private landowners with land on and surrounding the waters, the legislature opened up non-meandered lakes. The new statute creating public access has no provision for setback from private property or quiet time zones to protect private property from a 6 a.m. gas-powered ice auger drilling fishing holes in the water next to farm property. This indifference to private property rights runs up against the state constitution which protects not only the confiscation of private property but the damaging of the value to private property.
The legislature has the power to change law to conform to current standards and public needs but private property cannot be reduced in value or damaged without due process of law. The 2017 non-meandered law provides no compensation for property owners whose property has been burdened by establishing public use of the waters. The new law violates the constitutional prohibition against the damaging of private property without just compensation. Giving certain lake bed owners the vague right to ‘petition’ the state Game Fish and Parks to set some future limitations on use of the waters is an onerous, burdensome and unacceptable way of giving lip service to property rights. The South Dakota Supreme Court has stated that there is no magic formula that enables a court to judge whether a given government interference is a taking. I submit that the lack of provision for a minimum setback from dwellings or confined livestock for sportsmen activities on the waters, and no provision for a quiet time from sportsmen activities near dwellings and confined livestock constitute a taking. The Wisconsin Supreme Court has also said that a taking can occur when there is a direct and immediate effect on the use and enjoyment of property. Will the SD legislature make a constitutional correction and amend the law? As President Trump says, ‘Time will tell. Time will tell.’
David Ganje of Ganje Law Offices practices in the area of natural resources, environmental and commercial law.
