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A Bill of Particulars for the legislature

Posted on: June 26th, 2017
by David Ganje

The nonmeandered waters bill passed the legislature and was signed into law on June 12th. The nonmeandered waters problem was not ‘manufactured’ by the governor’s office nor by the state courts as some argued. This argument ignores the fact that mother nature created this problem and unhappily left it in man’s incompetent lap. Another argument is that the new water law has the problem ‘backwards.’ The world is not black and white. Such an extreme view of nature and of the law will at best wrongly color one’s vision, if it does not blind one’s vision completely.

The vote on the new law during the legislature’s special session was a reflection of democracy in action. Yet the drafting and consideration of the bill was a less virtuous undertaking. Lawmakers in reviewing the bill chose to drive quickly past posted and clearly marked signs warning of hazards to be avoided. Doubtful provisions of a bill do not disappear when they are written into a new law.

The new law creates the shortest sunset provision of any natural resource law I have dealt with in my career. The law’s short life-cycle a good thing. As they say in academia, this law don’t have no tenure. The legislature now has a limited period of time for reflection on the language, intent and purpose of the law. Reflection is necessary. I will give a brief bill of particulars for the legislature’s review.

Problematic laws are sometimes passed based on otherwise justifiable legal measures. What are the faults in the new law? What particulars of the new law are in error? The following comments discuss important, unresolved issues.

1. In the statute the term “owner” of lakebeds is not described or defined. This will cause several problems. One cannot determine liability of an owner or declare immunity from liability of an owner unless the term “owner” is defined. Tenants for example do not have legal immunity under the new law. In another illustration, when a legal tenant-in-possession is the proper party to give permission to access waters, or to take other necessary acts described under the law, he cannot. The law only permits a title holder to take such acts.

2. The Act creates two sets of laws for nonmeandered lakes. The rights, duties and liabilities of landowners under the law’s designated nonmeandered lakes are not the same as the rights, duties and liabilities of the landowners under all other nonmeandered lakes.

3. No setback rule is created. The law does not provide for a minimum setback from dwellings or confined livestock concerning sportsmen’s activities on the waters. A uniform setback near dwellings and confined livestock which will be easily understandable by both sportsman and landowners alike should be established.

4. The emperor has no clothes. No express declaration is made in the law stating that recreational use is a beneficial use of public waters. The SD Supreme Court in two cases said the legislature needs to make a declaration one way or the other about recreational use of public waters. A properly drafted declaration of recreational use will not give recreational use priority or preference over other uses.

5. No quiet time for sportsmen’s activities near dwellings and confined livestock is established. The purpose of a quiet time rule is to preserve a landowner’s privacy and right to sleep and repose. Landowners want to be good hosts on these waters, but don’t want to become indisposed at all hours of the day or night. No host would. No one wants a two-stroke ice auger running next to their home at 5 in the morning.

6. The new law permits a lease or purchase of public water rights. But it does not work that way. The state cannot buy or lease from private lakebed owners the ‘recreational use’ of the waters. All public waters in South Dakota, including nonmeandered waters, are held in trust by the state for the benefit of the people of that state. The law now authorizes the state to ‘buy’ recreational use of waters overlying private property. GF&P would be making a mistake if it attempted to exercise this provision of the law.

7. All infrastructure activity on nonmeandered waters is managed by GF&P. However the law does not include a due process provision giving a landowner advance notice of proposed activity to be taken in the immediate area near a landowner’s private property. Providing for advance notice safeguards the landowner’s ability to know what is going on before it happens. Other law in the state provides a property owner with advance notice when property is to be affected by other state approved projects.

David Ganje of Ganje Law Offices practices in the area of natural resources, environmental and commercial law. Mr. Ganje is working with the South Dakota Farmers Union on this matter.

South Dakota’s version of Alice in Wonderland

Posted on: April 19th, 2017
by David Ganje

What are non-meandered water bodies in South Dakota? In Alice in Wonderland the mock turtle says, “Well, I never heard it before; but it sounds uncommon nonsense.” Non-meandered is a surveying and legal term for what are called temporary water bodies. The term in basic concept means waters that are ‘shallow or likely in time to dry up.’ And, of course time is a relative concept for sure. In 2004 the South Dakota Supreme Court in the Parks case declared that such water bodies were public water bodies even though the land underneath, the lake beds, could remain privately held property. Importantly, Parks held that all waters including non-meandered waters are public property. Yes, the law can be schizophrenic. Current law pits land rights against water rights and creates a legal no-mans-land.

I was not involved in the Parks case, and on reviewing the decision I was not convinced the parties in the case presented the best arguments or even undertook the best legal strategy. I did nevertheless use this case as an illustrative case when I taught a law class a while back. The case is an example of how complicated even natural resources law can be when the two legal concepts meet. We have under the Parks decision schizophrenic property claims: one granting public property rights to the water and one granting private property rights to the underlying and surrounding land. The landowners in Parks received no remedy from the Court which deferred the real problem to state government.

Modern medicine has had good success in treating those diagnosed with schizophrenia. Such success is not the case concerning the legal schizophrenia I describe in this article. In Parks the Supreme Court said that unresolved issues of management of these public water bodies should be taken care of by state government. The Court pretty much directed state government to do something about it. That’s a tall request in a short world. The state Game, Fish and Parks three times proposed legislation to the South Dakota legislature in an attempt to cure this legal schizophrenia. All efforts presented to the legislature have been to no avail. One should not expect the inmates in bedlam, that is state legislators, to recognize there might be a problem. I may have maligned the wrong party by calling the law (as an institution) schizophrenic. It strikes me that the legislature needs therapy.

In 2014 private landowners, seeing no relief in sight went back to court. I guess the wise principal of once burned twice shy is asking too much of those who exercise too much faith. Several landowners filed a new lawsuit claiming these public water bodies are misused by outdoor enthusiasts. More particularly landowners in the lawsuit claimed that outdoor enthusiasts were ‘firing guns, blaring music, operating loud machinery, getting drunk, littering and so forth.’ To me this sounds like the bar scene in Aberdeen a few years ago. Yet even so, I fully understand the frustration of the complaining landowners. Management of these newly declared public waters is necessary. Landowners optimism in seeking relief in the courts was however what we should call blind faith. A full and complete remedy did not occur. In this second court go around, the Supreme Court stated, “. . . until the Legislature acts, neither the public nor the Landowners have a superior right to use the waters and ice overlying the Landowners’ private property.” Hunting and fishing is integral to the economy. Game, Fish and Parks in a recent report stated that outdoor activities have a significant effect on the state “generating nearly $1.9 billion dollars in economic activity” in 2016. So, alas, legislators not wishing to deport themselves as thoughtful leaders have dutifully ignored this legal problem. Welcome to Alice in Wonderland.

David Ganje of Ganje Law Offices practices in the area of natural resources, environmental and commercial law.

Wetlands mismanagement – American style

Posted on: February 15th, 2017
by David Ganje

Wetlands play a role in the ecosystem and provide benefits for both people and wildlife. Society’s idea of wetlands management includes protecting water quality, storing floodwaters, retaining groundwater during dry periods, and providing food. Wetlands are also a source of biodiversity and serve as a habitat for species of fish and wildlife. It is estimated that one hundred years ago, the U.S. had over 221 million acres of wetlands. Today, the number is 107.7 million acres. The decline in the wetlands is linked, in part, to modern agricultural production. The government estimates that there are 6.4 million acres of wetlands in the prairie pothole region of South Dakota, North Dakota, Minnesota and Iowa. While I wrote about current languishing federal legislation addressing wetlands in a prior opinion piece, this article discusses the bureaucratic management of wetlands by the USDA.

The U.S. is not the old super-bureaucratic Soviet Union; nevertheless, the U.S. has a myriad of federal bureaucratic agencies, departments, services, divisions and offices, particularly within the USDA. For the convenience of the reader (and myself) I refer to all USDA related offices or divisions as simply ‘USDA’ instead of using the alphabet soup abbreviation for the particular office within the USDA.

Let me set the stage. The USDA has been involved in the wetlands management since 1977. Farmers, ranchers and landowners are incentivized to preserve the wetlands on their property by receiving government benefits. Beginning in 1990 and continuing through 1996, the USDA created maps to show wetlands determinations, or more specifically what was and was not a wetland. So that we don’t get lost in the timeline, I refer to the maps created during this time as “pre-1996 maps.” In 1996, the USDA completed several internal studies and concluded that the pre-1996 maps were not accurate and should not be used. Between 1996 and 2013, the USDA moved to a more comprehensive system to determine what is and isn’t a wetland. This new system was more accurate than the pre-1996 maps because it relied on several different techniques, such as onsite evaluations, maps, aerial photography, and soil samples.

Now here is the kicker. In 2013 the agency stopped using onsite evaluations, aerial photography and soil samples and reverted back to issuing wetlands determinations using the inadequate pre-1996 maps. Thus, in 2013 the pre-1996 maps were to be the ‘new’ method of making wetlands determinations. Alas, these older maps sometimes underestimate the amount of wetlands on a piece of property. For example, by using an inaccurate pre-1996 map the agency caused the reduction of wetland acreage in North Dakota by nearly 75% on 13 tracts. In another example, a 2010 map showed 34 acres of wetland on a tract of land but the pre-1996 map showed that the tract only had 2.5 acres. Since the USDA approved a landowner’s petition, the producer drained 31.5 acres of wetlands without being penalized with the loss of farm benefits. Remember the agency first asserted that the pre-1996 maps were unacceptable in 1996, yet they repeatedly reaffirmed this position over the years, most recently in a 2012 report. In 2013 the agency reversed this position so it could use the pre-1996 maps. Curiously, during this confusing time South Dakota USDA officials decided, on their own, not to follow their own USDA directives. USDA bumbling has created interstate chaos in wetlands management. The lack of uniformity in applying the rules caused complaints. I have yet to deal with a landowner who has experienced uniform treatment under the wetlands program.

Adding to the bumbling, senior officials finally realized that there was an inconsistency in the way wetlands determinations are decided between different states. In 2013 the USDA stated it would “clarify” its new decision-making process. It did not. The agency did not published anything on its official decision to revert back to the pre-1996 maps for over three years. And we were all taught that only families could be dysfunctional. This messy stew resulted in an Inspector General investigation and report.

Bumbling. Now I admit to bumbling some of my games of chess, however that is not the question at hand. But to the point: we all hold a low opinion of the stupidity of a bumbling government agency, and yet we all know we gotta have government. Just try to live without the security and benefits of a government – you will need to be a pretty good shot as well as a full time prepper, and yet you still won’t have a long shelf life.

So, let’s figure out what to do on the issue of wetlands management. The USDA has blown it. It is now incumbent upon USDA to get its act together and quickly. We must remember that the individual landowner does not always directly get the eco-benefits and the financial advantage by the imposition of wetlands management upon his land. It can happen, that is, the USDA may determine that private property should be regulated for the protection of a particular body of water or a species. Such action does not benefit the immediate landowner but rather benefits the environment and is the country’s form of stewardship of the land. We will have to live with a rational management of wetlands or choose to become the Wild West of environmental management as the Chinese tried for about 30 years. Go ask them now if that was a good idea.

The USDA Inspector General last month issued his critical report stating the USDA should, “Issue official guidance reinforcing correct and current rules and clarifying procedures for making wetland determinations…, including the status of pre-1996 determinations.” The USDA accepted the Inspector General’s criticism and declared it would provide clarification and specific guidance to evaluate the status of prior determinations. It’s a start. The USDA will need to learn how to chew gum and walk at the same time; it must both fix yesterday’s problems as well as manage wetlands rationally going forward.

Wetlands management may be a problem in which ‘institutional bypass’ is in order. In this case by institutional bypass I mean contracting with private enterprise to take care of the backlog of problems and create a fair and streamlined access to wetland determinations.

David Ganje of Ganje Law Offices practices in the area of natural resources, environmental and commercial law.

You Get The Water With The Land – Sort Of

Posted on: October 28th, 2016
by David Ganje

Gaze over your shoreline property knowing that you can access the waters directly in front of you. Unfortunately, under New York law, depending on the shape of the shoreline and how lot boundaries are drawn, this may not be the case. New York courts use different principles and their own discretion in determining the reach of landowners’ riparian rights.

In Muraca v. Meyerowitz, 13 Misc. 3d 348, 350 (Sup. Ct. 2006), three adjacent riparian landowners disputed each others riparian water rights boundaries primarily because one of the party’s private boat occupied a large portion of surface waters near the shore.

Under New York law, riparian rights only arise from the ownership of land abutting or surrounding a body of water, such as a lake or a pond as long as there is contact between water and the land. In Muraca, the Court recognized that riparian landowner rights extend out to the navigable portion of the water body, but go no further. A riparian owner has the right to access water and the related right to protect the water from illegal drawing of the water as well as the right to build out to the water by way of a dock, slip or pier.

When a controversy concerning riparian rights arises, the resolution sought is access to water from shoreline properties. How to determine the rights of access between riparian landowners is complex.

In New York there are no mechanical rules used to draw the lateral boundaries between riparian landowners. Rather, courts strive to give an equitable allocation of the waterfront area, with the right of access depending on the frontage available to the landowner based on the lateral boundaries of their properties.
The Muraca court explains that two principal formulas have been derived for establishing lateral boundaries in the context of landowner’s riparian rights.
First, the “perpendicular rule” extends the lateral onshore boundaries out to the navigable body of water by lines that are perpendicular to the shoreline. This principle is equitable when there are only minor shoreline irregularities (i.e. a straight onshore boundary).

Second, the “proportional method” attempts to draw a path between onshore boundaries that are proportionate to the amount of frontage the landowners enjoys. When choosing a method or modifying a rule, a court will consider a landowner’s right to direct access to navigable waters along with their neighbor’s right of direct access.

So it is not just one’s right of access to navigable waters that matter when resolving such controversies, but rather what in fact matters are one’s riparian rights in relation to one’s neighbors.

There are limits attached to these general principals. A riparian owner must remember that he is always subject to the restrictions to which he agreed when he purchased the property. Outside of these contractual or deed restrictions, riparian landowners cannot extend their “upland boundaries”, or the boundary above the mean high tide line, to form the lateral boundaries of the land under the water. This limit however is not all encompassing. New York courts have recognized that a riparian owner’s right to the natural flow of water along its land is properly classified as real property, equally with the land. A party could nevertheless acquire an interest in the water flow separate and distinct from the land under the water.

In Muraca the Court found the proportionate rule inapplicable and modified the perpendicular rule because strictly applying the perpendicular rule would have unfairly reduced the defendants’ right to access their outshore surface waters.

Ironically, even though the boat owner was given more riparian rights to access the outshore waters in front of his property than the complaining plaintiff requested, the Court found the party’s ability to dock his 28 foot boat to be of little consequence. The riparian rights boundaries only have to be sufficient enough to accommodate reasonably sized watercraft.

The implications of a court determining the riparian boundary lines based on general principles of equity is memorable.
First, it suggests that a court can alter your deed if you eventually find yourself in litigation over the riparian rights of yourself and other riparian landowners.
Second, and perhaps more importantly, under New York law, when riparian real property increased by “accretion”, or the gradual addition of property along a shoreline, then new formed land belongs to the upland landowner. However, if the riparian boundary lines are altered as the court did in Muraca, then the new lands normally entitled to riparian landowner will go to their neighbor.

David Ganje practices law in the area of natural resources, environmental and commercial law.

Free Land — If You Can Keep It

Posted on: October 12th, 2016
by David Ganje

Free Land – If You Can Keep It

It seems everyone is looking for newfound money whether in the form of land or the lottery. Let us look at the miracle of “new land” obtained by accretion along a riverbank as a phenomena of newfound money. Property boundaries matter when your land is next to a river. If the river deposits land onto your riverfront by “accretion”, then who owns it? Accretion is the gradual increase to land, notably riparian land, stemming from the movement of water. A meandering river has no master. Certainly man-made law has not corralled a meandering river with anything close to perfection, or to some landowners, with any degree of satisfaction. Questions come up when riverfront boundaries naturally shift due to erosion or accretion.

In Norby v. Estate of Kuykendall, 2015 ND 232, 869 N.W.2d 405, Norby owned land adjacent to the Kuykendalls along the North Dakota-Montana border. Norby’s land was on the eastern Montana side and Kuykendal was on the western North Dakota side, with the Yellowstone River separating the properties. But, importantly, neither party’s deed history described the legal boundaries by reference to the Yellowstone River. Gradually the Yellowstone River moved eastward, eroding land from its eastern bank and accreting it on to the western bank. This “new land” on the North Dakota side made up 96 acres.

Norby brought suit to eject the Kuykendalls from the disputed property and to quiet title on the theory that the disputed land were his “riparian accretions.”

Typically riparian and ownership rights of a riverbank shift as the river moves without considering other fixed boundaries. Nevertheless, since Norby’s deed never mentioned the Yellowstone River as the property line, his argument sank.

Perhaps an even more relevant case is the older case of Perry v. Erling, 132 N.W.2d 889 (N.D. 1965). Mrs. Perry argued that she was entitled to “new land” formed by accretion. She owned land directly east of the Big Muddy originally as a non-riparian owner (i.e. landlocked). Since the original land survey in 1872, the river had shifted eastward eroding other intervening riparian lots and eventually turning Mrs. Perry’s lot into riparian land. Over time the river built up “new land” by accretion over the intervening lots. The Court rejected Mrs. Perry’s arguments by making clear that non-riparian owners, such as Mrs. Perry, are only entitled to the land that falls within their original property lines when their property boundaries were not set with reference to a body of water. The original riparian lot owners however would be entitled to the accreted lands.

These cases raise several important points for landowners who hold title to land near bodies of water. For instance, if your land now has additional riverbank or land because of how the river shifted over time, you may still not have ownership over any of the “new land” if your property description was not acquired with legal reference to a river. Laws that normally give rights to riverbank landowners will not help you in this case. However, if your original property boundary was set by descriptive reference to a river, then you may be able to claim the newly formed land as your own. The law of man does not direct the flow of a river. So be specific in your land deed descriptions or be at the mercy of the river. A good scrivener (lawyer) is worth a thousand words.

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