On Thursday, November 8, 2018, I went to the Good Earth store for lunch. I had just heard about the Butte County Camp Fire, slightly growing anxious as the sky filled with a sandstone haze. I got some coffee, coconut water, and a piece of pizza from the to-go station and went to the express lane. A man, dressed like he’d just got done with a mountain bike ride, covered in sweat, stood to my right, just out of line. He cut in front of me, and I said nothing, not sure if he was there before I had arrived in line. He then turned back and saw me and apologized. We exchanged niceties as he told he’d just got in from Sonoma from the train, that he was about to go for a ride.
He was the kind of person who, once finding they have an audience of any kind, cannot stop talking until it is absolutely necessary. He told me about how excited he was for his ride, that I looked like I was on lunch break, which I was. Then he started talking about the fire. He told me how he saw the smoke on the train and was terrified that Sonoma was going to get hit again.
“We went through so much up there,” he said, his eyes wide with too much enthusiasm.
I gave him nods, and let him speak, looking at the three lanes in express, waiting for an area to open so I could let myself free of his all too familiar and uncomforting company. He told me he was glad to read on the news that the fire was not here. He said he felt “bad to feel relief at the expense of another county.”
The cashier raised his hand. I left, but not before the sweating man said, “Well, they’re not paying you for therapy, so go ahead,” which puzzled me more than the rest of his thoughtless comments. I was glad to leave and walk back to work. Stepping outside into the midday air, smelling that torrential bonfire almost two hundred miles away, I wanted it to go away. Not the smoke, but the flames. I wanted the humidity to rise, the winds to slow their pace. I wanted the rains to come.
The Camp Fire was first spotted at 6:30 in the morning at a size of 10 acres. In a matter of a couple of hours, it increased to over 10,000 acres, heading south for Paradise. Paradise is now long gone along with much of Butte Canyon. It headed for the small foothill communities south of Paradise, towards Lake Oroville. Eighty-six people died in the fire and more than 150,000 acres of land was burned.
When I got home from work that day, the beginning of the fire, at around two in the afternoon, the smoke was so thick in the air that there was only a faint memory of blue in the sky. As I rode my bike home, I felt an unfamiliar heaviness in my chest. I sat down, drank some water, but was too nervous from the smoke in the air. I had to see as much of the sky for myself, thinking this may ground me with some sort of unknown understanding. I grabbed my binoculars and walked up the big hill behind our neighborhood.
The hill is called Tomahawk for the dead-end road on its ridge. The incline is so steep as to be comical. I can picture the Roadrunner zipping up the hill as Wile E Coyote tips over on his back as he takes a moment to breathe. I could feel the smoke entering my lungs with each breath. Once I reached the trail-head, I realized that I should have brought a bandana with me or something to cover my face, but had forgotten.
As I walked up the trail, I saw a flock of turkeys on the northwestern side of the hill, a decent area to take cover from the smoke. The juncos were fluttering around an old coyote bush, completely silent, as though the air had taken their voices. A Flicker, and then another, flew in front of me, their orange tails lit like embers as they laughed, flying north.
As I reached the top of the ridge, sitting on a large rock, talking to a friend in Phoenix, I looked out to the classic view above my home. Mount Tamalpais to the east, San Rafael and the East and South Bay to the south. I could see none of it. Only smoke. With my naked eye, I could not see the mountain, nor could I see the bay itself. All I saw was smoke. I took a couple photos, and then left.
Ever since the fires began in mid-summer, I began to fear for my home. I feared to walk up to Tomahawk’s ridge through charred grass, to walk down that asphalt road to my burnt home, to lose it like so many people across the West Coast have experienced through the decades in greater and greater rates. The home where I was born. I still fear this, with each fire season, the panic growing within me. But this is a reality for so many across the coast, and a fear that many of us hear as a kind of white noise to our daily experience.
Fires don’t care who we are. They want to burn. They move as they will. Nature does not care who is in her way. I wonder what do I do, as a citizen of this state with this ever-growing problem? Do we bide our time and pray for it not to hit us? And if that’s the case, what of our neighbors, those who help define this effulgent state?
The sun of California shines, but perhaps too bright these days. With the increase of rent around all of our metropolitan areas, the wealth gap and the homeless epidemic growing like the San Andreas fault opening across the California coast, the drying of our crops and large aqueducts increasing the impacts of climate change, it seems the heat has risen and will not falter for now. Even as some claim that California has finally returned from drought, this does not mean that the fires will reduce in number, but may instead increase due to a higher growth of grasses in the spring. We must remain cautious and gracious because wildfires very well could be just another staple of our new world.
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Photo at the top of the page was taken by NASA. Photo caption: “On the morning of November 8, 2018, the Camp Fire erupted 90 miles (140 kilometers) north of Sacramento, California. By evening, the fast-moving fire had charred around 18,000 acres and remained zero percent contained, according to news reports. The Operational Land Imager on Landsat 8 acquired this image on November 8, 2018, around 10:45 a.m. local time (06:45 Universal Time). The natural-color image was created using bands 4-3-2, along with shortwave infrared light to highlight the active fire. Officials are evacuating several towns, including Paradise. They have also closed several major highways.”
“It’s sad, it’s really sad.” Pam Engstrom sits at her kitchen table in Waubay, South Dakota, thinking back on her former home.
“I drive by there on my way to Webster, or back, and think to myself, ‘just one more time I’d like to drive in there and have coffee with Mom and Dad, just one more time.’”
Pam’s parents moved to the farm two miles west of Waubay in 1953 when she was a little girl. They farmed and grazed cattle on land dotted with small sloughs popular for muskrat and mink trapping. When Pam met her husband, Dave, they decided to stay in the area, dreaming of one day living on her parents’ farm where they would raise horses and enjoy the region’s abundant wildlife. In April of 1995, Pam’s folks moved to Webster, allowing Pam and Dave’s dream to become reality.
Rush Lake began creeping up in 1993 after heavy rains, but fluctuating water levels were something Pam, and others in the area, had grown used to. Pam’s father had the road leading to their house built up several times due to high water, but the entire area had also gone dry twice in Pam’s lifetime, once when she was a child and again when her children were young.
“The kids would go out on the dry lake bed and pick shells and play. Now, you would never know.”
The winter of 1996–97 brought massive snows to the Waubay area, crippling infrastructure and prompting the U.S. Federal Emergency Management Agency (FEMA) to declare the region a disaster area. As the snow melted, unprecedented flooding displaced hundreds, including the Engstroms. Only two years after moving into their dream home, Pam and Dave were forced to evacuate it.
“It was miserable because the road was covered in water—just a narrow township road—so you had to go slow. Many, many trips…the last load of horses we took out of there—the water was running [onto] the trailer floor.”
Pam’s brother-in-law had around forty heads of cattle on their property when the flooding started. He was able to sell and haul out half of the herd before South Rush Lake engulfed the land. The remaining cows stayed for the rest of the year, calving on the islands that had once been hills. Throughout the summer, Dave and his brother would bring the cows salt and mineral on boats. In the fall, the South Dakota Game, Fish and Parks (GFP) helped the Engstroms ferry out hay to the cow islands. When winter came, and the water iced over, the cows were hauled out, their hooves skidding across the foreign ice as they were loaded up, cracks and creaks reverberating underneath the heavy trailer with every trip the Engstroms took across the frozen lake. By that time, Pam and Dave had already moved into Waubay where Dave would eventually pass away. Pam has stayed in town to this day, twenty years since losing her home, never able to return.
“That was hard. But, you gotta do what you gotta do,” she says.
Stories like Pam’s are extraordinary but sadly common in Day County, South Dakota. Mammoth precipitation since the 1990s have caused the area’s greatest flooding in recorded history.1 A natural disaster that has lasted twenty years has altered the land and people left behind, causing widespread ecologic, economic, and social change. Tensions brewing over decades have now come to a breaking point in the form of a landmark case—Duerre v. Hepler— with consequences for the entire state, prompting the South Dakota Legislature to once again wade between land, water, and people.
II.
Day County is built for holding water. Situated in northeast South Dakota, the county boasts a large swath of the Coteau des Prairies: hills, valleys, and lakes carved 12,000 years ago by migrating ice fields.2 These glacial scars create unique watersheds, forming closed basins that trap water, preventing it from draining away from the county. Below ground, water flows through the rocky subsoil, forming complex connections via underground springs.3 Perhaps the best example of these liquid labyrinths is the Waubay Lake system, an intricate relationship of at least eighteen different lakes, sloughs, and ponds between Waubay and Bitter Lakes.4
Nestled among the lakes of this system sits the city of Waubay. Named after a Lakota term meaning “the place where waterfowl nest,”5 the region is known for its world-class hunting and fishing, accommodating resorts and lodges, the Waubay National Wildlife Refuge, and fertile fields and pastures. People have lived comfortable lives in the area for ages, weathering the occasional dry or wet years without too many hazards, until the 1990s, when an epic increase in precipitation caused lake levels to rise 15–20 feet throughout the county.6
In 1998, prompted by the dramatic flooding of 1997, researchers began looking for clues as to causes as well as occurrences of past pluvial episodes, and their relation to the climate of the region.7 With soil, water, and core samples of old-growth bur oak trees from around the region, researchers created a 1,000-year reconstruction of the region’s climate and hydrology. Their results showed a fairly consistent cycle of wet periods usually paired with dry periods of similar magnitude, with 5 extreme wet periods over the last 325 years and peak, wet periods occurring about every 65 years.8 Another group of researchers made mathematical models that examined the likelihood of 10,000 different future climate outcomes for the Waubay System. They predicted that the water would most likely remain in the area for about a decade before returning to pre-1990s levels, with around a one percent chance of water levels increasing significantly.9
What happened next would defy logic and further disrupt the region’s natural climate cycle: precipitation continued to increase, causing another devastating flood in 2011 that brought water even higher than 1997. Although the rains and snows were slightly less than the downpours of the 1990s, in many areas, flooding was more intense. Lakes that were already flooding spilled outward farther than before, invading the prairie.10 Out of the many communities affected, Waubay was hit exceptionally hard, for it was overrun from the north by Blue Dog Lake, from the west by Rush Lake, and from the south by Bitter Lake.
The high water lingers in the heart of town, where multiple blocks still contain knee-deep standing water. Many homes throughout the area were beyond saving, forty-eight of which were bought by FEMA through disaster mitigation programs.11 Between 2000 and 2010, Waubay lost over thirteen percent of its population, primarily due to flood displacement, with estimates of fifteen percent as of 2017.12 This exodus has weakened the city’s tax base, which in turn has slowed restoration of critical pieces of its infrastructure, including the garbage dump and the wastewater treatment facility, both of which are still submerged in Bitter Lake.13 The region’s robust agricultural economy also took a hit, with over forty landowners losing ground to Bitter Lake alone.14 This has forced many farmers to rent land outside of the county or abandon the profession entirely.
In the last five years, precipitation has declined significantly, to the point that in June 2017, the U.S. Drought Monitor classified most of Day County as a D1 drought area.15 Receding water may be seen as a good thing, but it could also be a harbinger of harder times to come. According to the 1,000-year climate reconstruction, there was another period of extreme wet years in the 1700s—though it was less intense than the recent twenty year highstand, which was immediately followed by a drought rivaling the Dust Bowl of the 1930s.16 Is this dry spell only the beginning? Only time will tell.
III.
On May 1, 1993, six inches of rain fell on Robert and Beth Duerre’s land, eight miles south of Bristol, South Dakota, turning 200 acres of oats into a lakebed. Over the next four years, there would be four more six-inch rains and 200+ inches of snow, rendering 1,800 acres of their land useless.
“The biggest thing was driving. Instead of going a half mile to a field, in ’97 we had to drive to Bristol to get there, we had to go twenty-three miles to get that half a mile,” says Robert.
The only passable road leading out from their house was under three feet of water in both 1997 and 2011, forcing them to ferry people and light equipment on a boat in an attempt to save the road for their heavier machinery. Multiple attempts were made to build up roads, but only a few roads stayed above water for long. To this day, the Duerres still have to drive six miles out of their way to get that half a mile.
“It’s not so bad with a car, but when you start driving a tractor six extra miles a day, it adds up.”
Farmers have not only lost hundreds of thousands of hours of time in attempting to find ways to their dry land, but they have also lost millions of dollars of potential income.
“Let’s use 2014 for an example,” explains Robert. “Corn was $7 [a bushel], that year was exceptional, so you netted $200 an acre. We had 600 acres that would’ve been into corn, so take 200 x 600; we lost $120,000 that year.”
Farmers must also continue to pay off their loans and contribute their taxes on land that they can’t touch.
“Two years ago, we paid $102,000 [in] tax on that water and received zero income. I’m not complaining about the tax; if they take it off the water, they’re just going to put it on somebody else.”
Day County abated taxes, by application, on flooded acres from 1995–97, but the Department of Revenue ordered a stop, so flood-adjustment law was created.17 Those who have had land inundated for at least three growing seasons can fill out a yearly application at the County Assessor’s Office. Those who qualify have their flooded acres taxed at a percentage of normal value.18 This system helps many, but also hurts others. Property taxes fund local governments, who have a set budget they must reach in order to operate. In counties that practice flood adjustment, prices of dry land have to increase in order to offset lost revenue from discounted marshland.19 As of May 22, 2017, there were 29,480 acres in Day County adjusted for flooding, though there are far more flooded acres than that.20 Many farmers don’t apply, attempting to keep higher prices off of their neighbors.
Farmers have had to hustle harder than ever before, driving massive machines through sketchy roads to reach rented land that may or may not allow them to break even. They not only have to balance the millions in normal business costs, but also must continue their payments toward earth they may never see again. This lifestyle drains farmers mentally, physically, and emotionally. Shortly after 1997, when farmers thought things couldn’t get any worse, a storm of a different nature was brewing.
View of some destroyed property in northern Bitter Lake. 2017. Photo by Matthew Miller.
IV.
If anyone has come out ahead due to the flooding, it’s been the fish. Day County has always had excellent fishing, but with an abundance of new habitat, fish populations increased in numbers and diversity.21 It didn’t take long before Day County became a fishing mecca, featured in popular outdoor television shows, magazines, and blogs, reeling in anglers from all over the world.
“Sportsmen from twenty states come here, from the east coast, some from Canada, from Florida, Texas, California, Utah, you name it,” says Paul Johnson, who runs Lynn Lake Lodge with his wife, Karen, 10 miles northwest of Webster, South Dakota.
Life for the Johnsons, as for many in Day County, has been a tale of adaptation. Paul’s family farmed for four generations, but often used creative means to make ends meet. In the early 1970s, they built a snowmobile shop, but soon after, a drought brought several consecutive years of light snows, stalling the business. Paul then converted to automotive repair while his folks farmed part of what is now South Lynn Lake. During the 1980s, the shop was renovated into a dairy facility where Paul, Karen, and their two daughters worked until the mid-1990s, when the snows came.
“You could drive in certain spots down here for up to a quarter mile without touching your steering wheel because snow was so high on both sides of the road, it would keep you in,” says Paul.
However, many roads couldn’t be plowed on a regular basis.
“Our kids would always take shortcuts to school driving across ice and sloughs. There was less snow on the slough than there was on the roads.”
Snowdrifts fourteen feet high blocked the path to their haystacks, and when they hired a contractor to help them move the snow, the contractor gave up after one hour.
“They couldn’t get to the ground, and there was no place to leave the snow,” says Paul.
“And then there was [sic] the deer,” says Karen, “We’d wake up, and there’d be like eighty deer in our backyard…it was phenomenal.”
When the first snows came, about 1,100 deer in the area were pushed out of their natural habitat.22
“I was a city girl, grew up in Webster, never hunted, and after that, when we’d seen so many deer starve, we’d have to haul their carcasses out of our yard because they were starving to death. That’s when I began to understand why they have hunting seasons, so animals don’t have to die these awful deaths.”
Eventually, the milk trucks quit coming, for they had to drive through deep water to get to the Johnson’s dairy. After being forced out of business once again, Paul and Karen worked off the farm for years until fishing became popular on Lynn Lake.
“The one phrase that always comes up is making lemonade out of lemons,” says Karen.
Indeed, the Johnson’s used what nature gave them, turning a disaster into something useful. Paul and Karen re-re-renovated their snowmobile-shop-turned-auto-shop-turned-dairy-barn into the Lynn Lake Lodge and have been hosting sportsmen ever since.
Sportsmen have filled a serious gap in the region’s economy, with about $271,313,012 of direct spending on fishing in South Dakota annually, the lion’s share spent east of the Missouri River.23 Several small businesses have opened, catering to tourists and employing scores of locals. To meet demand, the GFP created new fisheries and public accesses on lakes previously untouched, drawing fishermen from all over the world.
“They’re really pretty dedicated coming to South Dakota,” says Paul, “they like it here, a laid back state, not a lot of population.”
“They’ve made us appreciate what we have here, the beauty of it all, and the fact that the water coming wasn’t the end of the world; it just allowed us to do something else,” says Karen, “We love the people that come here.”
V.
In South Dakota, water is property of the public,24 but to recreate on the surface, one must enter it legally via landowner permission or public access,25 which can be gained either from a public access area or if water is touching public property, such as a flooded township road. When die-hard sportsmen caught on, many decided to forego GFP accesses entirely, choosing to drive down backroads until they hit water, parking their truck and trailer in the roadway.
“We’re not talking about just a couple fisherman,” recalls Robert Duerre, “we’re talking 50, 60, 100 boats, 200–400 people a day. You couldn’t get to the fields. There were so many on the roads that you couldn’t get your equipment where you needed…When you politely asked them to move, they would respond with ‘I have as much right to this road as you do,’ and when you called the sheriff, the sheriff would come out and they would tell the sheriff, ‘it’s our road as much as it is theirs.’ That’s when the beginning of the bad feelings came.”
After running several miles out of their way to reach the only semi-passable roads, farmers were blocked by fishermen. Although obstructing a roadway is illegal, this didn’t stop road fishing from becoming popular. Quickly, anglers became bolder.
“We’ve had people drive through our yard, our feed lots, towing their boats to go out fishing, and they say, ‘Well, other people are doing it.’”
Robert and Beth’s son watched his back lot become prime ice fishing territory. “People go there all the time; six in the morning the ice augers would start up, and they’re right below his house,” says Robert.
After over a decade of frustration, Robert Duerre, his sons Clint and Thad, and their neighbor, Laron Herr, filed a class action lawsuit against “individuals who have used or intend to use the floodwaters located on the landowners’ property,”26 to which the court assigned GFP Secretary Vonk, and later Secretary Hepler, as class representative.27 The plaintiffs sued “for declaratory and injunctive relief concerning the public’s right to use the waters and ice overlying the landowners’ private property for recreational purposes.”28 This would begin a chain of events that would bring South Dakota into a state of utter confusion.
VI.
Duerre v. Hepler is an interesting case. Like Parks v. Cooper, it exposed existing South Dakota laws that were at odds with each other: water as a public entity,29 and landowners’ rights to all that is above or below their land.30 Although water is property of the people, the right to use the water is determined by access and appropriation provided by law, and since recreation is not a legal appropriation, the people don’t technically have the right to recreate on it wherever they please.31
After the lower court’s ruling that barred all recreation on water over the plaintiff’s property, the state appealed, and on March 15, 2017, the original ruling was “affirmed in part, reversed in part, and remanded in part.”32 The Supreme Court’s ruling did two things: [1] it called on South Dakota lawmakers to draft concrete legislation determining if the general public may enter or use water or ice located on the Plaintiff’s private property for recreational use such as hunting or fishing,33 and [2] prohibited the GFP and other defendants from facilitating access for members of the public to enter or use the bodies of water or ice on the Plaintiff’s private property for any recreational purpose in the absence of authorization from the South Dakota Legislature.34
The ruling did not legally ban recreation on any water except the specifically requested areas of Jesse and Duerre Sloughs that belonged to the plaintiffs. However, on April 6, 2017, the GFP closed public access to twenty-four different lakes scattered throughout the state, including East Krause, Lynn, Middle Lynn, and Reetz Lakes in Day County, stating that due to the ruling, the “GFP cannot facilitate access to non-meandered waters for recreational purposes.”35
The term “non-meandered waters” dates back to the late 1800s. As surveyors mapped South Dakota, they used a combination of measuring instruments and mathematics to divide land into portions for sale. However, when they came upon a body of water that was over forty acres and appeared to be permanent in nature, they were required to walk, or “meander,” about the shoreline for a more accurate measurement. Land under these “meandered” lakes was not apportioned for sale.36 Due to the last twenty years of flooding, water has spilled far past these meandered boundaries onto private property, creating “non-meandered water.”37 Although the term itself was established long before Duerre v. Hepler, it is an odd, rare term that very few people knew, and that most still don’t completely comprehend.
The GFP access closures were on popular, completely non-meandered lakes: heavily fished waters on private property that were not connected to an originally meandered lake. With that said, it must be taken into account that despite GFP statements, this action did not truly eliminate GFP access to all non-meandered water, for to do that would require closing access on all lakes that have overfilled and flooded past their meander lines (which provide access to non-meandered water via meandered water) including lakes such as Bitter, Waubay, and scores of others throughout the state.38 This, combined with the GFP’s use of obscure terminology (i.e., non-meandered water) that allowed a clever way of avoiding use of the words “flooded land” or “floodwater,” which carry obviously negative connotations that could make one reconsider whether it was proper to be using said space for recreation, calls into question the GFP’s motives for its actions.
Whether these targeted closures were a tactic to gain sympathy from sportsmen, or were honestly an attempt to build on the concept framed in Judge Flemmer’s legal opinion, we may never know. What is certain is that the closures prompted outrage throughout the state, forced the South Dakota Legislature into a special session, and gave small-town tourism a punch in the gut.
VII.
“This is like a tornado—no preparation to scale down, or lower your inventory, or let go of help, or anything,” says Paul Johnson, whose lodge, located near the shores of two of the closed lakes, lost ninety percent of its business overnight due to the closures.
“We just get through one disaster and now we’ve got another. We had no notice whatsoever. The state just gave a press release,” he says, “Our age, we could be retired…if I was 10 years older, this would be pretty simple; right now, the ‘We’re Closed’ sign would be at the door. I hate to retire in the hole, so now I have to work another 10 years to make up for this.”
Economies throughout the state were damaged by the lake closures, especially in Day County, whose tourism has kept several small communities alive. Although the closures affected less than thirty lakes, misinformation and general apprehension kept many sportsmen off waters statewide.39
“The timing was a disaster,” says Karen Johnson.
Though the lake closures lasted less than ten weeks, they took up a huge chunk of the state’s lucrative summertime fishing; it was an equivalent to missing multiple Black Fridays for retail stores.
What bothers Karen most of all is that she feels her neighbors seem to have lost sight of what’s most important.
“For as long as I’m alive, we will welcome people to our state, our country, our community, and our lives…I don’t get what people don’t get about that.”
“We weren’t opposed to that, but that’s not what we wanted by any means…they had no reason to do that,” says Robert Duerre, commenting on the GFP closures.
VIII.
When the Duerres and Laron Herr began their journey through the courts, they knew there would be repercussions, but they didn’t anticipate them to be on quite this scale.
“You know,” says Beth Duerre, “when you see your name in the paper all the time, and there’s negative comments about your son, it’s not easy…our friends and neighbors support us, but I’m sure there’s [sic] several out there who have used our name in vain once or twice.”
The Duerres have received the brunt of the social backlash, for their names appeared first on the lawsuit. Their family has experienced a barrage of attacks, both in public and on social media, from simple insults to being accused of vandalism and assault.
“It’s just another way to get things riled up,” says Robert.
“Those are the frustrating things, and we read in the paper that we need to protect our children’s right to fish on public water and that the landowners should be able to put up with having a little trash on their land, but they aren’t understanding the whole picture when they say that,” says Beth.
To the Duerres, farming is more than a job, it’s a way of life, core to their identity as South Dakotans. They’ve been able to keep their heritage alive through the hardest of times and take pride in the fact that South Dakota’s Constitution protects their rights as landowners to live a peaceful and productive life on their land, and they don’t ask for anything more than that.
“All people have to do is ask, rent it from us, or buy it from us…I sympathize with the bait shops, hotels, motels, restaurants, anything that has to do with public recreation,” says Robert, “but that wasn’t brought on by the landowners, that was brought on by the Game and Fish.”
IX.
On June 12, 2017, after days of public meetings held throughout the state, followed by weeks of deliberation, the Legislature voted the “Open Waters Compromise” into law, thus ending the GFP closures.40 The law allows landowners in eligible areas to mark their flooded lots as closed; if waters are not posted as closed, then they are open for recreation if there is legal access.41 There are many critics of the bill, particularly sportsmen who will most likely lose a few public fishing areas. However, the law isn’t a full victory for landowners either.
Landowners are allowed to post land as closed on eligible areas, which include all completely non-meandered waters except for twenty-seven lakes specifically listed in the bill.42 There’s also a clause in the law that allows for the ineligible lakes list to grow in the future. Landowners under the listed lakes who wish to post their land must appeal to a commission who would then either grant or deny the landowner’s posting rights.43 Land covered by non-meandered water that has spilled over from originally meandered lakes are out of bounds for posting or appeal.44
The new law also makes it illegal for landowners to accept money for enabling access to posted areas.45 This is a sensitive issue, for on one side of the argument, both water and the wildlife within it are public property, so landowners shouldn’t be able to profit from them. That said, owners of flooded lands are still treated unfairly in the eyes of the law compared to owners of dry land.
The “two harvests” metaphor best explains this from a landowner’s perspective.46 Owners of dry land are allowed two harvests each year: [1] planted crops with obvious yields and [2] access to wildlife. Although the wildlife is public property, landowners are allowed to restrict access to their private land, allowing for private hunting that pays in both game and personal enjoyment; or they can put their land into public programs, such as the GFP Walk-In Area, and receive monetary payment for access to their land.47 Owners of flooded land lose both harvests, yet still have to pay property taxes.
Though both sides of the non-meandered waters issue have lost some ground, the South Dakota Legislature completed a tremendous task in disseminating information to the public in a timely manner, listening to their constituents, and working together to move the state forward, forming a compromise that will keep the state afloat.
It would be convenient to blame the floods, but Day County’s problems have less to do with Mother Nature than with human nature. When so much has been lost, it’s easy to start assigning blame. Perhaps close-minded landowners should learn to let go, move on, embrace the changes the world has given them. Then again, had some reckless sportsmen used a few ounces of empathy, landowners wouldn’t have become resentful in the first place. The GFP has an enormous responsibility, and without their time-tested expertise, South Dakota’s parks, outdoor recreation, and wildlife wouldn’t be near as fruitful as they are today. It has been and will continue to be an agency that works for the public good, but there is no doubt that GFP’s decisions hurt many South Dakotans. Small businesses were dealt a blow so hard they may never recover. But as all business involves risk, maybe they should’ve considered that before they started?
One could go back and forth, tightening tensions until something breaks, but that sort of thinking produces only problems, not solutions. The non-meandered water issue is far from over; it will only end when flooding ends. Until then, landowners and sportsmen must learn a way to coexist, riding the waves for as long as it takes.
A road flooded by Rush Lake near the Engstrom farmstead, a mile west of Waubay. 2017. Photo by Matthew Miller.
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Notes:
1 E. P. Rothrock, Geology and Water resources of Day County, South Dakota (University of South Dakota, 1935), 24-32 (earliest scientifically accurate measurements of Day County lake levels); SD DENR Measurements, (these two sources provide accurate lake levels from 1918-2017, proving the statement quantitatively).
3 Darrel I. Leap, The Glacial Geology and Hydrology of Day County, South Dakota, (Pennsylvania State University Geosciences, 1974) 75-86.
4 Ibid.
5 Waubay National Wildlife Refuge, “Potholes and More” (Apr 16, 2013).
6 Ibid.; NEGLWP, 9; SD DENR Measurements.
7 M. D. Shapley, W. C. Johnson, D. R. Engstrom, W. R. Osterkamp, “Late-Holocene flooding and drought in the Northern Great Plains, USA, reconstructed from tree rings, lake sediments and ancient shorelines,” The Holocene, (Arnold Publishers, Jan 2005).
8 Ibid., 34.
9 Colin A. Niehus, Aldo V. Vecchia, Ryan F. Thompson, Supplement to Water-Resources Investigations Report 99-4122, Lake-Level Frequency Analysis for the Waubay Lakes Chain, Northeastern South Dakota (USGS, 1999).
10 Kevin Jens (Mayor of Waubay), Personal Interview, May 26, 2017.
11 Ibid.
12 Ibid.; Jeff Natalie-Lees, “Floodwater Leaves Waubay Awash In Uncertainty,” Orlando Sentinel (Aug 24, 2012).
13 Jens Interview.
14 Ibid.; Scott Lindgren (GFP NESD Regional Supervisor) GFP presentation, (Watertown, SD, May 9, 2017).
15 David Miskus, “U.S. Drought Monitor South Dakota, June 20, 2017,” U.S. Drought Monitor (UNL, Jun 22, 2017).
16 Shapley, et al., 34.
17 Dari Schlotte (Day County Director of Equalization), testimony at Non-Meandered Waters Study Public Hearing, Aberdeen, SD, May 10, 2017.
18 Ibid.
19 Schlotte testimony.
20 Day County Assessor’s Office, public information.
21 Dennis Skadsen (Project Coordinator, Day County Conservation District), Personal Interview, Feb 24, 2017.
22 Paul and Karen Johnson (Owners of Lynn Lake Lodge), Personal Interview, May 30, 2017.
23 Scott Simpson (GFP Administrative resources Chief), GFP presentation (Watertown, SD, May 9, 2017).
24 SD Codified Law 46-1-3.
25 SD Codified Law 46-1-3. SD Codified Law 43-17-29.
26 Judge Jon S. Flemmer, SD Supreme Court Ruling: Duerre v. Hepler (March 15, 2017), 1.
27 Ibid., (Originally, GFP Secretary J. Vonk was the representative. Hepler was named representative after Vonk left office mid-trial).
36 Lindgren, GFP presentation; Duerre v. Hepler, 1-2.
37 Lindgren, GFP presentation.
38 Although meandered lakes contain meandered water, water that has flooded past lake borders and exists outside of meander lines should, by definition, be considered non-meandered water, for this water exists in an area that was not meandered and therefore not intended to be public property in the exact same way as originally non-meandered water.
39 Ibid., Non-Meandered Waters Study testimony.
40 GFP News, “GFP Works on Reopening Public Access After Open Water Compromise Passes,” (June 13, 2017).
41 SD HB 1001 Section 5.
42 SD HB 1001 Sections 7-8.
43 Ibid., Section 9.
44 Ibid., Section 2.
45 Ibid., Section 6.
46 SD Legislature Deliberation in Pierre, SD (May 24, 2017).
47 GFP, “Walk-In Area Program,” (2017).
Works Cited:
Duerre, Beth, Duerre, Robert (Members of Plaintiff Group in Duerre v. Hepler). Personal Interview, May 22, 2017.
Engstrom, Pam: Day County Resident. Personal Interview, Jun 8, 2017.
Ermer, Mark: Area GFP Fisheries Supervisor. Personal Interview, Jun 5, 2017.
Johnson, Karen, Johnson, Paul: Owners of Lynn Lake Lodge. Personal Interview, May 30, 2017.
Jens, Kevin: Mayor of Waubay. Personal Interview, May 26, 2017.
Leap, Darrel I. The Glacial Geology and Hydrology of Day County, South Dakota. Pennsylvania State University Geosciences, 1974, pp. 64-100.
Miskus, David. “U.S. Drought Monitor South Dakota, June 20, 2017.” U.S. Drought Monito Map Archive, The National Drought Mitigation Center, University of Nebraska-Lincoln Jun 22, 2017, http://droughtmonitor.unl.edu/MapsAndData/MapArchive.aspx.
Niehus, Colin A., Vecchia, Aldo V., Thompson, Ryan F. Lake-Level Frequency Analysis for the Waubay Lakes Chain, Northeastern South Dakota, USGS, 1999, pp. 118-23.
Niehus, Colin A., Vecchia, Aldo V., Thompson, Ryan F. Supplement to Water-Resources Investigations Report 99-4122, Lake-Level Frequency Analysis for the Waubay Lakes Chain, Northeastern South Dakota, USGS, 1999.
Shapley, M.D., Johnson, W. C., Engstrom, D.R., Osterkamp, W.R. “Late-Holocene flooding and drought in the Northern Great Plains, USA, reconstructed from tree rings, lake sediments and ancient shorelines.” The Holocene, Jan. 2005, vol. 15, ed. 1, Arnold Publishers, pp. 29-41, http://www.neglwatersheds.org/images/NESDLakesShapley_Johnson_et_al.pdf.
Skadsen, Dennis: Project Coordinator, Day County Conservation District. Personal Interviews, Feb 24, 2017; Mar 26, 2017; Jun 5, 2017.
SD Game, Fish & Parks. “GFP Works on Reopening Public Access After Open Water Compromise Passes.” GFP News, Jun 13, 2017, https://gfp.sd.gov/news/news/june/13.aspx.
