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CHAPTER 41-23

RECREATIONAL USE OF NONMEANDERED WATERS

41-23-1      Legislative findings.
41-23-2      Definitions.
41-23-3      Agreements for recreational use of nonmeandered lakes.
41-23-4      Permission to use portion of nonmeandered lake.
41-23-5      Markers identifying area of nonmeandered lake not open to public recreational use without permission or agreement.
41-23-6      Financial compensation for permission to fish prohibited--Misdemeanor.
41-23-7      Certain nonmeandered lakes declared open for recreational use.
41-23-8      List of nonmeandered lakes open for recreational use.
41-23-9      Petition to restrict recreational use of listed nonmeandered lake.
41-23-10      Maximum term of lease or license.
41-23-11      Limitation of liability of owner of property under lakes.
41-23-12      Promulgation of rules regarding marker standards.
41-23-13      Notification to department of restricted areas--Publication by department.
41-23-14      Right of ingress or egress on private property not created.
41-23-15      Walking, wading, standing, or operating motor vehicle on bed of nonmeandered lake, or trapping or hunting on frozen surface without permission prohibited.
41-23-16      Petition to open portion of marked nonmeandered lake for transportation.
41-23-17      Restrictions on portion of nonmeandered lake opened for transportation.
41-23-18      Criminal trespass--Exceptions.
41-23-19      Report to Executive Board of Legislative Research Council--Hearings.


     41-23-1.   Legislative findings. The Legislature finds:
             (1)      The South Dakota Supreme Court, in Parks v. Cooper, 2004 SD 27 and Duerre v. Hepler, 2017 SD 8, held that the Legislature has the obligation to determine the extent of public use of water overlying private property for recreational purposes; and
             (2)      Because the state holds the waters in trust for the benefit of the public, the Legislature must balance the interests of recreational users and the rights of private property owners to provide a constitutionally sound and manageable basis for establishing public recreational use of water overlying private property in accordance with this chapter.

Source: SL 2017 (SS), ch 1, § 1, eff. June 12, 2017.


     41-23-2.   Definitions. Terms used in this chapter mean:
             (1)      "Commission," the Game, Fish and Parks Commission;
             (2)      "Department," the Department of Game, Fish and Parks;
             (3)      "Meandered lake," any natural water body, except a river or stream, for which a meander line survey was included as part of the official survey conducted by the United States surveyor general for the land on which the lake is situated and the meander lines are shown on plats made by the United States General Land Office;
             (4)      "Nonmeandered lake," any natural lake that is not a meandered lake;
             (5)      "Recreational use," except as otherwise provided by law, use for outdoor sporting and leisure activities, including, but not limited to, hunting, fishing, swimming, floating, boating, and trapping.

Source: SL 2017 (SS), ch 1, § 2, eff. June 12, 2017.


     41-23-3.   Agreements for recreational use of nonmeandered lakes. The department, on behalf of and in the name of the state, may negotiate with each landowner to acquire, by gift, grant, devise, purchase, lease, or license, recreational use of all or any portion of any nonmeandered lake overlying private property. Any agreement reached pursuant to this section, or any failure to reach an agreement, is not an appealable final action of the department.

Source: SL 2017 (SS), ch 1, § 3, eff. June 12, 2017.


     41-23-4.   Permission to use portion of nonmeandered lake. Any person is entitled to recreational use of the portion of a nonmeandered lake that overlies private property if the person has permission from the owner of the private property.

Source: SL 2017 (SS), ch 1, § 4, eff. June 12, 2017.


     41-23-5.   Markers identifying area of nonmeandered lake not open to public recreational use without permission or agreement. Any nonmeandered lake overlying private property is open to recreational use without permission of any owner of the private property underlying the nonmeandered lake unless the owner of the private property installs conspicuous markers, which may consist of signs or buoys, to identify the area of the nonmeandered lake that is not open to public recreational use without permission or agreement as provided under this chapter.

Source: SL 2017 (SS), ch 1, § 5, eff. June 12, 2017.


     41-23-6.   Financial compensation for permission to fish prohibited--Misdemeanor. No owner of private property may receive financial compensation in exchange for granting permission to fish on a portion of a nonmeandered lake overlying the owner's private property that is marked pursuant to § 41-23-5. A violation of this section is a Class 1 misdemeanor.

Source: SL 2017 (SS), ch 1, § 6, eff. June 12, 2017.


     41-23-7.   Certain nonmeandered lakes declared open for recreational use. Notwithstanding the provisions of this chapter, any nonmeandered lake listed in § 41-23-8 is declared open for recreational use, based on the following conditions occurring before January 1, 2017:
             (1)      The open, obvious, and continuous recreational use by the public for a significant period; and
             (2)      The expenditure of public funds for the construction of one or more boat ramps.

Source: SL 2017 (SS), ch 1, § 7, eff. June 12, 2017.


     41-23-8.   List of nonmeandered lakes open for recreational use. The waters of the following nonmeandered lakes are declared open for recreational use pursuant to § 41-23-7:
             (1)      Casey's Slough, Cottonwood GPA, Dry #1, Dry #2, Round, and Swan in Clark County;
             (2)      Deep and Goose in Codington County;
             (3)      East Krause, Lynn, and Middle Lynn, in Day County;
             (4)      North Scatterwood in Edmunds County;
             (5)      Three Buck in Hamlin County;
             (6)      Bullhead, Cattail-Kettle, and Opitz in Marshall County;
             (7)      Island South in McCook County;
             (8)      Keisz in McPherson County;
             (9)      Grass, Loss, Scott, and Twin in Minnehaha County;
             (10)      Twin in Sanborn County;
             (11)      Cottonwood and Mud in Spink County;
             (12)      Cottonwood in Sully County; and
             (13)      Dog Ear in Tripp County, South Dakota.

Source: SL 2017 (SS), ch 1, § 8, eff. June 12, 2017.


     41-23-9.   Petition to restrict recreational use of listed nonmeandered lake. The commission shall promulgate rules, pursuant to chapter 1-26, to establish a process whereby an owner of private property underlying any nonmeandered lake listed in § 41-23-8 may petition the commission to allow the owner of private property to restrict recreational use of the water overlying the owner's private property. The commission shall determine whether to grant, deny, or modify the petition. The commission shall consider privacy, safety, and substantially affected financial interests of the owner of the private property underlying the water, as well as history of use, water quality, water quantity, and the public's interest in recreational use of the water.

Source: SL 2017 (SS), ch 1, § 9, eff. June 12, 2017.


     41-23-10.   Maximum term of lease or license. No lease or license entered into pursuant to § 41-23-3 may be for a term exceeding ten years.

Source: SL 2017 (SS), ch 1, § 10, eff. June 12, 2017.


     41-23-11.   Limitation of liability of owner of property under lakes. The liability of any owner of private property underlying a meandered or nonmeandered lake is limited as provided in §§ 20-9-12 to 20-9-18, inclusive. However, contact between recreational equipment and private property underlying any nonmeandered lake incidental to a lawful recreational use is not a criminal trespass.

Source: SL 2017 (SS), ch 1, § 11, eff. June 12, 2017.


     41-23-12.   Promulgation of rules regarding marker standards. The commission shall promulgate rules, pursuant to chapter 1-26, to specify standards for the markers described in § 41-23-5 after weighing the cost and burden of compliance by the owner of private property against the visibility of the markers to the public.

Source: SL 2017 (SS), ch 1, § 12, eff. June 12, 2017.


     41-23-13.   Notification to department of restricted areas--Publication by department. The owner of private property shall notify the department, within a reasonable time frame, of any area of a nonmeandered lake marked by the owner of private property pursuant to § 41-23-5. The department shall, within a reasonable time frame, identify the marked area and applicable restrictions in any map, guide, mobile application, or website maintained by the state to assist the public in identifying each public hunting or fishing area.

Source: SL 2017 (SS), ch 1, § 13, eff. June 12, 2017.


     41-23-14.   Right of ingress or egress on private property not created. Access to any nonmeandered lake for recreational use may only be by public roadway, public right-of-way, or other lawful means. Nothing in this chapter creates a right of ingress or egress on private property to access a nonmeandered lake.

Source: SL 2017 (SS), ch 1, § 14, eff. June 12, 2017.


     41-23-15.   Walking, wading, standing, or operating motor vehicle on bed of nonmeandered lake, or trapping or hunting on frozen surface without permission prohibited. No person may walk, wade, stand, or operate a motor vehicle on the bed of a nonmeandered lake, or trap or hunt on the frozen surface above private land, without permission from the landowner or any other person legally in possession of the privately owned property underlying the waters of that portion of the nonmeandered lake.

Source: SL 2017 (SS), ch 1, § 15, eff. June 12, 2017.


     41-23-16.   Petition to open portion of marked nonmeandered lake for transportation. The commission shall promulgate rules, pursuant to chapter 1-26, to establish a process whereby a person may petition the commission to open a portion of the waters or ice of a nonmeandered lake marked pursuant to § 41-23-5 for the limited purpose of transportation to a portion of the nonmeandered lake that is open for recreational use under the following conditions:
             (1)      The marked portion of the nonmeandered lake is directly between a point of legal public access and a portion of the nonmeandered lake open for recreational use; and
             (2)      There is no alternative legal public access or improved legal public access to the portion of the nonmeandered lake open for recreational use.

Source: SL 2017 (SS), ch 1, § 16, eff. June 12, 2017.


     41-23-17.   Restrictions on portion of nonmeandered lake opened for transportation. The commission shall set the size and location of the area of the marked portion of a nonmeandered lake opened for transportation pursuant to § 41-23-16 and set reasonable speed, wake, and other limitations to protect the privacy, safety, and substantially affected financial interests of the owner of private property underlying the marked portion of the nonmeandered lake.

Source: SL 2017 (SS), ch 1, § 17, eff. June 12, 2017.


     41-23-18.   Criminal trespass--Exceptions. Any person who enters or remains upon private property or waters overlying private property in violation of this chapter is guilty of a criminal trespass in accordance with the applicable provisions of chapters 41-9 and 22-35, except for unarmed retrieval of lawfully taken small game as authorized in § 41-9-8 and subject to any affirmative defense set forth in § 22-35-7. However, any contact between recreational equipment and private property underlying any nonmeandered lake incidental to a lawful recreational use is not a criminal trespass.

Source: SL 2017 (SS), ch 1, § 18, eff. June 12, 2017.


     41-23-19.   Report to Executive Board of Legislative Research Council--Hearings. Before June 2, 2019, but after April 1, 2019, the department shall deliver a report to the Executive Board of the Legislative Research Council which includes the following:
             (1)      An estimate of the number of acres of nonmeandered lakes open for public recreation and the number of acres of nonmeandered lakes marked pursuant to § 41-23-5;
             (2)      For the agreements contemplated pursuant to § 41-23-3, a statistical summary relative to:
             (a)      Agreements reached with landowners;
             (b)      Negotiations in progress;
             (c)      Failed negotiations;
             (d)      Number of inquiries from landowners to commence negotiations;
             (3)      An analysis of the agreements pursuant to § 41-23-3 compared to voluntary walk in access programs for landowners;
             (4)      A listing of transportation lanes set pursuant to § 41-23-17; and
             (5)      A summary of complaints, prosecutions, convictions, or other resolution of violations on nonmeandered waters pursuant to §§ 41-23-6 and 41-23-18.
     Following receipt and public dissemination of the report, the executive board or a designated committee of the executive board shall hold one or more public hearings, which shall occur before September 3, 2019, to discuss the report and solicit input from landowners, recreational users, and the general public.

Source: SL 2017 (SS), ch 1, § 20, eff. June 12, 2017.


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