Mainstreet Radio's Cara Hetland reports that farmers in Day County in northeastern South Dakota have spent the past eight years watching their farm fields become lakes. Day County is in an area known as the “prairie pot hole.” There's no drainage system for the sloughs now filled with water. Landowners who once grazed hundreds of head of cattle now see a new sight on their pastureland…fishing boats.
State law maintains all open water is public as long as there is access from a public road. Day County landowners say they pay taxes and in some cases mortgages on the land under the water and contend it should remain private.
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CARA HETLAND: Randy Knutson looks at a satellite image map of his county taken in 1998. Where there was once a perfect grid of roads and farmhouses, the image now shows winding roads around miles of water.
RANDY KNUTSON: Back in '92 or '93 there, there might have been a little water just right in here in an area. And all the rest of this ground, a lot of this was farmed. A lot of this was pasture land.
CARA HETLAND: Then, Knutson's land held grazing cattle. Now it's fishing boats and bobbers. Farmers in this area had to choose whether to raise crops or livestock. There wasn't enough dry land on each farm to do both.
Knutson chose cattle. He says water intrudes on all of his remaining pasture land. Fencing off the dry land is expensive and time consuming. He uses winged fences to force swimming cattle back to the land.
Knutson's land is scattered between his home and his mother's a mile away. Water separates the two farmsteads that were once connected. He says at peak periods, hundreds of people come to fish what's now called Long Lake, a series of flooded sloughs.
Joining Knutson at his kitchen table in rural Webster, South Dakota, is Ordean Parks. Parks and his family own more than 4,000 acres in Day County. The Parks family settled this land. He says in 1990, 3/4 of his land was tillable. Now he's able to work one fourth of it. The rest is flooded.
ORDEAN PARKS: How can people say that this is not my property? I've got a deed for it.
RANDY KNUTSON: Paid taxes on it for 20, 30 years.
ORDEAN PARKS: 20, 30, hell, it's from the time of statehood. From the time that the original land patents were issued, this has been private property. How can they come in here and say because there's a little water on it that it's public property?
DOUG HANSON: We certainly appreciate and understand the frustration for some of those people.
CARA HETLAND: Doug Hanson is the director of the Division of Wildlife for the South Dakota Game Fish and Parks Department.
DOUG HANSON: Their economic livelihood and their whole life has been spent on this place. And they see it now underwater. And it seems like everybody is benefiting from this situation except them.
CARA HETLAND: Hanson says as long as there's legal access and the water is navigable, it's open to everyone for recreational use. In fact, the Game and Fish Department promoted the area by posting Long Lake on an internet site as a hot fishing spot last winter. Randy Knutson, Ordean Parks, and a dozen neighbors are challenging that position in court. They want to know who has rights to the land they call home, who has control over and under the water.
RANDY KNUTSON: Does the public of South Dakota need every acre foot of water for their survival? These were never made public until in '93, '94, when the water and the fish came.
ORDEAN PARKS: It's when the walleyes got to be 3 pounds.
CARA HETLAND: Both Knutson and Parks admit to dumping a day's catch in smaller sloughs on their property to avoid cleaning them. Over the years, the fish have multiplied, and along with other fish from nearby flooded lakes, given Long Lake a reputation for having nice eaters, good-sized walleye, perch, and northerns. But the legal issue here is not really about the size of the fish or the number of people boating, but rather what's called meandered water.
At statehood, if a body of water crossed over a section line, which is a quarter mile square, it was considered meandered and held in the public trust. The rest of the land was deeded and settled. The farmers contend that legal definition cannot be amended over time. What was privately held land should remain so. However, the state says there's evidence that the area was flooded 50 years before settlers arrived. Doug Hanson--
DOUG HANSON: And the conditions were such that most of that area was dry. So deeds were given to the land. That doesn't change the fact that land was subject to water being on it. And that's exactly what's happened.
CARA HETLAND: Hanson says Long Lake is now connected to another lake that falls into the state's meandered classification. The state considers them one body of water and therefore public. The farmers want control and compensation. Their attorney is Jack Hieb.
JACK HIEB: And now they're being told not only can't you make a profit off the land because there's 12 feet of water on top of it, but you can't even control who comes and goes across the top of it and uses it.
CARA HETLAND: Randy Knutson lives a couple of miles from his neighbor, Raymond Parks. Long Lake touches both of their property. The tree belt surrounding Park's house is now 10 feet out in the water. And the lake is 20 feet from his front porch.
RANDY KNUTSON: You envision people ice fishing right there, and that's his house. How can that be correct, to be on this side of those trees, running ice augers, and then coming right up there to take a crap because you don't want to do it out on the ice? And he has to sit there in the living room or in the kitchen and watch it?
CARA HETLAND: Last winter, Raymond Parks was regularly jolted from his sleep by ice fishermen with augers. He says at its peak, he could see hundreds of ice fishermen on the lake from his front porch. He has undeveloped pictures of sportsmen defecating next to his garage.
Parks has had numerous confrontations, asking sportsmen to leave his property. They both feel they have a right to be there. Raymond Parks wants control not only of who's on his property but also how many fish are taken out of the water. He says if the courts rule the water is private property, the landowners agree they would close it to fishing while they decide how best to manage the area.
RAYMOND PARKS: I would let it go a year or two and let it recover from the damage that was done to it, the overharvest they put on it this winter. You're not seeing anybody out here right now. But this is unusual, yeah. But basically, what we're doing with the lawsuit is to find out whether it is still our property or whether it's being taken away from us.
CARA HETLAND: Compensation is important. But according to Doug Hanson of the Game Fish and Parks Department, it's a bad move for the state to buy up land around water that will likely experience another dry cycle. To Hanson, it's spending taxpayer money on something that already belongs to the taxpayer.
DOUG HANSON: That's what's difficult for, I think, some of the landowners to understand that we have this responsibility to the public and to the trust resources that belong to the public. And one of those resources is water. And another one is fish that live in the water.
CARA HETLAND: Hanson also questions whether landowners are in a good position to manage Long Lake. He worries that one landowner might charge for access and wonders how people would know where the property lines are. Farmers say it's no different than having hunters on their land.
It will be several months before the lawsuit moves through the court system. A legislative committee will meet with landowners later this month to discuss both arguments. Ultimately, the legislature can determine what's legal and who has rights to the land and water in Day County. In Sioux Falls, I'm Cara Hetland, Minnesota Public Radio.