South Dakota Wildlife Federation v. Water Management Bd., Nos. 14760

CourtSupreme Court of South Dakota
Writing for the CourtHENDERSON; MORGAN, J., and HERTZ; FOSHEIM, C.J., and WUEST; WUEST
Citation382 N.W.2d 26
PartiesSOUTH DAKOTA WILDLIFE FEDERATION, a South Dakota Nonprofit Corporation, and Roger Pries, Appellees, v. WATER MANAGEMENT BOARD, State of South Dakota (# 14760 and # 14820), Appellant. SOUTH DAKOTA WILDLIFE FEDERATION, a South Dakota Nonprofit Corporation, and Roger Pries, Appellants, v. WATER MANAGEMENT BOARD, State of South Dakota (# 14816), Appellee.
Docket Number14820,Nos. 14760,14816
Decision Date15 January 1986

Page 26

382 N.W.2d 26
SOUTH DAKOTA WILDLIFE FEDERATION, a South Dakota Nonprofit
Corporation, and Roger Pries, Appellees,
v.
WATER MANAGEMENT BOARD, State of South Dakota (# 14760 and #
14820), Appellant.
SOUTH DAKOTA WILDLIFE FEDERATION, a South Dakota Nonprofit
Corporation, and Roger Pries, Appellants,
v.
WATER MANAGEMENT BOARD, State of South Dakota (# 14816),
Appellee.
Nos. 14760, 14816, 14820.
Supreme Court of South Dakota.
Argued Sept. 10, 1985.
Decided Jan. 15, 1986.

Thomas E. Klinkel of Richardson, Groseclose, Kornmann, Wyly, Wise & Klinkel, Aberdeen, for South Dakota Wildlife Federation and Roger Pries.

Daniel J. Doyle, Asst. Atty. Gen., Pierre, Mark V. Meierhenry, Atty. Gen., Pierre, on brief, for Water Management Bd.

William E. Coester, Milbank, for amicus curiae, Waubay Lake Ass'n and Sylvester Wika.

HENDERSON, Justice.

ACTION

This is an appeal from a circuit court judgment which reversed a decision of the South Dakota Water Management Board. The Water Management Board's decision established the ordinary high water mark for Waubay Lake at the elevation of 1,787.0 feet mean sea level. The circuit court's judgment reversed this decision and established the Waubay Lake ordinary high water mark at the elevation of 1,799.3 feet mean sea level. We reverse the circuit court's judgment and hereby reinstate the Board's decision. We also reverse an award of costs and affirm a denial of attorney fees.

FACTS

By the 1978 enactment of SDCL 43-17-20 through SDCL 43-17-26, inclusive, the South Dakota Water Management Board (Board) was required to establish the ordinary high water mark (OHWM) and the ordinary low water mark (OLWM) for public lakes. The OHWM and the OLWM are respectively defined in SDCL 43-17-20(2) and (3) as follows:

"Ordinary high water mark," the high level reached by the waters of a lake under ordinary and continuous conditions, unaffected by periods of extreme and periodic freshets. The ordinary high water mark is indicated by the continuous presence and action of water which leave a distinct mark either by erosion, destruction of terrestrial vegetation, or some other easily recognized characteristic;

"Ordinary low water mark," the low level reached by the waters of a lake under ordinary conditions unaffected by periods of extreme and continuous drought. [ 1 9

The establishment of the OHWM and the OLWM are important decisions because the adjacent or riparian landowners, own the land down to the OLWM. SDCL 43-17-2. Below the OLWM, the State of South Dakota owns the land and holds it within the public domain. SDCL 43-17-1. However, although the riparian owners own the land down to the OLWM, the public has a right of access for hunting, fishing, boating, and other recreational purposes, up to the OHWM. Thus, the riparian owners cannot restrict or deny the public access to those shore lands and waters below the OHWM on public lakes.

On December 9 and 10, 1982, pursuant to notice to riparian landowners and the public,

Page 28

the Board held hearings in Aberdeen on the establishment of the OHWM for Waubay Lake. Waubay Lake is a series of five interconnected glacier lakes formed by the retreat of the glaciers over 10,000 years ago. Waubay Lake includes North Waubay Lake, South Waubay Lake, Hillebrands Lake, Swan Pond, and Spring Lake. The Lake is located in Day County and lies in a single glacier depression which stretches from a point one mile northeast of Webster to Grenville, South Dakota.

At these Aberdeen hearings, Jerry Steffen (Steffen), an Engineer with the Department of Water and Natural Resources, Division of Water Rights (Division), testified and submitted an investigation report for the Division, which recommended that the Waubay OHWM be set at the elevation of 1,799.3 feet mean sea level (1799.3). Steffen's recommendation, as evidenced by his testimony and report, was based on the elevations of erosion marks, water level, changes in soil characteristics, and outlet structures, along with precipitation records and the hydrological characteristics of Waubay Lake. Several other individuals, however, testified that vegetation, including 60-to-80-year-old cottonwood, elm, ash, and oak trees, exists below the Division's 1799.3 recommendation, as do some public roads. Further testimony was presented which outlined (1) that under the statutes, the OHWM was to be based on ordinary and continuous conditions; (2) that Waubay Lake does not ordinarily reach 1799.3 and has not done so for over 85 years; and (3) that when it did reach 1799.3 in the late 1800's, it was a period of extreme and heavy precipitation. The Board thereupon ordered a continuance so as to obtain more information.

On July 19 and 20, 1983, in Webster, the Board held further hearings on the establishment of the Waubay OHWM. At these hearings, Steffen again testified and also submitted a supplemental investigation and report on behalf of the Division. The recommendation of the Division in the supplemental report was for an OHWM of 1788. Steffen testified that 1788 was reached as an OHWM because of the conflicting evidence in that major trees--major being 60-to-80 years old and one and one-half feet in diameter--were found to go down to the 1788 level. 2 Further examination of Steffen's testimony reveals the following: (1) A culvert and railroad track exists at 1797.1; (2) a man-maintained outlet exists at 1797; (3) the highest water level reading obtained since 1960 was 1786.5; (4) a 1953 map indicates a water level between 1789 and 1787; (5) an intermittent ridge line exists at this 1789 to 1787 level; (6) when Waubay Lake reached a level of 1799.3 in the late 1800's, the area received almost double the annual precipitation; and (7) his previous recommendation of 1799.3 was based on the shoreline features of erosion and soil characteristics--characteristics similar to other lakes.

John Hatch (Hatch), Chief Engineer of the Division testified concerning the new supplemental recommendation as follows:

T]he reason for not picking 1799.3 is because we did not believe that is representative of ordinary and continuous water level conditions. We believe that 1788 is, does reflect, more accurately reflects, the actual and ordinary and continuous water level conditions under a high level basis. And that's the real question on Waubay Lakes where you do have conflicting evidence of the role of the obvious water mark of 1799 as to what is ordinary and continuous and I do not see where you call 1799 ordinary and continuous when the water level has not been that high since 1897. And that is the reason the lower level, 1788, is being recommended

Jack Opitz (Opitz), Supervisor of the Department of Game, Fish and Parks in Watertown also testified. He recommended that the OHWM be set at 1799.3. His testimony, in substance, was that the highest

Page 29

water mark evidenced on shore was to be used even if that mark has not been reached in many years.

Roger Pries (Pries), Executive Director of the South Dakota Wildlife Federation (Federation), also testified. Pries and the Federation are parties to this appeal and will be collectively referred to as the Federation. The Federation asserted the adoption of 1799 as the OHWM for Waubay Lake. The Federation's rationale for such an adoption was, in substance, public policy, public rights, consistency, and the relative length of time in a lake's lifespan. The Federation admitted, however, that Waubay Lake presented a special situation.

After receiving all the testimony, the Board conducted an on-site examination of Waubay Lake. 3 Thereafter, and based on the examination and the testimony and evidence presented, the Board set the OHWM for Waubay Lake at the elevation of 1,787 feet mean sea level. From the Board's determination, the Federation appealed to the circuit court. On April 25, 1984, pursuant to a circuit court order, the Board conducted a supplementary hearing in Pierre on the Waubay Lake OHWM. During this supplemental hearing, Steffen again testified. Steffen testified that he believed the original Division recommendation of 1799.3 was correct; that the supplemental recommendation of 1788 departed from erosion and soil change characteristics and relied on established trees in the lake bed and disregarded the main high water mark characteristics of the lake. Steffen also testified, however, that 1799.3 was the extreme high water mark; 1799.3 was reached in the late 1800's during several years of 42-inch precipitation; records show a level of 1799.3 being reached only once; four or five residences in Grenville are built below the 1799 level; there has not been a case where the water level was so different from his OHWM recommendation; there has not been a case where there were 60-to-80-year-old trees eleven feet below his OHWM recommendation; and that the Board has ignored the Division's recommendations in the past. The Board, thereafter, reaffirmed its prior decision and set the Waubay Lake OHWM at the elevation of 1,787 feet mean sea level.

The circuit court, however, after receiving briefs and oral arguments from the parties, and after its own on-site examination of Waubay Lake, reversed the Board's decision and set the OHWM at the elevation of 1,799.3 feet mean sea level. The circuit court concluded that the Board's decision: (1) violated the public trust; (2) erred as a matter of law; (3) was clearly erroneous in light of the entire evidence; and (4) was arbitrary, capricious, and characterized by an abuse of discretion. The circuit court also awarded the Federation certain costs but denied their request for attorney fees. From the determination setting the Waubay OHWM at 1799.3 and the taxation of costs, the Board now appeals. From the denial of attorney fees, the Federation appeals.

DECISION

I.

WAS THE BOARD'S DETERMINATION ESTABLISHING THE OHWM AT 1787 ERRONEOUS? WE HOLD THAT IT WAS NOT.

This Court reviews the administrative decision essentially in the same...

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8 practice notes
  • Parks v. Cooper, No. 22601.
    • United States
    • Supreme Court of South Dakota
    • February 25, 2004
    ...boating, and other public purposes freed of interference of private parties[.]"); South Dakota Wildlife Fed'n v. Water Mgmt. Bd., 382 N.W.2d 26 (S.D.1986). Today we acknowledge, in accord with the State's 676 N.W.2d 839 sovereign powers and the legislative mandate, that all waters with......
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    ...N.W.2d 593 (S.D.1986); Application of Northwestern Bell Tel. Co., 382 N.W.2d 413 (S.D.1986); S.D. Wildlife Federation v. Water Mgt. Bd., 382 N.W.2d 26 (S.D.1986); Matter of S.D. Water Mgmt. Bd., 351 N.W.2d 119 (S.D.1984); Weltz v. Bd. of Educ. of Scotland Sch. Dist., 329 N.W.2d 131 Some of ......
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    • United States
    • Supreme Court of South Dakota
    • May 26, 1988
    ...Permann v. Dept. of Labor, Unemp. Ins. Div., 411 N.W.2d 113, 116 (S.D.1987) (citing S.D. Wildlife Federation v. Water Mgt. Bd., 382 N.W.2d 26, 32 (S.D.1986) (Wuest, J., dissenting); Johnson v. Skelly Oil Co., 359 N.W.2d 130, 132...
  • Lawler v. Windmill Restaurant, No. 16074
    • United States
    • South Dakota Supreme Court
    • October 12, 1988
    ...Page 710 Permann v. Dept. of Labor, Unemp. Ins. D., 411 N.W.2d 113, 115 (S.D.1987); S.D. Wildlife Federation v. Water Mgt. Bd., 382 N.W.2d 26, 32 (S.D.1986) (Wuest, J., dissenting); Barkdull v. Homestake Min. Co., 317 N.W.2d 417, 418 (S.D.1982). There is no presumption from the mere occurre......
  • Request a trial to view additional results
8 cases
  • Parks v. Cooper, No. 22601.
    • United States
    • Supreme Court of South Dakota
    • February 25, 2004
    ...boating, and other public purposes freed of interference of private parties[.]"); South Dakota Wildlife Fed'n v. Water Mgmt. Bd., 382 N.W.2d 26 (S.D.1986). Today we acknowledge, in accord with the State's 676 N.W.2d 839 sovereign powers and the legislative mandate, that all waters with......
  • Permann v. South Dakota Dept. of Labor, Unemployment Ins. Div., No. 15390
    • United States
    • Supreme Court of South Dakota
    • April 21, 1987
    ...N.W.2d 593 (S.D.1986); Application of Northwestern Bell Tel. Co., 382 N.W.2d 413 (S.D.1986); S.D. Wildlife Federation v. Water Mgt. Bd., 382 N.W.2d 26 (S.D.1986); Matter of S.D. Water Mgmt. Bd., 351 N.W.2d 119 (S.D.1984); Weltz v. Bd. of Educ. of Scotland Sch. Dist., 329 N.W.2d 131 Some of ......
  • Aliberti v. Solem, No. 16017
    • United States
    • Supreme Court of South Dakota
    • May 26, 1988
    ...Permann v. Dept. of Labor, Unemp. Ins. Div., 411 N.W.2d 113, 116 (S.D.1987) (citing S.D. Wildlife Federation v. Water Mgt. Bd., 382 N.W.2d 26, 32 (S.D.1986) (Wuest, J., dissenting); Johnson v. Skelly Oil Co., 359 N.W.2d 130, 132...
  • Lawler v. Windmill Restaurant, No. 16074
    • United States
    • South Dakota Supreme Court
    • October 12, 1988
    ...Page 710 Permann v. Dept. of Labor, Unemp. Ins. D., 411 N.W.2d 113, 115 (S.D.1987); S.D. Wildlife Federation v. Water Mgt. Bd., 382 N.W.2d 26, 32 (S.D.1986) (Wuest, J., dissenting); Barkdull v. Homestake Min. Co., 317 N.W.2d 417, 418 (S.D.1982). There is no presumption from the mere occurre......
  • Request a trial to view additional results

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