South Dakota Wildlife Federation v. Water Management Board

382 N.W.2d 26, 1986 S.D. LEXIS 196

• Court: South Dakota Supreme Court
• Decided: January 15, 1986
• Docket: 14760, 14816, 14820
• Status: Published

Opinions

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]

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 pub-lie, the Board held hearings in Aberdeen on the establishment of the OHWM for Wau-bay 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 Wau-bay 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 Stef-fen (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). Stef-fen’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 Stef-fen’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 Wa-tertown also testified. He recommended that the OHWM be set at 1799.3. His testimony, in substance, was that the highest 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 manner as did the circuit court. Matter of South Dakota Water Management Bd., 351 N.W.2d 119, 122 (S.D.1984).

Thus, our review is of the decision of the administrative agency and our standard is the clearly erroneous standard. If the circuit court reversed the agency’s decision, and “[i]f after review of the evidence we deem the agency findings clearly erroneous, we affirm the circuit court. If the agency findings are not clearly erroneous, then the circuit court was clearly erroneous in so concluding.” State, Div. of Human Rights v. Miller, 349 N.W.2d 42, 46 n. 2 (S.D.1984).

Kienast v. Sioux Valley Co-op, 371 N.W.2d 387, 339 (S.D.1985). See also, Stavig v. South Dakota Highway Patrol, 371 N.W.2d 166, 168 (S.D.1985).

As stated in the facts above, the adjacent, riparian, or upland owner takes to the edge of public lakes at the ordinary low water mark. See SDCL 43-17-2; Anderson v. Ray, 37 S.D. 17, 24, 156 N.W. 591, 593 (1916); Flisrand v. Madson, 35 S.D. 457, 470, 152 N.W. 796, 801 (1915). The riparian owner’s title, however, is absolute only to the extent of the OHWM. As to the intervening shore between the ordinary high and the ordinary low water marks, the riparian owner's title is qualified or limited by and subject to the public’s right of access and use for navigating, boating, fishing, fowling, and like public purposes. Flisrand, 152 N.W. at 801. See also, State ex rel. Clark v. Deisch, 38 S.D. 560, 564, 162 N.W. 365, 366 (1917). Thus, the riparian owner may not interfere with or prevent the public’s use or lawful access. The State of South Dakota, on the other hand, owns the bed of the lake or that portion below the low water mark.⁴ Hillebrand v. Knapp, 65 S.D. 414, 418, 274 N.W. 821, 822 (1937).

The OHWM was defined in SDCL 43-17-20(2), at the time of the events at bar, as

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[.]

This statute is a combination of our holdings in Flisrand and Anderson. However, as this Court stated in Flisrand, 35 S.D. at 470, 152 N.W. at 800-01:

Neither high nor low water mark means the highest or lowest point reached by the waters of a lake during periods of extreme and continued freshets, or periods of extreme and continued drought, but does mean the high and low points of variation of such waters under ordinary conditions, unaffected by either extreme. Farnham on Water Rights, p. 1461; Carpenter v. Board of Commissioners, 56 Minn. 513, 58 N.W. 295; Dow v. Electric Co., 69 N.H. 498, 45 Atl. 350, 76 Am.St. Rep. 189; Stover v. Jack, 60 Pa. 339, 100 Am.Dec. 566; McBurney v. Young, 67 Vt. 574, 32 Atl. 492, 29 L.R.A. 539.

The OHWM thus does not encompass the peak flow or flood stages. Buttrey v. United States, 573 F.Supp. 283, 298 (E.D.La.1983).

In Anderson, 37 S.D. at 25-26, 156 N.W. at 594, this Court quoted with approval language in Carpenter v. Bd. of Comm’rs, 56 Minn. 513, 518, 58 N.W. 295, 297 (1894), wherein the Minnesota Supreme Court said:

[I]n the case of fresh-water rivers and lakes — in which there is no ebb and flow of the tide, but which are subject to irregular and occasional changes of height, without fixed quantity or time, except that they are periodical, recurring with the wet or dry seasons of the year— high-water mark, as a line between the riparian owner and the public, is to be determined by examining the bed and banks, and ascertaining where the presence and action of the water are so common and usual, and so long-continued in all ordinary years, as to mark upon the soil of the bed a character distinct from that of the banks, in respect to vegetation, as well as respects the nature of the soil itself. “High-water mark” means what its language imports — a water mark. It is co-ordinate with the limit of the bed of the water; and that, only, is to be considered the bed which the water occupies sufficiently long and continuously to wrest it from vegetation, and destroy its value for agricultural purposes. Ordinarily, the slope of the bank and the character of its soil are such that the water impresses a distinct character on the soil, as well as on the vegetation. In some places', however, where the banks are low and flat, the water does not impress on the soil any well-defined line of demarkation between the bed and the banks. In such cases, the effect of the water upon vegetation must be the principal test in determining the location of high-water mark, as a line between the riparian owner and the public. It is the point up to which the presence and action of the water is so continuous as to destroy the value of the land for agricultural purposes by preventing the growth of vege-tation_ (Emphasis supplied.)

See also, Merrill v. Bd. of Supervisors of Cerro Gordo County, 146 Iowa 325, 328, 125 N.W. 222, 224 (1910); Ephraim Creek Coal & Coke Co. v. Bragg, 75 W.Va. 70, 73, 83 S.E. 190, 191 (1914). “The value for agricultural purposes is destroyed where terrestrial plants not all plant life ceases to grow.” Borough of Ford City v. United States, 345 F.2d 645, 648 (3rd Cir.1965), cert. denied, 382 U.S. 902, 86 S.Ct. 236, 15 L.Ed.2d 156 (1965).

Thus, under ordinary circumstances, the OHWM will be set at the level where there is a distinct mark which evidences erosion, and changes in the character of the soil, and destruction of terrestrial vegetation, which have occurred under the ordinary and continuous conditions of the lake, disregarding periods of extreme and periodic freshets, and disregarding the highest water mark which does not evidence erosion and soil changes and destruction of vegetation occasioned under ordinary conditions. If a single distinct mark, occasioned under ordinary circumstances and evidencing all of the factors delineated above does not exist, i.e., there is conflicting evidence of the role of the OHWM, it is the level where significant, major, and substantial terrestrial vegetation ends, that the OHWM is to be set. See Borough of Ford City, 345 F.2d at 648; State, Dep't of Natural Resources v. Pankratz, 538 P.2d 984, 989 (Alaska 1975); Hayes v. State, 254 Ark. 680, 684, 496 S.W.2d 372, 374-75 (1973); Tilden v. Smith, 94 Fla. 502, 513, 113 So. 708, 712 (1927); Carpenter v. Bd. of Comm’rs, 58 N.W. at 297; Rutten v. State, 93 N.W.2d 796, 799 (N.D.1958); Anderson v. Ray, 156 N.W. at 594; and Ephraim Creek Coal & Coke Co. v. Bragg, 83 S.E. at 191.

In the present case, conflicting evidence was presented as to the Waubay OHWM. Erosion and soil changes existed at the 1799.3 level but the soils below 1799.3 are usable for agricultural purposes and the water level reached this point in the late 1800’s during a period of heavy rain and snowfall. The lake has not reached that level since that time and roads, houses, and significant and substantial terrestrial vegetation exist below the 1799.3 level. Thus, the mark at the 1799.3 does not encompass all three relevant factors and it was not the result of ordinary conditions at Waubay Lake. The Board appropriately established the Wau-bay Lake OHWM at the elevation of 1,787 feet mean sea level — the level where significant and substantial terrestrial vegetation ends.⁵ The Board’s decision was not clearly erroneous, arbitrary, an abuse of discretion, or in error as a matter of law. The circuit court’s judgment reversing the Board is therefore reversed and the Board’s decision reinstated.

II.

IS THE PUBLIC TRUST DOCTRINE APPLICABLE TO THE ESTABLISHMENT OF THE OHWM? WE HOLD THAT IT IS NOT.

As stated above, the State of South Dakota “holds title to the bed of [Waubay Lake] not in a proprietary capacity, but in trust for the people that they may enjoy the use of [its] navigable waters for fishing, boating, and other public purposes freed of interference of private parties.” Hillebrand, 65 S.D. at 418, 274 N.W. at 822-23. The riparian owner, however, owns down to the OLWM, but the public has a right of access up to the OHWM. The Federation contends that because the Waubay Lake OHWM was at 1799.3 when South Dakota entered the Union, an OHWM lower than 1799.3 cannot now be set without violating the trust under which the state holds the bed of Waubay Lake. For the reasons outlined below, we find the public trust doctrine inapplicable to the establishment of the OHWM.

First, the OHWM is established by the processes of nature and the Board’s setting thereof is merely a formal recognition of the mark established by nature. The riparian owner has title to relictions or accretions to his land, Hillebrand, id., and the trust held by the state, and the public’s right of access does not apply “to lakes, which at some former time might have been public or navigable, but which have been by some natural cause permanently and forever changed in character, so that the public could no longer reasonably claim to use the same for such public purpose.” Flisrand, 35 S.D. at 471, 152 N.W. at 801. Thus, the public trust is subject to changes in the character of a lake, and this includes a lowering of the OHWM.

Second, even assuming the Federation’s contention to be valid, there is insufficient evidence in the record to clearly establish that Waubay Lake was at 1799.3 when South Dakota entered the Union in the year 1889. The Federation’s contentions on this issue are not sustainable.

We have examined the other contentions raised herein and find them to be without merit. The Federation is not entitled to attorney fees nor the costs awarded below.

The circuit court judgment appealed by the Board is reversed and the Board’s decision is reinstated. The circuit court judgment which awarded the Federation costs, is also reversed, and the same circuit court judgment which denied the Federation recovery of attorney fees is affirmed.

MORGAN, J., and HERTZ, Circuit Judge; Acting as Supreme Court Justice, concur. FOSHEIM, C.J., and WUEST, J., dissent.

1 . This statutory language was modified by the enactment of 1985 S.D.Sess.Laws ch. 337, § 2, so that presently, the definitions of "ordinary high water mark” and "ordinary low water mark” are defined in the decisions rendered by the courts of this state.

2 . See photographs appended to dissent. Obviously, these cottonwood trees would not have grown, for they would be under water per the theory of the circuit court which theory is adopted by the dissent.

3 . When establishing a lake’s OHWM and OLWM, the Board, or its designated representative, is required by SDCL 43-17-24, inter alia, to physically investigate the site.

4 . This does "not mean that the state is the proprietary owner in the sense that the state might sell or otherwise dispose of the same to private individuals for private ends, but that the state holds the title to such lake bed in trust for the benefit of the public." Flisrand, 35 S.D. at 470, 152 N.W. at 800.

5 . The 1,787 OHWM is also consistent with an intermittent ridge line; the highest water level reading since 1960; and the water level indicated by a 1953 map.