'Ghost Claims' Complicate Water Rights in South Dakota

RAPID CITY, S.D. (AP) — A looming dispute over water rights near Rapid City highlights a thorny issue facing South Dakota: How to handle claims so old or outdated that one expert calls them “ghost claims.”

The case at hand involves a stretch of Rapid Creek. The Rapid City Journal reports (http://bit.ly/2dhQR2u ) that a local rancher, Richard Rausch, who leases nearby land wants to keep water rights first claimed there more than a century ago.

The state Water Management Board will likely have a hearing on Rausch’s case later this year.

David Ganje, an attorney who specializes in natural resource cases, has used the phrase “ghost claims” to describe water rights before 1907, the year the Legislature passed laws requiring state-issued permits for future water rights.

The state has more than 400 sets of water rights filed prior to the adoption of state water-use laws in 1907 that are technically still in force. Many of the rights are for large amounts of water, and some are attached to famous names like Seth Bullock, the legendary lawman of the Deadwood gold-rush era who still technically owns a water right on the Redwater River in Butte County.

Ganje said state regulators have to be careful how they treat the old claims because water rights are property rights and anyone with a claim to property is entitled to certain protections.

Eric Gronlund, who works in the modern Water Rights Program of the state Department of Environment and Natural Resources, said his office tries to chip away at the ghost claims when it can. But the office has an even bigger backlog of modern permits, which constitute permission for an applicant to develop a water right. If development occurs, the state is supposed to conduct a re-inspection for the potential issuance of a water license.

There are now nearly 2,000 permits lingering in the state water-rights database, including modern permits and the pre-regulatory ghost claims. Gronlund said the state has hired two water-rights inspectors to attack the backlog.

Rausch, who has rented his land since 1982, hadn’t known of the old water rights when he was visited by a state water-rights inspector in August, according to the inspector’s written report. That report said Rausch consented to their cancellation. A water management board hearing for that purpose had been scheduled for Oct. 8.

Then, on Sept. 8, Rausch notified the state’s Water Rights Program that he had changed his mind.

“If given the chance,” wrote Rausch, “we would do what is required to keep the 1896 water rights in place.” The Journal said he declined an interview request.

Rausch’s change of heart triggered an automatic postponement of the hearing until November or December.

Ganje said if Rausch wants to keep the rights, he’ll have to show a chain of land ownership that stretches back to the men who first filed the water rights claim in 1891 and again in 1896. He said Rausch will also have to produce evidence from the past that he intended to keep the old water rights— proof of digging or piping projects, letters of inquiry to engineers about potential irrigation work, etc.

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