(dissenting).
I would affirm the trial court. The proper scope of review in a case such as this, when the issue is a question of law, is that the decisions of the administrative agency and the circuit court are fully reviewable. Johnson v. Shelly Oil Co., 359 N.W.2d 130 (S.D.1984); see also Matter of Change of Bed Category of Tieszen, 343 N.W.2d 97 (S.D.1984); Nash Finch Co. v. South Dakota Dept. of Rev., 312 N.W.2d 470 (S.D.1981). When the issue is a question of fact, however, we ascertain whether the administrative agency was clearly erroneous. Matter of S.D. Water Mgmt. Bd., 351 N.W.2d 119 (S.D.1984); State, Div. of Human Rights v. Miller, 349 N.W.2d 42 (S.D.1984). This dissent is based on: (1) a misapplication of the law; and (2) the fact that Board’s decision was clearly erroneous under the facts.
In my opinion, the South Dakota Water Management Board (Board) did not follow the legal definition of an ordinary high water mark (OHWM). SDCL 43-17-20(2) provides:
(2) ‘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. (Emphasis added.)
None of the elements required under this statutory definition are found at the elevation of 1787 chosen by Board. The statu*33tory definition leaves no doubt that there must be a distinct mark before Board can say that it has set an OHWM. Secondarily, they must have evidence which indicates this distinct mark by one or more of three methods: (1) erosion lines, (2) destruction of terrestrial vegetation, or (3) some other easily recognized characteristic. Board’s decision fails to meet any of these statutory elements.
SDCL 43-17-23 further mandates that natural factors take precedence in determining an OHWM. Influences caused or created by human beings are to be disregarded unless they have lawfully existed for such a period of time that they could be deemed the equivalent of natural conditions.
While the codified definition of an OHWM is generally consistent with previous South Dakota Supreme Court decisions and federal case law, the statutory language itself is obviously controlling. The OHWM concept originated in English common law several centuries ago. See, generally, Flisrand v. Madson, et al., 35 S.D. 457, 152 N.W. 796 (1915); Anderson v. Ray, 37 S.D. 17, 156 N.W. 591 (1916).
Both South Dakota statute and case law require the existence of an actual, physical mark as a sine qua non in establishing an OHWM. SDCL 43-17-20(2) by its very terms requires a distinct mark, which it goes on to describe as an easily recognized characteristic. This is consistent with the early, definitive opinion of this court in Anderson, supra: “ ‘High-water mark’ means what its language imports — a water mark.” 37 S.D. at 25, 156 N.W. at 594. Thus, Board misinterpreted the definition of an OHWM as a matter of law, for it has not set the mark where there is a distinct mark that is easily recognized. The attached exhibit consists of two photographs. The legend of Photo No. 2 in the lower right corner clearly depicts the distinct mark that is easily recognized. This is but one of several photographs depicting this distinct mark near the same elevation.
Not once did Board contend there was any kind of a distinct mark at elevation 1787. There are no findings of fact to that effect, nor is there any analysis in Board’s brief that would claim that a distinct mark is present at 1787.
The undisputed evidence in this case establishes that Waubay lakes constitute a single watershed essentially unchanged since their glacial origin 10,000 years ago. The best evidence available indicates that when South Dakota entered the Union in 1889, Waubay lakes were “full” at the elevation of 1799.3. Since that time, two outlet structures, both man made, were built at elevations of 1798.2 and 1797.0. Obviously, the lakes cannot reach the elevation of 1799.3 while these man-made outlet structures remain. If man-made outlets can be a determining factor, the high water mark could be anything above the lake bed.
The primary field work and on-site investigation to determine the physical evidence of the OHWM for Waubay lakes was conducted in 1982 by Natural Resources Engineer Jerry E. Steffen (Steffen), an experienced, professional member of Board’s staff, who has conducted numerous other similar investigations for Board. His study formed the basis of the original official recommendation to Board on this particular matter.
Mr. Steffen generally selected and studied shoreline areas, which were the least affected by human contact. The specific purpose of his investigation was to “ascertain where the continuous presence and action of water has left a distinct mark; either by erosion, destruction of terrestrial vegetation, or some other easily recognized characteristic.” As part of his investigation, he considered the size of the watershed area, the precise nature of the watershed, the topography, soils, and general characteristics of the lakes. The physical evidence he found led him to the ultimate conclusion that the OHWM for Waubay lakes was at elevation 1799.3.
One of the primary indicators Steffen observed and analyzed was the presence and location of erosion lines. Erosion lines left by the presence and action of water are characterized by changes in soil material *34and by an actual change in the slope of the ground. The presence and action of water separates the smaller clay and silt particles from the sands and gravels and also modifies the slope of the ground, thereby creating an observable line between the bed and banks of a lake. Steffen found the erosion lines to be the single most consistent objective, physical indicator of the OHWM on Waubay lakes.
Easily recognized and definable erosion lines were found between the elevations of 1798.4 and 1800.6, with the vast majority occurring precisely at 1799.3. No contradictory evidence on this point was ever presented. Even the 1983 Supplemental Report refers specifically to the very obvious high water mark found at elevation 1799.3and indicates that it is a mark denoted by “continuous erosion marks,” well-defined beach scarps (a steep slope above 1799.3), ridges (an elongated elevation below 1799.3), bounder lines, and significant changes in soil characteristics.
The dramatic change in soil characteristics also heavily supports the obvious high water mark found only at 1799.3. The 1799.3elevation precisely and dramatically divides highly different soils. Above 1799.-3, First-Class Soils, particularly well suited for good, tillable farm land, predominate. Below elevation 1799.3, Third-Class Soils, not at all suited for intensive cultivation, are found. These latter soils consist of Type 16, known as Foxhome sandy loan, a soil which is developed in gravelly and stony water-washed glacial till and is periodically flooded. Type 21, Maple Silty clay loan, is a soil with a very high soluble salt content.
Another physical indicator observed by both Steffen and Chief Engineer John Hatch (Hatch) was a clear-cut relationship between the high water mark elevation of 1799.3and the two man-made outlet elevations of 1797.0 and 1798.2. The specific conclusion drawn was that throughout the 10,000-year history of Waubay lakes, the presence and action of water has reached the elevation of 1799.3 so often that it has produced drastic changes in the land up to that elevation. (Man-made influences, such as these outlets, are to be disregarded in establishing the OHWM. SDCL 43-17-23.)
Trees and other terrestrial vegetation showed several patterns. Older oak trees are found only above the high water mark found at 1799. There are established lines of eighty-year-old trees found at elevations 1797 down to 1796. Between 1796 and 1788 there is random tree growth with no clearly established lines. Very small trees and shrubs are found below elevation 1787. Board and the majority opinion rely upon the existence of the eighty-year-old trees to buttress their decision, however, one should note that the man-made outlets at 1797.0 and 1798.2 would effectively eliminate a water level above 1797.0; and, thus, the highest elevation at which a tree line could occur after these structures were built would be 1797.0.
The final additional, physical characteristic studied and presented at the hearings concerned the actual levels of one or more of the five interconnected lakes at issue. The only actual water levels systematically recorded were those begun by the staff of the Waubay National Wildlife Refuge in 1960. There are only sketchy reports between 1890 and 1960. Precipitation amounts were recorded for the cities of Webster and Sisseton, both of which are nearby; but outside the actual watershed of Waubay lakes. The actual watershed reaches from a point one mile northeast of Webster to Grenville in Day County, a distance of about ten miles.
Finally, Steffen found the remains of the original trails used by the first white settlers in the area, which would have been made a few years before South Dakota’s entry into the Union. These trails follow the OHWM of 1799.3 recommended by Steffen in his 1982 report and show that they did not go below that mark with their trails in that era.
Engineer Steffen recommended that the OHWM of Waubay lakes be set at 1799.3, based on erosion mark elevations, the outlet structure elevation, water level elevations, precipitation records, and the actual *35hydrological characteristics of the entire watershed area for Waubay lakes. Board’s staff, including Engineer Hatch, concurred fully with that report. Nevertheless, at the conclusion of the December 1982 hearing, it was apparent to Division that Board, in the face of emotional, heated opposition from a number of private individuals, was not inclined to accept that level. Hatch requested that Board provide direction on where it wanted Its staff to go before the continuation of the hearings in 1983.
Although Steffen presented the supplemental report at the July 1983 meeting, he did not agree with this new report signed by Hatch. Steffen reminded Board of the obvious characteristics pointing to a high water mark of 1799.3. He also reminded Board that his 1982 report was based on the 10,000-year history of Waubay lakes. At the April 25, 1984, hearing, Steffen testified that Hatch had found nothing wrong with his original report until the close of the 1982 hearings. After that 1982 hearing, he was directed by Hatch to go out and find evidence below the 1799.3 level. Stef-fen unequivocally testified that he did not agree with the conclusion contained in the supplemental report and still categorically agreed with his original recommendation of 1799.3. Hatch, the author of the supplemental report, never testified at any of the hearings on this matter.
Steffen has been the engineer involved in all of the prior OHWM determinations of Board except one.
I am authorized to state that Chief Justice FOSHEIM joins in this dissent.*36APPENDIX B
PHOTOS OF TREES GROWING BELOW THE OHWM
[[Image here]]
PHOTO NO. 1.
Description: Cottonwood, Dia 2.4' Age 75 Years
Base Elevations: Lakeside.1788.3
Landside.1788.9
*37[[Image here]]
PHOTO NO. 2
Description: Cottonwood, Dia 2.0'
Age 60 Years
Base Elevations: Lakeside .1789.4
Landside.1789.6
Erosion Marks: Upper level of exposed rocks are between elevations of 1799.3 and 1798.4