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Public Right To Water Bodies

It’s A Free Country – At Least Between The High Water Mark And Low Water Mark

Most things in life are not free, but use and enjoyment of lakes, rivers, and streams in South Dakota often are. In South Dakota, water resources are held in trust by the state for all its citizenry. The SD Department of Environment and Natural Resources regulates water use and makes sure that uses conform to the public interest. Stemming from South Dakota’s sovereign authority and codified by statute, the public has a right to recreationally use water when that use conforms to “public purposes.” Public purposes are defined as boating, fishing, swimming, hunting, skating, picnicking, and similar activities. Free use of public bodies is extended to the underlying bed (including dry bed) between the Ordinary High Water Mark and the Ordinary Low Water Mark, so long as the overlying water body is capable of recreational use. For navigable rivers and lakes, free use extends 50 feet landward from the Low Water Mark, so long as the distance does not extend past the High Water Mark. The unique space between the High Water Mark and Low Water Mark also serves as a “right-of-way” when a publically managed water body is used for public purposes. It is prudent for those using the water to have an understanding of the law to avoid trespassing on private land.

The ownership of land grants the owner a bundle of rights, which include the right to defend privately owned property from trespassers. But even private land may be encumbered for the use of “public rights.” For instance, South Dakotans have a right to travel on public highways, including section lines that divide plats of land. Section lines are an example of a public right-of-way which the public is free to use without the permission of a private landowner.

Similarly, navigable waters are considered public highways under South Dakota law. Rivers that are considered navigable under federal law are considered the same under South Dakota law. Federal law defines navigable waters as waters of the United States that were historically used to facilitate interstate commerce. Large interstate rivers such as the Missouri River are navigable under federal law. The state test applies to any other waterways, such as intrastate streams. South Dakota defines a stream or portion of a stream as navigable when it can support a vessel capable of carrying one or more persons throughout the period between May 1 and September 30 in two out of every ten years. This has sometimes been called the “pleasure boat test.” Whether a body of water was meandered upon statehood does not necessitate a finding of navigability, but it can suggest navigability.

This water right-of-way is not limitless. In South Dakota, riparian (adjacent) landowners own the land down to the Low Water Mark. Recreational users of water for public purposes however can use land located between the High and Low Water Mark via this right-of-way. It is unlawful for a riparian owner to interfere with the water right-of-way between the High and Low Water Mark, even if the landowner is under the false-but-reasonable belief that the public is trespassing. This prohibition includes the use of livestock fences that keep non-owners off the waterway. Fences across navigable streams must have a 6 foot high by 6 foot wide gate or they are unlawful. Federal navigable waters like the Missouri River are not allowed to be fenced off, regardless of the presence of a gate.

How do recreational users access public water when a landowner owns the submerged land up to the Low Water Mark. Public ownership of the water body and the accompanying right-of-way does not create an automatic easement to access the public water. The water right-of-way only applies to the space between the High and Low Mark. However, a limited right to portage exists in South Dakota. Portage refers to the carrying of boats and supplies overland between two waterways or around an obstacle to navigation. The term can also refer to the route by which a user of the waterway accomplishes this task.

When public water has no access point, the state of the law can make access functionally impossible because there is no law that gives universal access “down to the water” if this entails trespass over private land. The law is not like a snowplow on a truck which is always in front of a problem making things right. The law is an after-the-fact remedy that sometimes fixes.

Author:   David Ganje.   David Ganje of Ganje Law Offices practices in the area of natural resources, environmental and commercial law in South and North Dakota.