American Whitewater
South Dakota Navigability Report
Summary
South Dakota has adopted a recreational boating test. In other words, if a river or stream is capable of being floated, it can be used for any lawful recreational activity, such as boating or fishing. Any public use above the ordinary high water mark, i.e., outside of the stream bank, without the landowner's permission, would be considered trespassing. Accordingly, portaging on private property is probably not allowed in South Dakota.
State Test of Navigability
South Dakota statutorily defines navigability by stating that “a stream, or portion of a stream, is navigable if it can support a vessel capable of carrying one or more persons throughout the period between the first of May to the thirtieth of September, inclusive, in two out of every ten years.”1) This definition does not apply to a stream or portion of a stream which is navigable pursuant to federal law.2) South Dakota law further provides that ”[a]ny person may petition the Water Management Board for a declaratory ruling as to the navigability of any stream, or portion of a stream, in the state.”3) The Water Management Board of South Dakota may charge the petitioner a fee, not to exceed two hundred fifty dollars, to defray the costs of preparing the declaratory ruling.4)
South Dakota case law also articulates a recreational boating test to determine if a river or stream is navigable. A body of water is navigable if it is of such character and extent that its waters constitute “public waters,” which are defined as those waters that are naturally available “for public purposes taking into consideration the natural character and surroundings of a lake or stream.”5) This test also has been stated in different terms to include waters capable of being used for public purposes, such as boating, fishing, bathing, skating and purposes not yet anticipated.6)
Extent of Public Rights in Navigable and Non-Navigable Rivers
South Dakota has statutorily declared “that the people of the state have a paramount interest in the use of all the water of the state, and that the state shall determine what waters of the state, surface and underground, can be converted to public use or controlled for public protection.”7) Until recently, this statute appeared to conflict with South Dakota case law. A recent opinion from the South Dakota Supreme Court, however, has helped clarify the meaning of the statute.8)
Specifically, the South Dakota Supreme Court noted that “private ownership of the land underlying natural lakes and streams does not defeat the state of South Dakota's power to regulate the use of the water or defeat whatever right the public has to be on the water. Irrespective of the ownership of the bed and navigability of the water, the public, if it can obtain lawful access to a body of water, has the right to float leisure craft, hunt, fish, and participate in any lawful activity when using that water.”9) Furthermore, the South Dakota Supreme Court concluded that
“the public trust doctrine imposes an obligation on the state of South Dakota to preserve water for public use. It provides that the people of South Dakota own the waters themselves, and that the state, not as proprietor, but as trustee, controls the water for the benefit of the public. In keeping with its responsibility, the South Dakota legislature has designated the Department of Environment and Natural Resources to manage South Dakota public water resources. But it is ultimately up to the South Dakota Legislature to decide how these waters are to be beneficially used in the public interest.”10)
As of this writing, the South Dakota Legislature has not passed new legislation to expressly include recreational uses for waters overlying privately owned beds within the scope of the public trust doctrine.
It must be noted, however, that the public has a right of access along navigable streams for hunting, fishing, boating, and other recreational purposes up to the ordinary high water mark.11) The ordinary high water mark is determined during periods of ordinary flow, not extreme floods or low water.12)
Use of the streambed in navigable waters, where the bed is privately owned, probably is permissible, as the cases indicate that activities such as bathing are permissible in navigable waters. The right to portage is questionable, and arguments can be made for either position, although those against a right to portage might be on slightly firmer ground. The fact that the case law has adopted such an expansive definition of public waters and contemplates all kinds of uses of the water militates in favor of a right to portage. At the same time, cases have recognized that the upland owner's title is absolute above the ordinary high water mark and subject to the public trust below the ordinary high water mark.13) In addition, a statute makes navigable waterways public highways fifty feet landward of the water's edge, provided that the outer boundary of such public highway may not expand beyond the ordinary high water mark.14)
Miscellaneous
Entry onto the posted or enclosed lands of another is a class 2 misdemeanor, which can becomes a class 1 misdemeanor if an individual defies an owner who personally communicates an order to leave.15)
It must be noted that legislation was enacted in 1990 to allow fencing of certain navigable streams, provided that a gate is installed in the fence crossing the stream. Rivers and creeks in the state where gates are required to be installed in fences include portions of the Bad, Big Sioux, Cheyenne, East Vermillion, Elm, Grand, Little White, Moreau, Red Water, Vermillion, and White Rivers, as well as Flandreau, Firesteel, Moccasin, Split Rock, and Turtle Creeks. A large map showing the location of the stream segments where gates are required can be viewed at the following web site: www.state.sd.us/denr/des/waterrights/fence.htm. Fences constructed across navigable streams are required to have a gate with a minimum opening size of 6-feet high by 6-feet wide, and the opening must be outlined with reflective tape or other highly visible material. In addition, reflectors or highly visible material also must be attached to the fence connecting the gate with the stream bank, and the reflectors must be no more than 25 feet apart and visible from both up and downstream. The Missouri River, James River, Boise des Sioux River, and the lower five miles of the Big Sioux River are designated as navigable rivers pursuant to federal law and may not be fenced with or without a gate.
Readers with further questions are referred to the South Dakota Department of Environment and Natural Resources Website for further information. See the following website: www.state.sd.us/denr/des/waterrights/waterprg.