Meandered, non-meandered, and sloughs, oh my!

Limitless

Limitless

Well-known member
Coming from Minnesota, where if you can access water from a public piece of land (public hunting areas, road right of ways, etc), you can hunt it, as long as there is ice under your feet, the SD situation always gives me headaches. Just when I think I do understand it, I read something that puts my understanding in jeopardy.

What would people say is allowable in the following situations?

Assume the bodies of water are not on the non-meandered waters list, to make this easier (maybe).

- Slough/lake/pond borders public land (or public water). Can access the frozen water from that public side, and hunt up to the edge of the water, as long as ice is under your feet?

- Slough/lake/pond borders public right of way. Can access the frozen water from that point, and hunt up to the edge of the water, as long as ice is under your feet?

There is a lot of info online about the non-meandered waters, but not as much for a plain old slough or pond, that might not even have a name.
 
Limitless said:
Coming from Minnesota, where if you can access water from a public piece of land (public hunting areas, road right of ways, etc), you can hunt it, as long as there is ice under your feet, the SD situation always gives me headaches. Just when I think I do understand it, I read something that puts my understanding in jeopardy.

What would people say is allowable in the following situations?

Assume the bodies of water are not on the non-meandered waters list, to make this easier (maybe).

- Slough/lake/pond borders public land (or public water). Can access the frozen water from that public side, and hunt up to the edge of the water, as long as ice is under your feet?

- Slough/lake/pond borders public right of way. Can access the frozen water from that point, and hunt up to the edge of the water, as long as ice is under your feet?

There is a lot of info online about the non-meandered waters, but not as much for a plain old slough or pond, that might not even have a name.
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Just hunt it.
 
If the body of water/slough is on private property it can't be hunted unless you have permission. Asked a CO in SD about this as MN you can access it. We were curious because years ago we were duck hunting in SD and wanted to hunt a slough that started on a WPA and transitioned to private property. He stated that even though you can access it from public property, once you cross the property line even if it's under water that you are now on private property and it that is trespassing. So even if you stay on the ice, it's considered private property.
 
waterdog09 said:
If the body of water/slough is on private property it can't be hunted unless you have permission. Asked a CO in SD about this as MN you can access it. We were curious because years ago we were duck hunting in SD and wanted to hunt a slough that started on a WPA and transitioned to private property. He stated that even though you can access it from public property, once you cross the property line even if it's under water that you are now on private property and it that is trespassing. So even if you stay on the ice, it's considered private property.
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That's interesting. I wonder if others have had other answers given. Also possible things have changed over the years, as they have been more explicit about defining "navigable waters" in SD.
 
waterdog09 said:
If the body of water/slough is on private property it can't be hunted unless you have permission. Asked a CO in SD about this as MN you can access it. We were curious because years ago we were duck hunting in SD and wanted to hunt a slough that started on a WPA and transitioned to private property. He stated that even though you can access it from public property, once you cross the property line even if it's under water that you are now on private property and it that is trespassing. So even if you stay on the ice, it's considered private property.
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In SD if you access water/ice from a legal means, you can recreated on that water/ice. You cannot use the land under the water/ice without permission (i.e. wade or walk). If the body of water is legally marked per GFP guidelines, then you cannot recreate on that water surface. Now, throughout the years, CO's gave varying opinions depending on the county you were in. But the GFP's official position has always been "the water is public." Hence why they stocked all those sloughs and lakes once they flooded in the first place. Non-meandered waters might be a hot topic in the legislature again this winter; our GFP secretary proclaimed a few years ago that they were making awesome progress keeping water open and here we sit at a record of nearly 10,000 acres closed, including portions of water attached to meandered lakes which goes against the spirit of the law. GFP secretary Robling was instrumental in negotiating access to non meandered water before he was appointed secretary, and it's been downhill ever since. But when you're Noem's golden boy, you're not going to piss off her landowner friends and donors...
 
SPUR60 said:
In SD if you access water/ice from a legal means, you can recreated on that water/ice. You cannot use the land under the water/ice without permission (i.e. wade or walk). If the body of water is legally marked per GFP guidelines, then you cannot recreate on that water surface. Now, throughout the years, CO's gave varying opinions depending on the county you were in. But the GFP's official position has always been "the water is public." Hence why they stocked all those sloughs and lakes once they flooded in the first place. Non-meandered waters might be a hot topic in the legislature again this winter; our GFP secretary proclaimed a few years ago that they were making awesome progress keeping water open and here we sit at a record of nearly 10,000 acres closed, including portions of water attached to meandered lakes which goes against the spirit of the law. GFP secretary Robling was instrumental in negotiating access to non meandered water before he was appointed secretary, and it's been downhill ever since. But when you're Noem's golden boy, you're not going to piss off her landowner friends and donors...
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Thanks for the reply. I figured there might be some SD residents who are in the know on all this water rights stuff.

I've read that the meandered lakes have a concept of using the high and low watermarks to determine where you can go as well. My understanding, which could be wrong, is you can go up to the high water mark, as long as it is within 50 feet of the current water level edge. Or said another way, you can go as far as 50 feet from the low water mark, on a dry year, all the way up to the high water mark, on less dry years, as long as the current water is within 50 feet of that high water mark. How you determine where the low water mark and high water marks are is a bit of a mystery to me. They might have surveys for some lakes, but I doubt they have them for every pond and marsh.

Given the above, would you say it is safe if you stay on the ice or within 50 feet of the edge of the ice, where you can see that the 50 feet is clearly where there used to be water? (shore bank is visible, lake bed is visible, etc, so you know where water once was)

The final section of this document discusses this a bit:

This is a nicely written piece too, but not put out by the state: https://lexenergy.net/public-right-to-water-bodies/

Regarding the legal marking, with buoys, etc., it is my understanding that is only for the non-meandered list of waters. Is that not the case?
 
Limitless said:
Thanks for the reply. I figured there might be some SD residents who are in the know on all this water rights stuff.

I've read that the meandered lakes have a concept of using the high and low watermarks to determine where you can go as well. My understanding, which could be wrong, is you can go up to the high water mark, as long as it is within 50 feet of the current water level edge. Or said another way, you can go as far as 50 feet from the low water mark, on a dry year, all the way up to the high water mark, on less dry years, as long as the current water is within 50 feet of that high water mark. How you determine where the low water mark and high water marks are is a bit of a mystery to me. They might have surveys for some lakes, but I doubt they have them for every pond and marsh.

Given the above, would you say it is safe if you stay on the ice or within 50 feet of the edge of the ice, where you can see that the 50 feet is clearly where there used to be water? (shore bank is visible, lake bed is visible, etc, so you know where water once was)

The final section of this document discusses this a bit:

This is a nicely written piece too, but not put out by the state: https://lexenergy.net/public-right-to-water-bodies/

Regarding the legal marking, with buoys, etc., it is my understanding that is only for the non-meandered list of waters. Is that not the case?
Click to expand...

First and foremost - to definitely answer your question about hunting cattails:
per SD law:
41-23-15. Walking, wading, standing, or operating motor vehicle on bed of nonmeandered lake, or trapping or hunting on frozen surface without permission prohibited.

Second, one needs to understand that SD has three types of publicly accessible water.
1 is "navigable waters." South Dakota has three federally defined navigable waterways - The Missouri River, the James River, and the lowest 6 miles of the Big Sioux River. Federal navigable waters have public riparian rights including recreation i.e. usage of land below the ordinary high water mark to access/portage, etc. South Dakota also has a number of "navigable" streams and rivers as defined by state law. No lakes or sloughs to my knowledge are listed at the state level as navigable. State navigable streams and rivers follow similar laws as federal when it comes to public riparian rights including usage of land below the ordinary high water mark or above the low water mark.
2 is Meandered Water - generally this is lakes that were surveyed for statehood that were over 40 acres in size at the time of survey. There are around 300 meandered lakes in SD. Generally speaking, the public/state holds ownership of the lake bed below the waterline. Land owner riparian rights go up and down with the water line to the high water mark. Above the high water mark, technically the land owner retains riparian rights even when that land is under water, but the state does not enforce tresspass in those situations.
3 is Non-meandered water - all other water bodies fall under this premise. The water is still part of the public trust, but the land below the water is held by land owners. Could be an individual, could be state or federal (GPA, WPA, etc.)

Being as no lakes or sloughs in SD are defined as navigable per state or federal statute, there is no provision for public use of private land above the waterline regardless of the elevation of the water in respect to the high water mark. Private land is private land in SD. On meandered water bodies the public has a right to use the lake bed so long as that land is submerged. I.E. I cannot walk the beach for a mile to get to a better fishing spot if that land is privately owned, but I could wade in the water, for a mile parallel to that beach and be 100% legal.

On non-meandered waters, the public has no right to recreate on the lake bed. The public has the privilege to recreate in or on the water i.e. boating, ice fishing, waterfowl hunting from a boat, etc. Anchors, lures, etc are considered incidental contact and allowed. If your feet touch the land under the water and that land is private land, you are tresspassing. Under current law, land owners with water over their private land can legally close that water to recreation.

Some SD water history - when the glacial lakes/prairie pothole region started to fill up from wet cycles in the 80's and 90's, many small sloughs exploded in size, eventually flooding hundreds of thousands of acres throughout SD. I'm sure many of you have seen scenes caused by this flooding first hand, via hunting or fishing videos, pictures, etc. of flooded farmsteads, people ice fishing next to flooded farm equipment, and so on. Many of these bodies of water flooded roads or state/federal property, thus allowing a means of public access to the water bodies for fishermen. The state GFP started stocking these water bodies with game fish; the lakes were super fertile, fish growth rates were phenomenal, & a fishing tourism industry exploded. Word would get out of a hot bite and there'd be 50 trucks lined up to back boats in off a road grade or parked along the shoulder and every field approach for 1/2 mile. Many locals got tired of the traffic, litter, noise, etc. Around that time some families with flooded private land sued the state GFP stating the public should not have access to this type of water. They won and the bodies of water their land was beneath was placed under an injuction - the GFP nor the public could facilitate recreation or recreate on those water bodies. Fast forward through the years and many more land owners were fed up with littering, noise, blockage of roads, tresspass, etc. and additional court cases were heard. In 2018 the state supreme court ruled that the public does not have the right to recreate above flooded private land and the GFP closed boat ramps on 18 non meandered water bodies. A special legislative session was called, and a compromise bill was passed that gets us to where we are today - land owners have the legal means to close water to recreation (fishing) over their flooded private land.

Long story short- you may only hunt frozen surface water cattails over meandered water below the ohwm, navigable water below the ohwm, or over non meandered water with permission or above state/federal land.

Here's a few links I've bookmarked from years past when this was an ongoing political issue.

https://sdlegislature.gov/Statutes/41-23
https://gfp.sd.gov/nonmeandered-waters/
https://www.sdpb.org/politics/2018-01-18/non-meandered-waters-resurface-in-south-dakota-capitol
https://congressionalsportsmen.org/...ssion-passes-nonmeandered-waters-access-bill/
 
SPUR60 said:
First and foremost - to definitely answer your question about hunting cattails:
per SD law:
41-23-15. Walking, wading, standing, or operating motor vehicle on bed of nonmeandered lake, or trapping or hunting on frozen surface without permission prohibited.

Second, one needs to understand that SD has three types of publicly accessible water.
1 is "navigable waters." South Dakota has three federally defined navigable waterways - The Missouri River, the James River, and the lowest 6 miles of the Big Sioux River. Federal navigable waters have public riparian rights including recreation i.e. usage of land below the ordinary high water mark to access/portage, etc. South Dakota also has a number of "navigable" streams and rivers as defined by state law. No lakes or sloughs to my knowledge are listed at the state level as navigable. State navigable streams and rivers follow similar laws as federal when it comes to public riparian rights including usage of land below the ordinary high water mark or above the low water mark.
2 is Meandered Water - generally this is lakes that were surveyed for statehood that were over 40 acres in size at the time of survey. There are around 300 meandered lakes in SD. Generally speaking, the public/state holds ownership of the lake bed below the waterline. Land owner riparian rights go up and down with the water line to the high water mark. Above the high water mark, technically the land owner retains riparian rights even when that land is under water, but the state does not enforce tresspass in those situations.
3 is Non-meandered water - all other water bodies fall under this premise. The water is still part of the public trust, but the land below the water is held by land owners. Could be an individual, could be state or federal (GPA, WPA, etc.)

Being as no lakes or sloughs in SD are defined as navigable per state or federal statute, there is no provision for public use of private land above the waterline regardless of the elevation of the water in respect to the high water mark. Private land is private land in SD. On meandered water bodies the public has a right to use the lake bed so long as that land is submerged. I.E. I cannot walk the beach for a mile to get to a better fishing spot if that land is privately owned, but I could wade in the water, for a mile parallel to that beach and be 100% legal.

On non-meandered waters, the public has no right to recreate on the lake bed. The public has the privilege to recreate in or on the water i.e. boating, ice fishing, waterfowl hunting from a boat, etc. Anchors, lures, etc are considered incidental contact and allowed. If your feet touch the land under the water and that land is private land, you are tresspassing. Under current law, land owners with water over their private land can legally close that water to recreation.

Some SD water history - when the glacial lakes/prairie pothole region started to fill up from wet cycles in the 80's and 90's, many small sloughs exploded in size, eventually flooding hundreds of thousands of acres throughout SD. I'm sure many of you have seen scenes caused by this flooding first hand, via hunting or fishing videos, pictures, etc. of flooded farmsteads, people ice fishing next to flooded farm equipment, and so on. Many of these bodies of water flooded roads or state/federal property, thus allowing a means of public access to the water bodies for fishermen. The state GFP started stocking these water bodies with game fish; the lakes were super fertile, fish growth rates were phenomenal, & a fishing tourism industry exploded. Word would get out of a hot bite and there'd be 50 trucks lined up to back boats in off a road grade or parked along the shoulder and every field approach for 1/2 mile. Many locals got tired of the traffic, litter, noise, etc. Around that time some families with flooded private land sued the state GFP stating the public should not have access to this type of water. They won and the bodies of water their land was beneath was placed under an injuction - the GFP nor the public could facilitate recreation or recreate on those water bodies. Fast forward through the years and many more land owners were fed up with littering, noise, blockage of roads, tresspass, etc. and additional court cases were heard. In 2018 the state supreme court ruled that the public does not have the right to recreate above flooded private land and the GFP closed boat ramps on 18 non meandered water bodies. A special legislative session was called, and a compromise bill was passed that gets us to where we are today - land owners have the legal means to close water to recreation (fishing) over their flooded private land.

Long story short- you may only hunt frozen surface water cattails over meandered water below the ohwm, navigable water below the ohwm, or over non meandered water with permission or above state/federal land.

Here's a few links I've bookmarked from years past when this was an ongoing political issue.

https://sdlegislature.gov/Statutes/41-23
https://gfp.sd.gov/nonmeandered-waters/
https://www.sdpb.org/politics/2018-01-18/non-meandered-waters-resurface-in-south-dakota-capitol
https://congressionalsportsmen.org/...ssion-passes-nonmeandered-waters-access-bill/
Click to expand...
Wow, that's a lot of info. It will take me a while to read and digest. Thanks for sending all that!
 
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