Is it legal to post a ditch along public highway?

Lycanthrope

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Noticed someone decided to post a ditch near Apple Valley development E of Bismarck. This essentially restricts access to Apple Creek at this location. I called the county and they wouldnt directly answer the question. They said there is an easement there to allow travel, but wouldnt comment on the legality of posting this area. Thinking if people start posting ditches, probably wouldnt be a great thing in general.

Picture out truck window...
20190618_193355.jpg
Approximate area of posted sign in ditch...
ditch.jpg
Property lines from GIS site...
owner.jpg
 


Allen

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Yeah, pretty sure that's a legal posting. I'd be surprised if 119th wasn't constructed using an easement, hence the ditches are private property and the county/state only maintains an easement for travel and maintenance purposes.
 

espringers

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but, he should still be able to fish or at least access the river from within the right of way correct? or no?
 
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Lycanthrope

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but, he should still be able to fish or at least access the river from within the right of way correct? or no?

hats kinda what I was thinking. I used to take my dogs down there to swim occasionally. Dont live close anymore but was disappointed when I noticed it was posted. Dont really see the reasoning behind it, besides maybe the 'its mine and I can' attitude.
T
 

dean nelson

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Most true highways no it wouldn't but that road is not a true highway so very well could be.

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hats kinda what I was thinking. I used to take my dogs down there to swim occasionally. Dont live close anymore but was disappointed when I noticed it was posted. Dont really see the reasoning behind it, besides maybe the 'its mine and I can' attitude.
T
Might be related to the spring of 09 when it was flooding down there and there were hundreds of people all over that ground I noticed the posters going up on the west side of the road right about that time. They may well have been there for years before but that's when I first saw them.
 


Allen

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but, he should still be able to fish or at least access the river from within the right of way correct? or no?


While we see people fishing from the road right-of-way all the time where the adjacent land is posted all across the state, I am not aware of any legalese that specifically allows it. Where would the cutoff point be, must stay on road surface, go no farther than the shoulder, or? Does it have to be on a federal river, water of the state, or is it allowed on any surface water body adjacent to a road right-of-way? I am pretty sure you wouldn't want to shoot a pheasant in that ditch.

Granted, I do know people that have fished the right of way near that bridge, and none have mentioned getting into any trouble with either the landowner or the wardens.

I know of a place in Minnetucky (yeah, yeah, different state) where a landowner (one of 3 that own 99% of the shoreline to a nice little lake) tried to prosecute a couple fellas for trespassing onto their private lake. Wardens told them they couldn't/wouldn't do that because the two guys had drug their canoe in from the county roadway, which since water touched the right-of-way that made it a public body of water. The water surface does actually abut the road but it's way more of a cattail/weeds marsh at that point and they had to drag the canoe about fifty yards out to where it was open water. So the landowner tried to get them prosecuted for trespassing/dragging the canoe in through a protected wetland. That also didn't work.

I'd be interested as well in hearing about any ND legal precedents or actual code on such activities.
 

KDM

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Yep, totaly fine to post the sign there. However, easements for travel include "traveling" to the river for whatever reason. Many kayak fishermen access water using the ditch as well as land based fishermen like myself. Which is why you see guys fishing under bridges instead of up or downstream from them. As long as you stay within the 75 ft or whatever distance the easement is from the center of the road, you are fine. The ground up to the high water mark along rivers is public and controlled by the COE most of the time and open to the public which is why guys can hunt river bottoms using a boat when the surrounding ground is posted. Last time I checked with the COE for a "high water mark", they said it was the stated "flood stage" level for whatever location you are interested in. That was a few years ago, so things might have changed.
 

Allen

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KDM, while I like your explanation of how anglers are able to access the water via the right-of-way, the COE controls only lands they purchased for their projects in the state. E.g. Darling, Ashtabula, Pipestem, Garrison, and Oahe. I think what your are referring to is that they have regulatory control over things like dredge and fill, which they do. However, if it's a navigable stream, the land below the ordinary high water mark is owned by the State of North Dakota as Sovereign Lands. [FONT=Verdana,Arial,Tahoma,Calibri,Geneva,sans-serif]http://www.swc.nd.gov/reg_approp/sovereignlands/[/FONT]

Note, the Sheyenne is considered a navigable stream while Apple Creek is not. This makes the rules of boating and access to them slightly different according to the brochure on the above website.

Back to the original question. I finally said the heck with it and emailed NDGF with a couple examples of where the original question here applies.
 

wby257

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If the person that posted the land owns the land on the other side of the water, you cannot go on it. Fishing is the same as Hunting when it comes to trespassing.
 

espringers

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i did a lot of research for a client a few years back who had accessed a large named slough from a right of way in a duck boat. that's a whole other animal. but, here is an article i had stored.

http://www.swc.nd.gov/pdfs/navigability_report.pdf

apple creek hasn't been adjudicated or determined to be navigable yet. but, that doesn't mean it isn't. not familiar with it really. by the looks for picture, it looks somewhat similar to the mouse or sheyenne. here is some important language from the article...

“Precise definitions of ‘navigable waters of the United States’ or ‘navigability’ are ultimately dependent on judicial interpretation and cannot be made conclusively by administrative agencies.” 33 C.F.R. § 329.3 (1986). Conclusive determinations of navigability can be made only by courts.
 


Allen

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What I asked: I was wondering if you could answer a legal question for me about fishing a non-navigable stream in ND.



Can a person legally fish from the roadway, or within the county right-of-way a body of water that is considered a non-navigable stream in North Dakota. A couple that come to mind in popular fishing areas as examples are 1. the causeway between AlkalineLake and Fresh Lake out in Kidder county (the land on the SE side of the causeway is posted, yet I see people fishing from the roadway often); 2. Apple Creek where it crosses 119th out east of Bismarck. The land is posted, but I know people fish below thebridge there.

Answer from NDGF:
Fishing waterways in the manner you described would most likely not be legal. The property would be considered posted, so any access or use would be considered trespassing or hunting/fishing on posted land. However, it would be up to the landowner to filea complaint, and the warden or other Law Enforcement agency along with the local States Attorney to follow up with a citation and/or charges.







The response also included the caveat of if you want to know the specifics on access to the given areas, please contact your local game warden.
 

Migrator Man

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i did a lot of research for a client a few years back who had accessed a large named slough from a right of way in a duck boat. that's a whole other animal. but, here is an article i had stored.

http://www.swc.nd.gov/pdfs/navigability_report.pdf

apple creek hasn't been adjudicated or determined to be navigable yet. but, that doesn't mean it isn't. not familiar with it really. by the looks for picture, it looks somewhat similar to the mouse or sheyenne. here is some important language from the article...

“Precise definitions of ‘navigable waters of the United States’ or ‘navigability’ are ultimately dependent on judicial interpretation and cannot be made conclusively by administrative agencies.” 33 C.F.R. § 329.3 (1986). Conclusive determinations of navigability can be made only by courts.
If you guys remember in this latest legislative session there was a law passed that directed the state water engineer to prove that those navigable waters were truly still navigable. The law put the burden on the engineer so if there is no action then the waters revert back to non navigable. The intent of the law is to remove the navigable designation so that access can be restricted to the waterways. Just another way the legislature is trying to restrict access to the great outdoors.
 

Bowhunter_24

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Where do you want him to post it? Seems like a pretty logical place to me
 

KDM

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KDM, while I like your explanation of how anglers are able to access the water via the right-of-way, the COE controls only lands they purchased for their projects in the state. E.g. Darling, Ashtabula, Pipestem, Garrison, and Oahe. I think what your are referring to is that they have regulatory control over things like dredge and fill, which they do. However, if it's a navigable stream, the land below the ordinary high water mark is owned by the State of North Dakota as Sovereign Lands. http://www.swc.nd.gov/reg_approp/sovereignlands/

Note, the Sheyenne is considered a navigable stream while Apple Creek is not. This makes the rules of boating and access to them slightly different according to the brochure on the above website.

Back to the original question. I finally said the heck with it and emailed NDGF with a couple examples of where the original question here applies.

Knew it was regulated by one of them govt types. Thanks!!
 

ndlongshot

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What I asked: I was wondering if you could answer a legal question for me about fishing a non-navigable stream in ND.



Can a person legally fish from the roadway, or within the county right-of-way a body of water that is considered a non-navigable stream in North Dakota. A couple that come to mind in popular fishing areas as examples are 1. the causeway between AlkalineLake and Fresh Lake out in Kidder county (the land on the SE side of the causeway is posted, yet I see people fishing from the roadway often); 2. Apple Creek where it crosses 119th out east of Bismarck. The land is posted, but I know people fish below thebridge there.

Answer from NDGF:
Fishing waterways in the manner you described would most likely not be legal. The property would be considered posted, so any access or use would be considered trespassing or hunting/fishing on posted land. However, it would be up to the landowner to filea complaint, and the warden or other Law Enforcement agency along with the local States Attorney to follow up with a citation and/or charges.







The response also included the caveat of if you want to know the specifics on access to the given areas, please contact your local game warden.
Its not that I dont like the answer. But I dont like the answer.

They said, "not be legal". They didnt mention at all the public roadways. Private landowners do not control the road or ditches. They cannot stop you from driving down them because its private. Also, they can't stop you from walking down it. And hey, maybe I want to throw a line in the water while I walk down it? Obviously under the assumption you are always within the Road Right of Way.

NOT TO MENTION, this area of 119th and apple creek has a section line running right through the darn thing.

I dont know. I guess I disagree with their assessment. Someone would have to take the citation and then challenge it.
 


Lycanthrope

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Its not that I dont like the answer. But I dont like the answer.

They said, "not be legal". They didnt mention at all the public roadways. Private landowners do not control the road or ditches. They cannot stop you from driving down them because its private. Also, they can't stop you from walking down it. And hey, maybe I want to throw a line in the water while I walk down it? Obviously under the assumption you are always within the Road Right of Way.

NOT TO MENTION, this area of 119th and apple creek has a section line running right through the darn thing.

I dont know. I guess I disagree with their assessment. Someone would have to take the citation and then challenge it.

dont like it either, dont see the harm in allowing public access to the creek...
I
 

espringers

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i wouldn't be so certain apple creek would be deemed non-navigable in a court a law. i am not familiar with it at all. does it feed the missouri?. regardless, the problem is the ways to get it in front of a court aren't exactly palatable.
 

ndlongshot

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I agree. Its a direct tributary of the missouri river...if thats not navigable I dont know what is (but then again, seems the govt can't even agree on it)
 

Nmariner

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i wouldn't be so certain apple creek would be deemed non-navigable in a court a law. i am not familiar with it at all. does it feed the missouri?. regardless, the problem is the ways to get it in front of a court aren't exactly palatable.

Its navigable to a certain extent. Not sure what its like between the river and Apple Creek Golf Course, but there is a dam at the golf course as will as the rapids/dam at the 119th st bridge. There is another small concrete low head type dam somewhere between these two.

Still it should be a water of the state and you should be able to fish it as long you can access it from a public right of way.

I grew up half a mile south of there and caught thousands of bullheads below the rapids on 119th. West side has been posted for at least 10 or 15 years.
 

Allen

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i wouldn't be so certain apple creek would be deemed non-navigable in a court a law. i am not familiar with it at all. does it feed the missouri?. regardless, the problem is the ways to get it in front of a court aren't exactly palatable.

I have never seen that section of the CFR before, and think it's interesting as hell as to how it's worded. Basically, as you put it, go treat it as a navigable stream and when you get the ticket...try and convince the court to convert it over to a navigable stream. I think you're being too kind in discussing how to get a court to take up the issue. Until then, all we have are the current designation of what are and are not navigable streams according to the state's definition.

The really interesting part hidden here is when it comes to western ND, a conversion of a stream from navigable to a non-navigable designation would gift away many, many thousands of acres of current State owned land to the adjoining landowners. When it comes to the Bakken area of the state, that is many millions of dollars a year in oil revenue. Or vice versa, a conversion of the Little Missouri to a navigable status would put many more thousands of acres into the public domain and the oil revenue that comes with it.

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p.s. just because a person can run a kayak or a canoe down a stream, that's not the deciding factor with how something gets defined as navigable. The Little Missouri has been considered a non-navigable stream for a really long time and it's a hell of a lot bigger than the Knife, Cannonball, Heart, James, Souris and Sheyenne, all of which are currently considered navigable.

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http://www.swc.nd.gov/pdfs/navigating_sovereign_lands_waters.pdf
 


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