North Dakota Navigability Report
North Dakota law governing the public's right to use waters only capable of recreational use is currently in a state of uncertainty. The issue has not been litigated in North Dakota courts, and, apparently, the North Dakota Legislative Assembly has not viewed the issue as important enough to warrant drafting new legislation. Thus, it is difficult to predict what would happen if the issue arises in the future. Recent case law in North Dakota, concerning the question of whether a change in water level caused by artificial means (e.g., building of a dam) can be used as a basis for determining the ordinary high-water mark, is instructive insofar as it demonstrates the North Dakota's Supreme Court's reluctance to grant riparian landowners absolute ownership rights in the shore zone of a federally navigable river.1) This evidences North Dakota's support for the public trust doctrine and suggests that North Dakota is likely to allow use of waters that are capable of being used for recreational boating. Whether there is a right to portage is unclear at this time.
State Test of Navigability
North Dakota law governing the test for determining the navigability of streams is currently uncertain.2) The only cases applying a navigability test have been in the context of title challenges. In these cases, the courts have used a range of tests, including the recreational or “pleasure” boating test3) and the federal title test (navigable-at-law at the time of statehood), to determine title to the bottoms. The use of the recreational boating test for determining title to the bottoms is ideal for boaters because the state-owned bottoms would be subject to the public trust. Use of the recreational boating test, however, is not consistent with the federal title test set forth by the Supreme Court for purposes of determining title. Thus, North Dakota's use of the recreational boating test is not determinative. As a consequence, the question of which test the courts will apply for determining the extent of the waters subject to the public trust remains undefined.
There is, however, a good chance that North Dakota will adopt the recreational boating test. First, the courts were willing to adopt the recreational boating test long ago, in part because the importance of recreational uses was obvious even then.4) Second, a letter from the Attorney General expressed the opinion that “the public has the right to use rivers, streams, wetlands, and lakes that hold enough water to float a pleasure boat for most of the year.”5) Furthermore, this view represents the view of a majority of states. Finally, there is statutory and constitutional support for extending the public trust beyond bottom ownership.6)
It also is worth noting that in rules adopted and promulgated pursuant to North Dakota Century Code chapter 61-33, the state defines “navigable streams or waters as any waters which were in fact navigable at the time of statehood, including the Missouri River in its entirety, the Yellowstone River in its entirety, the Red River of the north from Wahpeton to the Canadian border, the Bois De Sioux River from Wahpeton to the South Dakota border, the James River, the Upper Des Lacs Lake and Devils Lake.”7)
Extent of Public Rights in Navigable and Non-Navigable Rivers
All navigable streams are deemed public highways. The state owns the land to the low water mark on navigable streams,8) but retains rights in the shore between the high and low water marks.9) Neither the courts nor the legislature have definitively ruled upon the extent of the public trust in navigable waters.10) The North Dakota Supreme Court has said in dicta that the incidents of public trust include boating, swimming, recreation, and fishing.11)
While federal law extends an upland riparian owner's rights only to the ordinary high water mark, North Dakota law provides that an upland owner “takes to the edge of the lake . . . at low watermark.”12)