# Devils Lake shoreline hunting



## Hunter_58346 (May 22, 2003)

Seems as though that the USF&WS has been telling hunters that it is OK to hunt the shorelines around Devils Lake. Although that may be partially true to some extent, it is getting some butts chewed as I type this. You can hunt the shoreline as long as you don't anchor and your feet are not touching bottom when it is deeded land. The reasoning that "that is the way we do it at home" isn't going to stand. Best call the ND Game and fish office for clarification because the Feds are causing some confusion.


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## Cando (Oct 14, 2006)

So Fisherman have to worry about where they anchor? In Minnesota, if you can float a canoe in the water, it is public. It doesn't matter if your walking in it, boating, or hunting.


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## nodakoutdoors.com (Feb 27, 2002)

If the USFWS is involved, I'm assuming only if you're hunting.


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## Hunter_58346 (May 22, 2003)

different states , different rules,,,,,,you cannot anchor or put your foot in the mud


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## Cando (Oct 14, 2006)

Do they let paws in the mud or no dogs allowed out of the boat?


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## dakotashooter2 (Oct 31, 2003)

> You can hunt the shoreline as long as you don't anchor


SORRY......... You can't hunt/shoot from an unanchored boat in ND.

I wonder if the fact that it is part of a navigable water would make any difference? I understood that many small rivers are considered part of the adjoning land but that if they are navigable they are open to public use.


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## Dick Monson (Aug 12, 2002)

Hunter_58346, I'm curious about this and how it applies to meandering waters? I though a person could wade anywhere (ND) or anchor in a body of water if it could be navigated? The chamber in DL ought to know because their web site tells the hunters to hunt the shorelines and bays.
Flash to Nick, what's the scoop?


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## Bob Kellam (Apr 8, 2004)

Dick

I was reading the new ND soverign lands document draft and came across this info included in the document

Not sure if it is the answer or not. 

*THE ORDINARY HIGH WATER MARK*
_The delineation of the ordinary high water mark is a critical component of sovereign land
management, because it identifies the specific areas in and around the state's navigable
waters that are under the jurisdiction of the State Engineer. Another way of looking at it
is that the ordinary high water mark delineates the boundary between uplands owned by
riparian landowners and state-owned sovereign land.
As defined in North Dakota's Administrative Code, ordinary high water mark means:
[T]hat line below which the action of the water is frequent enough either
to prevent the growth of vegetation or to restrict its growth to
predominantly wetland species. Islands in navigable streams and waters
are considered to be below the ordinary high watermark in their entirety.27
The North Dakota Supreme Court has further defined high water mark as:
27 N.D.A.C. § 89-10-01-03.
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[W]hat its language imports - a water mark. It is co-ordinate with the limit
of the bed of water; and that only is to be considered the bed that the water
occupies sufficiently long and continuously to wrest it from vegetation,
and destroy its value for agricultural purposes. . . .
In some places, however, where the banks are low and flat, the water does
not impress on the soil any well-defined line of demarcation between the
bed and the banks. In such cases the effect of the water upon vegetation
must be the principal test in determining the location of high-water mark
as a line between the riparian owner and the public. It is the point up to
which the presence of action of the water is so continuous as to destroy the
value of the land for agricultural purposes by preventing the growth of
vegetation, constituting what may be termed an ordinary agricultural
crop.28
General Guidelines for Ordinary High Water Mark Delineations
The above definitions do provide some guidance for ordinary high water mark
delineations in North Dakota, wherein the courts determined that hydrology and impacts
upon the soil are the primary indicators, followed by vegetative impacts. But, beyond
those definitions, the State of North Dakota does not have a specific set of standards or
guidelines established for ordinary high water mark delineations.
The Office of the State Engineer recognizes the need for such standards, and as a result,
members of the sovereign land workgroup have initiated the process of developing
specific guidelines. However, that level of effort exceeds the original scope of this
sovereign land management planning process, but it will proceed independently and
become an appendix to this plan in the future.
28 State ex rel. Sprynczynatyk v. Mills, 1999 ND 75, ¶ 13, 592 N.W.2d 591 (citing In re Ownership of the
Bed of Devils Lake, 423 N.W.2d at 144-5 (quoting Rutten v. State, 93 N.W.2d 796, 799 N.D. 1958)).
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To develop a specific set of standards or guidelines, other states were consulted
(particularly Minnesota, Wisconsin, and Washington). All have or are in the process of
developing technical guidelines for ordinary high water mark delineations. Though all of
the above states have descriptions of what to look for in ordinary high water mark
delineations, they do not all agree on the importance of specific indicators.
In Minnesota, the primary physical features looked for in order of significance are trees,
water-formed evidence, and vegetative evidence.29 In Washington, the hierarchical order
of significance is hydrology, soils, and then vegetation.30 In Wisconsin, the state
provides an inventory of what to look for, though no order of significance is provided for
each of the indicators.31
A commonality for all ordinary high water mark delineation techniques, no matter where
they are being conducted, is that they must be multidisciplinary in nature. Ordinary high
water mark delineations should consider hydrology, soils, vegetation, and other physical
indicators (i.e. ice scars, erosion, mud/sediment/water stains, wrack, sediment deposition,
etc) . Thus, it is probably less important to focus on the order of importance of all the
potential water mark indicators than it is to recognize that several indicators are
important.
Historically and in the immediate future, until more specific guidelines for ordinary high
water mark delineations are developed, the Office of the State Engineer has and will
continue to use prudent judgment in making delineations in compliance with the court's
determinations and in consideration of all the aforementioned indicators.
29 John Scherek and Glen Yakel, Guidelines for Ordinary High Water Level (OHWL) Determinations,
Minnesota Department of Natural Resources Technical Paper 11, 1993.
30 Erik Stockdale and Alan Wald, Methods for Delineating an Ordinary High Water Line or Ordinary High
Water Mark on Streams and Rivers in Washington State (Draft Version 1.1), Washington Department of
Fish and Wildlife, Washington Department of Ecology, 2005.
31 Wisconsin Department of Natural Resources, Waterway and Wetland Handbook (Chapter 40, Ordinary
High Water Mark), 2004
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Correlative Rights Between the State and Riparian Landowners
The Office of the State Engineer has an interest in managing sovereign lands, which
include those areas from high water mark to high water mark. However, there is also the
issue of correlative rights between the state and riparian landowners between the ordinary
high water mark and the ordinary low water mark, where that area is often referred to as
the shore-zone. The ordinary low water mark is defined as a mark that is "the low level
reached by waters of a lake under ordinary conditions, unaffected by periods of extreme
and continuous drought."32 It has also been defined as "the line or level at which the
waters of a lake usually stand when free from disturbing causes."33
This issue of correlative rights was addressed in N.D.A.G. 2004-L-33, where it was
explained that between the ordinary high water mark and the low water mark there is a
zone along the shoreline wherein the state and the landowner have correlative rights.34 In
State ex rel. Sprynczynatyk v. Mills, the North Dakota Supreme Court declined to specify
the rights of riparian landowners and the state:
The shore zone presents a complex bundle of correlative, and sometimes
conflicting, rights and claims which are better suited for determination as
they arise. Any precise delineation of parties' rights in this situation would
be advisory.35
The Court did, however, cite a Minnesota Supreme Court decision wherein that court
explained:
While the title of a riparian owner in navigable or public waters extends to
ordinary low-water mark, his title is not absolute except to ordinary highwater
mark. As to the intervening space his title is limited or qualified by
the right of the public to use the same for the purpose of navigation or
32 South Dakota Wildlife Fed'n v. Water Mgmt. Bd., 382 N.W.2d 26, 27 (S.D. 1986).
33 Slauson v. Goodrich Transp. Co., 69 N.W. 990, 992 (Wis. 1897).
34 Appendix - N.D.A.G. 2004-L-33.
35 State ex rel. Sprynczynatyk v. Mills, 523 N.W.2d 537, 544 (1994).
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other public purpose. The state may use it for any such public purpose,
and to that end may reclaim it during periods of low water, and protect it
from any use, even by the riparian owner, that would interfere with its
present or prospective public use, without compensation. Restricted only
by that paramount public right the riparian owner enjoys proprietary
privileges, among which is the right to use the land for private purposes.36
Thus, neither the state nor the riparian landowner has absolute title to the shore-zone,
although the riparian landowner can use this land for private purposes as long as the use
does not interfere with or adversely affect the public's use or interest in the zone._


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## Dick Monson (Aug 12, 2002)

Bob, I was thinking some years back a deer hunter along a river was on posted land. Showed a copy of a simialer law and got off. I know there was an issue during the floods where WPAs expanded their shorelines and were huntable but I think the guys were on the ice. I'm thinking there is a law on this somewhere.


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## dakotashooter2 (Oct 31, 2003)

We also run into another issue with this. Often the property owner involved does not feel they should have to pay taxes on the property that is "under water". My question would be ...can they deny or dispute ownership for that purpose yet claim ownership when it comes to hunting privileges? Can they have their cake and eat it too???????


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## always_outdoors (Dec 17, 2002)

I was under the impression that as long as you are in the water and never touch foot on dry ground, that you are OK to hunt Devils Lake. I asked about hunting the south end along the reservation and that was what I was told.

I have a big hunt planned with a buddy from Bismarck and we had planned to hunt DL quite a bit with his boat.

Anyone know what the real answer is?


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## always_outdoors (Dec 17, 2002)

Have we found a ruling on this yet??


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## barebackjack (Sep 5, 2006)

If your in a boat, let them eat cake, and hunt the hell out of it.

If someone tries to give you hell, ignore them.

This rule (if it exists) contradicts the law which is written in the proclamation about hunting from a free floating boat, which is illegal. You must be anchored or tied off.

I can see if you are wading out (which I wouldnt recommend on DL anyway) there may be some issues regarding your access to the water, but I would say if you are in a boat go for it.


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## labz4me (Jan 9, 2006)

Its all defined in the ND waterways Law. The water is owned by the state of ND, even on private land. The land under the water is still owned by the private landowner. You can hunt the water with a boat but as soon as you get out of the boat you are trespassing. This includes being in the water in waders. It is not like the law in MN which gets a lot of guys in trouble. Boat anchors,decoy weights,push poles,etc. are deamed as incidental contact with the land under the water and is alright. The kicker is when a person gets out of the boat or beaches the boat on shore. There are a lot of intricacies of this law, and as I've been told you better know all of them or you are likely to get in a pickle. Kind of scared me off. This is the way I had it explained to me. Anyone hear anything different?


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## Dick Monson (Aug 12, 2002)

labz, would you post up the specific law please? Thanks.


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## labz4me (Jan 9, 2006)

Sorry Dick, I don't know how to get the specific law. All I know is it is the Waterways Law of 1890 something. I would think the G&F would know how to get a copy or you could do some searching the web. I'm not that great at that stuff. This is just what I've been told when I asked about it. Thanks


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