Section 43-17-38 - Gate or opening required in fence constructed across certain streams--Federally-navigableportions--Public access.
43-17-38. Gate or opening required in fence constructed across certain streams--Federally-navigable portions--Public access. A gate or opening constructed pursuant to § 43-17-36 is required in any fence that crosses any stream or portion of any stream that is navigable pursuant to § 43-17-34 and that has been designated by the Water Management Board as requiring a gate or opening pursuant to § 43-17-39. A gate or opening constructed pursuant to § 43-17-36 is required in any fence that may be constructed across any of the following streams or portions of such streams:
(1) Big Sioux River from the Grant-Codington County boundary to a point five miles north of the Missouri River in Union County;
(2) Turtle creek, from Highway 26 to the James River, located in Spink County;
(3) Elm River, from Elm Lake to the James River, located in Brown County;
(4) Moccasin Creek, from 18th Avenue southwest to 8th Avenue northwest in the City of Aberdeen, located in Brown County;
(5) North fork of Whetstone River, from Highway 15 near Wilmot to the Minnesota state boundary, located in Roberts and Grant Counties;
(6) Flandreau Creek, from the Minnesota state boundary to the Big Sioux River, located in Moody County;
(7) Vermillion River, from Lake Vermillion to the Missouri River;
(8) East fork of the Vermillion River, from Interstate 90 to Lake Vermillion, located in McCook County;
(9) Splitrock Creek, from the Minnesota state boundary to the Big Sioux River, located in Minnehaha County;
(10) Firesteel Creek, that portion located in Davison County;
(11) Little White River, from the Bennett-Todd County boundary to the White River, located in Todd and Mellette Counties;
(12) White River, from the Nebraska state boundary to the Missouri River;
(13) Bad River, from the Stanley-Jones County boundary to the Missouri River, located in Stanley County;
(14) Cheyenne River, from the Wyoming state boundary to the Missouri River;
(15) Moreau River, from Highway 63 to the Missouri River;
(16) Grand River, from Shadehill Reservoir to the Missouri River;
(17) Little Missouri River, from the Montana state boundary to the North Dakota state boundary, located in Harding County;
(18) Belle Fourche River, from the Wyoming state boundary to the Belle Fourche irrigation project diversion dam and from Highway 79 to the Cheyenne River;
(19) Little Minnesota River, from Highway 10 to Lake Traverse, located in Roberts County; and
(20) Redwater River, from Highway 85 to the Belle Fourche River, located in Butte County.
Because the Missouri River, James River, Boise des Sioux River, and the lower five miles of the Big Sioux River have been designated as navigable pursuant to federal law, this chapter does not permit fencing, with or without gates, across the federally-navigable portions of these rivers.
The extent of the public's use shall be the determining factor in designating a stream or portion of a stream pursuant to this section or § 43-17-39. The public's right to the use of such designated streams as public highways pursuant to § 43-17-2 may be impaired if a gate or opening is not provided in each fence across the streams. Construction of a fence in violation of this section is a Class 2 misdemeanor.
The public's interest in or right to use other streams navigable pursuant to § 43-17-34 but not designated pursuant to this section or § 43-17-39 is not impaired or unduly restricted if fences crossing such other navigable streams are not provided with a gate or opening. This section and § 43-17-39 do not diminish the public's interest in or right to use streams that are navigable pursuant to § 43-17-34 but that are not designated pursuant to this section or § 43-17-39.
Source: SL 1992, ch 311, § 1.