- Associated Press - Monday, August 18, 2014

MANDAN, N.D. (AP) - Residents of a rural Mandan housing development along the Missouri River say they are being squeezed out of using a recreation area that has been popular for the past 30 years.

On July 1, the North Dakota Water Commission implemented stiffer use restrictions on what are designated as “sovereign lands,” those lands from the edges of the water of riparian areas to the high water mark, the elevation of surrounding land that is frequently flooding during the spring, in most cases, the Bismarck Tribune (https://bit.ly/1oIKzd7 ) reported.

The rule isn’t as much of a change as it is a clarification of wording in an existing law that bans vehicular traffic along the water, the water commission said.

After the 2011 flood, tons of new sand was deposited along the shoreline, and that has led to more use in those areas and more problems, the commission says.

A public notice was posted in February for a March 27 meeting on the then-proposed administrative rules changes, but no one showed up for the meeting.

Curt and Lisa Engebretson purchased a lot and moved to the area on Square Butte Road North, roughly eight miles north of Mandan, about a year and a half ago.

Until around July 1, they said they had never heard the term sovereign land, much less knew what it entailed.

They didn’t see the legal notice when it was published and when they read it recently it did little to explain the intent of the meeting.

“We kind of feel like we’ve been blindsided,” Curt Engebretson said.

There are about 17 homes in the development, and most of its residents are at least 60 years old.

The Engebretsons said one of the primary reasons they chose to live in the area, which was flooded in 2011, was access to the river.

Since the mid-1980s, residents have been accessing the area by riding all-terrain vehicles down a section line trail, through a stretch of private land they have permission to cross and down to a sandy beach near the river.

Dana and Madonna Guenthner have lived in the Schlosser Addition for 16 years.

Dana Guenthner said the area in question is a half mile from the development and in the past has been a place neighborhood residents have gathered to picnic and swim.

With coolers, lawn chairs and other gear, Guenthner said the area is only accessible by off-road vehicle.

But with the water commission enforcing the law, it’s now off limits, except to foot traffic.

He said one of the issues is there are no official boundaries defining where the high water elevation is, which would mark where the sovereign land begins.

Bruce Engelhardt, director of water development for the water commission, said the “ordinary high water mark” changes, and is dictated by vegetative growth as the river level rises and falls.

Engelhardt said a survey is being done now to determine the ordinary high water mark, although no permanent markers will be buried in the ground.

“Which high-water mark are they going to use?” Guenthner questioned. He said he’s researched the issue and the definition of areas that flood “frequently” seems to be an arbitrary one.

Jerry Heiser, sovereign lands manager for the state Water Commission, said the rule change deals with waterways in the state once designated as commerce routes, including the Missouri River.

The change does not affect the area south of Bismarck commonly known as the “Desert,” Heiser said, nor does it apply to activities associated with agriculture.

The “Desert” has been designated a recreation area open to ATVs by the U.S. Army Corps of Engineers.

The main water bodies affected by the rule change are the Missouri River, Sheyenne River, James River, Souris River, Red River, Lake Metigoshe, Devils Lake, Yellowstone River and Knife River, although the list is not all-inclusive.

In a June 18 Bismarck Tribune article, Heiser said the old code resulted in an advantage for some landowners living along the water when it came to recreational access to the areas.

“The rule change was necessary to ensure that any legitimate need to operate motorized vehicles on sovereign lands is preserved while at the same time maintaining the function and integrity of these public lands,” he said.

The law does not prohibit vehicular traffic for agricultural purposes.

Engelhardt said the use of ATVs and other motorized vehicles on state sovereign land has always been illegal.

Engelhardt said more people now living in the area has translated into more public use in areas and that has prompted more complaints.

He said the two most common complaints from those recreating along the river are ATV traffic and litter.

He said there are similar concerns up and down the Missouri. “We have some of the same issues in the Williston area,” Engelhardt said.

Residents living along Square Butte Road North and Willow Road North have sent letters to the governor’s office, the water commission and state legislators and local commissioners asking for the issue to be reconsidered.

Guenthner said they are requesting an exemption from the rule that would allow them access the area.

Rep. Todd Porter, R-Mandan, in an email to State Engineer Todd Sando, said “the easy solution is to allow the group limited access … ” which would be to a designated parking area.

Porter said that is within the water commission’s authority.

“This group does not want open range access to the sovereign land, they are asking for right of access to a parking spot to allow full use of the area,” Porter wrote.

Enforcement of the law falls on the North Dakota Game and Fish Department.

Chief of enforcement Robert Timian said the law is same as what’s been on the books for years and applies equally to everyone.

Some residents, however, said they have been confronted by individuals while they were in the area.

Madonna Guenthner said she was approached by two people who scolded her for being near a piping plover nest.

She said they spoke with a “Boston accent,” and told her the days of riding ATVs in the area were numbered.

Further, she said she was told there were trail cameras set up in the area to monitor activity.

She said she felt intimidated by the encounter.

Madonna Guenthner said they weren’t wearing uniforms and didn’t identify themselves. Agencies involved in the issue said they didn’t work for them.

Dennis Markel moved to the area in April. He said the residents have not been given ample opportunity to air their views like others who have potential land use change issues surrounding their homes that could impact quality of life issues.

Engelhardt said Friday that Heiser has met with the residents on several occasions and the water commission will stand by its policy

He said there has been no pressure coming from federal agencies regarding endangered species. It’s a matter of enforcing a law that has been on the books for year.

“Really, nothing has changed,” Engelhardt said.

___

Information from: Bismarck Tribune, https://www.bismarcktribune.com

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