Oregon rivers have always been public

The Oregon Land Board's assertion to public ownership of Oregon's navigable waterways is not a "taking" of private property or property rights. Although property rights advocates have been somewhat successful in portraying recent navigability studies as a "land grab," Oregon's navigable rivers are now and always have been owned by the people of the state.

The 1859 Oregon Admissions Act through which Oregon attained statehood specifically dealt with state jurisdiction over navigable rivers. Section 2 states, "That the said State of Oregon shall have concurrent jurisdiction on the Columbia and all other rivers and waters bordering on the said State of Oregon . . . and said rivers and waters, and all the navigable waters of said State, shall be common highways and forever free." A series of court decisions beginning with U.S. vs. Oregon in 1954 have upheld state ownership of navigable rivers and their beds and banks up to the ordinary high-water mark. The most recent opinion on the matter came from then Attorney General Hardy Myers in 2005: "Today, Oregon statutes acknowledge that the state continues to own all waterways that it received in 1859 by virtue of its sovereignty as a state. ORS 274.005(7) and (8); ORS 274.025. The legal tests for determining what waterways the state owns by virtue of its statehood is established by federal law. As a fundamental aspect of sovereignty, at statehood Oregon acquired (with few exceptions) title to all waterways or portions of waterways that were tidally-influenced or that were non-tidal but that satisfied the federal test of title-navigability."

The only real issue then, is navigability. Apparently the authors of the Admissions Act thought that navigability was self-evident, because they offered no further clarification. That task has now fallen on the Department of State Lands via a "navigability study" which is then presented to the Land Board for final determination. Most would indeed agree that this process is time-consuming and expensive, but Senator (Alan) Bates' statement that "all parties agree that the direction we're going isn't the right direction" is inaccurate. The process is moving in the right direction, just not quickly enough. Senator Bates not only wants to halt current and future navigability determinations, but also wants to roll back decades of progress.

It is important to make the distinction between "access" and "ownership." You do not need permission to access something you already own (Oregon's navigable rivers). Senator Bates' proposed "floating easement" is already covered by the Public Use Doctrine on rivers that have not officially been declared navigable. Myers' opinion concludes that, "The current law, however, does not restrict individual members of the public. A person may use a state-owned waterway that has not yet been determined to be state owned. In addition, a person may use waterways that are subject to the Public Use Doctrine." In essence, Senator Bates' proposed legislation does not give river users anything that we don't already have and will open the door to a massive privatization of Oregon's navigable waterways.

In regard to property deeds adjacent to a navigable river, a more common-sense approach is needed. Acknowledging that some of the parcels may have been surveyed using the "metes-and-bounds" system (which predates the current Township and Range system and uses natural features to define boundaries), landowners should only be required to amend their deeds at the time of sale. Similarly, it may be possible to "grandfather" in existing structures built in good-faith before a navigability determination.

The Tom McCall era in Oregon ushered in public ownership of beaches which almost no one questions, yet ironically public ownership of navigable rivers which predates that declaration by over a century has somehow become controversial. Public ownership of navigable waterways is our legacy as Oregonians, and it is our responsibility to see that it is passed on to the next generation.

Richard Phillips holds a degree in geography from Southern Oregon University. A former rafting guide, he is a recreational rafter and drift fisherman and a member of Rogue Flyfishers. He lives in Phoenix.

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