Northwest Steelheaders: Why not? [Archive]

V. Green

12-31-2001, 10:04 AM

Jim,

Are you refering to the riverbank or the ocean beach?

Oregon has allready declared ownership of all ocean beaches in the state.

As for the riverbank, this is what the ANWS is fighting for. Oregon has only listed a few rivers in Oregon as Navigable. However, federal law and the state constitution still apply to all other streams. Technically if it is floatable in any craft you have the right to be within the ordinary high water marks. Unfortunately you might not get a simpathetic ear with the landowner or local police on this. Those who know about the laws rearding this often times don't agree with it.

You might want to refer to the following sites:

http://www.nors.org/
this site has lots of information regarding this.

http://bluebook.state.or.us/state/constitution/constitution01.htm
This is the Oregon State Constitution, below I have posted a section of the Bill of Rights, note the section about beneficial use of water.

Section 18. Private property or services taken for public use. Private property shall not be taken for public use, nor the particular services of any man be demanded, without just compensation; nor except in the case of the state, without such compensation first assessed and tendered; provided, that the use of all roads, ways and waterways necessary to promote the transportation of the raw products of mine or farm or forest or water for beneficial use or drainage is necessary to the development and welfare of the state and is declared a public use. [Constitution of 1859; Amendment proposed by S.J.R. 17, 1919, and adopted by the people May 21, 1920; Amendment proposed by S.J.R. 8, 1923, and adopted by the people Nov. 4, 1924]

Get Involved and join the Steelheaders!

Vaden Green
Sandy River Chapter ANWS
nwfish@angelfire.com

rob allen

12-31-2001, 10:23 AM

This is why I do not belong the Northwest Steelheaders. I am not saying it's a bad organization! I just happen to disagree strongly with their philosophy. I don't want to get in or start a debate. I am just responding to the question the thread was started with.

The issue, Hatcheries.
I love fishing but I do not support consumptive fisheries at the expence of wild stocks. It is Extremely clear from the avaliable science that hatcheries are a large obstacle to wild fish recovery efforts. Hatchery practices in Washington state have nearly eliminated wild steelhead from all of the Southwest Washington rivers and severly limites some stocks throughout the rest of the state.
Both ODFW and WDFW more money on hatcheries than any other item in their budgets. They do this because there is a strong lobby for consumptive fisheries. For myself I cannot reconcile wanting hatchery fish to catch and eat and wanting to save our wild stocks they are mutually exclusive in nearly all cases.
My money is better spent supporting the Native Fish Society or Washington Trout.

Bubzilla

12-31-2001, 11:11 AM

Jim,

Oregon, unlike Washington, has used the public trust doctrine to make beaches public. As for rivers, eleven have been determined navigable for title purposes. On those waterways, or more accurately the sections of those waterways determined navigable, the state has title to everything up to the high water mark. Those eleven are, however, the only rivers where the public currently has an uncontested right to recreate. And, the standard for determining navigability is not merely whether or not the river can be floated--particularly not on many of our coastal rivers which can only be floated during periods of high-water. Oregon law provides for floatage easements on all other rivers, but that is merely a right to float. This was discussed at length a while back; if you're interested you can do a search of the archives.

THE REEL HEY_YALL

12-31-2001, 11:49 AM

When a river is deemed "navigable", do you think they had in mind people would be "walking" on the riverbank or from some sort of floating device?

My family owns several tracts of land on salt, creek, and rivers. I think when they first settled on the land, they pretty much wanted it for themselves. Personally, I agree with them.

I pay X amount of dollars for riverfront property, pay X amount of taxes for the land, and pay X amount for upkeep of the land. I would move before I looked out my window at my stretch of riverbank to see people fishing there without MY (landowner's) permission just because a river is deemed navigable by the state.

This is America, and yes, there will be more privileged folks than you no matter where you turn. To punish them because you are without is selfish.

I have been following this issue off and on somewhat and I still have not been swerved in favor of Joe Public and I own Zero property in WA. However, I see nothing wrong with a boat wanting to anchor in the water.

Granted, I am pro-sportfish. I just have not been swayed enough by the propaganda.

Thumper

12-31-2001, 01:31 PM

Rob Allen --- Are you advocating the closure of our system of hatcheries??? If not, what changes are you advocating. Take away our Lewis River hatchery fish??? Over my prostrate body.

Todd

12-31-2001, 05:15 PM

RobAllen,

I guess it had to happen sooner or later. I've agreed with most everything you've said on all the BB's we're both on, but not this one.

I agree that hatchery production is a significant problem for wild steelhead. However, if we discontinue hatchery programs, then kiss fishing for steelhead at all goodbye. There'd only be six rivers with sufficient runs to have a season at all (c&r or otherwise). Even if 75% of us stopped fishing for steelhead, the other 25% would all be on those six peninsula streams. Even if it went 100% c&r, the cumulative impacts of so many fishermen would effectively run those stocks to under escapement as well. Then we'd have nowhere to fish at all.

I think the answer is a major overhaul of hatchery programs. The past practice of outplanting smolts has to be completely and totally stopped. That means that only resident stocks should be used, i.e., some sort of native broodstocking program. Probably need to look at the amounts of smolts that are released within a given period, and how they're released. I'm sure thy're lots more, but that's not what we're talking about here.

IF we want to fish for steelhead, then we must have hatchery fish to fish for. IF we are 100% only interested in the welfare of the fish, then we must not have any hatcheries, except for where they are necessary to supplement native stocks that are in really bad shape. Can't have both.

Fish on...

Todd.

Get Bit

12-31-2001, 06:54 PM

I am also a member of the ANWS and here is my 2 cents on the issues raised in the previous posts:

Rivers are for everyone to enjoy. However that enjoyment should not be at the expense of the landowner's property. An individual should have the right to fish on the banks and portage etc. They don't have the right to trash it.The Steelheaders are simply working for this.

As far as hatcheries go, they are a small piece of the puzzle when speaking about the depletion of wild stocks. AKA: logging practices,water quality,dams,ocean conditions,indiscriminate harvesting by different groups, and predators. The steelheaders believe in a compromise , a balance between a harvesting a renewable resource and making sure there are still native stocks. The Steelheaders can't be blamed for the ignorance of those well meaning folks that first began propagating fish in a hatchery setting. They thought a fish was a fish and didn't worry about indigenous strains in watersheds. Thats why
the Steelheaders currently support and are heavily involved in the broodstock programs on the Wilson and Nestucca. This is sound science balanced with hatchery production.

My final point is focused on the ANWS Chapter structure. I agree that it has faults because chapters choose,many times to go their own directions. This also gives the Association tremendous strength. Each chapter has river systems they are passionate about and its this grass roots effort wher the rubber meets the road ! The Tualatin Valley Chapter is responsible for projects such as trash clean-up in the Tillamook area,fish carcass distribution on a Wilson trib., boat ramp maintenance,class room hatchtanks for kids,Youth Fishing Fair, stream restoration projects, scholarships at local High Schools,Salmon Redd surveys, Fin clipping, brood stock capture project, and angler education. Which one of these isn't in the best interest of the resource and the sport? These aren't necessarily political issues but these activities are what make the the Steelheaders strong. Sportfishing has a weak voice in politics not because of a structure like the Steelheaders, but because sportfishing groups are too busy arguing amongst themselves and can't seem to agree on the most important issues!

Get Bit

rob allen

12-31-2001, 07:58 PM

Todd, We don't disagree. My main focus would be on outplanting. This is a practice that simply has to end no if's ands or buts.
There are also some hatcheries that have that have been sooo badly managed that then need to also be ended. Most notably the Skamania hatchery. The Skamania hatchery is the sole cause of decline of wild steelhead in the Washougal river where there has been no habitat destruction and no harvest of wild fish for almost 20 years yet no tendency towards recovery.
Imporper hatchery practices are I believe much more to blame than anyone wants to believe.
I believe propery hatchery management should consist of 4 things. None of which will remedy the problem but they might lessen it.

1. end all outplanting.
2. Only use native broodstock from the system
3. find ways of removing all hatchery fish from the system before spawning

4 work with release timing so that the rivers aren't completely swamped with hatchery fish all at once.

I believe that the exsistance of wild fish is more important that the rights of people to go out and fish for them.
Thats my opinion and I am sticking to it.

garyk

01-01-2002, 12:01 AM

To the last post, yes they intended the public to have unresticted rights to the rivers and their banks as they were the first transportation corridors and as such portages were necessary for boats and foot travel for those without boats.

Federal enabling statutes and the Oregon constitution are hardly propaganda.

The closest analogy is public roads. Most property owners will note that the road's right-of-way extends well into their delineated lots. Very few people will try to prevent persons from walking on the shoulder of the road, claiming it's 'their property' for their personal exclusive use.

The lesson is - use your rights or lose them.

garyk

01-01-2002, 12:20 AM

Got side-tracked there by the river access issus and since DCR started the thread about the ANW Steelheaders here goes...

I've been a paid-up member for the last three years and on-and-off-member for about 12.

My biggest disappointment with ANWS is that it's association-of-chapter structure weakens its efforts. While the access issue is currently the primary issue, the chapters do whatever they want. Just look at the latest newsletters, the efforts being reported have nothing to do with access. Chapters use the Association affiliation and it's nonprofit status for their agenda - which is not necessarily in strategic alignment with that of the overall organization.

Bottom line is that ANWS's structure is a handicap, making the organization less effective than it could be.

The lack of focus and effectiveness is manifested by the organization's long-term problems of attracting members and tenuous financial state.

Thanks to DCR for starting this meaningful topic.

Bubzilla

01-01-2002, 12:55 AM

Reel,

On waterways that are navigable for title purposes, the state owns the bed and banks to the high-water mark. Let me restate that: on navigable rivers, the state, not adjacent landowners, hold title to the river's bottoms and banks to the ordinary high-water mark--irrespective of what county records may indicate.

Gary's analogy to public roads is a good one. People who have navigable rivers in their back yard can no more keep the public from the banks of the river than they can order pedestrians off of the sidewalk of the public street in their front yard. Why? Because just as their land ends at the road's right-of-way, so to do their holdings end at the ordinary high-water mark of the navigable waterway. Simply stated, you don't have a right to exclude when you don't own the land in question.

Not all rivers are navigable for title purposes. Although there are more than eleven in Oregon which would undoubtedly meet the standard for determining navigability, only eleven have been officially recognized as navigable for title purposes, or more accurately sections of eleven, as a matter of law.

On rivers and streams that are either not navigable in fact, or that have yet to be officially recognized as such, the public nonetheless enjoys a floatage easement. This does not, however, have anything whatsoever to do with navigability for title purposes. That is, title and floatage easements exist independently, and guarantee different rights of use.

The following site does a good job of explaining the basics of river use and ownership. It's biased towards access, but generally accurate nonetheless. National Rivers: River navigability law, river access... (http://www.nors.org/us-law-menu.htm)

Sorry, in two posts I neglected to address the original issue. I think Northwest Steelheaders should be commended for their efforts regarding river access. I'm not a member, though. Why? Maybe I should rethink that.

[ 12-31-2001: Message edited by: Bubzilla ]

garyk

01-02-2002, 05:12 PM

Get Bit, thank you for the thoughtful response.

Not to take away anything you wrote about the Tualatin chapter, which is shining example of voluteer effort but I do disagree on a couple points.

First, I pointed out that the chapters don't follow the lead of the organization as a whole, to its detriment. The question of 'Access' is supposed to be _the_ strategic issue for the Association at this time. While you do list a lot of great work by the Tualatin Chapter, that the resource is better off for, Access wasn't mentioned.

So how is progress on this strategic issue going to be made when each chapter follows its own interest? (And I'm not singling out the Tualatin chapter here, you guys are among the best)/

This doesn't lead to 'tremendous strength' but just the opposite. Politically, the ANWS is, I'm afraid, something of a weakling. The membership is too small, too disorganized on the issues, and virtually never speaks with a unified voice.

IF ANWS were transformed, as it gained clout you would see it attract members and money - the opposite of its current state.

rob allen

01-02-2002, 06:17 PM

Todd, I think that a raised or no limit on hatchery fish is at least not a bad idea probably a raised limit would be more acceptable in general. As much as I hate the idea of building stuff in and around the rivers I REALLY!!! like the idea of removing 100% of the hatchery fish from the system so the idea of wiers is appealing as well as recyceling hatchery fish. of course this only affects the spawning population above the weir and the weir wouls have to be placed with 2 considerations in mind. 1. being high enough in the system to allow reasonable opportunity for harvest yet at the same time Low enough that the fish are removed before much spawning occurs.
It sounds funny after hearing catch and release for so long but we really need to be encouraging people to keep as many hatchery fish as they legally can. Also all steelhead fishing after say feb 28th should be selective gear single, barbless , no bait..

I know there has been some debate on the barbless things because of siwash hooks. The solution??? Don't use them fish get hooked just fine when you clip 2 of the points off a treble..

SSPey

01-02-2002, 08:35 PM

Rob - Your claim that hatcheries are the sole cause of dimished runs isn't clear cut to me. There are plenty of small coastal rivers where steelhead and salmon populations are dangerously low, yet which have no hatcheries and watersheds that are in fine shape. I think it is important to remember that the past 20 years of ocean conditions have been less than ideal - certainly not a time to expect strong recovery of a battered population. food for thought

rob allen

01-02-2002, 09:12 PM

Float and fish.. I don't really wanna go into this too much again. The Washougal had a stable population of summer steelhead until the early 1960's inspite of many many factors contributing to the Washougal being a poor environment for steelhead. In the Early 1960's the Skamania hatchery was founded and Imediatly wild fish numbers began to plumet. Now the washougal id extremely lucky to get a run of 300 wild fish. less than 1/5th of what it was before the hatchery. It is my belief that this is too much of a coincidence to ignore.

Look at the rivers where the healthiest wild runs exsist. You'll see that thoes places have no hatcheries. Salmon berry winter runs, North Umpqua winter runs, John Day summer runs.

The ocean has been going through good and bad cycles for centuries but has never caused the near extiction of a run of fish before.

Todd

01-03-2002, 12:40 AM

Thanks for the response, RA,

Thanks, also, for the clarification on your hatchery stance. I think we agree on each and every aspect of what you posted.

How would you, or anyone else, feel about greatly increasing, if not totally doing away with, limits on hatchery fish? I know we want everyone to get a chance at catching a fish or two, but I sure don't find it to be responsible to allow excess hatchery fish to spawn in the wild, at least in rivers that support wild runs, be they salmon or steelhead.

I think I'd be up for increasing the limits, and extending the seasons, for hatchery fish, so long as it wouldn't lead to unacceptable incidental mortality on wild stocks.

How about weirs on rivers with hatcheries, where wild fish are passed up and hatchery fish are recycled until they're either caught or all shipped off to the hatchery?

Fish on...

Todd.

hustlerrjim

01-03-2002, 11:39 AM

dcr your thread about why people don't belong to the steelheaders brings out the best in the barstool way of thinking of a lot of people
The only reason a person wouldn't belong to the steelheaders is they are lazy yes I said lazy I cant say it more eloqently,
Let us look at the good side of things--The steelheaders carried the fight to get rid of the high seas drift nets,remeber??? 70% of the returning fish to the nestuca hatchery had net marks,now there are non.
Next one of their chapters worked hard to put in the boat ramps on the kilchies,n.fork nehalem ,trask,and also the handicap fishing platform at the n.fork nehalem hatchery.This chapter also maintains these ramps on the n. fork nehalem.
These are just a few things I am familiar with as a steelheader.
get bit, does an exellent job of explaining this but If every river on the coast had an active chapter,that is backed by a parent chapter it would be amazing what could be done
garyk brought up the subject all the chapters are spread out and are independent of each other this is true and good---but when the call came out by the mother chapter to "Gather round the flag" and save the hatcherys last year, the hearing rooms were packed at Salem. incidently this saved our fishing industry.
About river acccess??WE [loretta and I] own the boat launch on the n.fork nehalem for the past 30 years we have let the public put in for a fee of 5.00$ and provived a shuttle service.the only rule we have applied is DO NOT GET OUT OF YOUR BOAT ON PRIVATE PROPERTY,in 30 years we have had only one complaint addressed to us.so our system works.vandalism and garbage??????lorretta and I have not had one,-- not one instance of either in 30 years we have lived here,and dealt with the public,
Wild fish vs hatchery fish!!!!since I took away the claim by odfw you can not tell the difference between a htchery fish and a wild fish using dna tests we suddenly find the wild fish zealots having to resort to looking for any kind of characteristic that will differentiat a hatchery fish from a wild fish,non of which is based on a unbiased lab test.you beleive what you want and nothing else,a good case in point is the taliban,
I wonder how many of them would be wild fish maniacs???they certainly have the charteristics for it.
rob allen is against out going smolt releases,remember ,[if you want to] if you were arund 30 years ago the hatcherys released millions of fry ,this program proved unsuccesfull
and they switched to the smolt program,because the smolt program bypasses the spawning bed part of its life cycle.this is the present policey and this years results prove it works,as it has worked on the n fork for the past 25 years.
there are many factors involved in the decline and recovery of the steel head runs,predation being one of the biggest remeber the nehalem system went through the elninio years with very little drop in returns because the local chapter had a very vigorus smolt protection program in place.
Now then rob to bring you around to dealing with facts not bar stool anology,you said the salmonberry river has a healthy run of winter steel head and there is no hatchery you are right there is no hatchery but if you would print the facts you would find there was a hatchry on the salmonberry from 1910--1935,because there were no fish in the salmonberry river at that time,they planted fry by horse and mules in all the tributareys of the salmon berry,ALL THE STEELHEAD IN THE SALMONBERRY CAN BE CONSIDERED OF HATCHERY ORIGIN!!!!!!
The steelheaders will be the strongest political force in salem, maybe they are now ,but they dont realize it,they have the most respected lobbiest in the capitol,they have input from all corners of the state,and when they get all the wheels turning they are a force to be dealt with.
the n. fork nehalem chapter is one of those so called splinter chapters that don't agree with a hell of alot the parent chapter trys to tell us but they support us and we seem to get a lot done,and we have built our fishery and hatchery to the present level of exellence that is admired by the legislaters
wheter you agree with their philosophy about a lot of things or not I stand on my statement you should belong to the steel headers or better yet form a small chapter and you will be amazed at how much you can accomplish.
in closing this epistle. I say our worst enemy is the wild fish biologist that have in filtrated the fish and wild life depts.and they should all be fired

rob allen

01-03-2002, 06:11 PM

1.. Oregon has failed to live up to it's end of the bargain for becoming a state according to Federal law by failing to properly designate rivers as navagable or non-navagable. If a river is navagable for title purpose it is legally impossible for there to be any private property along it's banks!!! test of navagability?? If you can float it in any type of craft it is navagable!! Boats floating down the river=nagabable= PUBLIC property! Of course you don't have to let them use your private ramp if they don't agree to your terms
WDFW biologists can and do on a regular basis tell hatchery fish from wild fish with DNA testing. Hatchery fish and wild fish ARE different!!! read Phelps study from 1994

As for what you are saying about the Salmnomberry as far as I know what you said was false but I just e-mailed the North Coast office of ODFW and posed the question to them. It's interesting that with all the spawning surveys that are conducted in the area during Feb-May then never see any unclipped fish because they are unable to get past some form of barrier, A falls I think. It's also interesting that they see differences in the fish that are observable. One trib gets larger than average fish while another gets smaller than average fish. Could it be that different parts of the same system have different genetic requirements??? YES!

[ 01-03-2002: Message edited by: rob allen ]

hustlerrjim

01-04-2002, 08:49 AM

rob allen
the article about the salmonberry hatchery is called
an evaluation of the nehalem river salmon hatchery
by joe wallis
feb 1961 oregon fish commision research laboratory clackamas or feb 1961
the salmonberry hatchery was known as the nehalem river hatchery page 43 wiill tell you the dates records were kept 1918 -1959
now then you say they dont see see any unclipped fish above a barrier [falls] one of the big attractions to the river is to watch the fish go over this falls ,check with walt weber, retired biologist of chinnok wash.call him.
i have spent my time bringing this imfo to your attention i would like for you to give me the imfo on wdfw dna tests to differentate a wild fish from a hatchery fish.if they cant -you owe me an apology,
another person you can call about the salmonberry hatchery is bob leighton 503 368 6143 i have talked to bob and he would be happy to inform you of the history of the hatchery
I wait in anticipation for the report from wdfw

THE REEL HEY_YALL

01-04-2002, 09:27 AM

<blockquote>quote:<hr> in 30 years we have had only one complaint addressed to us.so our system works.vandalism and garbage??????lorretta and I have not had one,-- not one instance of either in 30 years we have lived here,and dealt with the public <hr></blockquote>

You say you operate a "launch". Do you allow bank anglers to walk up and downriver below the high-water mark?

You should be commended for opening up your launch to the public. Many people would not. But how private citizens patrol their own property and how the state maintains their own property is like comparing apples and oranges. The private citizen will take more pride in it than Joe Public. However, if your system works, perhaps you should present it to both our state governments, respectively. I know I would like to see places like the Wind River and Blue Creek without litter.

I have friends in the NW Steelheaders and I agree as a whole, it is a good organization. I have not heard, in plain-english, what impact on the landowners deeming rivers navigable will have. If it shouldn't have any impact, why do they seem so up in arms about the whole issue? And I'm not just talking about a handful of farmers who are angry. I saw firsthand down on the Santiam the trails Joe Public had carved in people's yards from walking up and down the bank. Plus the number of people sneaking over into these peoples' yards to take a leak behind their bushes. Must have been at least 3 riverfront homes for sale right on that one strip.

I would like to hear the landowner's argument and invite anyone who could possibly be affected by this to shed some light on the subject.

POS Clerk

01-04-2002, 01:46 PM

Bubzilla

Very good post. I think both fishermen and property owners should start working together to solve the many issues facing each group instead of drawing lines in the sand.

DCR

My home is located on a lot taxed at 70 by 180 feet. The actual size is 70 by 150 feet. According to my property tax statement my property runs to the middle of the main road in front of my house. Using the river property owner’s argument can I stop people from using the road if someone litters the sidewalk? I do not think so. Can I expect a refund for all the taxes that have been paid on my non-usable property, somehow I think not. We should try to mitigate problems caused by un-knowing fishermen trekking on private property, if ODFW can put up fences to keep out elk why can’t they do it to keep out fishermen? Some of them look wilder than the last elk I saw. (he he)

Hustlerrjim

I am very impressed by your long post, not in what you said but in the time it must have taken you to type it without opposable thumbs. I credit many of the problems we are now facing to the narrow-minded thinkers of your MSY era. Although I have always felt that everyone has something to add when discussing salmonid issue some of your views appear to be truly antiquated.

A mind is like a parachute, they both work better when open.

POS Clerk

OneLastCast

01-04-2002, 06:05 PM

POS Clerk,
if you check your deed or the partition or subdivision plat that created your lot you will find that some previous owner decided to grant the right to use a portion of your property to someone else without transfering the ownership (an easement). This could be for road access, utilitis etc. Either way you still own the property and thus have to pay the taxes. Most roads are easements (except for State or Federal Highways) although not all are taxed.
A "navigable" river is owned by the State. A nonnavigable river may be owned by someone else. Actual ownership, not an easement. Though as Bubzilla stated the State owns the water.
My problem is that many fisherman do not necessarily want to fish or access the river below the mean high water mark or can not even identify the high water mark. It is often easier and less brushy to access the river over some portion that is above that mark, "THE BANK" as some people call it, it is quicker to park in someones driveway and hike across private land than to start at some public access and wade your way up or down the river.
Navigable rivers are owned by the State. No question. In that case, the area above the ordinary high water or the mean high water is privately owned. And just because a persons waders do not go high enough to stay below that line or they don't want to bust the brush to keep below that line does not give them an easement to wander around on private property.

Bubzilla, again well said.

Hogtide....my apologies but you know I can't keep away from these discussions.

HustlerJim...I have always found you opposable or obnoxious or whatever...probably see you tomorrow.

OneLastCast

[ 01-04-2002: Message edited by: OneLastCast ]

Bubzilla

01-05-2002, 12:48 AM

Reel,

This isn't a matter of balancing interests. The law could not be clearer: waterways which meet the standard of navigability for title purposes are held in trust for the public. Regardless of what anyone's title may say, and irrespective of various public records, if the waterway is in fact navigable, the state holds fee title up to the ordinary high-water mark. This is the result of literally what was the very first law enacted by Congress.

It should be ponited out that the standard for determining navigability for title purposes requires much more than a showing that the river in question could be floated with any sort of craft. A good example of what is generally required to determine navigability can be found in the lower Chetco case decided in 1994. Suffice it to say that just because you can get down a river or stream in a canoe during periods of high-water is not going to make the river navigable for title purposes.

At least in Oreong, on rivers and streams that aren't, or haven't been declared, navigable for title purposes, the public nonetheless enjoys a floatage easement, i.e., the right to float the river. This right is guaranteed in the Oregon Constitution.

Are landowners affected by this? Of course. Are their lives negatively impacted by intrusions of the public into their private lives? More than likely yes. Is there anything they can do about it, aside from moving or learning to accept the situation? No.

Individuals who purchase land by Oregon's rivers and streams--particularly those which are readily floatable or those that have been declared navigable for title purposes--and then begin to complain about the public always being in "their" yard, are a little confused. What they're doing would be like moving out in the country next to a dairy farm and then complaining about the smell. Are the landowners inconvenienced in both cases? Absolutely. Is there anything they can do about it besides move or learn to live with the reality of things? No.

This is simple, really: on waterways that are navigable for title purposes, landowners do not own below the ordinary high-water mark. This isn't an issue of private property rights, because there's no private property involved. There's no taking, which must be compensated, because nobody but the state ever owned the land in question. On waterways which are not navigable for title purposes, landowners don't own the flowing water. They can't prohibit the public from floating.

I know this is very hard for many landowners to accept, but it's the reality of things. In essence, although it may sound harsh, what landowners think on the subject is largely irrelevant. The problem that NWSA is addressing is that many landowners assert claims to property that have no foundation. And often, these same landowners interfere with the public's unquestionable right to recreate on Oregon's free-flowing waters.

[ 01-04-2002: Message edited by: Bubzilla ]

Snag

01-05-2002, 12:55 AM

Bubzilla,

Well said! The law is clear. The State has (IMO) unlawfully taxed some riverfront owners, giving the impression of ownership to mid stream. I really believe that the state owes those people, and previous owners, full refund of taxes paid. It would probably bankrupt the state, so it will never happen.

Straydog

01-05-2002, 08:07 AM

I tried to stay out of this but don't have the will power I thought I did.

I don't belong to the Steelheaders because I am too involved in other groups and have to prioitize my time. (Please don't tell me the Steelheaders are the ONLY group working their butts off for our fisheries...... it aint so)

I donate fairly generously to a local derby they put on and other times through-out the year. After reading this thread, I will probably become a dues paying member but not an active participant...... a guy can only handle so many meetings in his life and I am about to the end of my quota I think.

Hustlerjims post got my attention in a negative way I must say.

I am sure glad to read he solved the wild vs hatchery fish DNA question all by himself.

I would like he and others to consider the idea we may be putting way too much weight on the idea of DNA in distinguishing our fish.

There is a small herd of cows down on the lower Rogue that, according to my local old timer sources, have been down there for quite some time, decades I am told.

Story goes they are are skittish and hard to get to as Elk and tougher to hunt...... I bet they would have the same DNA as 'ol bossy in the pasture down the road.

There are a bunch of pigs that have gone wild down in the Sixes area of the So. Oregon coast.... they are hunted by the locals and deemed a nuisance. They too have been down there a number years and have a much different "lifestyle" than the porker over at farmer Johns. However, I bet they have the same DNA makeup and John's porker.

I guess my response to Hustler's DNA "research" (don't know if or what that might have been) and consequent revelation is "so what?"

The end product is not the same and never will be until we make more progress in changing the way we run our hatcheries.

The statement that really gets me, and Jim is not unique in this attitude, is when he says: "in closing this epistle. I say our worst enemy is the wild fish biologist that have in filtrated the fish and wild life depts.and they should all be fired"
To me, this is as unfair and unrealistic as if I were to repeat the opinion of many by stating all river guides are arrogant, fish hogging, river hogging, egotistical jerks that only become river guides because they are not smart enough to get a 'real job' and should be kicked off our rivers.
Not much fairness, truth or sense in making broad sweeping, steretypical generalizations about a group of people that for the most part are just like you and I, doing the best they can to do thier thier job to the best of their abilities, now is there folks.

[ 01-05-2002: Message edited by: Straydog ]

THE REEL HEY_YALL

01-07-2002, 01:17 PM

Bubzilla, good post, but if the facts are all right in front of everyone, why must it go to court?

Could it be the way you interpret it varies from John Q. Landowner? If the state can take away tribal lands and compensate them accordingly, then why can they not compensate we "Native Americans"?

I think a lot has to do with either mis-communication or uneducation. I agree not everyone can identify a high-water mark. And like mentioned above, build fences for the landowners.

The cost to build the landowners' fences would be comparable to the court costs.

I'm all for more places to fish. I'm 75% bank fishing when I go so me as a bank angler would love to see more places to disperse crowds. But why disperse the crowds when you cannot even police the ones that aren't dispersed. Again, another subject brought up that probably can't be given a logical answer other than "money".

I guess back to my original thought: If it's so clear and evident, then why is there a war going on and why is it going to the courts? Again, thank you for your time as I'm being educated myself.

Bubzilla

01-07-2002, 02:04 PM

Reel,

Back when I was in my first year of law school, I often wondered the same thing: if the point of law in a particular case is so clear, what is everyone fighting over? As time went on, I learned that things are never that simple. Nonetheless, there is absolutely no dispute whatsoever as to whether or not the state holds fee title to waterways navigable for title purposes--that is a long-settled point of law. There remains, however, substantial controversy about what rivers are in fact navigable.

The problem, one that both landowners and access advocates both don't generally recognize, is that whether a river or stream is navigable for title purposes is question of fact--a question that generally must be resolved by some entity. Why? Because the stanadard for determing navigability for title purposes is not scientific--it's a usability test derived from court decisions. And although the United States Supreme Court has held that no agency must offically designate waterways as navigable for title purposes, the working reality is that such a determination is generally necessary to resolve disputes. In Oregon, for example, the courts have only found eleven rivers, or more accurately sections of eleven rivers, navigable for title purposes. Without doubt there are more, but to date, only eleven have been addressed in the courts.

Well, some might ask, why haven't they just ruled on all of them? Unfortunately, or fortunately depending on how you view the role of the courts in our society, courts can only rule on controversies squarely before them. That is, only when a specific case arises, and is properly presented to a court, is that court capable of ruling in a matter. For example, in the John Day case, only the navigability of the John Day will be at issue.

Although there are undoubtedly misinformed landowners who would argue otherwise, just as there are misinformed access advocates that believe anything floatable by a ten year old on an air mattress would meet the standard for navigablity, there is no question that the state owns to the ordinary high-water mark on waterways that are in fact navigable for title purposes. That does not mean, however, that reasonable people cannot disagree as to what waterways are in fact navigable. And therin lies the rub.

I should mention that the State of Oregon long ago created an entity with the responsibility of making navigability determinations. To my knowledge, they've made none.

[ 01-07-2002: Message edited by: Bubzilla ]

rob allen

01-07-2002, 05:04 PM

The federal test for determining navigability was established over a hundred years ago. In the landmark decision of The Daniel Ball, 77 U.S. (19 Wall.) 557, 563, (1870), the Supreme Court declared:

Those rivers must be regarded as public navigable rivers in law which are navigable in fact. And they are navigable in fact when they are used, or are susceptible of being used, in their ordinary condition, as highways of commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water.

OK here in simple english... All rivers in every state MUST!! (states have no say in the matter) be considered navigable if they are navigable in fact.. in fact means..

1. are or are capable of being floated or were capable of being floated in their natural state ie pre-dam and pre-irrigation.

2. must be usable as a way to move products or people.. It doesn't have to be used it only must be able to be used.

3 must be able to do all this in customary mode ot travel.

Nothing is more customary in the northwest than a dug out canoe. just ask a few native americans. But on a more recent notes i'd say driftboats are the most customary commercial boats.

That is the law there is nothing more! thats the law and thats IT.

It is clear from the law that almost every stream in oregon and washington and every other state are navigable.
here is a list of streams that are navibable no matter what the state of oregon or any landowner says.

Wilson
Trask
Nastucca
Silets
Alsea
Deschutes
John Day
All these streams are floatable in their natural state. All of them are capable of acting as highways to float products and people in customary forms of water transportation! And in fact all of them are used for that very purpose.

The state has no right to give or sell or eliminate public access to these places.
Some selfish people (landowners,Lawmakers)don't care anout the intent of the law however and want to hang this issue out to dry basing their arguements on technicalities such as what constitutes a customry form of transportation on the water. they ignore the very simple answer, A BOAT!!!

Bubzilla

01-07-2002, 05:30 PM

Here's a site that shows how this process actually works--both in the courts and at the state level.

Kilches and Trask navigability (http://statelands.dsl.state.or.us/nav_kilchis_trask.htm)

garyk

01-08-2002, 05:47 PM

Those last three posts were so well written, so concise, that I can't bear to see them scroll off.

GBSkunk

01-08-2002, 07:23 PM

Bubzilla, that is the most informative link I've seen yet on this issue. I found this very interesting. "According to current state law, until the navigability of a waterway is determined and declared by the State Land Board, the Division is unable to affirm or deny public ownership of the waterway’s bed and banks. Furthermore, no one other than the courts can say with total certainty who owns the bed and banks of these rivers."

THE REEL HEY_YALL

01-09-2002, 10:48 AM

Thanks very much Bubzilla...or is it killertraylor :shocked: :wink: Still though, thank you for posting that link as that is very informative.

Again, thanks Bub, rob, and others for sharing opinions and information. Again, that's what makes these message boards cool. The availability of information that can be passed on.

Fish on

Dale

01-09-2002, 11:15 PM

I am new to the world of Steelheading. I have been actively involved in the Emerald Empire Chapter ANWS for about two Years. As a fishermen I want the right to access any river that is fishable. As a fishermen I would like to have the courtesy of the landowners that should be shown to any passing stranger on the street. I do not want to be yelled at or threatened. I do not demand access to cross their land. Or invade their privacy. The land owners have the right to expect of me and my types the courtesy to stay off of their private land, not leave trash on the banks or what ever nature callings happen to arrive during our passage. Most of the rivers I have been on have facilities available ever so often.

On some other postings I have read the biggest complaint seems to be trash. I do not believe that the trash problem is just fishermen, but I take the responsibility to take a trash bag with me and take a few minutes to pick something up. I ask that all people do the same. Won’t happen, but we can hope.

My chapter has our own Steelhead hatchery. We fin clipped about 37,000 fish not too long ago and put them in a rearing pond. These fish will Smolt around the end of April. During this time surveys will be done on the river to determine the native Smolt population. Our fish release is directed by our ODFW State Biologist. Which is determined by when the natives have started moving down river. The natives get to leave first to lessen any impact to the natives.

Difference between hatchery fish and native? Our brood stock comes from the river that our hatchery is on, Siuslaw. We collect our eggs and milt at the very careful and watchful eye of our ODFW State Biologist. We live spawn and release the fish back down river. The SB will say how many fish we will span. X number hen, X number buck. We spawn hatchery and native fish together. The only real difference is that in nature they get to pick their mate and they arn't fed as well. This system is better than what it use to be. Studies are being done on state and federal levels to allow for protected natural spawning hatcheries. The fish are allowed to spawn naturally, but are fed from a system where the food is forced up instead of broadcasted on the surface. At some point they will be marked as hatchery fish prior to release.

We operate a fish trap on Whittaker Creek. This is part of the spawning grounds for the Siuslaw River. The trap is worked two days a week. The fish moving up stream cannot go passed the trap. During the season we count the fish, mark and release them. Native fish are counted only and immediately released up river to go to the spawning area. Hatchery fish are released back down river to hold until spawning time. After our spawning is finished we continue to spawn out all remaining hatchery fish and dispose of the eggs. This is one attempt to stop as many hatchery fish from wild spawning. Not 100%, but better than if we did not do it.

Back to the original question of this page. Why don’t you join the ANWS if your interest is Steelhead fishing? Or just fishing anyway. If you don’t like the way something is run, do something about it. By supporting organizations like the ANWS you support fishing people. One voice cannot always be heard, but one more voice can make a difference. ANWS is getting to be a stronger voice every day and that voice speaks for your rights as fishermen. Where, When, What and How many fish you can catch.

I wish you tight lines. :cool: