Sandy river navagation decsion

[fishbane]

I thought this was going to be a good thing but now that I have heard all the details I think it is a little screwy.
I have mixed feelings. I think it is great that the shore line be open to landing on or fishing from but the land owners should be given a tax rebate or some thing too. If they have been paying taxes on the land this whole time and now the state has made claim to it. They should get some money back and they shouldn't have to pay a mortgage or taxes on land that the state has taken away.
What do you think?

[CHRIS BROWN]

FISH BANE YOU MAKE A GOOD POINT BUT ALOT OF THESE PEOPLE COME TO OREGON BUY UP THE WATER FRONT PROPERTY AND DONT ALLOW US NATIVES FISH THESE PLACES "NO TRESSPASSING" I SEE THIS SIGN EVERY WERE I GO IT IS NOT HURTING ANYONE TO LET SOMEBODY FISH ON YOUR PLACE IF THEY PICK UP THEIR TRASH (BUT THAT IS A DIFF. STORY) SO I REALLY DONT FEEL BAD FOR THESE PEOPLE BUT THEN AGAIN I DONT OWN THE PROPERTY SEE YOU ON THE BANKS OF THE SANDY CHRIS

[ampersat]

the city owns the sidewalk in front of your house, but it's still included as part of your land for tax purposes. you are even required to provide for its proper upkeep. how is the bank of a navigable river any different from the sidewalk next to a street (except the view is much nicer at the river)?

[hustlerrjim]

somebody please explain to me why you gotta get out of your boat to fish

[Artwo]

hustlerrjim,
For the sandy specifically, from the power lines aproximately three miles below Oxbow park up river you are not allowed to fish from a floating device.

JK

[garyk]

I sure don't see what's 'screwy' about re-affirming what the Federal law says in the enabling statutes that created the great state of Oregon.

The property in question has always belonged to the public, and held in trust by the state. It was never anyone's to sell or lay title to. If the title is defective, perhaps they should seek recourse through their title insurance company or the prior seller.

Furthermore, as reported, any taxes paid on these submerged lands was of minimal amount.

The analogy given above about streets is right on the mark.

[OneLastCast]

Sorry garyk but although I live in a rural area without sidewalks I would bet that if you look at the area of your lot and the area taxed as your ownership they will be equal. You may be paying some other "local" fees for the sidewalk in front of your house but if it is not owned by you than I doubt it is included in the area of your ownership. Is it an easement? If thats the case, you own it, just gave the rights to someone else. If its in the city right-of-way than the city owns it and has created some local ordinance that makes it your responsiblity. Don't mix local ordinances with state law. Ampersat answered his own question when he said "the city owns the sidewalk.." In answer to Ampersat for his question on how the bank of the navigable river any different than the sidewalk is that the "bank" above the ordinary high water mark is privately owned. Below that mark on a navigable river is publicly owned provided it was not deeded by the state(and yes the state can sell it)or it was not aquired by an act of avulsion or originally granted in a state land patent.

The thing to note is that a specific mile marker was set (as in all the determinations of navigability). Could it be that that property and riverbed not included within those mile markers is privately owned? So apparently it is not all the river bed.

Since most Title companies give disclaimers on their insurance the property owners recourse is not with their title insurer but rather with the seller if that seller conveyed title with a warranty deed.
The counties on the other hand will still have to determine back taxes most likely.

OneLastCast

[fishbane]

Well that is allot good comments and thoughts but one last cast is incorrect. When I owned a place in north Portland with a sidewalk. The city sent me notice to either fix the sidewalk or they would and send me the bill. So I had to fix it.

I have no problem with the riverbanks being open to fisherman on all rivers. I myself usually end up picking up at least a little trash from other people while I am out on the river.

I don't have a boat yet so I always fish from the bank.

[garyk]

Sorry OneLastCast, but I too live where the sidewalks don't run.

As a matter of fact, in surveying my rural property I learned that I'm paying taxes for land occupied by a county road, albeit a small amount, usually running less than six feet over an acre or less than 1224 ft/2. (I've decided not to mail a 34-cent letter requesting a refund of 89-cents for my overpayment)

Then there is the road right-of-way that extends further into my tax lot.

My point was that just as I cannot prevent people from walking along the road's right of way along my property, riverbank owners cannot keep the public off of the banks below M.H.W.M. on navigible rivers -- regardless of what the title says (with a nod to the very specific state-abandonment circumstances you cite).

[OneLastCast]

Don’t be sorry garyk, rural life is far better than urban life.

I wholeheartedly agree with you in that “riverbank owners cannot keep the public off the banks below the M.H.W.M. on navigable rivers” or the ordinary high water mark, provided the river is navigable, provided the state hasn’t relinquished title, etc.
I just get nervous when I hear people say “regardless what the title says” because that title document or previous title document may have a lot of bearing on who owns what. Also it is absolutely true that one cannot sell what one does not own so if the state does own it, that ownership cannot be transferred by anyone but the state.(which after a navigability determination, actual ownership questions are often determined by a title search)

Regarding the right-of-way that extends across your property, without looking at the title (there are those pesky title reports again) it is speculation on what it is. Likely it is an easement that someone who owned your property prior to your acquisition granted to the public or someone else. This would allow others the use of your land while you get the privilege of paying the taxes.(Unless it is a state or federal highway which are usually owned outright). But if you didn’t have an easement I would imagine that you would get pretty excited if everybody decided to arbitrarily use your property for walking, picnicking and general use.

Regarding the road encroachment covering 1224 sqft of your property. Someone is using your property without your permission. Approach the county with your survey and ask them what they want to do about it. If you truly own the land then they are trespassing so they either adjust your boundary or condemn your property. Either way you should receive some type of compensation. Of course they may tell you to bug off, putting the ball in your court.

Regarding sidewalks, fishbane, you were not taxed for the sidewalk were you? Didn’t the city just tell you to maintain it? Did your tax bill say that you were being taxed on 5000 sq. ft. of land and 250 sq.ft. of sidewalk? I think a lot of the larger metropolitan areas have ordinances that require the sidewalk upkeep to be the responsibility of the adjoining land owner similar to vegetation ordinances or nuisance ordinances but that is not a property tax issue.

If the Supreme Court holds up the decision of DSL, which they most likely will, does that mean you can walk below the MHW upriver from mile 37? Probably not, because that was not within the area specified by the DSL report and therefore not declared navigable by the report. The same applies with the other 10 rivers where only a portion of each river was declared navigable by DSL. I am not disputing state ownership of navigable streams I am just trying to say that the issue is far to complex and/or site specific to be decided buy a guy standing on the bank of the river or rowing the boat floating downstream.

OneLastCast

[V. Green]

You might want to see the Oregon State Constitution regarding this:

from:
http://bluebook.state.or.us/state/constitution/constitution01.htm

excerpt from Section 18 of the Oregon Consitution
".... 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.

To me Section 18 would leave me to believe that the stream does not have to be navigable in order to use it, since the Constitution states nothing regarding Navigability. However, the police, landowner and courts would likely disagree with my take on this.

from:
http://www.nors.org/us-law-who-owns.htm

Can states sell or give away rivers, or riverside land?

Federal courts have held that the state does not simply own the river and the riverside land, it holds it "in trust for the public." These court decisions, taken together, are known as the Public Trust Doctrine. The state holds the resources in trust for the benefit of all the people. The general public has a right to fully enjoy these resources for a wide variety of public uses including navigation, recreation, and fisheries. The state cannot divest itself of these public-trust ownership.

The state can sell or lease pieces of land along a river, such as for public or private docks, etc., but not the whole river. Such transactions must be beneficial for use of the waterway. They cannot interfere with public use of the overall waterway.

I don't understand the property tax issue that landowners are bringing up. In reality how much is submerged land worth in conparison to land that is above water, what if you add a house to the dry land section? I would guess that you won't find any houses along the sandy losing value because of this issue. For example; I understand that one individuals deed states that they own X number of acres with half of that under the river, has he/she lost 1/2 the value of the land? If so and they are willing to sell I would likely be willing to buy from them.

[OneLastCast]

V.Green, you are making this to complicated :grin:

Here are some short clips of interesting ORS's
Actually both ORS 273 and ORS 274 give some interesting reading regarding all of this. Now if I only had schooling in the law to understand the finer nuances. I am only showing some short sections, but go to the state website for all the verbage.

274.025 Jurisdiction over submersible and submerged lands generally. (1) The title to the submersible and submerged lands of all navigable streams and lakes in this state now existing or which may have been in existence in 1859 when the state was admitted to the Union, or at any time since admission, and which has not become vested in any person, is vested in the State of Oregon. The State of Oregon is the owner of the submersible and submerged lands of such streams and lakes, and may use and dispose of the same as provided by law.

This lays out how you can buy submersible lands
273.265 Application for submersible lands. (1) If application is made for the purchase of submersible lands, the applicant must cause such lands to be surveyed at the expense of the applicant by a surveyor, whose selection is subject to prior approval by the Division of
State Lands........

273.900 Confirmation of title to tide lands and tide flats.
273.902 Confirmation of title to swamp and overflow lands; deed to claimant
273.910 Confirmation of title to state lands purchased before 1918
274.040 Sale or lease of submersible lands; easements.
274.915 Division to lease or dispose of new lands; method

I guess that is why we have courts.

As far as the tax issue. I don't know. My tax bill is not seperated between wetland and upland, timber or pond, easement or clear. They take the total acreage and apply the same number to each acre. If one half of the land described in my deed was submerged and I had been paying the same tax rate on each acre it would appear that the county was charging me double then the actual "assessed" value of my lot. Maybe they just increase the assessed value per acre.
As I said, I don't know, I am just writing out loud.

OneLastCast

[Bubzilla]

Onelastcast,

Unfortunately, I don't have time to go into any depth on this issue tonight. Suffice it to say that the ORS sections you cite are totally irrelevant to this discussion. Simply put, the legislature can't confer upon the State of Oregon an authority specifically ceded to the Federal Government when it became a state--they call that federalism in law school. Navigable rivers are held in trust for public use. That simple. Nothing the state does can change that fact. They can't be sold or otherwise encumbered. They are, in essence, America's first interstate highway system.

I suggest reading the first link provided by V. Green. I found that site particularly informative while researching river navigability in law school. In a thread a while back I provided a link to the Division of State Lands site where there is a very informative discussion of the law and practical procedures regarding river navigability specifically dealing with the Kilches and Trask. A quick search should turn that one up too.

Interestingly enough, for those who are really fired up about this topic, the decision by the state in this case is not final. Only a federal court can have the final say. So, landowners will more than likely file suit, and sometime around 2010 this should all finally be over.

[V. Green]

OneLastCast,

Last I knew Oregon Revised Statutes do not supercede the State Constitution or any Federal Laws. I beleive that Bubzilla is on track with his last post.

[OneLastCast]

Glad to see you again Bubzilla

I was hoping you would respond.

So, what you are telling me is that any and all deeds signed by the State of Oregon are not only suspect but illegal? The property hasn't transfered title? That all these confirmation of titles of submersible lands were only to appease the current land owner and would not hold up in a court of law. That if I have a deed signed by the governor of the State of Oregon that it is invalid? That a land owner that entered into a contract with the State of Oregon, in good faith, without fraud, cannot expect compensation from said contract that "apparently" the State did frauduently enter?

Yes it is unfortunate that the layman can not go to the ORS's and expect them to portray the law of the land. So the ORS's that I listed don't pertain to the situation. I find that interesting in that they describe how to purchase public land, and how the DSL is to determine navigability. The land purchases and "quitclaims" don't really apply in Clatsop County??? Tell me how that works. A lot of land owners want to know. What about the land owners that are dealing with the US Government or the state on the purchase of submersible lands? Is the government not acting in "good faith"? What I hear you saying is that any submersible or tidal land cannot be "sold or encumbered".
I realize that I am not at all studied in the law but are you, in this forum, going to invalidate all the deeds signed by the state for submerged or submersible lands?

Actually Bubzilla I am happy to see you post.
This forum should be for the sharing of info, believe it or not what you have to say is important to me and may change my approach.

OneLastCast

[Bubzilla]

Onelastcast,

To be specific, I'm saying that you could have a document signed by the Governor, the Pope, Santa Clause, and the Easter Bunny that purports to convey an interest in lands that fall within the orginary high-water mark of any waterway that meets the standard of navigability for title purposes, and it is unenforceable at law or equity. Other than it's value for the outhouse, it wouldn't be worth the paper it was printed on.

[OneLastCast]

Now Bubzilla I am really confused.

There seems to be a considerable number of transactions between this state and private parties that involve areas below the high water be it oyster farming, mining, harbors and wharves and deeds of transfer from the state. If, as you say, the state has never had title to any land below the MHW, aren't we perpetuating some massive fraud here?
Does that make ORS273 and 274 invalid?
Does the Division of State Lands even have the right to be acting on Sandy river declaring it navigable if it is a federal problem? Why are we spending state money on it?
Recently on the Nestucca River the US Fish and Wildlife (the feds) were purchasing some submersible lands from a Private owner who was granted the property by the state. Why are the feds spending our hard earned tax money if from what you are saying we already own it the property.

Once we get these questions answered we can move on to the Pope, Santa Clause and the Easter Bunny.

OneLastCast

[Bubzilla]

Navigabiltiy basics from Divsion of State Lands (http://statelands.dsl.state.or.us/nav_kilches_trask.htm)

Here's one of my favorite parts:

"Q. Who does own the bed and banks of the Trask and Kilchis Rivers today?

"According to our property deed, we own halfway into the Trask River."
"The ownership of the Kilchis riverbed and bank is clear as written in our property deeds. Boundary lines go to the middle of the river."
"If you own land on both sides of the stream you also own the river bottom and shoreline."
The Division is aware that many deeds show that a landowner owns the bed and banks of a waterway running through, or adjacent to his property. However, since a deed can only convey interests actually owned by the seller, and since the beds and banks of all navigable rivers were given to the state at statehood in 1859, situations may exist where the state is the only true owner regardless of what a deed may say. The state’s right to ownership is a "prior existing right" and is frequently mentioned as such on deeds and title insurance. Somewhere along the chain of property transactions, a deed may have been changed to include the riverbed from ordinary high water to the middle of the river. Again, these issues depend on the facts of the particular situation.

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 beds and banks of these rivers."

Wow, if I didn't know better, I might think someone at the AG's office actually looked into the law on this topic, huh? Hmmm..wonder why the cases cited in the beginning of the discussion were all from federal courts, though. Very interesting. Must just be a coincidence.

Here's another good part:

"Q. Does the public already own the beds and banks within tidewater of the Trask and Kilchis Rivers? What are the public’s rights?

Public ownership of the Trask and Kilchis Rivers already exists to head of tide under "tidal" as opposed to "navigable" state ownership. On the Trask, the head of tide is about River Mile 4.3 (or approximately where Highway 101 crosses the Trask); on the Kilchis it is at about River Mile 2.0 (or approximately where Coal Creek enters into the Kilchis). In most cases, the public "tidal" ownership extends to the line of high tide on the riverbank. The public has the right to anchor, fish, walk on the bank, land a boat, etc. within this area. However, all activity must be below the line of high tide; otherwise, persons may be trespassing on upland private property."

Wait, I'm confused. There's a difference between "tidal" ownership and "navigable" ownership? Wow! No way! So I guess than listing statutes that dealt with "tidal" ownership, when talking about "navigable" ownership, would be...what's the word...irrelevant? Hmmm...very interesting indeed.

I particularly found other resources on the Division of State Lands web site interesting too. The page that explained the difference between a lease and fee sale was really great!

Sorry for all the sarcasim. I won't be posting to this thread again, or any other navigable waterway thread for that matter. For those who are convinced the state is in the wrong, I wish you all nothing but the best of luck in the upcoming court fight--you're going to need it.

[Bubzilla]

Ooops. Had a stutter.

[ 02-08-2002, 10:34 AM: Message edited by: Bubzilla ]

[fishbait]

Seems to me that I heard simular discussion when the late great Govenor Tom McCall made the beaches of this great state public land.

That decision has stood the test of time just as this one will.......... It's not about now, or your land, it's about generations and generations of Oregonians till the end of time........

If you don't like it fine, shut the FU*K up and move back to California or New York........

Nuff said.............

[OneLastCast]

Fishbait short post but concise.

Bubzilla, sorry to see the sarcasm. I need to write clearer. Apparently ...never mind.
Some of what was posted was not regarding tidal lands.
274.005 Definitions. As used in this chapter, unless the context requires otherwise:
((8) “Submersible lands,” except as provided in ORS 274.705 means lands lying between the line of ordinary high water and the line of ordinary low water of all navigable waters ...whether such waters or lands are tidal or nontidal. [1967 c.421 s.98 and 1967 c.616 s.13; 1969 c.594 s.31; 1991 c.217 s.3]
"very interesting indeed"

Okay, I'm putting the whip down and will bury the horse.

Oh! Yeah, it seems I was born and raised here.

OneLastCast

[Bubzilla]

Onelastcast,

OK, I'm going to violate my own promise to myself to not post on this topic again. I only have this to say: good luck with your take on the applicability of those statutes. Seriously, good luck. Wish you nothing but the best. Only two-hundred years of constitutional law would have to be overturned for them to work as you suggest, but that's not impossible. I mean humans walked on the Moon once, so anything is possible, right?

[OneLastCast]

Bubzilla:

Wires are crossed some where. Misunderstandings abound. We are both holding to what we think we are saying but the message isn't transfering. My intent was not to anger anyone...just to get rid of generalizations. Maybe to you I was creating more?? And maybe to me you were.

It will work out, and the courts will uphold the
Sandy decision. That I am not disputing.

OneLastCast

[Bubzilla]

Onelastcast,

You're absolutely right, and I'd like to apologize for my behavior. This is a wonderful forum, and I am embarrassed that I wasn't more curteous. I guess I shouldn't post on the run; although, that's no excuse.

Hope you're having a good steelhead season. I haven't got out for a few weeks, but have managed to work in a day tomorrow--I'm so excited I could wet my pants.

Again, no hard feelings on this end. And I do appreciate your point.

[wiser]

Thanks guys. That was fun. All's well that ends well.