Trespass arrest threat N.F. of Alsea

[Scruffy Bearded Varmint]

A few weeks back a steelheader had a confrontation along the North Fork of The Alsea with a property owner. The owner threatened to have th angler cited for trespass. The angler said to call the sheriff and he would meet the deputy at the parking lot, which he did. After explaining his side and giving the officer the CORR Brochure, the officer took the anglers information but did not issue a citation.

ANWS researced the incident further and today an ANWS spokrdmsn faxed me a copy of the deed to the property where the incident occured. I thought you might find a portion of that deed interesting. Exhibit A, Section 6 reads as follows:

........
Exhibit "A"
SUBJECT TO:

6. Rights of the public and of governmental bodies and the ownership of the State of Oregon in and to that portion of the premises herein described lying below the high water mark on the Alsea River.
........

Once again, a property owner tried to have a recreational river users arrested and/or cited for trespass on land that according to the property owner's deed, the property owner did not have clear title to. The bed and bank of the Alsea River along that particular piece of property clearly belongs to the State.

This does not mean that everyone reading the IFish board should go out and challenge this particular landowner. I post this only as a way to reinforce our drive to get legislation passed that clearly recognizes our right to use our public waterways for recreation without threats, harassment, or intimidation from upland property owners.

I'm no lawyer nor does CORR provide legal advice. If you do choose a confrontational approach, you are on your own and will need to hire a good lawyer to help you with your case.

[ 03-11-2004, 09:13 AM: Message edited by: Scruffy Bearded Varmint ]

[Amahnee]

OK. Say I'm on the ****** river coming through the ***** Hole and I want to drop my anchor, the land owner tells me "Just keep right on a goin, don't even think about it." [img]graemlins/icon_argue.gif[/img] Can I tell him to blow it out his you know what? I've had this happen twice to me. Once on the Wilson, once on the Trask. Both times I didn't challenge it and just moved on. But nowadays I'm more likely to just drop my anchor. [img]graemlins/berry.gif[/img] I could use some input.

[AlseaAssassin]

I wonder if that law only works on the mainstem of the Alsea or the NF? I was told the mainstem is designated as navigable which would mean you could go below the high water mark but that the NF was not declared navigable and the landowner owned out to the middle of the channel. Thanks for the information! :smile:

[Fish_N_Russ]

What is CORR?

I wonder if that wording in that particular deed is specific for that property....or all properties? or just some?

[Scruffy Bearded Varmint]

Amahnee,

Before dropping anchor, find out the landowner's address then go to the court house and look at the deed. If the language is there, you have a better case. And remember, regardless of what the deed says, you may still get cited for trespass.

Also familiarize yourself with the Oregon laws and statutues governing this issue. You can learn a ton at the Division of State Lands web site ( http://statelands.dsl.state.or.us/navigintro.htm ) and at the National Organization for Rivers web site ( www.nors.org ).

AlseaAssasain,

The reported incident occured on the North Fork of the Alsea.

Fish_N_Russ,

CORR stands for Coalition for Oregon River Rights, a grassroots organization that formed as a result of some really nasty legislation introduced to take away our right to use some of Oregon's Rivers. The group is currently putting together a web site at www.riverrights.org . There is some information posted already and we hope to have more in the coming weeks. I volunteered to be the groups interim executive director and they asked me to help them with marketing on a project-by-project basis for which I am compensated but not by much.

As for the language on the deeds, it varies. I have seen deeds from the Trask, Sandy, John Day, South Santiam, and now the Alsea with similar language in them. I also know that it can vary from property to property along each stream. We simply cannot assume that because it says it in one deed, it will say it in all deeds along a particular stream.

That is why CORR formed. The way it is now, the landowners, the law enforcement people, and the recreational river users simple do not know the rules that apply. We believe that all navigable rivers in Oregon belong to the public. If you want to know why, search for a thread on Ifish titled "Oregon Law Sez..." and go to some of the links provided. You can make up your own mind on this issue from there.

[ 03-11-2004, 09:16 AM: Message edited by: Scruffy Bearded Varmint ]

[Amahnee]

SVB:
Thanks for the info!

[Scruffy Bearded Varmint]

CORR is really just getting started. If anyone wants to help us win on this please send me an email through the Ifish board. We are looking for people that can arrange meetings with their Senator or Representative so we can let them know what the law is on this.

The law is clearly on the public's side on the issue of recreational river use. I am amazed at how quickly our State Representatives and Senators just believe what the paid lobbyists tells them about issues like this. We have already met with one Representative and after she heard what we had to say, she did a 180 degree reverse on her position.

We are also looking for volunteers to hand out our informational brochure to the people they meet along Oregon's waterways. And of course, we also need donnations. This will not be a cheap date. We figure we need a lot of money for printing, gasoline, postage, etc. before we win this thing, and rest assured, we will win.

[OneLastCast]

The language often varies in the deeds due to the inclusion of the wording by title companies who will not "warrant" or guarantee that the land below the OHW is not owned by the state. It does not necessarily imply that the state owns the land it is just that the state may instigate a future claim and the Title company does not want to get stuck with the liability. Search the chain of title of that property back and you will likely find a deed without those disclaimers.

[Amahnee]

I once worked in a printing plant where on the wall was a sign that read "The price of non-conformance is too high." Scruffy Bearded Varmint & One Last Cast I think i'm with you guy's on this one. I need a new purppose in my life, I'm bored! Really bored! Send me a PM on this stuff and I'll see if I can be of any help to the cause. I can't get in line behind everyone else and be satisfied. There is more to life than this, right?

[Ty]

Nice work SBV as always!! I talked to an OSP officer the other day and here is the official comment from OSP on the law........

NO COMMENT!!!! He said that DSL is trying to sort things out and to always ask for the land owners permission if possible even if floating the river. He also said that "unofficially" that u should be ok to the high water mark on most streams on the coast. I got the impression that they are trying to keep the peace adn that unless people where blatantly tresspasing above the high water mark no citation would be issued... Although I am sure that I may be ver very wrong on this one fer sure. [img]graemlins/1zhelp.gif[/img] :whazzup: [img]graemlins/1zhelp.gif[/img]

[Twitchs_Tackle]

OSP is not allowed to give legal advice, hence the No Comment. :grin:

I'd be leary of the NF, while some could argue that the main stem is Navigable, if the NF isn't, then landowners own to center channel, not center of the river, center channel. Personally, I'm staying off such waters.

[Amahnee]

Does anyone have any hair on their backsides anymore? Are we all politically correct? Or all of us going to the slaughter willingly? What is this country coming too? Why don't we all just give up? and die.

Originally posted by Twitchs_Tackle:
I'd be leary of the NF, while some could argue that the main stem is Navigable, if the NF isn't, then landowners own to center channel, not center of the river, center channel. Personally, I'm staying off such waters.

<font size="2" face="verdana,arial,helvetica">Good advice Twitch! I am familiar with the NF Alsea and the landowners there definately are hard core about what they perceive as their landowner rights.
Some definately do have legitimate complaints! The ANWS is trying to find a common ground with these folks but there are years of bad feelings involved.The ANWS advises against confrontations with landowners on this little stream which is too small for driftboats and you cannot fish from any floating device such as pontoons or float tubes. The areas where you are not allowed to fish are clearly marked.
There is also areas on the NF where some anglers insist on driving their vehicles down the dirt road to get to the fishing area which of course turns to mud when it rains. The road is now heavily rutted and there could be a closure of that area in the futire if this practice isn't stopped.

[Amahnee]

I gotta say that I don't know diddly about the N.F. of the Alsea. So you guy's decide what's right. I just know based on past experience that I'm as the movie saying goes if you are old enough to remember, "I'm mad as hell and not going to take it anymore!" Can I say that on Ifish? I don't mean to be rude, I just gotta stand up for ourselves.

[Erich_870]

I did some research into the subject of navigable rivers last year when I was scouting good duck hunting spots on the Sprague River over here in Klamath County. I talked to a gentleman from the State to see if the Sprague had been classified as Non-Navigable or Navigable so I would know if I could float down it. He sent me a whole packet of info, which should include his name, I'll check when I get home... But the list said that the Sprague was still undecided. Which he explained meant that it logically should be regarded as “Navigable” until it is found other wise. I guess there is a whole mess of paper work that has to be filled out to bring it in front of the board that decides Navigability looking at such things as past uses and flow size…. Again, sorry for being so vague, I need to refresh my reading. Anyway, he said that he remembers a case against two duck hunters from OIT that were cited for trespassing and they claimed that were in the water at the time the landowner found them, thus below the high water line. Well for whatever reason, they were indeed cited. One of the guys was graduating, so he just paid the fine while the other fought it and won.

The advice, off the record of course, was that I should be fine and that as long as I didn't stray above the high water line or inflame a situation I shouldn't be legally trespassing. I never did float down this season, just too busy, but some of my buddies did and didn't have any trouble. I know its not for fishing, but its the same thing. It might also interest you to know that if the high water line on your property moves, i.e. erodes, you loose that property. Unless there is a sudden/drastic change, like overnight, plan on having a new property line.

[Quasimodo the fish killer]

“Oregon Revised Statute 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.”

The only way a person can become vested in, or own public trust land is if the Oregon State Legislature passes a bill to allow the title to transfer. The bill must contain clear and specific wording. The transfer can only be for a specified parcel of land, and the transfer must be for a specific purpose such as constructing wharves and docks to improve navigation. The State did transfer some tidelands to private ownership, however, the law that allowed such transfers was repealed in the 1800’s.


I dont remember where I got this from but here is all I know about the subject I carry a copy of it in my boat incase someone wants to be a problem.

Quasi

.

[Nestookher]

There are issues on three rivers like this, fork of the Nestucca. So it may be time to get it straight, and Compromise with land owners.

[SandySteel]

I was reading in the Oregonian how much of the legislature is going to see huge turnover due to members deciding not to run again. This lends itself to paid lobbyists gaining the upper hand and running the show because new legislators don't know the word on the street regarding issues they are not familiar with. If the new legislator doesn't know better then what will happen is that the ones with their lips to the legislator's ears get what they want.

Please communicate with your legislators during the next session to make it clear how we feel about this issue.

[Amahnee]

OK so if I'm floating through and decide to drop my anchor and fish a bit and somebody tells me to keep going, I should? I'm not going ashore, I'm not disrespectful to life or property, I am merely trying to collect my dinner and someone tells me to keep on movin because he thinks he owns the ground to the middle of the river that I should just say Oh, OK. I think not. Compromise is something that has tried to take place &lt;partisan inflammation removed&gt; I like to stay friends with everyone, I believe in respect, but I won't be bullied. That happened enough in grade school. [img]graemlins/berry.gif[/img]

[ 03-09-2004, 11:17 PM: Message edited by: crabbait ]

[NetProfit]

Why can some people fish the their property and we can't. We pay for those fish too.

[LiveBait]

Hey SandySteel,
I think you have brought up an important point that many people don't realize. I have a BS degree in Political Science and have worked at the state legislature. These new legislators are often green and more susceptable to lobyists then the veterans. Thats why term limits within our state legislature is a bad thing. Thats is also why "we the people" need our voice to be heard louder then ever before. I also agree with Amahnee. In this case compromising with land owners would be a huge loss for recreational river users. If the steam is designated navigable I plan on being able to drift down it. I believe in being respectful of people and their property, and staying below the high water mark. I'll be polite and courous, but I will not be bullied by land owners when it comes to floating down navigable streams. Just my two cents. Thanks..

[3riversBob]

What is the fine for trespass? At one time I heard it was as low as $15 but I'm sure that has changed. Just kinda curious, cause if it were only $15 it might be worth the citation to fish a good hole.

Bob

[Amahnee]

3RB:

I'm not real sure, but I think you may be missing a couple of zero's behind the 15?

[SandySteel]

3riversBob OK, there is no excuse for trespassing regardless the cost. Don't do it, you only give the other side amunition.

NetProfit: regardless who has right to the fish if you are on private property you must do as the landowners says. However, if you are below the mean high water mark on a navigable stream then you do have a right to fish there. The test is not who owns the fish but rather who owns the land.

LiveBait... so have you found a way to put your poli sci degree to work for you? I sure haven't.... wait... I guess I do teach social studies... hmmm 7th graders don't seem to quite get administrative organization and behavior... wonder why.

[BUGLEMAN]

I have the forms for filing a petition with the DSL for a Nav study. The State thought they would pull a fast one with the process they have set up but plainly I could file a petition and so could anyone. Weather it is refused or not it doesn't matter. The petition documents conflicts. The users are the ones who have nothing to loose. The law and precidence is clearly on our side. What if many of us users filed petitions and flooded the process. That would show our elected leaders that the current process is archaic and needs to be revised. It would also create a massive amount of ammunition for a petition drive or even lobbying our elected officials. :grin: I think my idea has potential. Thoughts and constructive comments please.

[BUGLEMAN]

[ 03-11-2004, 09:17 AM: Message edited by: BUGLEMAN ]

[ 03-11-2004, 09:23 AM: Message edited by: Stew ]

[NetProfit]

Fine, just start releasing smolts at fall cr hatchery,like they use to do ,if they want to let some people fish and alot of people not get to. make it fair for every one. besides fall cr has way better holes to fish and no one will mess with you ,plus the fish are closer to tidewater so their fresher( not spitting eggs)

[MuleyBuck]

Stop you whining fellas, The Alsea has plenty of areas for people to fish and a lot of landowners will give you permission if you ask. The Northfork is not floatable, thus making the landowners the owners of the river bed. We are not talking about a large amount of land that you can not access here. And if you could access it, how is that going to make the fishing better for you? It would be just as crowded there as anywhere else. Give it a rest, learn to fish better and you will catch more, accessing more land is not going to increase your fish catching!

[Oregonh2o]

How many of you are aware that Scruffy Bearded Varmit is the PAID executive director of CORR?

By definition this seems very close to spamming the board. This is why I have questioned his constant posting to iFish in the past. I don't necessarily agree or disagree with the overall message, just the messenger’s motives. I am also not saying that SBV is not passionate about what he represents; I just wonder how appropriate it is for him to get paid for posting on iFish.


-B

[DanS]

How many of you are aware that Scruffy Bearded Varmit is the PAID executive director of CORR?

<font size="2" face="verdana,arial,helvetica">So? He keeps us informed, that's all I need to know.

[BUGLEMAN]

[ 03-11-2004, 09:21 AM: Message edited by: BUGLEMAN ]

[BUGLEMAN]

Originally posted by Oregonh2o:
How many of you are aware that Scruffy Bearded Varmit is the PAID executive director of CORR?

By definition this seems very close to spamming the board. This is why I have questioned his constant posting to iFish in the past. I don't necessarily agree or disagree with the overall message, just the messenger’s motives. I am also not saying that SBV is not passionate about what he represents; I just wonder how appropriate it is for him to get paid for posting on iFish.


-B

<font size="2" face="verdana,arial,helvetica">What is SBV trying to sell? If SBV is to not talk about certain issues because of who he works for than that means that gill netters can't talk about fishing because of their motives, ODFW biologists can't talk about fishing because of their motives and ODF geologists can't talk about landslides because of their motives either. I realize that free speech on ifish is moderated but that is going too far.

[ 03-10-2004, 06:50 PM: Message edited by: BUGLEMAN ]

[ 03-11-2004, 09:21 AM: Message edited by: Stew ]

[BUGLEMAN]

[ 03-11-2004, 09:22 AM: Message edited by: BUGLEMAN ]

Kevin I truly hope your efforts bear fruit
Good luck

[ 03-11-2004, 09:22 AM: Message edited by: Stew ]

[BUGLEMAN]

[ 03-11-2004, 09:20 AM: Message edited by: BUGLEMAN ]

[Scruffy Bearded Varmint]

Oregonh2o wrote:

How many of you are aware that Scruffy Bearded Varmit is the PAID executive director of CORR?

By definition this seems very close to spamming the board. This is why I have questioned his constant posting to iFish in the past. I don't necessarily agree or disagree with the overall message, just the messenger’s motives. I am also not saying that SBV is not passionate about what he represents; I just wonder how appropriate it is for him to get paid for posting on iFish.

<font size="2" face="verdana,arial,helvetica">While I appreciate the spin that Oregonh2o attempted to put on my relationship with CORR, his statement is not exactly correct.

First off let me say that I was posting on Ifish regarding the public's right to use our waterways for recreation long before the formation of CORR. In fact, my involvement with this issue began on April 9th, 2003.

Second, I am not an employee of CORR. When a group of concerned anglers decided to form an organization to stave off the constant attacks on the public's right to use Oregon's waterways for recreation, I was asked to attend their first organizational meeting, which I did. CORR was incorporated on November 10, 2003. I am listed among the initial board, however, I did not participate in the formation of the corporation. I was invited to attend the January Board of Directors meeting, which I did. I was asked if I would become a paid staff member. I declined. I also declined to be a voting member of the Board of Directors. I did agree to work as an independent contractor to develop the marketing tools CORR needs to educate the public and the politicians about this issue. Basically, I agreed to lend CORR's name to much of the work I was already doing. The CORR board agreed to pay me on a project-by-project basis. At this time, no contract has been signed so officially, I am still a volunteer for CORR. I was compensated for work I did on their website and for creating their brochure. The scope of my billable activity does not extend to posting on Ifish.

The issue I post on is as important to anglers as the hatchery issues, in-stream water rights, and changes in the fishing regulations. Ask yourself this; what good does it do to have fish if you have no place left to go fishing?

If you're like me, you have a son or daughter that loves to fish, and someday, you may have grandchildren that will take up the sport. Landowners need to realize that this is not about them. It is about the right of all Oregonians to use their waterways for legitimate recreation activities.

Muley Buck wrote:

The Northfork is not floatable, thus making the landowners the owners of the river bed.

<font size="2" face="verdana,arial,helvetica">The public's right to use the streambed below the high water mark is not dependent on land ownership nor a state declaration of navigability. The Supreme Court has ruled that land beneath a navigable stream comes with an attached servitude that cannot be deeded away by the state. That servitude includes the right of the public to use the stream for navigation among other recreation activities historically associated with water.

The Oregon State Supreme Court ruled that navigation for recreational purposes does represent a form of commerce. The following came from a recreational boating guide website that rates various streams throughout the United States for purposes of recreational navigability:

NF Alsea
Class: I
Section: NF Bridge to Mill Creek Park
State(s): Oregon
Drainage: Alsea
Region: North Coast
Gauge Location: Calculation
Guide Book: Soggy Sneakers Run #: 18 Page #: 48
Season: Nov-Apr
Length: 5 miles
Gradient: 15 feet per mile
Elevation Lost: 75 feet
Scenery: forest
Remoteness: Not Remote
Character: Continous
Low Flow: 400 CFS
High Flow: 1500 CFS
Medium Flow: 700 CFS
View : Database
Calculation: 0.194065 Alsea.Oregon.Alsea.Tidewater(flow) * 9.517 -

By Federal standards, it appears the NF of the Alsea not only is navigable, but seems to have been navigated fairly recently.

Bugleman wrote:

I have the forms for filing a petition with the DSL for a Nav study.

<font size="2" face="verdana,arial,helvetica">It is important to note that the issue of navigability is a Federal one, not a state one. The courts look to historical use, the potential for historical use, and both current and past practices. Even if the State declares the NF of the Alsea non-navigable, the odds of that ruling being overturned in Federal Court appear extremely good. Riverfront property owners bought land with a legal encumbrance; the public's right to use the river.

The use of the Alsea for commercial purposes from the town of Alsea to tidewater is well established beginning in the 1870's. As it appears, so is the use of North Fork for navigation by a traditional watercraft in recent times.

I think that the harder the landowners push the recreational river users, the harder the recreational river users will push back. I did an informal survey regarding this issue at the Portland Sportsman's show last month. Every person I asked about this over the age of sixty said basically the same thing. As long as you stay below the high water line, you're fine to be there. The 40-60 gave a mixed response The younger people simply did not know. I believe the reason for this is that in the past 30 years the Oregon State Legislature has made a real mess of this issue.

The number of instances where a landowner threatened an angler with arrest is growing at an alarming rate. This will lead to an increase in the number of requests for navigability studies. That is currently the only path the public has of clarifying their rights on the river. If the state does the study and documents that a boat can float a stream, the state may have no choice but to exercise a title claim to the land beneath the stream. That is what happened on the Sandy.

I believe this is the real question; are the landowners willing to accept an official navigability study that in all likelihood will lead to the loss of land (By the way, the United States Supreme Court does not view this as a taking so the state is not required to compensate the landowner.), or would the landowner prefer to work with CORR to arrive at a solution that protects the recreation user's right to use a stream below the high water mark (This has been upheld in the Oregon State Supreme Court and the U.S. Supreme Court.) while at the same time putting some real teeth into the laws that protect private property rights above the high water mark?

By the way, I own property on a stream about the same size as the NF of the Alsea. I have dealt with trash, poopy diapers, syringes used condoms, broken glass, illegal fires, and people destroying the vegetation. On the other side I have a city street. I have dealt with cat crap, dog poop, beer cans, damage to my flower beds, and vandalism. I do not have a right to keep people from using the street in front of my house. I do not have a right to keep people from using the stream behind my house. That is the law as I understand it. I knew this when I bought the property. If landowners along other streams did not know this about their property, I suggest that they have a heart to heart talk with the real estate agent regarding full disclosure rules. A lot of land in Oregon has been peddled under the banner of exclusive streamside property.

It might be worth mentioning that the strongest opponents to the river access issue are the following.
Oregon Cattlemans Association
Oregon Farm Bureau
Oregon Real Estate Association
State Sen. Ted Ferroli
SBV is right! The state lawmakers have turned this into a gigantic mess that will not be easily sorted out BUT it will definately be sorted one way or another and sooner rather than later.
Thanks SBV for your info on this

[Ty]

The NF is very floatable and any one can float it...... However.... no fishing from a floating device..... meaning where u stop to fish on the bank u should check with the land owner or fish in area's that u know are ok...

I have floated this section of river and it is very accecable...

[ 03-11-2004, 10:22 AM: Message edited by: Ty ]

[garyk]

This board's primarily about information of interest to fisherman, and that is EXACTLY what SBV's posts are.

This sort of information and situational analysis that you will not find anywhere's else is exactly what makes Ifish so valuable. I also appreciate hearing about the work that Northwest Steelheaders and other organizations are doing to preserve our right to access public resources/

The only thing of spam-like worthlessness is the derogatory comments that someone a few posts back made.

[Scruffy Bearded Varmint]

Finally Found It! Sorry it took so long to get back to you on this. I remembered reading about it so I went back and checked for sure.

Netprofit wrote:

Why can some people fish the their property and we can't. We pay for those fish too

<font size="2" face="verdana,arial,helvetica">While the decision in Monrove V.Withycombe involved a licensed gillnetting operation, it appears the ruling is quite clear. Private fisheries on navigable waterways in Oregon are illegal.

This presents an interesting challenge to property owners. "How can I let my buddies fish and still keep the riff-raff off "my river?"

This also further clarifies why Senator Ted Ferrioli was so anxious to keep the Organizational Camp clause in Senate Bill 293. It was the clause the gave Organizational Camps the authority to keep anyone from fishing, anchoring or wading on a stream flowing through camp property. With that clause, private fishing clubs under the guise of "organizational camps" could have tied up miles of rivers in Oregon.

[ 03-11-2004, 11:30 AM: Message edited by: Scruffy Bearded Varmint ]

[NetProfit]

You know to me i don't care if they don't let any one fish. I have many other places and rivers to fish,but i thank it's not right that they get to pick and choose some people,are they charging people to fish,you take away the fish that we pay for and that land is not worth squat.

[willie17]

I GUESS I UNDERSTAND BEING A LANDOWNER AND HAVING PEOPLE COME IN AND FISH AND HUNT AND THEN LEAVE GATES OPEN SMASH FENCES AND LEAVE GARBAGE ALL OVER BUT THAT IS THE OWNERS PROBLEM. I GUESS EVEN IF THE LANDOWNER HAS THOUGHT THAT THEY OWN THE LAND AND THEN YOU GO AND SHOW THEY DON'T AND THAT YOU CAN FISH THERE I WOULD HOPE THEN YOU WOULD ALSO PICK UP ANY TRASH THAT IS LEFT BUT I KNOW ALL THE PEOPLE DO THAT ANYWAY. I GUESS WHAT I'M SAYING IS YOU WANT TO PUSH THE ENVELOPE TO FISH SOMEWHERE AND THUMB YOUR NOSE AT PEOPLE WHO FOR YEARS HAVE TAKEN CARE OF THAT PROPERTY. IF YOU OPEN SOME AREAS BE READY TO TAKE CARE OF THE PROPERTY THAT YOU OPEN. YOU CLEAN IT YOU TAKE CARE OF IT.

THATS MY TWO CENTS

[Scruffy Bearded Varmint]

Quasimodo the fish killer,

I believe this is http://statelands.dsl.state.or.us/navigintro.htm the web site you may have seen. It is a wealth of information regarding the public's right to use Oregon's waterways.

The date a deed was issued seems to have no bearing on the public's right to use the waterway. The land beneath navigable waters was held in public trust by the Federal Government from the signing of the United States Constitution to the time of statehood. With the Oregon Admissions Act, the land beneath all navigable waterways was transferred to the State of Oregon. Prior to that, the Federal Government could neither sell nor grant away (by the Homestead Act for example.) that land except through a very specific act of congress for a very specific purpose such as a military reservation. With few exceptions, that simple never happened in the Oregon Territory.

There are some lands in California, Florida, Arizona and New Mexico that fell under the old Spainish and Mexican Land Grants. One of the criteria for their statehood as I understand it, was the United States had to recognize the validity of those grants. It is interesting to note that with few exceptions both Spain and Mexico followed the same public trust doctrine that is found in the United States,as did France.

Many deeds do say a property owner owns a streambed on a navibable waterway. Even if valid, that ownership remains subservient to the public's right to use the stream and the land beneath it for angling and navigation. I can post more detail from an Oregon State Supreme Court decision regarding this if you would like, but I warn you, it may be a long post. Just say the word and I will.

If ownership could not occur, then why were those deeds worded as they were? Back before GPS surveyers marked boundaries with a physical location. For the most part they used a pile of rocks or a large boulder with a mark chisled on it. Sometimes they even used a tree! At least that is what I have read.

Streams were and are dynmaic. They constantly move back and forth across the riparian zone. Consequently, the easiest way to use a stream as a boundary was to say to the "center of the stream" which is what they did. That way, property owners would not always be argueing about whoe owned to where as the stream moved from year to year. Everyone could always agree on where the middle of a stream was.

Back when Oregon became a state, everyone had common knowledge regarding public navigation and fishing rights. It probably never occurred to anyone to include that language on the deeds. I believe that oversight has created the problem we have today. I suspect Many Title Insurance Companies agree so now they insist that that language be added to streamside deeds. Remember, for the most part it has only been in the past thirty years that the Oregon State Legislature has really screwed this up for everyone concerned.

[Scruffy Bearded Varmint]

Willie 17,

Let me try to address your post on a line item basis. You appear to have made some assumptions about what we are talking about that are simply not true.

"I GUESS I UNDERSTAND BEING A LANDOWNER AND HAVING PEOPLE COME IN AND FISH AND HUNT AND THEN LEAVE GATES OPEN SMASH FENCES AND LEAVE GARBAGE ALL OVER BUT THAT IS THE OWNERS PROBLEM." Absolute not! Under no circumstance do I, nor anyone else I know connected with this issue, believe for one second that a landowner has to tolerate willful trespass across private property to get to a stream. Hunting, (with the exception of perhaps ducks along the waterway) is not even part of the discussion so I have no idea why you brought it up.

I GUESS EVEN IF THE LANDOWNER HAS THOUGHT THAT THEY OWN THE LAND AND THEN YOU GO AND SHOW THEY DON'T AND THAT YOU CAN FISH THERE I WOULD HOPE THEN YOU WOULD ALSO PICK UP ANY TRASH THAT IS LEFT BUT I KNOW ALL THE PEOPLE DO THAT ANYWAY. As an angler, I am rarely without a few trash bags in my vest. I make a good faith effort to always leave an area cleaner than I found it. I encourage other to do the same. Two weekends ago, I volunteered to help plant 500 trees along a riparian zone to improve fish habitat. I do not know the property owner and the land we planted on was, is, and always will be private.

The real issue you raise is not one of the public's use of a navigable waterway but one of enforcement of existing laws. While I and others in CORR have very specific ideas regarding ways to improve this situation, they are not central to the task at hand.

Right now, if a deed says the landowner owns the land, they do according to state law. There are only two ways they can loose title to that land. One is through a Oregon State Navigability Study and Navigability declaration. It was landowners that pushed through the legislation to create that mess, not recreationalists. The second way is through litigation. If a landowner pushes the trespass issue to the point of arrest or citation, the defendent can then appeal through the court systems. In virtually every case I am aware of the landowner has lost. The John Day River Case two years ago is a prime example. The landowner pushed the issue. A judge wound up declaring the stretch of river on his property navigable under federal guidelines, and therefore public property. I understand the case is still under appeal meanwhile the State Land Board instigated a State Navigability Study to resolve the entire John Day River conflicgt issue. Frankly, as a landowner, I'm not particularly found of either one. Are you?

I GUESS WHAT I'M SAYING IS YOU WANT TO PUSH THE ENVELOPE TO FISH SOMEWHERE AND THUMB YOUR NOSE AT PEOPLE WHO FOR YEARS HAVE TAKEN CARE OF THAT PROPERTY.Nope, not at all. In fact, I don't even own a boat. I am just tired of a handful of landowners trying to take away a public right that has been recognized by the Ancient Greeks, Roman Law, the Magan Charta, the United States Constitution, and the Oregon State Constitution. I am as they say, "mad as heck and won't stand for it a moment longer." Landowners brought this on. Not the recreational river users.

IF YOU OPEN SOME AREAS BE READY TO TAKE CARE OF THE PROPERTY THAT YOU OPEN. YOU CLEAN IT YOU TAKE CARE OF IT. On this we agree. Every angler should practice the pack it in, pack it out philosophy, however, that does not have anything to do with public rights on navigable waterways. I would love nothing more than to work with landowners to come up with a way to provide tougher enforcement restrictions to protect upland property. After all, I am an upland property owner on a stream that has seem more than its fair share of public abuse.

Most folks are unaware that fines for littering along a stream are far greater than fines for littering along a highway. There are also strict penalties for harassing livestock, trespassing on private property, vandalism, and starting illegal fires. The problem is not that the laws are not in place, but that there is no way for the landowner to identify violators and report them to the authorities. As I said before, I along with others do have some specific thoughts on how to take care of this, however, we will not bring them into this equation. They will only muddy the water.

[Quasimodo the fish killer]

thanks SBV like I said I was just going off what I could remember. I thought i had seen something on their site about deeds that were issued prior to statehood but dont know for sure.

anyway seems the info is clear enough to me I dont understand why there is such a problem.

it seems to me that oregons own documents clearly state that the water and the land below the water belongs to the public.

I guess I dont see what all the mess is about since it is stated as clearly as it is on ownership of water and river beds.

the state needs to step up to the plate and make a clear ruling in favor of public access.

I also think that any senator, congresman , represenitive, that works against the public best interest should be jailed.

the lobby groups have way to much control over things. i do not think it should be legal to accept special interst money or profit from them in any way.

we elect those officials to protect and better the interests of the public and they should be accountable if they put the interest of big business before the interest of the public

Quasi.

.

[Quasimodo the fish killer]

Originally posted by MuleyBuck:
The Northfork is not floatable, thus making the landowners the owners of the river bed.

<font size="2" face="verdana,arial,helvetica">Am I wrong in thinking that weather or not a river is navagatable or not has nothing to do with who owns the land below the river?

I found an oregon state gov site once cant remember where and lost the book mark in a terrible computing accident ( never drink and compute it can be hazardous to your computer [img]graemlins/dork.gif[/img] ) but from what I made of the water rights literature it stated that when oregon became a state that the federal goverment gave rights to every stream and river no matter how big they were to the state of oregon and the public right to use was guarenteed. and unless the deed to the property was made before 1858? when the state was accepted to the union no deeds can include the river bottom in them. some deeds were made prior to our state hood and did indeed include the river bottom in them. in these cases the original land owners or direct decendants had to be in ownership of the land for that deed to be legit if the land was sold or given to someone other then a direct decendant the new deed would not include the river bottom. I am sure there are more knowlegable people then I on this issue I am just going by what I can remember from that site.

I know that knowone can do anything to the river bottom with out having the right permits and the state has the right to refuse to let you do anything at all if they choose to do so no matter what size the creek is.

a while back I remember seeing something about some peoplein southern oregon that dug out a creek bed on their property and dammed up a creek so they could make their own lake so they could use their ski's and personal water craft right on their own property. the state stepped in tore down their dam and then fined them for the damages to the river bottom. now to me that shows proof that the water ways in the state belong to the state of oregon and the public.

I could be wrong on what I have stated here if so please forgive me like I said I am doing this from memory.

Quasi.

.

[BUGLEMAN]

Quaisimodo you bring up an interesting point and a complex one. I might try to add from my civil background that the state has definate interest and control of the water itself, fish and wildlife habitat, wetlands etc. So in the case that you have mentioned above, could have been influenced by a number of factors not just title.

None the less, you have a good argument and I am currious to hear how others would interperate it.