Remind me again!!

[Eric W.]

Fishing the Kilchis river late last week. Did very well by the way. Any way. Walked down from logging bridge (public access), walked down in the river. Waders on and all. Walked down river past several diary bridges. On Friday, a gentleman in a pickup, asked us where our boat was. We told him we walked down from public access. He said we had no right to be in the river. He said he owned the river, and the rocks under it. And told us to leave "now". Not wanting to start trouble, we left. As we proceeded to walk back up river, we came to another "dairl bridge". Another truck pulled up on the bridge. A gentleman got out this time with a RIFLE in hand and in very clear veiw. He said river was boat only and we better get off his property. Since he had a very clear shot, and we were leaving anyway. We said we were leaving. We continued to walk out, the same way we walked in. We did not cross fences, see No tresspass signs on river. We did not walk in the middle of the river, but enough to get our feet wet, and by IN the water. Defintely below the flood water mark.

It is or was my undersatnding that below mean flood water mark is public access. So on our way out of town we stopped by the county sherrifs to make sure we were clear on our rights. The local sheriff - wasn't to sure on the whole subject, though he agreed that a gun was not called for. The local state guy was there, and was consulted, and he said we did have no rights to walk that river. Only certain rivers are walkable. I am so confused.

If I am wrong I want to know it. I want to follow the rules. He said that it is the fishermans respoonsiblilty to know these rules. We asked where we could get educated on these rules. We got kind of a fuzzy answer.

So the long of the short. What are my and what are the farms rights? And where do I get the info on this? And what do I do if I do have the right to be there and the land owner disagrees?

Please help me clarify this. If it is unlawful to walk down, then @ public acces it should state that.

Confused!

Sleepguy

The navigability of the Kilchis River has not been determined so the stream access is not clear. It's one of the rivers that is being looked at for a navigability study.
You did the right thing in avoiding a confrontation.
This is a hot topic among landowners. I talked to a gentleman who owns property along the Alsea river and he said his deed states that he owns the river bed!The whole issue is going to have to be settled in court like it was for the Sandy River. One thing is clear though and that's as responsible anglers we MUST be good stewards of the resource! Always leave the bank area cleaner that you found it.

[ 11-11-2002, 01:04 AM: Message edited by: Shane S ]

[TheRogue]

Sadly, it will take a situation such as yours to bring this problem out where it belongs. The John Day case will help get this in the public's eye, so we can pursue this problem.

Except for special situations such as the Sandy, where huge $$ were involved, I doubt that the state will WILLINGLY make a determination of navigability on any more rivers. UNLESS a person or organization (NWS, thank you) sues the state to perform a navigability study, and the judge goes along with it.

I talked to a gentleman who owns property along the Alsea river and he said his deed states that he owns the river bed!

<font size="2" face="verdana,arial,helv">That's too bad.....but you can't own something that was never yours to own, in this case, the bed of the river....IF it is ruled navigable. Remember how navigability works, if it's ruled navigable today, then, by law, it's been that way since statehood. Therefore, there was NEVER any private ownership of the bed!

Personally, I feel that if it get's regular drift boat traffic, it should be considered navigable. Oregon has dropped the ball for years on this, and now it's time to pay the piper!!

TR

[ 11-11-2002, 08:18 AM: Message edited by: TheRogue ]

[cully]

Seems like you made a mistake in being where you were, at least until it's ruled on. That would really be confusing to me too. You definitly did the right thing in picking up and leaving. On the showing of a gun, completly out of line. What you encountered is a backwooded jerk. Not releated to the common american. A common american would have asked you polietly to leave and in doing so would have been informitive. Folks who need to pack a gun to relate a messsage listen up, You pull that crap with me and as I walk up the bank and we exchange howdy do's and the situation is right, you'll never have a chance to use your crutch. Put the gun away and save it for the day you'll need it. A fisherman walking a bank is not a threat to anyone. He may be in the wrong place and if so tell him like a man. This is not the wild wild west anymore. A simple howdy and sorry guys your in the wrong place would have done.

[ 11-11-2002, 08:51 AM: Message edited by: cully ]

[rags]

If the land owner got out of his vehicle with "rifle in hand" why didn't the local police do something about this? I agree that you were in the wrong walking the river and being somewhere you shouldn't be but that doesn't give a landowner the right to carry a gun. I think I would want answers from the local authorities on this. Someday this guy is going to confront the wrong person.

[Thumper]

He likely has the right to carry it openly. "Brandishing" it is another issue. And I'm not sure what the difference is.

[DanS]

Sounds like your typical "I don't care what the law is, it's MY river" landowner. Go back with a video cam and see if boy genius want to brandish his firearm again. Sooner or later he's going to run into someone who remembers the rule "you don't bring out a firearm unless you intend to USE it".

The funny thing is, if Joe river-bottom owner, keeps up his BS, there WILL be a ruling on the Kilchis navigablility, and he's going to LOSE.

Rags,
The Bill of Rights gives "the land owner" the RIGHT to carry a gun. He can talk to someone with a gun in his hand too. He just can't point it at someone or make threats.

[Hogmaster]

He can hold the rifle all he wants. There is no law against that and in fact there is nothing the police could do about it.

Certainly rude, however, when there were no signs posted to come down so hard about it.

As far as the navigability issue though, it is very tricky. Us fishermen tend to think that if we can get a boat into it it is navigable. But that isn't how the law reads. It makes reference to rivers being navigable many years ago (in the 1800s) and it had to do more with commerce (like logging) than anything to do with how big it is, whether a drift or power boat could get on it etc..

If the river is determined to be non-navigable and a property owner owns both sides, then the property owner indeed owns the bottom as well. That is the claim on the Necanicum for those of you who have been there.

It seems to me what really needs to happen is the first step of determining constitutionally what "navigable" really means. Ideally with a reflection of today's world. Then the issue could be decided. But the lawsuits will come with any definition because some deeds do in fact show ownership of the river bottoms...

[ 11-11-2002, 11:09 AM: Message edited by: Hogmaster ]

[FishaholicAZ]

Howdy... Seems strange to me and quite rude of the land owner to do that.
On another note, went down on the Kilches two ro three years ago and drove up one of those dirt dairy roads and stopped at a bridge. We stopped and looked over and we wanted to fish but weren't sure if we could. A few minutes went by and a gentlemen came down in a truck and asked us what we were doing. We told hime we wanted to fish here and if he knew who we needed to ask. He said it was fine with him as long as we don't block the road or leave a mess. (he lived there) We tried for about a half hour and then left. Maybe if you ask the land owners they will let you. That man seemed nice enough and he even told us where some better spots were if we could get to them.

Another thing is that in Washington, I have never been told I can't fish in a river. I only bank fish and I have walked up many a stream bank and never encountered that from anyone. I don't know if the laws are different in Washington but maybe Oregon should get on the ball and allow us sporties a fair share at river access...

Later.

[TheRogue]

It makes reference to rivers being navigable many years ago (in the 1800s) and it had to do more with commerce (like logging) than anything to do with how big it is, whether a drift or power boat could get on it etc..

<font size="2" face="verdana,arial,helv">That's part of it...but not all. The navigability law also says that if a river MAY be used for commerce, it is considered navigable. Doesn't mean that it has to be!! Also doesn't spell out low water, high water, etc.

Washington did it right, they claimed darn near every stream bed more than a trickle right from statehood. They're much better off than we are now, because of it.

Part of my job has to do with this stuff, it's pretty amazing the different interpretations across the US.

TR

[DanS]

http://www.adventuresports.com/river...s-law-menu.htm

Lots of interesting reading about National; River Law here.

[V. Green]

Oregon Constitution
Article I

Bill of Rights

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]

<font size="2" face="verdana,arial,helv">I could be wrong but I don't see anything in the Oregon State Constitution about navigability of streams. Also no state law can violate the constituion of this state, thus the Federal Constitution is the highest law in the land, followed by US Law, the Stae Constitution, State Laws and then local laws.

In my opinion, if you can float it it belongs to the State of Oregon and all those who lie within its borders. Also any stream that has active guiding would have commerce and would also qualify to be navigable.

You might want to visit some of the following websites to get more info regarding this subject.

http://www.adventuresports.com/river...s-law-menu.htm
http://www.sandysteelheaders.org/
http://www.nwsteelheaders.org/
http://bluebook.state.or.us/state/co...titution01.htm

[ 11-11-2002, 12:01 PM: Message edited by: V. Green ]

[TheRogue]

Personally, I don't want to get in another situation like that, but if you stand your ground, the sheriff is not going to arrest you, because he can't. If he arrests you, you have grounds to sue the sheriff's office for wrongful arrest, and you have grounds to sue the landowner, and since you were arrested, you get a free lawyer to defend you.

<font size="2" face="verdana,arial,helv">Actually, no. Until the state does the navigability study, and makes the declaration of navigability.....it isn't as far as the local sherrif is concerned, he cannot make that call. Therefore, you would be in violation of the law. Just ask the guy over there on the John Day about it....I believe he was "cuffed and stuffed"?? Yes, you do get the free lawyer...will he/she have the resources and the ambitions to pursue the navigability issue??

BTW, in my research, it would be my opinion that Three Rivers would NOT be navigable, whatever that's worth....

TR

[ 11-11-2002, 01:19 PM: Message edited by: TheRogue ]

[SouthCoastStu]

OK, so if the landowner thinks that he/she owns the streambed, how is dropping an anchor on it any different than placing a foot on it?

When Oregon became a State in 1859, title to all tidal land and land below the average high water marks of navigable streams was granted to the State. Only problem was that navigable streams weren't identified at that time. A Navigablity Study has to be done to determine if a stream is navigable or not. As with anything the State is involved in, it takes a long time and a lot of money. The Division of State Lands administers these submersible lands. Here's their web site: http://www.oregonstatelands.us I was suprised at how few streams have been declared navigable. I think that when the navigability studies are finally done, most of the streams that are driftable will be declared navigable. But what to do in the mean time? My "feeling" is that the rivers (below high water mark) are owned by all, and adjacent landowner's shouldn't act as they own it. Am I willing to get shot over it? No. Is the landowner willing to shoot somebody and go to prison for a long time over it? Very unlikely. As far as the landowner's title stating that they own the bed of the river, it probably does. However, a basic principle of survey law is that you can't sell something you don't own, or in this case, you can't buy something from someone who doesn't own it.
Sorry to ramble on about this subject, but it really got me ticked off. When I came into the office this morning and told one of the guy's that I had drifted the Elk River (first time), he told me about some landowner that has shot over driftboats for anchoring in "his" hole. Then I see this post. Luckily, all the people I saw Sunday were friendly :smile: . Not a great fishing day, one jack kept, two darkies threw back, and one chrome Cohonook (but thats a different subject ) thrown back. Nice looking river :smile: , too long a drift though (seemed like 12 miles), didn't have much time to fish.

[ 11-11-2002, 02:51 PM: Message edited by: DiamondBack ]

I have several acquatinces that own property along Oregon rivers, and this subject comes up frequently. They way it work is if the river is declaired fedrally navigable and is listed as such then the property owner owns to the mean high water mark. If it is not listed fedrally navigable then a property owner pays the taxes and can legally own to the riverbed center, if he owns both sides of the river then he can legally own the entire bottom of the river, which means he could tell you your trespassing and to leave or also even prevent you from anchoring a boat as the anchor is touching the river bed ( just because there is a boat ramp on the stream does not make it navigable). There are only a small handfull of streams listed fedrally navigable in Oregon. Sorry to hear the guy had to over react by making a point with his rifle I agree there are more appropriate ways of dealing with things.

[ 11-11-2002, 02:09 PM: Message edited by: Chinookie ]

[Kruechief]

Chinookie,

Thanks for the straight dope on the subject. Bottom line is; you can sit in a hole and row your hiney off or run your kicker and there isn't a darn thing anyone can do about. Just don't drop an anchor or touch the bank. This also mean you can't tie of to any "vegatation" that is in the water, or on the bottom and protruding out.

So be it.

It is frustrating at times to find good fishing from the bank with most spots being a bring your own rock hole.

Lo
kruechief
Team Eddie

[SKP]

TheRogue,

I have watched several drift boats launch at hatchery hole on Three Rivers in years past. It was navigated, so its navigable - maybe not during summer months, but it is high enough during winter months. I wouldn't do it, but it was done nonetheless. I remember one guy saying he had to work around the log jam down below, but its a good drift in high water, when the Nestucca is too high he said.

Like I said, I am not going to do this (walk down behind the cabins) now, but did in my younger days. Why didn't the sheriff arrest us? We didn't leave. Because he knew it would be an expensive battle that he would loose.

I don't recommend for anyone to try their luck and walk downstream like I did years ago, especially since there are some nut cases out there with a rifle. Brandising a rifle is not wise - it could get the brandisher shot from someone defending himself. Sure its legal to hold a rifle on your property. But its clear the rifle's intent in this case was to be brandished by the landowner to show some illegal force.

Hey, lets all just fish legally, and not get close to the line. The closer you get to the line, the more risk of problems. How close does a person want to get to the edge of the Grand Canyon? Someone on the edge is eventually going to fall in. I personally won't come near it, especially now.

Just this year, we read about someone who got too close to the edge at Silver Falls. They fell to their death. This is unfortunate. Steer clear of the edge on this string.

SKP

[riverrat]

having been raised in northern minnesota with thousands of lakes i have a different attitude when it comes to lakes, rivers and streams.....i believe that minnesota has the right laws on the books.....all waterways are publicly owned to 15 feet above high water mark.....legally you can have a picnic in front of someones lakehome if you are within 15 feet of highwater mark defined as state owned land......i have never heard of such an incident or the landowner having to call the sheriff.....so i believe that all non-seasonal water belongs to the people and in no way shall be privately owned....i don't suggest that people walk up river beds this time of year anyway due to the spawning activity.....and until oregon gets on the ball to define at the minimum navigatable waterways, ask someone if you are unsure......landowners deserve alot of respect when it comes to going on their property.....imagine how many times they have been approached for fishing rights and worse than that how many times they have had to throw people off their property when they were tresspassing.....i would have made a comment to the owner with the gun had i been there......i would have asked why he thought it was necessary to show a firearm.........

[Bankbound]

I was upriver on the trask last year fishing with a newbie. We were approached by a landowner who asked us if we knew we were trespassing we said "no". He pointed to a sign about 15 feet up a tree that was severly weather worn and halfway covered with vegetation. We promptly apologized in a very pleasant manner and told him that we would leave. He said that we could spend the remainder of the day there due to the fact that I was VERY polite and understanding in the fact that it was HIS land. He told me that next time I wanted to fish there not to hike all the way in but park at his house and come and ask to fish and chances are that he would let me (if he or his friends were not already there) fish there. All in all the man (forgot his name) was really polite in pointing out my mistake and I am glad that no firearms were involved (unnecessary). I look forward to seeing him soon.

Mike

[GutshotApe]

I researched Oregon navigability laws once and my take was that a navigability claim can be based on the stream's ability to float & transport objects as small as shingle bolts. Floating a kayak or drift boat certainly would qualify a stream as navigable. On navigable streams the public has the right to use the bed and banks up to ordinary high water AND, to pass obstructions like dams, log jams, etc., the right to use the adjacent uplands to the extent necessary.

But until a stream is officially declared to be "navigable" by DSL, landowners can have you arrested for trespassing. Making those charges stick in court (if the defendant chooses to fight) would be another matter entirely.

[DanS]

If it is not listed fedrally navigable then a property owner pays the taxes and can legally own to the riverbed center, if he owns both sides of the river then he can legally own the entire bottom of the river, which means he could tell you your trespassing and to leave or also even prevent you from anchoring a boat as the anchor is touching the river bed

<font size="2" face="verdana,arial,helv">That's just simply not true. If you can drift it, it's navigable, even if it hasn't been declared as such. If it's navigable, Federal law says you have the right to be there below the high-water mark regardless of what State law says, regardless of a landowner's deed, and regardless of what a Sheriff's deputy or OSP trooper says.

The burden of proof remains on the prosecution in cases of "trespassing" on river banks.

It's risky to push the boundaries though. You might get cuffed, stuffed, and dragged before a judge. You may even have to appeal further up the food chain. You might get shot by some angry landowner, too. Is it worth it? I don't know.

Would you push the boundaries if some chump stole your car, made a counterfeit title, and then sold it? Would you go to the new "owner" and say, "Oh, well you have the title....I guess it IS your car." Of course you wouldn't. It's NOT his car, because the thief didn't have the right to sell it in the first place. It's the same story here. The states didn't own the rivers or river bottoms in the first place, so how could they sell them?

Another legal can o' worms. No wonder there are 62,536 lawyers just in Olympia.

[garyk]

We just had a very good, very detailed discussion of this issue over at Westfly.com\ Forums\ Oregon\ down on the 2nd page now, the thread is - "South Junction / Green Valley Farm trespass?"

Different river (Deschutes), same issue.

I would suggest that any sheriff who arrests anyone on a river subject to claims of navigability is coming very close to false-arrest.

To repeat what The Rogue said above -- you cannot claim what is not yours to claim.

But check out that Westfly thread for a thorough discussion.

[Kruechief]

Here are the ten "navigable" rivers in Oregon. Which by law allow you access to the ordinary high water mark.

http://statelands.dsl.state.or.us/navigwaterways.htm

Do you see the Kilchis, Salmon, Three River, North Santiam, South Santiam etc on this list?

Hmmm....sounds pretty simple to me, when in doubt don't get out, when asked to leave, do so.

Win it in court like that organization did on the Sandy, you know...what are they called?

Send them your paychecks and they'll fight to get you some prime bank access. Or go buy a Willie like I did!

Lo
Kruechief
Go Team Eddie
Team No Puss Pockets Allowed

[Hottamale1]

Hello...

This is a great topic...One that is very familiar to all of us involved with the Northwest Steelheaders.

Now I don't want to keep preaching about the benefits of becoming "involved" however....it WAS the NW Steelheaders that has spent Thousands of dollars to enable us anglers the opportunity to declare certain rivers navigable, thus enabling us access up to the ordinary high water mark.

The battles are being won BUT...the war is long from over. The NWS need you NOW more than ever.

How's about that WONDERFUL dumping of 6 hours worth of raw sewage into the Willamette?? Guess who's gonna get involved?? You're right...NWS.

Salmon Carcass "tossing" in the upper Wilson?? NWS

Kids with Leukemia...rebuilding the NF Nehalem handicap ramp....clearing debris and trash from most every river we all fish...

That's right...thanks to the Northwest Steelheaders, you and I get to enjoy the fruits of their labor.

I would suggest, that for $40 a year in membership, it's a small price to pay for one of the most active and hardest lobbying groups in Oregon & Washington., along with the benefits of everything I've mentioned above.

I could go on, but this topic was just prime for my soap box speech.

Call Me if you're at all interested...Thanks!

Scott Kappes
(503) 816-4201

[Hogmaster]

kru -

Great link! Interesting that the Rogue has only been declared navigable up to Graves Creek!

From the same site this really answers a lot of questions about the ownership and determinability aspects of navigable waters...

State Lands and ownership

Now I have never posted this before and am no doubt going to face reactions to this, but if you look at the link you will see that many landowners (including me on the Willamette) actually own their land to the mean LOW water mark. It was a special grant by the then govenor in 1878. The difference in high and low water marks is especially pronounced in my case because of "Lonesome Bottom" being very flat (accross from Clackamette Park). Unless someone were trashing it, I doubt any of my neighbors or I would ever say anything to a "trespasser" anyway. Just bring it up as a discussion point that there is no absolute on the issue.

However, Tom McCall passed the Willamette river greenway act in the early 70s which granted an easement along the river banks to the public. So I guess I own to the low water mark but anyone can walk on it.

Scott - You are right about the NWS. Can't go next week but hope to join soon. Also hoping NWS can help move along the fixing of the Clackamette boat launch debacle!

[ 11-11-2002, 05:18 PM: Message edited by: Hogmaster ]

[GutshotApe]

You're right Hogmaster, there was a period of about 4 years around 1880 when some special grants were made including some in the Peoria area. However, since then, the river has changed course and moved almost a mile to the west from where it was in 1880 - so where is the special grant to low water line now? Go with the river? Title companies will not insure title below OHW line on that part of the Willamette.

Not sure you're right about there being a riparian easement along the Greenway, though. :whazzup:

[SKP]

See the link posted by Hogmaster. Here's an excerpt:

Question: Can a person float over the surface of water where the underlying lake or streambed is privately owned?

Answer: Yes. According to Oregon court cases interpreting what is called the floatage easement, the public has the right to float waterways even where the bed is privately owned, and to make "reasonable, incidental use of the bed and banks." The courts have not yet defined what such "reasonable, incidental use" entails in the context of modern recreational use. However, it is clear that river users have no right to trespass on privately-owned uplands --that is, land above the ordinary high water mark.

Hmm, privately owned uplands defined - "land above the ordinary high water mark".

Hey, this thread started because someone walked down from the logging boat ramp in the river on the Kilchis.

If it's a boat ramp, then the river is navigable.

Do you get that, boat ramp. Boat ramp. Boat Ramp. Why would they put a boat ramp on a river that's not navigable.

Any river with a boat ramp is navigable.

SKP

[TheRogue]

I worked with a person who was an expert witness in the John Day case.

Once again....if you're walking on the bed of a river which has not been declared navigable, you can be ticketed/arrested for trespassing. Simple as that. The county does NOT have to prove that the river is not navigable!!

TR

[Hogmaster]

GSA -

Yes, rivers do change course. It does make for interesting guessing on title, eh. Can you own to the OLW mark (or even Ordinary High Water mark) when it isn't even on your land anymore? Don't think so...

I was told by someone in the State Lands Department that the Willamette River Greenway Act granted a public use easement. I have been doing a bit of research on the net and, while I see that there are many admisitrative rules and such have not found where the act specifically allows public access.

Anyway, back to the point, it looks as though the only way to determine navigability of non-determined rivers are when there is so much conflict the State has to step in for an "official" determination. Joe fisherman is not likely individually going to be able to determine such. And yet when such question is finally called it would seem any stream that "could have been" used for transporting goods or people back in the 1850s is likely to be determined as navigable as long as they have been used that way since then.

They have to be able to have been used back then but using them (including fishing guides) for valid commerce purposes helps solidify the decision that would be made.

Seems no one wants to go through the hassle and in the mean time some landowners adjacent to the questionable streams will give mean times to those that choose to step or anchor. Too bad.

Get in a floating device and do not touch sides or bottom is the only way to be above question.

Be safe people. No fish is worth a physical confrontation...

Originally posted by Hottamale1:
Hello...

This is a great topic...One that is very familiar to all of us involved with the Northwest Steelheaders.

Now I don't want to keep preaching about the benefits of becoming "involved" however....it WAS the NW Steelheaders that has spent Thousands of dollars to enable us anglers the opportunity to declare certain rivers navigable, thus enabling us access up to the ordinary high water mark.

The battles are being won BUT...the war is long from over. The NWS need you NOW more than ever.

How's about that WONDERFUL dumping of 6 hours worth of raw sewage into the Willamette?? Guess who's gonna get involved?? You're right...NWS.

Salmon Carcass "tossing" in the upper Wilson?? NWS

Kids with Leukemia...rebuilding the NF Nehalem handicap ramp....clearing debris and trash from most every river we all fish...

That's right...thanks to the Northwest Steelheaders, you and I get to enjoy the fruits of their labor.

I would suggest, that for $40 a year in membership, it's a small price to pay for one of the most active and hardest lobbying groups in Oregon & Washington., along with the benefits of everything I've mentioned above.

I could go on, but this topic was just prime for my soap box speech.

Call Me if you're at all interested...Thanks!

Scott Kappes
(503) 816-4201

<font size="2" face="verdana,arial,helv">Great post Scott! I am the secretary for the Association of Northwest Steelheaders I can tell you this much. We spent alot of $$$ to win the Sandy river access issue. We are currently spending money for the same thing on the John Day BUT we do not have deep pockets! If the steelheaders are not around to fight for your fishing rights then who will? The membership fee is minimal compared to the impact you can have on our fishing resource.Please consider everything Scott said and contact him or you can contact me for membership info.
Thanks Jennie for allowing us to talk about NW Steelheaders on ifish.

[rebell]

Bankbound, Glad to hear you had a good experience on the Trask. You would all be amazed by how much access would be available if you simply went up to the landowner and politely asked. For some reason this simple act of respect has been forgoten by way to many peaple.

Landowners are a protective bunch of peaple. They dont alway's apreciate someone walking through there front or back yards.....Do you? Something to keep in mind the next time you go walking through any field.

The N.W. Steelheaders have what many peaple feel, a noble cause, but I dont think they realize the enemy's they are making with landowners across the state. Many places we are allowed to fish today by walking across someone's property will be lost forever. The only way to those prime fishing spots will be by boat, or wading up to your neck up and down river.

So be carefull what you wish for, it just might come true.

[bigfishon]

In my concealed weapons class I was taught that if a person confronts you with a gun in hand it is not a threat yet at that point, if the person verbaly threatens to shoot you then you "may" be in danger, if he raises the gun in your direction "your life is being threated at this point", this is the point my 454 Casull revolver would come out, and if he is close enough for me to hear his voice he just picked the wrong person to point a rifle at and had better have a very good triger reflex. If mine comes out in a situation it is not for show and tell, it is to keep me breathing. I have never thought about carrying in a boat (got the thing for going to rest stops on trips with the wife and kids) but after reading this post I would not drift that river without one, or any river for that matter. So stupid to think someone gets so bent over some fisherman stepping out of his boat to fish from the bank. what is the differance weather we fish from the bank or the boat?

[DanS]

The county does NOT have to prove that the river is not navigable!!

<font size="2" face="verdana,arial,helv">The Rogue,

Can you explain in further detail. If one pleads not guilty to trespassing, isn't the burden of proof then on the prosecution?

And conversely, if I drop in my drift boat and "navigate" it, or have someone pay me to transport them down river, would that be admissible as evidence of being navigable? Could a lower court deem a river navigable?

Just curious how past cases have worked..........

Thanks in advance for any info you might have.........

[Flatfish]

Ya know,unless I am missing the point,folks are drifting 3 rivers in hard boats???!!!I wanna see that.
Farmer on the Kilchis used to allow fishing on his property.2 bucks per angler in a coffee can.Good slot down there.Nobody cleaned up.Only half paid.Farmer now does not allow anglers on his property.Too bad.I cannot begin to count the number of times this has happened.Farmer with a gun is out of line.So is fisherman with a gun.Hey its just a fish.
Mark and the dog.

[THE KIWANDA KID]

Hey folks the land from the logging bridge down can't be owned by more than a half dozen people tops. These are tax payers and folks with jobs like us and likely fishermen too. If one of these tax paying, hard working farmer/land owners ALLEGEDLY had a gun in their hands when they told some one they were tresspassing that can certianly be seen as rude and threatining especialy by the fellow on the recieving end. But lets think outside our fishing poles for a moment and consider the possibility that John Q land owner may have been verbaly or physicaly threatened by a zealous tresspaser in the past and felt unsure if that may happen again. I have in the past been shown a weapon by anglers in oregon city and on the nestucca on land and water that most certainly didnt belong to them to feel they needed to do such a thing. I can understand how the person may have felt threatened or was upset about such a thing it's ok to not like having guns out in the open pointed at you or not when they for the most part dont need to be. My point is we cant just say damn the land owners and if there is a ramp on a river we cant just conclude it is navigable because as we have seen in print that most certainly isnt the case. I read this post from the top and I appologize to the originator in advance for forgetting your moniker but here is a little friendly advice.... The next time you find your self driving up a road to a river you know little about, that is litteraly surrounded by private ground you may want to think twice before you assume you are in the right to just wade away. I like to explore as much as the next guy but a little caution and consideration are in order no matter what part of the state you are in. Asking first is always the best thing IMO . All they can do is say no. If you are bank bound and like to fish from the bank there are miles of great fishing out there and there are some great bankies on this board with info to help. If you are fed up with the bank angling or want to try a boat trip that will put you back on land cryin' give me a shout and I'd be happy to oblige. Tight lines! :grin:

[crabbait]

I believe the "navigability" of a river is determined by the state, not by the presence of a boat ramp. Unless you have really deep pockets and want to pursue a long legal battle complete with appeals, etc, you will end up paying for a trespass ticket if you are on private property including the river bank of a river not already designated as navigable.

Bigfishon - In my opinion, if you shoot a land owner "defending his property" and he has not fired at you first, you will not be catching any fish for a very long time. That's right, I see fish sticks in your future.

If it was your property and you had taken a bunch of guff off of fishermen before would you not you show up with a firearm?

Let's be careful about the gun talk. Most of us know enough not to take this talk seriously but some young person might actually think this is the way that real adults handle situations.

Fishing any stretch of water is not worth dying or killing for.

[ 11-11-2002, 09:37 PM: Message edited by: crabbait ]

The N.W. Steelheaders have what many peaple feel, a noble cause, but I dont think they realize the enemy's they are making with landowners across the state. Many places we are allowed to fish today by walking across someone's property will be lost forever. The only way to those prime fishing spots will be by boat, or wading up to your neck up and down river.

So be carefull what you wish for, it just might come true.

<font size="2" face="verdana,arial,helv">Have the landowners actually told you this rebell? The NW Steelheaders have worked with landowners throughout the state. We've posted signs for them(at our expense) placed trash cans that we have maintained and made sure that they were emptied, cleaned up trash along their property. I find it highly unlikely that any reasonable landowner would close down access to the river from his land because the ANWS are trying to make Oregon's streams available to all. I can guarantee you that the sports anglers of Oregon are MUCH better off because of the efforts of the NW Steelheaders.

[Eric W.]

I started this discussion to get info, and Boy have I got alot. Looks like a hot topic.

Regarding citations: the state officer said that if the "owner" wants to cite us then he would have too. Though he feels like it is writing tickets to inocent people, but if the owner wants it, they get it!

In talking to people the "anchor" on private river bottoms has come up. Next time I fish, and my fishing weight on the end of my line touches the bottom, and I am in a boat, then I am tresspassing?!?!?

Next year we are simple going to float it in pontoon float tubes, and anchor and fish as we can? what elso to do?

Sleepguy

[SKP]

This happened to me on Three Rivers about 10 years ago.

I walked downstream in the water well below the high water markings behind the cabins across the street from the National Forest Service office in Hebo. The land owner rudely greeted us to get off his property or he is going to call the sheriff. We told him we did not trespass, nor will we trespass on his property. We were just here to fish. We didn't budge, and about 45 minutes later, here comes the sheriff. The sheriff could not and would not arrest us. We've not been back since, because we don't want trouble. Plus, it's not a good fishing area, but we just were exploring for one.

Personally, I don't want to get in another situation like that, but if you stand your ground, the sheriff is not going to arrest you, because he can't. If he arrests you, you have grounds to sue the sheriff's office for wrongful arrest, and you have grounds to sue the landowner, and since you were arrested, you get a free lawyer to defend you.

The landowner and the sheriff know good and well, by arresting you, its going to cost a lot of money for their losing cause.

SKP

[1pump]

I agree with crabbait about the gun posturing. There's been times I was tempted to pull a weapon but in the end I was thankful I didn't. Cool heads always prevail. A bad situation with one landowner displaying a gun will only get worse if the "trespasser" pulls a gun as well. I'm a gun owner, and I've had guns pointed at me both in anger and during an armed robbery, and I'm still here, without ever having to point a gun at somebody. And I've also had to appear in front of a grand jury. I don't care to repeat any of these experiences, and I wouldn't recommend them to anybody else. :depressed:

[TheRogue]

Can you explain in further detail. If one pleads not guilty to trespassing, isn't the burden of proof then on the prosecution?

<font size="2" face="verdana,arial,helv">As far as the county is concerned, and the law is concerned, the river is NOT navigable until the state makes the determination. If the case can be presented in such way that forces the state to make the determination, great. That's the way the John Day case has gone.

Can a lower court make the determination?? I don't know, I'll pursue that!

TR

[Miss B Haven]

Don't know if someone else made this comment (I got bored before got though all those posts).
Ownership has nothing to do with the public access issue. Don't mix the two. It's not a question of ownership, it's right to use and access. I own my property out to the center line of the county road. That is my deeded property. The county however has the right to use that portion of my property which is designated as the "right of way). Used to be 45 feet, they blackmailed me for another 20 feet to get a building permit!

Originally posted by SKP:
If the state or county puts a boat ramp on the river for boats, of course it is navigable. [img]graemlins/idea.gif[/img]

The state did make that determination on the Kilchis, or there would not have been a boat ramp put in. You can also see state ODFW signs at the boat ramp on the Kilchis. It's navigable.

It might not be listed officially as navigable, but its going to be hard to prove that any river with a boat ramp is NOT navigable.

The Kilchis has a boat ramp above where these guys walked down. The Kilchis is navigable. My wife as a kid used to live at that house that now has all the dog kennels just up from the logging bridge on the Kilchis, and they used to float inner tubes and rafts down the river, and many drift boats have put in their as well.

The Kilchis is navigable. Maybe not before the fall rains, but it is navigable, no question, and easy to prove.

Eric W. was within rights to walk down this river. [img]graemlins/applause.gif[/img]

Also, if you were arrested, you absolutely do get a free public defender if you want.

SKP

<font size="2" face="verdana,arial,helv">I absolutely agree with you SKP but it's going to have to be made official, just like was done on the Sandy, to make it law. I agree that it's a no brainer especially if the state provides launching facilities.
We are trying to get a statewide decsion made on this instead of having to do an expensive river by river study done.

[Miss B Haven]

SKP and Shane - Be careful, the right to float down a river and the fact that you can (whether there is a launch or not), has nothing to do with the river being legally navigable and your legal right to walk down the river or anchor up. It has been upheld that you can float a river that is not navigable (the public does own the water), but you can not walk or anchor without being in a "trespass" mode. If you touch bottom, that is when the "legally navigable" question comes into play.
Don't misunderstand me, I don't agree with this. I just don't want you to convince yourself or others to trespass and get in a world of hurt. Most landowners don't enforce the anchor thing even if they do not allow bank access. Some however do (one notable on the Nestucca if he's still there).

[ 11-12-2002, 02:34 PM: Message edited by: Miss B Haven ]

You are right Mel. There will have to be a ruling made by the state in order for the Kilchis to be deemed navagible. If and when it does that still does not give anyone free access across any private land.

[SlimPickens]

Very touchy issue on the Kilchis. This is the only river I've ever been on where a landowner yelled at me to pull up anchor in my db! Of course I did. Who wants to fish with someone yelling at you. Not worth it.

[GutshotApe]

A driftboat anchored on Smith River several years ago and the son of the riparian owner came down to the bank with a .30-30 and tried to shoot the anchor rope in two, aiming for a spot on the rope a foot or two from the boat. When the sheriff arrived they discovered the marksman was an ex-con and arrested him for reckless endangerment and felon in possession of a firearm. The boaters were warned not to anchor there again.

[garyk]

Miss-B-Having said -- "Ownership has nothing to do with the public access issue. Don't mix the two. It's not a question of ownership, it's right to use and access. "

This get's complicated, but yes in regards to rivers 'subject to navigability' we are actually talking about 'ownership' proper.

The Feds ceded these tidal and navigable water to the State of Oregon, to be held in trust for the benefit of its citizens in perpetuity. They did this to ensure that these first transportation corridors would be freely available to all (great foresight!).

With very few technical exceptions, this property does belong to the public and always has.

The problem is that the State has never asserted its claim on other then 11 rivers.

Further complicating it is the counties allowed deeds to be filed on some of these river bottoms which belong to the public trust, setting up the landowner scenarios described above.

Still in all, Federal law prevails and these lands given to the public remain vested in the public -regardless of the State's lack of assertion or flawed deeds.

[V. Green]

A couple of years ago on the Elk River the local forestry officer came to the hole that I and about 4 other boats were fishing in and warned everyone in the hole except me that they were trespassing. I was the only one without an anchor out, which he had noticed ( I was setting on top of a submerged ledge).

The guide who was anchored the closest to the officer offfered to be ticketed but the officer delcined. In the end the Officer decided to advise everyone of the landowners viw of the law and head off to do more important work.

In my opinion I am willing to pull my anchor when any landowner is willing to show me the deed to the land they own (they will need to swim out to my boat to show it to me though )

I still go with the slogan that you will hear from several steelheaders "If it is navigable in fact it is navigable in law" (at least I think that is how it goes.)

Excellent posts by all! Thanks guys for your insight on this matter. You can bet that river access is an issue that will be addressed more in the future.
The landowners who allow the use of their property for us to fish there cannot be thanked enough! We should all make every effort to help them out by picking up trash that we encounter while accessing their property.
Those that don't allow access might have a very good reason for doing so.
Many years ago while fishing for chum salmon on the Miami River I encountered a couple of drunken slob fishermen who were casting wobblers w/treble hooks at the landowners horse! They succeeded in putting a treble into the poor animal. I reported it to the sheriff but don't know what happened.
I think that landowner still allows access but not sure.
So there are plenty of incidents for these landowners to be upset about.
I hate to sound "preachy" but if we all do our part this us against them mentality would resolve itself and we all could enjoy Oregons rivers.

[ 11-12-2002, 05:13 PM: Message edited by: Shane S ]

[rebell]

shane s, Please read the email I sent you.

You will note that I am a property owner in Tillamook, and if asked I will let anybody fish off my property. My family and I would just like to know who is there.

You may find it unlikely that any reasonable land owner would quit allowing access to there property, but think about this. I allow people access to my property, I just want to know who's there.... Is that to much to ask? If I cant have that option, you will not walk through my field to get that access.

[V. Green]

Rebell,

You are right on! No one should cross your land in order to get to any stream. I only advocate that if you can legally reach the stream and it is floatable (thus in my opinion navigable) that you have the right to be there.

I do agree that it is best to ask permission. In some situations it is easy to determine who the landowner is, i.e.: house is on the river, etc. However, most of the time there are no houses nearby and determining whom the riverbank belongs to is almost impossible.

On another note I know of an area on the Central Coast that a landowner had at one time marked the road as private. The county later made him remove the signs because they maintained the road and the bridge at the end of the road. Also in this same area I have been asked to leave "Private" land when I was standing next to a USFS sign. Last I knew no individual owns any land marked by the USFS lands signs. In this case I refused to leave and pointed to the signage behind me.

I respect your willingness to let those who ask fish your land. Unfortunately, just as there are bad eggs that litter and vandalize people's private property there are local landowners who will claim more land than they really own.

Anyone wanting to fish private land should absolutely ask permission and the fact that you allow people to access the stream through your property is commendable rebell.
We do not condone ANY unlawful actvity from anyone! No tresspassing, vandalism, littering or anything against the law! Any member of ANWS convicted of doing this would in all likelihood lose his membership.

[SKP]

If the state or county puts a boat ramp on the river for boats, of course it is navigable. [img]graemlins/idea.gif[/img]

The state did make that determination on the Kilchis, or there would not have been a boat ramp put in. You can also see state ODFW signs at the boat ramp on the Kilchis. It's navigable.

It might not be listed officially as navigable, but its going to be hard to prove that any river with a boat ramp is NOT navigable.

The Kilchis has a boat ramp above where these guys walked down. The Kilchis is navigable. My wife as a kid used to live at that house that now has all the dog kennels just up from the logging bridge on the Kilchis, and they used to float inner tubes and rafts down the river, and many drift boats have put in their as well.

The Kilchis is navigable. Maybe not before the fall rains, but it is navigable, no question, and easy to prove.

Eric W. was within rights to walk down this river. [img]graemlins/applause.gif[/img]

Also, if you were arrested, you absolutely do get a free public defender if you want.

SKP

[ 11-12-2002, 01:01 PM: Message edited by: SKP ]

[rebell]

Thanks guys's.

I wish this issue could be settled out of court, I love to bank fish all over our great state. But we must all respect everyones private space.

A simple knock on a door could solve a lot of problems.

Thanks again to everyone who made a comment on this thread, it has been very educational.

[Trick]

All the reasons listed above make this a state that caters it's resources to the people with the money.

If you want access to the majority of Oregon's waterways to fish for those $500 hatchery fish (as the Oregonian puts it), then you better have the financial resources to buy the land, boat, or grow wings to be allowed to fish for them.

It is very upsetting to me to fight for a resource like hatchery fish, only to have a landowner sell out to a pay club or personally charge high fees too allow me access to catch a fish I already paid for through licence fees, property and income taxes.

If I can't afford to pay memebership fees, pay the landowner or buy a boat then I'm the sorry looser that's paying for everyone else with money or assets to catch a finclipped fish.

I'm fortunate in that I live by and have learned how to tap the Columbia for a fair share of the pie. I feel horrible for the way the state has set up this structure and it needs a serious overhaul. I applaud what the NWS have accomplished and will join after the holidays. The problem with fighting for one river at a time is that most of us will be dead before we see a significant impact on access across the state.

It's pretty obvious to see the amount of greed that drives the system. It's just another huge example of the have's and have not's.

Sorry to be so negative.....let out a little anger and now I feel better!

Todd