Property rights

Montana · 01-02-2003, 07:49 AM

I was driving up the Washogal the other day, stopped along the road to watch a couple of guys in a drift boat. Yelled down at them asked how they were doing, nothing caught they said, when a voice from below the trees yelled at the two in the drift boat, " hey you guys can't anchor there" he said to them, they asked "why?", he said because he owned the property for 200 yards and that they were trespassing by dropping there anchor. Is he correct? [img]graemlins/stupid.gif[/img] :whazzup:

ibeanfishin · 01-02-2003, 08:08 AM

the way i understand it is, just by setting anchor is not trespassing but if you set foot or any item on land it will be, had a simular situation on the E.fork lewis in front of lawyers house and that is what he told me, but that was about 10 yrs. ago and it wasn't a paid consultation either. hope it helps, love to here more info. on this thead and a uniform law stating such rules. [img]graemlins/stupid.gif[/img] [img]graemlins/icon_argue.gif[/img]

WildHawg · 01-02-2003, 08:08 AM

I don't know about Washington, but in Oregon he can assert his opinion freely, but has no more right to kick you off of property below the "mean high water mark" than you do to kick him off.
Federal law states we have the right to tresspass if the river is "navigable", but each state has the right to decide which streams are navigable, and which aren't. The issue has been smoldering in Oregon for years, while state legislators and others sit on their a$$es hoping it doesn't flare up.
For a lengthy thread on the issue in Oregon, search the site for "Navigability". There is an interesting thread you might want to read.
Interesting that your named Montana.
That state has settled the navigability issue in favor if the public, and I just read yesterday that it was upheld on appeal. Score 1 for the public!
It's a real can o' worms. I'll be interested in reading the responses of those in the know on Washington law.

Montana · 01-02-2003, 08:15 AM

I saw that thread about Montana holding up the high water mark ruling. Being from Montana and raised on a ranch that had a river run through it, you would be surprised that how few people really do access the rivers that way. Most people who do it are not of very high ethics to begin with.

Straydog · 01-02-2003, 08:16 AM

Hawg,

That is good news about the decision in Montana.

Hopefully will help with precidence in the upcoming legislative session.

I know of at least one large fly fishing group planning on making this an issue this coming session.

V. Green · 01-02-2003, 10:14 PM

Doc Spratley would know the answer to this. He is from Washington and has been active in the Steelheaders fight for river access in Oregon.

If I remember correctly from what he told me. In Washington you have the legal right to be on the bed and banks of all streams, provided you did not trespass on someones land to get there.

If you changed the subject to "Washington Stream Access Rights" you might get more responses.

fishin62 · 01-03-2003, 08:57 AM

What about the property owner who owns the property right below the deadline on three rivers? Mr Stover? He claims to own both sides and also owns the bottom to, makes for some very uncomfortable fishing when you cant drop your anchor for 6hrs, thats why we have pretty much aborted that drift. his ranting and raving allday makes it no fun. he always threatens to call osp but has not yet.? do you have any input on this one hawg?

rags · 01-03-2003, 09:12 AM

I would also like to know about the water below Three Rivers. This guy has yelled at me over the years about anchoring. I think next time I will tell him to call the OSP he doesn't own the bottom of the river. Anyone else had run-ins with this guy? I've seen some pretty emotional arguments between boaters and him.

Boedy · 01-03-2003, 09:48 AM

Last year on the S Santiam a land owner was trying to say he owned out to mid river and even called the cops on some guys that where fishing in the river (waders) The cops showed up and issued tickets as the owner had some paper that said the S Santiam was not a navigable river so they where trespassing. To make a long story short the judge tossed every one of the tickets and told the police to stop writing them. No judge in Oregon is going to fine you for anchoring in a river so I say let him call the cops if they want to swim out and ticket me fine but I know in the long run I will get off. Just my .2 cents.

Straydog · 01-03-2003, 10:15 AM

We need to stay on top of these study requests and hold the agencies feet
to the fire to get them done....

Navigability Studies

[ 01-03-2003, 11:16 AM: Message edited by: Straydog ]

V. Green · 01-03-2003, 10:16 AM

While on the Elk River a few years ago, myself and 3 other boats offered to accept tickets if the officer would swim out to issue one. The guide in that hole even offered to row over to him to get a ticket. The officer laughed and just siad that he had been told to come talk to us. He didn't want to issue a ticket because it would waist his time.

MasterCaster · 01-03-2003, 12:03 PM

Rags.......you have every right to anchor down there. We have had some run ins with him, been threatened with tresspassing. He always says he going to call the cops. He even "takes pictures" with a cammera that ive been told doesnt have film in it. after the second time of him doing this we left went to Hebo to Rons shop and asked him. He said they have had trouble with him for many years. We then went and called OSP and they told us we had evey right to walk/wade/boat or anchor there as long as we stayed below the mean high water mark. As it is a navigable river. The next time he came down and had a few words we just waved and took our own pictures of him driving on the river bank and cutting cookies throwing rocks everywhere when we refused to leave.

We actually wade the river down there in the spring and summer when flows alow. Can be some great fishing at times.

It seems like his favorite saying is "thats not gonna work sir" so from then on if he came down we just repeated those words and he left. Seems kinda rude but we got sick of him trying to run us off of land we had every right to be on. He even puts up no tresspassing signs at the waters edge in the summer.

anyway sorry to go on about him but just the thought of that guy running so many people off that dont know they can be there gets to me. You have every right to be there and do what you like as long as you are below the mean high water mark.

Jon :smile: :grin: :smile:

SnoSldr · 01-03-2003, 12:23 PM

Is there a list of Navigable rivers anywhere or are we just supposed to guess???

MasterCaster · 01-03-2003, 12:34 PM

Im sure there is a list somewhere and someone will help you out with that I hope but all I do if Im not sure is call OSP with their 800 number. I have it here someplace but cant seem to find it right now.

Jon :smile: :grin: :smile:

Boedy · 01-03-2003, 12:36 PM

Navigable or not I dont they can keep you off the river itself just the bank am I right?

MasterCaster · 01-03-2003, 12:43 PM

That seems to be a very touchy issue. As I understand it if its a nonnavigable river the proberty owner owns to the middle of the river. You can not anchor but can float as long as you arent touching bottom and dont have to get out to pull your boat over shallows or anything. Thats just how I understand it someone else will have to get into the specifics.

Jon :smile: :grin: :smile:

Hogmaster · 01-03-2003, 12:44 PM

OK, time for a little clarification here.

First off, not exactly, Boedy. If a river is declared non-navigable a property owner can assert claims to or even across the river, if the land is owned on both sides. In such cases the water can be floated, but touching the sides or bottom in any way, foot or anchor, can be declared tresspass.

Now, the issue is that very few rivers have been officially declared navigable. That doesn't mean they are or they aren't but it does mean they haven't been declared. If you do some searching you can find some earlier posts about this, but for example, the Wilson, Tillamook, Trask, Nestucca and even Nehalem have never been declared. The Rogue has only been determined to be navigable in the lowest section.

The guy down by Three rivers can assert the river is his, but unless it gets officially determined, which is an expensive drawn out political process, it is subject to debate. Few enforcement agencies care to get involved...

A river that could have been used for commerce in the 1800s is the basis for the determination. Not whether it is now, or even was then, but whether it could have been then. The fact that a river is used today is ammo, but not in and of itself, the basis for the determination. So few rivers have been determined because it is a political quagmire.

Oh, and as a minor side point, "mean high water" is true in ALMOST all cases, but not all. By decree of the govenor in 1878, certain areas along the Willamette river were titled to the "mean low water" mark, including mine and others who live along it. The ruling was a special case involving determination of tidal lands and was provided as a political concession at the time. Not that I care if you try to access the bank on my god-forsaken big rocky brush filled bottom land, but technically several owners of Willamette river waterfront indeed own to the low, not high, water mark...

[ 01-03-2003, 02:04 PM: Message edited by: Hogmaster ]

garyk · 01-03-2003, 12:45 PM

MasterCaster makes me think that there may be another legal twist in this/these situation(s), and that is -- 'sportsmen's rights'.

I believe (but am not positive) the ORegon Legislature several sessions ago passed a law prohibiting the harassment of law abiding hunters/fisherman. You can look up the Oregon Revised Statutes on-line to confirm this. (I'd do it, but with a 26k dial-up the law might change before I find it :depressed: )

IF that statute does exist, then some of the landowners' actions described above may come very close to crossing the line. Perhaps OSP or the deputy will be writing THEM a citation [img]graemlins/applause.gif[/img] !

fishin62 · 01-03-2003, 12:53 PM

mr mastercaster, i have fished that for 25 years and dont recall mr stover letting up on us. he also has a goob from the hatchery that watches and harasses us to. be he gets tired and leaves, after an hr or 2. i think i have seen you at the deadline alot when i stop to watch on my way home.if its legal why fish the deadline? i would think more people would be down there with his 200 dollar a day flyfisherman, not trying to spark a debate! i just want to know if i can anchor without a tresspass ticket? does he own thye river bottom? he said he can have us ticketed if our oars touch the bottom to!

TheRogue · 01-03-2003, 01:01 PM

Pistol River

Navigability Issue

Kilchis

Sandy river

[ 01-03-2003, 02:02 PM: Message edited by: TheRogue ]

bllelk · 01-03-2003, 01:08 PM

Ok Guys,
Don't mean to be a wet blanket but I believe I read in the High Country News that the Montana case wasn't so much as won by the floaters as it was lost by the property owners due to filing their claims incorrectly.
I forget all the legal terms but a landowner might own up to the high water mark but after a flood the river might change course and now run through his property and some is now on the other side of the river (accretion?). Now what? He used to own what is now the river bottom. Does he still or does he get it back after the next flood?
Deep thoughts for a rainey day.
:whazzup: :whazzup: :whazzup:

Hogmaster · 01-03-2003, 01:14 PM

blelk,

You have hit on one of the reasons this is such a sticky issue to decide. Where was the river in the 1800s? And a river that wasn't very navigable in the 1800s might be very navigable now.

Is the property owner damaged in your scenario? If so who should pay?

Unfortunately rivers change with time and that is why property ownership issues surrounding them are so complex...

DanS · 01-03-2003, 01:18 PM

Quote:

he said he can have us ticketed

<font size="2" face="verdana,arial,helv">He said he can...........but he never has. :whazzup: I think he's blowing smoke, and he knows it.

MasterCaster · 01-03-2003, 02:24 PM

fishin62...The area we are talking about is not on 3 rivers itself but on the Nestucca below the mouth of 3 rivers. That area you are refering to is just below the bridge on 3 rivers and is from what I understand private and you cannot "legally" step foot on his property.

Jon :smile: :grin: :smile:

[ 01-03-2003, 03:25 PM: Message edited by: MasterCaster ]

andy-ap emerger · 01-03-2003, 03:49 PM

I live on a lake and I must agree with both sides. To play devils advocate, it is really bothersome to pay taxes (higher obviously being on water) for MY property, continually be told what I can & can't plant. Where or why I can or cannot touch MY OWN property by some knuckleheads in downtown Portland or Salem whom have never even been outdoors. Many of these folks don't know a steelhead from a volvo. Yes, It's very frustrating. Yet, I am an avid outdoorsman and I obviously am deeply concerned about riparian zone/ buffer areas for the benefit of wildlife and fish habitat. Heck, I've been a member of "friends of Opal Creek" for a few years even. We all want better & more diverse habitat for our piscatorial & water foul....That being said, we have people from all over coming out to the lake to fish and play with their dogs etc. I could never concieve yelling "git the h#ll otta here kids" at a few young boys fishing in my back yard. That's one of the greatest things kids & young people do. Yes, sometimes they get close to the house and yes, we've even had a few idiots simply drop their garbage & wrappers all over the place. I could see where many water/property owners get frustrated and want to close off their property to others. It truly is unfortunate. Maybe everyone needs to respect eachothers property AND priviledge just a bit more. Being a little more patient couldn't hurt either.
A very tangled mess at times eh? It sure beats living in Saudi Arabia!
:smile:

bllelk · 01-03-2003, 03:50 PM

It's hard to defend some of these property owners and I would be happy to see access up and down all the rivers, access across private property to state or federal lands etc. But as long as people are people there are going to be more people that screw things up for responsible users than there are people that have been described as hot heads that hate fishermen/hunters /campers/hikers etc.
Personal experience is what usually influences these guys, it certainly did me in years past.
When you open your lands or river bank or whatever and appear to be inviting people to use your grounds you can bet there is someone out there waiting to sue your butt if they twist an ankle or use your place as a handy place to dump their beer cans etc.
Its a tough deal all around.
[img]graemlins/icon_argue.gif[/img]

boater · 01-03-2003, 05:05 PM

what if i came floating down a river in a drift boat and hit a rock and sunk my boat on a river where the land owner said he owned the river bottom and my boat was a total loss, since he is saying he owns the river bottom and i would assume that it would include all the rocks, could he be held responsable for this because he is saying its his river bottom ?

rob allen · 01-03-2003, 06:30 PM

Just for some background on the Montana issue.

1 very few landowners care as long as you are basically staying in the water and not damaging "their" property..

2. one of the people sueing the state ( i don't know about the other parties) owns the property surrounding a very small spring creek which virtually no one fishes anyway as it can only be accessed by wading up the mouth of the creek or by jumping off the highway bridge into the creek. This landowner lives far up the creek from the mouth and NO ONE ever jumps off the bridge... I used to live in the area within a mile of the creek. The lower portion of the creek which is theoretically accessible has crappy fishing compared to the Madison river some 100 yards away so it's rare that anyone ever bothers with it. As far as this one landowner is concerned well no one ever legally got on his property anyway so he is complaining just to be complaining..
Anyway i thought you guys might find that interesting..

rebell · 01-03-2003, 06:50 PM

boater you make a valid point. But please refrain from that type of thinking. This has come up before to property owners, its one big reason many landowners do not allow access.

As many times this type of thread has come up on ifish, and with the press that this board gets, wouldnt it be a better idea to discuss what we all could do together to get the access we want. The navigability issue can be fixed by our elected officials. I think its time to start putting some heat on these people. So far the lawsuits against landowners have got us close to nowhere. Little or no access has been gained, and the lawyers have more money in there pockets.

We need better ideas to gain the access we want, not more lawsuits.

rob allen · 01-03-2003, 07:17 PM

I was told to relay a message from a very knowledgeable individual
"The US Government listing of "Navigable Waters of the United States" (for this
area) is held by the Thirteenth Coast Guard District in Seattle and they
should be able to provide a listing."

djb · 01-03-2003, 07:18 PM

While fishing with Dave Johnson on the Necanicum about 4 years ago, we were berated by a landowner that followed us down the river for about 2 miles and told us we couldnt anchor because he owned the river bottom. Dave told me that he had a similar experience later, wether it was the same guy im not sure. Ive made the resolve that Im not going to take landowner abuse like this and if they want to call the OSP, I'll wait and let the OSP deal with it.

Travis Moncrief Fins Feathers Furs · 01-03-2003, 07:40 PM

Growing up in Tillamook I have some first hand experience with Mr. Stover and Three Rivers. In my teens or should I say my more invinceable days me and buddies used to try to float and fish it. We even had OSP show up once and he told us that he could ticket us, that the land owner did own the bottom of the river. We weren't even anchored but our oar blades were scrapping the bottom which technically was tresspassing. He asked to just move on to avoid the ticketing, which we did. I think its a case that legally they can ticket you but will try to avoid it. I remember at that time hearing about tickets that were issued were being thrown out of court so officers were not wasting their time by issuing, instead just trying to get people to move on without andy trouble. That was the last time we every did it, just wasn't worth it.

I know some of you were wondering if you could legally fish down there. I would say legally no, will you get busted if you do probably not. But is it worth all the trouble, that guy can get pretty cranky.

He is kind of a stinker, but if I owned that stretch of river I don't think I would let the public have the run of it. It's pretty tight quarter in there and I wouldn't want to have peop[le standing shoulder to shoulder fishing 50ft from your house all year long. So I guess you would have to ask yourself if it were yours what would you do.

Hope that helps with the legality issue. I know as kid I was fishing fenatic and was always sneaking on here and there. Glad those days are long behind me.

MooseTurd · 01-03-2003, 07:43 PM

http://statelands.dsl.state.or.us/wh...ewaterways.htm

Mark Mc · 01-03-2003, 08:49 PM

Hey Rob A. that was the good lead. Here is the link:

web link to "navigable waters" list

Read the fine print in the intro....this primarily lists the Coast Guard's interpretation, but does not include other determinations (for navigability) such as the Clean Water Act.

[ 01-03-2003, 09:54 PM: Message edited by: Mark Mc ]