Re: More on River Access debate
Skip attended the hearing.
This is what he had to say about the experience:
Here are some of the random thoughts I’m left with after attending today’s State Land Board meeting:
The Navigability Test is fine, but limiting, expensive and slow (of course we all knew that!)...it’s a snapshot of what the river was, how it was used and what it was used for at the start of statehood (1859)...it’s unwieldy to say the least...
The Attorney General’s draft report specifically states that ownership of the water, beds and banks have NEVER been private...Attorney Richard Whitman testified that ownership began with Federal ownership during the time of the Oregon Territory and was transferred to the State of Oregon in the Admission Acts...regardless of how a deed is written, or how long the deed has been in effect, the state has never relinquished any ownership…further, two points need to be made – 1.) an incorrect deed is not the fault of the recreational user and should not be used as a tool for denying the right to the rivers, and 2.) the idea of a “taking” or a paying taxes on property that was not supposed to be taxed is irrelevant to the issue of the public’s right to use the rivers…
The route we need to take is that of Doctrine of Public Use...Assistant Attorney General Lore Bensel explained that the Doctrine of Public Use, in a nutshell, is what is here and now…Boaters and bank users are protected below the line of ordinary high water…in other words, so long as you gain access via public easement (or by permission of landowner) you may travel up and down the rivers…in fact you may actually travel beyond the line of ordinary high water in the event that the there is some barrier so long as you immediately return to the river below the line of ordinary high water…further, the Doctrine of Public Use extends the public’s right far beyond where nav studies would extend – we’d have much more water that is available to fish.
During the testimony by Ms. Bensel, I couldn’t help but think that she was actually talking about SB423. It’s still confusing to me how the SLB, and Governor Kulongoski in particular, could only phrase it’s questions in terms of SB1028 versus the Doctrine of Public Use...
The Doctrine of Public Use is really what many of us had originally assumed was the law...the Oregon State Attorney General’s office has assured the State Land Board that the Appellate Courts will affirm the public’s rights based on this Doctrine...
This delay in the John Day Navigability Study vote is a mixed blessing...on the negative side, we still haven’t resolved the issue...in spite of the fact that the Navigability Committee recommendation an immediate approval, the SLB has postponed their decision for three reasons: 1.) They want to read the AG’s completed report; 2.) They want to see how the various bills match up with Navigability and the Doctrine of Public Use standards (the AG’s office will be preparing that as well, and 3.) They are hoping to get a feel for the public’s mood during the senate hearings regarding the various bills (SB423, 1028 and 1014).
On the positive side, we’re given still more time to organize...there still is no set date or time for a hearing on SB 1028 (or SB 423 for that matter, although there are reasons to be hopeful)...until we know when those events are scheduled, we need to keep writing letters to Salem and the local newspapers...we need to keep collecting names for the e-mailings...we need to reach out more to our local businesses, our neighbors who are hunters, kayakers and rafters...
We need to keep working...today was not a defeat!!!...keep going...keep fighting...and stay the course....
Skip
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RichH
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