In the past, the Ifish community supported our efforts to keep Oregon’s waterways free and open for public use. If it is okay with Jennie, I will continue to keep everyone in the Ifish community informed about what is happening with the battle.
This is about Oregon Law and your right to use your rivers for recreation
In 2003 we fought two Senate bills that would turn management and rule making for the John Day River over to a handful of local landowners. One bill died in committee, but the other made it out and passed a Senate vote by a 25 to 5 margin. It made it to the House with thirty minutes remaining before the House adjourned and it did not come to a vote. Consequently, the John Day River Navigability Study is now moving forward.
The 2003 Legislative session was the fifth session with a bill to take away your right to use your rivers for angling and other recreational activities. We expect another attempt in the next session. A group formed the Coalition for River Rights (CORR) to stop it and to resolve this matter for once and all.
I posted this on the CORR website, (
http://www.riverrights.org/) but not everyone wants to take the time to go looking for it. Please print this information out or copy it and email it to everyone you know that thinks being able to boat and fish is important.
CORR believes that everyone should read the laws that protect their right to use Oregon’s waterways for fun. The issue really comes down to five key points and one ridiculous point.
1. The United States Congress gave all navigable waters to the people of Oregon and said they must remain “forever free.”
2. According to Oregon law, all the water in Oregon belongs to the people of Oregon.
3. According to Oregon law, the land under navigable streams in Oregon belongs to the people of Oregon.
4. The United States Supreme Court said that if a stream can float a boat – even a rubber raft, the stream is navigable.
5. The United States Supreme Court gave the people of Oregon an easy four-part test to see if a stream is navigable.
6. Every session, an Oregon State Senator or Representative tries to pretend points 1 thru 5 never happened.
1. How did the U.S. Congress give us our waterways?
Known as “The Oregon Admissions Act,”
The Act of Congress Admitting Oregon Into The Union is in effect, a contract between the Congress of the United States of America and the newly formed State of Oregon. When approved on February 14, 1859, it became binding on all parties. Ratifying this contract was among the first official acts of the newly formed Oregon State Legislature. The second section assures all United States Citizens of the right to use Oregon’s rivers for recreation. It reads in part as follows:
“Jurisdiction over waters forming boundary of state; use of navigable waters as free highways. … and said rivers and waters, and all the navigable waters of said State, shall be common highways and forever free, as well as to the inhabitants of said State as to all other citizens of the United States, without any tax, duty, impost, or toll Therefore.”
It seems clear to you and I, but every session some Oregon Senator or Representative tries to get a law passed to give away what the United States Congress declared must remain yours forever.
To read the complete Oregon Admissions Act visit the link below:
http://www.leg.state.or.us/orcons/admacts.html
2. Who Owns Oregon’s Water?
The State of Oregon has dozens of laws that affect how water can be used and who can use it, however, the State has only one law that explains who owns all the water within Oregon.
“Oregon Revised Statute 537.110 Public ownership of waters. All water within the state from all sources of water supply belongs to the public.”
That’s It! Could it be any easier to understand? You the public own every drop of water in the State of Oregon. Why is it that every session one or two Senators or Representatives try to hand over control of your water to an elite group that wants it for their own personal playground?
To read all of Oregon’s water usage laws go to the following web site and scroll down the page.
http://www.leg.state.or.us/ors/537.html
3. You own the land under most waterways.
In 1963, before everyone became so greedy with your water, the Oregon State Legislature passed a law that clarified your ownership of all navigable waterways in Oregon. On several occasions a Senator has introduced a bill to just give your land away with a Quit Claim Deed! Is that what you want, some Senator just giving your land away?
“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.
To read more about your submerged and submersible lands, go the link below. You will also find many important definitions that will help you understand your rights.
http://www.leg.state.or.us/ors/274.html
4. What exactly does “Navigable” mean?
The Oregon Legislature has no say in this matter. Because the United States Congress gave the navigable waterways to the Citizens of Oregon, the United States Supreme Court defines what a navigable stream is. Almost every session some Senator or Representative introduces a bill to make this so complicated even a boat full of attorneys couldn’t sort it out. More red tape, is that what you want?
In a landmark Supreme Court Case called “The Daniel Ball,” the United States Supreme Court ruled that, “Those rivers must be regarded as public navigable rivers in law which are navigable in fact.” In other words, if a stream can float any type of watercraft, the stream is a navigable waterway.
You can find “The Daniel Ball” case at the following link:
http://caselaw.lp.findlaw.com/script...ol=77&page=557
5. How can you tell if it is “Navigable?”
Over the years the United States Supreme Court provided Oregon with a simple four-part test to determine what is or isn’t a navigable stream. With this simple test, any citizen should be able to determine if a stream qualifies. Yet, every legislative session some Oregon State Senator or Representative introduces a bill to make this far more complicated than it needs to be.
The following information came right off the Oregon Division of State Lands website:
“Federal court decisions have developed the following test to determine whether a waterway is "navigable" for "title" (that is, public ownership) purposes:
1. The waterway must be capable of, or susceptible to use as a highway for the transportation of people or goods,
2. Transportation must be conducted in customary modes of trade and travel on water,
3. Waters must be navigable in their natural and ordinary condition, and
4. Navigability is determined as of the date of Oregon's statehood (February 14, 1859).
The courts have determined that the use or potential for use by almost any type of watercraft (for example, canoe, ferry, or ship) is sufficient to determine navigability. Further, they have found that the use did not have to occur in 1859; it is enough that it could have occurred, bringing rise to the concept of "susceptibility." Uses of a waterway that have been historically documented but no longer exist can also help to prove a waterway is navigable (for example, log drives or steamboats). As a general rule, the use of the waterway must have typically either occurred over many years, or many times over a few years.
For example, the McKenzie River case, decided by the U.S. Court of Appeals in 1982, confirmed that log drives and commercial tourism (that is, drift boat fishing guides) were sufficient evidence to prove navigability and, therefore, public ownership to the river's bed and banks.
The State of Oregon uses all of these criteria to support the public's claim of waterway ownership. Additionally, numerous court cases, most notably Shively v. Bowlby, 152 U.S. 1 (1894), and Phillips Petroleum v. Mississippi, 484 U.S. 469 (1988) have affirmed the state's ownership of tidal waters under the separate "tidality test.”
To read more about public ownership of Oregon’s waterways visit Oregon’s Division of State Lands web site at the following link. We recommend you spend some time exploring the entire site. You will find lots of information to help you understand Oregon’s recreational water use issues.
http://statelands.dsl.state.or.us/wh...ewaterways.htm
What does the Supreme Court say?
Over the years, the Supreme Court reviewed many cases about navigable waterways. The 1894 a case from Astoria, Oregon known as the Shively v. Bowlby case was so important that State Supreme Courts all across America consider it when they review navigability cases. You would think that in a State that set the standard for protecting public ownership of navigable waterways, the State Legislature would have better things to do than to try and strip you of your rights, wouldn’t you? Somehow, a small minority of our Senators and Representatives just don’t get it.
A Review:
1. The United States Congress gave all navigable waters to the people of Oregon and said they must remain “forever free.”
2. According to Oregon law, all the water in Oregon belongs to the people of Oregon.
3. According to Oregon law, all the land under all the navigable streams belongs to the people of Oregon.
4. According to the United States Supreme Court, if a stream floats a boat it is by law a navigable stream.
5. The United States Supreme Court gave the people of Oregon an easy four-part test to see if a stream is navigable.
6. Every session an Oregon State Senator or Representative tries to pretend items 1 thru 5, don’t amount to a hill of beans. What do you think?
I am currently putting together a list of Oregon Supreme Court cases that have upheld your right to use Oregon’s Rivers and Streams for recreational purposes. I will post the list when it is finished.
Just remember one thing: if you’re not willing to fight to protect your rights, people with more money and more power will take them away from you. That is what the John Day River battle was all about, a handful of property owners trying to make it illegal to fish and possibly even float on much of the John Day River.
Oregon Law Sez...
Nuttinbutnet
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