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(lifted from the oregonian)

State study finds John Day River navigable

By JEFF BARNARD
The Associated Press
5/26/2004, 7:07 p.m. PT

GRANTS PASS, Ore. (AP) — Most of the John Day River in Eastern Oregon would be declared a navigable river, opening private land to boaters and anglers, under a recommendation by the Department of State Lands.

The draft report was prompted by a 1999 Marion County Circuit Court ruling that sections of the John Day met the criteria for a navigable river. Then, opposing sides could not agree last year on legislation that would have set out terms for public access to rivers around the state.

The issue of navigability has become increasingly contentious statewide as farms and ranches where boaters and anglers were routinely allowed have been bought by people who do not want strangers in their backyards.

"We are not after more access to rivers," said Gary Benson of the Association of Northwest Steelheaders, the sport fishing group that petitioned for the navigability study in 1997 and sued in 1999 on behalf of a fisherman cited for trespassing on the John Day. "We believe it's about clarity."

A public hearing is scheduled for June 22 in Fossil and the State Land Board is to decide next April whether to declare the John Day navigable.

The 1859 law making Oregon a state declared the bed and banks of rivers up to the high water mark were owned by the state if they had been used for commercial purposes, such as moving logs or freight. So far 11 rivers have been declared navigable and studies are pending on six more.

The 2002 declaration that the lower 37 1/2 miles of the Sandy River near Portland were navigable created an uproar among property owners.

The State Lands Board is to decide next month whether to authorize a study of the upper and middle stretches of the Rogue River, where the numbers of riverfront homes and anglers are both increasing.

Not as popular as the Deschutes and Rogue Rivers, the John Day is the second-longest free-flowing river in the nation. The river has seen increased use by rafters and anglers because of the scenic canyon stretch between Clarno and Cottonwood Bridge and world-class smallmouth bass fishing.

The study looked at 174 miles of the John Day from Kimberly near the confluence with the North Fork of the John Day River down to Tumwater Falls, located 10 miles from where the John Day flows into the Columbia River.

The study concluded that the river has been used since statehood by sternwheelers, a survey crew boat, ferries, recreational boats and rafts, and to transport logs. Before statehood, Indians navigated the river in canoes. Most of the rafts, canoes and driftboats now using the river have draft shallow enough to negotiate the river even at low summer flows.

All or parts of the Columbia, Willamette, Coos, Coquille, Klamath, Rogue, Snake, Umpqua, Chetco, McKenzie and Sandy rivers have been declared navigable. Studies are pending on the middle and upper Rogue, the North Santiam river, the South Umpqua, the Trask, the Kilchis and the South Santiam.

The Oregon Farm Bureau, which represented farmers and ranchers in efforts to legislate a solution, did not immediately return a telephone call for comment.

Sounds like a Positive step to me.

There was a thread a short while ago which cityed this 1859 law. THE POWER OF IFISH!!!!

El
 

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The Grants Pass article was a brief rewrite of a 33 page preliminary report on navigability and the John Day River. I urge you all to read the entire report for yourselves. The link follows.

http://statelands.dsl.state.or.us/johnday_draft_nav_study.pdf

It is an interesting history lesson as well as a good demonstration as to how to apply court rulings to the Navigability issue.

The preliminary report recommended the State Land Board declare the John Day Navigable, however, that does not mean they will. They still have the option of denying the facts in the case and declaring the John Day River not navigable for title purposes. Stay vigilent and do not hesitate to let your views be known on this issue, regardless of those views. The DSL should hear from all concerned parties.

There will be a public hearing on June 22, 2004 in Fossil Oregon. Here is a link for the details of the hearing. If you can attend, I recommend it. I suspect it will be better than pro wrestling, a real knock-down, dragout scrap. Believe me, I intend to be there if I can.

http://statelands.dsl.state.or.us/johnday_notice_may_2004.htm

Remember, the Division of State Lands did not create this mess. The Oregon State Legislature did. DSL is just following Legislative orders and complying with federal law. The process takes about 18 months and the John Day Study will not be completed until December of 2004. That is how the law on this works. If you want to know about the process, here is a link.

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


Someone asked me if I thought the John Day Navigability Study could affect what is happening on the Deschutes River.

It really holds no significance for the Deschutes River. Until someone requests a Navigability Study for the Deschutes River, the events on that river will continue to unfold as they have been. In addition to a limited entry boat permit system, there have been persistant rumors of a limited entry bank use system as well. Wether that will ever happen or not, only history will tell us.

Speaking of history and the Deschutes, I have found some amazing stuff.

The State of Oregon Declared the Deschutes River Navigable in 1917 and reaffirmed that declaration in 1923.

The State sold a log drive franchise to a company to float logs down the Metolius River and the Deschutes River to a place calle Kascala (sp) where there was a railhead. Logs were boomed then removed from the river and loaded on rail cars. Evidence enough to prove navigability.

Now for the interesting parts.

In 1940, the United States Supreme Court ruled that, "When once found to be navigable, a waterway remains so." United States v. Appalachian Electric Power Co., 311 U.S. 377, 408 (1940).

In 1955, the State of Oregon argued before the Supreme Court of the United States that the Deschutes River was not navigable. In his dessenting opinion Mr. Justice Doulas stated that;

"Oregon's position has for its support two other decisions of this Court, both construing the Desert Land Act. The first of these is California Oregon Power Co. v. Cemetn Co., 295 U.S. 142, which construed the rpvision of the Desert Land Act, crucial heare, which reades:

"all surplus water over and above such actual appropriation and use, together with the water of all lakes, rivers and other sources of water supply upon the public lands and not navigable, shall remain and be helf free for teh appropriation and use of the public for irrigation, mining and manufacturing purposes subject to existing rights."
The Court interpreted that provision as follows:

"The fair construction of the provision now under reveiw is that Congress intendded to establish the rule for the future the land should be patented separeately; and that al non-navibable waters thereon should be reserved for the use of the public under the laws of hte states and territories named." 295 U.S. 142, 162.
Federal Power Commission v. Oregon Et Al. 349 U.S. 435 (1955) .
There is more.

In 1957, the Oregon State Legislature quietly overturned the 1917 law that had declared the Deschutes River navigable and a public highway.

Now it really gets interesting.

While what I am about to tell you may not make sense at first, please bear with me. It will at the end.

In 1886, the United States made a treaty with the Crow Nation in Montana. In describing the boundaries of the reservation, the treaty reads as follows:
...commencing where the 107th degreee of longitued west of Geenwich corsses the south boundary of Montana Territory; thence north along said 107th meriedian to the mid-channel of the Yellowstone Rvier; thence up said mid-channel of the Yellowston to the point where it crosses the said southern boundary of Monatana...
On June 25, 1855 the U.S. Government negotiated a treaty with the Tribes of Middle Oregon which reads in part as follows:
Commencing in the middle of the channel of the De Chutes River opposite the eastern termination of range of high lands usually knowsn as the Mutton Mountains; thence westerly to the summit of said range, along the divide to its connection wtih the Cascade Mountains; thence to the summit of said mountains; thence southerly to Mount Jefferson; thnce down the main branch of the De Chutes River; thence down the middle of the channel of said river to the place of bginning.
Now in 1981 there was a big scrap in Monatana about who got to control the fishing rights on the Big Horn River below Yellowtail Dam. Some of you may have fished there a time or two so you know the outcome. The case made it to the Supreme Court of the United States. The opinion was rather longwinded but it reads in part as follows:
The mere fact that the bed of a navigable water lies within the boundaries described in the treaty does not make the riverbved part of the conveyed land, especially when there is no express reference to the river bed that might overcome the presumption agains its conveyance.
The following timeline is an interesting sequence of dates;

June 25, 1855, Treaty With The Tribes of Middle Oregon negotiated.

February 14, 1859, Oregon Admissions Act became law and the bed and banks of all navigable streams became the property of the State of Oregon. The Oregon Admissions Act states that "...all navigable watrers of said State, shall be common highways and forever free, as well as to the inhabitants of said State as to all other citizens fo the United States, without any tax, duty , impost, or toll therefor."

March 8, 1859, U.S. Congress ratified the Treaty With the Tribes of Middle Oregon. after the State of Oregon had assumed title to the Bed and Banks of the Deschutes River.

April 18, 1859, The Treaty With the Tribes of Middle Oregon is proclaimed.

February 13, 1917, the Oregon Legislature declares the Deschutes River Navigable.

February 23, 1923, the Oregon Legislature reaffirms that the Deschutes River is navigable.

July 6, 1933, State of Oregon sells a franchise to Western Pine Lumber Company to develop and operate a log booming company on the Metolius and Deschutes Rivers, which they do.

December 16, 1940 United States Supreme Court rules that, "When once found to be navigable, a waterway remains so."

March 2-3, 1955, Oregon Attorney General argues before the U.S. Supreme Court that the Deschutes River is not navigable.

June 6, 1957, the Oregon Legislature quietly repeals the law declaring the Deschutes River Navigable.

February, 1993, The Lower Deschutes River Management Plan Record of Decision on page 10 states, "The State of Oregon through the Division of State Lands, claims ownership of the bed and banks (up to ordinary high water) of the river within the planning area (other than reservation lands).

If you call the DSL and ask about this, they will deny the owenrship claim.

In my opinion, and it is only my opinion, if anyone wants to settle the numerous questions regarding the Deschutes River, then the question of Navigability must be addressed. There is at this time, no pending navigability study for the Deschutes River.

I know this does not answer the question of how the John Day Study might impact the Deschutes, but it does give you some history that could impact a Deschutes River Navigability Study, should someone ask for one. The fact is, every river is treated separately. Nothing that happens on the John Day will impact the Deschutes, however, if the State Land Board declares the John Day Navigable, it will strenghthen the case for a Navigable Declaration on the Deschutes. Someone will have to ask for a study first, and that won't be me. I don't got a boat so I don't float.

Frankly, I don't give a dang about who owns the Riverbed, I do believe I have a right to float, anchor, wade and walk below the ordinary highwater line on any stream declared navigable by the State of Oregon in 1917 and reaffirmed as such in 1923.

The Oregon Legislature took away the right of all Oregonians to float, anchor, wade, and walk below the line of ordinary high water on almost all Oregon streams in 1973 and I want it restored. If you agree with me, please contact your legislature and let them know you are sick and tired of their sneaky, underhanded attempts to privatize Oregon's waterways.

If you don't know who your Senator or Representatives is, you can find them at this link:

http://www.leg.state.or.us/findlegsltr/


Scruffy

P.S. I am not an attorney so what I tell you all is my opinion. The history is accurate. The court cases are real. The interpretation is my own, not some lawyers. When things go to court, there is never a gurantee what a judge might do.

I do beleive it is up to everyone in Oregon to study up on their rights on our rivers and then be prepared to defend those rights. I gfigure my job is just to make it easier for you to find the information.
 
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