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Please don't let this get in the way of our friendship, but...

In many of the threads on Ifish, Westfly, and other bulletin boards, and in some of the emails I receive, people ask specific questions regarding navigability. On the Bulletin Boards, no one is in charge of answering all these questions, so I thought it best if I took a good whack or two at it.

Please forgive the length of this post. I tried to answer completely and to the best of my knowledge. If others have different or more accurate information please jump in and offer a correction.

You may find some of the links at the end of this post worth looking into. If we have another Legislative fight, and I expect we will, the better informed we all are the more likely we are to win.

Some one stated that all the Montana law did was recognize the public owns the water and has a right to use it. It does more than recognize rivers belong to the public and the public can use them.

The Montana Law actually does a lot more. First, it provides far more protection of the rights of upland property owners than currently exists within Oregon. It lays down a hard and fast set of rules for both parties to follow. Best of all, since it became law, the number of streamside conflicts between property owners and recreational river users tapered off to darn near slam shut.

The Montana Law does recognize that all the water within the state belongs to the people and therefore the people have a right to use it for normal water related activities such as boating and fishing. It extends that right to all free flowing streams regardless of size. Navigability is a nonissue in Montana. Even Ted Turner cannot kick you off the stream that flows through his ranch… provided you stay below the high water line and do not break any of the other laws regarding your right to be there.

Many people bring up the very valid point that landowners have real problems with recreational river users abusing their property. It is interesting to note that the Montana Law put real teeth into the laws protecting upland property owners. Oregon already has similar laws in effect even to the extent that the fines for littering along a stream are much stiffer than for littering along a highway, yet litter tops the list of landowner complaints. Much of our problem in Oregon stems from two things: first, the slob factor, and second, lack of enforcement. We do not need more laws. We need to practice self-policing and we need more law enforcement officials on our streams.

Another question deals with who determines what is navigable:

The court created a very simple test for navigability. In the definitive case known as The Daniel Ball, 77 U.S. 557 (1870). The case involved interstate commerce, however, the decision is widely cited in navigability cases throughout the nation. Justice Field in delivering the opinion of the court stated the following:

“Two questions are presented in this case for our determination.

First: Whether the steamer was at the time designated in the libel engaged in transporting merchandise and passengers on a navigable water of the United States within the meaning of the acts of Congress; and, [77 U.S. 557, 563] Second: Whether those acts are applicable to a steamer engaged as a common carrier between places in the same State, when a portion of the merchandise transported by her is destined to places in other States, or comes from places without the State, she not running in connection with or in continuation of any line of steamers or other vessels, or any railway line leading to or from another State.

Upon the first of these questions we entertain no doubt. The doctrine of the common law as to the navigability of waters has no application in this country. Here the ebb and flow of the tide do not constitute the usual test, as in England, or any test at all of the navigability of waters. There no waters are navigable in fact, or at least to any considerable extent, which are not subject to the tide, and from this circumstance tide water and navigable water there signify substantially the same thing. But in this country the case is widely different. Some of our rivers are as navigable for many hundreds of miles above as they are below the limits of tide water, and some of them are navigable for great distances by large vessels, which are not even affected by the tide at any point during their entire length. 5 A different test must, therefore, be applied to determine the navigability of our rivers, and that is found in their navigable capacity. Those rivers must be regarded as public navigable rivers in law which are navigable in fact. And they are navigable in fact when they are used, or are susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water. And they constitute navigable waters of the United States within the meaning of the acts of Congress, in contradistinction from the navigable waters of the States, when they form in their ordinary condition by themselves, or by uniting with other waters, a continued highway over which commerce is or may be carried on with other States or foreign countries in the customary modes in which such commerce is conducted by water.”

The decision continues on, but the quoted section gets to the meat of this issue. It is a simple test, “Those rivers must be regarded as public navigable rivers in law which are navigable in fact.” That is it. Frankly, in all the cases I’ve looked at, the courts pretty much say the state has no legal right to make a determination. That is up to the Federal Courts.

Subsequent Supreme Court decisions have determined that, “And they are navigable in fact when they are used, or are susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water,” also has very specific application.

“Ordinary Condition” means in its natural state. The impact of dams, irrigation, even severe drought and flooding do not affect navigability determination.

In the expression “highways for commerce” commerce includes such activities as guided fishing trips, kayak paddling classes, and historically: the floating of logs, railroad ties, and even cedar shingle bolts.

“Customary modes of trade and travel on water” means any type of watercraft including shallow draft johnboats, canoes, and kayaks. In other words, if it floats a boat – a boat of any kind – it is by federal determination a navigable water way.

Aother question dealt with deeds and stream ownership. As to the ownership issue, I believe The Oregon State Supreme Court pretty much summed it up for us. In the case of State v. Portland General Electric Co., the courts declared that, “The upland owner bordering upon a navigable stream owns only to the high-water line. The river, and its banks and bed belong to the State.”

I was asked who determines where the high water mark is:

The Oregon Supreme Court provided a way for the public to determine the location of the line of ordinary high water. Quoting from a Division of State Lands Q & A document.

Question: “How is the ordinary high water mark determined?”

“Answer: The ordinary high water mark has been defined by courts and by statute (ORS 274.005). Summarized in general terms, these definitions say that the ordinary high water mark is a line on the bank or shore to which the high water ordinarily rises each year and is the waterward limit of upland vegetation and soil. This line is not established based on the level to which the water rises during major floods. It is generally recognizable by a visible change in the soil and vegetation. In a 1912 Oregon Supreme Court case (Sun Dial ranch vs. May Land Company) involving the Columbia and Sandy Rivers, the court said "...'high water mark' is the point below which the presence and action of the water are so common and usual and so long continued in all ordinary years as to mark upon the soil a character distinct from that of the banks with respect to vegetation as well as with respect to the soil itself." Others define the ordinary 'high water mark' as a "water mark" defining the waterward limit of the bed and banks "...which the water occupies sufficiently long and continuously to wrest it from vegetation and destroy its value for agricultural purposes."

The above quote refers to Oregon Revised Statute 274.005 as the definition of the high water mark. Here it is along with some other key definitions regarding these discussions:

3) "Line of ordinary high water" means the line on the bank or shore to which the high water ordinarily rises annually in season.

(4) "Line of ordinary low water" means the line on the bank or shore to which the low water ordinarily recedes annually in season.

(5) "Land" includes water, water rights, easements of every nature and all appurtenances to land.

(6) "Material" includes gravel, rock, sand and silt, but does not include hard minerals subject to ORS 274.610, or oil, gas and sulphur subject to ORS 274.705 to 274.860.

(7) "Submerged lands," except as provided in ORS 274.705, means lands lying below the line of ordinary low water of all navigable waters within the boundaries of this state as heretofore or hereafter established, whether such waters are tidal or nontidal.

(8) "Submersible lands," except as provided in ORS 274.705 means lands lying between the line of ordinary high water and the line of ordinary low water of all navigable waters and all islands, shore lands or other such lands held by or granted to this state by virtue of her sovereignty, wherever applicable, within the boundaries of this state as heretofore or hereafter established, whether such waters or lands are tidal or nontidal. [1967 c.421 §98 and 1967 c.616 §13; 1969 c.594 §31; 1991 c.217 §3]

To a few, it appears I and others want to take away something from landowners. That is simply not the case. In fact, one of the biggest problems with state navigability studies is that they require by law for the state to take away land. We simple want the State of Oregon to live up to its responsibility under the Public Trust Doctrine as defined by current state and federal law. I do not believe that is asking to much, do you?

Scruffy

If you would like to read any of the documents in their entirety, you will find them on line at the following web sites:

The Montana Law:
http://data.opi.state.mt.us/bills/mca/23/2/23-2-302.htm

Note this site has several pages and you will need to click the NEXT SECTION bottom at the top of the page to see more.

The Daniel Ball:
http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=77&page=557

The Division of State Lands:
http://statelands.dsl.state.or.us/whoownsthewaterways.htm

If you do not believe the public has a solid legal footing on this issue read this whole document.

Division of State Lands regarding illegal activities on streams:
http://statelands.dsl.state.or.us/yourrights.htm

Oregon Revised Statute (ORS 274.005):
http://www.leg.state.or.us/ors/274.html

If you want to read the law regarding the navigability determination process, scroll down to 274.404.
 

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Scruffy, all I have to say is you rock!
:bowdown:
Thanks for spending the time educating us all!
 

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It is because of that kind of commitment that my kids may be able to enjoy the same rivers I have. Thank you.
 
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