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Well, Senate Bill 928 received its first public hearing today.

I am not sure if it is a pattern or just the Republican way of business, however, at the time those against the bill began to speak, all and I do mean ALL the Republican Senators got up and walked out of the room. Senator Brown made excuses for them, but they could have stayed if they really gave a hoot about the hearing and the publics view on the issue. Of course, just like last time, they did hear all the testimony in favor of the bill.

As usually the pros outnumbered those of us against the bill by a four to one margin.

Senator Atkinson asked a question of one of the lobbyist regarding the federal courts and the determination of navigability. He did not have a specific answer. I did. My testimony began by addressing Senator Atkinson’s question.


Senators, thank you for this opportunity to testify regarding Senate Bill 928. Before beginning my testimony, I would like to address Senator Atkinson’s question regarding the issue of Navigability being a Federal and not a State issue.

The question of what lands and waters were received in trust by each of the 37 new States upon entering the Union on an equal footing with the Thirteen Original States is a Federal question.

In the case of The United States v. Oregon in 1935 the courts declared, ”The question, whether the waters within the state under which the lands lie are navigable or non-navigable, is a federal, not a local one.”

In Utah v. United States in 1971 the US Supreme court ruled, “The question of navigability is a federal question.”

In United States v Holt Bank, The Supreme Court ruled, “Navigability, when asserted as the basis of a right arising under the Constitution of the United States, is necessarily a question of federal law to be determined accor4ding to the general rule recognized and applied in the federal courts.”

In the case of Brewer Oil v. United States, The Supreme Court ruled that, “It is not for a state by courts or legislature, in dealing with the general subject of beds of streams, to adopt a retroactive rule for determining navigability which would destroy a title already accrued under Federal law and grant, or would enlarge what actually passed to the state, at the time of her admission, under the constitutional rule of equality here invoked.”

Senators, I have to ask where the attorneys were when this piece of legislation was drafted?


My complete testimony follows.

Senators, again thank you for this opportunity to testify against the passage of Senate Bill 928 in its present form.

Senate Bill 928 deals with two important issues. First and foremost, it will absolutely stop cold and kill dead any chance for closure on a key issue facing the State of Oregon… is the John Day River a publicly owned navigable waterway? This is a bad thing.

Secondly, it has the potential of allowing the state to develop a state-wide river management plan that will protect the rights of private property owners along public waterways while also protecting the rights of all Oregonians as put forth in the Public Trust Doctrine. This is a good thing.

The two issues are not related. Consequently, I urge you to look at both issues critically before passing this legislation. The fact that the John Day River is a navigable river or not has absolutely no bearing on the need for a state-wide river management plan, non whatsoever.

Senators, Senate Bill 928 represents the worst possible kind of legislation. Senate Bill 928 was introduced to do one thing and one thing only… strip away the legal rights of all Oregonians to enrich a few.

Senate Bill 928 was originally about a handful of landowners doing everything they can to prevent a navigability study that will once and for all put to rest the question of who really owns the John Day River bed and banks up to the natural high water mark.

In its current form, Senate Bill 928 is nothing more than a legal stall to prevent the State of Oregon from exercising its legal right to the river. It gives the John Day River Property owners four more years to dodge this issue. The State has sat on the John Day River Navigability Study request since 1997 and if Senate Bill 928 passes it will continue to sit on that request for four more years. Senators, enough is enough.

Considering what transpired in the Senate in the past forty-eight hours, in all honesty can any of you tell me that in two years we will not see another bill from the John Day River property owners that will once again attempt to strip away the publics right to enjoy a publicly owned river… and make no mistake about it… The John Day River is a publicly owned river.

On February 14, 1859, the United States Congress passed a law admitting Oregon into the Union. Some of you may not have read it. Section 2 of The Act of Congress Admitting Oregon Into (the) Union reads in part, “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 therefor.” Ladies and Gentlemen, does that leave any doubt in your minds as to who owns the John Day River?

If so, perhaps the Oregon Supreme Court can clarify it for you.

In the Winston Brothers v. State Tax Commission case the Oregon Supreme Court declared that, “It is well settled that, upon admission of this State into the Union, the state acquired title in its propriety capacity to --- all lands lying under navigable waters of the State.

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”

In the case of Wilson V. Welch, the courts once again reaffirmed the States ownership when they ruled, “The state does own the channel of the navigable rivers within its boundaries and the shore of its bays, harbors and inlets between high and low water.”

In the case of Johnson v. Knott the court reaffirmed the State’s ownership once again when it ruled, “The shores of navigable waters, and the soil under them… were reserved to the States respectively… The same rule applies to fresh-water streams that were navigable.”

Senators, I have two questions for this committee: First, exactly what is so special about Senator Ted Ferrioli’s constituents that they should be exempt from all existing laws and Supreme Court rulings regarding a navigable stream like the John Day River?

Secondly, I must ask if any of you can see a single thing in any of these Supreme Court Rulings that would lead you to believe that the public does not own the bed and banks of the John Day River? If so, I welcome your explanation at the conclusion of my comments.

Now of course I would expect to hear that the State has not claimed that the John Day River is indeed navigable.

That without a doubt, is one of the dumbest arguments I have ever heard regarding this issue. And like the ownership issue, the Supreme Courts gave us an answer.

In the case of The Daniel Ball, the Supreme Court ruled that, “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 traded and travel on water.

In other words Senators, if it floats a boat, its navigable.

Senators, a river that is navigable in fact is navigable in law. The State has spent hundreds of thousands of dollars promoting boating on the John Day River. Let me ask you this; Why would we as citizens spend our tax dollars developing and promoting recreational boating along the John Day River if it is not a navigable river? Can any of you give me a clue on this?

Moreover, the United States Coast Guard lists the John Day River as a Federal Navigable Waterway in Oregon. I understand the State of Oregon applied for and received Federal Dollars to promote boating on the John Day River as a result of this listing. If the State fails to declare the John Day River as a navigable stream, wouldn’t that constitute taking federal money under false pretenses? Do any of you know the legal ramifications of that act?

Then there is the argument that the state has not initiated a navigability study. Ask yourselves why. I can tell you why. It is because a handful of elite John Day River Property owners and their highly paid lobbyists continue to pull the necessary legislative strings to keep it from happening. Just once, I would like you to say no to their manipulation of the system.

Just once, I would like to see the Oregon Legislature do the right thing for all Oregonians.

It is my understanding that Senate Bill 928 is the fourth attempt… the fourth attempt by Senator Ted Ferrioli to pass a bill that will prevent the public from exercising its legal ownership of the John Day River. There is not a doubt in my mind that even if you pass this bill in its current form, in the next session Senator Ted Ferrioli will once again trot out legislation to keep Oregonians off the John Day River. Senator Ted Ferrioli has shown us the color of his stripe on this issue. He will not give up. The issue will not go away. And the people of Oregon will not see a solution… unless you have the courage to do the right thing now.

I urge you strip away any clause in this bill that would further prevent the John Day River navigability study from going forward immediately.

Senators, I can assure that the people of Oregon did not elected you to office to join your predecessors in doing absolutely nothing regarding the issue of navigability on the John Day River. We did not vote for you so you could pander to the needs of a few at the expense of the rest of us. In fact, I understand that only handful of the John Day River property owners feel strongly enough about this issue to continue fighting the Navigability Study at all cost. Furthermore, I understand that according to the Oregon Marine Board's 2002 Triennial Boating Survey, boating on the John Day River included the following:

6,422 Boat Use Days
4,828 Total Trips
6,524 Activity Days
5,767 Fishing Days

What makes more sense to you Senators…
Do the Navigability study and clarify the rights of in excess of 5,000 recreational river users…

Or yet again, dodge the issue and postpone the Navigability Study to appease a few elite landowners that think they should dictate what happens on a publicly owned waterway? And as I said before; The John Day River is a publicly owned navigable waterway.

I urge you strip away any clause in this bill that would further prevent the John Day River navigability study from going forward immediately. The Oregon State Land Board already said they would proceed with the study if the legislature did not produce a bill to prevent it. Please have the courage to make the State Land Board keep their word on this issue so important to thousands of Oregonians.
Thank you.

That was my testimony. Where does the Bill Stand now? No one is really sure at this point.

We did get the first amendments today. I will retype the complete amended SB 928-1 bill so Hotrod can put it up on the website. I should get that done by tomorrow.

The Cattlemen, the Farm Bureau, and Realtors are howling mad at the Governor for taking the stand he did. One even said she felt betrayed. All groups either withdrew their support or supported it with great reservation. It will be interesting to see what comes of all that.

I expect another hearing on this bill. With the bozos on the money side of things clowning around the way they did the last two days, I figure we will still be fighting this issue come September.

Even if it gets out of the Senate, it has another committee to go through. If it goes to Joint Ways and Means, it will not be sent to a House committee. One State Employees involved submitted a letter saying they did not think it would require an appropriation as amended. That means it would go to a House Committee where it could possibly receive additional amendments.

One of the Land Owner Lobbyists commented that it didn’t matter because, “we’re just waiting until Bush can appoint the right judges to the bench.” The implication being even Montana Law could go under if the present Administration manages to get enough judges appointed to the Federal Bench.

As always, you are free to use any of the information posted. If you need specific references to any of the court cases, I will provide them for you.


13,737 Posts
Thank you sir, for all your work on this....it's people like you fighting for all of us who keep things going.


PS....and yes, it's pretty typical for the "R's" to do that. Tells you their mind is made up, regardless. Let's hope it doesn't become part of a "deal". I think I'll send a paper copy letter to the gov.

568 Posts
A Standing Ovation for Scruffy!!

As President of the McCall Chapter of the Northwest Steelheaders, I applaud all of your efforts in this matter. I hope many of you ifishers appreciate the efforts brought forth to protect your river access rights.


17,499 Posts
A very BIG Ifish toast to SBV for taking his personal time to represent the interests of all us fisherfolks :cheers:

143 Posts
Thanks for spending your time on this, Scruffy. We have a navigability issue with the Pistol river pending down here, and it's not looking too good.

Of course the asphalt plant they are planning to build alongside the river isn't going to help any either.

Thanks again for your efforts.


13,737 Posts
My Letter to the governor, I'm thinking that this bill will get "traded"...

Dear Sir:
I have been following SB928, concerning river access in Oregon, with interest and trepidation. I am extremely concerned that an extremely limited group of individuals is going to benefit from this bill, to the detriment of all Oregonians.

The public enjoys many things in this state that are not available in other states…high among these is the unfettered access to our beaches. This beach access makes us the envy of all the other coastal states across the country. SB928 is a step in completely the opposite direction, limiting public access to what is rightly public property.

I do not believe that the Legislature and the State of Oregon can legally circumvent federal law concerning navigability. There have been numerous court cases at all jurisdictional levels throughout the country which re-affirm a state’s right and responsibility to make these navigability determinations…a state cannot arbitrarily avoid the determination process.

I am a lifelong resident of Oregon. I’ve been an outdoorsman, hunter, and fisherman since I can remember. I’m very concerned that this bill is ripe for “vote trading”, which even though illegal, does happen in the legislative process, especially when the two parties have retreated so far into their separate ideologies. Please do not allow this horrible bill to become law by placing your signature on it, if it does get to your desk.

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1,316 Posts
Hey Scruffy! Thanks you for all of your attention to this issue. We all really need you out there. It seems to me that the Governor should be able to force a Nav study. Would it do any good to put some pressure on his office to ensure that the ball get rolling?
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