IFish Fishing Forum banner
1 - 20 of 30 Posts

·
Registered
Joined
·
405 Posts
Discussion Starter · #1 ·
I have a friend that has some choice land on a creek in the metro area and in the distant past everybody fished there when the silvers were in, some people made a mess of it, some just went in and snagged fish after fish, most never contacted the land owner for permission then a club took over. The contract is up and now the person I know is questioning what should they do. Try to sell the rights to the club again, make it semi public (fee per person) or completely restrict access. I told her to make it a ifish spot. Maybe a fishing access spot with X amount of keys for a gate with X amount buy in?? Any good ideas? I will forward this to them

thanks chris
 

·
Registered
Joined
·
1,640 Posts
Martin,

I know the place you are talking about. I've never fished it because I followed the road down to the marked gate, I turned around and walked back to the road looking for another trail down to the water. When I didn't find another trail, I went to a spot I'd fished before.

I don't have an idea about how best to handle the situation. She should do what feels best for her.
 

·
Registered
Joined
·
171 Posts
If the stream is navigable, that is capabable of floating a canoe or kayak, or was ever used in commerce, the bed of the stream is covered under the Public Trust Doctrine, the Equal Footings Doctrine, and the Oregon Admissions Act. That means that you have a legal right to wade the stream and fish it between the high water marks on either bank without having to gain permission. This notion has been upheld in many state and federal supreme court decisions.

If your friend looks at her deed and her title insurance policy, she may well see language to that effect. It is found in many -- not all, but many -- deeds to property that have a stream of any consequence flowing across it. Title Insurance Companies routinely include a disclaimer that says they won't pay if someone contests the ownership of a streambed.

Of course, the property owner does not have to give the public access across private property to get to the stream. Once you access a navigable stream from public property, (bridge, highway right away, park, etc.) then you have the right to use it for transportation, angling, and commerce. That is the Federal law and no state or local laws or ordinaces can change that.

Of course, you may get arrested and prosecuted anyway. And it may cost you some cash to prove you have this right. The Northwest Steelheaders went $45,000 in debt defending two fishermen that exercised their right to fish on the John Day River. The Steelheaders and the fishermen won.

This is exactly why a few of us have been fighting tooth and nail to defeat Senate Bill 928. It is a bill that will complicate and confuse this basic right. If a stream is navigable in fact, it is navigable in law, and the State of Oregon was mandated at the time of Statehood, to hold all navigable streams in public trust forever.

by the way, if it is navigable, that club you speak of also has no right to keep you off the stream provided you access it from public property or through private property with permission.

If you would like to see Oregon have a stream access law like Montana's, please help us defeat Senate Bill 928 and force Oregon to live up to its responsibility regarding this issue.
 

·
Registered
Joined
·
405 Posts
Discussion Starter · #4 ·
Fshklr I agree with you in that I have not paid to fish a section of land either and I dont like the idea, but the land owner wants to control the people that come on their property in that they want clean visitors and lawful visitors. The club is one way. They want to have some control themselves, the ability to revoke privledges or still have some say of who comes or goes.

SBV I will have them look at the paperwork for the purchase of their home to find out the high water mark and the basic right rules. How could I look up the Senate bill to pass it along also.

Thanks for the comments
 

·
Registered
Joined
·
2,020 Posts
Tough choice. If I were in her shoes and I had the right to restrict access, I would probably close it to everyone except for the few people that I have invited to fish there. If I didn't have the right to control access, I would post signs reminding the fisherman of their resonsibility to fish legally and to keep the area clean. When that didn't work, I would take pictures of the dirtbags and post them here on ifish. If it's where I think it is, I understand her pain. I have worked at the hatchery above there and maintained the fish ladders in the area. We had to be REAL careful to watch for buzz bombs and other snagging gear when handling the fish at the hatchery. If she decides to run it as a private fishing operation(assuming it's legal) let me know. I might want to join just so that I can take my son to that area. I miss being able to hike there.
 

·
Registered
Joined
·
171 Posts
Martin 85,

You can find our more about Senate Bills 293 and 928 at the following web site:

http://www.defeat-sb293.org

The Oregon Division of State Land maintains a web site regarding the issue of navigable waterways. You can read about "Who owns the waterways" at the following web site.

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


I do want to clarify one point. There is a difference between access and the right to use the bed of a navigable waterway to the high water mark.

Access implies the land owner has to let you cross private property to reach the stream. They don't. They also do not have the right to harass you while you use a waterway for transportation, angling, or commerce.

If you would like to read about the Federal Laws regarding this matter visit the following web site:

http://www.nors.org/us-law-menu.htm
 

·
Banned
Joined
·
8,867 Posts
Pay fishing...for bank space?. Never have and never will. Usually these areas are created after huge amounts of traffic and no respect for land owner and trash left behind..we've all seen the line, beer bottles and cans, bait containers, etc, littering an area. Too bad that is her only option after such neglect and abuse :depressed:
 

·
Registered
Joined
·
1,741 Posts
Hypothetically, let's say we're talking about Eagle creek. The upper property has a federal fish ladder and road. From what I understand, the property owner cannot keep people from travelling the road to the ladder and the creek upriver and down so many feet. 500feet maybe? However, the creek is federally considered non-navigable and since you can't fish above or below the ladder within the deadline, you would have to be trespassing to fish it from the banks or even standing in the middle of the creek. Property on navagable rivers are owned to the high water mark. But, non navigable is owned to the middle of the main channel.
There have been a lot of problems there in the past and it's a shame that it can't be self policed. That's the reason it was leased to the OFC, I was told. The idea was that the club would police it so the property owners wouldn't have to. I miss that stretch of the river and wish it was available to the public. I'm not nor have ever been a member of OFC or any other club for that matter. I know a few guys that are members and they are all class act people. It seemed like a win-win situation for the property owner to lease it out. If they were to operate a pay site there, they would have to police it themselves just as they would have to if it was closed to everyone.
I don't like the idea of this area or any other being only accessible to the people that can afford it. However, it's better than nobody enjoying it.
 

·
Registered
Joined
·
882 Posts
In my opinion she should close it from Sept to Nov maybe leaving it open at that time to only people she knows and trusts. I bet this would eliminate 90% of the problem and it would still be open for the winter steelhead run which attracts way less people who are interested in fishing not snagging. :smile:
 

·
Registered
Joined
·
624 Posts
Although I do nto think this will work for the particular stretch of river you are talking about, perhaps a modification of the following situation may help.

When I started fishing for steelhead in the 70's, one of my favorite places was on the Sandy River in a section that was donated to the Nature Conservatory to manage while allowing the originial property owner access through the property to get to their house.

This stretch was determined that any more than 7 rods fishing at one time would be too crowded. Parking was allowed at the top and you had to hike in about a mile. There was a chalk board at the top with 7 slots where you could sign in, then walk in and fish. This worked well for many years although the people that fished this area were ones that were very respectful of the environment and would not snag. This is where I was introduced to catch and release fishing and although I caught many spring steelhead there, I did not take any. I have great memories of fishing that stretch and the people I met in that area. It is the closest thing I have come across to public access fishing utopia.

Perhaps a combination of limiting the number of fishers, closure season, education on snagging, enforcement, and peer pressure might work .... there is hope.
 

·
Registered
Joined
·
6,569 Posts
If it was mine, I would not allow public access.

I would consider the club if I needed some money - is it ENOUGH money ?

Charging a fee per person would be a pain, and it seems like it would get trashed anyway.
 

·
Registered
Joined
·
405 Posts
Discussion Starter · #13 ·
It seems that they would like to make some money to put back into their propery. If I owned it I would keep it private and bring in a few that were known and respectful or figure out a way to determine that they were. The area is a great place and I think that they want people to enjoy it but want to have some control. I would love to take my kids down there and just swim in the summer let alone do some fishing. I will talk with them tonight or tommorow.
 

·
Registered
Joined
·
405 Posts
Discussion Starter · #14 ·
One more thing how could they look up the OFC do they have a web site or a monthly meeting that they could look up or attend to see some of the group?
 

·
Registered
Joined
·
1,259 Posts
I miss being able to fish this stretch of water for the winter steelies too. It's a tough situation for sure. I know how bad the salmon mob can be. They forced us to lose this section of water 2 years ago, and then we lost the coffer dam on the Wind this year.

I would never join the OFC because they restrict they're membership to people who only have big $$ to put up and close sections of water down the general public. Kind of like a waterfowl club only the fishing club doesn't have to do the year round planning to bring the game to their 'spread.'

I would rather see something like and actively managed pay per use. Kind of like some of the launches and sections of water on the Wilson. People could pay a minimal fee for access, and could then be educated or encouraged to not litter. The problem is this is a remote section of water and hard to monitor. You could explain to them that this is their 'last chance' and if it gets out of control again the water will be closed forever. Another option is to provide garbage cans. The problem is, that from what I hear happened on Blue Creek on the Cowlitz (and maybe Kalama?) the cans start to overflow very quickly. Maybe the price of admission could be raised to cover the cost of having the garbage packed out. I'm sure that you could pay someone enough to haul out trash from all the revenue that would be generated from the pay access.
 

·
Registered
Joined
·
172 Posts
The club Idea would be the most hands off but only a select few get to use the stream. I have seen similar issues on another river down the valley. The landowners decided to gate it off and only allow people they knew and trusted to use the roads down to the river. However they didn't count on the absolute disrespect for other peoples property in their area. They put up a fairly substantial metal gate on the main road to the river only to come back in a week or so to find that someone had hooked onto it and drug it out so that they could drive past. They are not sure what they are going to do because they have many thousands of dollars worth of equipoment sitting in the fields below the gate and don't want it to be destroyed or vandalized. They have called the county sheriff's office but they said it wasn't of high enough importance to deal with. Any suggestions on this one would also be appreciated. Gates don't seem to work!!!!

[ 07-28-2003, 10:50 AM: Message edited by: FishOrDie ]
 

·
Registered
Joined
·
171 Posts
Catch 22,

To my knowledge, Eagle Creek was never declared non navigable by a Federal Court. I have done a ton of research on this subject as of late and do not recall seeing this Supreme Court decision. Can you please give me the case information so I can look it up?

For a stream to be declared non-navigable by a Federal Court, there must be a case brought before a Federal Court on appeal. The Court will only make a determination of navigability when hearing a specific case.

The Federal Courts have determined that it is up to the landowner to prove a stream non-navigable. The state and the public are not required to prove that it is navigable.

Furthmore, the Federal Courts determined that it is in the best interest of all citizens to assume a stream is navigable until proven otherwise.

The courts have declared that their is no scientific test for navigability. All the testimony from hydrologists, engineers, and other so-called experts will have no bearing on a navigability case. In fact the Supreme Court has a fairly simple four part test. The following is directly from the Orgon Division of State Lands Web Page:

Question: What does the term "navigable" mean?

Answer: Federal court decisions have developed the following test to determine whether a waterway is "navigable" for "title" (that is, public ownership) purposes:

The waterway must be capable of, or susceptible to use as a highway for the transportation of people or goods,

Transportation must be conducted in customary modes of trade and travel on water,

Waters must be navigable in their natural and ordinary condition, and

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.

---------- end quote --------

The Court only looks at one fact... can it float a boat under normal conditions. Has anyone taken a canoe or kayak down Eagel Creek, or can anyone do so in the future? That is all that matters. Even though a stream may not be navigable at extreme high and extreme low water conditions, the stream can still be considered navigable if under normal conditions, a craft can pass. The Courts have declared that sandbars, gravel bars, and even impassible rapids do not make a stream non-navigable.

The courts also make allowance for private ownership of the streambed on a navigable water way. They recognize that the land may be deeded and the owner has certain rights (jus privatum), however, the public also owns the bed to highwater mark and has certain rights (jus publicum). In the case of dual ownership, the public's rights take precedent over private rights which always remain subservient. In other words, it does not matter what the deed says, if it is navigable in fact, the public has the right under the Public Trust Doctrine, to use it because it is navigable in law.

Scruffy
 

·
Registered
Joined
·
160 Posts
I have fished that stream many times and I caught my first silver there... I love that stretch of Eagle creek and I would hike it for miles from the second ladder up... Its absolutely beautiful and its a shame that someone can own that and not share it with everyone else.
Yes, I agree that people are disrespectful and trash the place pretty good but I have seen way worse than that. People have bad ethics up there because its secluded and easy to get away with.
All I can really say about the issue though is that I would like to see it open again. If anything, restricted to say 5 cars and no more than three per vehicle. I have been there during the peak of the run and saw no other people down there while other times there were at least 3 or 4 per hole. If I had access and it was proven to be navigable, I would find a different way there and flex my constitutional right to fish and hike that stream. Its beautiful and unfortunately, we the anglers should be more responsible in policing the river... Maybe if we did that in the first place, it wouldn't be so bad now.

Fish on
Romeo
 

·
Registered
Joined
·
464 Posts
If we are talking about that area on Eagle Creek that was leased out to the Oregon fishing club, I must say it was my favorite spot on the whole river. My dad took me into that canyon and we used to fish it a couple times a year for steelhead. I went for coho once and was utterly appauled at the snagging, traffic and garbage. It was so disgusting - I say lease it out.. I made it back in there last year by hiking down from the hatchery w/ my dad, a long day but it was worth it.. Good for the Oregon fishing club.
 

·
Registered
Joined
·
405 Posts
Discussion Starter · #20 ·
Personaly I too would like to see all the responsable people have access and not just a club member that pays big bucks (so I hear) to be able to fish and have great times with their families and If necessary pay a user fee that is reasonable and fair to cover garbage and upkeep of the road and or gate etc. But I'm not sure how they could regulate the people once in and paid, or how good the honor system would work with some of the people I have seen down lower on the creek? I am giving all the info and private e-mails to them tommorow and some past posts print outs and let them decide.

thanks chris
 
1 - 20 of 30 Posts
Top