Posted by: Hugh ODonnell | January 21, 2008

Should We Be Asking Some Questions of the DSL?

“As you are aware, the Attorney General issued a numbered opinion in 2005 that discussed what rights the Department of Justice believes the public has to use the bed and banks of waterways for which navigability determination has not yet been made. The opinion, however, has not been tested in the courts. In both the notice and the one-page flyer, we specifically refer to his opinion and briefly discuss its content.”

The above quote is from a Department of State Lands letter to a Westfly.com Oregon forum member. (Find the letter, along with more information, on this thread.)

Did DSL forget about the State of Oregon vs. Jesse Parker, case # 05M5909, from the Wallowa River case?

Posted in DSL, Jesse Parker, Wallowa River

« River Rights Presentation at FFF Fly Tying Expo in March 2008
Grassroots for the Applegate River »

Responses

Anyone who doubts that our River Rights have not been tested in court need to read the entire case. Additional cases are mentioned that were decided in favor of the river user. The DSL needs to do their homework instead of relying on errant deeds that do not allow for our Federal and State River Rights.

By: Gene Trump on January 22, 2008
at 9:32 pm

I read the transcript under the premise that I was just going to skip to the end.

70 minutes later, I got through the whole damn thing- every last word.

Wow.

- I can’t believe the surveyor was allowed to testify on the record about subject matter he was not an expert on- or give his take on the A.G’s interpretation of ‘in fact navigability’. Thankfully, in the end, I’m glad the judge sided with in fact navigability because it made the disputed claims of valid agency as well as the fact that no actual trespass was observed redundant to the outcome.

It’s also good to know that this has set a precedent that you can legally walk along a mutually bordered county road and stop to tie your shoe at the side of the road instead of being forced to do so in the middle.

Oh, and wasn’t that diagram and the language used by CWO put together in ‘04? If so, then it’s just an issue of outdated errata. Yes, I know- hard to believe Oregon would miss a detail like that! Now Washington, sure- but Oregon?!

By: BPayne on January 22, 2008
at 11:56 pm

Quote from the Judge: “Who owns the fish? The State does, I guess I just don’t see it. I’m going to
grant the motion for judgment acquittal. I don’t need to take this opinion home and
research it because just a common sense application of the public use doctrine says that
they have the right to fish, and they have the right to use the adjoining land for incidental
purposes related to fishing.”

I just love this quote.

It was a long read, but really shows how gray areas are “viewed” by different people. I sure hope the DSL can get some work done and help clarify the gray areas.

A pure battle over jealousy on the river.

By: Etamaman on January 26, 2008
at 6:41 pm

It’s a great read. It seriously has courtroom drama, and the good guy wins.

I don’t want to be schlocky, but its movie material.

By: Heather on January 26, 2008
at 7:11 pm

I was asked if I might post a comment I made concerning this from another site. I intended to express my own experience and opinion of the good work being done in Oregon. It is as follows, and hopefully the context of this comment is pertinent here…

In WA State I did a little digging on a local stream that has been getting some weird policing of late…the WSF&W is currently cited folks for leaving park boundaries, before that the Clark County Sheriffs Dept. was in the pocket of a local creek front landowner…

Upon checking the WA State definitions the little creek is deemed navigable because the mean annual average flows exceed 20 cfs(it’s quite small)…some private property is involved; a posted high water sign and a bridge abutting the area that has been condemned by the state and deemed unsafe due to recent flooding…all of this comes into play in keeping folks out of a traditionally productive piece of water… folks like me just avoid the fight…

I “confronted” a county sheriff dept. officer at a local convenience store during his donut stop…we discussed the situation, eye-rolling , some hemming and hawing ocurred when I asked direct questions and just as I thought… I was about to get somewhere he took a call-end of discussion…What I got from the exchange was that perhaps only 2 officers were even familiar with access issues to local waterways… Apparently the easements have been purchased by the county recently- a new bridge is going to be built…and I am not sure how this further complicates this little local access issue.

I relate this here because it is astounding how mired in BS and how complicated something can become and this is in reference to a 1000′ stretch of water that according to state law should be accessable to the public if entered below the high water mark…this has been complicated by difficult, whiney, overly manipulative land owners, ignorant local law enforcement, the county parks system, the state, fish and wildlife officers and tradition…

The “tradition” of not knowing your rights, giving in to the established system of denying public rights and not banding together, organizing a fight to demand said rights. I commend all Oregonians who have put so much effort into making your voices heard.

On behalf of the Board and members of Common Waters, “Thanks, Skip!” — Hugh

By: Skip Enge on January 28, 2008
at 1:29 am

Is that dark figure in the photo a Bigfoot sneaking up on an unsuspecting fly fisherman?

By: Jason Wells on April 10, 2008
at 9:17 pm

Avulsion property rights with known boundary(not to middle of river) has not been addressed.

Definition of “avulsion” as applied to real estate (from Business.Dictionary.com):

Sudden and abrupt change in the boundary between two pieces of land due to flood waters or a change in a river’s course. Avulsion does not change the ownership of the removed land which remains the property of the original owner. –Hugh

By: Gary Tuor on August 3, 2008
at 6:33 am

Leave a response






Your response:

Categories