Posted by: Hugh ODonnell | March 11, 2008

Balanced Press on Rogue River Navigability Study?

Navigability on the Rogue River is getting some Press, but is it thorough and
objective?

From KDRV Medford 3/5/08
“Rogue River properties could go public” (link)

From The Oregonian 3/9/08
“Who owns Oregon’s rivers?” (link)

From the Mail Tribune 3/9/08
“Who really owns the river?” (link)

Can they prove that land values fell on the Sandy & John Day? Can they prove
that landowners had trouble changing their tax assessment?

A tax assessment is based on the value recorded at the County Tax assessor’s
office. How does the county tax assessor weigh in on this matter on the
Rogue? How did the county tax assessment offices handle this issue on the
portions of rivers that have been declared navigable like the Sandy, John
Day, McKenzie, Willamette, Chetco, the Coos, the Coquille , the Umpqua, and
the Klamath and the lower Rogue (the lower Rogue was declared navigable in
1975). Who has asked the real estate industry about this issue? Who has
asked that realtors be trained on the law, so that they are selling only
what they legally can sell? Who asked appraisers if they see a difference
in value of river front property on navigable rivers and rivers not yet
declared or tested?

Before news articles spout the local “truths” about the issue of “takings”
they can research what has happened in other areas. They can provide an
objective amount of information to find out how the McKenzie River has
faired all these years, with its wide shifts in river bed and changing of
property lines.

When journalists interview people and hear the “takings” side of the debate,
shouldn’t journalists ask what state supported benefits the private
landowner has received? What about controlling flooding with dams and
dikes? What about disaster relief and aid for people when the river does
flood? What about the benefits of wildlife management and fisheries
management on the waterways? What about the cost of protecting water
quality upstream, so that those downstream have good water quality?

These are just some thoughts that I toss out there, when I hear a “takings”
argument that ignores the benefits property owners receive from the tax base
of all the people.

The reality is that all citizens pay taxes that help river front landowners
maintain their property values by helping limit flood damage, ensure water
quality, and striving to protect fisheries and hunting opportunities.

Our state capital has an ancient quote from Plato engraved in the marble
that says

“A free state is formed and maintained by the voluntary union of the whole
people joined together under the same body of laws for the common welfare
and the common benefit the sharing of benefits justly apportioned”

Do we suddenly ignore our Articles of Statehood that declared all the
navigable rivers as common highways and forever free, just because citizens
forgot we have laws to follow that were established for the good of all?

It’s a very fair to ask that news articles should cover a legal explanation
of the situation. It’s very fair to ask why the journalists covering the
Rogue River Navigability study are saying “make public” when it has been
public.

There is a real tragedy in this story. It’s one of miscommunication and
misinformation. The tragedy is years of non-enforcement of the law.

The tragedy is also one of news stories that are not researched and that
perpetuate a misinformation about what is private land and what has always
been public land. What about doing some research the 1859 law?

While the misinformation goes on daily in the news, there is the tragedy of
real estate being sold, that was not for sale. And there are those that
pocketed the money from that land transaction that seem to be sliding into
the shadows with no notice from the media, or from the victims of the crime.

The navigability process is blunt. It is discomforting to those that have
been misled. It is inconsiderate of the sense of loss, the fear, and the
anger. The state’s method of ignoring this problem has not lead to peace on
the river. Delaying and stalling has only made the situation more volatile
with more years of misinformation embedded in the minds and hearts of
Oregonians.

It’s time to demand that the law be clearly explained to all the people.

1859 Oregon Articles of Admission to the United States of America
“All the navigable waters of the state are to be Common Highways…. and
Forever Free.” It serves all the people of the state. It always has.

–Heather McNeill

Posted in McNeill, Navigability Study, Rogue River, communication, history

« Pony Express or How to Get the Word Out
How to Participate in a Navigability Hearing »

Responses

Heather,

Of course it’s not balanced. It’s time that more folks started weighing in on this issue. I posted to two discussion boards at the Mail Tribune.

I suspect that if the papers were inundated with responses that quoted the law and the court cases regarding this issue, the press may take a more balanced view. Until then, the landowners are organized, have the money, and the clout to get their side told.

As anglers, all we got is a handful of folks willing to step up to the plate.

Everyone should be writing letters to the editors on this issue.!

By: Scruffy Bearded Varmint on March 11, 2008
at 7:57 pm

PS. I want to point out that the Oregonian Article does offer a thorough review of the laws. Its explanations of the history are clear and well researched. Contrast it to the other articles that use quotes to tell the story, and do not fact check the content of the quotes.

By: Heather on March 11, 2008
at 8:00 pm

I will see if I can get the local paper to actually do a story on this before the 19th. I know the sports writer(who would be in charge of this) personally. I will also make sure he has the proper information. Some very good points you brought up Heather, I hope you get to ask them at the hearing.

By: Riverrighter on March 12, 2008
at 1:42 am

Heather,

Excellent questions. Thank you for all your time on this. You make a great voice for the river users; nay, for all the people of Oregon. I hope you sent this to the writers of the unbalanced articles, and perhaps submit it as an editorial yourself.

I also thank the others who are helping to carry the torch on this.

Sparse

By: SparseHairHackle on March 12, 2008
at 4:44 am

http://www.kdrv.com/article.aspx?id=24244&section=news&contentCat=local

KDVR Channel 12 Medford
BY JANET KIM AND BROOKE ROSE

March 17, 2008

WHITE CITY, Ore. — River users will soon know whether, under state law, they can use the Rogue River up to the high water mark, where the vegetation starts. That will happen if the section of river between Grave Creek and Lost Creek Dam is formally deemed navigable.

The Oregon State Land Board is set to determine whether the 89-mile stretch of the Rogue River will be turned over to the state. A navigability study was conducted to settle disputes over ownership rights.

The Josephine County District Attorney requested the navigability study more than ten years ago. Oregon’s Department of State Lands is now trying to determine whether a stretch of river was navigable in 1859, which means the river could have been used to transport goods or people. The purpose of the determination is for clarity for property disputes. Law enforcement agencies and courts must determine who can do what, where along the river.

Mike Malepsy has been selling real estate along the Rogue River for 30 years.

“The state wants to claim land that’s submersed, okay, and from the mean high-water mark, which they say is the vegetation line, which is seen right here which is simple to view,” said Malepsy.

Some fear once the state asserts ownership of that land, property owners will have to pay fees for items like a dock or irrigation pump. Another concern among riverfront homeowners is that river users will be given the go-ahead to cross private property to access the river. Some of those homeowner’s deeds say their property goes to the middle of the river, where the land is submersed, not just along the high water mark.

The Oregon State Land Board will present its findings and conclusions about the Rogue Navigability study at a public meeting Wednesday, March 19 in Medford at the Pacific Ballroom at the Ramada Inn and Convention Center at 2250 Biddle Road. It runs from 10:00 a.m. through noon. The board will also take public comment on the study. More information on the public meeting and how you can provide testimony about the Rogue Navigability Study can be found at the DSL web page at Oregon.Gov/DSL.

By: Heather on March 18, 2008
at 1:51 am

http://urindependent.com/index.php?option=com_content&task=view&id=595&Itemid=1
Upper Rogue Independent- Eagle Point

Navigability “study” could change land titles along
Monday, 25 February 2008
Living on the river, especially a river like the Rogue, is the ultimate by most any measurement. For most, it means fishing, having a dock from which a small boat can be launched and a place where friends and family can picnic down by the river. Beyond that is the pure beauty of the Rogue. And for this privilege there is definitely a price to be paid. That price may well exceed a dollar figure if a study underway by the State Land Board is successful.

In July 1997, Timothy Thompson, a Josephine County District Attorney, sent a letter to the Department of State Lands (DSL) asking for a “navigability study” from Graves Creek to Lost Creek Dam. In his letter, he noted three district court cases from MP 132-150 reportedly involving trespassing. The three cases involved the same person and were not even in his district.

The issue has lingered until the last year or so as the state prepares its declaration. It has already declared some rivers such as the Sandy “navigable by title.”

Several citizens who live along the Rogue River have formed a group called Save Our Legacy, in an all out effort to preserve their way of life. They have hired an attorney from Stoel Rives LLP, Portland, to assist their effort. Jennie Bricker focuses on water law and its related issues.

One hearing with DSL was held in Grants Pass with some 250 people in attendance. Two meetings will be held in March. The first is Wednesday, Mar. 5, from 7-9 p.m. in the McKenzie Room at the Ramada Inn. The second meeting will be on Wednesday, Mar. 19, from 10-12 n ., according to information from the Department of State Lands.

Information mailed to those along the river said they were going to do a navigability study. Save Our Legacy spokespersons are very concerned that those property owners along the river were not given sufficient information to understand the potential of the “study.” It has the makings of a taking. Compensation has not even been discussed.

Should the DSL determine the river is navigable by title, ownership of its bed and banks would be passed to the state as it was when Oregon became a state on Feb. 14, 1859. That would mean Oregon owns the land to the 1859 ordinary high water line. A survey establishing the meander line done in 1854 (See accompanying map) shows a vastly different Rogue River.

An example of what it would do to those living along the river is evident by looking at the property owned by Will Hardy and his wife. Hardy said he can’t understand why the Navigability by Title is necessary. He said there hasn’t been a problem with the use of the river. “We are concerned that we’ve been here 14 years. Our title shows our property goes clear across the river including 10 feet on the other side. When they consider the meander line, it means our entire property is in jeopardy of becoming Oregon state land,” said Hardy, who said a large amount of their retirement is invested in the property.

“A legal mess looms as the state continues on a course that will cloud the title for Rogue river landholders for years to come,” said a statement from Save Our Legacy supporters.

The Study for Navigability for Title was totally unnecessary, note Legacy members. The public has had the right to use the river to the ordinary high water mark. This is a state policy of Jackson County, Shady Cove and other local authorities on the river, according to a Legacy statement. Policing agencies report little problem. Shady Cove Chief of Police Rick Mendenhall reports fewer than 10 complaints a year between riparian owners and recreational users and most of those are in response to hunters discharging firearms within the city limits. He said on the rare occasions when they respond to a conflict, they use the ordinary high water mark as the guideline. He expressed concern about future conflicts if the state prevails and noted his city does not have the budget nor the resource to deal with more conflicts.

Those who have been in the area during a drought and those who have seen the Rogue River flood have some understanding of the way the river can change. When the Rogue overflows its banks and floods, the title to the river bed does not follow the new course of the river. Save Our Legacy points out the state will not wind up owning a continuous river bed and banks in fee title. It will be interrupted with private land holdings as the river continues to change course by floods over the years. Recreationists will never know whether they are on state lands or private property. The state and local authorities lack the resources to handle the conflicts.

A legal mess looms.
By Nancy Leonard
Of the Independent

By: Heather on March 18, 2008
at 1:56 am

http://www.oregonlive.com/editorials/oregonian/index.ssf?/base/editorial/1205528108180200.xml&coll=7

The Oregonian Editorial
March 16, 2008

Rivers run through us

Everybody wants to own Oregon’s waterways, but nobody wants to pay to manage them
Sunday, March 16, 2008

I t’s a signature image from the Oregon Story: towering Tom McCall striding through the surf. In 1967, when the governor saw owners of oceanfront property fencing off sections of sand, he stormed the beach and claimed it as public property.

All of it.

From border to border.

Now here we go again. This time the fight is for Oregon’s rivers. They’ve been in public hands since the state’s birth, when the 1859 law that brought Oregon into the union decreed all the state’s navigable waters “common highways and forever free.”

What could wring confusion from that?

Lawyers, of course.

It didn’t take long for them to pose one itsy bitsy question: Which waters are navigable? Oregon is in the process — a very long, very expensive, very vexing process — of making that call.

About 30 years ago, a state study determined that about 330 Oregon rivers — essentially any creek big enough to float a canoe in February — likely are navigable. To date, a dozen, including the John Day, Klamath, McKenzie, lower Rogue, Sandy, Snake, Umpqua and Willamette, are formally designated as navigable. Thus owned by, and accessible to, the public.

Currently raging: the debate about the upper Rogue.

Waiting in the wings: six more rivers, including the Trask and the Kilchis.

Three years ago, unlikely political bedfellows Senate Majority Leader Kate Brown and Senate Minority Leader Ted Ferrioli crafted a bill to get us out of this mess. They were promptly brutalized by their respective constituencies. Ranchers accused Ferrioli of stealing their property. Fly fishers assailed Brown for forfeiting state treasure.

In truth, their proposed legislation was simply a sensible effort to deal with the real issue at hand. It’s not who owns Oregon waterways. It’s who will pay to manage them.

The 2005 bill, modeled on stream-access laws that are working well in Montana and Iowa, would have guaranteed recreational use by the public without regard to the ownership of the land underlying the waters. Essentially, it would have provided recreation easements on all Oregon rivers.

Beyond codifying the public’s common law rights, the bill required owners of rafts and canoes — for the first time — to pay registration fees. The money generated would have paid for everything from river education and law enforcement to installation of the recreation facilities so sorely lacking on many of Oregon’s most popular rivers.

Instead, we got . . . nothing. Only the promise of years more of study and skirmish, of legal appeals and lingering anguish. And all this as Oregon has 30,000 stream-miles so degraded they no longer support aquatic life.

Enough already. It’s time for a statewide multi-jurisdictional program of recreation management for Oregon’s most intensively used waterways. That plan must reinforce public ownership rights to Oregon rivers while clearly protecting the interests of riverfront landowners.

As Ferrioli says, “It’s not whose name is on the deed that matters. What matters is how we all agree to manage the amazing resource that is Oregon.”

By: Heather on March 18, 2008
at 2:00 am

http://www.mailtribune.com/apps/pbcs.dll/article?AID=/20080316/OPINION/803160301

The Mail Tribune

Getting used to a ‘navigable’ river
It’s clear the Rogue meets the definition; state ownership isn’t the end of the world

March 16, 2008

Property owners along the upper Rogue River should get used to the idea that the riverbed and banks belong to the public, not to them. At the same time, the state should avoid adding insult to injury by making property owners pay unnecessary fees.

The state Department of State Lands has studied the Rogue from Lost Creek Dam to Grave Creek to determine whether the stretch of river was “navigable” in 1859 when Oregon became a state. The lower Rogue from Grave Creek to Gold Beach was declared navigable in 1975.

The federal courts have long held that when Congress granted statehood, it gave states ownership of navigable rivers to hold in trust for public use. The courts further have held that a river is “navigable” if, at the time of statehood, it was or could have been used to transport people or goods.

That very broad definition means use by Indian canoes, ferries across the river or log floats would qualify a river as navigable. It’s clear that the upper Rogue meets the definition.

The tough part for property owners is that, once the river is declared navigable, not only does the state own the bed and banks today, but it always has, regardless of what a property owner’s deed may say.

Property-rights advocates see this as a “taking” of private property by government. In reality, it isn’t that simple.

The public has the right now to use the river for recreation, including the banks up to the normal high water mark or vegetation line. Property owners don’t have the right now to build a fence across the river, even if their deed says they own the riverbed.

Some deeds to riverfront property extend just to the high-water line, some to the low-water line, some to the center of the channel and some to the far bank. Some owners have paid property taxes on submerged land, some have not.

Law enforcement agencies and the courts have had to wrestle with who can do what where along the river, which is why the navigability study got started in the first place. The Department of State Lands did not undertake the study because it wanted to seize private property, but because the law requires it to do so upon request, in this case from the Josephine County district attorney.

The Legislature has tried repeatedly to avoid navigability declarations by addressing the issue with legislation, but property owners and recreation groups could never agree, and none of the bills became law.

The benefit to everyone from a declaration of navigability is clarity. All beds and banks will be public property. And the lands department can issue rules that limit what the public can do on all riverbanks, such as prohibiting camping and fires.

The downside, for property owners, is that they no longer “own” the riverbed and banks. But their use of that property is limited at best even now. What they can do now, such as install a dock, they will still be able to do. And if they have paid any property taxes on the bed or banks, they will no longer have to.

We do suggest the lands department avoid charging any new fees to property owners. For instance, owners with an existing dock could be charged $25 a year to register it after the state takes ownership of the river. That’s just silly. The tiny amount of revenue it would generate would hardly be worth the additional anger it would cause among property owners.

Oregonians have long taken for granted that all their ocean beaches are public property. Why should riverbanks be any different?

By: Heather on March 18, 2008
at 2:03 am

From the Upper Rogue Indepenent

Monday, 24 March 2008

http://urindependent.com/index.php?option=com_content&task=view&id=672&Itemid=1

Most say Rogue Navigation Study will cause strife where there is none

Governor Ted Kulongoski, Secretary of State Bill Bradbury, Treasurer Randall Edwards and Louise Solliday, Director of Oregon Department of State Lands (DSL), and other officials listened to testimony from 46 concerned citizens at a meeting on March 19 regarding the Rogue River Navigability Study. The meeting at the Ramada Inn and Convention Center in Medford was attended by 350 and possibly up to 400 people by some counts.

Testimony began with Upper Rogue residents who arrived early to be sure they were signed up to testify and was continued by citizens from as far as Bend, accompanied by cheers and whistles of encouragement from the audience. Kulongoski and Bradbury occasionally reacted with good-natured smiles such as when Mark Davis opened a large American Heritage Dictionary and read the definition of navigable to the panel.

But at one point, Kulongoski admonished the audience for negative comments directed towards speakers with opposing viewpoints.

Although the majority spoke against state action that would declare the Rogue navigable, about six speakers including some with river-front property testified in favor of the study. The area in question is from the 68.5 to the 157.5 river mile, a total of an 89-mile stretch of the river.
Testimony was to be directed to two questions:

Does evidence presented in the revised report meet the requirements of the federal test for navigability?

Should the land board make a declaration of public ownership of the river from milepost 68.5 to 157.5?
Several speakers mentioned the high-water mark already in use.
Others questioned who will pay for policing the river. Currently, local law enforcement handles issues but if the state takes ownership of property, will the state also assume responsibility? Sue King reading from a letter by river guide Kern Grieves said there would be “further degrading of our rivers with human waste, trash and rubbish,” (if the river is declared navigable).

Realtor Jim Fritch likened the state to “Pac Man, chopping away at each water system.”

Director Louise Solliday said this is the third study since adoption of a process in 1995. The Sandy and John Day Rivers have been deemed navigable as a result. She said elements considered were whether the rivers were navigable at the time of statehood or if the rivers were used or could have been used as a highway of commerce. In her summary, Solliday said they concluded the federal test was met and in its ordinary and natural condition the river was susceptible to being used or could have been used. She said except for a few areas, the river has not changed appreciably.

After hearing a comparison of the use of Indian canoes to rafts, drift boats and kayaks, Steve Straughan, of Trail, said it is not true that a Native American canoe has the same handling characteristics as a modern-day aluminum drift boat.

“The action you are considering will allow the public to use the river to the high water mark as existed at statehood, Feb. 14, 1859, almost 150 years ago. The river has changed significantly in those 150 years,” noted Straughan. “The river in 1964 moved over 150 yards south and west to cut my particular lot in half. While the law allows the state to take title to the river as it was in 1859 and whatever simple acretion that has taken place, it specifically prevents you from acquiring title in those areas where the river’s channel was changed by these catastrophic events.” He said the state won’t be able to acquire continuous title without negotiating with each land owner through an expensive legal process. “I will not be easy to negotiate with,” concluded Straughan, who is well remembered as a negotiator for the teachers union, and is now retired.

Jennie Bricker, Stoel Rives, LLP out of Portland and attorney for Save Our Legacy, a 501 (c) (4) corporation including Rogue River property owners, among others, said her clients believe the navigability study is an ineffective approach for the Rogue River segment in question. She cited three reasons to not make a declaration of state ownership:

Navigability determination is not warranted because no conflict exists between riparian property owners and recreational river uses.

Because of periodic flooding on portions of the river and resulting shifts in the channel a declaration of navigability will create serious title problems for some 60-80 tax lots, which is now dry land and has been developed as private property.

Even with a declaration, the state will not own the present, contiguous channel of the river.
“We think it is sort of a solution without a problem.” She pointed out the land board could use discretion in going forward until some issues brought out at this meeting could be addressed.

Roger King, of Eagle Point, said there have been 17 major floods since 1890 that violently and substantially changed the river bank. He provided three maps that could be superimposed to show the changes. King said if the state goes ahead with the study, they will have to claim an old dry river channel. Some property owners will be legally landlocked and it will result in 20 percent of the property being put in public hands. He asked: Will the public know if they are on open public or private property?

Will and Katherine Hardy live on a beautiful section of the Rogue in Shady Cove. They learned their home and almost their entire lot lies squarely in the middle of the old Rogue River meander line going back to February 4, 1859 when Oregon achieved statehood. Title to their three acres has changed hands 21 times since 1887. Hardy said the proposal will mean the DSL will claim almost all of their property and their home. Property owners will have to pay for and sort out legal titles themselves. “This is an outrageous act as it will place a cloud on our title for years to come,” said Hardy. He expressed concern about financial hardships the legalities would impose on landowners.

Those in favor of the navigability study included Otis Swisher who would like to see riparian areas replanted. He quoted Jim Martin, former head of fisheries at Oregon Department of Fish and Wildlife, who had said, “They tear off her clothes and leave her naked.” He was referring to streams losing vegetation at the hands of landowners. Swisher said replanting alders and willows would offer privacy to landowners.

Mike Cooley of Grants Pass, who spoke in favor of the study, said he has floated all the way down to Gold Beach and the river is navigable. He asked the board to meet the rights of all citizens not just the landowners. And Roy Hansen of Northwest Rafters Association said the study is accurate. He recommended the state write legal requirements and educate the public.

Ted Birdseye, whose great-great-grandfather settled the area, owns two miles of river frontage with a deed that says they own to the middle of the river. His relatives built a wing dam on the river. “That kinda means it is not navigable,” he commented. “We’ve not seen confrontations in over 150 years. This is a waste of time.” On Feb. 14, he was honored for 150 years of the Birdseye family farming in southern Oregon. “I find it kinda insulting to get this nice award and now come home and find they are going to confiscate your property.”

Tom Harrison, who has lived on two different locations on the Rogue River for 14 years and is a Realtor, said the ruling would make ownership much more complex and expects it will cloud many deeds. He noted the Upper Rogue has shifted since statehood. He said it is accepted that people may use the river and it hasn’t been a problem. Currently the state regulates river banks. Harrison said landowners have recourse to solve issues locally if there is a problem. “I fail to see how any steam could be exempt to claim (if this study is adopted)” concluded Harrison.

“This is probably the second best cuda, wuda, shuda report I’ve ever read,” noted Herb Sutton., who has lived on the river for some 30 years.

Director of Development Services for Jackson County, Kelly Madding, presented a letter to the DSL members and spoke on behalf of the board of commissioners. “We are troubled by inaccuracies. We believe this will have unintended consequences to landowners.” Madding said in the county’s view, the report fails to address flooding and channel changes that have occurred. “We are gravely concerned about the impact on private landowners.”

There is still time for residents to comment on the study. Kulongoski said comments will be accepted until 5:00 p.m. Wednesday, March 26. E-mail roguerivercomments@dsl.state.or.usThis e-mail address is being protected from spam bots, you need JavaScript enabled to view it or U.S. mail to Rogue River Comments, Oregon Department of State Lands, 775 Summer Street N.E., Suite 100, Salem, 97301-1279.
By Margaret Bradburn and Nancy Leonard
Of the Independent

By: Heather on March 27, 2008
at 8:07 pm

Here’s an excellent counterpoint to the story as its being written in the press.

This comes from Mike Cowdrey

“Not ruling on it or ruling against it will only further the confusion between river users and property owners. A ruling for navigability sets a legal precedent that clears up any remaining confusion about the public’s use of a navigable river.

The Oregon public use doctrine already grants the same rights on “floatable” rivers.

The difference between a Federal ruling for navigability, and river usage under the OR Public use doctrine however, is that the state doctrine can create a situation where a river user is guilty until proven innocent. Any landowner can have a river user cited for trespass below the high water mark, even if they know the law. The person receiving the ticket has to either pony up the $$$ for a legal defense or bite the bullet, pay the fine and let themselves get bullied off the water. ”

He’s hit the nail on the head. Why would citizens want a situation where they are at risk of being hauled into court, having to pay legal fees, etc, when they already clearly, own the river accordning to law?

Great explanation Mikey!

By: Heather on March 27, 2008
at 8:13 pm

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