River Rights

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Oregon River Rights

CLICK HERE to download a full copy


(All text that is highlighted is a link to the source document. Click on the highlighted words to download those documents or see the source website. )

On a Navigable River or Lake:

You may use any navigable waterway, as well as the submerged and submersible land along it, for any legal activity.  You must be below the Ordinary High Water Mark.

What does “Navigable” mean?

Federal law defines the term “Navigable.”  The federal law is the basis that the state of Oregon must follow, or be potentially subject to a federal lawsuit. Waterways are navigable if”

They rise and fall with the tide

OR

If in 1859, when Oregon was made a state, the waterway  had the capacity, in terms of length, width and depth, to enable boats to make successful progress through its waters.

CLICK HERE TO READ THE DSL WEBSITE

The boat size relates to boats of 1859, including dugout canoes and log rafts, which drafted about four to six inches of water. 

All the waterways that meet this description of “navigable” in 1859, were given by the Federal Government to the State of Oregon to protect as “common highways” and were to be “forever free”.   This comes from Section 2 of the Oregon Admission Act.   The document that made Oregon a state and listed all the requirements the United State had, in order for Oregon to be a state in the Union.

ADDITIONAL DOCUMENTS

The following documents provide additional information on your river rights and the history of those rights.

1859 Oregon Admission Act Section 2

2005 Oregon ‘s Attorney General Opinion 8281 (PDF File)

Summary of the 2005Attorney General’s Opinion (PDF File)

Defining Oregon Navigable Waters is Incomplete

Currently the state has posted information on SOME specific waterways or sections of waterways. The lists are not comprehensive.

Tidal Waters

Lakes

Rivers

Many sections of rivers have been studied by the state and found to be navigable, but do not appear on these lists. Check the 1983 Farnell Report for descriptions of more waterways that the state found navigable.

1983 Farnell Report on Navigable Rivers of Oregon (PDF- file)- CLICK TO DOWNLOAD WARNING this is a large file.

Please note that if you can’t find the specific waterway, or section of waterway in these documents, doesn’t mean that it’s not navigable. It just means it hasn’t been studied.

Oregon’s Navigability Study Process

In 1985 after the Farnell Report was delivered to the Oregon Legislature. The report recommended that rivers identified as navigable be immediately recognized by the State of Oregon. The legislature instead chose to ignore the recommendation of the report.   That report had been orginally requested by the state legislature in 1975 and took so much research it took a decade to create.

When the report was complete the 1985 legislature chose not to follow through with the recomended declaration of navigablity for the many rivers studied.  Instead they chose to delay the issue further and they created another layer of extremely expensive burecaratic processes and chose to start over again.  There was no dispute the information was factual, only they did not want to act on the facts, and so they created forms, applications, hearings, notifications that must be followed before making a river navigable.  The new process requires identifying a “conflict” on the waterway, and an economic interest in getting the determination done and the series of hurdles and process.  Nontheless, according to federal law all that matters are the facts of the river in 1859.

LINK TO: How to request a Navigability Study

Navigability studies are underway on several rivers and you may want to testify and monitor progress.

LINK TO THE CURRENT LIST OF STUDIES .

River Rights around the U.S.

River rights are specific to each state, but have a common origin from the US Congress. Oregon is not alone in working to protect public rights. You can find out more about other states issues and solutions at the following sites:

Montana Fish Wildlife and Parks Department

“Montana Stream Law Still Under Attack” By SUSAN GALLAGHER The Associated Press Monday, August 22, 2005; 2:42 PM

California Navigability Laws

Washington Navigable Rivers- Department of Natural Resources

American Whitewater Association

National Organization for Rivers

US army corp of engineers- their definitions of navigable

Related Oregon rights- The Oregon Beach Law

Eugene, Register Guard “Beachhead defense: Oregon takes a new look at how it governs its popular public sands”

Oregon Historical Society

One thought on “River Rights

  1. Have you looked at the idea of claiming a “prescriptive easement?” The US constitution protects our rights under the common law, and one of our traditional common law rights is the prescriptive easement. A prescriptive easement is a right of way that is used by an individual or the public for so long that it is cognizable under the law. For example, if a path is beaten through a field from a public road to a river the law sometimes recognizes it as a public right of way even when the owner of the field wants to close it off. Such rights are so common in England (the source of our common law rights) that on a certain day every year, hiking clubs make a point to hike every traditional right of way across private land to re-assert their rights.
    This right is akin to “squatter’s rights,” but is clearly much more appropriate of a use.
    In most states this principle of the law is well established.

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