River ownership proves murky

August 19, 2012
River ownership proves murky

State grapples with rights of landowners, public

By Hillary Borrud

Dave Merrick has fished the Deschutes River since moving to Bend in the 1980s.

Although Merrick grew to know the river well, it was more difficult to figure out who owned the riverbed and riverbanks — where members of the public could go, and where only private property owners could tread.

“What the rules are has always been a foggy one on the Deschutes, frankly," said Merrick, 46, manager of Fly and Field Outfitters in Bend.

In 2005, the Oregon Attorney General's Office issued a legal opinion that anyone can walk on a riverbank as long as it is below the ordinary high-water mark of the river. That has not prevented some private property owners from shooing anglers off sections of the river.

“Certainly, I've had instances — I know some of our guides have — where the boat's anchored 10 feet off the bank in the water, folks are wading and fishing, and they're being told to get out of there," Merrick said. “I grew up around here, and in my lifetime, it's just always been that way."

Without clear rules, Merrick plays it safe.

“Having guided the river for a lot of years, my rule has always been unless it's listed on the state's navigable waters list, you're not allowed on the banks on private property," Merrick said.

A state task force could clarify the rights of recreational river users if it produces a bill for the 2013 legislative session, but the group will not likely weigh in on who owns the beds and banks of many Oregon rivers.

“The state has this claim to rivers that are navigable, but no one knows what they are," said Jennie Bricker, a lawyer in Portland who represents property owners on questions of waterway ownership. Bricker is also on the state task force trying to address recreational use of rivers not designated as navigable.

Further complicating matters, many riverfront property lines extend to the middle of a river but the deeds that back that up might be very old and inexact. They can also require much research to locate.

“Early surveying in the Oregon territory and the state of Oregon was done by chains and rods, which is not very accurate when you're dealing with topographical changes," said Liz Dickson, a lawyer in Bend who does extensive work on land use and water law. “And in the case of rivers and streams, there often isn't a way to place a rod in the middle of the river, so oftentimes, surveyors were guessing as to the location of boundary lines."

Once a river is deemed navigable, the state takes ownership of the riverbed and the public can walk or camp on the riverbank. The state has declared sections of 12 rivers as navigable. In 2005, the state recognized a 174-mile stretch of the John Day River as navigable as the result of a lawsuit by the Association of Northwest Steelheaders. The group sued after a fisherman was ticketed for trespassing.

In 2010, a bill to clarify river usage rights for boaters, anglers and others ran into opposition from private property owners, and instead, state lawmakers created a task force to work on other approaches to the issue.

Secretary of State Kate Brown said Friday there are likely up to 200 more rivers for which the state has yet to determine navigability.

“But that doesn't prevent Oregonians from using these waterways," Brown said. Brown worked on navigability issues for more than a decade as a state lawmaker and is now involved with the task force.

Since 2010, the task force has been trying to come up with a set of rules on which both property owners and river users can agree.

“We've been working collaboratively for the last year and a half to come up with a consensus or a general agreement about some legislation, and the route we were taking is looking at what we would call an expanded water trails program," Brown said. “Generally speaking, a water trail is a portion of a river or shoreline that's been mapped for use by river users. ... So there would be designated spots for accessing the river."

“The goal is for the rules of the river to be very clear for the river users and the property owners," Brown said. “Right now we've got some people playing Monopoly and some people playing Scrabble, and we'd like to get everyone on the same page."

The Oregon Parks and Recreation Department already established these trails on rivers recognized as navigable, and future legislation could do the same on rivers not on the navigable list, Brown said.

“I'm hopeful we'll introduce legislation next session, but we're still in a working phase," Brown said.

A system of water trails still would not resolve who owns the land under Oregon's rivers not designated as navigable. It also would not prevent people from requesting that the state research whether specific rivers are navigable.

Walt Bammann, a Roseberg man who described himself as an avid whitewater enthusiast and membership secretary of the North West Rafters Association, said questions about river ownership made it difficult for people to float down the Metolius River.

“For years, our rafting club would float the river," Bammann said. In the 1990s, the Confederated Tribes of Warm Springs began asserting their ownership rights to the center of the river.

“Any boater that launched at some point would effectively be on their side of the river," Bammann said. “It's a real murky matter. ... Whether the Metolius was ever navigable is a gray area, as (with) many rivers."

In some situations, a lack of public access along riverbanks puts rafters in danger. For example, rafters and other boaters often need to portage around a waterfall or other dangerous spot on a river, Bammann said.

Bammann and Merrick acknowledged that some river users act in ways that frustrate property owners, whether by urinating and littering on a riverbank or trespassing to reach an ideal fishing spot.

Bricker said she disagrees with the 2005 attorney general's legal opinion that opened rivers to the public below the ordinary high-water line. The opinion expanded rights for recreational river users, but it shrank the rights of private property owners, Bricker said. Bricker likes the idea of water trails because they could result in restrooms and other facilities “to make it easier for the public to use those segments of the rivers, and also take some of the burden off property owners."

“When people are floating a river, it's not always clear when you're leaving public property and entering private property, and there aren't always places to stop and, for example, go to the bathroom," Bricker said.

The controversy does not seemed headed for resolution soon.

“This is a very emotional subject," Bammann said.

— Reporter: 541-617-7829, hborrud@bendbulletin.com

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