Navigability debate continues to split state, property owners

James Harkcom takes no prisoners when it comes to his property bordering the Rogue River.

"Yeah, I am feisty," he acknowledged. "I've got a reputation up here now that I won't tolerate people on my property. I've been booting people off my property for more than 10 years now. A lot of them get nasty. I've been threatened.

"I take pride in ownership — this is my land," he added, noting that was one of the reasons why he trimmed limbs along his river frontage.

Describing himself as an avid kayaker who floats the river while respecting the rights of other property owners, Harkcom said he has no problem with people plying the river as long as they stay off his land.

"I go down there and fish," he said. "It's nice down there."

Harkcom figures he owns to the center of the river, a belief shared by many riverfront property owners. He takes exception to a move by the state five years ago laying claim to the river channel.

"The state says the people of Oregon deserve access, but the people of Oregon don't deserve jack in my book," he said. "They come down here and trash my property. They toss out bait buckets, beer cans, cigarette butts. They pee all over the place.

"People in Oregon don't need any more rivers because they don't know how to take care of them," he added.

In June 2008, the Oregon Department of Lands, following an extensive study, declared the 89-mile stretch of the Rogue from Lost Creek Dam to the mouth of Grave Creek a navigable waterway. Based on federal legal standards, it has belonged to the citizens of Oregon since statehood in 1859, it noted.

Declaring a river navigable is the legal step necessary for the state to claim ownership of the river channel.

Following that declaration, the state Lands Board asserted ownership up to the ordinary high-water mark.

"That's the land that is covered by water during the winter," explained department spokeswoman Julie Curtis. "But the navigability issue on that section of the Rogue remains unresolved. It's still in litigation."

She was referring to a lawsuit involving eight property owners along the upper Rogue, including Robert Malloy and retired actress Marilyn Kim Novak Malloy, which challenged the state's claim. The case marked the first time the navigability law had been challenged in Oregon.

If a river stretch is officially non-navigable, river users could face heightened restrictions on access to the riverbanks, although the river itself would still be open to the public.

In July 2010, Jackson County Circuit Judge Ron Grensky in Medford ruled against the state of Oregon in its attempt to assert ownership rights to the 58-mile stretch of the river from Grants Pass upstream to what is now Lost Creek Dam. The decision affected some 3,000 private properties.

Grensky determined that, while historical documents conclude the lower portion of the river was deemed navigable because it had been used for commerce, the portion upstream from Grants Pass did not fall into that category.

"The court cannot help but conclude therefore that the upper portion of the Rogue River was neither used (nor) susceptible to use for travel and trade in the period of Oregon's statehood in 1859," he concluded.

However, he found that the river from Gold Beach to Grants Pass — about 100 river miles — was navigable based on historic use.

The ruling has been appealed.

Reach reporter Paul Fattig at 541-776-4496 or email him at pfattig@mailtribune.com.


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