Public vs. private
State agency may wade into debate over who owns Rogue River banks, beds
Harold Hanson stands on a rock along the Rogue River below Savage Rapids Dam, casting for spring chinook salmon, and for this moment, it's his rock.
The title company, however, says that rock belongs to the Weasku Inn, whose deed declares that it owns the shoreline and riverbed there.
The inn's keepers, for now, allow anglers like Hanson to fish off their bank. But if they asked him to leave and he didn't, Hanson could face a possible criminal-trespass charge.
That's not cool, Hanson says. Bank-fishing isn't a crime.
— But that rock could one day belong to Hanson, fellow bank angler Jim Bricker and any other Oregonian after a state agency wades in to settle long-standing disputes over just who owns the bed and banks of the mighty Rogue.
The Department of State Lands is poised next month to embark on a navigability study on 90 miles of the Rogue River from the Galice area to Lost Creek dam. A formal navigability designation would then allow the state to go to federal court with a claim for public ownership of the bed and banks up to the mean high-water mark ' roughly the line where vegetation gives way to rocks.
Under federal law, a state's title claims under navigability laws supersede private property deeds.
The public already owns the water and can float unimpeded on the Rogue where passable, but navigability determines ownership of the bed and banks.
Already, parts of a dozen Oregon rivers are deemed navigable, including the 68 miles of the Rogue downstream from Grave Creek. That stretch was declared navigable by the State Land Board in 1975.
The Rogue upstream of Grave Creek has been home to conflicting legal and public opinion for well over a century. Various court decisions have called it navigable and non-navigable. An attorney general's opinion once called it non-navigable, while the Oregon Legislature has called it probably not navigable and then remained mum on the issue for years.
The test, land experts say, is whether the DSL study will show the river was used for commerce when Oregon became a state in 1859, or whether it was simply susceptible for commercial use at that time. Post-statehood commercial uses and current commercial uses can help make that determination.
It's a matter of building a case with the historic record, says DSL Assistant Director John Lilly. We look at, if people were there, could they have used the river for commerce?
Without a designation, what people can and can't do on a river's bed and banks remains ambiguous, often to the public's expense, Lilly says.
Hopefully, all the ambiguity and uncertainty can be clarified, he says.
A federal court case concluded that the presence of commercial sport-fishing guides and the historic floating of logs to mills justified navigability status for the McKenzie River in 1982.
More than 100 licensed fishing guides ply the Rogue, which is also home to excursion jetboats and other businesses, and many people believe the Rogue fits the thresholds laid out in the McKenzie River case.
I'd think there would be enough usage documented on the Rogue to establish navigability, says WaterWatch attorney Bob Hunter in Medford. I'd be surprised if it wasn't. It's treated as if it is.
A 1989 Jackson County District Court case concluded that part of the upper Rogue was navigable in fact, even though it does not possess the official title.
And most Upper Rogue property owners treat it that way. Their deeds often say they own the bed and banks but acknowledge the rights of the public to use the Rogue, Shady Cove Realtor Mike Malepsy says.
People see 'rights of the public' (on deeds) and they want to know what that means, Malepsy says.
Malepsy says that means most landowners accept use of the bed and banks to the mean high-water mark. However, he stresses that the public doesn't have a right to urinate on or litter the bank, nor wander beyond the high-water mark. Those are separate issues that are illegal no matter who owns the property.
That's the way we've been addressing it for the last 30 years I've been selling (riverfront property) to people, Malepsy says.
Occasionally, however, others exert private-property rights. Former owners of the Weasku Inn once charged an access fee to fish in front of the inn, while fistfights have broken out and trespass citations have been issued at a once-popular Rogue fishing hole near Shady Cove.
Mostly, however, the issues generally get settled outside of court.
I'm not aware of any problems recently, says Mark Huddleston, Jackson County's district attorney. If there are, they're not making a case of it.
Dennis Becklin, a riverside landowner near Grants Pass and former chairman of the Grants Pass Irrigation District, says he believes the Rogue likely fits the legal definition of navigability. However, he believes Oregon should take the lead from Montana and add tougher criminal-trespass rules and stepped-up law enforcement to ensure floaters don't abuse their access to the bed and banks.
Instead of shoving the navigability designation down landowners' throats, the state should find solutions that don't spoil riverside living.
The landowners are stakeholders and have a big interest in this, Becklin says. This could be a win-win situation, but it has the potential of being a very divisive issue.
Myriad opinions on the issue will surface if the State Land Board on June 8 decides to launch the Rogue navigability study as requested by the DSL.
The study would take about a year, include public input and be susceptible to state and federal court challenges, Lilly says.
The report would be up for adoption by the board, which comprises Gov. Ted Kulongoski, state Treasurer Randall Edwards and Secretary of State Bill Bradbury.
A similar process is under way on the John Day River in northeastern Oregon. The DSL last week issued a draft study that recommends navigability status for that river.