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Recreational Limits of Navigability

On July 31, 1998, Shannon Carroll kayaked off the 65-foot Sahalie waterfall on the McKenzie River in Oregon to set the world free-fall kayaking record. The Sahalie Falls represent the extreme limits "navigability," accessible only to a few hardy souls. Meanwhile, in October, 1998, fisherman Ray Dezellum was arrested in Oregon for trespassing as he walked along the banks of the John Day River, a tranquil and easily-traveled stream. Although the criminal trespass case was dismissed, the Northwest Steelheaders Association has filed a lawsuit asking the court to issue a determination of navigability on the John Day River, thus assuring the public's right of access to the river.

The range of the public's ability to recreate in Oregon's waterways is not always clear. Broad and clearly defined access for recreationists is important, as Oregon's water provide a high quality of life for its citizens as well as a vital part of the state's tourism industry. Further, access can be defined in such a way as to assuage the fears of landowners.

Regional Treatment of Navigability for Recreation

Public access is allowed in all states for rivers determined to be navigable under the federal test of navigability for title. Upon statehood, each state received title to the beds and banks of navigable rivers, and the public, therefore, received the right to float, wade, fish, and recreate below the normal high water mark in these rivers. State title extends only to rivers declared navigable under the federal test, determined as the capability for use in commerce, defined at the time of statehood, as outlined in The Daniel Ball (77 U.S. 557 (1870)).

The regional benchmarks for recreational access go beyond access merely where state title has been declared and allow access based on recreational uses of the waters. Montana and Idaho define a second type of navigability using variations of a recreational use test, which, in essence, declares rivers that are navigable in fact to be navigable in law. Washington does not extend navigability to include all rivers capable of recreational use, but does allow broad recreational use of its rivers. Oregon allows access on waterways navigable by title, as well as a floatage easement on other rivers and streams.

Navigability in Oregon

Currently, only ten rivers in Oregon have been officially declared navigable for title purposes. (see sidebar, page 14). Full recreational access is limited only to these rivers. Should the Oregon court agree with Northwest Steelheaders Association and declare the John Day River navigable, full recreational access would extend to an eleventh river.

Even Oregon's rivers and streams that do not meet the federal test of navigability for title may be subject to a floatage easement under state law. This easement is based on the argument that, though the landowner may own the land beneath the stream, the landowner does not own the water itself. Boaters, like Shannon Carroll, are allowed to float down non-navigable rivers. Whether recreationists have a right to portage, wade, fish, or make incidental contact with the beds or banks is unclear, leading to the trespassing charge on the John Day River. Oregon's legislature considered but did not pass a bill last session, the Oregon River Access Bill (SB 832), that would have clarified public recreation rights on the state's waters.

Recreational users hold Montana's navigability law as the Holy Grail of recreational access law in America. The State Constitution reserves all waters of the State for the use of its people under the public trust. (Mont. Const. Art. IX § 3.3.) Furthermore, Montana has adopted a statutory recreational use test that allows the public to use all surface waters capable of recreational use, without regard to the ownership of the underlying land. (Mont. Code Ann. § 23-2-302 (1997).) The broad wording of the law allows recreational use of the water for fishing, hunting, swimming, floating, kayaking and canoeing, picnicking, and other incidental uses. Additionally, the law clarifies landowners' rights and assures that a prescriptive easement is not acquired by recreational use under the statute. The law also limits landowner liability to acts of wilful or wanton misconduct. Montana law goes so far as to allow portage around obstructions in the least intrusive manner possible.

In Idaho, streams are "highways for recreation" that are open for public use "for travel and passage, up or downstream, for business or pleasure, and to exercise the incidents of navigation - boating, swimming, fishing, hunting, and all recreational purposes." (Idaho Code § 36-1601 (1997).)

Washington has never officially extended navigability to streams capable of recreational use. In Washington, "navigable waters" do not include "every small creek in which a fishing skiff or gunning canoe can be made to float at high water." (Griffith v. Holman, 63 P. 239 (Wash. 1900).) However, Washington has interpreted the law broadly, and recreationists are allowed on rivers at regular or predictable periodic high water levels, such as periods of winter or spring runoff.

Landowner Fears

Landowner fears pose a threat to public recreation rights. These fears include fall a fear of prescriptive easements, a fear of liability, and a fear of increased private property damage. These fears are unfounded and have been adequately addressed.

Oregon has a recreational use statute that declares that the permissive recreational use of land does not create an easement. (Or. Rev. Stat. § 105 (1994).) The intent of the statute is "to encourage owners of land to make their land available to the public for recreational purposes by limiting their liability toward persons entering thereon for such purposes and, in the case of permissive use, by protecting their interests in their land from the extinguishment of any such interest or the acquisition by the public of any right to use or continue the use of such land for recreational purposes."

Oregon's recreational use statute also absolves landowners from liability for all but the most extreme hazards. Despite protective recreational use statutes, landowners are still reluctant to open up waters over their land for recreational use. The Chelan County Public Utility District (PUD) questioned a potential release of recreational flows on a dewatered river section in Washington, fearing that rewatering a four mile bypass channel constitutes an artificial condition for which their company bears liability if an injury occurs. The utility cites Ravenscroft v. Washington Water Power (969 P.2d 75 (Wash. 1998)), where a court held that a tree stump beneath the surface of the water on a reservoir was an artificial condition, making a utility liable for an injury resulting from a boat striking the stump. Washington's recreational use statute grants immunity to landowners from recreational activities except when the landowner has knowledge of a "dangerous, artificial, latent condition for which warning signs have not been conspicuously posted . . . ." (Wash. Rev. Code § 4.24.210 (3) (Emphasis added)). The Chelan County PUD is reluctant to release water flows for the purpose of recreation because they are concerned that the release would be considered artificial, eliminating the immunity from liability the statute provides.

AWA and other national organizations oppose this view and have volunteered to serve as expert witnesses defending the power companies against liability. AWA feels that the element of "latency" can easily be made patent through reasonable steps and thereby enable a power company to retain the protections of a recreational use statute. AWA supports clear language absolving landowners from responsibility for injuries sustained while using waterways for recreation.

Landowners also fear increased access will lead to increased private property damage. This argument is unfounded. Oregon has strong laws against trespassing and vandalism. Furthermore, recreational boaters have been nationally recognized for sponsoring river cleanups, educating river users on low impact recreation, and protecting America's rivers.

Support for New Legislation in Oregon:

American Whitewater is one of several organizations that joined to form the River Recreation Rights (RRR) coalition in Oregon reforming Oregon's river access laws. The coalition is unique in that fishermen, boaters, conservationists, and hunters are working together to supply everyone with the opportunity to use Oregon's waters for recreation. Last session, the Oregon legislature considered the "Oregon River Access Bill" (SB 832), which died in the legislature. The bill would have formalized boaters' rights to float down any tributary capable of supporting a boat and allowed recreational uses incident to boating (i.e., swimming, wading, picnicking, fishing), allowing boaters to float, scout, and portage any river. Oregon missed a golden opportunity to create a new benchmark for recreational use statutes throughout the country, to support a movement to define navigability based on a river's capacity for recreational use, and to counter recent trends in efforts to weaken existing laws. However, the good news is that the legislature has been educated on the issues, and Oregon's citizens are learning that their rights to use and visit their rivers are at stake. The RRR Coalition is already preparing to revisit this legislation in the next session.

The Oregon State Marine Board (the Board) has concluded a statewide study to assess boating needs, identify where landowner and boater conflicts occur, and propose management options that might help reduce problems that are fueling much of the animosity between the two camps. The study recommends creating a statewide river recreation management system paid for by user access fees or boater registration fees. Though American Whitewater agrees with many of the findings in this study, we disagree with the recommendation for access fees or boater registrations. At present only 5 states (OH, PA, OK, MN, IL) require fees and registration of human-powered watercraft. Though several states have discussed the possibility of charging fees in the last few years, the only state that has acted on this issue has been Arizona, which actually dropped its fee and registration system this year in the face of public dissatisfaction. While fees may benefit motorboat owners through the construction and development of trailer launch facilities, the rewards for human-powered watercraft are not as obvious. In fact, the nearly universal perception is that the fee agencies are not responsive to floaters' needs and spend more on collection and enforcement than they do on managing the resources in their care.

Ramifications for Recreationists:

In summary, the public has a right to boat on the free-flowing waterways in the Pacific Northwest regardless of legal navigability. However, the law is less clear on other matters related to recreation. Hikers, hunters, and fishermen have favorable navigability laws allowing access to their favorite streams and rivers in Montana and Idaho. Recreationists in Washington and Oregon are treading on less certain legal footing.

The Oregon State Marine Board reports that where recreational use has been established it is unlikely that recreationists will stop using these areas. Further, the report suggests that recreationists don't have a clear understanding of who owns what land and what their rights are. Likewise, many landowners are also confused about the extent of their rights including the ability to string fences across rivers or limit fishing on the banks of their property. With the region's population booming, the number of conflicts are likely to increase. Now is an important opportunity for Oregon's legislature to clearly define public access rights. The next legislative session provides the State's leaders with a great opportunity to clarify the public recreation rights on Oregon's rivers and resolve the confusion over Oregon's navigability laws.

American Whitewater is a non-profit organization founded in 1957 with the purpose of conserving and restoring America's whitewater resources and enhancing opportunities to enjoy them safely. AWA has 8,000 members, and represents more than 80,000 boaters through its affiliations with 160 paddling clubs. Contact AWA at 301-589-9453, www.awa.org, or mail to: access@amwhitewater.org. For more information about the River Recreation Coalition contact the Association of Northwest Steelheaders at 503-653-4176.