Public Right to Navigability Upheld (OR)
Earlier this month Oregon's The 73rd Legislative Assembly adjourned and with it bills that would have limited the public's right to use Oregon's waterways for river travel and recreation died. Senate Bill 1028 proposed the institution of a new fee program that would have charged the public for implementation of a complicated new set of regulations severely reducing the opportunities for the public to enjoy Oregon's rivers. This threat would have had a significant impact on recreational opportunities for state residents, and the image of the state as an international destination for river recreation.
The good news is members of the paddling community joined other recreational users and citizens across the state to raise important questions and concerns that eventually killed efforts to limit public rights to use Oregon's rivers. Theses rights were affirmed in the Oregon State Attorney General's opinion issued on April 21st, 2005 (read full opinion). Specifically the AG found that under current state law the public has the right to use Oregon's rivers for recreation under two conditions:
- If a waterway meets the federal test for navigability (i.e. "highways for navigation and commerce"), the state can not interfere with the public use of that waterway for navigation or recreation.
- If the river does not meet the federal test for navigability (the case for many of the creek runs that Oregon is famous for) and the river bed is thus privately owned, the waterway is still navigable for public use if boats can make successful progress.
The AG's opinion provides a good context for resolving some of the questions that existed regarding navigability in the state but new efforts to limit the public's right will likely emerge in future legislative sessions. As paddlers we all need to be aware of our stewardship responsibilties and the importance of maintaining good relations with riparian land owners. Remember that a single negative interaction between a boater and a landowner could threaten future navigability rights in the state. There are some who are looking for just such a "conflict" to provide evidence that navigability laws need reform. Our future rights to Oregon's Rivers depend on showing respect for those who own property along the river. Paddlers should also consider opportunities for demonstrating our commitment to rivers and addressing problems of resource degradation by participating in stewardship events. In both cases AW can help: if you have a negative interaction with a landowner let us know so we can document the occurence and if you are involved in organizing a river stewardship event we can help build publicity and promote the event.
With no changes in state law the navigability study of the Rogue River upstream of Grave Creek will continue. Responding to a request by the Josephine County District Attorney made in 1997, the Department of State Lands began a navigability study of the Rogue River on October 12, 2004 (DSL Rogue River website). The section of river under study is from Grave Creek (river mile 68.4) to Lost Creek Dam (river mile 158.0). The section of river from the mouth to Grave Creek has already been declared navigable.
Discussions regarding the future of navigability will continue and AW will continue working with partner organizations who have represented the public interest: