Oregon Navigability Report
In Oregon, the public has a right to float, wade, and fish in navigable streams up to the ordinary high water mark. The public also has a right to float, fish, and swim in certain smaller non-navigable streams that have public use rights. The law, however, remains unclear as to whether the public can touch the streambed or banks of smaller non-navigable streams while floating.
State Test of Navigability
In Oregon, state-owned waterways generally are available to the public for any legal1) use, such as navigation, commerce, fisheries and recreation.2) Waterways are considered state-owned if they are title-navigable.3) A waterway is considered title-navigable if, at the time of statehood, the waterway in its natural and ordinary condition was capable of being used as a highway of commerce for trade and travel by a customary mode of water transportation.4) This test for title-navigability is based on federal law.
The Oregon State Land Board is authorized by statute to make determinations of title-navigability under the federal title test and has adopted several regulations concerning navigability determinations.5) The Oregon State Land Board also has compiled a list of streams that are navigable based on federal judicial decisions, State Land Board policy or rules, meandering characteristics, or tidal influences.6) However, the navigable status of many other streams in Oregon has not yet been decided.7) No comparable mechanism has been established to determine whether a waterway is subject to the public use doctrine, discussed below, for smaller waterways.
Another source of public rights to use waterways in Oregon derives from state common law definition of navigable waters and is referred to by the state as the “floatage easement” or “public use” doctrine. This doctrine gives the public the right to make certain uses of a waterway whose bed is privately owned if the waterway has the capacity, in terms of length, width and depth, to enable boats to make successful progress, even for recreational use, through the waters.8)
One case defined streams subject to public use for a passageway as those streams “capable of being commonly and generally useful for floating boats, rafts, logs, for any useful purpose of agriculture or trade.”9) Another case concluded that such trade and commerce should include “the use of boats and vessels for the purposes of pleasure,” or “for the purpose of fishing.”10) Consequently, the public use doctrine extends beyond strict commerce for pecuniary benefit to include activities such as fishing and pleasure boating.11)
In 2005, the Oregon State Attorney General advised that public uses also extend to bathing, hunting, and other things incidental to public use of water.12) It would seem, therefore, that the capacity to float a kayak would qualify as a public use benefiting from the floatage easement.
The Oregon State Attorney General has opined that it “believe[s] it remains a valid basis for public use of certain waterways that meet the public use test developed in a series of Oregon Supreme Court decisions.” 13)
Waterways are also state-owned if they are tidally-influenced.14) A waterway is tidally-influenced if it is affected by the ebb and flow of the tide. A tidally-influenced waterway is considered state-owned, even if it is not used or not susceptible of use for commerce.15) Thus, the public also has a right to float, wade, fish, swim, and so forth, in tidally-influenced streams and rivers.
Extent of Public Rights in Navigable & Non-navigable Rivers
Oregon owns the beds of navigable rivers. The public has the right to boat, fish, swim, etc. in these rivers to the ordinary high water mark.16) The ordinary high water mark is determined by “ascertaining where the presence and action of the water are so common and usual and so long continued in all ordinary years as to mark upon the soil of a bed a characteristic mark distinct from that of the banks in respect to vegetation and the nature of the soil itself.”17)
In privately-owned river and stream-beds, which are subject to the public's floatage easement, the extent of public rights is still uncertain. The public clearly has the right to float these streams, but the courts have not confirmed that the floatage easement includes other rights incidental to boating, such as wading, fishing, and portaging that involve the use of privately-owned stream banks. One older case involving a river with a floatage easement allowed the attachment of a log boom to a privately-owned island because attachment was necessary to exercise the right of driving logs on the river and the impact was minimal.18) Other cases indicate that “necessity” may be limited to a need to enter upon the land of a streambed owner to reclaim stranded property or by reason of avoiding danger.19)
In contrast, entering upon an upland, when unnecessary, likely is a trespass.20) It is unclear at this time whether portage or other activities incidental to kayaking are allowed on private property. In some instances, district attorneys have dismissed trespass cases that occur on rivers that have not been subject to a determination of navigability, although some individuals nonetheless have been arrested.21)
Trespass in Oregon is entering on premises that are not open to the public.22) Premises that are open to the public, by their physical nature, function, custom, usage, notice or lack thereof, or other circumstances that would cause a reasonable person to believe that no permission to enter or remain is necessary.23) While the public may not trespass upon a privately-owned upland, a streambed owner likewise may not construct a fence or other obstruction blocking travel along a waterway.24)
In 2005, Senate Bill 1028 (SB1028) would have required comprehensive rules governing public rights to Oregon's waterways. In particular, section 5(1) of the bill expressly allowed travel by the public on upland property adjacent to the waterway for emergency use or to portage if the person takes the most reasonably direct and least intrusive path, as well as taking reasonable steps to avoid damaging the property and to repair any damage the person may have caused to the property. Further, section 5(2) provided a defense to a charge of criminal trespass under OR 164.245, 164.255, or 164.265 that a person making recreational use of a class 1 waterway entered the property adjacent to a waterway for emergency use or to portage and complied with the requirements of section 5. Under section 5(3), a person using private property adjacent to a waterway for emergency use or to portage is liable for actual damage caused to the property.
SB1028 was heavily criticized by both landowners and public use advocates.25) In particular, some public use advocates believed that certain provisions of the SB1028 actually eroded public use by allowing those uses to be regulated or restricted. The bill ultimately died in committee in August 2005. The full text of SB1028 can be found at http://www.leg.state.or.us/05reg/measpdf/sb1000.dir/sb1028.intro.pdf
For further information, Oregon State maintains a detailed website detailing navigability issues. http://www.oregon.gov/DSL/NAV
Common Waters of Oregon is a membership-based, public benefit, nonprofit organization dedicated to preserving Oregon rivers as common highways and forever free. This organization maintains an informational website covering water use issues. http://www.oregonriverrights.com
Updated and Reviewed January 22, 2018