Who really owns the river?
By Damian Mann
Mail Tribune, OR
March 09, 2008
A river runs through the middle of Steve Straughan's property near Trail — or does it?
Straughan owns 1.8 acres that extend across the Rogue River to a sandbar on the other side. But the river portion might become a battleground if the state of Oregon attempts to take ownership, claiming the channel and banks belong to the public.
"This is causing more problems than it's going to solve," he said.
Straughan and many of the approximately 2,700 property owners in both Jackson and Josephine counties think the state's proposal could undermine property rights and spur legal action.
The proposal comes on the heels of a Rogue River Navigability Study that is a major step in declaring an 89-mile stretch of the river as public property.
The Department of State Lands doesn't have a precise record of how many properties are located along the river, but it has a mailing list of 1,736 property owners in Jackson County and 995 in Josephine County.
State lands officials have prepared a draft study that has as its foundation an act by the U.S. Congress that brought Oregon into the Union in 1859. The act declares the state's navigable waterways free to all inhabitants of the country.
The state is relying on maps produced in the 1850s to determine the original course of the river, which will be used to establish state ownership. It is also relying on historical documents to show the Rogue has been a river that is considered "navigable" under federal standards.
A public hearing on the issue will be held by the State Land Board from 10 a.m. to noon March 19 at the Pacific Ballroom at the Ramada-Medford and Convention Center, 2250 Biddle Road. The three-member land board includes Gov. Ted Kulongoski, Secretary of State Bill Bradbury and state Treasurer Randall Edwards. They will make a decision on the study later this year.
The study covers the river channel from below Lost Creek Dam to Grave Creek in Josephine County. Settling the issue will prove complicated. The river has changed course since 1859, so the state would have to negotiate with property owners to obtain titles to the new channel.
The lower portion of the Rogue has already been declared navigable.
At an informal meeting Wednesday night, the DSL presented its proposal to a mostly hostile crowd of more than 100.
"This is a theft of our properties," said Pamela Hackett of Grants Pass. "I know it's a theft. I don't know how you can sleep at night."
Jeff Kroft, senior policy specialist for state lands, responded, "The state of Oregon does not consider it a theft."
If the navigability study is approved, he said later, "It is the state's position that it owned the river since statehood."
The state would take over ownership from bank to bank in the normal channel of the river, but not the areas where the river occasionally floods.
Kroft said the process will be unsettling for property owners, who for various reasons have deeds showing they own property in the river or across the river.
"Their concerns — they are very legitimate," he said. "It's unraveling a very thorny problem."
Similar battles have been waged on both the John Day and Sandy rivers, but the state ultimately obtained rights to the channels.
Residents cite a number of fears if the state follows through with this proposal, including trampling property rights, more criminal behavior along the river and more conflicts over trespassing. They also worry about whether they can own their docks or can continue to pump water out of the river.
Steve Purchase, assistant director for the land management division of DSL, said, "This does not give the public the right to go onto your private property. That's simply trespass."
The DSL said people using the river can stop along the banks to fish or relax, as long as they don't engage in illegal activities.
Purchase said the DSL action would not affect docks, but property owners would have to obtain an easement from the DSL for $125 to install pumps or other equipment on state land.
Gold Hill resident Peggy Broderson, who discovered she might have to pay a fee for an easement, said, "To me this is a big farce. I can't believe you wouldn't waive the fee. How can you turn around and charge us for our own land that you are taking from us?"
The Jackson County commissioners sent a letter to the state on Feb. 7 opposing the navigability study.
"As we understand the law, the public already has the right to use the river (in its present location) for recreation and commerce," the letter stated.
The commissioners said they think there are no real conflicts or uncertainty on the river to justify this action. They said it will be disruptive for some of the property owners whose properties are located within the river itself because the state will have to negotiate to take over title to these properties.
"It appears to us that a navigability determination would introduce conflict and exacerbate uncertainty about ownership and use rights," the letter stated.
The navigability study was prompted by complaints from the Josephine County District Attorney's Office over difficulties in determining jurisdiction in disputes between property owners and those using the river.
Straughan and 80 other landowners have formed the group Save Our Legacy, which has hired an attorney to take on the state.
"If I have to, I will file a lawsuit to protect my rights," he said. "It's a taking that is totally unnecessary."
Straughan, who has lived at his house for five years, said the river jumped its channel in the 1964 flood, which is going to make for potentially protracted negotiations with state officials.
Under legal complexities, the state wouldn't own the river if it changed course during a flood even if the navigability study is approved. However, if the river slowly changed course over time, the state says the title would follow the new channel. Changes would require approval from the property owners affected.
Straughan can't understand why the state wants to take such a disruptive step because he said every landowner understands the public already has the right to swim, float, raft or fish in the Rogue.
"I firmly believe they already have the right to," he said.
State officials say putting the river under government ownership will lead to better management and will give law enforcement agencies clearer jurisdiction in determining what is private property and what is public.
Roger King, a Shady Cove resident whose property extends halfway into the river, said he estimates that 25 to 30 percent of the property owners from Shady Cove to the Gold Ray Dam near Central Point will have problems with the state because the river channel is different than it was in the 1850s.
He said he's only had one problem with people using the river in the past 13 years, but he fears that once he's given up rights to his property the dynamics will change.
"They're going to be picnicking and camping and crapping on my property," he said. "Right now they can't do it because it's private property."
Landowners say that if the state is taking away their property, they should be compensated for property taxes that they have paid over the years.
If property owners who've been paying taxes to the middle of the river want a refund, DSL said that needs to be taken up with the assessor in Jackson or Josephine counties.
In a letter sent to the DSL in September 2007, Jackson County Assessor Dan Ross states, "We will not be caught in the middle of any disputes between your office and the property owners."
Ross said he doesn't believe the value of properties would decline because of the loss of land, most of which is underwater. Such land has been appraised at only 10 percent the value of typical rural land, he said.
"We're not talking about a lot of money," he said. "We haven't been appraising for that much at all."
If there is a change in ownership, Ross said homeowners wouldn't receive any back taxes.
"They're not going to get a rebate," he said.
In Josephine County, the Assessor's Office informed the state it doesn't assess portions of properties in the river.
Property owners also worry if the state does take over the river, it won't have the money to pay to enforce state laws.
Purchase of DSL said he hopes for better coordination with local and state organizations to manage the river and would hope to secure more state park rangers to patrol the area.
But he told residents at Wednesday's meeting, "We don't have the resources for everywhere in the state."
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The start of the controversy
The act of the U.S. Congress admitting Oregon into the Union in 1859 contains one of the key legal reasons why the Oregon Department of State Lands believes it has jurisdiction over the Rogue River:
"Section 2 ... and said rivers and waters, and all the navigable waters of said state, shall be common highways and forever free, as well as to inhabitants of said state as to all other citizens of the United States, without any tax, duty, impost, or toll therefor."
What prompted the state to consider taking over the river channel?
Timothy Thompson, Josephine County district attorney, requested the study in 1997 after property owners bordering the Rogue River engaged in disputes with fishermen and rafters. Thompson said the confusion over who owns the river made it difficult to resolve these disputes, which were increasing as the region became more populous. The state wants to declare ownership of an 89-mile stretch of the Rogue River from just below Lost Creek Dam to Grave Creek. It would extend to winter high-water marks, generally shown by a lack of vegetation or a sloughing off of the banks.
What do opponents of this plan say?
Some property owners say they legally own the land to the middle or to the other side of the river. They say it is going to be disruptive to determine what lands the state owns because the river has changed course since statehood.
Elsewhere ...
Rivers, or portions of rivers, that the state already owns:
Chetco
Columbia
Coos
Coquille
John Day
Klamath
McKenzie
Lower Rogue
Sandy
Snake
Umpqua
Willamette
By any other name ...
The Rogue River has been known by many names:
* Trashit — given to the Rogue River by American Indians.
*
La Riviere aux Coquins — given by French-Canadian trappers because of their perception that American Indians were mischievous or malicious. * Gold River — established by the territorial legislature in 1854.
* Rogue River — established by the territorial legislature in 1855.
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