Navigable Waterways Are Part Of Oregon’s History

I got an e-mail a few weeks ago asking about navigable waterways in Oregon and urging me to let readers know a little bit about the history of issues surrounding navigable waterways. After making a few calls and doing some research, here’s what I found out: navigability is a complicated issue. And it seems to boil down to folks who feel strongly about land ownership rights and those who feel streams and streambanks are in the public trust.

The Quick And Dirty History
At statehood, the federal government granted the state of Oregon all navigable waterways. A navigable waterway was one that could be used in commerce. This was still a pretty gray area. Some streams might only be used for commerce at certain times of the year. Are they considered navigable year round or just in the winter? And what about moving logs? Certainly a small stream could be used to move timber if splash-dammed. Does that mean even very small streams are navigable? The answer is probably not. The basic idea behind granting the streams to the state of Oregon was to make sure people were free to travel through areas and could not be stopped by private landowners. Navigability – like many other issues – isn’t absolute. If a deed was issued that pre-dated statehood, it supercedes state law. There are some cases where landowners were deeded the streambed. That wouldn’t affect your ability to float a river, but it may stop you from anchoring or traveling (or fishing) below the average high water mark. I don’t know of anyone that has researched how many of these types of deeds are out there, but it’s generally believed to be few.

What This Means To You
In 2005 the Attorney General of Oregon issued an opinion on public use and state ownership of waterways. Navigable was defined as “capacity, in terms of length, width and depth, to enable boats to make successful progress through its waters.” In addition to allowing use of waterways up to the line of ordinary high water for boating, the opinion means that the doctrine authorizes other water-dependent uses such as swimming, fishing on foot, hunting from a boat and other similar activities requiring the use of the water. It is also important to note that state ownership includes the streambank to the mean high water mark. This can be determined by the presence of upland vegetation. The Department of State Lands press release can be viewed online at
http://www.oregon.gov/DSL/news/pr0531_ag_nav.shtml and the full opinion can be viewed online at www.doj.state.or.us/agoffice/agopinions/op8281.pdf.

Not all navigable waterways in Oregon have been declared as such. You can still get a ticket for trespassing, but it is unlikely to stand up in court. At least this is what I have been told. The hassle of the whole deal is that you’ll have to appear in court and defend yourself. One last final thought: I’d have to think many conflicts could be avoided by treading lightly, leaving a streambank cleaner than you find it, and practicing some common courtesy.

As always, I welcome your opinions on this and other issues.

See you on the water,
Action Jackson

(Please send comments or questions to Action Jackson at 268-6944 or www.actionjacksonfishing.com)