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 http://www.mailtribune.com:80/apps/pbcs.dll/article?AID=/20090119/NEWS/901190304
Changing course along the water
Legislator works on bill to undo what some consider to be a state-sanctioned 'land grab' along Oregon waterways
Oregon State Senator Alan Bates is proposing legislation that would spare property owners and river users from navigability studies to establish water and property rights on the banks of the Rogue River. photo Bob Pennell
Damian Mann

A legislative effort could undo the Oregon Land Board's contested decision to take ownership of portions of private properties along waterways in the state, including the Rogue River.

State Sen. Alan Bates, D-Ashland, is working on a bill that would give the public the right to access most waterways in the state from bank to bank, but end the practice of taking away the rights of property owners in Jackson County and elsewhere.

"We want to come up with a floating easement on properties along waterways and see if we can do it retroactively on rivers deemed navigable," said Bates.

Last year, the state completed a so-called "navigability study" on the Rogue and asserted ownership from bank to bank, prompting a lawsuit in Jackson County Circuit Court by some local property owners, mostly in the Shady Cove area.

Many of the 3,000 landowners along the Rogue have title to the middle of the river or to the opposite bank and see this move by the state as a land grab. They have voiced their opposition through letters and at public hearings.

The state sent letters to 3,000 owners of properties within 200 yards of either side of the Rogue, notifying them that the public owns the river channel and the banks up to the ordinary high water marks, but not to areas that flood.

In some locations, particularly around Shady Cove, the channel has changed markedly since statehood, when the laws establishing the state's ownership of the waterways was crafted.

Until the legal action with Jackson County property owners is resolved, the Oregon Department of State Lands has decided to halt any further action against the properties.

The biggest problem in Bates' legislation could be undoing what the state has already accomplished in laying claim to rivers like the Rogue, Sandy and John Day.

Bates said he thinks the state's decision can be undone because it wasn't a Constitutional action.

"I believe it is possible, but I'm not a Supreme Court justice of the state of Oregon," he said.

Experts, including those at the Oregon Attorney General's office, will pore over the proposed legislation to see whether it passes legal muster before being reviewed by the Legislature, he said.

Bates said his goal would be to declare the public's right to use all major waterways by creating the right legislation rather than through the time-consuming and controversial process of conducting individual navigability studies.

State officials, the Land Board, property owners and others agree something needs to be changed because they anticipate years of legal actions that could tie the process up indefinitely, said Bates.

"It's strange that all parties agree that the direction we're going isn't the right direction," he said.

However, previous legislative attempts to resolve the problems haven't worked.

Now, the state has had some history of the effect on property owners as a result of following through with navigability studies, said Bates.

"They are agreeable to sit down and look at the legislation proposed and see if they agree with it," he said.

Roger King, a vocal opponent of the state taking away property rights and a resident in the Shady Cove area, said Bates' legislation could resolve concerns of the landowners.

"If this goes through, this whole issue is over," he said.

Like many landowners along the river, King said the main issue is to provide fairness and respect for property rights.

"I'm just against grabbing our land," he said.

He said the state is afraid that litigation over this issue of title could take years to resolve, and he thinks the outcome could eventually favor the landowner.

"They don't want a court case that they're afraid of losing," he said. "That's my gut feeling."

Louise Solliday, director of the Oregon Department of State Lands, said she thinks it would be very difficult to craft legislation that would undo the navigability determination on rivers like the Rogue.

She said any attempt to undo the navigability designation could potentially be overturned in the courts.

It is more likely that legislation could be created that would address the property rights issue going forward as the state looks at other rivers, said Solliday.

Property owners in Jackson County, however, would still have to contend with the state over issues of the title to portions of their property.

"It would not make a difference on the Rogue in terms of ownership," she said.

The state is looking at a Montana law where a "floatable easement" was created, but Solliday said even that idea doesn't resolve all conflicts between landowners and river users who access the waterways along bridges next to private land.

Solliday said navigability is a very tough issue on property owners.

"We're 150-year johnny-come-latelys," she said. "This is a horrible way to make these things."

Solliday said it is the state's responsibility to ensure the public's continued right to use the waterways and clear up confusion among both property owners and law enforcement over trespassing issues.

Sen. Jason Atkinson, R-Central Point, said he couldn't comment on the proposed legislation until he sees a copy, but thinks the state has been heavy-handed in its dealings.

"The Land Board is pushing for a solution to a problem that doesn't exist," said Atkinson, adding that he hopes the proposed legislation can remedy the concerns that landowners have raised.

"I am very concerned that the thing protects property rights," he said. "The biggest fear that people have is the uncertainty."

Reach reporter Damian Mann at 776-4476 or dmann@mailtribune.com.

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              Page Updated: Thursday May 07, 2009 09:14 AM  Pacific


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