SALEM - The question of who owns the beds and banks of rivers in Oregon has percolated for 143 years, ever since the state's inception in 1859. More recently, in 1995, the Oregon Legislature created a statutory process for determining ownership, and since then the issue has boiled with controversy in the statehouse and in the courts.
In the next three months, a work group will try to subdue this controversy and create a compromise solution between recreationists who want access and landowners who want to protect their back yards from trespass. The compromise will focus on the lower John Day River, but potentially the work group's findings could affect the entire state.
The Oregon State Land Board imposed its ultimatum during the land board's regular meeting on Oct. 8. The land board issued a February 2003 deadline to the work group, asking the work group to sort out a process to determine ownership of riverbeds and banks short of the state determining navigability.
Navigability is a federal standard that asks if rivers were used to conduct commerce when states entered the union. If the answer is yes, then a river can be deemed navigable, and the state can assume ownership of the beds and banks up to the ordinary high water mark.
Through a lengthy process of legislation, litigation and work group meetings, fishermen and landowners have bandied back and forth over the navigability status of a 174-mile stretch of the lower John Day River, a prime fishing area in Grant, Gilliam and Wheeler counties but also a site of active irrigation for ranchers. Earlier this year, the Association of Northwest Steelheaders prevailed in Marion County Circuit Court; Judge Paul Lipscomb ordered a John Day River navigability study to be pursued or dropped. Now, the land board has dictated the timing of this study with its Oct. 8 decision to wait until February to gauge progress toward a compromise.
The land board's motion stated: "The land board directs the division to initiate a navigability study of the John Day River from river mile 10 to Kimberly at river mile 184, immediately following the February 2003 land board meeting, and the board requests the members of the navigability/public access work group to report to the land board at its February 2003 meeting on its progress; and if the work group presents to the land board at its February 2003 meeting a set of written principles of legislative concepts that have been agreed upon by consensus of the work group, the land board shall delay the initiation of the John Day River navigability study for 120 days."
Work group member Joan Silver, a pro-agriculture volunteer from Kimberly, was dismayed by the land board's decision.
"We're under the gun," she said.
"It is imperative, if people living along this river are to keep their property, that this work group is successful," Silver said. "Testimony given at the land board meeting was able to convince land board members that state ownership of all this land was wrong. Now, our only hope of keeping private ownership is to come up with management that landowners, counties, cities, agencies and recreationists all buy into. This is a daunting challenge to meet in so short a time."
Silver said the alternative to a compromise is a near-certain finding of navigability and surrender of private property along the lower John Day River to the state.
"Once the study starts, the result is inevitable. There will be state ownership of the beds and banks if the study is started," Silver said.
Implications of the work group's assignment extend beyond the stretch of the John Day River between Kimberly and Tumwater Falls. A compromise could launch legislation and stave off requests for navigability on seven other stretches of river scattered across the state (none in Eastern Oregon). However, after repeated challenges in court, Silver was wary.
"You just don't know what will come next," she said.
Ag advocates appeal for public input
On behalf of landowners, Joan Silver, volunteer; Jean Wilkinson, Oregon Farm Bureau government affairs director; and Bob Skinner, president of the Oregon Cattlemen's Association have solicited input from citizens affected by ongoing river-access deliberations. Silver, Wilkinson and Skinner were appointed to sit on a work group striving toward a compromise solution regarding public access to riverbanks. Also on the work group are representatives of the Association of Northwest Steelheaders, Realtors, hunters, kayakers, the Division of State Lands and a representative from State Treasurer Randall Edwards' office.
"Those of us representing the private landowners need all the help and cooperation that we can get," the agricultural contingent wrote. "We especially need to hear from people who would lose their land if this planning process is not successful. Please write or e-mail Joan or Jean, addresses as follows: Joan Silver, 46779 Hwy 402, Kimberly, OR 97848; mailto:firstname.lastname@example.org; Jean Wilkinson, 6415 Commercial St. S.E., No. 117, Salem, OR 97302; mailto:email@example.com.
"As we work on behalf of the landowners to develop a process that will be acceptable to all, we need the input from as many as possible as to what kind of use, and what kind of management program landowners would agree to. Bear in mind, those who are not on the John Day, that this planning process is to a statewide process, affecting every riverfront owner in Oregon."