Who owns Oregon's navigable waterways? You do, I do, we all do. The citizens of Oregon own the bed and banks up to the normal high water line of navigable waterways in Oregon and have since statehood in 1856. On an equal footing basis with all other prior states, the federal government passed along to Oregon the ownership of all rivers, streams and creeks that meet the federal test for title navigability. (Navigability used here is a term relating to title ownership as contrasted with that used by the United States Coast Guard or the Army Corps of Engineers.) If this is true then what's the big deal and why do we have to talk about it? For the public which includes boaters, fishermen, rafters, canoeists, kayakers, swimmers, and others who use our waterways it makes a big difference who owns the submersible lands.

There are many waterfront property owners whose deeds run out into the water and they may have been paying county taxes on these lands. A large number of these folks want to exclude the public from what they consider their personal domain. So who really owns this submersible land? Is it the state or the private property owners? According to literature from the Oregon Division of State Lands (D.S.L.) „...a deed can only convey interests actually owned by the seller, and since the beds and banks of all navigable rivers were given to the state at statehood in 1859, situations may exist where the state is the only true owner regardless of what a deed may say. The state's right to ownership is a prior existing right and is frequently mentioned as such on deeds and title insurance. What makes a river title navigable? On Oregon's Chetco River the Federal Court ruled the river navigable based upon the historic use of Indian canoes and the contemporary use of drift boats for recreational fishing. A river's condition at statehood is very important and navigability does not apply to many unnatural conditions such as man made irrigation ditches or above the normal high water line during flood stage. Since Oregon has not asserted it's ownership on most rivers, due to unwillingness over the years by the State Legislature to resolve the ownership issue, conflicts continue to occur throughout Oregon.

An example of this is steelhead fisherman Ray Dezellem of Arlington arrested for trespass near Service Creek on the John Day River on Sept. 26, 1998. This case has been dismissed. This is for being on the bank below the high watermark of a river that state records show meets federal standards for navigability. If a waterway meets the federal test for navigability, it is navigable, and falls under the Public Trust.

Citizens should not be arrested for being below the normal high watermark of such a waterway. Many County District Attorneys understand this and will not prosecute. Others might and therefore conflicts will continue until the Oregon Legislature takes appropriate action. In the meantime users should avoid conflict where possible, stay below the normal high water line, don't litter, and show respect for others including the waterfront property owners. It's a good idea if you are not certain to ask permission first and avoid conflict. For more information contact D.S.L. in Salem at (503) 378-3805 or the author in care of the Association of Northwest Steelheaders in Milwaukee (503) 653-4176.