Albany Democrat-Herald

Oregon's top three elected officials want people to be able to use the state's waterways without having to worry that they are trespassing.

This is important for boating and fishing, but it's a hot topic for property owners who worry about people making a mess or causing trouble on their land.

Acting as the State Land Board, Gov. Ted

Kulongoski, Secretary of State Bill Bradbury and Treasurer Randall Edwards are asking the 2009 Legislature to pass a law affirming the public's right to use streams and lakes - and adjacent land if necessary - for boating, fishing and general recreation.

All three voted for a Land Board resolution being sent to the Legislature, which assembles on Jan. 12.

Then resolution asks lawmakers "to enact legislation that clearly describes the public's right to use waterways."

The public has had the right to use navigable waterways since statehood, but the state has faced strong opposition in efforts to determine that waterways are navigable in the legal sense and thus owned by the state.

A law would get around the difficulty because it would establish a "floatage right" without the state claiming ownership of the waterway, similar to what Montana has done, according to Bradbury.

"It makes it possible for the state to stop asserting navigability, an incredibly contentious process," Bradbury said. "We're no longer saying the state owns the riverbed."

Edwards, the outgoing treasurer, said he's been frustrated for years by the process of establishing navigability.

So far, the Department of State Lands says in a brochure, public ownership has been determined on segments of only 12 Oregon rivers, including the Willamette, McKenzie and Columbia. The others are the Chetco, Coos, Coquille, John Day, Klamath, Rogue, Sandy, Snake and Umpqua.

Along some streams, including Crabtree Creek in Linn County, conflicts have sprouted between landowners and people using the water, especially over problems such as waste being left behind on the banks or people rudely trespassing on private land.

The Land Board resolution asks lawmakers to pass a law along the lines of an attorney general's opinion. In that opinion (No. 8281, issued on April 21, 2005), AG Hardy Myers said:

"Even if the bed of a waterway is privately owned, the waterway may be used by the public for certain purposes if it meets the state test of navigable-for-public-use (the 'public use doctrine').

"A waterway is navigable for public use if it has the capacity, in terms of length, width and depth, to enable boats to make successful progress through its waters."

On any waterway meeting the definition, the AG said, "the lawful public uses generally include navigation, commerce or recreation."

The opinion said recreation includes the use of small boats for "pleasure and fishing, as well as swimming." It further states, "The public may use the land adjacent to a waterway that is navigable for public use as long as the use of the adjacent land is necessary to the lawful use of the waterway."

Controversies over navigability - including public access to smaller streams and even lakes - has come up since the 1980s. It usually pits people looking for recreation against land owners who want to keep out trouble-makers and avoid liability if anyone comes to grief.

The three leaders making up the land board were unanimous in sending their request to the legislature. They passed the resolution on Dec. 9 in Salem.

Edwards said he's talked to Secretary of State-elect Kate Brown about carrying on with the issue, and he thought that Sen. Alan Bates of Ashland might introduce the legislation.