Navigability "study" could change land titles along Rogue

Living on the river, especially a river like the Rogue, is the ultimate by most any measurement. For most, it means fishing, having a dock from which a small boat can be launched and a place where friends and family can picnic down by the river. Beyond that is the pure beauty of the Rogue. And for this privilege there is definitely a price to be paid. That price may well exceed a dollar figure if a study underway by the State Land Board is successful.

In July 1997, Timothy Thompson, a Josephine County District Attorney,
sent a letter to the Department of State Lands (DSL) asking for a
"navigability study" from Graves Creek to Lost Creek Dam. In his
letter, he noted three district court cases from MP 132-150 reportedly
involving trespassing. The three cases involved the same person and
were not even in his district.
The issue has lingered
until the last year or so as the state prepares its declaration. It has
already declared some rivers such as the Sandy  "navigable by title."
citizens who live along the Rogue River have formed a group called Save
Our Legacy, in an all out effort to preserve their way of life.  They
have hired an attorney from Stoel Rives LLP, Portland, to assist their
effort. Jennie Bricker focuses on water law and its related issues.
hearing with DSL was held in Grants Pass with some 250 people in
attendance. Two meetings will be held in March. The first is Wednesday,
Mar. 5, from 7-9 p.m. in the McKenzie Room at the Ramada Inn. The
second meeting will be on Wednesday, Mar. 19, from 10-12 n ., according
to information from the Department of State Lands.
mailed to those along the river said they were going to do a
navigability study.  Save Our Legacy spokespersons are very concerned
that those property owners along the river were not given sufficient
information to understand the potential of the "study."  It has the
makings of a taking.  Compensation has not even been discussed.
the DSL determine the river is navigable by title, ownership of its bed
and banks would be passed to the state as it was when Oregon became a
state on Feb. 14, 1859. That would mean Oregon owns the land to the
1859 ordinary  high water line.  A survey establishing the meander line
done in 1854 (See accompanying map) shows a vastly different Rogue
An example of what it would do to those living
along the river is evident by looking at the property owned by Will
Hardy and his wife. Hardy said he can’t understand why the
Navigability  by Title is necessary. He said there hasn’t been a
problem with the use of the river. "We are concerned that we’ve been
here 14 years. Our title shows our property goes clear across the river
including 10 feet on the other side. When they consider the meander
line, it means our entire property is in jeopardy of becoming Oregon
state land," said Hardy, who said a large amount of their retirement is
invested in the property.
"A legal mess looms as the state
continues on a course that will cloud the title for Rogue river
landholders for years to come," said a statement from Save Our Legacy
The Study for Navigability for Title was totally
unnecessary, note Legacy members. The public has had the right to use
the river to the ordinary high water mark. This is a state policy of
Jackson County, Shady Cove and other local authorities on the river,
according to a Legacy statement. Policing agencies report little
problem. Shady Cove Chief of Police Rick Mendenhall reports fewer than
10 complaints a year between riparian owners and recreational users and
most of those are in response to hunters discharging firearms within
the city limits. He said on the rare occasions when they respond to a
conflict, they use the ordinary high water mark as the guideline.  He
expressed concern about future conflicts if the state prevails and
noted his city does not have the budget nor the resource to deal with
more conflicts.
Those who have been in the area during a
drought and those who have seen the Rogue River flood have some
understanding of the way the river can change. When the Rogue overflows
its banks and floods, the title to the river bed does not follow the
new course of the river. Save Our Legacy points out the state will not
wind up owning a continuous river bed and banks in fee title. It will
be interrupted with private land holdings as the river continues to
change course by floods over the years. Recreationists will never know
whether they are on state lands or private property. The state and
local authorities lack the resources to handle the conflicts.
A legal mess looms.
By Nancy Leonard
Of the Independent

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