Most say Rogue Navigation Study will cause strife where there is none

Governor Ted Kulongoski, Secretary of State Bill Bradbury, Treasurer Randall Edwards and Louise Solliday, Director of Oregon Department of State Lands (DSL), and other officials listened to testimony from 46 concerned citizens at a meeting on March 19 regarding the Rogue River Navigability Study. The meeting at the Ramada Inn and Convention Center in Medford was attended by 350 and possibly up to 400 people by some counts.
Testimony began with Upper Rogue residents who arrived early to be sure they were signed up to testify and was continued by citizens from as far as Bend, accompanied by cheers and whistles of encouragement from the audience. Kulongoski and Bradbury occasionally reacted with good-natured smiles such as when Mark Davis opened a large American Heritage Dictionary and read the definition of navigable to the panel.

But at one point, Kulongoski admonished the audience for negative comments directed towards speakers with opposing viewpoints.
the majority spoke against state action that would declare the Rogue
navigable, about six speakers including some with river-front property
testified in favor of the study. The area in question is from the 68.5
to the 157.5 river mile, a total of an 89-mile stretch of the river.
    Testimony was to be directed to two questions:

  • Does evidence presented in the revised report meet the requirements of the federal test for navigability?


  • Should the land board make a declaration of public ownership of the river from milepost 68.5 to 157.5?

    Several speakers mentioned the high-water mark already in use.
Others questioned who will pay for policing the river.  Currently,
local law enforcement handles issues but if the state takes ownership
of property, will the state also assume responsibility? Sue King
reading from a letter by river guide Kern Grieves said there would be
"further degrading of our rivers with human waste, trash and rubbish,"
(if the river is declared navigable).
Realtor Jim Fritch likened the state to "Pac Man, chopping away at each water system."
Louise Solliday said this is the third study since adoption of a
process in 1995. The Sandy and John Day Rivers have been deemed
navigable as a result. She said elements considered were whether the
rivers were navigable at the time of statehood or if  the rivers were
used or could have been used as a highway of commerce.  In her summary,
Solliday said they concluded the federal test was met and in its
ordinary and natural condition the river was susceptible to being  used
or could have been used. She said except for a  few areas, the river
has not changed appreciably.
After hearing a comparison of
the use of Indian canoes to rafts, drift boats and kayaks, Steve
Straughan, of Trail,  said it is not true that a Native American canoe 
has the same handling characteristics as a modern-day aluminum drift
"The action you are considering will allow the public
to use the river to the high water mark as existed at statehood, Feb.
14, 1859, almost 150 years ago. The river has changed significantly in
those 150 years," noted Straughan. "The river in 1964 moved over 150
yards south and west to cut my particular lot in half.  While the law
allows the state to take title to the river as it was in 1859 and
whatever simple acretion that has taken place, it specifically prevents
you from acquiring title in those areas where the river’s channel was
changed by these catastrophic events."  He said the state won’t be able
to acquire continuous title without negotiating with each land owner
through an expensive legal process.  "I will not be easy to negotiate
with," concluded Straughan, who is well remembered as a negotiator for
the teachers union, and is now retired. 
Jennie Bricker,
Stoel Rives, LLP out of Portland and attorney for Save Our Legacy, a
501 (c) (4) corporation including Rogue River property owners, among
others, said her clients believe the navigability study is an
ineffective approach for the Rogue River segment in question. She cited
three reasons to not make a declaration of state ownership:

  • Navigability determination is not warranted because no conflict exists
    between riparian property owners and recreational river uses.


  • Because of periodic flooding on portions of the river and resulting
    shifts in the channel a declaration of navigability will create serious
    title problems for some 60-80 tax lots, which is now dry land and has
    been developed as private property.


  • Even with a declaration, the state will not own the present, contiguous channel of the river.

think it is sort of a solution without a problem." She pointed out the
land board could use discretion in going forward until some issues
brought out at this meeting could be addressed.

Roger King, of
Eagle Point,  said there have been 17 major floods since 1890 that
violently and substantially changed the river bank. He provided three
maps that could be superimposed to show the changes. King said if the
state goes ahead with the study, they will have to claim an old dry
river channel. Some property owners will be legally landlocked and it
will result in 20 percent of the property being put in public hands. He
asked: Will the public know if they are on open public or private
Will and Katherine Hardy live on a beautiful
section of the Rogue in Shady Cove. They learned their home and almost
their entire lot lies squarely in the middle of the old Rogue River
meander line going back to February 4, 1859 when Oregon achieved
statehood.  Title to their three acres has changed hands 21 times since
1887.   Hardy  said the proposal will mean  the DSL will claim almost
all of their property and their home. Property owners will have to pay
for and sort out legal titles themselves. "This is an outrageous act as
it will place a cloud on our title for years to come," said Hardy. He
expressed concern about financial hardships the legalities would impose
on landowners.
Those in favor of the navigability study
included Otis Swisher who would like to see riparian areas replanted.
He quoted Jim Martin, former head of fisheries at Oregon Department of
Fish and Wildlife, who had said, "They tear off her clothes and leave
her naked." He was referring to streams losing vegetation at the hands
of landowners. Swisher said replanting alders and willows would offer
privacy to landowners.
Mike Cooley of Grants Pass, who
spoke in favor of the study, said he has floated all the way down to
Gold Beach and the river is navigable.  He asked the board to meet the
rights of all citizens not just the landowners. And Roy Hansen of
Northwest Rafters Association said the study is accurate. He
recommended the state write legal requirements and educate the public.
Birdseye, whose great-great-grandfather settled the area, owns two
miles of river frontage with a deed that says they own to the middle of
the river. His relatives built a wing dam on the river. "That kinda
means it is not navigable," he commented. "We’ve not seen
confrontations in over 150 years. This is a waste of time." On Feb. 14,
he was honored for 150 years of the Birdseye family farming in southern
Oregon. "I find it kinda insulting to get this nice award and now come
home and find they are going to confiscate your property."
Harrison, who has lived on two different locations on the Rogue River
for 14 years and is a Realtor, said the ruling would make ownership
much more complex and  expects it will cloud many deeds. He  noted the
Upper Rogue has shifted since statehood. He said it is accepted that
people may use the river and it hasn’t been a problem. Currently the
state regulates river banks. Harrison said landowners have recourse to
solve issues locally if there is a problem. "I fail to see how any
steam could be exempt to claim (if this study is adopted)" concluded
 "This is probably the second best
cuda, wuda, shuda report I’ve ever read," noted Herb Sutton., who has
lived on the river for some 30 years.
Director of
Development Services for Jackson County, Kelly Madding, presented a
letter to the DSL members and spoke on behalf of the board of
commissioners.  "We are troubled by inaccuracies. We believe this will
have unintended consequences to landowners." Madding said in the
county’s view, the report fails to address flooding and channel changes
that have occurred. "We are gravely concerned about the impact on
private landowners."
There is still time for residents to
comment on the study. Kulongoski said comments will be accepted until
5:00 p.m. Wednesday, March 26. E-mail or U.S. mail to Rogue River
Comments, Oregon Department of State Lands, 775 Summer Street N.E.,
Suite 100, Salem, 97301-1279.
By Margaret Bradburn and Nancy Leonard
Of the Independent

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