[5]More push to get legislation giving the public the right to recreate on privately-owned banks and uplands along non-navigable waterways
By Bill Moshofsky
Oregonians In Action [6],
During the 2010 special session of the legislature, Senator Alan Bates of Jackson County introduced a bill that gave the public (1) the right to use the privately owned banks of non-navigable, but “floatable” waterways for recreation (swimming, fishing, camping, picnicking, etc.), and (2) rights to use privately owned uplands (land about the “ordinary high water” line, including pastures, wooded areas, crop fields, and yards).
The bill was defeated, but Oregon Secretary of State Kate Brown (a member of the State Land Board) has formed a River Users Work Group in an effort to come up with compromise legislation that could pass in the next regular session. Because of the threat to the property rights of many landowners all across the state, Oregonians In Action is participating in the Work Group.
Here is a brief discussion of the issues.
Under state and federal law, the beds and banks (up to the ordinary high water mark) of “navigable” waterways are owned by the state, and the public can use the beds and banks for recreational purposes.
The beds and banks of “non-navigable” waterways are owned by the owners of the land next to the waterway, and the public has no right to use the banks up to the ordinary high water mark for recreation under Oregon law (statutes and court decisions).
However, based on a 2005 opinion of the Oregon Attorney General, state agencies such as the Department of State Lands have proclaimed that the public does have the right to recreate on the banks of non-navigable but “floatable” waterways under the “public use doctrine.”
The Attorney General’s opinion does not create law. It is binding on state agencies, but does not bind the judiciary, local law enforcement, prosecutors, the legislature, or members of the public. Nevertheless, the 2005 opinion has created significant problems for Oregon property owners, despite its flawed legal analysis and conclusions.
OIA believes the Attorney General’s opinion that the public has the right to recreate on the banks of “floatable” waterways is not supported by the Oregon Supreme Court decisions. The decisions focus primarily on the public’s right to use the water for floating logs or for pleasure boats. They allow the public the right to use privately owned banks only when “necessary” such as attaching a log boom to the bank to prevent logs from going over falls, or when a pleasure boat has an emergency.
It would be a truly remarkable stretch for the Oregon Supreme Court to hold that a member of the public has the right to use the beds and the banks of a “floatable” stream, pond, or lake for recreational uses, and an even bigger stretch to authorize the use of uplands.
But property owners have a problem. Unfortunately, at the present time, property owners have difficulty getting law enforcement officials to arrest and prosecute members of the public for trespassing on the banks of “non-navigable” waterways. The are two main reasons.
The first is that, because the courts can determine that a waterway is navigable, and the criteria for demonstrating navigability is cumbersome, expensive, and uncertain, the offender could allege and prove that the waterway is “navigable” as a defense (this would give the offender the right to use the banks). For law enforcement and prosecutors, this means a lengthy and difficult trial with a result that is hard to predict.
The second is that the 2005 Attorney General opinion has caused further uncertainty for local law enforcement and prosecutors, and has emboldened members of the public who desire to trespass on private property in order to make recreational use of the beds and banks of waterways. The trespasser could raise this as a defense, and it is difficult for law enforcement to work with such uncertain standards.
The legislative bill that was defeated in 2010 not only gave the public the right to recreate on the banks of “floatable” waterways, it gave the public the rights to use “uplands” (land above the ordinary high water mark) for recreational purposes, including camping, picknicking. Many participants in the Work Group strongly supported these provisions. For property owners, no part of the 2010 legislation would have been more devastating than this provision.
Fortunately, there are a number of participants that share OIA’s concerns and we are working closely with them. One avenue to be pursued is preparing a lawsuit asking the courts to reject the 2005 Attorney General opinion. This would be of some help in getting law enforcement officials to prevent trespassing.
Unfortunately, even if the Attorney General’s opinion is overturned in the courts, law enforcement officials may continue to be reluctant to arrest trespassers because trespassers might allege and prove that the waterway is navigable (so the public has the right to use the banks). This would be a very costly procedure for trespassers to use, but prosecutors may use the possibility as an excuse not to prosecute.
Given the lack of current law enforcement efforts to stop trespassers and the lack of certainty in the law, there may be some merit in seeking legislation that would clarify the law. However, in order to pass that legislation, the groups demanding access to the beds and banks are going to demand concessions. This is the difficulty with any legislative compromise.
Having some protection against some trespassers on the banks may be better for property owners than no protection against all trespassers. Another reason for compromise legislation is to reduce the push for the state to declare more waterways to be navigable (which would allow the public to unlimited use of banks).
The compromise should also include the following:
(1) Legislation prohibiting use of uplands (land above the “ordinary high water” mark which is generally the vegetation line).
(2) Legislation that would preclude violators from using “navigability” and the “public use doctrine” as defenses to unauthorized uses of banks and uplands.
(3) Access to the banks must be by boat, raft or other floatable device, or across public land. This would automatically resolve disputes relating to what and when waterways are “floatable,” and limit recreational use.
(4) Necessary funding for law enforcement and an agreement from law enforcement and prosecutors to aggressively pursue trespass actions.
Oregonians In Action will welcome comments and suggestions concerning this complex and important matter.