Trask and Kilchis Rivers
|Navigability Study Requests|
In October 1997, the Association of Northwest Steelheaders submitted a navigability study request to the Department of State Lands (Department) for the Kilchis River from River Mile 0 to 10.
Trask River photo by Gary Wilson courtesy NRCS
This request was followed in March 1998 by another request from the Association for the Trask River from River Mile 0-18. Pursuant to the requirements of ORS 274.404 and OAR 141-121-020, the Department sent a letter to many of the owners on record of property along the affected segments of these rivers as well as local government officials and other interested persons, and placed a public notice in the Tillamook Headlight Herald for three consecutive weeks.
This letter and notice stated that the Department had received a request to study the navigability of the Trask and Kilchis Rivers, discussed the navigability study process, and asked for public input.
As a result of this public notification, the Department has received nearly 150 letters from local government officials, property owners along and users of these rivers. In reviewing these letters, it is apparent that many of the persons submitting public input have similar concerns and questions regarding the navigability study process and how it may impact them.
The following information addresses a number of the issues raised in the public input concerning the Trask and Kilchis River navigability studies. Statements made in letters received by the Department are used to illustrate common points of concern, and are presented in italicized print.
ISSUES AND CONCERNS
Q. Why didn’t everyone owning property along the Trask and Kilchis Rivers receive notice of the navigability study request?
The Department went to considerable effort to provide notice of the navigability study requests to all affected and interested parties, including consulting with the Tillamook County Assessor. If you or a neighbor own property along the Trask or Kilchis Rivers but did not receive this notice, please contact the Department and we will add your name to the mailing list.
- "There are six property owners within one-half mile of my property who were not advised of the packet or the study to be made."
- "We have been in contact with some of the other landowners directly affected by the study. Not all of them received your letter dated September 1, 1998 that was to be sent to all affected landowners."
Q. How can the Trask and Kilchis Rivers possibly be considered navigable?
Whether a waterway is navigable for public ownership purposes does not depend solely on its size or flow. To determine if a waterway is navigable, the Department not only must follow the multi-step process prescribed by state law (ORS 274.400 through 274.412), but also rely on the federal test of navigability. This test has been established by federal courts and requires that for a waterway to be navigable for public ownership purposes:
- "Anyone could drive up the Trask River and easily see that this river never was and never could be used for any kind of commerce. In the summer you can walk across it and in the winter it runs so high and fast that only a fool would ever think about navigating it."
- "I think the Kilchis River is too small to be classified as a navigable stream."
The courts have determined that almost any type of watercraft (for example, a canoe, ferry, or ship) is sufficient as a "customary mode of trade and travel." Further, they have found that the use did not necessarily have to occur at the time of statehood, February 14, 1859, but it is enough that it could have occurred bringing rise to the concept of "susceptibility."
- It must have been capable of, or susceptible at the time of statehood, to use as a highway for the transportation of people or goods;
- The transportation must be conducted in the customary modes of trade and travel on water;
- It must be navigable in its natural and ordinary condition; and
- The navigability is determined as of the date of Oregon’s statehood (February 14, 1859).
This is the same test that was applied in the federal court decisions on navigability for Malheur and Mud Lakes (1934), the McKenzie River (1983), and the Chetco River (1994). The federal court’s Chetco River decision included forty individual findings in support of the public ownership navigability determination. Among these were the following:
Q. Who does own the submerged and submersible land underlying the Trask and Kilchis Rivers today?
- "Low flow conditions expose riffles in the Chetco River seasonally approximately between July and September of each year. During times of low flow, riffles in the main channel of the river occur at intervals averaging approximately one mile over the lower fifteen miles of the river, and pose the greatest impediment to navigation. Water passage in drift boats and canoes is impeded, but not precluded, although boaters must pull and/or push their craft at some locations."
- "During periods of high flow, the Chetco River is characterized by wide open, unimpeded channels, absent the riffles which are present during low flow periods. Flows that prevail in the Chetco River during more than half of each year provide adequate depths and widths for unimpeded, free passage of rigid manpowered watercraft such as the northwest style drift boat or the Klamath shovel-nose canoe between RM 11 and the mouth of the river."
- "Northwest drift boats presently used on the Chetco River carrying two to three people and their fishing gear require approximately four to six inches of water to float, can pass through a channel of water six feet wide if the boat is aligned parallel with the channel, and require a channel of twenty feet wide to drift sideways. The presence of shallow riffles and exposed cobble impedes, but does not prevent, navigation of the Chetco River by northwest drift boats or watercraft with similar draft."
- "Northwest drift boats presently used on the Chetco River for fishing could have been used for the same purpose in 1859."
- "Hits, bumps, and hang-ups on rocks and cobbles in shallow riffles present during periods of low water do not preclude navigation of the Chetco River by either typical northwest drift boats or by Klamath shovel-nose canoes."
- "The portion of the Chetco River at issue in this lawsuit is navigable by watercraft during most months of most years and allows watercraft passage during some months of every year."
The Department is aware that many deeds show that a landowner owns the submerged and submersible land underlying a waterway running through, or adjacent to his property. However, since a deed can only convey interests actually owned by the seller, and since the submerged and submersible land underlying all navigable rivers was 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.
- "According to our property deed, we own halfway into the Trask River."
- "The ownership of the Kilchis riverbed and bank is clear as written in our property deeds. Boundary lines go to the middle of the river."
- "If you own land on both sides of the stream you also own the river bottom and shoreline."
The state’s right to ownership is a "prior existing right" and is frequently mentioned as such on deeds and title insurance.
Kilchis River photo Bill Parks
Somewhere along the chain of property transactions, a deed may have been changed to include the riverbed from ordinary high water to the middle of the river. Again, these issues depend on the facts of the particular situation.
According to current state law, until the navigability of a waterway is determined and declared by the State Land Board, the Department is unable to affirm or deny public ownership of submerged and submersible land underlying the waterway.
Furthermore, no one other than the courts can say with total certainty who owns the submerged and submersible land underlying these rivers.
The Department recommends that riverfront property owners review their deeds and title insurance. Exceptions affecting the use of the submerged and submersible land below the line of ordinary high water are often found in either or both of these documents.
Q. Didn’t the Department of State Lands already determine that the Trask and
Kilchis Rivers are not navigable?
No. The Department has not determined in a manner consistent with current state laws the extent to which either the Trask or Kilchis Rivers are navigable. In the 1970s, the Department was directed by the Legislature to investigate the evidence of historical use of many of Oregon’s waterways. At the conclusion of this study, the Department prepared a report discussing the evidence found, and even held hearings around the state. However, the Legislature did not act on the information contained in this report, nor has the Land Board made a formal declaration of the ownership of the submerged and submersible land underlying either the Trask and Kilchis Rivers above head of tide (approximately River Mile 2 on the Kilchis and River Mile 4.3 on the Trask).
- "The Department of State Lands has already determined the extent to which the Trask and every other Tillamook County stream is navigable."
- "It was my understanding that a navigability study was performed on the Kilchis a number of years ago. I do not believe there is any need to clarify ownership rights because those have already been established."
- "The Trask River has been deemed non-navigable twice, the last time being as recent as 1980. The 1980 study should put to rest once and for all the request of the special interest groups who want to change this river for their personal recreational wants."
Q. Has the Department made a decision concerning how it will proceed with this navigability study request?
Contrary to the above comment, no decision has been made on either the navigability of the Trask or Kilchis Rivers, or whether a navigability study should be conducted. As mentioned in the "Introduction" of this brochure, Oregon state law provides a definite process which the Department and Land Board must follow before making a navigability claim to a waterway. By notifying the public of the receipt of navigability study requests for the Trask and Kilchis Rivers, the Department is only at step three of a twenty step process required by law. The public input solicited by the Department is important, and will be seriously considered by the Land Board in determining whether to proceed with a navigability study on either or both rivers.
- "Rumor has it that this study is a "done deal" and that some property owners aren’t responding believing it’s futile."
Q. Why is a navigability study needed? We have never had any problems with anglers.
Despite the good fortune of many riverfront owners and anglers, a number of episodes have been reported to the Department that show misunderstandings, confusion and conflicts do occur.
- "I have lived on the Trask River for 13 plus years and have never had a conflict with a river recreationist."
- "I have never been involved in a conflict with a river user in the 18 years that I have been a Kilchis River property owner."
At this point, it is difficult to say whether a navigability study is required. The purpose of notifying as many property owners adjacent to the Trask and Kilchis Rivers as possible, and placing public notices in the local newspaper is to obtain input from all affected persons, and to establish the severity of the problems described by the Association of Northwest Steelheaders. At the close of the public comment period, the input received will be analyzed by the Department, and a summary prepared for review by the Land Board. The Land Board will use the public comments and summary to decide whether the problems described by the Association of Northwest Steelheaders can be solved by some means other than a navigability study.
Q. Can’t anyone do anything about people who trespass on and abuse my property?
Yes! Although the ownership of the submerged and submersible land below ordinary high water is uncertain, no one has the right to trespass on upland property which you own above the line of ordinary high water. In addition, illegal acts on private or public land such as littering, possession of a controlled substance, reckless burning, and pointing a firearm at another person should not be tolerated. If you observe a person trespassing on your upland property or committing illegal acts you should contact your local law enforcement agency.
- "During the eight years that we have lived on this river front property, we have endured so-called sportsmen, both in boats and on foot, who feel that because they purchase a fishing license from the State of Oregon that they have the right to trespass on our property, clean their fish on our property, defecate and leave toilet paper on our property, curse at my children…"
- "We don’t appreciate the foot traffic on our private property from the boaters who are in and out of their boats as they float down the river."
Q. If the Trask and Kilchis Rivers are determined to be navigable, what liability will I have for people who may have accidents while using the submerged and submersible land underlying the rivers?
Current Oregon law (ORS 105.672 through 105.699) relates to the public use of land and grants landowners protection from legal action for the recreational use of their land. Specifically, ORS 105.682(1) provides:
- "…landowners should not have any liability issues of people who are injured on that property."
- "Also, who accepts the liability of "users" (including recreational "users") when they injure themselves while on the property of the "affected owner?""
"…an owner of land is not liable in contract or tort for any personal injury, death or property damage that arises out of the use of the land for recreational purposes, woodcutting or the harvest of special forest products when the owner of land either directly or indirectly permits any person to use the land for recreational purposes, woodcutting or the harvest of special forest products. The limitation on liability provided by this section applies if the principal purpose for entry upon the land is for recreational purposes, woodcutting or the harvest of special forest products, and is not affected if the injury, death or damage occurs while the person entering land is engaging in activities other than the use of the land for recreational purposes, woodcutting or the harvest of special forest products."
ORS 105.688 indicates that the liability immunities provided by ORS 105.682 apply to "all public and private lands, including but not limited to lands adjacent or contiguous to any bodies of water, watercourses or the ocean shore."
However, the Department strongly recommends that any person having questions concerning how the provisions of ORS 105.672 through 105.699 affect them should consult with legal counsel.
Q. Is there a way to avoid having to conduct a navigability study to resolve the problems raised by the Association of Northwest Steelheaders?
That is uncertain at this point. If landowners and waterway users can work together to address differences, legal or other, it may be possible to reduce the need for a navigability study. The State Land Board has stated that whenever possible, riparian landowners and users of the state’s waterways should first try to resolve their conflicts through some other means such as negotiation, task forces, community discussions, cooperative management plans, etc.
- "I would like to see the NW Steelheaders and property owners come together in public meetings, committees and mediation prior to a study."
- "Please let us resolve this in "a less formalized and more collaborative way.""
- In closing, it seems to us that if there is conflict between recreationists and riverfront property owners, then perhaps a public forum could take place, where there could be room for negotiation and compromise."
Q. I have heard about something Montana has done to solve waterway public use problems. What is this?
In 1985, the Montana State Legislature enacted a stream access law which states that, in general, all surface waters capable of recreational use may be so used by the public without regard to the ownership of the land underlying the waters. It also:
- "A public access law much like the one in Montana avoids the messy issues of navigability and ownership and seems like an option worth pursuing."
- "The State of Montana has a "public access" law that gives the public the right to use the rivers and river banks without being concerned about navigability or ownership. Please let us do that here."
- "In lieu of a formal navigability study, Oregon public access laws, such as the one in Montana which guarantees public right of access, need to be put in place."
In addition, this law states that recreationists using a river or stream may go above the ordinary high water mark to portage around barriers under specified circumstances.
- Classifies many of the state’s rivers and streams as being either a Class I or Class II water.
- Specifies those uses which can occur regardless of the class of river or stream, and those which can only occur on each class with the permission of the adjacent landowner.
- States that recreationists can use rivers and streams up to the ordinary high water line.
- Defines recreational use to mean: "fishing, hunting, swimming, floating in small craft or other flotation devices, boating in motorized craft or craft propelled by oar or paddle, and other water related pleasure activities."
The Department understands that to date, this law has worked well in Montana.
The Joint Legislative Interim Committee on Navigability of the Oregon Legislature has been briefed on this law and similar versions were proposed in the 1997 Legislature.
Q. Some people have mentioned that they already have a "floatage easement" to use the Trask and Kilchis Rivers? What rights do I have to use a wateway which has not yet been determined to be navigable?
- "The "floating easement" should be the only allowable use."
- "River users already have the "floatage easement." This easement simply needs to be better defined with respect to clarifying the meaning of "reasonable, incidental use." This could be a simple matter of developing administrative rules rather than pursuing a divisive navigability study."
- "Recreational interests have access to, and may freely float river miles 2.0 through 10.0 of the Kilchis River."
In April 2005, the Oregon Attorney General issued an opinion which addressed the public rights associated both with waterways determined to be navigable and those for which the questions of ownership of their submerged and submersible lands has not been addressed. See full opinion.
Trask River photo Bill Parks
The opinion also examines the impacts of numerous Oregon Supreme Court rulings between 1869 and 1936 that established common law regarding public use of waterways. Based on this extensive review, the opinion concludes that the common law doctrine continues to authorize some public use of navigable-for-public-use waterways. Both the public and landowners along such waterways must allow the other to enjoy the waterway without undue interference, the opinion states.
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. In addition to allowing use of waterways up to the line of ordinary high water for boating, the opinion means that the doctrine authorizes other water-dependent uses. Such uses include swimming, fishing on foot, hunting from a boat and other similar activities requiring the use of the water.
The opinion further means that the public may use the land above the line of ordinary high water only if the use is “necessary” for a water-dependent or incidental use of the waterway. For example, boaters may move cargo, people and boats over upland to go around a set of falls, but they must return to the area below the line of ordinary high water as soon as reasonably possible.
According to the opinion, the public must exercise reasonable and prudent care. Public users will have to pay for damage they cause if they act negligently.
The opinion concludes that under current statutes, only the board may speak for the state when state ownership of a non-tidal waterway is at issue, and the board may determine ownership of a non-tidal waterway on behalf of the state--either as a result of litigation or a formal navigability study.
Nevertheless, as discussed above, a person may use a state-owned waterway that has not yet been determined to be state-owned, according to the opinion. In addition, a person may use waterways that are subject to the public use doctrine. However, the opinion warns that in these situations, such a person risks incurring liability for trespass in the event that the waterway turns out not to be state-owned and not subject to the public use doctrine.
Q. How much time and money will a navigability study cost to conduct?
The time and cost required to conduct a navigability study depend on a variety of factors such as whether the historical use of the waterway in question has been studied, the length of the waterway segment for which a study has been requested, and the amount of public and landowner notice/involvement. However, the Department does not believe that the cost of a "typical" navigability study would come anywhere near to the $100,000 to $200,000 amounts cited. In fact, if research on the waterway’s historical use has already been completed, the cost of a study itself may be quite small. Of course, should litigation result from any decision the Land Board may make concerning public ownership of a waterway, the cost could be substantially more. Legal expenses associated with the Chetco River navigability case were in the $100,000 to $200,000 range, but the Department does not anticipate that all studies will result in litigation, nor would all litigation cost as much.
- "The idea of spending $200,000 on a navigability study of the Trask River is an outrage."
- "We understand that the initial cost will be around $200,000 to $300,000. This would mean that a minimum of 8,333 fishing licenses would have to be sold to recoup this cost."
- "A formal navigability study is too expensive and would not accomplish anything that is not already known."
Q. If the State Land Board declares that the submerged and submersible land underlying the Trask and Kilchis Rivers is publicly-owned, will the state take the responsibility for maintaining and stabilizing banks, constructing wing dams, etc."
Giving proper care and stewardship to our rivers is the responsibility of everyone. Many people, including riverfront property owners, benefit from the wise and careful management of riverbanks. Projects to promote salmon recovery, and to reduce flooding and erosion are in everyone’s best interests. Government resources, including grant funding and technical assistance, have been and will continue to be available for all types of land improvement projects including erosion control regardless of the ownership of the submerged and submersible land underlying a waterway (e.g., Governor’s Watershed Enhancement Board, the Soil and Water Conservation District, the federal Natural Resource Conservation Service and the US Army Corps of Engineers). Though the Department’s resources are limited, in the past the Department has helped watershed councils with water quality monitoring, conducted dredging operations to enhance access to a Department-owned marine industrial site; and provided technical assistance to riparian property owners. The Department will continue to support efforts like the Tillamook Bay Estuary Project and Watershed Council. In the future a "waterway stewardship fund" may help the Department provide funding assistance for waterway projects.
- "…because the state will then own the riverbanks, funds will be needed to maintain these state-owned properties through the construction of river barbs to protect erosion, little clean up costs and/or stream stability projects."
Q. What impact will a navigability claim have on salmon restoration efforts?
A public ownership claim, by itself, should have no effect. Restoration efforts that make sense today and would accelerate salmon recovery for tomorrow are being pursued without regard to who owns the bed and banks of a waterway. Riparian landowners who have already initiated, or plan to begin projects to promote the recovery of salmon habitat, should continue their activities since they offer future benefits to the landowners and all Oregonians alike. The Department hopes, in time, to be in a position to dedicate a portion of the revenues it receives from the leasing of publicly owned submerged and submersible land to waterway improvements and salmon restoration efforts.
- "Loss of responsibility for the riverbanks by landowners may adversely affect stream quality by uncontrolled changes such as bank side trails in sensitive areas."
- "Efforts to expand the navigability of the Kilchis will effectively disenfranchise landowners from the resource, and threaten participation in the voluntary programs that currently protect and preserve salmon habitat and water quality."
- "This request disrupts the proven and effective working relationships that we have developed with federal, state, and local governments to implement fencing projects that protect and restore streamside habitat."
Q. Does the public already own the submerged and submersible land underlying the tidally-influenced part of the Trask and Kilchis Rivers? What are the public’s rights?
Public ownership of the Trask and Kilchis Rivers already exists to head of tide under "tidal" as opposed to "navigable" state ownership. On the Trask, the head of tide is about River Mile 4.3 (or approximately where Highway 101 crosses the Trask); on the Kilchis it is at about River Mile 2.0 (or approximately where Coal Creek enters into the Kilchis). In most cases, the public "tidal" ownership extends to the line of high tide on the riverbank. The public has the right to anchor, fish, walk on the bank, land a boat, etc. within this area. However, all activity must be below the line of high tide; otherwise, persons may be trespassing on upland private property.