Sandy River Navigability Study
What is navigability?
At statehood, the federal government gave the ownership of the beds and banks of navigable waterways to the public. The federal government did this to ensure that every state entering the Union after the original thirteen states had the same rights as did those first states. Among the rights held by the original 13 states was that they owned the beds and banks of all navigable waterways. This right ensured that the public and commerce had free access to navigable waterways.
What is a navigability study?
A navigability study is an in-depth history and geography research project, the purpose of which is to determine if a waterway was navigable at the time of statehood. The Department and the State Land Board must follow state and administrative rules in conducting the study (ORS 274.400 to 274.412 and OAR 141-121-000 through 141-121-040). A major part of conducting a navigability study is to collect as much information as possible about the historical uses and condition of a waterway. Once this is done, the information is made available for public review and comment and analyzed by Department staff to see if it meets the requirements established by the federal courts for a waterway to be considered navigable, that is, publicly owned.
Who determines if a waterway is navigable?
After analyzing the information collected on the historical uses and condition of a waterway, Department staff will decide if the requirements of the federal test for title navigability are met, and make a recommendation to the Land Board as to whether the waterway is navigable. The Land Board will then examine the evidence, hold public hearings, review public testimony and other input, and decide if there is sufficient justification to assert a claim of public ownership to the bed and banks of the waterway. Again, the procedure/process for making a claim is described in state law and the Land Board’s rules.
How has the state dealt with navigability claims in the past?
Prior to 1995 when ORS 274.400 to ORS 274.412 was enacted, no formal process existed for determining if a waterway was navigable. Therefore, the state has used a variety of approaches to dealing with navigability claims. These approaches have varied from Land Board assertions of ownership (as in the case of the Klamath, McKenzie, Rogue and Umpqua Rivers), to litigation (Chetco, McKenzie, and Willamette Rivers). However, regardless of which approach was taken, implicit in each of these actions was determining whether the river met the requirements of federal test for title navigability through a navigability study.
Who requested this study?
In accordance with the Land Board’s rules and state law, the Sandy River Chapter of the Association of Northwest Steelheaders submitted a written request in late 1997 to the Department of State Lands for a navigability study of the lower 37.5 miles of the Sandy River.
What kinds of problems have the Northwest Steelheaders faced?
Many property owners along the Sandy River believe that they own to the center of the river based on their deed descriptions. In their opinion, recreationists who use the bed and banks of the river are trespassing on privately owned land. Consequently, conflicts have arisen between these property owners and recreationists.
Why did the Northwest Steelheaders request a navigability study?
The Northwest Steelheaders believed that the only way to resolve the conflicts they encounter with some riverfront landowners when using the river is to have a navigability study done and the river to be declared as publicly-owned (title navigable).
What kinds of problems have the property owners faced?
Although most people who use the Sandy River are responsible, some break the law and trespass on private property well above the line of ordinary high water and leave litter. Many property owners who have deeds indicating that they own to the center of the stream or to the bed of the river not only find these behaviors offensive but believe that anyone who uses the bed and banks of the Sandy River fronting their property is trespassing.
Can’t many of these problems be solved by law enforcement?
Yes, many of the misbehaviors such as littering, and public drunkenness are unlawful regardless of where they occur. However, it is difficult to charge or prosecute a person with trespass unless there is a clear understanding of the limits of public and private property or the rights of the public to use the bed and banks of the river.
What are the federal requirements?
The federal courts have established what is termed “the federal test for title navigability.” If the evidence collected on the historical use and condition of a waterway meets the requirements of this test, it can be assumed that the federal government gave the bed and banks of that waterway to the state at the time of statehood.
The federal test requires that for a waterway to be considerable navigable for title, or public ownership purposes, it:
Must be capable of, or susceptible to being used as a highway for the transportation of people or goods;
At the time of statehood (which in the case of Oregon is February 14, 1859).
- Using customary modes of trade and travel on the water;
- In its natural and ordinary condition;
Does the Sandy River meet these requirements?
Yes, the Department believes that the evidence of the historical use and condition of the Sandy River from its mouth to RM 37.5 at the confluence of the Salmon River meets the requirements of this test. Two principal types of evidence support this conclusion:
Because the condition of the river is not thought to have changed appreciably since statehood, it was “susceptible to being used” at that time for the floating of railroad ties and other wood products, and by watercraft similar to those that use the river today – therefore meeting the federal test for navigability.
- The Sandy River was used on a regular basis for over 20 years in the late 1800s and early 1900s as a “highway” for floating railroad ties and other wood products.
- The Sandy River is used today by various types of watercraft.
What does an assertion of public ownership by the Land Board do?
An assertion of navigability/public ownership by the Land Board establishes that the bed and banks of the Sandy River are publicly-owned to the line of ordinary high water. With this assertion, the public’s rights to use the river below the line of ordinary high water will be assured. Conversely, private landowners will know with certainty the limits of the state’s ownership claim, and that persons who go above the line of ordinary high water are committing a trespass. The state’s claim is always subject to dispute in the courts.
When will the Land Board make this decision?
The Land Board held a public hearing on Wednesday, October 17, 2001 in Gresham from 9 am to 12 noon at the Gresham City Council Chambers to hear testimony on the accuracy of the information presented in the revised Sandy River navigability study. Oregon law provides that the public will have seven days after that hearing to provide any additional input to the Land Board.
You may also be interested in obtaining the following publications that discuss various aspects of navigability. These are available from the Department upon request.
- Association of Northwest Steelheaders request for navigability study of the Sandy River, November 30, 1997.
- Sandy and Hood River Navigability Studies by James E. Farnell, July 1980.
- Summary of Opinions/Advice of the Oregon Attorney General Relating to Submerged and Submersible Lands, April 1998.
- The History of the Administration of Oregon’s Submerged and Submersible Lands by the Oregon State Land Board, June 1996.