The "Duh!" Files: Oregon’s Rogue River Deemed Navigable
By Tom Chandler on Sep 14, 2007 in News
Dave Roberts and Chris Raine get their asses handed to them by a steelhead on the Rogue.
We’re shocked. It seems the Rogue River — the sizable chunk of moving water I’ve floated dozens of times with bamboo fiend and best-man David Roberts — has been deemed “navigable” by the state of Oregon, so the public should enjoy access below the high water mark.
From ktvl.com
A New study of the Rogue River has made an initial determination that the 89-mile segment from Grave Creek to Lost Creek Dam is “navigable.” That’s important because it means the public has the right to use its banks… the land between the high and low water marks… for fishing, navigation, recreation and commerce.
The Department of State Lands says they looked at journals of early explorers and settlers, historic maps, and other documents to learn what the Rogue River looked like and how it was used before and at the time of statehood in 1859.
I’ll confess right now that it never crossed my mind that it wasn’t navigable, being as it supports a thriving rafting and outfitting industry (that qualifies as “commerce” in most minds — one of the tests of navigability).
I’m unsure why Oregon would have to spend any dollars determining that fact, but I’d gather it’s the usual battle of those who want access vs those who don’t want them to have it. (Hell, I’d make someone prove it wasn’t navigable first).
See you on the now-navigable Rogue, Tom Chandler.
[tags]fly fishing, rogue, rogue river, navigable[/tags]
Dmotes | Sep 15, 2007 | Reply
Seems logical of course but toss it to the lawyers and see what you get…
Oregonians are lucky. In New York, Pennsylvania, and Virginia even obviously navigable waters have been closed to anglers wading and floating in boats regardless of whether they were below the MHW mark. The whole legal structure was based on laws that predate the US Constitution–so-called “King’s Grant” rulings, where landowners can trace title back to grants from the King of England. In certain cases English law is applied and so landowners who own both sides of a river are deemed also to own the river bottom and the fish in the river. FOr teh Jackson river this applies even though the trout are maintained by the Commonwealth of Virginia, the water is cold because Virginia built a dam, and the state owns access points along the river. Guides who floated the Jackson with the intention of getting arrested to test these laws lost their appeals in the Virginia Supreme Court (the highest court that can review such cases; for some reason the US Supremes can’t). Landowners who strung barbed wire across the river on their property were not prosecuted, and I was once threatened by a landowner with a shotgun while floating down Craig Creek even though nobody in the boat was fishing at the time (that was the ruling–you can pass through but not fish.)
One more situation where public access is in question.
Dave
Tom Chandler | Sep 15, 2007 | Reply
I understand it’s much worse in parts of the East, and to make matters worse, you’ve got Donny Beaver.
Out here the test is navigability, and I long wondered if the Upper Sac wouldn’t qualify because of all the rafting companies that use the thing…
Heather McNeill | Feb 23, 2008 | Reply
Dave-
There are continuing updates on the Rogue River Navigability Study on the Common Waters of Oregon Blog.
http://commonwaters.wordpress.com/
If folks want to comment there, and work to together to help organize for the public comments session, that would be great.
Thanks!