Answer:  The people of Oregon own the submerged and submersible land underlying all navigable streams, rivers, and lakes in most cases up to the ordinary high water line. In addition, the people of Oregon also own portions of waterways that are subject to tidal influence. Exceptions to this public ownership are those parcels the state may have sold since statehood or that the federal government reserved or granted prior to statehood.
 
Question: How did the people of Oregon gain ownership of these lands?

Answer: There are two separate legal doctrines under which Oregon gained ownership of waterway lands at statehood: one is called "navigability," the other is called "tidality." Under the Equal Footing Doctrine, federal courts have held that states entering the Union have the same rights as did the original thirteen states. When the original thirteen states took sovereignty of their land from the British after the American Revolution, those states became owners of the land underlying what are termed "navigable" waters as well as the land underlying tidal waters. Therefore, when Oregon was admitted to the Union in 1859, it became the owner of all land underlying both the navigable waterways and tidal waters within its borders as a part of its sovereignty. To date, public ownership based on navigability has been more uncertain and controversial than public ownership based on tidality.

Answer: Federal court decisions have developed the following test to determine whether a waterway is "navigable" for "title" (that is, public ownership) purposes. The elements of the test are whether the waterway:

• At the time of Oregon statehood in 1859;
• Was used or was susceptible to being used;
• In its natural and ordinary condition;
• As a highway of commerce;
• Over which trade and travel were, or could have been conducted;
• By a mode of trade and travel on water that was customary in 1859.

The federal courts have examined numerous waterways in the United States. Those cases outline some of the ways that a waterway may meet the criteria of the test. For instance, a waterway may be proven to have been navigable-in-fact by evidence of the actual use at the time of a state's adminission to the Union, or by evidence that the waterway was susceptible to use at that time, or evidence of both actual use and susceptibility to use then.
 
"Susceptible of being used" is an issue of capability (a focus on the characteristics of the waterway), and not one of probability (not a focus on the likelihood of whether it was or will be used). The federal courts have long held that the possibilities of growth and future use are not to be ignored when determining whether a waterway belongs to a state. This is particularly true where, as in Oregon, pioneer settlement did not occur in much of the state until after statehood. The question is one of fact as to the capacity of the waterway in its ordinary condition to meet the needs of commerce into the future, as populations and activities increase and natural resources are developed.
 
The test does not require the use of any particular mode of trade or travel, nor does it depend on the use of any particular type of vessel as long as they were "customary" - in this case in 1859 at the time of Oregon's statehood. Log drives may be one such mode of travel in a region. Such drives may be done with difficulty. However, the waterway should be able to facilitate such a use on more than an occasional basis for that purpose. Canoes may be one such type of vessel in a region. The use of the vessel on the waterway may be difficult and it need not be extensive.
 
The courts have held that the use need not be long and continuous, and may be of a seasonal nature. Recreation and fishing are considered by the courts to be forms of commerce. A waterway will not fail the test simply because the region was not explored or settled before statehood. A waterway will also not fail the test if there are no federal land survey riverside meander lines. These lines were used by the federal government in calculating the price that must be paid for the upland by the grantee of a federal land patent.
 
The federal courts have also addressed the types of factual information or evidence that is, or is not, important for the test. Evidence regarding the waterway's susceptibility of being used is most often emphasized when there is little or no evidence that the waterway was actually used. Evidence of actual use is sometimes more persuasive, partly because it is the easiest to present and interpret, but it is not essential. Particularly where conditions of exploration and settlement explain the infrequency or limited nature of actual uses of the waterway, the susceptibility to use may still be satisfactorily proved. That susceptibility--capacity--may be shown by physical characteristics and experimentation.
 
Evidence of current use by drift boats, rafts, canoes, kayaks and other recreational watercraft is persuasive where it is also demonstrated that vessels that were used at the time of statehood required similar depths of water, or that similar modes of travel were customary at that time. Evidence of historical flow rates and channel conditions are important to prove that the physical characteristics of the waterway have not changed appreciably since statehood.

Question: How does the state determine which waterways are "navigable" and, therefore, publicly-owned under the navigability doctrine?

Answer: Two approaches exist to determine which waterways are navigable for ownership purposes: through the conduct of a  navigability study conducted by the Department of State Lands or a determination by a court of  competent jurisdictions.
 
The process of determining whether a waterway is navigable by a navigability study consists of many steps. Although the Land Board may initiate a navigability study on its own, the first step usually occurs when the Department receives a request for such a study to be conducted for a particular river segment.

Under the administrative process, only the Land Board can authorize the Department to undertake a navigability study. If the Land Board decides that a navigability study is needed, the Department looks for information concerning not only the types and extent of past use of the waterway, but also the physical location and condition of the waterway. This information is obtained from historical documents, public records, federal and state land surveys, and testimony given by the public at hearings. This evidence is then analyzed by Department staff and presented as a study to the Land Board for its consideration. If the Land Board determines from the evidence that the waterway is likely to have been "navigable," it may decide to assert state ownership of the submerged and submersible land underlying the waterway.

Sand Lake Tide Lands photo Kevin Moynahan   

Answer: Yes. During the 1995 session of the Oregon State Legislature, a bill was enacted establishing the process the Land Board and the Department must follow in undertaking navigability studies. In 1995, House Bill 2697 (codified as ORS 274.400 to 274.412) was passed requiring the Land Board to adopt administrative rules implementing the navigability study process established by the legislation. This process ensures that the public is provided with numerous notices of Land Board and the Department's actions concerning navigability studies, and opportunities to provide input.

Answer: Any person, government agency, or organization may request that the Land Board direct the Department to conduct a navigability study. However, in determining whether to direct the Department to conduct a study, the Land Board considers whether there is an economic justification for the study, or if a broad and substantial public interest exists in conducting the study. To determine the level of public interest, the Land Board will consider the magnitude and duration of the problems cited as reasons to conduct the study, and whether the problems can be solved in any other manner. The Land Board has stated that a navigability study is the method of last resort to resolve conflicts between riparian users and land owners.

Answer: According to ORS 274.402, the Land Board is the only entity that can administratively declare whether a river is navigable.
 
In addition, state and federal courts may make a judical determination regarding navigability of a particular waterway. All determinations, whether administrative or judicial, are based on the federal test developed by the federal courts.

Answer: If the Land Board asserts a claim to the ownership of the submerged and submersible land underlying a waterway based on navigability, you could be affected in several ways. Such an assertion means that the submerged and submersible land underlying the waterway are, in the opinion of the State of Oregon, publicly-owned. Consequently, it would be the state's position that the public has the right to use the submerged and submersible land underlying the waterway, generally to the line of ordinary high water, for activities such as fishing and boating. Such an assertion would also mean that the state would act as an owner of the waterway and would require persons to obtain permission from the Department for certain uses of the waterway (for example, by constructing docks or moorages, or removing sand and gravel).

Answer: The ordinary high water mark has been defined in federal law as the line that the water impresses on the soil by covering it for a sufficient period of time to deprive it of vegetation. In Oregon, the line of ordinary high water has also been defined by statute (ORS 274.005). Summarized in general terms, these definitions say that the ordinary high water mark is a line on the bank or shore to which the high water ordinarily rises each year and is the waterward limit of upland vegetation and soil. This line is not established based on the level to which the water rises during major floods. It is generally recognizable by a visible change in the soil and vegetation. In a 1912 Oregon Supreme Court case (Sun Dial ranch vs. May Land Company) involving the Columbia and Sandy Rivers, the court said "...'high water mark' is the point below which the presence and action of the water are so common and usual and so long continued in all ordinary years as to mark upon the soil a character distinct from that of the banks with respect to vegetation as well as with respect to the soil itself." Others define the ordinary 'high water mark' as a "water mark" defining the waterward limit of the submerged and submersible land "...which the water occupies sufficiently long and continuously to wrest it from vegetation and destroy its value for agricultural purposes."

Answer: Regardless of who owns the submerged and submersible land of a waterway in the state, one thing is clear: certain misbehaviors (such as offensive littering, reckless burning, etc.) are crimes no matter where they occur. If you observe criminal acts being done on the submerged and submersible land of a waterway, and want to end those activities, you should contact your local law enforcement agency.

Answer: Yes. According to Oregon court cases the waterway may be used by the public for certain purposes if it meets the state test of navigable-for-public-use. Under this public use doctrine, the public may use the waterway if it has the capacity, in terms of length, width and depth, to enable boaters to make successful progress through its waters. Under this doctrine, the public has the right to use waterways for navigation, commerce or recreation, even where the bed is privately-owned, and to make "reasonable, incidental use of the bed and banks." The courts have not yet fully defined what such "reasonable, incidental use" entails in the context of modern recreational use but the courts have determined that recreational use includes the use of small boats for pleasure and fishing, as well as swimming. The public may use adjacent land only so long as the use is necessary to the lawful use of waterway. However, it is clear that river users have no right to trespass on privately-owned uplands--that is, land above the ordinary high water mark.

Answer: Yes. The U.S. Army Corps of Engineers also uses the term "navigable waters" which stems from the federal Rivers and Harbors Act of 1899. Similar regulations direct the U.S. Coast Guard and Federal Energy Regulatory Commission. "Navigable waters" is also defined in the federal Clean Water Act as areas subject to the Corps' regulatory authority over filling in waterways.

Answer: The Land Board and the Department hold these lands in trust for the public (under the "Public Trust Doctrine"). The Department works to clarify title and manage uses of these lands for the Land Board. These lands are managed in the public's best interests to assure that any authorized private uses (for example, marinas, docks, sand and gravel mining, and log rafts) pay their fair share as compensation to the public for the use of public land. All income from the use of these lands is deposited into the Common School Fund for waterway management.

Answer: This doctrine of law provides that the State of Oregon holds submerged and submersible land in trust for the benefit of all the people. The general public has a right to fully enjoy these resources for a wide variety of public uses including navigation, commerce, recreation, and fishing.

Goose Lake photo Vickie Nokleby   

Answer: Yes. In the late 1870s, the Oregon State Legislature granted certain submersible lands (between ordinary low and high water) to the upland owners along several major Oregon rivers--the Willamette, Umpqua, Coquille, and Coos Rivers. This program was repealed in 1878. As a result of the grants, some present upland owners along these particular rivers do have ownership down to ordinary low water. In addition, along some other rivers, the state sold tidelands and other submersible land to private owners. Even where the state granted title to its submerged and submersible land to private individuals, the courts say that the granted lands are still subject to public use under the Public Use Doctrine. The extent to which state action may limit such rights is limited.

Answer: Possibly. One way this could happen would be if a person excavated an area on their own land and it filled with water and allowed passage to another larger publicly-owned body of water. Although the land underlying the larger waterbody may be state-owned, the submerged land within the person's property would remain within his/her ownership.

Another possibility might be a land grant from the federal government to a private individual prior to Oregon's statehood. The federal government may, in fact, not have been able to legally convey ownership to land it was supposed to hold in trust for the State of Oregon.

Another way in which a person may have ownership could occur when a river suddenly changes course, due to a flood or other natural event, so as to flow through private property.

Obviously, these situations are unique and must be studied to establish whether the private ownership of the submerged lands is valid.

Answer: Many deeds state that the owner of a waterfront property owns to the center of the stream. Unfortunately, a deed sometimes describes property that could not be legally conveyed. Although title companies work hard to ensure that the buyer is, in fact, legally entitled to all of the property described on a deed, their research relies in large part on verifying the "chain of ownership" contained in historical records. Therefore, if a transfer of property many years or even generations ago was erroneous, and has not been contested over time, the oversight or mistake may go uncorrected.

Often title insurance companies include "exceptions from coverage" for such things as: (1) the rights of the public and governmental bodies to the area below the high water line; or (2) any adverse claim based on the assertion that the waterway has moved and that the area has been created by artificial means or accretion. This means the companies will not insure against loss or damage arising from these issues.

If the submerged and submersible land underlying a waterway is determined by the courts, or through the navigability study process to be state-owned, the state has what is termed "a prior existing right" to the land in that waterway. Since a deed can only convey interests actually owned by the seller, and since the submerged and submersible land underlying all navigable rivers were given to the state at statehood in 1859, there will be situations where the state is the true owner of the submerged and submersible land regardless of what a deed may say.

Again, these issues depend upon the facts of the particular situation, property, waterway, or deed.

Answer: Yes. It is possible--but it may not be appropriate, depending upon the circumstances. Carefully check your current property tax statement from your county assessor. It may show that you are being taxed only on the upland (that is, land above ordinary high water) and the remainder, though within your tax lot, is not taxed at all.

If you still have questions, contact your assessor or an attorney. In the event you have been taxed on property determined to be state-owned, you may recover past taxes paid on that area (see ORS 311.205). The Department can also provide information on the status of the state's ownership claim.

Keep in mind that if a waterway is navigable, state ownership would normally extend to the ordinary high water line.

Answer: Yes. In addition to the rights of ordinary property owners, ORS 274.040 grants owners whose land abuts or fronts state-owned submersible land, a preference right to lease the adjacent state-owned land, should the state decide to lease the public land.

Answer: No. There is no effect on valid water rights. Navigability is a land ownership issue. If a water right is obtained from the Oregon Water Resources Department, an easement must also be obtained from the Department for placement of the water diversion facility if it is located in a navigable or tidal waterway. In addition, a state removal/fill permit may be required.