|
|
|
|
| Your Rights and Responsibilities |
|
|
|
| Using Oregon's Waterways |
|
|
|
Boating along private property photo Jill Burnett
|
State-Owned "Navigable" Waterways
The rules controlling public use of the submerged and submersible land underlying state-owned waterways are simple. The Public Trust Doctrine gives you the right to use state-owned (or what are also termed "navigable") waterways (including submerged and submersible lands) for a wide variety of authorized uses including navigation, fisheries, recreation and commerce.
However, this doctrine is not a license to trespass on private land. Anyone crossing private land to reach state-owned public land and waterways must have permission from the landowner. The landowner is under no obligation to grant this permission.
Waterways for Which a Navigability Study Hasn't Been Conducted
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 question of ownership of their submerged and submersible lands has not been addressed.
 Full opinion
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.
Be a Responsible User
Recreational use of state-owned waterways is a privilege enjoyed by many Oregonians and visitors. However, misuse and abuse of this privilege can lead to restrictions. The Department of State Lands and the State Land Board urge you to be a responsible user of public lands and waterways, obey all authorized closures, restrictions and postings, and exercise basic common sense, courtesy and consideration for others.
When using Oregon´s waterways:
- Always get the landowner’s permission to cross private land to get to the waterway.
- Be sure to launch and take out your boat at public launches or parks.
- Avoid conflicts with landowners.
- If you see trash, pick it up and carry it out, but avoid trespass to do so.
- Obey laws and common rules of decency at all times.
Illegal Acts on Public Lands and Waterways
The Department is often asked what acts are illegal on public land and waterways. As a general rule, any act which is illegal on private land is also illegal on public land. Some of the illegal activities which are frequently reported to the Department as occurring on state-owned land are as follows:
| Offensive littering |
ORS 164.805
|
Class C Misdemeanor
(30 days; $1000)
|
| Littering in or within 100 yards of state waters |
ORS 164.775
|
Class B Misdemeanor
(6 months; $2000)
|
| Trespass on private land |
ORS 164.245
|
Class C Misdemeanor
(30 days; $1000)
|
| Possession, use of a controlled substance |
ORS Chapter 475
|
Varies
|
| Interference with property |
ORS 164.345
|
Class C Misdemeanor
(30 days; $1000)
|
| Damaging property, less than $500 |
ORS 164.354
|
Class A Misdemeanor
(1 year; $5000)
|
| Damaging property, more than $500 |
ORS 164.354
|
Class C Felony
(5 years; $100,000)
|
| Damaging livestock |
ORS 164.365
|
Class C Felony
(5 years; $100,000)
|
| Pointing firearm at another |
ORS 166.190
|
6 months; $500
|
| Firing at person or building within range of weapon |
ORS 166.220
|
Class C Felony
(5 years; $100,000)
|
| Reckless burning |
ORS 164.335
|
Class A Misdemeanor
(1 year; $5000)
|
|
|
|
