SALEM - The State Land Board didn't declare a 174-mile section of the John Day River navigable last week, nor did it give riverfront property owners much hope that they will have legal authority to prohibit activities along the river's banks.
The board tabled the navigability determination to give the Department of State Lands time to review its recommendation in light of an attorney general's opinion aired at a meeting last week in Salem and to give the Legislature time to develop a statewide solution.
The Department of State Lands recommended at the meeting that the board declare the river navigable between river mile 10, near Tumwater Falls, and river mile 184, near Kimberly. The Association of Northwest Steelheaders requested the declaration in 1997.
"My view is we need to find a statewide solution, period," said Oregon Treasurer and Land Board member Randall Edwards. "I think it's critical that we take a step back at this point."
Oregon rivers declared navigable fall to the ownership of the state to the high-water mark. To declare a river navigable, the state must show that a river was navigable at the time of statehood in 1859.
In a new twist to the issue, Richard Whitman of the Department of Justice said the doctrine of public use gives river users the right to use the banks of navigable rivers regardless of whether the state has declared them navigable.
The opinion raised the bar on the issue, said Gov. Ted Kulongoski, who along with Edwards and Secretary of State Bill Bradbury make up the State Land Board. "This may be the key we've been looking for to resolve this issue," he said.
The Land Board is seeking a statewide solution to the issue in part to eliminate the need of conducting navigability studies on a river-by-river basis, said Inga Deckert of Edwards' office.
Navigability studies are triggered by requests from individuals or organizations.
Under the attorney general office's opinion, river users could use the banks of navigable rivers if they accessed the banks from the river and used "reasonable and prudent care" not to damage the land.
Three bills are before the Legislature that could circumvent navigability determinations on the John Day and other rivers, including a bill developed by Edwards that clarifies the rights of river users and property owners.
Senate Bill 1028 requires the State Land Board to create a statewide management plan, stipulates that landowners are not liable for injury or property damage caused by recreational use, and does not affect title to property.
Phil Donovan of Northwest Steelheaders said the bill could be acceptable to his organization if it removed provisions calling for fees on non-motorized boats.
"It would be pretty darn close," he said.
Kulongoski said that even with passage of the bill and the institution of a statewide policy, the board at its next meeting could declare the John Day River navigable.