Oregon river access law is going to the state legislature in 2009 — and if big landowner lobbyists have their way you can bet Oregonians are going to lose ground on public fishing access.
According to Enviro-Lobbyist David Moskowitz, Oregon’s State Land Board just passed a resolution urging the 2009 Oregon Legislature to pursue legislation that would clarify public access to Oregon’s river waterways, based on the 2005 Oregon Attorney General opinion.
The Attorney General opinion is pretty clear: if you can access the river on a public way and stay below the line of high water, you’re in great shape. And the case law says the public has the right to use waterways and not be harassed. And yet, there are still conflicts out there — big land owners calling county sheriffs to enforce “trespassing” in places like the Sandy River or the Trask — harassing anglers that anchor up or are using the banks of the river.
“They call the county sheriff. There will be an encounter. Very few tickets are written, because the state has said the public has use of the waterway up to the high water mark,” Moskowitz said.
So what’s the problem with codifying this law in the state legislature and putting a stop to these encounters if all of the current laws favor anglers?
Because anglers have everything to lose. Unlike a court case where a judge would interpret existing law, in this instance lawyers in the capital would draft legislation and put it into comittee. And once it’s in comittee, big land owners can exert a lot of pressure. “You could lose ground from where we are right now,” Moskowitz said. “The lobbyists that represent landowners, timber companies, farms, start putting in amendments and we end up with less than we have.”
“Oregon State Treasurer Randall Edwards is saying, ‘I want the legislature to deal with it because I’m tired of the conflict.’ He knows perfectly well that the lobbyists are going to go to town on this,” Moskowitz said. “If all the river users come out as individuals and hire their own lobbyists, it’s possible to get the bill we want. But it will take a lot of work and constant pressure. A lot of enviornmnetal groups won’t think this is an environmental issue.”
Here’s a quick primer on Oregon River Rights from Common Waters of Oregon:
Even if the bed of a waterway is privately owned, the waterway may be used for public recreation and other purposes if it meets the state test of “floatability.” A waterway is “floatable” if its length, width and depth allow boats—even small boats or canoes—to make successful progress through its waters.
If a privately owned waterway meets this test, the public may use the water for recreational uses, including boating, fishing and swimming. On these rivers, the public may not interfere with the landowners’ use of their property. Similarly, the landowners may not interfere with the public’s right to use the river, even though the landowners own the river bed. For example, landowners may not build a fence across a river or string barbed wire across a river that meets the floatability test.
The public’s right to use a river does NOT entitle the public to trespass on upland private property to gain access to a river from the upland. The public’s rights are to “use” the rivers, not rights to “access” the rivers. “Necessity” or emergency may be an exception, but do not assume so.
Moskowitz represents Trout Unlimited in Salem (and other groups) but his opinions on this matter are independent of his clients views. He says the push to get this issue into the legislature came from out of nowhere — so you can bet advocates of privatizing Oregon’s water access are behind this agenda. “Some people say I’m too negative, that the governor’s not going to sign anything that restricts public water use. But once you open that door, it’s a Pandora’s Box. You just don’t know what’s coming out the other end.”
Mokowitz said he will keep us apprised of the situation in the coming weeks. -MS