What's the deal with stream access in OR?

[coastalcutty]

This feels overly complicated, but I can see how it's a messy subject dealing with property ownership.

As I understand it, if the water is determined navigable, it's open to public use up to the typical high water line. If it's not navigable by paperwork standard, but is technically large enough to get a floating craft down, a 2005 legal opinion says you can use it, but there's question as to whether you can legally be on the bank of this stream, or wading, etc.

The small streams are my concern. Let's say I'm on foot, no boat, and I access the river upstream of someone's property along the river. My access point is a public park. I now wade downstream, and end up adjacent to the property, still in the river, fishing. Have I trespassed? Can I be in this river section?

 

[PhilR]

the state land department has a brochure that explains it

https://www.oregon.gov/dsl/ww/documents/nav_brochure.pdf

The bottom line is that if a waterway could have been used to float a log or canoe full of beaver pelts at any time of year, it's considered navigable. You can use those rivers up to the ordinary high water line. However, you cannot trespass on private property to reach the water.

Keep in mind this is a legal opinion from one state department to another, and isn't a law or legal precedent.

Directly to your question: if it's too small to drag a loaded canoe down, it's probably not navigable and the opinion doesn't apply. If the landowner comes out and makes a stink, I'd apologize, ask for permission, and leave if not given. Which is what I'd probably do even if navigable, because I'm not engaging rural landowners and the sherrif's department over fishing.

One other thing - you're probably not adjacent to the property, but on it. Someone owns the riverbed, usually not the state in these cases, but the state holds an easement that allows our use of the land up to the ordinary high water mark. At least that's how I understand it.

 

[coastalcutty]

the state land department has a brochure that explains it

https://www.oregon.gov/dsl/ww/documents/nav_brochure.pdf

The bottom line is that if a waterway could have been used to float a log or canoe full of beaver pelts at any time of year, it's considered navigable. You can use those rivers up to the ordinary high water line. However, you cannot trespass on private property to reach the water.

Keep in mind this is a legal opinion from one state department to another, and isn't a law or legal precedent.

Yes, I've seen that and read it several times. So while I'm not "on the water", I can in fact traverse the stream bed so long as I access the river legally. This was my interpretation, but found other conflicting opinions by other anglers

 

[PhilR]

Yes, up to the ordinary high water line, but see the edit I was adding when you responded. If you want to earn brownie points, fill up a trash bag as you go.

If you want to PM me the specific location, I can head over there and check it out first hand and give you a fishing report while I'm at it.....

Good luck

 

[Brian Miller]

The bottom line is that if a waterway could have been used to float a log or canoe full of beaver pelts at any time of year, it's considered navigable.

As I understand it, "navigable waters" under Federal statute include streams used to transport goods over any portion of their interstate-international trade journey to where they continued overland to eventually cross state and international boundaries.

 

[coastalcutty]

Yes, up to the ordinary high water line, but see the edit I was adding when you responded. If you want to earn brownie points, fill up a trash bag as you go.

If you want to PM me the specific location, I can head over there and check it out first hand and give you a fishing report while I'm at it.....

Good luck

Thanks for the edit. I agree with the landowner confrontation, not worth it. I guess I didn't realize they own the actual stream bed, but good enough with the easement.

 

[Guy Gregory]

"As I understand it, "navigable waters" under Federal statute include streams used to transport goods over any portion of their interstate-international trade journey to where they continued overland to eventually cross state and international boundaries."

Brian, I think you're correct under current Federal statute. But, navigable waters have different meanings in different states, almost all going back to what was agreed at statehood, and navigable waters have been interpreted by the Federal Supremes several times, in several ways.

Best to understand the rules in your state. What gets you a cold beer and new friend in Oregon may get you arrested in Wyoming. .

 

[TicTokCroc]

Shingle bolt has entered the chat...

 

[Westfly Refugee]

"... But, navigable waters have different meanings in different states, almost all going back to what was agreed at statehood, "

And then, in the case of Oregon, muddied by subsequent legislation that completely bollixed the clear, original definition that was included in the statehood act.

 

[SurfnFish]

OR waters are wide open as long as you're not trespassing, within the normal waterline demarcation between public access and private property. Stream access another matter...two of my fave coastal winter steelhead runs required dropping down alongside bridge abutments, which are included in the bridge right of way in OR.

 

[JimTravers¤£a!!Travers]

Look, here's the deal with this:

The deal with stream access is various access points gain access to the streams. Several options for access points. Roads axcess the river at various viewpoints/access points. To gain access i recommend the ones at the main viewpoints!!! Otherwise various access points in OREGON

 

[Canuck from Kansas]

Look, here's the deal with this:

The deal with stream access is various access points gain access to the streams. Several options for access points. Roads axcess the river at various viewpoints/access points. To gain access i recommend the ones at the main viewpoints!!! Otherwise various access points in OREGON

Won't this be covered by your "Main Amendment"?

 

[Rob Allen]

Legality aside. In this day and age use caution, lots of people seem to be on edge just looking for a reason to snap. Be wary of any behavior that could lead to confrontation.

 

[PhilR]

Look, here's the deal with this:

The deal with stream access is various access points gain access to the streams. Several options for access points. Roads axcess the river at various viewpoints/access points. To gain access i recommend the ones at the main viewpoints!!! Otherwise various access points in OREGON

Jim,
I ask this in all sincerity. Do you smell toast?

 

[Bambooflyguy]

Too many legal issues…..I’m happy floating around on a lake with a bamboo rod in one hand and a cold beer in the other. But I hear your concerns, I only fish little blue lines one or two times late summer where there are no houses.

 

[SurfnFish]

Legality aside. In this day and age use caution, lots of people seem to be on edge just looking for a reason to snap. Be wary of any behavior that could lead to confrontation.

yep, had a highly irate landowner pull up on his quad with racked shotgun across the handlebars, started yelling at me for trespassing. Explained I had entered the river from the upstream bridge abutments, and would exit the river at the downstream abutment, and would never step out of the water. Told me the river was part of his land, and if he saw me in it again things would get ugly. Didn't argue, just reeled in and waded downstream, called the Sherrif and waited an hour for him to arrive where I was parked. After I explain the situation, the Sheriff said he was going to 'straighten out' the landowner on river ownership and drove off. Regardless, I was done with that particular stretch. Enjoy living too much to risk it for a tug on the line...

 

[DerekWhipple]

It feels overly complicated because it is overly complicated. There are a bunch of factors on whether you have access rights or not. The answer to "Can i fish here?" is usually "it depends...".

Wild and scenic rivers, or larger rivers with boat traffic are more obvious. On public land, go wherever you want. On private land, get to the river legally, and you are good if you stay below the high water line.

Outside of that, it's a case by case basis depending on the river being deemed navigable (not always clear), and what the adjoining landowners deed says. Sometimes they own to the riverbank, sometimes they own to the centerline, sometimes they own to the opposite riverbank. Throw in accretion and avulsion at river bends to make things more complicated. PhilR was joking, but you do need to pick your fishing spot and do research around that specific spot. Look at whether the river has been deemed navigable in that spot (frequently debatable), and also look at what the adjoining landowners deeds say.

Public river or not, all of it can be thrown out the window if someone is waving a gun at you telling you to scram. I wouldn't advise debating that person right there, even if the law is on your side. It's not unusual for a landowner to be incorrect in knowing their property boundary locations, no matter what their grandpappy told them they owned.

Maybe a nice letter, a bottle of spirits, or some green in whatever form might get you what you're after.

 

[Westfly Refugee]

It feels overly complicated because it is overly complicated. ...

Outside of that, it's a case by case basis depending on the river being deemed navigable (not always clear), and what the adjoining landowners deed says. Sometimes they own to the riverbank, sometimes they own to the centerline, sometimes they own to the opposite riverbank.

It's worth noting in Oregon, especially on the coast, there are a lot of 'faulty' deeds recorded. Deeds claiming to own the riverbed, etc. You cannot sell/convey what you do not own. Unfortunately, faulty deeds are numerous enough that Title Companies will point this out with disclaimers as to the accuracy of said deed. The counties acknowledge this by generally excluding submerged lands from property taxes.

 

[Rob Allen]

It's worth noting in Oregon, especially on the coast, there are a lot of 'faulty' deeds recorded. Deeds claiming to own the riverbed, etc. You cannot sell/convey what you do not own. Unfortunately, faulty deeds are numerous enough that Title Companies will point this out with disclaimers as to the accuracy of said deed. The counties acknowledge this by generally excluding submerged lands from property taxes.

On the Washougal our deed read from the middle of the Washougal River road, then SR 140, to the middle of the river. In my mind that's treating the river the same as the road and we certainly couldn't stop traffic on the road.

 

[Shad]

The idea that anyone owns a riverbed is absurd, regardless of what any deed says. Rivers change course constantly in this part of the country. If a river changes course so that it flows through someone's property, it doesn't become their property, and if a river ran through their property when they bought it, their property line doesn't move when the river does. That does explain how people end up owning the land on both sides of a river, but it does not affect "ownership" of the river.

I can understand how having a river that was off your property start flowing through it, bringing the supposed public access we're talking about here with it, might create a mean landowner where there was none before. I imagine it sucks to suddenly have people passing through your property (and littering/etc.), which was indeed private and inaccessible to the public when you bought it. That could be tough to swallow.

The only "rule" I have observed is that some streamside landowners are a lot nicer than others, and as others have said, there's not much to be gained from buttering up, reasoning with, or worse, fighting with the less friendly types. Better to politely move on.