Murky legal waters

Jackson County Circuit Court Judge Ron Grensky wrestled Monday with the complex and disruptive legal issues raised by the state of Oregon in asserting ownership rights to a stretch of the Rogue River that will affect 3,000 properties.

Grensky listened to arguments from attorneys representing owners of five properties, including film star Kim Novak, who have sued the state, arguing it hasn't established a legal basis for taking property along the river.

The Department of State Lands maintains the river channel always has been owned by the state, based on federal legal standards.

As Grensky questioned lawyers on both sides, he said the state so far has failed to give property owners a clear idea where their property ends and public property begins.

"It looks like you created a big mess going down 89 miles of that river," he said during an exchange with Matthew Donohue, assistant attorney general for the Oregon Department of Justice.

In June 2008, the state determined an 89-mile stretch of the Rogue River from Grave Creek to Lost Creek Dam is a navigable waterway and has belonged to the citizens of Oregon since statehood was declared in 1859. Declaring a river navigable, which means it was used for commerce at the time of statehood, is the legal step necessary to laying claim to the river channel.

Many property owners, however, say they own title to the middle of the river or to the opposite bank because the waterway has change course during the past 150 years.

In some cases, the state is laying claim to dry land because that's where the original channel flowed. Because the current channel is in a different location, the state doesn't own that portion of the river, which will result in potentially extensive negotiations with landowners.

The property owners who have sued the state include Wilbur and Kathryn Hardy, Idelle Colins, Craig Tompkins of Kirtland Farms, Mary and Cris Caldwell, and Robert and Marilyn Kim Novak Malloy.

Grensky, who deferred ruling on separate motions for summary judgment in the suit, appeared troubled by the disruptive steps the state took to claim ownership on land that residents have paid taxes on, improved or just thought they owned for as long as they can remember.

He said the state appears to have relied on the 1859 statehood law to make the declaration of ownership of properties legal. "It doesn't seem constitutional," he said.

He said the state waited 150 years before it announced it was going to explore its rights to the river. "It is very weird," Grensky said.

Grensky said the navigability study was initiated at the request of law enforcement to clarify the boundaries of public and private land along the river to resolve potential conflict, but he saw little evidence of clarity as a result of the state's action.

According to his reading of state law, the state should have created a way to determine the boundaries of a property that could be understood by a lay person. But Grensky said the state's action hasn't helped the property owners or the lay person better understand where those boundaries are located.

At one point Grensky said the state's procedure for claiming the land muddied the legal waters more than it clarified them and will lead to disputes that could drag on for years.

"What they thought was going to happen — it did not happen," he said.

Trying to determine the original channel of the river will prove difficult, not to mention trying to map out the dramatic changes in the course of the channel, he said.

"There are not many things we can say with certainty, especially what happened in 1859," he said.

Donohue said the state's work isn't completed yet, but eventually the process will lead to more clarity about where the public portion of the river channel runs.

"They knew there was going to be confusion, but they are working toward cleaning that up," he said.

He said the state undertook a legal process that effectively showed the river was navigable at the time of statehood and, as a result, always has been public land.

Portland attorney Beverly Pearman, attorney for the property owners, said the state failed to provide enough evidence that there was sufficient public interest to warrant the navigability study, or to provide sufficient analysis of whether the river had been navigable around 1859.

The state's actions failed to give law enforcement and property owners any clarity about property lines," she said.

"It raises more questions than not," Pearman said. "It seems less clear than it did before."

Monday's hearing was the first in what could be a long legal battle over ownership rights to the river channel. Grensky has 10 days to decide whether to grant either side's motions for summary judgment.

Reach reporter Damian Mann at 776-4476, or e-mail dmann@mailtribune.com.