State loses decision on ownership of portion of Rogue
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A Jackson County Circuit Court judge has ruled against the state of Oregon in its attempt to assert ownership rights to a stretch of the Rogue River. The decision will affect some 3,000 private properties.
Based on a study of historic use, Judge Ron Grensky determined that, while historical documents conclude the lower portion of the river was deemed navigable because it had been used for commerce, the portion upstream from Grants Pass does not fall into that category.
"The court cannot help but conclude therefore that the upper portion of the Rogue River was neither used (nor) susceptible to use for travel and trade in the period of Oregon's statehood in 1859," Grensky concluded in the eight-page ruling released Friday.
"More specifically the court determines there is not substantial evidence in the agency record to support a finding of navigability for this portion of the river," he added.
Grensky ruled the river from Gold Beach to Grants Pass — about 100 river miles — was navigable based on historic use while the roughly 58 miles from Grants Pass to what is now Lost Creek Dam was not.
The lawsuit was the result of the state's declaration in June 2008 that the 89-mile stretch of the Rogue from Lost Creek Dam to the mouth of Grave Creek was a navigable waterway and has belonged to the citizens of Oregon since statehood in 1859. Declaring a river navigable is the legal step necessary to laying claim to the river channel.
The case marks the first time the navigability law has been challenged in Oregon.
"I feel pretty damn good about the decision — it seems like a sensible rendition to me," said Shady Cove resident Wilbur Hardy, a Shady Cove resident whose home built in 1994 along the Rogue River would have been included in the state's 2008 river ownership determination because it sits on dry land where the river once flowed.
State officials have said they would work with owners of property where the river has changed course since 1859 and offer quitclaim deeds to property owners of land that once was in the river channel. If the river remains listed as non-navigable, river users could face heightened restrictions on access to the river banks, although the river itself would still be open to the public.
Hardy and his wife, Kathryn, were among eight property owners who had sued the state over the navigability debate. Other property owners included in the lawsuit which came before the court on April 5 following an administrative appeal are Idelle Colins, Craig Tompkins of Kirtland Farms, Mary and Cris Caldwell, Robert Malloy and retired actress Marilyn Kim Novak Malloy.
Many property owners have argued for years that their property rights extend to the middle of the river or to the opposite bank because the waterway has changed course since Oregon became a state.
"The whole thing was so stupid from the very beginning — it was so cockamamy for the state to do this," said Wilbur Hardy, a retired school administrator who has lived on the river bank for 16 years.
"It seems to me that Judge Grensky did a yeoman's job in studying the situation and making a prudent judgment," he added.
Tony Green, spokesman for the state Department of Justice which represented the Oregon Department of Lands in the case, declined to comment, citing the potential for the case to be appealed.
Attorneys for the Department of Lands will review the ruling to determine if it will be appealed, said department spokeswoman Julie Curtis.
In its legal defense, the state had maintained that the river channel had always been owned by the state, based on federal legal standards.
"It defies logic to say that the Rogue River is not navigable," observed Lesley Adams, the Rogue "river keeper" for the Ashland-based Klamath-Siskiyou Wildlands Center which intervened in the case for the state. Other interveners included Northwest Steelheaders and the Northwest Environmental Defense Center.
"We assume the case will be appealed," said Jennie Bricker, an attorney with the Portland law firm Stoel Rives LLP, which represented the private property owners.
In addition to the precedent-setting navigability question, the decision also addresses the important issue of a river's changing route over the years, she said.
"In its declaration of navigability, the state has ignored that a river moves back and forth, that it cuts new channels," she said, noting that the Hardy home was built on a former channel of the Rogue that is now high and dry.
"In its depositions, the state was claiming they own it," she said. "But as a result of the judge's ruling, the state can no longer claim dry land as navigable."
Reach reporter Paul Fattig at 776-4496 or e-mail him at pfattig@mailtribune.com.
