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|Sadler's Sense: Oregon's Public Lands Patrimony in Danger Once Again
An attempted land grab: The Senator from John Day is back with SB 1028 this session.
By Russell Sadler
Posted on May 20, 2005
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|"The Creek Running to Short Sand Beach," a secluded beach in Oswald West State Park. Photo © and courtesy of Stephen Voss |
Newcomers to Oregon are often surprised by how passionate Oregonians can be about their public lands at a time when much of the political rhetoric is about "private property rights." I suspect Oregonians cherish their public lands because politicians have been trying to steal them since statehood.
When Oregon became a state in 1859 the federal government gave the state government title to section 16 and 36 in every township and range. Proceeds from the sale of this land or the resources on it were constitutionally dedicated to the Common School Fund to finance public schools. The federal government also gave the state title to the beds and banks of the navigable waterways of the state as "common highways and forever free," which the courts have interpreted to mean the Legislature cannot impose tolls to traverse its waterways.
It's been a continuing battle to keep these lands public and access open. Here is an update on the current skirmish:
In 1997 lawmakers representing some of the people fortunate enough to live along Oregon's rivers and streams tried to turn them into private preserves. Sen. Ted Ferrioli, R-John Day, sponsored a bill prohibited anchoring in rivers or walking on islands or banks. The bill charged boaters fees to buy stream side access Ferrioli's bill denied them. A majority of lawmakers realized this sly giveaway of public access rights for what it was and Ferrioli's bill died.
The Senator from John Day is back with SB 1028 this session. Although it appears to be "reasonable compromise," Ferrioli's new bill, upon close reading, reveals that it creates an easily-lobbied "advisory committee" to do between sessions what he cannot persuade the Legislature to do while it is in session and then charge non-motorized boaters fees to regain access rights the public already has. This sly bill contains an "emergency clause" carefully designed to prevent any challenge by referendum.
Experienced legislative observers think the bill has a chance in the Senate but will die in the House. But SB 1028 is only the latest firelight in a continuing saga. Here is a concise history:
In 1911, Gov. Oswald West, a populist reformer, persuaded the Oregon Legislature to pass a bill declaring Oregon beaches a public highway. Up through the early 1900s the beach was the only way to travel between coastal communities without long detours inland. Oregonians became so accustomed to this open access they believed the public "owned" the beaches, including the dry sand above high tide.
A Cannon Beach motel owner challenged this folk wisdom in 1966. Bill Hay roped off a section of beach in front of his motel, excluding the public from his "private" beach. House Majority Leader Bob Smith, R-Burns tried to give away the public's claim to the dry sand portions of Oregon's beaches. Smith's maneuvering rained a rare firestorm of public indignation on Salem. A wobbly Legislature produced a compromise plan that was immediately challenged in court.
The Oregon Supreme Court eventually ruled that unrestricted public use of beaches since aboriginal times granted the public a "prescriptive right" of access to the "dry sand" beaches above high tide line regardless of what title documents said. That 1967 decision still guarantees public use of Oregon's beaches today.
In 1971, Rep. Smith, by now Speaker of the Oregon House, sponsored a bill surrendering public claims to the beds and banks of Oregon rivers and streams to the upland property owner. Sen. Betty Browne, D-Oakridge, insisted Smith's bill gave away valuable public access and potential public revenue from gravel and other mineral deposits. A compromise bill ordered a study of conflicting claims of public and private ownership. The study took 15 years. It is not a simple issue.
The state's title to the beds and banks of Oregon rivers flows with the river bed. When a river slowly erodes one bank and deposits gravel on the opposite bank, one property owners loses land, the other gains land and the state's title moves with the river bed. Lawyers call this slow change an "accretion." If the river cuts a new channel suddenly in a flood or storm -- what lawyers call an "avulsion" -- the state takes title to the new river bed. The state also retains title to the old river bed. The state's Common School Fund is entitled to money from gravel deposits mined from the old river bed. These gravel deposits were among the public claims Smith's bill tried to give away.
Now, once again, public access to public land and waterways is being challenged. Oregonians need to continue their vigilance over their public lands. The Legislature's obsession with giving away public access is like the Energizer Bunny. It just keeps going and going and going...
Copyright ©2005 by Russell Sadler
Russell Sadler is a journalist and a lecturer at Southern Oregon University. You may write him c/o publisher at westbynorthwest.org. Visit Sadler's Sense column's at West By Northwest.org:
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