Public access denied too long

The public, which is to say all of us, gained certain legal rights when Oregon became a state on Feb. 14, 1859.

But we sort of forgot about one of those rights.

Certainly the state government, which has the authority to uphold this particular right on the public’s behalf, has done relatively little in that regard in 151 years.

That right entitles the public to travel between the “ordinary” high water line (the normal seasonal line, not the water line during the 100-year flood) along streams and lakes that are deemed “navigable.”

Navigable is a pretty low hurdle, legally speaking.

A waterway qualifies as navigable if, in 1859, it was used, or even if it could have been used, for travel or commerce.

Subsequent court rulings made it clear that a waterway needn’t accommodate the Queen Mary to rank as navigable, either.

Passage by a canoe or rubber raft is sufficient.

Which doesn’t exactly rate as swift progress, considering the state has had 151 years to work on this matter.

Of the 12 designated rivers, only one, the Snake, is in Baker County. It seems likely, though, that at least a few other local streams, including the Powder and Burnt rivers and Eagle Creek, meet the legal standard for navigability.

A Democratic state senator, Alan Bates of Ashland, tried to rectify the state’s procrastination during this month’s special session of the Legislature.

But Bates’ bill foundered.

The legislation, Senate Bill 1060, would have guaranteed the public the limited access to navigable waterways statewide, as federal law provided upon statehood.

A Senate committee stripped that controversial aspect from Bates’ bill.

In its place, the committee proposed an amended version that would have set up a 17-member committee to study the issue and submit a recommendation to the Legislature when it convenes for its regular session in January 2011.

But the Senate rejected even that watered down bill, by a 16-14 vote.

Perhaps a one-month special session is not the appropriate forum for dealing with an issue that has languished since the Civil War.

But that’s no excuse for the Legislature to shirk its duty permanently.

Lawmakers should at least have appointed the task force to study the issue.

Now, when the Legislature convenes again in January 2011, it will in effect have to start over, without a solid foundation of information a task force would have supplied.

Nonetheless, lawmakers should take real action on the issue of navigable waterways next year, even if that action is to set up — finally — a task force.

It’s simply not acceptable for the state, through its sluggishness, to continue to exclude the public from areas — including some prime recreational waterways — which all of us are legally entitled to use.

That said, because this oversight dates back more than a century, it would be unfair for the Legislature to simply overturn a property boundary system which thousands of owners of streamside property have become accustomed to.

It’s not the landowners’ fault, after all, that they were told they owned property which, by federal law, has been reserved for the public since statehood.

Many riverside landowners have erected livestock fences or other structures that could prevent the public from using the waterway.

Also, many deeds for such properties state that the parcel extends to the center of the waterway.

Ultimately, Oregonians deserve a clearly written law that both ensures the public has access along navigable waterways, and protects the rights of waterfront property owners.

A public education campaign is necessary if such a law is to achieve those disparate goals.

Education is especially vital because, unlike in the 19th century, the main reason the public wants to use waterways today is for recreation such as boating and fishing. And recreationists are more likely to want to use the banks of rivers than were, to use one historic example, loggers who floated logs downstream to sawmills.

The state must emphasize, then, that the public has the right to use only the area between the ordinary high water mark. The right to use navigable waterways is not a free pass to trespass. Boaters can float the river, but they can’t pitch a tent in somebody’s pasture or back yard.

The state also needs to remind boaters that all other applicable laws, including ones that ban littering and limit campfires, are in effect.

The Legislature — with guidance from a diverse task, we hope — also will need to unravel pesky issues such as cases when an irrigation diversion dam blocks boaters, or when a waterfront landowner is required by law to maintain a fence to keep livestock from getting into the water.

We’re confident, though, that a suitable solution can be had that reduces, to the extent possible, conflicts between private landowners and people using public waterways.

Oregon, after all, has proved that it’s capable of mixing private and public rights along waterways.

For inspiration, just take a stroll on our Pacific beaches.