City backs off on river access restrictions

By Chris Collins August 22, 2012 10:20 am

By Chris Collins

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The Baker City Police Department has backed off of its plan to enforce trespassing laws in the area of Wade Williams Park until right-of-way questions can be resolved.

“If they’ve been using Main Street to access the Powder River we’re not going to stop them,” Sgt. Kirk McCormick said Tuesday.

Police will, however, continue to enforce city ordinances and state laws, including those that apply to trespassing, littering and drinking in public, McCormick said.

“Hopefully people will at least realize this is a work in progress and that people may or may not be able to continue to go to the river in these areas,” he said. “We are firm advocates of protecting people’s rights.”

Baker City Manager Mike Kee, Public Works Director Michelle Owen, the city attorney and Police Chief Wyn Lohner will work to resolve the matter in the coming weeks, McCormick said.

Kee, Owen, Lohner and Brent Smith, the city’s legal adviser, were unavailable for comment in time for this story.

The issue arose last week after Lohner met with property owners in the area who complained that people were traveling over private property to gain access to the Powder River, leaving garbage in their wake and being generally loud and obnoxious.

The Baker Elks Lodge, which owns Wade Williams Park, said boisterous trespassers frightened off a visiting Elks member who had permission to park his RV at Wade Williams. The lodge has proposed adding more “no trespassingsigns to the area and fencing off the entire perimeter of the park. 

Cathy and Tom Tressler also had posted signs stating that there is no public access to the river at their property at 975 Main St.

But some community residents, including Allen Makinson, a retired environmental specialist, disagreed with the city’s ruling that the property owners control access to the river through an unopened right of way on a platted city street.

Baker County Assessor Kerry Savage said the south end of Main Street, which travels past the Tresslers’ east property line, and River Drive, which runs along the south side of the Tresslers’ property, are public rights of way.

“(The streets) have never been vacated and nobody is paying taxes on them,” Savage said.

Makinson also disagrees with Lohner’s assertion that the Powder River is not a navigable river.

Although the Oregon State Land Board, which has the sole authority to determine whether a river is navigable, has not done so in the case of the Powder River, a 2005 opinion by Attorney General Hardy Myers designates a separate category: waterways that are “navigable-for-public-use.”

Waterways qualify if a boat can float their waters. Navigable-for-public-use rivers, even those running through private property, may be used by the public for “navigation, commerce or recreation,” Hardy stated.

And recreation includes “use of small boats for pleasure and fishing, as well as swimming.”

Hardy said the public, in addition to floating such rivers or swimming in them, can also use the adjacent land as long as the use of is “necessary to the lawful use of the waterway.” That could include such things as picnicking, sunbathing or fishing. Such use is restricted, however, to the area below the ordinary high-water mark.

Lohner, by contrast, told the Herald recently that the river’s banks belong solely to adjacent property owners.

The bottom line for the city police is that they need an official determination about property boundaries and legal access.