360 P.3d 647
Or. Ct. App.2015Background
- The Oregon State Land Board and Department of State Lands conducted an administrative navigability study (RM 68.5–157.5) of the Rogue River and adopted a declaration that the 89-mile segment was title-navigable and that the State owns lands below ordinary high water along that segment. The declaration incorporated accretion/erosion/avulsion adjustments.
- Property owners along the segment petitioned for judicial review under ORS 183.484, challenging (a) the board’s navigability findings (particularly RM 100–157.5), (b) the sufficiency of the public notice/declaration under ORS 274.408 and OAR 141-121-0040, and (c) the board’s authority to claim dry/formerly submerged land.
- The Jackson County circuit court (summary judgment) upheld navigability for RM 68.5–100, set aside navigability for RM 100–157.5, and set aside the declaration in its entirety for failing the statutory notice/description requirement; it also held the board could not claim dry land under ORS 274.400–274.412.
- The court awarded attorneys’ fees to petitioners. The State appealed both the general and supplemental judgments.
- The Court of Appeals affirmed that the declaration’s public notice/description was legally insufficient and must be set aside in its entirety, reversed the circuit court’s rejection of navigability for RM 100–157.5 (finding substantial evidence supported susceptibility-of-use), and reversed the holding that the board lacked authority to include formerly submerged land; it vacated the fee award and remanded.
Issues
| Issue | Plaintiff's Argument (petitioners) | Defendant's Argument (State) | Held |
|---|---|---|---|
| 1. Was the board’s declaration sufficiently descriptive under ORS 274.408(1)(a) / OAR 141-121-0040? | Notice is too vague; it must enable lay property owners to identify the exact claimed boundaries relative to existing legal descriptions. | Statute does not require a legal or exact description; common descriptions/maps and a statement that ownership is to lands below OHW (adjusted by accretion/erosion/avulsion) are sufficient and the statute contemplates later resolution. | The notice was legally insufficient: the statute requires enough specificity (common descriptions/maps intelligible to laypersons and useful to establish exact location relative to legal descriptions). Declaration set aside in full. |
| 2. Was the upper segment (RM 100–157.5) title-navigable at statehood (actual use or susceptibility)? | There is little historical evidence of commercial use; circuit court correctly found no substantial evidence of navigability. | Post-statehood log drives, present-day recreational boating, and ferry/log evidence support susceptibility of use; PPL Montana allows present-day evidence if watercraft are meaningfully similar and river condition is not materially improved. | Reversed circuit court: substantial evidence supported susceptibility-of-use for RM 100–157.5 (log drives + modern use + hydrology comparisons satisfy PPL Montana prerequisites). |
| 3. May the board’s declaration under ORS 274.400–274.412 include land that is now dry because of avulsion (formerly submerged land)? | Separate 1973 statutes for formerly submerged lands (ORS 274.960–274.985) were the exclusive vehicle; absent compliance, board cannot claim dry land. | ORS 274.400–274.412 addresses title navigability (determined as of statehood), so claims necessarily encompass land that was submerged/submersible at statehood even if now dry due to avulsion; 1973 scheme addressed a different, limited purpose. | Court of Appeals: board may include formerly submerged lands in a navigability-based declaration; the 1973 statutes do not bar such claims and the statutes can be harmonized. The circuit court erred on this point. |
| 4. Was the award of attorneys’ fees to petitioners proper? | Fees appropriate because petitioners prevailed and the declaration was improper. | The State contends its positions were objectively reasonable and some fees were wrongly deemed mandatory. | Fee award vacated and remanded for reconsideration in light of the partial reversal of the general judgment. |
Key Cases Cited
- PPL Montana v. Montana, 565 U.S. 576 (2012) (reaffirming susceptibility-of-use test; present-day evidence usable only if watercraft are meaningfully similar and river condition is not materially improved since statehood)
- United States v. Utah, 283 U.S. 64 (1931) (navigability for title is a fact-specific inquiry and includes susceptibility/capacity for commerce)
- The Daniel Ball, 77 U.S. 557 (1870) (formulation of navigability test: "used or susceptible of being used ... as highways for commerce")
- United States v. Oregon, 295 U.S. 1 (1935) (navigability for title is a question of federal law under equal-footing doctrine)
- Oklahoma v. Texas, 258 U.S. 574 (1922) (limited or exceptional use at high water is insufficient for title navigability)
- United States v. Rio Grande Irrigation Co., 174 U.S. 690 (1899) (occasional high-water log movements alone do not establish navigability)
- Riverfront Protection Ass’n v. State, 672 F.2d 792 (9th Cir. 1982) (log drives and sustained timber transport can support navigability findings)
- Puget Sound Power & Light Co. v. Federal Energy, 644 F.2d 785 (9th Cir. 1981) (applied Daniel Ball standard in assessing historical navigability)