Hardy v. State Land BoardHardy v. State Land Board
Thе State Land Board and the Department of State Lands (collectively, the state) appeal a judgment of the circuit court setting aside the board’s declaration of ownership of the bed and banks of the Rogue River between river miles (RM) 68.5 and 157.5
We agree with the circuit court that the board’s declaration of ownership fails to satisfy the statutory requirements and, therefore, must be set aside in its entirety on that basis. For reasons of judicial efficiency,
I. BACKGROUND
A. Legal Framework
To set this dispute in context, we begin with a brief description of the legal framework for determining state ownership of riverbeds; those principles are examined in greater detail in our analysis of the parties’ arguments on appeal.
1. Navigability under federal law
Under what is known as the “equal footing” doctrine, Oregon “gain[ed] title within its borders to the beds of waters then navigable” when it became a state in 1859. PPL Montana, LLC v. Montana, 565 US___,___,
Whether a river segment is navigable for purposes of determining state riverbed title is a question of federal law. United States v. Oregon,
The test of navigability for that purpose is well established. In 1870, the United States Supreme Court explained:
“Those rivers must be regarded as public navigable rivers in law which are navigable in fact. And they are navigable in fact when they are used, or are susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water.” 6
The Daniel Ball, 77 US (10 Wall) 557, 563,
2. State process for asserting claim
The State of Oregon has established a mechanism for asserting the state’s claim of riverbed ownership under the federal doctrine. See
The statutory scheme requires the board to adopt, by rule, a procedure under which the state “shall make a final administrative determination as to whether a waterway or part of a waterway is navigable, and if so, the extent of the interest claimed by the State of Oregon in the navigable portion of the waterway.”
“[d] escribe the land or waterway affected and the nature and extent of the state’s claim. Such notice need not describe the land or waterway in legal terms, but by the use of common descriptions or maps shall be designed to identify the land or waterway in a manner intelligible to the layperson and useful in establishing the exact location of the state claim in relation to existing legal descriptions.”
B. Factual and Procedural History
The Rogue River is 215 miles long and is bounded to the north by the Rogue-Umpqua Divide, to the east by the Cascade Mountains, to the south by the Siskiyou and Klamath Mountains, and to the west by the Klamath Mountains and the Pacific Ocean. It originates from Boundary Springs, at an elevation of 5,250 feet on the western side of the Cаscades, and ends upon its confluence with the Pacific Ocean; it is fed by eight principal waterways and more than 2,500 other streams. According to the board, the river from its mouth (RM 0.0) to Grave Creek (RM 68.5) was declared navigable for title purposes in 1975.
Following the statutory and regulatory process outlined above, in 2004, the board directed the department to conduct a navigability study of 89 miles of the Rogue River from Grave Creek at RM 68.5 to Lost Creek Dam at RM 157.5 (the study segment).
“[I]n 1859 the 89-mile study segment of the Rogue River was used or susceptible to being used in its ordinary and natural condition as a highway of commerce over which trade and travel could have been conducted in the customary modes of trade and travel at that time; * * * the federal government did not reserve any portion of the study segment for any purpose prior to statehood that would prevent the transfer of ownership of the study segment to the state; and * * * the state has owned the land underlying the study segment of the Rogue River since statehood.
“Furthermore, the state’s ownership extends to all lands located below the line of ordinary high water along the 89-mile study segment, unless lawfully conveyed or granted to another entity by the state since statehood and as affected by the principles of accretion, erosion and avulsion. The nature of the ownership includes two components: fee simplе title (the jus privatum) and dominion as the public’s trustee over the natural resource for public trust uses such as navigation,commerce, fisheries and recreation (the jus publicum).”
Addressing concerns that had been raised during the public-comment period about the effect of avulsive shifts in the river that had occurred since statehood, the report stated that, “although the general orientation of the waterway has not changed markedly since the mid-1850s and early 1900s, changes, often the result of major floods and consequent avulsive acts, have occurred along several lengths of the study segment.”
The board adopted the findings and conclusions in the report, issued a declaration of ownership, and provided notice of that declaration to interested parties. The declaration stated, in part:
“(1) The 89-mile study segment of the Rogue River is located in Josephine and Jackson Counties. The confluence of Grave Creek with the Rogue River is at River Mile 68.5 on the Rogue River and within Section 1, Township 34 South, Range 8 West of the Willamette Meridian within Josephine County. Lost Creek Dam (also known as the William L. Jess Dam) is on the Rogue River at River Mile 157.5 and within Section 26, Township 33 South, Range 1 East of the Willamette Meridian within Jackson County.
“(2) The 89-mile study segment of the Rogue River is a title navigable waterway.
“(3) The State of Oregon owns all rights, title, and interest in and to the lands located below the line of ordinary high water (as defined in [ORS] 274.005) along the 89-mile study segment of the Rogue River, unless lawfully granted or conveyed by the state since statehood on February 14, 1859, and as affected by the principles of accretion, erosion, and avulsion.
“(4) The public has rights to use the title navigable reach of the 89-mile study segment of the Rogue River for public trust uses including fishing, navigation, commerce, and recreation.”
Petitioners, who are property owners along or adjacent to the study segment, filed a petition for judicial review under
The parties ultimately filed cross-motions for summary judgment on two issues that are implicated on appeal: (1) whether the board’s determination of navigability of the study segment was consistent with state and federal law and supported by substantial evidence in the record, and (2) whether the state’s declaration of ownership satisfied the requirements of
On the navigability question, the circuit court concluded that substantial evidence
Regarding the second issue — that is, the sufficiency of the declaration in light of the requirements of
The court entered a general judgment reflecting those rulings and setting aside the declaration of ownership in its entirety. Subsequently, the court entered a supplemental judgment awarding petitioners costs and $157,101.87 in attorney fees. The state appeals both judgments under
II. ANALYSIS
A. Standard of Review
Our function on appeal under
The circuit court’s “evaluation of the record is limited to whether the evidence [before it] would permit a reasonable person to make the determination that the agency made in a particular case.” Norden v. Water Resources Dept.,
B. Navigability Determination
For analytic coherence, we begin with the state’s fourth and fifth assignments of error, in which the state contends that the circuit court erred in denying its motion for summary judgment and granting petitioners’ motion on the issue of the navigability of the upper portion of the study segment — RM 100 to 157.5 — “because substantial evidence in the circuit court record supported the Board’s determination that the river segment was navigable at statehood.’” That is, in the state’s view,
“the record, viewed as a whole, would permit a reasonable agency to make the determination that river miles 100 to 157.5 were used, or [were] susceptible of being used, in their ordinary condition, as highways for commerce. Because substantial evidence supports those factual predicates, the Board is entitled to summary judgment on the issue of navigability.”
Petitioners, on the other hand, defend the circuit court’s ruling, contending that (1) “the state misinterpreted the federal standard for title navigability” and (2) the state’s evidence of navigability, as developed during summary judgment briefing, would not permit a reasonable person to make the determination that the upper Rogue is navigable.
Topographically, the upper portion of the study segment is described in the navigability report as follows:
“As the river flows south from Shady Cove [RM 146], it is characterized over a distance of approximately 25 miles by numerous meanders along a generally flat valley floor. In the vicinity of Gold Hill [RM 119.5], it becomes confined to the bottom of a relatively open, often narrow valley until it reaches Grants Pass [RM 102]. * * * Over this 59.5-mile segment [RM 146 to 86.5], the river’s width typically ranges from 150 feet to 250 feet wide. However, in places it can exceed 300 feet in width.
“Over this segment, the Rogue River drops from 1,295 feet to 847 feet above sea level which gives it an average gradient of approximately 7.5 feet per mile.”
Above Shady Cove (RM 146), the waterway is confined to narrow, steep-walled canyons within the Cascade Range and the gradient is much steeper; from its origin to Shady Cove, the river falls nearly 4,000 feet with an average gradient of approximately 57 feet per mile.
Among the facts found by the board, the following pertain — at least in some part — to the upper portion of the study segment:
“The use of canoes by Indians was reported by early explorers during the 1840s and 1850s at or in the vicinity of RM *** 102 (Grants Pass) and 110.5 (Evans Creek). *** In addition, there is reference [in an oral history taken of one of the last members of the Takelma Tribe] to the use of log rafts by Indians living upriver from Table Rock (RM 131 [)].
“Ferries were operated from the 1850s to early 1900s at approximately RM *** 102,107.5,110.5,131.5,140, and 146.
“Wooden boats were used from the late 1890s to the early 1900s to transport goods and people primarily from Grants Pass (RM 102) to various points downriver. *** Evans Creek (RM 110.5) was also identified as the starting point for one trip downstream.
* Hi * * “Log drives were reported to have been conducted on an occasional basis and often with difficulty, from the 1880s to 1916 between various points on the upper study segment to Tolo/Gold Ray Dam (RM 125.5).
“Boating recreationists use a wide variety of watercraft along the entire 89-mile study segment.
“Although the general orientation of the Rogue River remains the same as it was at statehood, it has changed its course along various lengths of the study segment due to avulsion and accretion, a process which continues.
“The flow of the Rogue River through the study segment was at the time of statehood likely equal to or greater than it is today.
“Most of the recreational watercraft currently used on the Rogue River draw less than 8 inches when loaded with people and gear, and many 6 inches or less, and can use the study segment at a minimum flow of 800 to 900 cubic feet per second (cfs) with occasional scraping of the bottom of the watercraft or the need to portage around some obstacles.
“Flows of 1,000 cfs enable watercraft to use the water more easily, with a flow on the order of 1,400 cfs providing an even more pleasant experience.
“The United States Geological Survey (USGS) has determined that the minimum average monthly flow (after withdrawals for irrigation, municipal and domestic purposes) prior to the completion of Lost Creek Dam in 1977 at various points along the study segment over various recording periods was 1,160 cfs in August at Grants Pass (RM 102).
“The Oregon Water Resources Department reports:
“An 80% likelihood exists that a flow of 1,000 cfs or more would have occurred at the time of statehood and at all points along the study segment throughout the year except in September at the confluence of Elk Creek (RM 152); and
“A 50% likelihood exists that the lowest flow at any point along the study segment would be 1,150 cfs in October at the confluence of Elk Creek (RM 152).
“Indian dugout canoes and some other watercraft used in the Oregon territory at the time of Oregon statehood had a draft of 6 to 8 inches of water. Current recreational watercraft now used through the study segment have the same floatability characteristics (3 to 8 inches of draft).”15
(Formatting altered.)
As mentioned, the circuit court concluded that the board’s determination of navigability as to the upper portion of the study segment did not meet the federal test. The court found that, in contrast to the lower portion of the study segment between Grants Pass and Gold Beach, the upper portion “was almost entirely without * * * recorded evidence of usage for any purpose related to navigability.” The court noted that, although there was evidence of Indians using canoes on the study segment, with the exception of one reference in the record to the sighting of an Indian canoe near RM 130, that use was from RM 110 downriver to RM 68.5. The court also noted the occurrence of “two log drives (with difficulty)” from RM 157.5 to 120; excerpts from expedition journals of the time, one of which indicated that the lower portion of the river was the only navigable portion, and another that found that the river was navigable from RM 35 to 70 and RM 90 to 120; and maps and survey notes from 1854 to 1919, finding “the river utterly devoid of any reports of usage.” The court disregarded evidence of the use of ferries from RM 80 “all the way upriver” to RM 145, because, in the court’s view, “ferries provide evidence that a river is more an ‘obstruction’ to commerce which must be overcome, than evidence the river was itself used for commerce.” (Citation omitted.) The court further found that “[s]harp drops clearly make navigability difficult. Between Robertson Bridge (mile 86) and Shady Cove (mile 146) the drop is 7.5 feet per mile, while it’s much steeper above Shady Cove.” Thus, the court concluded that “[t]he upper portion of the Rogue River was neither used [n]or susceptible to use for travel and trade in the period of Oregon’s statehood!,] 1859.”
We turn to the state’s primary argument — viz., that the court “applied the wrong legal standard by looking only to evidence regarding actual use without also considering susceptibility of use,” and substantial evidence supports the board’s conclusion that the river segment was susceptible of use as a highway of commerce in 1859.
As an initial matter, the state is correct that navigability for title purposes can be established by showing that the river segment was susceptible of being used for trade and travel at the time of statehood. That alternative standard has been embodied in the navigability test since the test’s inception. See The Daniel Ball, 77 US (10 Wall) at 563 (“Those rivers * * * are navigable in fact when they are used, or are susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water.” (Emphasis added.)); see also Northwest Steelheaders Association,
We also reject petitioners’ suggestion (at oral argument) that the “susceptibility of use” standard is applicable only where the area in question was essentially uninhabited or only sparsely settled at the time of statehood. Although thosе may have been the extant circumstances in United States v. Utah, the Supreme Court did not then, and has not since, held that the susceptibility-of-use standard is so limited.
Having determined the continued vitality and applicability of the susceptibility-of-use measure of navigability, we turn back to the state’s arguments. We first note that, contrary to the state’s view, the circuit court did consider susceptibility of use when it determined that the state had not proved navigability of the upper portion of the river. Citing United States v. Utah, the court recognized that “[t]he test isn’t limited to actual use but can also include ‘susceptibility’ to use or ‘capacity to carry travel and trade’” and, in the discussion that followed, included reference to evidence of post-statehood use of the river, including boat trips, log drives, and ferries. It also observed that “[s]harp drops clearly make [navigation] difficult,” citing evidence of the river’s drop оf 7.5 feet per mile at Shady Cove (RM 154), and noting that “it’s much steeper” above that point. Although the court did not explain its reasoning in detail, those considerations informed the court’s conclusion that the “upper portion of the Rogue River was neither used [n]or susceptible to use for travel and trade in the period of Oregon’s statehood!,] 1859.” (Emphasis added.) In short, we cannot say that the circuit court did not consider the issue.
The question thus reduces to whether the circuit court’s conclusion — that the upper portion of the river was not susceptible to navigation in 1859 — is correct under a proper understanding and application of the law.
Susceptibility of use for commerce must be assessed based on the natural and ordinary conditions of the river at the time of statehood. PPL Montana, 565 US at___,
The state relies on three categories of post-statehood evidence that, in its view, “would lead a reasonable person to conclude that [the upper portion] of the river was susceptible of use as a highway of commerce in 1859”: (1) log drives; (2) recreational boating and fishing; and (3) the use of ferries, which, in the state’s view, supports a determination that “the Rogue above mile 100 was wide enough and deep enough to serve as a highway of commerce.” As explained
We begin with the question of log drives. The state contends that there is abundant evidence in the record that log drives were conducted on the upper portion of the river near Gold Ray Dam (RM 126) beginning as early as 1889 and continuing into the early 20th century; for example, it points to contemporaneous newspaper accounts describing such drives from the area of Peyton (RM 162) to a sawmill at Tolo (RM 125.5). In the state’s view, that evidence demonstrates that the upper portion of the river was susceptible of navigation for commercial purposes — timber transport — at the time of Oregon’s statehoоd in 1859.
Petitioners do not dispute the state’s evidentiary assertion; rather, their sole response is that, “ [a] s a matter of law, the state’s reliance on log drives is based on a misinterpretation of the federal test.” In support of that proposition, they assert that “[t]he Supreme Court has never accepted log drives as indicative of navigation for title.” Petitioners acknowledge that, in United States v. Utah,
Petitioners also point to United States v. Rio Grande Irrigation Co.,
Petitioners also challenge the state’s reliance on State of Or., Etc. v. Riverfront Protection Ass’n, 672 F2d 792, 795 (9th Cir 1982), as suрport for its position that log drives are evidence of a waterway’s capacity for use as a channel of commerce. In that case, the Ninth Circuit held that the transportation of logs on the McKenzie River in Oregon, although difficult and seasonal, was sufficient to establish that the river was navigable for title purposes. The court determined that, unlike in Rio Grande Irrigation Co., log drives on the McKenzie did not depend on high water — the river was “too swift, deep, and dangerous for logdriving” during those periods. Id. Nonetheless, the court held that the log drives established use of the river for purposes of commerce because they were not merely “occasional” — they occurred during several months each year over a period of many years and “[thousands of logs and millions of board feet of timber were driven down the river.” Id.
In petitioners’ view, Riverfront Protection Ass’n is no longer apt, in light of PPL Montana, because, in deciding the case, the Ninth Circuit relied on decisions — in particular, Puget Sound Power & Light v. Federal Energy, Etc., 644 F2d 785 (9th Cir), cert den,
In sum, we disagree that the state has “misinterpret [ed]” the federal test with respect to its use of log-drive evidence. And, in the absence of any contention by petitioners that the state’s evidence is deficient as a matter of fact — that is, that it is insufficient to demonstrate more than occasional, temporary use of the river for timber transport — see, e.g., United States v. Utah,
We next consider the question of post-statehood recreationаl use of the river, which, the state asserts, demonstrates the river’s navigability under the susceptibility-of-use measure. As noted, the board found that “[b]oating recreationists use a wide variety of watercraft along the entire 89-mile study segment.” According to the navigability report, kayakers, rafters and anglers in drift boats use the entire length of the study segment, including the upper portion, although, as the report notes, the stretch between Grants Pass (RM 102) and Gold Ray Dam (RM 126) is used less intensively for recreation than other segments because of the need to portage around the Gold Ray Dam (RM 126) and Savage Rapids Dam (RM 107.5). It further found that the uppermost section — from Gold Ray Dam to Lost Creek Dam (RM 157.5) — is “considerably calmer” than the lower sections of the river but is “also extensively used by kayakers, rafters and anglers in drift boats.”
Petitioners contend that that evidence has no bearing on the navigability determination under the susceptibility-of-use test set out in PPL Montana. We disagree.
In PPL Montana, the Court held that, because the susceptibility analysis turns on whether trade and travel could have been conducted “in the customary modes of trade and travel on water” over the river segment at issue in its “natural and ordinary condition,”
“[a]t a minimum * * *, the party seeking to use present-day evidence for title purposes must show: (1) the watercraft are meaningfully similar to those in customary use for trade and travel at the time of statehood, and (2) the river’s poststatehood condition is not materially different from its physical condition at statehood. If modern watercraft permit navigability where the historical watercraft would not, or if the river has changed in ways that substantially improve its navigability, then the evidence of present-day use has little or no bearing on navigability at statehood.”
565 US at___,
Petitioners contend that similar deficiencies are inherent in the state’s evidence of present-day recreational use in this case and, consequently, the circuit court correctly (if implicitly) disregarded that evidence in concluding that the upper river segment was not susceptible of use for commerce. They assert that the state’s analysis of modern-day watercraft versus that customarily used at statehood is flawed; moreover, petitionеrs point out that, according to the state’s own navigability report, “‘the flow of the Rogue River today at various points along the study segment is not representative of that which existed at the time of statehood,”’ due to the construction of dams and the use of water for irrigation, municipal, and domestic purposes.
We are not persuaded.
Regarding PPL Montana's first requirement — that the recreational watercraft in use today are “meaningfully similar” to those customarily used for trade and travel at the time of statehood — the board compared the “draft” requirements of current recreational watercraft with those of the dugout canoes and other watercraft commonly used by Native Americans in the Oregon territory at the time of statehood, finding that the two had similar “floatability characteristics.”
The board also analyzed the flow requirements of the recreational watercraft used on the river today. It found that most of the watercraft can use the entire length of the study segment “at a minimum flow of 800 to 900 cubic feet per second (cfs) with occasional scraping of the bottom of the watercraft or the need to portage around some obstacles,” although flows of 1000 cfs provide for easier use. It also found that there was an 80 percent likelihood that a flow of 1,000 cfs or more would have occurred at statehood all along the study segment exсept in September as measured at Elk Creek (RM 152). As to that “exception,” the navigability report further establishes an 80 percent likelihood that a flow of at least 900 cfs would have occurred throughout the year on the entire length of the study segment. Based on those data, we understand the board to have found that the flow requirements for current recreational boats all along the study segment — including the upper portion — are similar to those for the dugout-type canoes that were customarily used by Native Americans in the area for trade and travel in 1859;
The state’s evidence also satisfies PPL Montana's second requirement — that the river’s post-statehood condition not be “materially different” than its condition at statehood. The board found that the flow of the Rogue River through the study segment was, at statehood, “likely equal to or greater than it is today” — a finding that petitioners do not contest. In particular, the report found, based on the examination of cadastral maps, historical data from USGS survey gauges, and information drawn from the Oregon Water Resources Department’s “Water Availability Reporting System” model, that the river’s flow from RM 68.5 to 157.5 was “most likely greater at the time of statehood * * * than it is today” due to the construction of dams and the withdrawal of water from the river for irrigation and domestic and municipal use. Thus, the state’s evidence indicates that, if anything, navigation is likely more difficult today than it was at statehood. See PPL Montana, 565 US at___,
Thus, the board’s analysis of the physical conditions of the river, as well as its comparative assessment of watercraft in use at statehood and today satisfies the requirements of PPL Montana and permits the conclusion that the upper portion of the river was capable — at statehood — of sustaining travel and trade by means of dugout canoes.
In sum, the occurrence of log drives on the upper portion of the river post-statehood, and evidence of present-day boating use of that portion of the river, support the conclusion that the river’s conditions at the time of statehood would have permitted use of the river as a highway of commerce — that is, for timber transport and canoe-based travel and trade. Cf. Northwest Steelheaders Association,
C. Declaration of Ownership Under Oregon Law
We turn back to the state’s first three assignments of error, in which the state challenges the circuit court’s determination that the board’s declaration of ownership of the bed and banks underlying the 89-mile study segment fails to comply with Oregon
Once again,
“[d] escribe the land or waterway affected and the nature and extent of the state’s claim. Such notice need not describe the land or waterway in legal terms, but by the use of common descriptions or maps shall be designed to identify the land or waterway in a manner intelligible to the layperson and useful in establishing the exact location of the state claim in relation to existing legal descriptions.”23
And, the board’s notice provided, as relevant:
“The State of Oregon owns all rights, title, and interest in and to the lands located below the line of ordinary high wаter (as defined in [ORS] 274.005[24] along the 89-mile study segment of the Rogue River, unless lawfully granted or conveyed by the state since statehood on February 14, 1859, and as affected by the principles of accretion, erosion, and avulsion.”25
In concluding that that notice was inadequate, the circuit court explained, in part:
“The State takes the position that it is free simply to tell the private property owners and users of the river that it is sufficient merely to say in some vague fashion, ‘We (the State of Oregon) own some of this land,’ but is likewise free to defer to some later date and later process the determination of where this land is actually located. As stated above, the law clearly requires much more and since the law states a lay person should be able to identify the location of the State’s claim (OAR 141-121-0040(3) ), this declaration is woefully insufficient.”
On appeal, the state argues that its notice satisfies the requirements of
Although we agree with the state that the statute does not require a legal description or an “exact” location of the state’s claim of ownership, we nonetheless conclude that it requires more specificity than the state’s notice provided here. In other words, we agree with the circuit court that the notice of declaration fell short of what is required under the statute.
We begin with an analysis of the text of
The second sentence of the statute qualifies that requirement further, providing that, although the description need not use “legal terms,” it must, “by the use of common descriptions or maps *** be designed to identify the land or waterway in a manner intelligible tо the layperson and useful in establishing the exact location of the state claim in relation to existing legal descriptions.” Parsing that sentence, we note several terms and phrases of consequence.
First, the statute refers to “common descriptions or maps,” indicating a verbal or graphic depiction of the state’s claim that is adequate under ordinary standards to inform the knowledge or understanding of others. Id. at 458 (meaning of adjective “common” includes “satisfying accustomed criteria : attaining to an ordinary standard : adequate”); id. at 610 (“description” means “the act or an instance of describing”); id. (to “describe,” in turn, means “to represent by words written or spoken for the knowledge or understanding of others”).
Second, the description of the state’s claim must be “designed to identify the land or waterway in a manner intelligible to the layperson.” Thus, it should be capable of being understood by a person without specialized skills or training. See id. at 1175 (“intelligible” means “capable of being understood or comprehended”); id. at 1281 (“layman” means “one not belonging to some particular profession or not expert in some branch of knowledge or art”).
Third, it must be “useful in establishing the exact location of the state claim in relation to existing legal descriptions.” As discussed above, that is the phrase that the state seizes on, particularly the word “useful.” “Useful” means “capable of being put to use : having utility : advantageous * * * esp. : producing or having the power to produce good : serviceable for a beneficial end or object.” Id. at 2524. Thus, as the state argues — and we agree — the description need not definitively establish the exact location of the state’s claim. However, it must be beneficial in ascertaining that location and it must do so — and this the state ignores entirely — in relation to existing legal descriptions.
Here, as petitioners point out, the state’s notice of declaration would, if approved, turn that scheme on its head. The notice states that the state is claiming title to the lands located below the high water line along the 89-mile study segment, as “affected by the principles of accretion, erosion, and avulsion” — that is, as those principles have changed the boundaries of the land that the state is claiming. Thus, the notice leaves it up to a potentially affected property owner or other interested party to, first, figure out where the river channel was in 1859 and, then, apply the legal principles governing water boundary movement — that is, “accretion, erosion, and avulsion” — to try to ascertain the specific parameters of the state’s claim in relation to existing property lines. As discussed above, the legislature placed that burden on the state, not on potentially affected property owners.
The state contends that the legislative history supports its view that the administrative procedure established by the legislature in
Nothing about that lack of finality, however, demonstrates that the legislature intended, as the state now contends, to “permit [] the state to assert ownership of the waterway prior to determining exactly how the course of the waterway had changed [through the process of accretion, erosion, and avulsion] since the date of statehood.” And, there is nothing in the history proffered by the state (or that we have found) that speaks directly to the question of the meaning of
The impetus for the bill arose out of a dispute between the state and property owners along the Sandy River after the Division of State Lands, through the Department of Revenue, directed Multnomah County to alter its records to reflect state ownership, under the equal-footing doctrine, of the bed and banks of the Sandy River. See, e.g., Testimony, House Committee on Natural Resources, Subcommittee on Energy and Environment, HB 2697, Mar 8, 1995, Ex K (statement of John R. Urquhart, property owner). The affected property owners did not learn of the purported ownership change until they received their property tax statements, which reflected less land than described in their deeds. Id. The bill — as revised by a workgroup appointed for that purpose — required the board to establish rules for making navigability determinations that would “make sure that people have had an opportunity to get their two cents [in] on whether a given river is navigable or whether the high water line is in one place or another.” Tape Recording, House Committee on Natural Resources, Subcommittee on Energy and Environment, HB 2697, Mar 30, 1995, Tape 46, Side A (statement of William Holmes). As the director of the Division of State Lands explained, the bill “provides a process for the Division of State Lands to use when we make navigability claims of state waterways to determine what is state owned and what is not.” Tape Recording, Senate Committee on Water and Land Use, A-Engrossed HB 2697, May 18,1995, Tape 148, Side A (statement of Gary Gustafson) (emphasis added). The state’s notice, claiming ownership to lands below the ordinary high water line of the river segment “as affected by the principles of accretion, erosion, and avulsion,” without more, fails to accomplish that legislative purpose.
In short, the text, context, and legislative history of the statute indicate that, although a specific legal description of the state’s claim is not required, the notice of declaration must provide enough information to allow an ordinary person who might be affected by the declaration to ascertain the boundaries of the state’s claim in relation to existing properties. The state’s notice in this case did not do that. Thus, whatever the exact parameters of
Given that conclusion, it is not strictly necessary for us to resolve the state’s third assignment of error, which challenges the circuit court’s conclusion that the declaration also fails because
Petitioners argued below that the authority for the state to claim “formerly submerged lands” is governed exclusively by a different statutory procedure —
“ORS 274.960 clearly was designed to deal with lands considered to be formerly submerged. *** Since such lands were not included inORS 274.400 - 274.412 the declaration in this case cannot be used to claim such lands, and for this reason the declaration also fails.”
(Underscoring in original.) As explained below, we conclude that the court erred in granting petitioners’ motion on that basis.
As mentioned earlier,
The state disagrees, arguing, as we understand it, that the state’s claim of ownership under the process established in
Although imperfect, we conclude that the state’s reading best harmonizes the two statutory schemes. See State ex rel DHR v. Lewelling,
First, it is beyond dispute that
Moreover, the text, considered in context and in light of the legislative history of
“(a) Uncertainty exists as to the nature and extent of the state’s interest in land formerly submerged or submersible lands [sic] within the bed and banks of navigable bodies оf water in this state.
“(b) Such uncertainty causes conflicts in the use and ownership of such land, endangers the rights and titles of landowners and restricts the development of the economic, scenic and recreational potential of such lands.
“(c) Although the State Land Board and the Department of State Lands are authorized by law to negotiate settlements with respect to the ownership of such lands, action by the State of Oregon to determine and assert its interests, if any, in such lands is necessary for a prompt and orderly resolution of such uncertainty.”
“The Legislative Assembly finds],] therefore, that it is in the public interest to direct the State Land Board and the Department of State Lands to continue the study of the Willamette River and to conduct studies of the lands formerly submerged or submersible within other navigable bodies of water in this state and, at the conclusion of each such study, to resolve conflicting ownership claims between the state and private owners by asserting interests remaining or vested in the state in such lands.”
(Emphasis added.) From that expression of the legislature’s intentions, it is certainly conceivable that the legislation was directed to land formerly underlying waterways, like the Willamette River, that were already understood to be navigable and as to which conflicting claims of ownership had arisen.
The sparse legislative history provided by the state also supports that view.
Although petitioners are correct that the text does not specifically limit the statutes’ reach in that way, given the history and context, it is likely that the legislature’s references to “navigable bodies of water” in
III. CONCLUSION
In sum, we affirm the circuit court’s ruling that the board’s declaration of navigability of the 89-mile study segment of the Rogue River, dated June 10, 2008, must be set aside in its entirety on the ground that it failed to satisfy the requirements of
General judgment reversed in part and remanded; supplemental judgment vacated and remanded.
Notes
The mile numbers begin at the river’s mouth; thus, RM 0.0 is at the river’s confluence with the Pacific Ocean. The city of Grant’s Pass is near RM 100.
Petitioners (respondents on appeal) are property owners along or adjacent to the portion of the Rogue River that is at issue in this case.
The circuit court upheld the board’s determination of navigability as to river miles 68.5 to 100. Petitioners do not cross-appeal with respect to that ruling.
Because the issue is likely to arise on remand, we also address the state’s challenge to the circuit court’s conclusion that the declaration is unlawful for the additional reason that it claims dry land in violation of Oregon law. As to that point, we agree with the state that the circuit court erred.
In Land Bd. v. Corvallis Sand & Gravel,
“The original states, by virtue of their sovereignty, succeeded to title held by the English crown to the beds of the navigable waters within their boundaries. When additional states were admitted to the union, they were admitted on an equal footing with the оriginal states and, therefore, they also acquired title to the beds of their navigable waters except any portions which had passed into private ownership prior to statehood.”
(Footnotes omitted.)
At statehood, a state also receives ownership of lands beneath tidal waters — that is, those influenced by the ebb and flow of the tide — without regard to the “navigable in fact” test. Phillips Petroleum Co. v. Mississippi,
Although The Daniel Ball was an admiralty case, the Court has adopted the same test for determining “title navigability.” See, e.g., PPL Montana, 565 US at___,
The request for a navigability study of this portion of the Rogue River was initially made in 1997 by the Josephine County District Attorney, who sought to clarify ownership and resolve actual and potential conflicts between river users and land owners along that stretch of the river. For a complete procedural history of the navigability study, see the Rogue River Navigability Report, pages 8-11, available at http://www.oregon.gov/dsl/NAV/pages/rogue_intro.aspx (accessed Oct 6, 2015).
As discussed in more detail below,
As the department explained to the board, “[i]f the river is determined to be navigable, and therefore state-owned, a cloud on title will result where avulsion has occurred. The agency will need to work with those landowners affected by avulsion to resolve ownership issues.”
Petitioners did not initially move for summary judgment on the first issue — that is, on the ground that the board had erred in determining that the study segment was navigable. However, after the circuit court denied the state’s motion for summary judgment on that ground as to RM 100 to 157.5, petitioners filed a second motion for summary judgment, contending that, as determined by the circuit court, the board’s declaration of ownership for that portion of the study segment “must he set aside because it is not supported by substantial evidence in the record.” As do the parties, we consider the parties’ respective motions on the issue as cross-motions for summary judgment.
Intervenors Association of Northwest Steelheaders, Rogue Riverkeeper, and Northwest Environmental Defense Center joined in the state’s motion for summary judgment and opposition to petitioners’ motion for partial summary judgment. Those parties do not appear on appeal.
OES 183.500 provides:
“Any party to the proceedings before the circuit court may appeal from the judgment of that court to the Court of Appeals. Such appeal shall be taken in the manner provided by law for appeals from the circuit court in suits in equity.”
As noted, petitioners do not cross-appeal with respect to the circuit court’s ruling that the board’s determination of navigability as to the lower portion of the river — RM 68.5 to 100 — was consistent with federal law and supported by substantial evidence.
The specific findings themselves are undisputed; that is, petitioners do not contend that they are not supported by substantial evidence in the record.
More specifically, the court concluded that “there is not substantial evidence in the agency record to support a finding of navigability for this portion of the river.”
In United States v. Utah,
“[The state,] with its equality of right as a State of the Union, is not to he denied title to the beds of such of its rivers as were navigable in fact at the time of the admission of the State either because the location of the rivers and the circumstances of the exploration and settlement of the country through which they flowed had made recourse to navigation a late adventure, or because commercial utilization on a large scale awaits future demands. The question remains one of fact as to the capacity of the rivers in their ordinary condition to meet the needs of commerce as these may arise in connection with the growth of the population, the multiplication of activities and the development of natural resourсes.”
As a result, we need not address the parties’ arguments with respect to evidence of post-statehood ferry use, except to note that such usage would not, in any event, defeat a finding of navigability based on the other evidence.
The Court observed that “[m]odern recreational fishing boats, including inflatable rafts and lightweight canoes or kayaks, may be able to navigate waters much more shallow or with rockier beds than the boats customarily used for trade and travel at statehood.” PPL Montana, 565 US at___,
“¿raft” 0f a ship is “the depth of water a ship draws esp. when loaded.” Webster’s Third New Int’l Dictionary 683 (unabridged ed 2002). In this context, “draw” means “to require (a specified depth) of a supporting medium in which to float <a ship that ~s 12 feet of water>.” Id. at 686.
We reject petitioners’ argument that the state’s evidence fails because there is no evidence of Native American use of dugout-type canoes specifically on that portion of the river. That understanding would, in many instances, essentially negate the susceptibility-of-use standard of navigability. In our view, the state’s comparison of present-day watercraft with watercraft in use for trade and travel in the general area (for example, on the lower portion of the study segment) and throughout the Oregon territory was reasonable and suffices under the PPL Montana test. Cf. Northwest Steelheaders Ass’n,
In PPL Montana, the Court confirmed that “a river need not be susceptible of navigation at every point during the year,” but “neither can that susceptibility be so brief that it is not a commercial reality.” 565 US at___,
Similarly,
“(a) States the nature and extent of the state’s claim to the land underlying the subject waterway segment; [and]
“(b) Clearly describes the location of the land claimed by the state using common descriptions or maps designed to identify the land or waterway segment in a manner intelligible to the lay person and useful in establishing the exact location of the state claim in relation to existing legal descriptions [.]”
24 Under
The declaration also described the general area of the study section:
“The 89-mile study segment of the Rogue River is located in Josephine and Jackson Counties. The confluence of Grave Creek with the Rogue River is at River Mile 68.5 on the Rogue River and within Section 1, Township 34 South, Range 8 West of the Willamette Meridian within Josephine County. Lost Creek Dam (also known as the William L. Jess Dam) is on the Rogue River at River Mile 157.5 and within Section 26, Township 33 South, Range 1 East of the Willamette Meridian within Jackson County.”
The state does not contend — nor credibly could it — that that general description adds anything to our analysis of the state’s claim of error.
It is undisputed that major changes to the study segment of the Rogue River have taken place since statehood as the result of both accretion and avulsion. “Accretion” refers to gradual changes in the course of a river or the contours of its banks; under common-law principles, where there have been changes due to accretion, the boundary line follows thе water, even though the changes may have altered the actual location of the high-water line. Land Bd. v. Corvallis Sand & Gravel,
As support for that proposition, the state also cites
“Nothing contained in this section is intended to affect the ability of a court of competent jurisdiction to make a determination with respect to a private claim to or interest in real property.”
As discussed below, we do not disagree with the state that the declaration was not intended to be a final determination of property lines, as the subsection confirms. The problem with the state’s argument is that it does not lead to the conclusion that the state wishes us to draw, viz., that its notice was sufficiently descriptive to meet the requirements of
Except as it may be modified on judicial review, the state’s declaration is “binding on the State of Oregon with respect to the interest, if any, of the State of Oregon in any land or waterway described in the declaration.”
Specifically, petitioners argue that, “[w]hen the legislature enacted
Nothing in the legislative history of HB 2697 (1995), enacting
Petitioners do not proffer any legislative history; nor do they address the history offered by the state.