NW Oregon trip

[Rick J]

Bruce and I just got back from our trip to NW Oregon where we fished with Scott O for two days and fished on our own for one. Drove up last Friday and it was snowing, hailing and sleeting from Eureka all the way to Tillamook right at sea level - nasty drive - only river that looked fishable going up was the Elk. Fished on Sat - went up to look at the Salmonberry- very pretty stream but 17 cars at the confluence and most of the fly fishers were using indicators so we passed and headed over to the Wilson - great water but no fish - managed to break my Scott 1509 (heard a crack).

Next day met Scott and we went to the Trask - gorgeous water - both Bruce and I hooked screamer fish - see attached photos. Got into it with a property owner who said we were on his land even though we were in the water - Scott said call the cops which he did - Sherriff came out and we had a discussion and Scott would not budge so he called the State police (game wardens up there) - seems the jurisdiction is quesionable as the river was never classified as navigable. So Scott is going to try to fight this fight next!

Next day went to the Nestucca - great conditions but slow - I managed one runback but strill a great trip. Smith looked great on the way back though a bit high.

http://i15.photobucket.com/albums/a395/RickJ/oregon-matole-2006046.jpg
http://i15.photobucket.com/albums/a395/RickJ/March2006015.jpg

http://i15.photobucket.com/albums/a395/RickJ/March2006018.jpg

[bigtj]

Glad to hear you had a great trip. Save yourself some time driving next time...use the 5 and cut in where you're going...that coast road is tough. It's good you made it safe.

Please don't take this the wrong way but I think your guide showed terrible judgment, if a property owner requests you leave the safest course of action is to leave, then contact the sheriff yourself if the owner is menacing, which is also against the law. Stream access is a hot button topic in the state of Oregon right now and the only thing your guide accomplished is to polarize landowners against fishermen and other recreational users. Here is a snippet of guidelines given by the state for these situations:

Recreational use of state-owned waterways is a privilege enjoyed by many Oregonians and visitors. However, misuse and abuse of this privilege can lead to restrictions. The Department of State Lands and the State Land Board urge you to be a responsible user of public lands and waterways, obey all authorized closures, restrictions and postings, and exercise basic common sense, courtesy and consideration for others.

When using Oregon´s waterways:

* Always get the landowner’s permission to cross private land to get to the waterway.
* Be sure to launch and take out your boat at public launches or parks.
* Avoid conflicts with landowners.
* If you see trash, pick it up and carry it out, but avoid trespass to do so.
* Obey laws and common rules of decency at all times.


Showing respect to landowners is the only way to get concessions from them. As far as your guide fighting the fight, he's lucky he didn't land you three in court. That would not have been much fun. And I'm sure the sheriff and the state police had more important issues to deal with.

There are a number of organizations who are fighting to maintain public access in Oregon like Oregon river rights (you can join for $10/year)
http://www.oregonriverrights.com/
or NORS http://www.adventuresports.com/river/nors/states/or-menu.htm
Supporting these groups is a much better way to get things accomplished than getting landowners in a tiff and wasting the time of the local sheriff and state police. This battle will ultimately be solved in court not on the river.

Sorry to hear about your run-in with the landowner. There is plenty of good water up there for everybody to share.

[Rick J]

I-5 would have been alot worse on that particular drive as snow was down at sea level - would have been really nasty going over 199 to Grants Pass and up 5 - we came back that way and it is faster. But we wanted to check out the coastal rivers on the way up

[bigtj]

Rick,

I've done both routes lots of times...so many big rigs on the road on I-5 it keeps the road wet and not slippery even if the snow level is down it's usually better than the coast driving wise...and at least there are highway patrol and road maintenance around should you get in trouble...siskiyou pass can be bad but with 4wd it's usually just 35 mph and be careful..but yes the drive is totally worth it on the coast 100% for sightseeing. There are some great rivers over there!

Thanks for the pictures. I'm headed to that neck of the woods next week can't wait.

[Hairstacker]

Hey Rick, sounds like you got into some good fish despite the challenges, good for you guys! Sorry to hear about the rod.

[bubzilla]

Next day met Scott and we went to the Trask - gorgeous water - both Bruce and I hooked screamer fish - see attached photos. Got into it with a property owner who said we were on his land even though we were in the water - Scott said call the cops which he did - Sherriff came out and we had a discussion and Scott would not budge so he called the State police (game wardens up there) - seems the jurisdiction is quesionable as the river was never classified as navigable. So Scott is going to try to fight this fight next!

This is a major problem in Oregon, and the rivers that empty into the Tillamook Bay are among the most likely to find a conflict.

Linked below is the Oregon Attorney General's Formal Opinion on this subject issued last year. Please don't confuse the term "opinion" as used in this case with the word in its normal usage. We all might have opinions, but there are some people whose opinions are a little more important than others when it comes to the law. After all, we call the judgments of the United States Supreme Court "opinions" too. And, although the AG's opinion does not have the same impact as an opinion of a court, it is formal opinion of the state's head law enforcement officer.

Here's a link to the complete opinion. Pay particular attention to the section dealing with the Public Use Doctrine which exists independently of navigability determinations related to the federal title-navigability standard. You might suggest to your guide that in the future he carry a copy of this opinion so that he can let any OSP officers know what their boss has to say on the subject.

http://www.doj.state.or.us/AGOffice/agopinions/OP_8281.pdf

Here's the website of an organization formed last year to fight efforts in the Oregon Legislature to curtail public river access rights. If you'd like to support river access rights in Oregon, this is the organization to support at this point.

http://www.oregonriverrights.com/rights.htm

Here's a portion of a summary of the AG's opinion completed by the Oregon Division of State Lands that deals specifically with the Public Use Doctrine.

"B. Doctrine of Public Use


The Oregon Supreme Court identified and developed the public use doctrine between 1869 and 1936. The opinion concludes that this common law doctrine continues to authorize public use of waterways that are navigable-for-public-use.


The public use doctrine provides that the public holds a right to use all waterways that are navigable-for-public-use, independent of whether the soil underlying the waterway is in private ownership. The overarching consideration for persons using a waterway subject to the doctrine or owning adjacent land is that both have the right to reasonable enjoyment of their rights without unnecessary interference from the other.


A waterway is navigable-for-public-use if it has the capacity, in terms of length, width, and depth, to enable boats to make successful progress through its waters. DSL’s best judgment is that the test:

Is applied to a waterway or a waterway segment.

Examines the capacity of use rather than the actual use of the
waterway.

Is applied at the time of use.

Is applied to the waterway in its natural condition.

May be satisfied if the boat is small and used only for pleasure.

Does not include a “highway of commerce” component.

Under the public use doctrine, the public may use a waterway below the line of ordinary high water to boat or fish from a boat for pleasure or for profit, and to drive saw logs to market. The opinion concludes that Oregon’s appellate courts would also hold that the doctrine authorizes other water-dependent uses below the line of ordinary high water. Such uses include bathing, swimming, fishing on foot, hunting from a boat, and
other similar uses requiring the use of the water. And the opinion supports that Oregon’s appellate courts would hold that the doctrine authorizes uses below the ordinary high water line that are incidental to water-dependent uses. Such uses include camping when traveling the waterway for a long distance, walking around obstacles, waiting on a gravel bar for other members of a group to arrive, collecting a duck killed by a hunter from a boat, repairing a hole in an inflatable raft, and other uses that are secondary to a water dependent use.


In addition, the opinion concludes that the public may use the upland (the area above the line of ordinary high water) along the waterway as long as the use is incidental to the lawful use of the waterway, and is necessary as compared to merely convenient. In this context, DSL believes that “necessary” does not mean that there must be a medical emergency. To illustrate, boaters may move cargo, people, and a boat over upland to go around a set of falls, but they must return to the area below the line of ordinary high water as soon as reasonably possible. They cannot use upland to sit in the sun and enjoy lunch. An angler walking along the bed of a waterway may move over upland to go around a deep pool surrounded by sheer cliffs. In contrast, it will rarely be necessary to camp on upland. The public may not use privately owned uplands to access or leave a waterway, except possibly when there is a severe medical emergency.


There is one additional limit on all of these uses. The public must use reasonable and prudent care. This is both a limit on the types of uses that may occur on a specific portion of a waterway, and notice to users that they will have to pay for the damage they cause to the land or personal property of the riparian landowner if they act negligently.


C. Public Uses in the Absence of a Determination Concerning Ownership

Under current statutes, the State Land Board is the only state entity that may take a position on behalf of the state when ownership of a non-tidal waterway is at issue. The Board may assert or determine the ownership of a specific non-tidal waterway only after litigation or by a final declaration after a formal navigability study. This restricts the state’s ability to manage its non-tidal waterways, but it does not alter the fundamental general principle that the state has always owned, and continues to own, both tidally-influenced and title-navigable waterways.


The current law, however, does not restrict individual members of the public. A person may use a state-owned waterway that has not yet been determined to be state-owned. In addition, a person may use waterways that are subject to the public use
doctrine. But that person risks incurring liability for trespass in the event that the waterway turns out to not be state-owned and not subject to the public use doctrine."

[Jasonh]

Nice pics and report Rick. I have wanted to get up to NW Oregon and fish some of those rivers. I will have to put that on my to do list for next year. Keep up the good work with that spey rod!

Jason Hartwick

[jbird]

Nice report. Beautiful fish! Sorry about the landowner confrontation. Some of us Oregonians are wound too tight! :roll:

JAy

[sculpin]

Nice report about your trip up north. To bad about the rod and the incident with the land owner. There are a lot of new people moving to Oregon and some don't understand the historical usage of the rivers. They think , I own it so everyone off the river. I can't fault your Guide for standing his ground. Although it is tough for clients to enjoy the trip with all the controversey.

Mark

[Bruce Slightom]

Well , it was a good trip. Rick does not feel that a trip is successful unless he breaks a rod. The fish that Rick is holding is his first tube fly fish! Welcome to the dark side!

[Adam Grace]

I'm glad you guys had fun.