Navigability and Public Use: Charting a Course Up the Sandy River
By Jennie L. Bricker
7/1/2001

The controversy in this case concerns more than cold legal doctrine. The particular facts of this case . . . illustrate how unfortunate it is for the Court to recognize a claim that appears belated and opportunistic. Justice Sandra Day O'Connor, dissenting in Phillips Petroleum Co. v. Mississippi, 484 U.S. 469, 492.

I. INTRODUCTION

The Sandy River begins halfway up the west face of Mt. Hood, fed by the Reid and Sandy Glaciers, and then descends eighteen miles to Brightwood at a sharp grade. At Brightwood, river mile 38, the gradient decreases, then levels out even further at Dodge Park (river mile 18.6) until the river empties into the Columbia near Troutdale, Oregon.² The Sandy, with its bed of loose gravel over a channel of basalt, provides high-quality habitat for wild and hatchery salmonids, including Lower Columbia River Chinook Salmon and Lower Columbia River Steelhead, both listed as threatened under the Endangered Species Act.³ Consequently, and because of its proximity to Portland, Oregon, the Sandy River is popular with anglers and other recreational users. Because much of the property along the river is in private ownership, conflicts are common between anglers and property owners, and the legal parameters for the respective rights of each are unclear or at least not well understood.⁴ For many of these reasons, the Sandy River Chapter of the Association of Northwest Steelheaders, an organization promoting recreational river use, requested in 1996 that the Oregon Division of State Lands ("DSL") initiate a "navigability study" of the Sandy River to determine whether its submerged and submersible lands are in state or private ownership.⁵

Private property ownership has - for good or ill - characterized the use of real property in the United States since Europeans first settled the continent. Oregonians, in particular, tend to fiercely defend their rights in private property and strenuously resist any threat of government interference. This became apparent in election year 2000, when state voters passed Measure 7, a takings initiative that would have provided compensation to property owners for any diminution in property value resulting from government action. Had it taken effect, Measure 7 would have eviscerated Oregon's comprehensive system of land use laws and cost state and local governments an estimated $5.4 billion per year.⁶

In this climate, Oregon's Land Board voted in June 2000 to initiate a navigability study of the Sandy - a river that was described by government surveyor Lafayette Cartee in 1854 as "not navigable for any kinds of boats or scarcely for canoes, it being very rapid and having sand bars which are constantly changing their positions."⁷ Most of the riparian owners have deeds that describe their property to the thread of the river, many paid per-acre prices that included the state-claimed submerged and submersible lands, and most or all have paid property taxes on those lands. Nevertheless, on February 2, 2001, DSL announced its preliminary finding that the Sandy River is navigable from its mouth at the Columbia River all the way to river mile 37.5.

This article provides a context for, discusses, and evaluates the Division's finding. Part II summarizes the history of the relevant law, including the development of the navigability test by federal courts as well as the treatment of navigable waterways under Oregon law. Part III describes the characteristics and history of the Sandy River. Parts IV and V provide an analysis of the effect of federal and state law on the classification of the river and the state's potential claim to its bed and banks. Part VI sets out a proposal for state management of the Sandy River, without a state claim of ownership. The best vehicle for management, the article concludes in Part VII, is found under Oregon law, not in the federal test for title navigability.

II. HISTORY OF THE LAW

The ownership and use of Oregon waterways are determined by two primary legal doctrines: Navigability for title, a federal doctrine, and the so-called "floatage easement," a right of public use created under Oregon law. Since statehood, those doctrines have developed in wholly separate channels. If the DSL's assertion of title is successful on the Sandy River, the two channels will essentially converge.

As each state was admitted into the Union, title to the shores and beds of "navigable waters" within that state passed from the federal government to the state, as an attribute of its sovereignty.⁸ A river is navigable for the purpose of establishing whether such title passed if, at the time of admission, the river was capable of use for trade and commerce. Such navigability is evaluated under federal law and can only be determined, in the final analysis, by federal courts.⁹

Federal law on the subject evolved with the country's evolution. In the 1840s, the Supreme Court, in Martin v. Waddell¹⁰ and Pollard's Lessee v. Hagan,¹¹ established that each state received title to the bed and banks of her navigable waters at statehood, but it wasn't until 1870 that the Court provided a definition for navigability. That definition finally appeared in an opinion concluding that the steamship, Daniel Ball, was subject to federal licensing requirements because it had been travelling in navigable waters of the United States.¹² Even though the case concerned navigability for admiralty jurisdiction, the same test has been applied in the context of navigability to determine title and navigability to determine the reach of the commerce power.¹³ The definition provided the following test:

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 over water.¹⁴

Another admiralty case, The Montello,¹⁵ followed in 1874 and added an important expansion to the Daniel Ball test - obstacles to or difficulties with navigation would not defeat a finding of navigability, so long as the river, overall, would "afford[] a channel for useful commerce."¹⁶ The Fox River, the Court concluded, was such a channel, even though portions of the river were difficult or impossible to navigate. The Montello offered another, more subtle, contribution to the test for navigability: It was the first case to mention logs, which would become a crucial issue on the Sandy River. In emphasizing that the "mode" of commerce is unimportant, Justice Davis remarked that to hold otherwise would deprive the public "of the use of many of the large rivers of the country over which rafts of lumber of great value are constantly taken to market."¹⁷ Justice Davis likely had in mind the great log rafts then being floated to market down large rivers like the Mississippi, rafts so large they supported crews, sleeping quarters, and sometimes additional cargo such as grain.¹⁸ In fact, Justice Davis concluded the discussion about modes of transportation by quoting the following language from a Massachusetts supreme court opinion: "It is not every small creek in which a fishing skiff or gunning canoe can be made to float at high water which is deemed navigable."¹⁹

The import of Justice Davis's log rafts was addressed and circumscribed twenty-five years later, in United States v. Rio Grande Dam & Irrigation Co.,²⁰ a case that concerned the defendant company's right to build a dam across the Rio Grande in New Mexico. The United States contended that the river was navigable within New Mexico, but the Court examined the evidence and found this portion of the river nonnavigable. Quoting from The Montello, and distinguishing Wisconsin's Fox River from the relevant stretch of the Rio Grande, the Court said: "The mere fact that logs, poles, and rafts are floated down a stream occasionally and in times of high water does not make it a navigable river."²¹ The Fox River, the Court commented, possessed a "general capacity for navigation along its entire length," even though it contained occasional obstructions or challenges to navigation.²² In contrast, the relevant reach of the Rio Grande could only be used "for any purposes of transportation . . . only in times of temporary high water."²³ Thus, as the twentieth century began, Supreme Court jurisprudence told us that the mode of travel was unimportant, and could include one-way travel by log rafts. Moreover, a river could be navigable even though it contained obstacles to navigation, so long as the river could be generally characterized as navigable.

As the test for title navigability developed in the twentieth century, the Court remained loyal to the basic precepts set out in The Daniel Ball and The Montello, as circumscribed in the Rio Grande case. In the 1920s, the Court decided against Oklahoma ownership of the Red River²⁴ and the Arkansas River²⁵ , but concluded that Minnesota's Mud Lake was navigable and in state ownership.²⁶ On the Red River, small boats had, for a few years of the nineteenth century, transported merchandise and farm produce, but only during periods of high water, and only with difficulty.²⁷ This use ceased when rail transport became available.²⁸ The Court concluded that the river's "characteristics are such that its use for transportation has been and must be exceptional, and confined to the irregular and short periods of temporary high water. A greater capacity for practical and beneficial use in commerce is essential to establish navigability."²⁹ In the Arkansas River case, the Supreme Court adopted the trial court's finding that the disputed portion of the river was not navigable; the district court had concluded, despite some evidence of occasional boat travel and log drives: "The use of that portion of the river for transportation boats has been exceptional and necessarily on high water, was found impractical, and was abandoned. The rafting of logs or freight has been attended with difficulties precluding utility. There was no practical susceptibility to use as a highway of trade or travel."³⁰ Thus, while the Court decided against navigability on the Red and Arkansas Rivers because transportation had been too exceptional to render those waterways useful as highways for commerce, the Court made the opposite determination on Mud Lake: While the evidence showed there had been "periods of great drought" when boat travel was difficult, the difficult periods were "exceptional," and dependable travel was the norm.³¹ Thus, Mud Lake afforded a useful highway for commerce and was navigable for title.³²

Two important title navigability cases emerged from the 1930s. In United States v. Utah,³³ the Court held that portions of the Colorado, Green, and Grand Rivers were navigable and in state ownership. Consistent with past precedent, the Court relied on findings by the special master that the waterways were useable "during at least nine months of each year," not just during "short periods of temporary high water."³⁴ The Utah decision is most notable for its development of the "susceptibility" aspect of the federal test. The Court had sparse evidence of actual use of the three rivers in question, and most of the actual use was private rather than commercial.³⁵ The Court attributed the lack of evidence to the pattern of settlement in Utah, and insisted that, where factors such as nonsettlement could explain the limited use of a river, "susceptibility to use as a highway of commerce may still be satisfactorily proved."³⁶ Thus, the Court relied primarily on evidence of the rivers' physical characteristics.³⁷ The second case, United States v. Oregon, involved Lake Malheur, Harney Lake, and Mud Lake, which Oregon contended were in state ownership by operation of ORS 274.430,³⁸ a proclamation that the title to all meandered lakes was vested in the state. Rejecting Oregon's attempt at acquiring federal land by "legislative fiat," the Court held all three lakes nonnavigable.³⁹ The evidence established that the lakes, though thousands of acres in size, were shallow and, in dry seasons or sometimes for an entire dry year, consisted of "a few acres of disconnected ponds surrounded by mud."⁴⁰ There was evidence that small, light boats traveled the lakes, but boat use was not commercial and was characterized by "many difficulties" and lengthy portages. ⁴¹ The presence of tules and other vegetation blocked off large areas of the water and, although a boater could find passage through a "labyrinth of channels leading to no definite or certain destination," the Court concluded that the lakes lacked the "navigational capacity" necessary to satisfy the test.⁴² Specifically, the Court found that the evidence failed to establish "that capacity for general and common usefulness for purposes of trade and commerce which is essential to navigability."⁴³

In 1953, Congress codified the common-law rule of state sovereign rights to submerged and submersible lands and the Equal Footing Doctrine.⁴⁴ The Submerged Lands Act, however, did not attempt to codify or clarify the navigability test itself. The Supreme Court did not do so again until 1971, when it made use of the test to conclude that the Great Salt Lake had been navigable in 1896 and was consequently in state ownership.⁴⁵ Historical evidence showed that the lake had been used sparsely, by only a few boats, to transport livestock and other cargo. Justice Douglas authored a short opinion that summarized the evidence with little analysis, other than the Court's basic conclusion: "The lake was used as a highway and that is the gist of the federal test."⁴⁶ The 1980s produced a few opinions that dealt with state title to submerged and submersible lands, but none in which the Court was called upon to apply the test for navigability.⁴⁷ In fact, the Court has not applied that test since Utah v. United States thirty years ago, and it has not delved into the test's components with any rigor since at least 1935. It has been left to the federal Courts of Appeal to carry the law of title navigability into the twenty-first century.

Since the Supreme Court last spoke on the subject, the Ninth Circuit has extended the navigability test into previously uncharted waters. In 1917, however, the law in the Ninth Circuit comported with Supreme Court jurisprudence; in North American Dredging Co. v. Mintzer,⁴⁸ the court concluded that a mile-long tidal slough was nonnavigable for title.⁴⁹ Despairing of its ability to state any "very exact rule" for navigability, the court quoted extensively from an Eighth Circuit case, which characterized a navigable stream as having "practical usefulness to the public as a public highway in its natural state and without the aid of artificial means. A theoretical or potential navigability, or one that is temporary, precarious, and unprofitable, is not sufficient."⁵⁰

By 1982, when the Ninth Circuit reversed the U.S. District Court for the District of Oregon to declare the McKenzie River navigable,⁵¹ the current had shifted. The McKenzie is a mountain stream with an average volume of 2,240 cubic feet per second (cfs) at river mile 37.4, which is about the point where state ownership begins.⁵² The evidence in the McKenzie case was limited to log drives that occurred for a period of seventeen years in the late nineteenth and early twentieth centuries.⁵³ That evidence showed that the drives were difficult, requiring large crews that blew up log jams with dynamite, dragged stranded logs across gravel bars, and used horses to pull logs free when they would not float. As attorney Don Morgan wrote in his opening brief for the defendant property owners, to say that the McKenzie was "floatable" was an overstatement: "It is not entirely accurate to say logs were 'floated' down the McKenzie. In truth, logs were hauled, pushed, rolled, blasted and pulled down the channel. The waters of the river were more of a lubricant than a vehicle of transportation."⁵⁴

Then-magistrate judge Michael Hogan, hearing the case for the federal district court of Oregon, agreed.⁵⁵ First, he concluded that the river could only be used as a channel for commerce "during sporadic, unpredictable periods" for an average period of 53 days each year. Second, he summarized evidence that wing dams were used to increase water volume, and that, in 1907, a large rock, notorious for creating logjams, was blasted apart with dynamite. Such evidence indicated, he held, that the river's capacity for use as a highway for commerce was based, not on its ordinary and natural condition, but upon artificial improvements. Third, he concluded that the enormous difficulties associated with the log drives showed that the river had no practical use as a highway for commerce.⁵⁶

The defendants had also argued in the alternative that, even if the McKenzie were navigable at statehood, early Oregon Supreme Court cases explicating the floatage easement had the effect of passing title to the riparian owners by operation of law. Magistrate Judge Hogan did not reach this issue because he determined that the McKenzie was not navigable for title.⁵⁷ The state appealed his decision.

The Ninth Circuit discounted the significance of evidence that the drives had been fraught with difficulty, concluding that "notwithstanding such difficulties, thousands of logs and millions of board feet of timber were driven down the river."⁵⁸ The court was similarly untroubled by the fact that the drives could only be conducted for three months out of the year. The use was not "occasional," the court reasoned, because the drives occurred regularly, for seventeen years. The court was, again, impressed by volume: "Thousands of logs and millions of board feet of timber were driven down the river. Such use of the McKenzie was not 'occasional.'"⁵⁹ Finally, the court concluded that the use of wing dams⁶⁰ and dynamite to force logs downriver did not defeat the component of the test that requires a waterway to be evaluated in its "ordinary, unimproved condition," because such devices did not "improve the river" and "b[ore] little resemblance to the planned civil engineering projects considered to be reasonable improvements in United States v. Appalachian Electric Power Co."⁶¹

Since the McKenzie case, the Ninth Circuit has decided that the lower Gulkana River in Alaska is navigable.⁶² The court corrected the district court's erroneous reading of the Daniel Ball case and its corresponding conclusion that only "travel," not "trade" was necessary for navigability.⁶³ Nonetheless, despite affirming that the test still must include "an element of commerce," the appeals court based its finding of navigability entirely on evidence of recreational use, which, it reasoned, was of a type that demonstrated that the river was susceptible of use in commerce.⁶⁴ In Alaska v. United States, however, the Ninth Circuit backed away from its trend toward liberalization of the test, concluding that floatplane use on Slopbucket Lake did not make the lake navigable in 1959, when Alaska became a state.⁶⁵ However, an unpublished trial court opinion in 1994 continued the trend⁶⁶ in Oregon v. Tidewater Contractor, Inc.,⁶⁷ where the District Court for the District of Oregon held that the Chetco River was navigable based primarily on canoe travel by American Indians, and despite the fact that shallow water required the canoeist to pull the canoe over long stretches of the river.⁶⁸

The Ninth Circuit's first mistake in the McKenzie case was to set out on its analysis using its recent commerce clause case, Puget Sound Power & Light Co. v. FERC, as precedent. In Puget Sound, the appeals court held that Washington's White River was navigable for FERC jurisdiction under the Federal Power Act; it based its holding on use of the river for driving shingle bolts during a twenty-year period of the northwest's timber era.⁶⁹ In Alaska v. United States, the floatplane case, the court offers a cautionary note against mixing precedents: "Of course, we must consider the context in which a navigability determination is made before evaluating its precedential effect."⁷⁰ The court gave the McKenzie case as an example, assuring its critics that the court had relied on Puget Sound "only after considering the difference between title navigability and Commerce Clause analysis."⁷¹

The two tests are fundamentally different, however. The Supreme Court recognized this in another commerce clause case, United States v. Appalachian Electric Power Co. (also cited and mistakenly relied on in the McKenzie case), when it distinguished between "navigability to fix ownership of the river bed," which is determined on the date of statehood, and the two jurisdictional tests for navigability, regulation of commerce and admiralty jurisdiction, each of which may shift and expand with improvements to waterways, and even as engineering developments make improvements more feasible.⁷² The danger in liberalizing the test for title navigability to keep pace with the expansion of admiralty or commerce clause jurisdiction lies in the fundamental difference between the two types of navigability. Jurisdictional navigability affects the extent of federal regulation, but title navigability affects the ownership of land - something the law usually seeks to calcify rather than erode. There is a natural repugnance in the law - and in the American psyche - for legal rules whose functional effect is to disturb settled expectations by divesting property owners of their title. The main fault in the McKenzie case was that the Ninth Circuit took the test for navigability into a realm it had never visited in Supreme Court jurisprudence; no one familiar with the Court's title navigability cases would have predicted that the McKenzie River would pass the test.⁷³

In Oregon, the McKenzie case was shocking for another reason - it departed from the law set out by the Oregon Supreme Court over several decades. That law classified the McKenzie River as a "floatable" stream, subject to a "floatage easement" in favor of the public, but nevertheless in private, not state, ownership.

Ever since statehood in 1859, rules about the navigability of Oregon waterways have developed in the state courts, mostly to address the rights of timber companies to use streams to float logs to market. While navigability for title is a doctrine of federal law and controlled in federal courts,⁷⁴ the floatage easement - or the right of the public to float down or otherwise use a river that is floatable - is a doctrine created and controlled wholly under state law. Ironically, the DSL has chosen to assert title over the Sandy River (and virtually guarantee a long federal court battle) instead of opting for a solution it has the authority to implement - a legislative or administrative clarification of the floatage easement to ensure public rights of recreational use on the Sandy.

The floatage easement refers to a doctrine of Oregon law that describes the right of the public to use "floatable" streams and rivers, without regard to the ownership of their bed and banks. Unlike navigability, "floatability" does not implicate ownership: Oregon courts created a distinction between large waterways, like the Columbia and Willamette, that were navigable "in a legal sense" and therefore in state ownership, and waterways that, although in private ownership, possessed a "qualified navigability" for limited purposes (such as transporting logs or, later, pleasure-boating).⁷⁵ The bed and banks of a stream with qualified navigability were burdened with a right, in the nature of an easement, in favor of the public to use the stream as a "public highway" for the purposes for which the stream was suited - such as, during the influx of settlers and the height of the timber era, log drives.⁷⁶ The scope of this public right is not precisely determined. However, we know that the public has the right to float down, or navigate, a floatable stream and to use the banks up to the line of ordinary high water for uses incidental to such navigation - such as portaging around an obstacle or stopping in an emergency.⁷⁷

Prior to statehood, Congress passed the Oregon Donation Act of September 27, 1850, which required lands in the Oregon territory to be surveyed so they could be granted to settlers.⁷⁸ Those surveys were conducted in the Sandy River basin in 1854 by a surveyor named Lafayette Cartee. On February 14, 1859, the state of Oregon was admitted into the United States; the Admission Act stated the "all the navigable waters of said state, shall be common highways and forever free."⁷⁹ At the moment of admission, ownership to the bed and banks of all waterways within the state that were navigable under the federal test passed from the United States to the newly formed state of Oregon.⁸⁰

In 1859, no list of navigable rivers existed to inform the state and its citizens which waterways were in state ownership. Since the Columbia River was specifically mentioned in the Admission Act, that river was assumed to be owned by the state, and several early cases established that a good portion of the Willamette River carried the same assumption.⁸¹ As for the rest, Oregon's early understanding of public versus private ownership developed first in the courts.

The first case, Weise v. Smith,⁸² was an action by Peter Weise for recovery of damages caused by Samuel Smith, who had fastened a boom on Weise's property to catch saw logs being driven down the Tualatin River.⁸³ Justice Upton began his opinion with an examination of the Tualatin River's navigability, which he described as follows: "At the point of the alleged trespass, or a short distance above it, the river is not navigable for boats, but for the whole distance, the stream is available as a means of conveyance for saw logs."⁸⁴ Drawing on precedent from New York and Maine courts, Justice Upton then stated the principle of law that created Oregon's floatage easement:

A stream, which, in its natural condition, is capable of being commonly and generally useful for floating boats, rafts or logs, for any useful purpose of agriculture or trade, though it be private property, and not strictly navigable, is subject to the public use as a passage way."⁸⁵

The court concluded that Smith had an "incidental" right to "meddle with the bank" as part of his right of public use; thus, he was permitted to fasten his boom to Weise's land, so long as he removed it after a reasonable time and worked no "unnecessary intrusion" on Weise's premises. Weise, as a riparian property owner, had taken his title subject to the public's right of navigation.⁸⁶

Chief Justice Boise wrote a similar opinion in the same term, declaring that "[a]ny stream in which logs will go by the force of the water is navigable."⁸⁷ He explained his rationale for such a rule:

[T]hese rapid streams, penetrating deep into the mountains, are the only means by which timber can be brought from these rugged sections, without great labor and expense; and by their use large tracts of timber, otherwise too remote or difficult of access, can be rendered of great value, as the country shall grow and timber become scarce. The question as to whether the legislature has authority to declare a stream navigable, is not material here. There is no doubt but the legislature has the authority to regulate the navigation of these streams, . . . and it will undoubtedly express its authority in this respect, as this matter shall assume more importance.⁸⁸

The court's prediction proved accurate: The Oregon Legislature began enacting laws to facilitate stream transportation of logs by the booming timber industry. In 1874, the legislature passed a statute permitting "any person, association or corporation" to clear rivers of "debris," deepen their channels, and "blast[] and remov[e] rocks or ledges" so as to improve navigation.⁸⁹ The legislators did not comment on navigability per se or differentiate between rivers in private versus state ownership. However, in 1889, as the population grew and conflicts between logging interests and riparian property owners intensified, the legislature passed a statute designed to create a mechanism for timber companies to have "unnavigable streams" declared highways for log floatation. The law provided that, upon application by a company, state courts would declare "all or any portion of any river or stream . . . which has not been declared by law to be navigable, and which is not, in fact, navigable for commercial purposes, to be a public highway for the floating and transportation of logs."⁹⁰ The law also permitted the company to deepen, straighten, remove obstructions, and build wing dams along the waterway, but riparian owners could seek damages for injury to their land.⁹¹

In 1901, another statute clarified and improved the mechanism, giving companies the ability to record a map of a floatable stream in the county real estate records and giving them, in return, certain exclusive rights to run log drives.⁹² The statute concluded with the following clarification: "No river or stream shall be deemed or held navigable within the meaning of this act unless the same shall be navigable for general commercial purposes without improvement, and the fact that it may be possible to float logs, timber and lumber on such stream or river shall not constitute the same a navigable stream or river within the meaning of this act."⁹³ The 1901 law was held unconstitutional two years later because it contained subjects that were not reflected in its title.⁹⁴ Nevertheless, Section 12 of the ill-fated act codified Oregon lawmakers' understanding of navigability: "navigable," in the legal sense, meant navigable for commerce in its natural state, "without improvement"; floatable streams could be used for log driving, but that use alone did not make a waterway navigable.

The Oregon Supreme Court consistently treated the distinction between navigability and floatability as the settled law of the state in numerous decisions until well into the twentieth century; it has never contradicted or qualified that position. In Shaw v. Oswego Iron,⁹⁵ the court again addressed a dispute on the Tualatin River.⁹⁶ The case squarely presented the question of whether the Tualatin was navigable for title and thus in state ownership.⁹⁷ Justice Lord acknowledged that Weise v. Smith had already established that the same river was floatable; he framed the determinative question as whether its floatability meant that it was also navigable and its bed and banks owned by the state.⁹⁸ The court decided the answer was no -- a floatable river was in private ownership, subject to an easement in the public for the "navigation and commerce."⁹⁹

By the turn of the century, every Oregon stream or river capable of floating logs was being used by the timber companies for transportation.¹⁰⁰ During those years spanning the nineteenth and twentieth centuries, the Supreme Court decided many cases involving disputes between loggers and riparian property owners.¹⁰¹ Loggers were so desperate to get timber to market that they frequently crammed small streams with millions of feet of logs and caused significant damage to upland property. In some of those cases, the Supreme Court concluded that the stream in question was private, not subject to a floatage easement, because the attempted log drives had been largely unsuccessful and the waterways afforded no channel for useful commerce.¹⁰²

By the time the log drives dwindled in the mid-twentieth century, the scope of the floatage easement was, for the most part, well defined. If the general public could use a stream as a channel of commerce, it was a floatable stream and subject to the easement.¹⁰³ The "commerce" requirement has been qualified; two of the court's later floatage easement decisions appear to have extended the easement rights to include recreational use.¹⁰⁴ Whatever the nature of the use, the easement would attach even though a stream could only be used for a limited period each year.¹⁰⁵ The Supreme Court did not clarify whether a river had to be evaluated in its natural state to determine floatability. The Weise v. Smith court stated the rule as involving the waterway "in its natural condition,"¹⁰⁶ but later courts seemed to back away from that requirement, and certainly Oregon statutes that permitted blasting and clearing of river channels indicated that the "natural condition" requirement was no bar to public use.¹⁰⁷

More significantly, Oregon courts have never precisely established whether the floatage easement includes the right to wade, anchor, or stand on the shore below the high water mark. Some cases speak of a limited use of the bank "incidental" to navigation.¹⁰⁸ However, an unpublished trial court case in 1989 held that a defendant did not trespass against the upland owner when he stood on and fished from the bank of the Rogue River below the high water mark. Such use of the bank, the court concluded, was "ancillary" to the public's floatage rights.¹⁰⁹

The Oregon Supreme Court has had several occasions to directly confront the question of title navigability but it has never accepted the invitation to analyze and apply the test with any rigor. In Micelli v. Andrus, the court was faced with a boundary determination along the South Umpqua River in Roseburg. The boundary would determine whether a trespass had occurred. Without a full analysis of the test for title navigability, the court concluded that the trial court had been correct in deciding that the South Umpqua was not navigable, "though it had been used at times for floating logs and wood."¹¹⁰ Other cases served to confirm what everyone already knew: The Columbia River and a long stretch of the Willamette River were navigable and owned by the state.¹¹¹

Two additional rivers have been declared navigable for title by the Oregon Supreme Court. The first occurred in a trespass case, in which the court concluded without much analysis that the Rogue River was navigable from its ocean mouth to river mile eighteen.¹¹² The court based its conclusion, it stated, upon evidence that the river was "navigable in fact for boats of small tonnage."¹¹³ The second case awarded a property owner damages when the Highway Department's reconstruction of a bridge caused 63 acres of his upland property to wash away.¹¹⁴ The court said only that "[a]t the scene of this construction the Santiam River is a navigable stream, and ownership of its bed lies in the state."¹¹⁵ The issue of navigability did not appear to be disputed, and the court offered no justification for its pronouncement.¹¹⁶ Interestingly, a similar case occurred on the Sandy River - Clackamas County constructed a jetty to protect its bridge across the river, and the change in current completely washed away the plaintiff's property.¹¹⁷ The court did not address the issue of navigability; it commented only that "Sandy river is a mountain stream and is annually subjected to freshets or periods of high water."¹¹⁸

In follow-up state court litigation after the Ninth Circuit decided the McKenzie case in 1982, the Oregon Court of Appeals issued a one-page, per curiam decision decreeing that the McKenzie River was navigable and state-owned, and that the state had not, "by legislative act, executive sale or judicial decision, relinquished title."¹¹⁹ Despite this summary treatment of the issue, that question may bear closer scrutiny.¹²⁰

In 1878, the Oregon governor was appointed, by statute, "Land Commissioner for the State of Oregon," with the power to "locate all the lands to which this State is entitled, under the laws of the United States or otherwise."¹²¹ The State Land Board, consisting of the governor, the secretary of state, and the state treasurer, was created in 1899 to manage the Common School Fund and make decisions about the disposition of state lands.¹²² As the twentieth century began, the Land Board made sporadic attempts to define and claim ownership of Oregon's navigable rivers. For example, in 1922 and again in 1929, the Land Board asked the Oregon Attorney General for an opinion on the navigability of the Clackamas River. The Attorney General insisted that navigability "is a question of fact, and not a question of law" and that he therefore could not offer a definitive answer.¹²³ In the 1929 opinion, however, the Attorney General ventured to say that the Clackamas was most likely navigable only for a short distance from its mouth, since "it is common knowledge that in its ordinary state the river is not adapted to the use of boats of any considerable size or draft."¹²⁴

In response to another inquiry from the Land Board in 1929, the Attorney General opined that the McKenzie River was not "a navigable stream in the sense that the title to the bed thereof is vested in the state although it may be floatable and therefore 'navigable' in a qualified sense."¹²⁵ Citing several floatage easement cases, the Attorney General remarked that "the subject has been very exhaustively treated." He concluded that Oregon law maintained a clear distinction between floatable streams, which were "navigable in a limited sense," and streams that were navigable for title - the latter including waterways that were suitable, in their original condition, for "boats and vessels engaged in commerce."¹²⁶ Interestingly, a later Oregon Attorney General in 1975 took up an analysis of the floatage easement, quoting from Weise v. Smith, Kamm v. Norman, Guilliams v. Beaver Lake Club, and similar cases.¹²⁷ The Attorney General boldly asserted that the test for floatability was equivalent to the federal test for title navigability, and that the state supreme court must have been mistaken when it distinguished between the two.¹²⁸ It is small wonder that the Land Board, and later the DSL, found the project of identifying navigable rivers a confusing and daunting task.

The DSL, which functions as staff to the Land Board, was not created until 1967. One of its tasks was to identify Oregon waterways that were in state ownership, but by then more than one hundred years had passed, the state was heavily populated compared to the previous century, and the DSL encountered resistance and political pressure at every step. In 1973, the Oregon legislature mandated that the DSL inventory and determine the navigability of Oregon streams by July 1, 1977.¹²⁹ The DSL's determinations would take place in accordance with public notice and comment procedures already provided in Oregon law,¹³⁰ and they would be binding on the DSL and the State of Oregon.¹³¹ The statute was intended to prod the DSL into action and resolve the lack of clarity surrounding state ownership. The minutes from the House Judiciary Committee read: "Senator Tony Meeker explained that the Division of State Lands at the present time had the authority to determine navigability. . . . The bill, he said, was merely a directive to the division to 'quit fiddling around' and do their job."¹³²

But fiddling around continued at both the agency and the legislature. In 1975 and 1976, the DSL determined that the Rogue, McKenzie, and Umpqua Rivers were navigable for title.¹³³ This modest beginning sparked controversy throughout the state and prompted new legislation from Salem. House Bill 3258 adjusted the definition of navigability to clarify that use of a stream for floating unrafted logs was insufficient for a determination of state ownership.¹³⁴ It soon became apparent that the DSL would not meet its statutory deadline. The 1977 legislature extended the date to 1981.¹³⁵ As 1981 arrived, the legislature pushed the deadline to July 1, 1985.¹³⁶

In 1983, the DSL presented a navigability study along with the Division's recommendations on navigability. The report, authored by James Farnell, recommended that the state not assert title to waterways unless (a) they were tidally influenced or (b) they had been meandered by the U.S. surveys.¹³⁷ However, the Ninth Circuit had decided the McKenzie case the previous year, reversing the district court, and all bets were off concerning the test for navigability. The legislature essentially rejected the report (which had taken more than ten years to prepare), repealed the statutory definition of navigability, and in fact repealed the entire statutory mandate to determine state ownership of Oregon waterways.¹³⁸

In 1992, the DSL took a different tack. Using a marker on an aerial photograph, the Division designated the "high water mark" along both banks of the Sandy River and notified property owners that the land below the mark would be subtracted from their acreage by the Multnomah and Clackamas County tax assessors.¹³⁹ This maneuver did not enhance the DSL's popularity with property owners. Eventually, it produced new legislation - the navigability study process in which the Sandy River is currently immersed.¹⁴⁰ Rules implementing the statute provide that anyone can request that the DSL initiate a study, and in 1996 the Sandy River Chapter of the Northwest Steelheaders Association submitted the first such request.¹⁴¹

Meanwhile, legislative and agency machinations continued. The DSL and others believed the navigability study process would prove too convoluted and expensive to be workable, and the agency avoided acting on study requests.¹⁴² A joint interim committee on navigability was appointed in 1997 to report to the 1999 legislature. The committee met several times and held public hearings, but made no concrete recommendations and offered no legislation.¹⁴³ Finally, after postponing the statutory navigability study process for five years, the Land Board voted in June 2000 to initiate a study of the Sandy River. Based largely on the information already gathered in the Farnell Report, the DSL made a preliminary finding in February 2001 that the Sandy was navigable for title to river mile 37.5.¹⁴⁴

III. HISTORY OF THE RIVER

Those familiar with the Sandy River must have been surprised by the DSL's finding. The Sandy, a mountain stream originating on the slopes of Mt. Hood, flows inauspiciously through steep canyons and over boulders and shifting sand bars until it reaches the Columbia at Troutdale, Oregon. Besides its relatively pristine environment and its proximity to Portland, nothing about the Sandy could have signaled its significance as a landmark in the law of title navigability.

The Sandy River descends from Mt. Hood at a gradient of nearly 300 feet per mile. The Salmon River joins the Sandy at river mile 37.5, where its gradient lessens to about 40 feet per mile.¹⁴⁵ The stream gage at river mile 30.9 records an average flow of 1280 cfs based on 55 years of United States Geological Survey records.¹⁴⁶ At river mile 18.5 the Sandy is joined by Bull Run River; its gradient decreases to just 9 feet per mile and its volume increases to an average flow of 2,309 cfs.¹⁴⁷ Mt. Hood had a major eruption in approximately 1790, which filled the Sandy basin completely with volcanic ash. In the decades that followed, the river recut its channel through the debris, leaving steep canyons, lined with layers of volcanic ash conglomerate, through most of the basin.¹⁴⁸

The Lewis and Clark expedition visited the mouth of the Sandy River in 1805 and 1806. Deposits and sand bars near the mouth prompted them to dub it the "Quick Sand River."¹⁴⁹ Three members of the expedition traveled six miles upriver in a small canoe and reported that the river then divided into two channels, one six feet deep, the other only a few inches. Clark recorded that American Indians visited their camp and told them the river was "not navigable any distance."¹⁵⁰

Lafayette Cartee surveyed the Sandy River area in 1855, just prior to statehood. He meandered the river from the mouth to river mile 4, but after that point he described the river as "not navigable for any kinds of boats or scarcely for canoes."¹⁵¹ Cartee's findings are significant for three reasons. First, his evaluation of the river occurred only a few years before Oregon became a state in 1859. Second, the surveying methods he used provided criteria for assessing a river's navigability that were similar to and more inclusive than the federal title navigability test.¹⁵² Third, conveyances of property abutting a meandered waterway were presumed to grant title only to the waterline, but conveyances of land abutting a nonmeandered waterway were presumed to grant title all the way to the thread, or center, of the stream.¹⁵³ A brief context for the U.S. survey process may be helpful to understand the significance of Cartee's treatment of the Sandy River.

In colonial America, surveys were typically conducted in conjunction with a sale of land; those surveys suffered from inaccuracies and lack of consistency in practice standards.¹⁵⁴ After the revolution, Thomas Jefferson proposed the rectangular survey system, which would divide the country into squares, or townships, of six square miles each. Each township would contain thirty-six sections, and the southwest corner of each township would be set with a permanent monument to serve as an on-the-ground guide for future surveyors.¹⁵⁵

Congress directed surveys to begin on the eastern bank of the Ohio River.¹⁵⁶ In 1796, surveys west of the Ohio were also mandated by statute.¹⁵⁷ The 1796 law provided that navigable rivers would remain "public highways" and that their shorelines would be "meandered," or recorded on the surveys as the irregular boundary of a fractional township.¹⁵⁸ Where a river or stream was nonnavigable, the surveyor mapped right over it. The surveyor, or survey team, made determinations of navigability or nonnavigability in the field. Surveyors contracted with the General Land Office ("GLO"), the federal agency reorganized into the Bureau of Land Management.¹⁵⁹ The GLO Commissioner was responsible for supervision of the surveys, which were supervised regionally by Surveyors General.¹⁶⁰ Government surveying manuals set out specific requirements for meandering, and surveyors probably erred on the side of over-determining navigability.¹⁶¹

The rectangular survey system was created to divide the United States into a predictable geography so it could more easily pass into private ownership as settlement increased. The meander line's purpose was to separate navigable rivers from lands that could be settled.¹⁶² Establishing a meander line kept settlers from having to pay for riverbed acreage.¹⁶³ Although the meander line did not necessarily form the true boundary of the upland owner's land,¹⁶⁴ a meander line indicated to the purchaser that the river was public. Conversely, the absence of a meander line told the riparian owner that title to the land included the bed and banks.¹⁶⁵ A riparian property owner on a nonmeandered waterway almost always holds a deed that purports to grant title to the river bed and banks, and those owners understandably expect that their ownership is consistent with their deeds. That phenomenon drove the DSL's recommendation to the 1983 Oregon Legislature that the state refrain from making any claims to nontidal rivers that had not been meandered by the U.S. Surveys.

The presence or absence of a meander line creates a set of presumptions under federal law as well. The U.S. Supreme Court has consistently maintained that the presence of a meander line is not enough to prove navigability. However, a meander line is significant under the Submerged Lands Act to determine the validity of pre-statehood grants ¹⁶⁶ by the federal government.¹⁶⁷ Under federal law, a pre-statehood grant of land riparian to a meandered river is presumed to convey only to the high water mark, while the same grant of land on a nonmeandered river is presumed to convey to the river's thread.¹⁶⁸

The Oregon Supreme Court has treated the absence of a meander line as strong evidence that a waterway is not navigable for title. In Shaw v. Oswego Iron Co.,¹⁶⁹ the court concluded that the Tualatin River was not navigable, citing as evidence that "the bed of the Tualatin river was not reserved; it was sectionized as land [by the U.S. surveys], and sold and patented by the government without any deduction or reservation whatever of the subjacent soil of the Tualatin."¹⁷⁰ In Guilliams v. Beaver Lake Club,¹⁷¹ the court found it "obvious" that Beaver Creek did not belong to the class of navigable waters "as it is nontidal and has never been meandered, but has been sectionized and disposed of as so much land."¹⁷²

The Sandy River flooded in the winter of 1964, causing considerable devastation to property along the river. The Farnell Report gives the numbers: whereas the average flow at river mile 30.9 is 1374 cfs, it was "45 times that volume in December 1964 with 61,400 cubic feet per second."¹⁷³ At a tape-recorded public meeting attended by flood victims and representatives of the state, Oregon took the position that it could not offer funds for disaster relief because the Sandy River was not navigable and not the state's responsibility.¹⁷⁴

It would be difficult (though reasonable) to argue that the State of Oregon is estopped now from asserting the navigability of the Sandy. Even so, the U.S. Supreme Court has, in assessing navigability, found past administrative treatment of the waterway "not without significance."¹⁷⁵

The Farnell Report describes the historical evidence of saw log, cordwood, and railroad tie drives down the Sandy River from 1895 until 1926.¹⁷⁶ Transport of saw logs and cordwood both proved difficult, so by 1900 mills on the Sandy almost exclusively cut and drove railroad ties.¹⁷⁷ Most evidence of the drives consists of short notices in local papers that a drive had occurred, or was expected to occur, so it is difficult to guess what really happened on the river. According to the Farnell Report, one million feet of ties were transported down the Sandy in 1900, some of those, presumably, all the way from Brightwood.¹⁷⁸ In 1905, 14,000 ties came down the river, amounting to just 112,000 board feet.¹⁷⁹ Drives were, at most, annual events, occurring "[m]ostly in the spring after the water went down."¹⁸⁰ It was not easy to get the ties downriver; one logger recounted that the ties had to be rounded up off the banks, sorted out of jams, and dragged or carried as much as one hundred yards after being stranded on a sand bar.¹⁸¹ The report cites evidence that the loggers used explosives both to clear the river channel in preparation for transporting ties, and also to break up jams once the drives were underway.¹⁸² We also know that the mills used alternatives when they could: many built flumes to bypass some or all of the river,¹⁸³ and the drives seemed to have ceased altogether once rail transport became available.¹⁸⁴

The tie drives on the Sandy River must be viewed in the context of the turn-of-the-century timber industry, imbued with a reckless attitude of desperation as companies raced to get timber cut and to market while prices were high.¹⁸⁵ By the time tie drives were underway on the Sandy, mills were using every stream that could possibly float lumber.¹⁸⁶ Lumber prices were so high and forests so plentiful that the mills were willing to take the risk of trying to get logs down even small creeks and streams. On one small creek in northwestern Oregon, the Supreme Court reported that "Gilliam and Warnstaff put 80,000 or 90,000 feet of logs in the stream . . . and that only five or six of them had come out, and that the remainder were scattered along the banks."¹⁸⁷ Of these streams, the Sandy River was by no means among the most successful. The Farnell Report claims that one million feet of railroad ties were transported down the Sandy to Troutdale in 1900. The quantity is unremarkable compared to the "millions of board feet of timber" floated down the McKenzie.¹⁸⁸ Even on Anthony Creek, which the Oregon Supreme Court held was so small and ill-suited for log transport that it was not subject to the floatage easement, loggers were able to transport 1,400,000 feet of saw logs in 1887.¹⁸⁹

Based on thirty years of difficult tie driving down the Sandy River, the DSL has concluded that the river was, in 1859, susceptible of use as a "highway for commerce." Given the character of the drives and the economic context in which they occurred, it might be more accurate to describe the Sandy as a muddy footpath for desperate speculation.

IV. DOES SANDY RIVER PASS THE TEST? THE EFFECT OF FEDERAL LAW

Would the Sandy River pass muster as a navigable river in federal court? Is the Sandy, after all, a useful highway for commerce? Careful application of the components of the navigability test to the Sandy River reveals that the Sandy would not be navigable under Supreme Court precedent, but it might well pass the test in the Ninth Circuit.

To apply the test for "navigability in fact," one asks whether a waterway was, at the time of statehood, used or susceptible for use in its ordinary condition as a highway for commerce, using customary modes of trade and travel on water.¹⁹⁰ The particular "mode" is immaterial and may include logs.¹⁹¹ Difficulties in or obstructions to navigation do not defeat navigability.¹⁹² But the waterway must, in its natural state, "afford[] a channel for useful commerce."¹⁹³ Occasional use -- at, for example, periods of high water -- is insufficient.¹⁹⁴ Three aspects of the test have special significance on the Sandy River, as they did on the McKenzie: What is the permitted level of "difficulties and obstructions"? What constitutes "occasional" use? What is the meaning of "ordinary condition"?

The Montello introduced the principle, which was followed up in other cases: obstacles or other difficulties in navigating a river would not preclude navigability, so long as the river, overall, provided a useful highway for commerce¹⁹⁵ . The italicized portion of the principle seems to have drifted away from the Ninth Circuit; a river cannot be navigable if, overall it is characterized by obstacles and difficulties. If that characterization is so, if the difficulties rise to the level of impracticability, then the river has no real utility and is therefore not a useful highway for commerce.¹⁹⁶ The overall character of the river as a useful highway for commerce is the gravamen of navigability.¹⁹⁷

Difficulties getting lumber down the Sandy River were the norm, not the exception. The Sandy is comparable to the portion of the Arkansas River, deemed nonnavigable in Brewer-Elliott, in which "[t]he rafting of logs or freight has been attended with difficulties precluding utility."¹⁹⁸ The Sandy is also comparable to the McKenzie in this regard, so that with the McKenzie case as binding precedent, the Sandy might be navigable in the Ninth Circuit.

The Supreme Court has consistently held that occasional use of a river during high-water periods is not sufficient for navigability.¹⁹⁹ Like difficulties in navigation, periods of impassability had to be the exception rather than the norm. Thus, in United States v. Holt State Bank, the Court concluded that Minnesota's Mud Lake was navigable, despite occasional "seasons of great drought" during which navigation was difficult.²⁰⁰ And in United States v. Utah, the Court held a river navigable where it was useable as a highway for commerce during nine months of each year.²⁰¹

The McKenzie case effected an interesting twist on this component of the test. Like the Sandy, the McKenzie was used for log transportation in the spring, but only after the spring "freshets," because during the river's highest water periods it became too turbulent to be of use. The McKenzie court's reasoning went like this: (1) Supreme Court precedent holds that use during high water periods is not sufficient; (2) the McKenzie River was not used during high water periods; (3) therefore, use on the McKenzie was sufficient for navigability.²⁰² Although the court acknowledged that the McKenzie could not be used in low-water periods, either-that it was, in fact, only useful for three months each year-that detail did not give the court pause. It does, however, illustrate the fallacy of reasoning by judicial epigram. That is, one cannot advance a reasoned legal analysis by simply plucking a catch-phrase from a Supreme Court opinion, such as "difficulties in navigation do not defeat navigability," or "use during high-water periods is not sufficient," without examining the whole decision and ensuring that the phrase remains in its proper context. In context, the "high water" comments by the Court mean only that a navigable waterway ought to be available more or less year-round. Nine months is sufficient; three is not.

The Supreme Court has never explicated what "ordinary condition" means in the navigability for title context.²⁰³ No explication is necessary. The test is applicable to each waterway as it exists at the moment of statehood, and whatever happens to the river afterwards can be of no consequence to the determination of navigability. The only circumstance in which the "ordinary condition" issue would be relevant is where a river was blasted or dammed before statehood; the question would then be whether or not the navigability evaluation should factor in the blasting or damming. That question has not presented itself in title navigability jurisprudence, and it is not before us now on the Sandy River. Navigability of the Sandy must be evaluated based on the river as it was on February 14, 1859. That means the fact that the timber companies blasted out the channel to make it suitable for floating lumber²⁰⁴ is good evidence that the river was not suitable in its natural, pre-blasted state. If the Sandy could not float logs without being blasted, it was not navigable at statehood, even under the liberalized test in the Ninth Circuit.

The McKenzie case did not mention channel blasting, only blasting to dislodge logjams.²⁰⁵ However, the court did say, citing United States v. Appalachian Electric Power Co.,²⁰⁶ that the use of splash dams had no effect on the "ordinary condition" criterion.²⁰⁷ That conclusion was erroneous for two reasons. First, a change in water flow or velocity is a change to the river's physical character and, like channel blasting, indicates that the natural flow or velocity-at statehood-might not have been sufficient to transport logs. Second, the court's holding is at odds with the Appalachian case it cites, in which the Supreme Court held that (for commerce clause jurisdiction) "'Natural or ordinary conditions' refers to volume of water, the gradients and the regularity of the flow."²⁰⁸ Because splash dams affect both volume and flow regularity, they are not within the scope of "ordinary conditions," even as defined in the Appalachian case. Splash dams and blasting, to the extent they occurred on the Sandy, indicate strongly that the river was not capable of log transportation in its ordinary condition.

Given its body of precedent developing the components of the test for navigability, the U.S. Supreme Court would find the Sandy River a nonnavigable waterway. One passes through the Ninth Circuit Court of Appeals, however, on the way to the Supreme Court, and in the post-McKenzie Ninth Circuit, the Sandy might well be deemed navigable. In that event, of what significance is an inconsistent body of Oregon Supreme Court opinions?

V. WHO OWNS THE BED AND BANKS? THE EFFECT OF OREGON LAW

Whether or not the Sandy River is navigable under the federal test, federal and state law conflict on the subject. Weise v. Smith and Shaw v. Oswego Iron Co. have never been overruled or disfavored by the Oregon Supreme Court; they remain the law in Oregon. An analysis of the force of that law requires a brief aside about how the law develops in state and federal courts.

Clearly, under the law that developed in the U.S. Supreme Court and in Oregon courts in the nineteenth century, the Sandy River would not have been considered navigable for title in 1859. To property owners along the river, it seems fundamentally unfair that a change in the law should operate to divest them of title to their land; the DSL's classic response is that title to the bed and banks has always, since statehood, resided in the state, never in private owners.²⁰⁹ And, technically, that reasoning is true if the Sandy is a navigable waterway, because it follows from one of the most slippery and counterintuitive features of judge-made law -- the idea that, as the law evolves through one court decision after another, it is the interpretation of the law rather than the law itself that is evolving. The implication is that some sort of "Uberlaw" exists and the courts' imperfect understanding of it becomes more perfect over time. This doctrine makes some sense when a court, or a series of courts, interprets a written statute. Otherwise, the Uberlaw concept is pure fiction, as it is in the case of the navigability test, developed under federal common law. Nevertheless, this fiction carries enough weight in the law to counterbalance 150 years of settled expectations in private property ownership.²¹⁰

If we accept the legal fiction that the current state of the law governs what happened in 1859, then we still face the conflicting navigability standards of federal and Oregon law.²¹¹ Currently, Supreme Court decisions establish that, while the determination of navigability - and the question of whether title passed to the states under the Equal Footing Doctrine - is a federal question, any subsequent disposition by the state follows state law.²¹² Under current Ninth Circuit law, the Sandy River may be navigable; we may assume that it is so for the sake of the following discussion. Nevertheless, Oregon law would still classify the Sandy as a floatable river, in private ownership but subject to the public floatage easement.

The U.S. Supreme Court recognized the distinction between the federal test for navigability and the doctrines that developed state-by-state; the Court thus insisted that each state had the power to decide the extent to which the state would claim (or forgo claiming) ownership of waters that might or might not be navigable for title.²¹³ If the Sandy was, then, navigable under federal law but nonnavigable (for title) under state law, what happened to its ownership on February 14, 1859?

Federal and state courts habitually refer to statehood as the moment at which title to the bed and banks of navigable rivers "vested" in the states, but simple hornbook law tells us there has to be more to it. A transfer of real property requires intent by the grantor, delivery, and acceptance by the grantee.²¹⁴ Early English practice, quaintly termed "livery of seisin," provides a visual embodiment of each concept: The parties to a conveyance met on the subject land in the presence of witnesses.²¹⁵ The grantor announced his²¹⁶ intention to transfer the land (intent), then the grantor offered a clod of dirt to the grantee (delivery), then the grantee took it (acceptance).²¹⁷ Then, presumably, there was much rejoicing, except by the schoolboys who were sometimes pressed into service as witnesses - the custom was to rap them sharply on the head to ensure they would remember the event.²¹⁸

If an intended grantee fails to accept a transfer of land, then there is no transfer.²¹⁹ In a 1980 Missouri case, Zella Bacon prepared and offered a deed to her brother, Gus Gillespie, who tore it up. The Missouri court held that no transfer had taken place.²²⁰ I submit this is precisely what occurred on the Sandy River.²²¹ The federal government delivered title to the Sandy River on February 14, 1959, in accordance with principles of federal law on navigability and as required by the United States Constitution.²²² In its new role as sovereign, Oregon was free to accept or reject title; by the force of state law, Oregon rejected title.²²³ Ownership of the bed and banks of the Sandy River remained in the United States, and then passed to its grantees - just as their deeds indicated.

Of course, there was no actual conveyance, in the sense of a written deed and a description of the land, in 1859. Title to the Sandy passed, or not, by operation of constitutional law. Passage of title under the Equal Footing Doctrine is unique in the law of conveyancing; perhaps it does not make sense to compare it to a transfer by deed. Although it is like nothing else in the law, transfer of title at statehood may be more analogous to a transfer by dedication.²²⁴ Such a transfer can be effected by deed, but need not be. Nonetheless, the three requirements for transfer are still present - intent, delivery, acceptance. In fact, while acceptance is presumed in many jurisdictions in the context of deeded conveyances, dedications usually require a manifest indication of acceptance.²²⁵ The rationale for the difference is that a dedication of property to a governmental grantee carries with it responsibility for ownership and management, which the government might not want to assume.²²⁶ This reasoning fits the situation on the Sandy and other rivers floatable under Oregon law: state management of a waterway for public use is no small task.²²⁷

In State of Oregon v. Salot,²²⁸ while the McKenzie case was on remand to the federal district court, the Oregon Court of Appeals rejected the argument that Weise v. Smith and Shaw v. Oswego Iron Co. had worked a divestiture of title to the bed and banks of the McKenzie River.²²⁹ The argument may nonetheless be revived if the navigability of the Sandy River is litigated.

Federal law is clear that once title navigability has been determined, then "the force of [the Equal Footing doctrine] [i]s spent," and state property law governs what happens to submerged and submersible lands within the state.²³⁰ Specifically, state law determines the extent of riparian ownership, whether to the high water mark, the low water mark, or the thread of the stream.²³¹ In Weise v. Smith, the Oregon Supreme Court made a clear delineation of ownership rights²³² ; in Shaw v. Oswego Iron Co., the court stated the proposition unequivocally: The class of floatable streams remained in private ownership, subject to the floatage easement.²³³ Cases that followed Shaw reinforced and clarified this principle, but no case has overruled or qualified it.²³⁴ By virtue of the Uberlaw doctrine,²³⁵ these decisions of the Oregon Supreme Court represent the law in force in 1859, when title to Oregon waterways passed, or not, into state ownership. Neither the Oregon legislature nor the DSL has authority to change that law now - at least not without compensation to the landowners who would be stripped of the property rights they have held under Oregon law.²³⁶

VI. THE STATE'S ROLE IN MANAGING RECREATION: A PROPOSAL

Whatever influence Oregon law has on the question of navigability, one aspect of the law is clear: Even if the Sandy River is navigable under the federal test, and even if the state could assert title to its bed and banks, the state is not required to assert title. The Sandy River can remain in private ownership. In Barney v. Keokuk,²³⁷ the Supreme Court reiterated that states would control the ownership of property within their borders, once the isolated question of navigability had been determined.²³⁸ In the following much-quoted language, the Court offered a cautionary note against upsetting traditional property interests:

Whether, as rules of property, it would now be safe to change these [state law] doctrines where they have been applied . . . is for the several States themselves to determine. If they choose to resign to the riparian proprietor rights which properly belong to them in their sovereign capacity, it is not for others to raise objections.²³⁹

Forgoing a state claim to the bed and banks of the Sandy River would avoid reversing the settled expectations of riparian property owners, who have long believed - based on their deeds and on Oregon law - that their property extends to the thread of the river.²⁴⁰ In fact, the most equitable strategy was probably the one the DSL recommended to the legislature in 1983: to consider a claim of state ownership only where waterways are tidally influenced or were meandered by the U.S. surveys. And, because the floatage easement is well established in Oregon law, forgoing a claim to the Sandy will not appreciably affect its availability for recreational use.²⁴¹

In particular, state ownership of the bed and banks of rivers like the Sandy is unlikely to solve current problems associated with recreational use, such as conflicts between anglers and upland owners, inadequate law enforcement, and difficulties with river access.²⁴² The Oregon State Marine Board, in its report to the ineffectual 1997/99 Joint Legislative Interim Committee on Navigability, postulated that these problems were "likely to continue even if a resolution settling all ownership disputes over submerged and submersible lands throughout the state can be reached."²⁴³ The Board estimated that it could improve river access, acquire new access areas to meet growing demands, and shore up law enforcement, all through statewide, user-funded programs such as nonmotorized boat registration and annual river use fees.²⁴⁴ The Board's report concluded with the recommendation that the Interim Committee propose a bill to authorize such programs, including an education component.²⁴⁵ The DSL itself recommended such legislation. In testimony to the committee, Paul Cleary, then director of the Division, urged legislators to "[e]stablish a waterway public recreation use access law and management program for Oregon."²⁴⁶ Based on stakeholder meetings conducted by the DSL, Cleary testified: "We think Oregonians want the government to focus on the management of people and their behavior, rather than focusing solely on the ownership or naviagability question."²⁴⁷ Unfortunately, the committee failed to reach consensus and proposed no legislation to the 1999 session.

Mr. Cleary and the Marine Board are correct. What the state needs is not an expensive administrative procedure to study the navigability of a river that can barely be run in a kayak, and not an even more expensive battle through the federal courts to finally determine navigability. Instead, Oregon needs strong leadership from Salem. That leadership could take the form of a bill to codify and clarify the floatage easement; to amend the navigability study statute, simplifying the process and expressly precluding claims to nonmeandered streams; and to implement the recreation management programs that the Marine Board says it can both fund and administer.

The state cannot determine whether a waterway is navigable for title; only the federal courts can do that, and only on a piecemeal basis, river by river. The floatage easement, however, is a species of the public trust doctrine, a creature of state law and within the state's police power to define and control.²⁴⁸ A state claim of title to rivers like the Sandy runs counter to settled property expectations and a sense of fundamental fairness, while the right of the public to use floatable streams is consistent with most citizens' understanding of river use. A final determination of navigability is an expensive proposition that almost certainly will never balance state revenue from ownership of the bed and banks. On the other hand, the Marine Board thinks it can fund a program to improve river recreation - and that money must be spent no matter who actually holds title. From every possible angle, a strong, well-considered legislative solution appears preferable to DSL's strategy on the Sandy River.

VII. CONCLUSION

The federal test for navigability determines whether the state can assert title to the bed and banks of the Sandy River, but that test has broadened in the Ninth Circuit. The McKenzie case created an overlap between federal navigability and Oregon's floatage easement, holding that title to the bed and banks of the McKenzie River had passed to Oregon in 1859 because the McKenzie had been used for log transportation. Thus, the same river that would, under Oregon law, be privately owned subject to the floatage easement was declared navigable for title under the federal test. The DSL's assertion of title to the Sandy River, if successful, will complete the convergence, since log drives on the Sandy were an even shakier proposition than they were on the McKenzie. If the Sandy River is navigable, there will, essentially, be nothing left of Oregon's floatage easement doctrine.

The DSL has taken the wrong approach with the Sandy River. Instead of eviscerating Oregon's floatage easement, the Division should embrace it. The doctrine represents the easiest, least politically sensitive, and most flexible mechanism for preserving public rights to use the river for recreation.