Jackson County judge rules river above Grants Pass not navigable

A Jackson County Circuit Court judge has ruled against the state's assertion of ownership rights on a stretch of the Rogue River that will affect some 3,000 properties.

Judge Ron Grensky ruled in an eight-page decision released Friday that based on a study of historic use, the portion of the river upstream from Grants Pass is not navigable.

Historical documents conclude the lower portion of the river was deemed navigable based on the fact it had been used for commerce, he noted.

"The court cannot help but conclude therefore that the upper portion of the Rogue River was neither used (nor) susceptible to use for travel and trade in the period of Oregon's statehood 1859," Grensky concluded.

"More specifically the court determines there is not substantial evidence in the agency record to support a finding of navigability for this portion of the river." Specifically, Grensky ruled the river from Gold Beach to Grants Pass — about 100 river miles — was navigable based on historic use while the roughly 58 miles from Grants Pass to what is now Lost Creek Dam was not.

Grensky was ruling on a lawsuit filed April 5 against the state by eight Rogue River property owners— Wilbur and Kathryn Hardy, Idelle Colins, Craig Tompkins of Kirtland Farms, Mary and Cris Caldwell, and Robert and Marilyn Kim Novak Malloy.

The state determined in June 2008 that the 89-mile stretch of the Rogue from Lost Creek Dam to the mouth of Grave Creek is a navigable waterway and has belonged to the citizens of Oregon since statehood was declared in 1859. Declaring a river navigable is the legal step necessary to laying claim to the river channel.

The case marks the first time the navigability law has been challenged in Oregon.

Many property owners have argued for years that they own title to the middle of the river or to the opposite bank because the waterway has changed course since Oregon became a state.

The decision likely will be appealed, according to Jennie Bricker, an attorney with the Portland law firm Stoel Rives LLP, which represented the Hardys and other property owners.

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