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When confronting these natural obstacles, Butler ventures out of the river, up the bank and onto private property to get past. The 73-year-old former Forest Service ranger is a student of waterway law and has long believed public-access rights to rivers trump property rights listed on land deeds. "Generally, I haven’t been confronted," says Butler, of Grants Pass. "But occasionally, I come across a few property owners who are adamant about what they see as their rights. "So I try to explain it to them," he says. Butler doesn’t have to do the explaining alone any more. The Oregon Attorney General’s Office has done it for him. In a legal opinion that is sending shockwaves through Oregon’s river communities, the state’s top lawyers say wading anglers along state waterways have more than legal access to the streambeds and banks up to the ordinary high-water mark. Waders who enter state waterways legally have the right to the "incidental" use of "upland" private property to pass in-water obstacles then return to the river. They can pass through pasture, brush or back yards, provided they take a reasonable path, return to the stream as soon as reasonably possible and don’t damage the property. The opinion is based on state and federal court cases involving the so-called "Doctrine of Public Use" of state waterways dating back to 1869. The opinion is part of a larger document offering what the attorney general’s office says are the likely rights of the public on Oregon’s waterways. It’s state attorneys’ belief of what would hold up in the state appellate courts if they were asked to consider cases along these lines. Most of the opinion is based on floatage easements and the rights of boaters to navigable waters. A sliver of the opinion speaks to anglers wading waterways. But it is reverberating loudly among Oregon fishermen who the attorney general’s office says can walk down a public boat ramp at Cole Rivers Hatchery and hike their way to as far upstream or downstream as they want — provided they don’t trespass to leave the Rogue. "It’s amazing, isn’t it?" says Lt. Walt Markee of the Oregon State Police’s Fish and Wildlife Division, which enforces most river laws. "It’s just like the beach. If you can get on legally, you can keep going." It’s also the new law of the land for fish and wildlife troopers called to trespass cases, Markee says. Troopers will go to "keep the peace" and inform waders and landowners of these rights and responsibilities. "We don’t write the opinion and we don’t have an opinion on the opinion, but we’ll enforce it," Markee says. Public-access advocates say the opinion asserts far more rights to boaters and wading anglers than they imagined. "An A.G.’s opinion is, of course, just that — a legal opinion of the attorney general’s office," says WaterWatch attorney Bob Hunter of Medford. "But I think a court could be reluctant to convict anyone of trespass with that opinion. "It’s huge," Hunter says. "I’m not sure it’s accurate. But it’s huge." It infuriates landowners such as Phil Krouse, a third-generation owner of a 276-acre ranch along the Applegate River that includes a stretch of the river’s bed and banks. "What they’ve done is stolen my land," Krouse says. "They’ve given everybody the opportunity to run up and down the river. Well, fine, but stay the (bleep) off my land." Krouse says the opinion will trigger a backlash among landowners who will be less-inclined now more than ever to grant access across their lands to the river — something the attorney general’s opinion doesn’t support. "This has pissed off every landowner on the river," he says. "There’s people out here who say, you put blackberries on every bank and a bedspring in every fishing hole," he says. "Somebody is going to get hurt over this." The opinion comes as the Oregon Legislature grapples with three bills that would codify public-access easements to waterways. They are couched as ways to settle public-access issues without relying on navigability declarations and assertions of public ownership to rivers’ beds and banks. The bill with the most backing is Senate Bill 1028, co-sponsored by Senate Minority Leader Ted Ferrioli, R-John Day, and Majority Leader Kate Brown, D- Portland. It would grant recreational access to most rivers while creating recreational management plans to settle disputes between landowners and river- users. "We need to set the rules of engagement and resolution of conflict," Ferrioli says. "Walking around with a copy of the (A.G.’s) opinion in your back pocket isn’t going to get you out of a conflict with a landowner." A week ago, Ferrioli’s bill was seen largely as generously asserting rights to boaters and wading fishermen simply by gaining them access up to the normal high-water mark — usually the vegetation line. Compared to the attorney general’s opinion, it now appears conservative. Few thought the opinion would grant all the access in Senate Bill 1028, plus the legal authority to walk on upland private property to get past deep holes, rapids or falls. "We basically got a freebie," says Art Isrealson, river-access director for the Association of Northwest Steelheaders. Butler says he now wants any bill that comes out of the Legislature to have everything from the attorney general’s opinion in it, and nothing less. "It would be compromising our rights," Butler says. But compromise seems in the air in Salem, where legislators have considered and panned public-access bills during each of the past four sessions. "I think the momentum within the Legislature is as strong as it has ever been on this issue," says Mike Carrier, Gov. Ted Kulongoski’s natural-resources policy director. The question now is how to create clear policies and statutes that mesh the A.G.’s opinion, public rights and landowner needs. "I’m not sure the diverse stakeholders in this issue can be brought under the same tent," Carrier says. "There’s big differences in how this program would work." Butler says he’ll do nothing different when walking and fishing the Rogue with his beliefs finally buoyed by a clear legal opinion. "We need to sit down and resolve this the best we can," Butler says. "I don’t want to (argue) it when I’m on the ground, when I’m fishing." Reach reporter Mark Freeman at 776-4470, or e-mail [email protected] Mail Tribune Home | Local News | Sports | Business | Obituaries | Life | Opinion AP News | Archives | Site Map | Community | Classified Copyright © 1997-2006 Mail Tribune, Inc. All rights reserved. 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