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PUBLIC ACCESS Upper Rogue navigability fight may go to U.S. Supreme Court Comment By Mark Freeman Mail Tribune Follow @@MTwriterFreeman MailTribune.com By Mark Freeman Mail Tribune Follow @@MTwriterFreeman Posted Feb. 11, 2016 at 3:27 PM Updated Feb 11, 2016 at 3:29 PM By Mark Freeman Mail Tribune Follow @@MTwriterFreeman Posted Feb. 11, 2016 at 3:27 PM Updated Feb 11, 2016 at 3:29 PM » Social News The U.S. Supreme Court could be the next, and last, venue for Rogue River landowners to fight the state of Oregon's hotly contested navigability claim to the river's bed and banks along a 58-mile stretch from Lost Creek Dam to Grants Pass. A group of upper Rogue River landowners opposing the State Land Board's navigability claim is mulling an appeal to the high court after a recent Oregon Court of Appeals ruling that threw out part of a 2010 Jackson County Circuit Court decision denying the state's claim. The appeals court ruled the Land Board provided enough evidence of the stretch's susceptibility to commerce at the time of statehood 1859 to qualify as navigable and, thus, public. But the appeals court declared the state failed to properly define the affected lands as required by state law, and sent the case back to the Circuit Court. The Oregon Supreme Court announced Feb. 4 it would not hear the landowners' appeal of the appeals court's navigability designation, setting up the potential appeal to the highest court in the land. "That's the intention," said Jennie Bricker, a Portland lawyer representing the landowners in the case. "That's the only avenue left for this case." Under federal law, states claim ownership to rivers up to the ordinary high-water mark — the line on the bank or shore to which the high water ordinarily rises annually — at the time they were granted statehood, if the waterways were used or susceptible to use for commerce. Such a designation allows the public to access the river's bed and banks generally to the vegetation line, but in doing so they must obey all other laws. To substantiate the commercial-use claim, states typically use historical records of pre-state uses, such as on-the-water travel, fishing and the floating of log rafts to mills, court records show. To meet the much lower susceptibility standard, states often offer evidence of post-statehood commercial uses that could have been employed in a river section prior to statehood. The 68.5-mile stretch of the lower Rogue from the mouth to Grave Creek near Galice was declared navigable in 1975. In 2005, the state laid claim to the remaining 89 miles of the Rogue up to Lost Creek Dam, which effects about 3,000 properties whose owners largely hold deeds to the river's bed and banks. Landowners sued, and the case ended up before Jackson County Circuit Court Judge Ron Grensky, who ruled there was enough evidence of commercial use of the Rogue up to Grants Pass to determine navigability there. But he ruled against the state's claim for the remaining 58 miles upstream of Grants Pass. Grensky also ruled the state didn't follow its own rules by adequately describing the affected lands and ordered the state to pay the landowners more than $157,000 in lawyer fees. The state appealed Grensky's ruling, setting up the appeals court's Oct. 14 decision and opinion. The court agreed with Grensky that the land board failed to put together a reasonable case that the river stretch above Grants Pass actually was a "highway of commerce" at the time, noting it relied on flimsy historical references. However, the appeals judges ruled that the state did present enough evidence to reach the "susceptibility" threshold by showing log rafts floated downstream, and ongoing fishing and boating could have happened on that stretch in the 1850s. The appellate judges, however, agreed with Grensky that state law requires a better description of the affected lands than the land board offered when it made its navigability designation. But the judges also reversed the recovery of court costs for the landowners in the case. Shady Cove resident Roger King, who has been a long-time opponent of a navigability designation on the upper Rogue, said the case will "go federal now." He said fighting the designation has cost upward of $800,000 since its inception more than a decade ago and that the opposition is bankrolled by a wealthy upper Rogue landowner he declined to name. Reach Mail Tribune reporter Mark Freeman at 541-776-4470 or [email protected] . Follow him on Twitter at www.twitter.com/MTwriterFreeman . By Mark Freeman Mail Tribune Follow @@MTwriterFreeman MailTribune.com By Mark Freeman Mail Tribune Follow @@MTwriterFreeman Posted Feb. 11, 2016 at 3:27 PM Updated Feb 11, 2016 at 3:29 PM » Comment or view comments Reader Reaction » STAY INFORMED Email NewsLetter Sign Up Today Sign up for our newsletter and have the top headlines from your community delivered right to your inbox. Southern Oregon Directory Featured Businesses Loading... 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