Hardy v. Land Board

Under ORS 274.400 to 274.412 and OAR ch. 141, div. 121, the State may claim ownership of navigable waterways by demonstrating with substantial evidence the use or susceptibility to use of the waterway, or segment thereof, as a highway of commerce at the time of statehood.

The State appealed from summary judgment in favor of Plaintiffs that set aside the State Land Board’s (the Board) declaration of ownership over certain segments of the Rogue River pursuant to the process set forth in ORS 274.400 to 274.412 and OAR ch. 141, div. 121. Under this scheme, the Board may not claim ownership unless a court has determined the waterway is navigable or the Board has made a declaration under ORS 274.406, 274.402(b); the latter process is at issue in this case. The process requires the Board to determine whether a waterway is navigable and the extent of interest claimed by the State by conducting a study, drafting a report, and providing notice and a public hearing. If substantial evidence supports the draft report the Board may adopt its conclusions and must provide reasonable public notice of the nature and extent of the State’s claims, including a description of the land or waterway and the nature and extent of the claims. In the present case, the public notice issued only generally described the segment of the Rogue River without enough specificity to allow persons to discover what land was actually claimed, potentially including dry land the State may not claim under the relevant statutes. In the circuit court, Petitioners’ motion for summary judgment was granted because of this insufficient notice and because the Board’s determination of navigability was unsupported by substantial evidence as to part of the river because, at the time of statehood, the segment of the river was used or susceptible of being used in its ordinary condition as a highway of commerce. On appeal, the Court held that evidence of log drives at the time of statehood and post-statehood recreational use not materially different than use at the time of statehood permits the reasonable conclusion that the segment was susceptible of being used as a highway for commerce. The notice given does not have to be in legal terms, but must be specific enough that a lay person could identify the location of the State’s claim in relation to existing legal descriptions; the State may not rely on a vague description and later litigation to determine the extent of claims. Reversed in part and remanded.