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August 06, 2008
Meeting with Other Property Owners Promised...Downtown Property Owners, Elected Officials Wade in with DSL on Lease Demands
CLATSKANIE, Oregon (STPNS) -- About a dozen downtown Clatskanie property owners, plus several other interested persons met Monday evening, Aug. 4, with Louise Solliday, director of the Oregon Department of State Lands (DSL); State Senator Betsy Johnson, State Representative Brad Witt, and Columbia County Commission Chair Tony Hyde.
Discussion at the meeting was on the topic of the DSL?s demands that the owners of six downtown properties - plus the city of Clatskanie - pay leases on property that is part of the Isaac Waggoner and E.S. Bryant Donation Land Claims (DLC).
Beginning almost two years ago, downtown Clatskanie property owners began to receive letters from the DSL demanding a $750 application fee and a minimum lease of $275. However, the DSL determines how much the fee will be and can raise it annually. Those receiving the letters were threatened with $1000 per day ?trespassing? fines if they did not comply within 30 days. Most of the property in question has been owned by the same parties for decades.
Although only six downtown property owners, plus the city of Clatskanie, have been targeted by the DSL so far, it was pointed out that the agency?s claim that it owns property deeded to private individuals potentially impacts all owners or property along the Clatskanie River if they chose to build a deck, dock or other structure which the DSL decides is overhanging the median high water mark.
After Johnson and Witt were made aware of the nature of the letters and threats received by the property owners, and the unique aspects of the pre-statehood DLCs on which downtown Clatskanie is built, the DSL agreed to suspend its demands until further research was done.
Johnson Promises Meetings for Other Property Owners
In opening the meeting, Senator Johnson acknowledged that there are numerous other property owners in the Clatskanie area and throughout her district who are having issues with the DSL.
While Monday?s meeting was planned to address the unique issues related to the Waggoner and Bryant DLC properties, Johnson said ?I am perfectly prepared to have another meeting? with DSL officials and owners of other properties.
At the end of the meeting and after hearing from rural Clatskanie resident Bill Buol, who is facing large fines for not signing a lease on his property off of Point Adams Road, and who has now engaged a lawyer in his fight against the DSL, Johnson reiterated her intention to call another meeting for others who are having problems with the DSL, and said she would pay to have it well-advertised in advance.
True Points Out Problems with DSL?s Contentions
Solliday, who was accompanied by Stephen Purchase, assistant director of the DSL?s land management division, and Jim Grimes, DSL?s land manager for Northwest Oregon, stated that the DSL has been enforcing leases on property on navigable waterways around the states on which it has never collected leases before. ?We are generating money for the common school fund,? Solliday said, ?and it?s a mission that we take passionately.?
?I?m a problem-solver,? Solliday said. ?I want to get this resolved one way or another, even if we have to end up in some kind of court proceeding.?
She continued: ?We do believe that we are the owner of the submerged and submersible land because it is tidally-influenced, and that those lands did not pass with the donation land claims.?
Purchase than made a presentation noting that the DSL had done title searches on the properties along the Clatskanie River in the downtown area and had sent the results to the property owners.
Sen. Johnson asked for the cost of those title searches, which Purchase said had taken about two weeks of staff time. The DSL personnel said they did not have that answer at Monday?s meeting, but would get it for Johnson. In regard to a 1902 Circuit Court of the State of Oregon for Columbia County ruling that awarded the bed of the river to property owners on each side, Purchase said that ?the court did not have authority to pass title? to the property.
However, City of Clatskanie Public Works Director Dave True, a licensed engineeer and a registered surveyor who formerly worked for both the DSL and the Oregon Department of Transportation, argued that the 1902 court ruling that transferred titled to the riverbed to private ownership is relevant.
Additionally, True showed maps that indicate the Clatskanie River, at the time the DLCs were granted, was much different than it is today in course, depth and width. In fact, at the time the DLCs were granted the river was not ?meandered? and is not shown on the maps for the land grants.
True also disagreed with the DSL?s contention that the granting of the DLCs to Bryant and Waggoner did not occur until they were signed by President Andrew Johnson in 1866. Instead, he said, the private rights to the property in both DLCs ?became vested in March, 1857,? when they were recorded in the territorial office in Oregon City prior to Oregon statehood, in accordance with the Donation Land Claim act of 1850.
In conclusion, True stated in a document he read and presented to the DSL:
?From a surveyor?s examination of this case, it appears there are numerous clouds on the state?s claim to ownership of the Clatskanie River in the downtown area.
?1. Two DLC grants that vested property rights prior to statehood, that made no mention or acknowledgement of any type of waterway within their bounds.
?2. The Clatskanie River, shown to be located in a different quarter section than where it currently exists to at least 1873.
?3. Documented work in the river channel to enhance use by 1883 and documented channel straightening work in 1901. The work in the channel after 1873 could have changed the location and increased the dimensions of the river and it most certainly changed the location of the river and probably its size and depth in 1901.
?4. A State of Oregon decree, through the Columbia County circuit court, that awarded property ownership to private individuals that included submerged and submersible lands of the Clatskanie River.
?5. At least one purchase by the State of Oregon (highway commission) that included submerged and submersible property from a private individual.?
True also noted that in letters to property owners in October of 2007 and as recently as May, Purchase had referred to a court case involving the Klaskanine River south of Astoria in Clatsop County, not the Clatskanie River in Columbia County.
Property owners John Lillich and Deborah Hazen showed photographs, maps and historical documents that backed up True?s arguments that the Clatskanie River - referred to by Lewis and Clark as ?a small creek? - had changed dramatically since the DLCs were granted and Oregon statehood.
A Clatskanie River ?navigability study? done in the early 1980s concluded that the state would have claim only to that part of the river that was navigable at statehood.
Hazen also gave copies of the DSL?s title search summary on the property owned by her and her husband Phil Hazen, along with copies of the property descriptions in their possession. The Hazens? property descriptions - as do those of other property owners along the river in downtown Clatskanie - show that they own to the ?low water mark? or ?to the bank of the river....together with all riparian rights of such property in to and along said river along said property and the waters thereof.?
In several places, the DSL summary had stated the property descriptions on the deeds read only ?to the bank.?
Property Rights Defended
Lillich read the following statement:
?My name is John Lillich and my wife and I own commercial property within the Clatskanie city limits. We have a clear title to our property. When one buys a clearly defined, surveyed property with a clear title, the purchaser assumes an expectation of total ownership of one?s described land.
?Recently, the DSL has called into question our constitutional right to own part of our private property. I will now present to the DSL eight reasons why they have no claim to what is rightfully ours:
?1. Tidal and navigable waters are not separated out of nor are they mentioned in the maps and descriptions of the donation land claims, that were transferred from the federal government to the early settlers, in 1857, This transfer of ownership took place through legal notification two years prior to Oregon becoming a state.
?2. There is substantial evidence that the Clatskanie River (or Klatskanai Creek as named in the Lewis and Clark Journals on their return trip up the Columbia) was not navigable in 1859. There is evidence that it did not become navigable until significant dredging and canalization took place in the 1870s through the early 1880s. Even small boats could not get past China Point, in the area of today?s Beaver Boat ramp, until a channel was hand dug by the Chinese.
?3. There is scientific evidence that shows that the sea level has been rising at approximately three/thirty-seconds of an inch per year since the beginning of the industrial revolution. This means that in 1859, the high tide line of the Clatskanie River, downtown, would have been between 14 inches and 15 inches lower than it is today. The tidal footprint of the river would have been much smaller than it is now, so, if there was a Clatskanie River as you think there was, then the width of the Clatskanie River in 1859, between its banks, at the high water mark, would have averaged less than 30 feet instead of the current 100 plus feet created by canalization. This is based on the current river width upstream past the point of dredging.
?4. For 149 years there has been no history of leases being paid to the state for piling, structures, or docks by private upland owners bordering the Clatskanie River within the city limits.
?5. The Clatskanie River was never meandered. No one knows its exact location in 1859.
?6. Many assigns of the property located with the donation land claims, can trace their title of ownership back to a notification document issued at the Registrar?s Office in Oregon City in 1857. This is two years prior to Oregon becoming a state. The subsequent notification number was all that was required for ownership of the land to pass from the federal government to the settler. This notification number supercedes the State of Oregon?s patent number from 1866. This information can be found in the Location and Survey of Oregon Donation Land Claims by Lane J. Bowman.
?7. Submersed and submersible land has been included in our tax lot descriptions since the inception of county property taxes.
?8. Some of these aforementioned facts were discussed with the former DSL agent, Larry Potter, about 20 years ago. He told me he was reviewing my property and that he would send me lease forms for my dock from his office should a lease be required. No lease forms were forthcoming.
?In conclusion, I would like to say that I can produce more reasons why I own my property. As an owner of legally and accurately measured and described land within a pre-state donation land claim, containing a canalized and un-meandered creek turned river, I will continue to maintain my right to own this private property as afforded me by the constitution.
?To summarize, according to ORS 274.025, ?the title of submersible and submerged lands of all navigable streams and lakes in this state now existing or which may have been in existence in 1859 when the state was admitted to the Union, or at any time since admission, and which has not become vested in any person, is vested in the State of Oregon. The State of Oregon is the owner of submersible and submerged lands of such streams and lakes, and may use and dispose of the same as provided by law.? In 1859 virtually all land in downtown Clatskanie along the current river was vested in private individuals.
?On the issue of navigability, under the statute, a stream is navigable, in fact, on that date if it was susceptible of being used in its ordinary condition as a highway of commerce, trade and travel, in the customary modes of trade and travel on water at the time of statehood, Feb. 14, 1859.
?In 1859, the Clatskanie River or creek would have been a difficult body of water to navigate. Snags and brush would have impeded travel by canoe and the floating of logs. Numerous sharp horseshoe bends would have been choked with fallen dead logs and limbs. Navigability wasn?t fully accomplished until extensive dredging was begun in the 1870s, initiated by the Bryant family. The footprint of tidal water would have been very narrow in 1859. Old photographs show this to be so. After dredging, the subsequent increase of trade and transportation gave birth to the City of Clatskanie, an historic city that must now rely on maintenance dredging to minimize downtown flooding.
?The boundaries of my property are legally defined. The footprint of the Clatskanie River in 1859 is not. The actions of the DSL have clouded my title and cost me a considerable amount of time. This situation needs to be cleared up immediately so as not to waste any more valuable and costly time by either party.?
In addition to the presentations, questions and concerns by other property owners in attendance, Commissioner Hyde, who also sits on the Oregon Economic and Community Development Commission, expressed his opinion that the actions of the DSL were ?completely counter to economic development.?
?I find it troublesome that we seem to deny the importance of territorial land grants,? said Rep. Witt. ?A deal is a deal is a deal.?
At the end of the two-hour session, Solliday said ?I learned some things tonight that I didn?t know...I want to go back to the office, look through our notes, the written materials you provided, photographs and other things. I understand the angst that this causes folks - we?ll take another look, and come back to everyone with a plan of action.?
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