McKenzie River FarnellMay 11, 1976
: '•: i
to the
STATE LAND BOARD
BY THE
DIVISION OF STATE LANDS
� � � i
; OF THE
�1cKEN�I E RI VER
In 1859 the United States Government transferred ownership of �he beds
of Oregon's navigable wat�naays to the State. As of 1976 Oregon does not
knaw ttae full extent af this transfeg. As more and more developmant occurs
along our waterways, the need to know the location of state-private boundaries
is of supreme importance. The 1973 Legislature recognized this and passed
QRS 274.029-034. This law directed the Division of State Lands to make
a study of each of the wateatiaays of Oregon and make public their findings.
This report is the result of the Divisian's study of the McKenzie
River.
Firs�., the United States Government has the legal resporasibility to
insure that each new state which joins the Union does sa on an equal basis
with the existing states. The original thirteen states retained ownership
of the beds of their navigable watezways. The U S, Govemment, therefore,
reserved to itself the beds of all major watexways in �he Oregon territory
so it could transfer the ownership of the beds of the navigable wate�aays
to the state upon entry into the Union, Oregon received title to the beds
of its navigable waterways in Z859.
Second, the U. S. patents and deeds issued depended upon surveyed
property descriptions. To insure that the beds of the major rivers were
not included in these transactions, the government surveyors descri.bed
by survey lines, the approximate high water lines along the banks of the
major rivers. These bank survey lines are known as meander linese The
patents or government lots extended only to these meander lines.
The McKenzie River has surveyed meander lines to a point above Belknap
Springs.
It should be noted that the U. S. Government surveyors did not attempt
to determine which waterways were navigable. Their meander lines may
inclucle sections of wa�erways which are not navigable in terms of the federal-
state ownership transfer. This is one of the reasons for the Division's
study--to distinguish these areas.
Third, the U. S. Government's 1859 transfer to the state describes
the beds of the waterways transferred as those which were navigable
In order to be able to ascertain which riverbeds were transferred, the
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U. S. Supreme Cour� has defined a navigable river as:
°'Those rivers must be regarded as public navigable
rivers in law which are navigable in fact. And
they are navigable in fact when t:hey are used, or
are suscep�ible of being used, in their ordinary
condition, as highways for coarnnerce, over which
trade and travel are or may be conducted in the
customary modes of trade and travel on water.°'
The Daniel Ball - 10 Wall 557, 563 (1870)
The Court has down through the years in various navigability cases
defined the words used in this test and applied the test to various fact
situations. They have made it very clear that ONLY federal law and court
decisions control what watezways were transferred.
Eourth, in some early decisions the Oregan Supreme Court ruled on
the navigability of several of Oregon's streams, but did not utilize the
federal test. The 1973 Oregon Legislature recagnized this and used the
federal test as part of the Oregon navigability study law, Before the
effect of the state court decisions can be measured, the state must first
find out what was transferred to the statem
F3fth, the 1973 Oregon legislation directed the Division to make a
study and a public statement on the result of the study. By law, this
statement shall not be binding on any person. The intent was to be sure
that the public had the opportunity to know where the state believes the
state-private boundary Iines are located.
Sixth, public meetings on each river under study were included in
�he directive of the 1973 law. These four such meetings on the McKenzie
� River were:
lo February i8, 1975 - Harris Hall, Lane Co. Courthouse, Eugene 7-Zl pm
2. May 20, 1975 - Walterville School, Walterville, 2-10:45 pm
3. May 23, 1975 - Eugene City Council Chambers, Eugene, 9 am ° 5:30 pm
4. May 29, 1975 - Eugene City Council Chambers, Eugene, 9 am - 5 pm
The public meetings were held using the formalized state administrative
procedure law and rules as a guideline as requireci by the Iaw. This caused
a very legalis�ic format for the public z�eting notice and fact sheet presented
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a� the meeting. The notice and the fact sheet may have given the impression
�hat the Divi.sion had already made up its mind on the navigability issue.
5uch an impressiofl is not true. In order to give proper public notice
�he lim:its of the study had to be set and enough infoxmation presented
so that the upper li.mit of navigability was within reason.
The follawing is the review of i:he factual material studied by the
Division of State Lands as well as the reasoning leading the staff af the
Division to believe that a portion of the McKenzie River comes within the
federal navigability test.
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The western part of the State of Oregon is traversed from north to
sou�h by two mountai.n ranges: the Coast Range, star�ing just a few miles
��
inland from the Pacific Ocean, and the Cascade Range, which begins a few
miles east of the city of Portland, Both o� these mountain ranges extend
the ler►gth of Oregon from the Washington border on the north to the California
barder on the south. Between them and to the north exists the Willamette
Valley extending fran the city of Portland some 110 highway miles to a
po3nt below the cities of Springfield and Eugene. This valley is the
flood plain of the Willamette River which in Oregon's early history was
the main route of trade and travel through much of the state's pioneer
growth.
The Willamette River has been extensively navigated from Portland
to Eugene and the U, S. Army Corps of Engineers has maintained a navigable
channel in the Willamette Ftiver between these cities until just recentl.y�
The present mauth of the McKenzie River is located seven (7) river miles
downstream from Eugene or 174 river miles upstream from Portland on the
Willaanette River.
The McKenzie is one of the �hree major tri.butaries of the Willamette.
During the eaxly history of Oregon it was known as the McKenzie Fork of
the Willamette named after ponald MacKenzie, a member of the Astor Pacific
Fur Company who explored the area in about 1812. 1 The McKenzie River supplies
approximately 50� of the river flow of the Willamette River as measured
at a point just below its confluence with the Willamette. It is approximately
90 miles in length and has its beginning at Clear Lake near the summit
of �the Cascade Mountain range. This lake is located approximately 50 miles
east and 24 miles north of Eugene. From Clear Lake, the river flows southward
approximately 15 miles to Belknap Springs and then turns westward 75 miles
�o its confluence with the Willamette,
Z'he McKenzie drains more than 1,300 square miles of heavily timbered
land on the western slope of the Cascade Mountain Range. This drainage
basin is considered to make up 35� of the Willamette River drainage basin
and aimost three quarters of it is classified as timberland.
For approximately the first 30 miles of the McKenzie (to Deerhorn),
the flood plain is low and broado During the ye�r.�, the river has
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meandered back and forth across t.his flood plain and its confluence wi�h
fihe Willamette has been located at many different piaces. Upstream from
DeerPaorn, generally, the McKenzie fload plai.n is fairly narrow and stable
and fixed by a bedrock channel at numerous locations.
The slope of tkae river according to U. S. G. S. Quadrangle maps, as
measured by the Division, varies considerably. For the first 30 miles
from the mouth of the McKenzie to Deerhorn, the slope is approximately
8.0 feet per mile. From Deerhorn upstream to Leaburg (RM 34) the slope
is approximately 10.5 feet per mile. Between Leaburg and Blue River the
slope is 15.7 feet per mile, and above McKenzie Bridge, the slope increases
to 28 feet per mile with a nlmiber of water falls occurring above RM 80,
On the upper river above Leaburg, to the confluence of Blue River
at RM 57, there are nine major rapids including Marten Rapids at RM 45,
and Gate Creek Rapids at RM 41.5. John Garren in his book Oregon River
Tours states that an experienced boater could easily handle the section
of the McKenzie between the confluence of Blue River and Leaburg Dam except
for the two rapids mentioned earlier, but even they can be scouted and
generally easily lined or portaged. He also says t.hat the McKenzae River
is boated most of the year, but May 5 thraugh November 15 are the most
popular boating months. However, the stream carz get very low during late
suma�er and early fall.�
The White Water Parade, an annual boating event� was held on the river
from 1937 to 1970. Included were as many as 600 boats and rafts of all
kinds. All but 5-10$ usually completed the run. The Parade was generally
started at Redsides about two miles above Blue River and ended at Leaburg
� Lake (RM 39). It was usually held in April just before the beginning of
fishing season. However, in 1959 the Parade started at Belknap Springs
in June and finished at Blue River.
On the lower river, there are also rapids that should be mentioned:
Hayden Rapids at RM 16, the rapids at Dutch Henry Rock at ahout RM 34,
and an island above Deadmond's Ferry at RM 12. Clark Young, in his testimony
at the hearing at Walterville on May 20, 1975, listed a n�miber of other
rapids on the lower river beginning at the fish hatchery (RM 40): near
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Greenwood Drive, Deerhorn (RM 30), 1� miles below the golf course, near
WalterviTle School (about RM 26}, above Hendricks �ridge (RM 24), Cedar
Flatsp Abe Lincoln area Oakpoint, and just above Coburg �ridge,
As was mentioned earlier, the average discharge of the McKenzie and
Willamette Rivers at �heir confluence is about equal: approximately 6,000
cubic feet per second (cfs�. However, because of the difference in drainage
basin and snow melt ti.mes, the actual flow of the McKenzie and the Willamette
River may not always be equal month to month. The U. Sa Geological Survey
has performed dye tracer studies of the stream velocity of the McKenzie
River at several points: Coburg at RM 5, Vida at RM 41, the Blue River
confluence at RM 57, and at McKenzie Bridge RM 68.
At the Coburg gaging station (which was removed after 1972) the average
flow was 5,734 cfs, and an average velocity of about 4 miies per hour.
The highest recorded flow discharge at Coburg prior to 1969 was 88,200
cfs on December 29, 1945, and the minimum recorded discharge at this gaging
station was 1,080 cfs on August 19, 1966 The river depth at the Coburg
gaging station control was 12 feet. The average depth at this control
during ordinary low water was about 7 feet, the average flow 5,734 cfs
velocity. The next gaging station up river is near Vida at RM 47.7.
Here, the flow af the river is 79$ of the flow at the Coburg gaging station.
At RM 57, Blue River, the U. S. Geological Survey finds that the flow of
the McKenzie River is still more than 70$ of the flow at the Coburg gagzng
statian. However, above this point the flow of the river seems to drap
off rapidly, At McKenzie Bridge, RM 68, the flow is only 32� of the flow
of the river at Coburg, and a�t the gaging station north of Belknap Springs,
RM 8105, the average flow for the past 15 years is 1,070 cfs or about 19�
of the flow at the Coburg stationo Since 1963 the flow of the McKenzie
River is somewhat regulated by the Smi�h River reservoir at approxi.mate
RM 58
A number of witnesses at the Division's public, information-gathering
hearings pointed out that the McKenzie River is a rapid river as distinguished
from a slow-flowing, lazy one such as sections of the Mississippi are said
to be, The Division in its evaluation of the hydrology of the McKenzie
would agree with this statement.
�
The early history of the population growth and settlements along the
McKenzie seems to indica�e tha� the settlements grew up ar�und the logging
industry, ferry crossings, or the gold mining industry.
The largest community was in the lower flood plain at Coburg, which
was located at RM 5, hut situated two miles north of the river. Although
the town received its name about 1865 or 1866, it was not surveyed and
platted until 1881, the year that the railroad was completed to this point.
The first store and sash sawmill had already been established by 1856.
Other small communities were:
Hayden Bridge {RM 15)
Hendricks Bridge (RM 23)
Walterville (RM 25) named by George Millican who settled on the
McKenzie in 1862, for his son, Walter�
Leaburg (RM 34), where the post office was established in 1877;
Vida (RM 42}
Blue River (RM 57) which was founded by S. C. Sparks in the 1870's;
McKenzie Bridge (RNi 68) which was known as "Craig's Bridge" for John
Tsmpleton Craig who lived in the vicinity during the 1860's when
he was much involved in the construction of the road: and
Belknap Springs (RM 75) which was originally called °'Salt Springs
after the springs which were discovered by R. S, Belknap in 1869.
These communities were the main population centers of this area of
Oregon in the early pioneering days.
The first recorded use of the river for commercial purposes, as evidenced
by Lane County Caurt records, was the operation of a ferry built by G,
H. Armitage in 1853 at the present site of Armitage State Park (RM '7,3y�
Other ferries which have crossed the McKenzie River carrying passengers
and cargo are listed below.
Maxwell's Ferry Mouth of McKenzie ( 2.8 River Mile}
No Name
Deadmond Ferry
Briggs Ferry
Walterville Ferry
Bald Butte, downstream of
Ferry Road °° "
Hayden Bridge
Near Deerhorn
(14.8)
m
(14.8)
( 30. 8)
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Leaburg Ferry Near Leaburg 438.8?
Thomson's Ferry near Vida (46.0)
Eugene had a population of 3,236 people i.n 1900 and 9,009 in 1910;
Sprinqfield had approximately 353 people in 1900, and 1,838 in 1910,
T'he communities along the McKenzie River were connected to Springfield
by the McKenzie road which stretched eastward ou� of Springfield about
35 miles to a point called Rock House and then followed the McKenzie River
to Belknap Springs at RM 74.5 and then travelled eastward over the mountains.
It was at first an Indian trail and the first recorded use by Felix Scott,
a white man, was in 1862. In 1872 it became a toll road and in 1898, a
free coun�y road and finally in 1917, a state highway.
A. Gm Walling in his Illustrated History of Lane County, Oregon published
in 1884, discussed the major tri.butaries that eventually flow into the
McKenzie River. Among those mentioned were South Fork, Lost Creek, Belknap
Springs, and �lue River. Mr. Walling mentions that large areas of Lane.
County lying upon the waters of the McKenzie have not been surveyed and
that there are few settlements because the country is rough and mountainousa
He anakes the statement that there are no settlements on any of the tributaries
of the McKenzie.
Ferhaps the first of the industries that affected the McKenzie area
was a sash mill that Jacob Spores and John Diamond erected in 1855.
Another early industry was that of gold mining in the Blue River area,
where there was an extensive search for gold. The mines were begun in
1863 and the adjacent stream was probably named about the same time. It
was called "Blue River°' because of the appearance of its very clear water
over peculiarly colored rocks forming its battom. It is known that the
Lucky Boy mine �urned out the most gold for the Blue River mines. However,
by 1904 the mine was down to base ore, which meant that the gold was mixed
in with other minerals and would have had to be melted down to separate
it, The Forest Service would not allow this sort of operation because
the pollutants which resulted from the smelting operation would kill the
vegetation of a large area surrounding the smelter. It appears from what
has been written that the major mining activities died out in the early 1900's.
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Another early activity on the McKenzie was that of professionally
guided fishing trips. This activity appeared to have centered around the
Thomson Resort (five mi.les upstream from Vida) where the Thomsons were
the first family to conduct commercially guided fishing trips in 1911.
They loaded the boats in wagans and took them up to Blue River and from
that point, floated davn to Hendricks Bridge (RM 24).
LOG DRIVING ON TFiE MCKENZIE RIVER
During the early pioneering years the major economic activity along
the McKenzie River was logging. The McKenzie River played its part in
this logging activity by transporting free-floating logs to saw mills in
Coburg, Springfield, and as far away as Oregon City. Coburg appears to
have become the site of the first mill operation in 1855 when Jacob Spores
and John Diamond erected a sash sawmi11.
Another early mill dati.ng back to these early days was that of J.
C. Goodale. Goodale's logs were floated down the McKenzie and Mohawk Rivers
to a stiff hoom near the Coburg mill site where the logs were turned into
a storage pond.
In 1899 Booth°Kelly purchased the Goodale mill and storage area and
acquired additional land to enlarge the mill and increase the logging op-
eration. The niunber of employees during this period was increased to 125
and the mill°s daily output, to 225,000 board fee�. To float the logs
from the McKenzie River to the plant site, a long slough was used which
could safely store approximately 8,000,000 board feet of logs. The company
initiated the first large-scale log driving on the McKenzie and log driving
became the chief ineans of transporting logs to �he mills during this period
of timee From i890 to 1910 the Coburg mill was sawing upwards of 100,000
board feet daily the year around.
It is also known that as early as 1875 the J. L. Brumley mill situated
7 or 8 miles north of Eugene on the McKenzie received logs by the river,
and it appears that log drivirag was a common practice by the late 1870°S
�
J. H. McClung, who wrote up his recollections of a trip up the McKenzie
in 1860, writes that just prior to camping near the present location of
Leaburq, they °`passed through a heavy forest consisting principally of
Douglas Fir suitable for lumbering purposes"; and that "at the present
time (grobably the end of the century? this accessible timber tzas been
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cut and floated down the river to mills in the valley."
The Oregon Timberman inci�.cates in an article printed in 1901, that
the ti.mber lands in the entire Willamette Ri.ver basin were estimated to
yield 40-50,000 board feet per acre and the trees were described as averaging
three to seven feet on tI stump, straight as an arrow, often running 100-
150 feet to the first limb. It was not uncommon to find trees five feet
on the stump with a taper of less than 12 inches in 100 feet. Mr, Arthur
Hickson, an 80-year-old resident of Springfield recalled in public testimony
white firs four �o five feet in diameter within 40 feet of the bank of
the McKenzie River at Leaburgo
Logs that used the McKenzie River as transportation came from timberland
areas where there was easy access to the river. The logs were cut and
chuted to the river during the low-water period. The waters were too swift,
deep, and dangerous for log driving during the periods of high water. During
the winter, the high water period, the logs were decked on the banks until
the waters were low enough and then rolled into the river to float down
to the mills. However, it appears that when it was absolutely necessary,
log drives were held in spring, summer, fall, and early parts of the winter.
The logs in the river varied from 16 to 60 feet in length and from
three to five feet in diameter. In some of tne drives it is said that
they averaged 4� feet in diameter with nothing smaller than 18 inches at
the �top end. Sta�tements were made that those logs that were four to five
feet in diameter had to be cut into 16-foot lengths,
The log drives varied in sizee Zn newspapers published from February
to August 1901p there were reports af contracts for 12,000,000 board feet
on the McKenzie in May and 10,00�,000 in August. Drives of 4,000,000
and 6,0OO,OQO board feet for the Booth-Kelly mills were reported in June
of that year. Other newspaper information summarized log driving by
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stating that the drives varied from 3,000,000 to 12,OQ0,000 board feet,
with a single drive averaging about 7,QOQ,Q00 board feet during the 1900-
1910 period.
Log dxiving along the McKenzie, because of the rapid water and the
rapids, was not without incident. There were a number of places where
the logs left the main stream and had to be manipulated back into it or
they created log jams on bars and riffles. To free the �rapped logs, teams
of horses were used. These horses wore special shoes to enable them to
keep their footing on the rocley, gravelly riverbed and worked in varying
depths of water. Occasionally, a horse was drowned trying to free logs.
41
Hayden Bridge and Duteh Henry Rock were listed among the special trouble
spots. At one time, some 700,000 to 1,000,000 board feet af logs were
iannned for about two weeks on Dutch Henry Rock. In 1907 the rock was blasted
to prevent future jams. A way of preventing l.og jams was tkie construction
of wa.ng dams in certain areas of the river, but according to George McCornack,
there were no� too many big log jams on the river.�
For the most part, log drives appear to have taken 30, 40, or 50 days
depending upon the stage of the river. Unusual circumstances sometimes
caus�d them to be considerably Ionger. One drive took as much as 91 days
to cover 20 miles from Walterville to Coburg because the Eugene Water Board
had cut down the flow of the river for its power generating purposes�
Another drive took as much as 100 days,
The exact upper limit of log drives seems to be uncertain. However,
it would appear from all information available that the log drives did
ex�end above Leaburg (RM 34} 4 Alford Edwards, in his oral testi.mony on
May 23, 2975, talked about 1� miles below Leaburg dam at RM 39. Arthur
Hickson in his interview on Sept. 12, 1973, s aid that it was approximately
two miles above Leaburg (RM 36).
The entire lower McKenzie River was used for driving, and there is
evidence to support that logs driven down the McKenzie were floated to
mi11s as far away as CorvaZlis, Newberg, and Oregon City, �hus using the
Willamette River as cae11.
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Some infozmation which might tend to fix the upper limit of log drives
was that apparently in 1855 a major forest fire which started near Gate
Creek at RM 41.5 repartedly destroyed billions af board feet of timber.
J. H. McClung in his recollections of his trip up the McKenzie in 1860
reported that at that time there was hardly a green tree standing for 15
miles along the river. The Division esti.mates tha� the area he was describing
51
was from Gate Creek to Nimrod (RM 51}.
Also, in 1903 the U. S. Farest Reserves were established with the
national forest lands extending to Finn Rock at RM 54 (what is now known
as Ben and Kay Darris State Park) on the north side of the river and Nimrod
at RM 51 on the south side of the river.
The Leaburg Dam at RM 39 was built in 1930, however, the Eugene Water
Board started diverting the McKenzie River at Leaburg for power generation
in 1910. This water diversion was the subject of a lawsuit between the
Booth-Kelly Lumber Co. and the City of Eugene in 1910. The last of the
big drives occurred in 1912 when the Montgomery Bros. moved their logs
down the McKenzies
Depths of the McKenzie in ear�y times are hard t:o pinpoint with exactness.
Oldti.mers had said that there was always plenty of water in the McKenzie.
Some maintained that t2aere was no place to wade across the stream between
Blue River and Coburg. However, Arthur Hickson in his testimony reports
wading across the river around 1910 through three feet of water, but says
that this was possible in only a few places and could be done only in summer,
Booth-Kelly, in their lawsuit of 1910, alleged that the McKenzie River
had always been a stream of considerable size and navigable at all seasons
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of �he year for floating saw logse
Another clue as to the depth of the McKenzie River was from Lester
Calder who, in his testimony, indicated that old-growth Douglas Fir floated
from 2/3 to 3/4 of its diameter below the surface of the water. To float
a 4- to 5-foot log would require over 3 feet of water.
Log driving along the McKenzie was dangerous and there were reports
of log drivers, as well as horses, being dre�aned during these drives.
In summary, �he Division believes that there is more than ample evidence
to sustain the fact that log driving was an eccnom;� activity on the McKenzie
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River frcxn the 1870's to 1913, and that �his me�hod of transportation of
logs present;ed for this period of Oregon's history a very viable and economic
means of transporting timber to the sawmills along the locaer McKenzie,
and in some cases, to mills located along the Willamette River.
NAVIGABILZTY ABOVE THE HEAD OF LOG DRIVES
The federal test defining the term navi.gability expresses the concept
that the river was navigable in fact (actual use) or that i� was susceptible
of being navigable. That is, if the conditions surrounding the development
of the river had been different, would there have been uses above the head
of log driving which would have made the river navigable under the federal
test.
To evaluate this question, it is necessary to review some of the a.n-
formation which has been described in the first part of this report.
The slope of the river is iracreasing between Leaburg Dam and Marten
Rapicis. From a.nformation the sl.ope appears to be 13.6 feet per mi.le. �rom
Marten Rapids to the confluence of Bl.ue River (RM 57) the slope is 18.2
feet per mi1e. Above the confluence of B2ue F2iver the slope appears to
dramatically increase to 27.2 feet per mile.
It is interesting to note that all of the public boating activity
which has beert discusse8 in this report and at the public hearings takes
place in the area between Belknap Springs and Leaburg Dam. 7.'his upper
stretch of the river has two of the river's largest sections of rapids--
, that at Gate Creek (RM 41.5) and Marten Rapids (RM 45). The White Water
Parade which was d:iscussed earlier in the report was stopped because it
just got too large �to manage. The guided fishing tours have decreased over
the years because the fishermen are floating the river on their awn. It
is the opinion of the Division af State Lands that this upper river use
has increased over the years because the river is steeper and fa.ster and
full of rapids and therefore presents a challenge to boa�ers.
Whether or not log driving in this upper river would have been possible
is speculation. There appears to have been en��t water. At Gate Creek,
-i3-
RM 41.5 the flow is 83$ of the flow at Cobur3. At Blue River, RM 57, the
flow is stiil 79� of the flow at Cobupg. The major vol�ne of water in
tYae river �.s still f�.owing i.n the river at th� mouth of Blue River. From
this point it begins to dim�.nish rapidly. At McKenzie Bridge, RM 68, a�
is down to 32$ of the flow at Coburg.
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In the next section of this report the Division will campare our review
of law and apply it to the facts which have been discovered about the river.
APPLICATION OF LAW TO FACTS AIQD RECOMI�NDATION OF DIVISION
The next step in the study is apply the federal law to the facts.
First, what is the law2 2'he United States Supreme Court has firmly statedz
federal law controls, no other. This statement was repeated three years
ago (the most recent state ownership case the court has ruled on) in the
case of Utah v. United States. The federal test of navigability was clearly
stated in the opinion as The Daniel Ball Test and is as follows:
°°�hose rivers must be regarded as public navig�le
rivers i.n law which are navigable in fact. And
they are navigable in fact when they are used, or
are susceptible of being used, in their ordinary
eondition, as highways for coatenerce, over which
trade and travel are or may be conducted in the
customary modes of trade and travel on water."
The Daniel Ball - 10 Wall 557, 563 (1870)
Before examining the test, item by item, in terms of the facts found,
The Da.vision must make a basic assumption. The McKenzie River did not
significantly change in hydraulics between I859 (the time of statehood)
and 1875 (the beginning of the period of extens3ve river use) to materially
affect '°navigability' The Division has found no evidence that it did.
Therefore, the facts found by the Division as to river use in 1875
to 1913 are examples of the river's suscegti.bility of use in 1859.
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T�e test requires the application of the law as contained in the following
phrases to the river '°fac�s'° as found by the Divisions
l. Used, or
2a susc�p�.ible of beinq used
3. �n their ordinary condition
4. as hi.ghways for commerce,
5. over which trade and travel is conducted in the customary modes
of trade and travel on water.
The term 01 used" refers to actual usem The MeKenzie Ri.ver was "used"
by two commercial-type activi4 - log driving and drift boating for hire.
The river's "suseeptibil.ity of being used" will be discussed later
in conjunction with determining the geographic limits of ownership.
The term et OLC�1Tlfi2"� condi�.ion' has been used in the majority of Supreme
Court cases to mean that fche river is used without significant artificial
improvement.
The McKenzie, during the period of log driving, was used in its ordinary
condi.tion. There may have been wing dams to direct the current and some
bank reveisnents anay have been placed to protect banits from erosion. However,
neither of these °°impravements" chanqe i:he ordinary flow of the river in
such a manner as to destroy navigation, and State owaaership. The volume
of water was sufficient; the logs moved during the middle flow period.
During the winter and spring run-off seasons, the river was not used because
of ice and high water run-offs. It appears that the river was used regularly
for 30 years. Impediments such as rapids and sand bars did not stop the
commercial use.
In U.S. v Utah, an awnership case, the caurt stateds
"Recognizi.rag tYae difficulties which are thus
created, the master is plainly right in his
conclusion that tYae mere fact of the presence
of such sandbars causing impedir�nts to navi-
gation dces not make a river non-navzgable.
It is sufficient to refer to the well-known
conditions on the Missouri river and the Missi-
ssippi river. The presence of sandbars must be
taken in connection with other factors anaking
far navigability. In the Montello (United
States v The Montello) 20 Wall. 430, 22 L. ed.
-15-
391, supra, the eourt said: 'Indeed there are
but few of our fresh-water rivers whicki clid
not originally present serious obstructions
to an uninterrupted navigation. In soane cases,
like the Fox river, they may be so great while
they last as to prevent the use of the best
instrumentalities for carrying on commerce,
but the vital and essential point is whether
i:he natural navigation of the river is such
that it affords a channel for useful commerce.
If this be so the river is navigable in fact,
although its navigation may be encompassed
with difficulties by reason of natural barriers
such as rapids and sandbars.'
The phrase °`highways for commerce" refers to the method in which the
river was used. First, the river does not have to be used in interstate
commerce. Secand, while the court has not specifically ruled on log
driving they have made sos� references. In the Rio Grande Dam case (police
power decision) the court stated that:
°'The mere fact that logs, poles, and rafts
are floated down a stream occasionally and
in ti.mes of high ��ter does no� make it a
navigahle river.
In the Appalachian Electric Power case (commerce clause decision)
the application of the tests of navigability is thus described:
"�e navigability of the I�ew River is � of
course, a factual guestion, but to call it
a fact cannot abscure the diverse elements
that enter into the application of the legal
tests as to navigabilitya We are dealing
here with the sovereign powers of the Union,
the Nation's right that its waterways be
utilized for the interes�s of the commerce
of the whole country. It is obvious
that the uses to which tYae streams may be
put vary from the carriage of ocean liners
to the floating out of logs; that the density
of traffic varies equally widely from the
busy harbors of the seacoast to the sparsely
settled regions of the Western mountainso
The tests as to navigability mu�� take these
variations into considera�iono'°
-16-
The court, in Appalachian Power, quoted as authority The Montello
68
statement. In U.S. v Utah (ownership case decision) the coux� after
quotations from a portion of The Montello and a discussi.on of the facts
ira the case, makes the comment:
° question remains one af fact as to the
capacity of the rivers in their ardinary
condition to meet the needs of commerce as
these may arise in the connection with the
growth of the population, the multiplication
of activities and the develogz�nt of natu.ral
resources. And this capacity may be shown
by physical characterist�.cs and experimenta-
tion, as well as by the to which the
streams have been put."
It is the Division's belief that the hiqhway-for-coa�anerce phrase is
broad enough t:o include log driving of the kind that was done on the McKenzie
and, that the McKenzie was used as a highway for the movement of logs for
at least 30 years during times of normal water fla�rs. By either interpretation
of the Daniel Ball test - ownership or police gower deca.sions - this magnitude
of use must certainly qr�alify as "si.gnificant cosmn�rce`
This phrase "custoanary modes of trade aaid travel" refers to uses which
were commonly in use in the region or area considered at the time of statehood.
In 1859, most of Oregon was a wildemess. There were very few °°large°°
settled communities, and the hazards of travel were many. 2'he major industry
was lumbering and the raw materi.al, timber, needed to be brought to 'che
millse These pioneer people used the best means available to transport
the logs for some 30 years - the river. Log driving by means of water was
a customary means of transportation 4trade and travel) for this part of
the country. For�unately, the MeKenzie was geographically ideal for the
movement of timber.
In reviewing all of the facts and the opinion of the Oregon Attorney
General, the Division of S�ate Lands firmly believes that the log driving
which took place on the McKenzie River for over 30 years very adequately
comes within the meaning of the term commerce as described in The Daniel
Ball test and the subsequen� U. S. Sugreme Court opi.nions which interpret
that test.
-17-
We recommend that the S�ate Laryd Board issue a publgc staf.ement that
to the best of their infoxmati.on and belief, based on actua3 use by log
drives, �he McKenzie River was navigable in fact to Leaburg Dam at RNi 39.
However, along wi�h actual use, the suscepti.bility of being used has to
be taken into account.
The Division in making �his actual use navigability recommendation
recognizes that navigation was one-way--downstream only. It also recognizes
that there were certainly hardships accompanied in the floating of logs
down the McKenzie to the mills at Coburg and on the Wil'lamette. xawever,
the Division has found nothing in �he Supreme Court decisions which would
indicate that co�anercial navigation must take place both upstream and down-
stream to qualify under the test, We have found ample opinions that each
river will be evaluated on its awn facts aabd on its own merits within the
context of the use and conunuru.ty which surrounded it. Life in Oregon was
rugged in these early pioneering days and certainly it is without question
that the early loggers were a rugged breed of inen in a difficult and demanding
profession. Their method of transporting the product o£ �heir labors to
the mills must be evaluated in the context of the people and industry exasting
at this time in Oregon's history.
The ques�ion of whether or not any of t�'�e M�Kenzie Ri..ver upstream
from the point of the eaul of log driving was susceptible of being navigable
under the terms of the federal test is much more difficult to answer. The
, Division calls to the Board's attention t.kiat they believe a satisfactory
measure of the susceptibility of navigation on this upper portion of the
river is to evaluate this portion of the river in terms af its ability
� to float logs, shauld other develop�nents along the McKenzie, such as the
forest fire, and the logging railroad have accurred in a different time
frame so that t;.he logging interests wauld have looked to this upper river
area for a source of timbero
Also, the Division wishes to point out that the U. S. Supreme Court
has held that one, or two, obstacles to navigation do not make a river
nonnavigable if the elements of possi.ble usage are present in the remaining
portion of the river ?� An example of this occurs in Oregon where the Oregon
City Falls were an imped3ment to navigation betvveen Portland and the upper
river communita.es.
��
The method which the Divisian has used to answer the susceptibility
of navigation question is one of comparison. The river above RM 39 is
compared �o the river below.
Vo�ume of water - The flow of the river is still subst.antial until
the mouth of Blue Ri.ver where the flow diminishes froM 70� to 61�, Beyond
this poirat the river diminishes in size quite quickly. The flow of the
river really doesn't significantly diminish until Blue Ri.ver. Therefore,
based on flow comparisons alone, the river would seem to be susceptible
to navigation to Blue River.
SIop2 df River - The McKenzie is a steep river to begin witho Where
does the slope truly become significanta Below Leabtarg the average appears
to be 11.3 feet per milea Between Leaburg and Marten Rapids the slope
increased to 13.6 feet per mile. This calculation includes Gate Creek
rapids and Marten Rapids, the two most difficult spots on the riverm
Fram Marten Rapiris to Blue Ri.ver the slope increases to an average of
18 feet per mile. Above tha.s point it goes up to 27.2 feet per milee
Though not much has been sai.d about it, the McKenzie at the site of Leaburg
Dam droppecl eight feet in two-tenths of a mile. This probably prompted
the use of this area for the dam. In reviewing slope statistics, it appears
to the Division that above Blue River the steepness of the river wauld
be a deterrentto log driving.
Between Blue River and MartEn Rapids the average slope of 18.2 feet
per mi.le is still steep but it would depend upon the obstacles in the
river whether ar not log driving would be economical. Below Marten Rapids
the 13.E� feet per mile is probably not significant when campared to the
11.3 feet per mile where 1og driving did take place.
Rapids - The river is full of sma12 rapids above and below the Leaburg
Dam. The two major river rapids occur just above the Dam--Gate Creek rapids
a� RM 4I.5 and Marten Rapids at RM �5. Of these, Marten Rapids is referred
to as the major obstacle on the river.
The Divisian, in reviewing the At�orney General's opinion on what
constitutes susceptibil.ity of navigation, believes that the existence of
the two largest rapids on the river in the space of three and one half
-19-
m�.les coupled with an increase of approximately 5 feet per mile in average
slope above Marten Rapids would act as a barrier to naviqation or suscepti-
�ility of navigation for log driving purposes.
Also, the Division has carefully reviewed the comnercial and recreational
boating use of this ugper river as evidence of navigability. It is the
Division's belief that this type of small float boating, recreational use
where rubber rafts, canaes, special flat bottom boats are used for fishing
and as sport, does not c�ne within the elements of susceptibility of navigation
as defined by the federal test and U. So Supreme Court opinions.
Reviewing all of the fact infarmation about the McKenzie River from
the head of Iog driving (RM 39) upstream, it appears to the Division that
the flow and slope of the historic McKenzie River really didn't begin to
dramatically change until Gate Creek (RM 41.5} The slope is relatively
the same to this poi.nt. Just below the mouth of Gate Creek the flow of
the McKenzie is 83� of the flow at Coburg. The Gate Creek rapids are the
first really majar obstacle �o river traffic with Marten Rapids just three
miles fur�her up river. Beyond this paint, the slope also significantly
increaseso The Gate Creek rapids appear to be the na�ural stopping point
of susceptibility for coa�nercial type navigation.
Therefore, the Division reco�nends to the Land Board that the river
between the Leaburg Dam, RM 39, and the Gate Creek rapids, RM 41.5, is
susceptible of sugparting log driving and comes within the federal test,
The Division's composite recommen@ation is that to the best of its
belief, the McKenzie River from its mouth to the beginning of Gate Creek
rapids is navigable within the meaning of the federal Daniel Ball test
of navigability, an.d, that this portion of the river was part of the 1859
transfer of bed ownership from the U. S. Government to the State of Oregon.
-za-
FOOTNOTES FOR MCICENZZE NAVIGABILITY REPORT
1.� McAxthur, Lewis A., Geogxaphic Names, Oregon Historical Society,
Portland, Oregon, 1974, ppg 479-480.
2e Chart: Average Yearly Flows compiled by Division of State Lands from
UaS.G.Sm Hydrological Stream Flow Records, 1967-1972 (expresseci as a
percentage of the NtcKenzie 12iver at Coburg) .
3e State Water Resources Board, Upper Willamette River Basi.n, Salem,
Oregon, April 1961, ppg 108-109.
4. ibid.
5. U.So Dept< of Interior, Geological Survey, Denvex, CO or Washington,
D.C., for Marcola, Oregon, N4400-W12245/15, 1950m
6. McAllister, E. H. & Sweetser, A. R., Water Power on the McKenzie,
University of Oregon Bulletin, Eugene, Oregon, March 1904, pg 108.
7o Garren John, Oregon River Tours, Binford & Mart, Portl.and, Oregon,
1374 PF�3 60-63.
8. Information obtained from Keith Steele, March 26, 1976.
Garren John Oregon River Tours, Binford & Mart, Portland, Oregon,
1974, pg 60�
9. "Hardy Characters Existed - River Driving was Colorful Era in Lane
County History" Register°Guard, 3uly 2"s, 1950-1.
lOm Edwards, Alford D., oral testimony given at informational hearing,
Eugene, Oregon, May 23, 1975.
McCornack, George, interview with Jo Es Tucker & Ron Husk, Lane
County, March 13, 1973, exhibit 69.
Young,,Clark, oral testimony given at public hearing, Walterville
" School, Walterville, Oregon, February 18, Z975, exhibit 26.
11. Chart: Average Yearly Flows compiled by Division of State Lands from
i1 .5.G.S. Hydrological Stream Flow Recards, 1967-1972 {expressed as a
percentage of the McKenzie River at Coburg?�
12o U.S. Gealogical Survey Publication by David Dm Harris, Hydrological
Investigations, Atlas HA-273, 1968.
13. U.Sa Dept. af Interior, Geological Sua�rey, Water Resources Data
far Oregon, Part 1 Surface Water Records, 1972, pg 208.
14. Chart: Average Yearly Flows compiled by Division of State Lands from
U.S.G.S. Hydrological Stream Flow Records, 1�,.% �_.�':. 'expressed as a
percentaga of �the McKenzie River at Coburg).
I.5. ibid.
16 ibid,
-21-
17. Walling, Ao G., Illustxated History of Lane County, Oregon, Portlazad,
Oregon, 1884, ppg 467-468.
18. "Roads Sparked McKerizie Area Growth", Register Guard, February 22,
1959.
19. `°Floaded McKenzie Plays Part in Legal Battle on Lane Ferries",
Register Guard, Oregon Trail Edi.tion, Vol. 93 No. 18, July 18,
1937, pg 3.
20a Patch, Mildred, McKenzie Memories, The Oregon Farmer, Cowles
Publishing Company, Spokane, Washington, Oc�ober 2, 1958, pg 32,
21. Statistics of Populatian-Oregon, Oregon State Blue Book, Salem,
Oregon, 1929-30, pg 77.
22. Stobie, Maple, Home McKenzie Bridge, McKenzie Bridge, Oregon,
1969, ppg 3-4.
23. Walling, A. G., Illustrated History of Lane County Oregon, Portland,
Oregon, 1884, pg 463.
24a ibid, pg 467.
"River Rats' Were Hardy Lumberxnen - Log Drives Were Exciting°°,
Register Guard, March lp 1959m `
25. °'The Blue River Mines", The Morning Oregonian, Tuesday, December 17,
1��9, pg 3.
Season of Harvest, Recollection of Lane County, Youth and Senior
Exchange Project (Lane Caunty Sociai Services Division, Youth
and Children's Services Program), Summer, 19?5, pg 200.
26. "McKenzie River Residents Gather to Honor 'Oldtimers' and to
Hear of Pioneer Days", Eugene Register Guard, March 29 1946,
pg 12.
"'Granchna' Thomson Recalls History of Thomson's Lodge", August 8,
1948, exhibit 10.
27. Mason, Glenn, River Driving in Lane County, Lane County Historian,
tTOl. XVIIZ, No. 2, Eugene, Oregon Stanmer, 1973, pg 25.
28. Thomas v. Booth-ICelly Co., answer filed by defendant in Lane County
Circuit Court, July 22, 1903, pg 13.
29. Booth-Kelly v. City of Eugene, 67 OR 381 (1913), exhibit 3.
A2ason, Glenn, River Driving in Lane County, Lane Couz�ty Historian,
Vol. XVIII, No. 2, Eugene, Oregon, Stmlmer ].�??' r� 26.
30. zbid pg 24.
_22_
31. McClung, J. H "Recollecti.ons of a Trip up the McKenzie River in
the Fall of 1860", Lane County Museum scrapbook, Eug�ne, Oregon.
32. "Lumbering Interests of Lane County" The Columbia River and
Oregon Timberman, extract, Vol. II, No. 8. June 1901, ppg 15-16.
33. ibid.
34. Arthur Hickson interview with A. R, Panissidi, September 23,
1973, Spra.ngfield, Oregon, exhibit 6, pg 7.
35. Alford D. Edwards interview with A. R. Panissidi, Segtember 12,
1973, LaPine, Oregon, exhibit 6, pg 7.
Guy Stephens interview with A. R. Panissidi, November 1, 1973,
McKenzie Highway, Oregon, exh:ibit 6, ppg 11-12.
Arthur Hickson interview with J. E. Tucker, March 19, 1975,
Springfield, Oregon, e�ibit 71.
"Lumbering Interests in Lane County", The Columbia River and
Oregon Timberman, extract, Vol. II, No. 8, June, 1901p ppg 15-16.
36. Eugene riarn.ing Register, May 24, 1901.
37. The Coluntbia River and Oregon Ti.mberman, Vole 2, Noe 10,
August, 1901e
38. The Columbia River and Oregon Timberman, Vol. 2, Nom 8, June 1901.
39. The Columbia River and Oregon Timberman, Vol. 3, No. 8, June 1902.
40. °° Hardy Characters Existed - River Driving was Colorful Era in Lane
County History Register Guard, July 23, 1950-1.
Alford Do Edwards interview with A, R. Panissidi, LaPine Oregon,
September 23, 1973, exhibit 6, pg 7.
41. George McCornack in�erview with Glenn Mason, Lane County, March 13,
1973, p 15.
42. Alford D. Edwards oral tes timony at informational hearingp Eugene
Oregon, May 23, 1975.
43o George A. McCornack interview with J. E. Tucker & Ron Husk,
April 4, 1975, pg I3.
44. Alford D. Edwards oral testimony at informational hearing, Eugene,
Qregan, May 23, 1975.
°°Those Were the Days - Logging Called for Lusty Crews When O1' Man
River was Used to Brinq Z,ogs to Mills" Register Guaxd, February 28,
1954.
-23-
45. Alford D. Edwards oral testimony at informafi:i.onal hearing, Eugene,
Oregon, May 23, 1�75.
46. Alva McPherson interview with A. R. Panissidi, exhibit 6, pg 8.
47. Alford D. Edwards interview with A. R. Panissidi, September 23,
1973, LaPine, Oregon, pg 5.
Arthur Hickson intarview with J, Eo Tucker, March 19, 1975,
pg 6.
48. Alford D. Edwards oral testimony at informational hearing, Eugene,
Oregon, May 23, 1975.
49. Arthur Hickson interview with A. R. Panissidi September 23,
1973 pg 3.
50. °'Hardy Characters Existed - River Driving was Colorful Era in Lane
CouTlty HistOr'y" Register Guard, July 23 1950-1.
Mason, Glenn, River Driving in Lane County, Lan€� Ccunty Historia�
Vo3. XVIII, No. 2, Eug�ne, Oregon, Sua�►er, 1973, pg 26.
51. McClung, J. H., "Recollections of a Trip ug the McKenzie River
in �he Fall of 1860", Lane Coun�ty Museuan scrapbook, Eugene,
Oregon.
52. Gail Burwell, Public Infonnation Specialist for U. S. Forest
Service, Willamette National Forest, Eugene, Oregon.
53. Booth-Ke21y v� City of Eugene, 67 OR 381, (1913), exhi.bit 3.
5�. Alford D. Edwa.rds interview with A. R. Panissidi, September 23,
1973, exhibit 6, pg 4.
Alford D. Edwards oral testimony at informational hearing, Eugene,
Oregon, May 23, 19'75.
"Wendling Soon a Ghost Tawn", Register Guard, July 23, 1950, pg 8F.
°" River Rats' Were Hardy Lumbermen - Log Drives Were Exciting'
Re�ister Guard, March 1, 1959.
55. Al.ford Do Edwards interview with A. R. Panissidi, September 23,
1973, exhi.bit 6, pg 4.
Alva McPherson interview with A. R. Panissidi, exhibit 6, pg 15a
Arthur Hickson interview with J. E. Tucker, March 19, 1975, pg 10.
56. Arthur Hickson interview with A. R. Panissidi, Sep�ember 23, 1973,
exhzbit 6, pg S.
57. Booth-Kelly v. City of Eugene, 67 OR 381, e�ibit 3, pg 4.
-24-
58. Lester Calder oral testimony at informational hearing, Eugene,
Oregon, May 23 1975.
59 McAllister, E. H. & Swee�ser, Ao R Water Power on the McKenzie,
University of Oregon Bulletin, Eugene, Oregon, March 19Q4, pg 108.
60. Th�nson v. Dana, 52 F 759, 761 (1913).
61 Chart: Average Yearly Flows compiled by Division of State Lands from
U.S.G.S. Hydrological Stream Flow Records, 1967-1972 (expressed as a
percentage of the McKenzie River at Coburg).
62 Some court cases have quoted the test as natural and ordinary.
This variation came from the commerce-clause °'Montello'° case
and a string of police power cases which follow that trend.
However, it is the Division's opinion that the last statement
of the court should be controlling - Utah v. U 403 US 9, 10
(1971). The use of the word 11 natural°' may or may not change the
meaning of the phrase. In UaSo ve Appalachian Electric Power
Co. �he natural and ordinary refers to the volume of water
gra8ients and regularaty of f�.ow. (311 US 377, 407 {19aQ))c
63. Arthur Hickson interview with J. E. Tucker, Springfield, Oregon,
March 19, 1975p exhibit ?l.
64. U�S. v� Utah, 283 US 64, 86 (1930?.
65. Utah v. U.S 403 US 9, 10 (1971),
66 U.S. v. Rio Grande Dam, I74 US 690, 698 (1899),
67. U.S. vo Appalachian Electric Power Co., 311 US 377, 405-6 (1940).
68. U v The Montello 20 Wall 430 (1874).
69 UoS, v. Utah, 283 US 64, 83 (1930)0
• 70. UoSo v. The Montello, 20 Wall 430 (1874),
-25-
AVERAGE YEARLY FLOWS
In Cubic Feet per Second
$ of Flow
Gage Number Water Year 6-Year at Coburg
& Location 1967 1968 1969 1970 1971 1972 Average {5734 cfs)
14-1590
McKenzie River
at McKenzie Bridge 1532 1473 1851 1680 2037 2377 1825 31.8�
14-1595
South Fork McKenzie
a�ear Rainbow 712 600 914 760 1056 1243 880 15.3
14-1622
Blue River
at Blue River 394 375 500 437 614 727 507 8.8
14-1625
McKenzie River
near Vida 3628 3308 4529 379? 5018 5823 4350 '15.9
14-1630
Gate Creek
at Vida 182 162 236 178 244 318 220 3.8
14-1650
Mohawk River
near Springfield 476 397 661 Sd4 656 847 590 10.3
14-1655
McKenzie River
near Coburg 4601 4332 5899 4952 6664 7958 5734 100.0
*Compiled by
Division of State Lands
from
Water Resources Data
U. S. Department of the Interior
Geological Survey
209
ORECON LEGISLATIVE ASSEMBLY-19?3 REC3t3LAR SESSIUN
nr�Il
��nat� ��11 33
By order of the President
cxA�rEx..........4 9.4 ........ ........ ....
AN ACT
Rela�ng to determining the navigability af strearns.
� It EaHacted by the People of the State of Oregon:
SEC�'ION L As used in this Act:
{2) "Division" means the Division of State Lands.
(2) '`I.ssue of navigability" means, for the purposes of the division's
performance of its lawful furfitions, whether a stream was navigable in
fact on February 14, 1859. A stream was navigable in €act an that date if
:t was sus�e�tib2e �f bein� used in ffs ordinary condation as a highway for
coanmerce, trade and travel in the customar.y modes of trade and travel
on water.
�ECTI�N 2. The division shall investigate the issue of navigability of
a stream or any portion thereaf and, in accordance with ORS 183.310 to
18�.5d0, shall determine, priar to July 1, 197?, the issue of navigability for
such strearn or portior� upon its ocvn motion or upon the request of any
person or state agency affected by the division's performance of its lawful
functians. In conducting an investigation of tlie navigability of a stream
or partion thereof und�r this sectior, the div;s;on shall mail written notice
of eack� Izearing _to be held durin� such investigation, not Iater than 20 days
prior to the date �of such hearing. The notice shall be addressed tv each
owner of recard of any Iand adjacent or contiguaus to such stream or por-
tion at his p2ace of business or residence. Any determination of navi-
gability made by the division under this section shall not be bind�ing upon
any person, bufi such determination shall be binding upon the d'avision in
the gerformance of its lawful duties.
.
Approved by the Governor July 2I, 1973.
Filed in the office of Secretary of State July 24, 1973.
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