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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 -1- 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 -2- 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. - 3- 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 -4- 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 -S- 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) -7- 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. � 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 31 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 -10- 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. -11- 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 - 57 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 -12- 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. 61 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. -14- 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. 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