State of Or., By and Through Div. of State Lands v. Riverfront Protection Ass'n

• Decision Date: 26 March 1982
• Docket Number: No. 81-3035,81-3035
• Citation: 672 F.2d 792
• Parties: 12 Envtl. L. Rep. 20,728 STATE OF OREGON, By and Through the DIVISION OF STATE LANDS, Plaintiff-Appellant, v. RIVERFRONT PROTECTION ASSOCIATION, an unincorporated association; Henry Salot, Sarah G. Salot, Carl Wilson, Rose Wilson, John E. Jaqua and Rosemond R. Jaqua, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 792

672 F.2d 792

12 Envtl. L. Rep. 20,728

STATE OF OREGON, By and Through the DIVISION OF STATE LANDS Plaintiff-Appellant, v. RIVERFRONT PROTECTION ASSOCIATION, an unincorporated association; Henry Salot, Sarah G. Salot, Carl Wilson, Rose Wilson, John E. Jaqua and Rosemond R. Jaqua, Defendants-Appellees.

No. 81-3035.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Feb. 3, 1982.

Decided March 26, 1982.

Peter S. Herman, Senior Asst. Atty. Gen., Salem, Or., argued, for plaintiff-appellant; William F. Gary, Deputy Sol. Gen., Salem, Or., on brief.

Donald J. Morgan, Wood, Tatum, Mosser, Brooke & Holden, Portland, Or., for defendants-appellees.

Appeal from the United States District Court for the District of Oregon.

Before SNEED, ANDERSON, and REINHARDT, Circuit Judges.

SNEED, Circuit Judge:

This appeal poses the question whether the McKenzie River between river mile 37 and its confluence with the Willamette River was navigable under federal law on February 14, 1859 when the State of Oregon was admitted to the Union. If it was so navigable title to the riverbed vested at that time in the State of Oregon. The district court held that it was not so navigable. We hold that the McKenzie River between river mile 37 and its confluence with the Willamette River was navigable and reverse.

I. BACKGROUND

To determine ownership of the riverbed underlying the reach of the McKenzie now in dispute, the appellant, State of Oregon, sought a declaratory judgment that when the State of Oregon was admitted to the Union, the disputed reach of the McKenzie River was navigable. The appellee, Riverfront Protective Association, is an unincorporated association composed primarily of persons owning real property riparian to the McKenzie River. Many of these landowners hold title derived from federal land patents. They threaten to engage in acts that would interfere with plaintiff's ownership of the land.

The parties stipulated to a magistrate's trial with the case to be submitted on the pretrial order and briefs. On December 5, 1980, the magistrate issued his findings of fact and conclusions of law as those of the district court. See 28 U.S.C.A. § 636(c) (1981). Thus, the court determined that the McKenzie River was not navigable in 1859, nor was it commercially usable in its ordinary condition. Clerk's Record 28, p. 19. Thereafter, the court entered judgment ordering that plaintiff take nothing and dismissing plaintiff's action on the merits. Clerk's Record 29.

The facts are not in dispute. On questions of law, our review is not limited by a duty to defer to the decision of the district court. East Oakland-Fruitvale Planning Council v. Rumsfeld, 471 F.2d 524, 529 (9th Cir. 1972). Jurisdiction in the district court was based on 28 U.S.C.A. § 1331 (1981).

II. ANALYSIS

A. Title to the Riverbed

Upon the admission of a state to the Union, title to lands underlying navigable waters within the state passes from the United States to the state as incident to the transfer to the state of local sovereignty. Therefore, title to the submerged and submersible lands within the state vests in the state subject only to the paramount power of the United States to control such waters for purposes of navigation in interstate and foreign commerce. United States v. Oregon, 295 U.S. 1, 14, 55 S.Ct. 610, 615, 79 L.Ed. 1267 (1935). This is so even though the waters in question are wholly within the borders of the state and are not part of a navigable interstate or international waterway. Id.; Utah v. United States, 403 U.S. 9, 10, 91 S.Ct. 1775, 29 L.Ed.2d 279 (1971). If the waters are not navigable the title of the United States to land underlying them remains unaffected by the creation of a new state. See United States v. Utah, 283 U.S. 64, 75, 51 S.Ct. 438, 440, 75 L.Ed. 844 (1931); Oklahoma v. Texas, 258 U.S. 574, 583, 42 S.Ct. 406, 410, 66 L.Ed. 771 (1922). As pointed out above, at least some of the defendants-appellees in this case hold titles descended from federal title.

Thus, ownership of the riverbed on February 14, 1859 substantially affects its present ownership. Whether the waters within the state are navigable or non-navigable is a federal question. United States v. Oregon, 295 U.S. 1, 14, 55 S.Ct. 610, 615, 79 L.Ed. 1267 (1935); United States v. Holt State Bank, 270 U.S. 49, 46 S.Ct. 197, 70 L.Ed. 465 (1926); Brewer-Elliot Oil & Gas Co. v. United States, 260 U.S. 77, 43 S.Ct. 60, 67 L.Ed. 140 (1922).

B. Navigability

A river is navigable under federal law when it is used or susceptible of use in its ordinary condition as a highway for commerce over which trade and travel are or may be conducted in the customary modes of trade and travel on water. The Daniel Ball, 77 U.S. (10 Wall.) 557, 563, 19 L.Ed. 999 (1870). The Daniel Ball sounded in admiralty, but the Supreme Court has adopted the same definition in "navigability for title" cases. See, e.g., Utah v. United States, 403 U.S. 9, 91 S.Ct. 1775, 29 L.Ed.2d 279 (1971); United States v. Oregon, 295 U.S. 1, 55 S.Ct. 610, 79 L.Ed. 1267 (1935).

In a case decided five weeks after the magistrate's opinion here, we held evidence of transportation of logs by river sufficient, when joined with the other facts of the case, to support a finding of navigability for purposes of federal regulatory jurisdiction under 16 U.S.C. § 796(8) (1976). 1 PugetSound Power & Light Co. v. FERC, 644 F.2d 785, 788-89 (9th Cir.), cert. denied, --- U.S. ----, 102 S.Ct. 596, 70 L.Ed.2d 588 (1981) (shingle bolts).

We recognized in that case that use of the river need not be without difficulty, extensive, or long and continuous. Id. Like the logs transported down the McKenzie, the shingle bolts in Puget Sound "required nearly constant handling by the drivers to break up jams, free those bolts that were lodged on the banks and shallow areas, and direct them down the main channel of the river." Id.

Transportation on the McKenzie may have been somewhat more difficult. In Puget Sound drivers found the work "not difficult," 644 F.2d at 788, whereas on the McKenzie it took substantial logging crews an average of from thirty to fifty days to complete a log drive down the 32-mile reach at issue. Unfavorable circumstances could increase this time to over ninety days. Intractable log jams had to be broken up with dynamite. Too much rain caused uncontrollable flooding; too little exposed gravel bars, boulders, and shoals. Crews might spend three or four days moving logs across a single gravel bar. But notwithstanding such difficulties, thousands of logs and millions of board feet of timber were driven down the river. Significantly, the evidence shows that the logs floated on the McKenzie were much larger than the shingle bolts floated on the White River in Puget Sound and, apparently, the entire volume of traffic also was larger.

Nor does the seasonal nature of log drives on the McKenzie destroy its navigable character. While it is true that the Supreme Court has observed that "The mere fact that logs ... are floated down a stream occasionally and in times of high water does not make it a navigable river," United States v. Rio Grande Dam & Irrigation Co., 174 U.S. 690, 698, 19 S.Ct. 770, 773, 43 L.Ed. 1136 (1899) (italics added), navigation on the McKenzie did not depend on high water. In fact, the river was never used during high water. Cf. 644 F.2d at 788 (White River) (same). During the high-water period of November through March, the river was too swift, deep, and dangerous for logdriving. During the low-water period from July through October, bars, rapids, boulders, and shoals usually prevented log drives. Furthermore, the log drives were not "occasional." Most drives on the McKenzie were held in April, May, and early June over a period of seventeen years. Thousands of logs and millions of board feet of timber were driven down the river. Such use of the McKenzie was not "occasional."

Because the parties stipulated that evidence from the late 1800's and early 1900's would be deemed evidence of the river's natural condition on February 14, 1859, only the question of whether the river was navigable in its ordinary, unimproved condition is at issue. The magistrate's findings of fact show that the McKenzie was sometimes temporarily deepened for logdriving by construction of "wing dams."...