69th OREGON LEGISLATIVE ASSEMBLY--1997 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 3940
Senate Bill 1140
Sponsored by Senator FERRIOLI; Representative MONTGOMERY (at the
request of Oregonians in Action)
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.
Establishes Class I and Class II waters for purposes of public
use. Prescribes uses allowed for each class. Quitclaims any right
State of Oregon may have in bed or banks of certain waters of
state. Requires State Land Board to identify by rule waters of
each class.
Establishes crime of criminal trespass on riparian lands.
Punishes by maximum imprisonment of one year in jail, $5,000
fine, or both. Punishes subsequent offense by maximum
imprisonment of five years, $100,000 fine, or both.
Requires boats to be equipped with appropriate means of
containing human and animal waste. Prohibits consumption of
alcoholic beverages when accessing private land for recreational
use. Punishes violation by revocation of fishing or hunting
licenses on first offense and confiscation of boats and equipment
on subsequent offenses.
Allows property tax exemption to landowner who provides
permanent recreational easement on bed and banks of waterway.
Directs State Department of Fish and Wildlife to negotiate annual
leases for recreational access to bed and banks of waterways.
A BILL FOR AN ACT
Relating to waters of the state; creating new provisions; and
amending ORS 164.785, 496.146 and 497.071.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + As used in sections 1 to 5 of this Act:
(1) 'Barrier' means an artificial obstruction located in or
over a water body, restricting passage on the water, that totally
or effectively obstructs the use of the surface water at the time
of use. 'Barrier' may include but is not limited to a dam, bridge
or fence or any other man-made obstacle.
(2) 'Board' means the State Land Board.
(3) 'Class I waters' means surface waters that:
(a) Are directly affected by tidal ebb and flow; or
(b) Flow over lands that have been judicially determined to be
owned by the State of Oregon by reason of application of the
federal navigability test for state ownership of the bed and
banks of a waterway.
(4) 'Class II waters' means surface waters that in their
regular state, excluding flood stages, are floatable throughout
the year but have not been judicially determined to be owned by
the State of Oregon by reason of application of the federal
navigability test for state ownership of the bed and banks of a
waterway.
(5) 'Emergency use' means an activity necessary to:
(a) Obtain immediate and necessary medical attention;
(b) Make emergency, temporary repairs of flotation crafts and
devices to enable the user to continue down the waterway until
reaching a place where permission has been granted for portage;
or
(c) Portage upon the bed or banks or adjacent land of a
waterway around a barrier of the waterway in the least obtrusive
manner possible while taking reasonable precautions against
damaging the property adjacent to the waterway and taking
reasonable steps to repair any damage to the property.
(6) 'Floatable' means capable of supporting, on the surface of
the water without touching the bottom, a flotation craft or
device used by humans.
(7) 'Flotation craft or device' includes but is not limited to
a boat, raft, inflatable mattress or inner tube, with or without
a motor.
(8) 'Ordinary high water mark' means:
(a) The measured and verifiable average high water mark of the
waterway over a 28-day period; or
(b) The line that water impresses on land by covering it for
sufficient periods to cause physical characteristics that
distinguish the area below the line from the area above it.
Characteristics of the area below the line include, when
appropriate, but are not limited to deprivation of the soil of
substantially all terrestrial vegetation and destruction of its
agricultural vegetative value. A flood plain adjacent to surface
waters is not considered to lie within the surface waters' high
water marks.
(9) 'Recreational use' means floating in a flotation craft or
device for a recreational purpose not prohibited by law. + }
SECTION 2. { + On Class I waters, the public has the right to
float on the water and to use the bed and banks of the waterway
up to the ordinary high water mark for any purpose not otherwise
prohibited by law. + }
SECTION 3. { + On Class II waters, the public has the right to
float on the water for recreational use but may use the bed and
banks of the waterway up to the ordinary high water mark only for
emergency use and reasonable portage. + }
SECTION 4. { + (1) The State of Oregon hereby quitclaims and
releases, without warranty, to any underlying title holder any
right, title or interest the State of Oregon may have in the bed
or banks of all Class II waters and, as determined by the
Division of State Lands, that this state may have received as a
result of the grant to Oregon at statehood of title to the bed
and banks of navigable waterways within this state.
(2) The Division of State Lands shall not call into question
the title of any person to any lands for which the deed
description indicates ownership to the center of a waterway that
is not classified as Class I water. + }
SECTION 5. { + (1) The State Land Board shall adopt rules
identifying Class I and Class II waters and limiting the use of
such waters in accordance with the provisions of sections 1 to 4
of this Act.
(2) The rules adopted by the board under subsection (1) of this
section shall include a procedure for responding to public
requests for information on whether a specific waterway is Class
I or Class II water, and the extent to which public use is
available or prohibited in association with each class of
water. + }
SECTION 6. { + (1) A person commits the crime of criminal
trespass on riparian land if the person enters or remains
unlawfully in or upon the bed or banks of Class II waters, as
defined in section 1 of this Act.
(2) A first conviction of criminal trespass on riparian land is
a Class A misdemeanor.
(3) A second or subsequent conviction of criminal trespass on
riparian land is a Class C felony. + }
SECTION 7. { + Section 8 of this Act is added to and made a
part of ORS chapter 830. + }
SECTION 8. { + No person shall operate a boat in the waters of
this state unless the boat is equipped with an appropriate means
of containing human and animal waste and trash and transporting
such waste and trash to appropriate disposal facilities. + }
SECTION 9. ORS 164.785 is amended to read:
164.785. (1) It is unlawful for any person, including a person
in the possession or control of any land { + or any person
making recreational use of a waterway as allowed under section 2
of this 1997 Act + }, to discard any dead animal carcass or part
thereof, excrement, putrid, nauseous, noisome, decaying,
deleterious or offensive substance into or in any other manner
befoul, pollute or impair the quality of any spring, river,
brook, creek, branch, well, irrigation drainage ditch, irrigation
ditch, cistern or pond of water.
(2) It is unlawful for any person to place or cause to be
placed any polluting substance listed in subsection (1) of this
section into any road, street, alley, lane, railroad right of
way, lot, field, meadow { - or - } { + , + } common { + or
bed or bank of any waterway in this state + }. It is unlawful for
an owner thereof to knowingly permit any polluting substances to
remain in any of the places described in this subsection to the
injury of the health or to the annoyance of any citizen of this
state. Every 24 hours after conviction for violation of this
subsection during which the violator permits the polluting
substances to remain is an additional offense against this
subsection.
(3) Nothing in this section shall apply to the storage or
spreading of manure or like substance for agricultural,
silvicultural or horticultural purposes, except that no sewage
sludge, septic tank or cesspool pumpings shall be used for these
purposes unless treated and applied in a manner approved by the
Department of Environmental Quality.
(4) Violation of this section is a Class A misdemeanor.
(5) The Department of Environmental Quality may impose the
civil penalty authorized by ORS 468.140 for violation of this
section.
SECTION 10. { + Section 11 of this Act is added to and made a
part of ORS chapter 830. + }
SECTION 11. { + (1) Any person who consumes any alcoholic
beverage on private land while floating on Class I or Class II
waters in this state as allowed under section 2 or 3 of this 1997
Act is declared to be a nuisance. Upon the first violation of
this section, the State Department of Fish and Wildlife shall
revoke any fishing or hunting license held by the person. Upon
subsequent violations, the person's flotation craft or device, as
defined in section 1 of this 1997 Act, and other equipment are
subject to civil in rem forfeiture.
(2) Any property subject to forfeiture under this section shall
be seized when the person is cited for the violation of
subsection (1) of this section.
(3) Seizure and forfeiture proceedings under this section shall
be conducted in accordance with chapter 791, Oregon Laws
1989. + }
SECTION 12. { + Notwithstanding section 22, chapter 791,
Oregon Laws 1989, the following sections remain in effect after
December 31, 1997, for purposes of seizure and forfeiture
proceedings under this Act:
(1) Sections 1, 2, 4, 5, 6, 7, 8, 9, 10, 11b, 11c, 12, 12a, 13
and 20, chapter 791, Oregon Laws 1989;
(2) Sections 4, 5 and 6, chapter 934, Oregon Laws 1991;
(3) Section 5, chapter 218, Oregon Laws 1991;
(4) Section 5, chapter 553, Oregon Laws 1993; and
(5) Sections 13, 14, 15 and 16, chapter 699, Oregon Laws
1993. + }
SECTION 13. { + Sections 11 and 12 of this Act apply only to
forfeiture proceedings arising out of a violation of section 11
(1) of this Act occurring on or after the effective date of this
Act. + }
SECTION 14. { + Sections 15 and 16 of this Act are added to
and made a part of ORS chapter 307. + }
SECTION 15. { + (1) Upon compliance with subsection (2) of
this section, a recreational waterway easement of real property
owned by a private individual or organization shall be exempt
from taxation if:
(a) The property is dedicated as a recreational waterway
easement and the instrument of dedication contains or is
accompanied by a description of the property that allows the
county assessor to locate the boundaries of and otherwise
identify the property;
(b) The instrument of dedication is recorded in the records of
the county recording officer and the property description is
either so recorded or is filed in the office of the county
assessor;
(c) A management agreement setting forth in detail the
responsibilities for administering the recreational waterway
easement has been entered into between the individual or
organization and the State Land Board and the property is managed
in compliance with the agreement; and
(d) The Division of State Lands determines that the property is
needed as a recreational waterway easement.
(2) On or before April 1 preceding the first tax year for which
exemption under subsection (1) of this section is desired, the
owner shall file a claim for exemption with the county assessor,
except that if the property becomes qualified for the exemption
after March 1 but before July 1, the claim shall be filed within
30 days after the property qualified for the exemption. + }
SECTION 16. { + (1) If, after an exemption under section 15 of
this 1997 Act is granted, the county assessor discovers that the
property or portion of the property is not managed in compliance
with the management agreement entered into between the owner and
the State Land Board or that the property otherwise fails to
qualify for the exemption, the board shall be notified and
following review and recommendation by the board:
(a) The exemption granted under section 15 of this 1997 Act may
be terminated immediately, without right of notice or appeal;
(b) The property or portion shall be assessed and taxed as
other property similarly situated is assessed and taxed; and
(c) Notwithstanding ORS 311.220, there shall be added to the
general property tax roll for the tax year next following the
discovery, to be collected and distributed in the same manner as
other real property tax, an amount equal to the amount of tax
that would have been due on the property had it not been exempt
under section 15 of this 1997 Act for each of the years, not to
exceed the last five years, during which the property was exempt
from taxation under section 15 of this 1997 Act.
(2) The assessment and tax rolls shall show 'potential
additional tax liability' for each property granted exemption
under section 15 of this 1997 Act.
(3) No additional taxes shall be imposed under subsection (2)
of this section if the property becomes disqualified for
exemption under section 15 of this 1997 Act because:
(a) The property is destroyed by fire, act of God or other
natural disaster; or
(b) The Division of State Lands determines that the property is
no longer needed as a recreational waterway easement.
(4)(a) Property that is being assessed under any of the special
assessment laws listed under ORS 308.025, including ORS 308.370
(1), may be granted the exemption provided under section 15 of
this 1997 Act, upon application filed as provided under section
15 of this 1997 Act.
(b) Notwithstanding the provisions of any of the special
assessment laws listed under ORS 308.025, including ORS 308.370
(1), the additional taxes, penalties and interest that would be
due as a result of the change to exemption under section 15 of
this 1997 Act shall be abated and shall not be collected.
(5) Additional taxes collected under this section shall be
deemed to have been imposed in the year to which the additional
taxes relate. + }
SECTION 17. { + Upon request of a landowner, the State
Department of Fish and Wildlife shall negotiate a one-year lease
with the landowner to provide access to the bed and banks of a
waterway subject to recreational use by the public. Lands subject
to a lease negotiated under this section shall be equipped with
public facilities, including but not limited to sanitary
facilities, picnic areas and campsites. All private property
adjacent to such lands shall be clearly identified as private
property and not accessible for recreational use by the
public. + }
SECTION 18. ORS 496.146 is amended to read:
496.146. In addition to any other duties or powers provided by
law, the commission:
(1) May accept, from whatever source, appropriations, gifts or
grants of money or other property for the purposes of wildlife
management, and use such money or property for wildlife
management purposes.
(2) May sell or exchange property owned by the state and used
for wildlife management purposes when the commission determines
that such sale or exchange would be advantageous to the state
wildlife policy and management programs.
(3) May acquire, introduce, propagate and stock wildlife
species in such manner as the commission determines will carry
out the state wildlife policy and management programs.
(4) May by rule authorize the issuance of such licenses, tags
and permits for angling, hunting and trapping and may prescribe
such tagging and sealing procedures as the commission determines
necessary to carry out the provisions of the wildlife laws or to
obtain information for use in wildlife management. Permits issued
pursuant to this subsection may include special hunting permits
for a person and immediate family members of the person to hunt
on land owned by that person in areas where permits for deer or
elk are limited by quota. As used in this subsection, 'immediate
family members' means husband, wife, father, mother, brothers,
sisters, sons, daughters, stepchildren and grandchildren. A
landowner who is qualified to receive landowner preference tags
from the commission may request two additional tags for providing
public access and two additional tags for wildlife habitat
programs. This request shall be made to the Access and Habitat
Board with supporting evidence that the access is significant and
the habitat programs benefit wildlife. The board may recommend
that the commission grant the request. When a landowner is
qualified under landowner preference rules adopted by the
commission and receives a controlled hunt tag for that unit or a
landowner preference tag for the landowner's property and does
not use the tag during the regular season, the landowner may use
that tag to take an antlerless animal, when approved by the
department, to alleviate damage that is presently occurring to
the landowner's property.
(5) May by rule prescribe procedures requiring the holder of
any license, tag or permit issued pursuant to the wildlife laws
to keep records and make reports concerning the time, manner and
place of taking wildlife, the quantities taken and such other
information as the commission determines necessary for proper
enforcement of the wildlife laws or to obtain information for use
in wildlife management.
(6) May establish special hunting and angling areas or seasons
in which only persons less than 18 years of age or over 65 years
of age are permitted to hunt or angle.
(7) May acquire by purchase, lease, agreement or gift real
property and all appropriate interests therein for wildlife
management and wildlife-oriented recreation purposes.
(8) May acquire by purchase, lease, agreement, gift, exercise
of eminent domain or otherwise real property and all interests
therein and establish, operate and maintain thereon public
hunting areas.
(9) May establish and develop wildlife refuge and management
areas and prescribe rules governing the use of such areas and the
use of wildlife refuge and management areas established and
developed pursuant to any other provision of law.
(10) May by rule prescribe fees for licenses, tags, permits and
applications issued or required pursuant to the wildlife laws,
and user charges for angling, hunting or other recreational uses
of lands owned or managed by the commission, unless such fees or
user charges are otherwise prescribed by law. Except for licenses
issued pursuant to subsection (14) of this section, no fee or
user charge prescribed by the commission pursuant to this
subsection shall exceed $100.
(11) May enter into contracts with any person or governmental
agency for the development and encouragement of wildlife research
and management programs and projects.
(12) May perform such acts as may be necessary for the
establishment and implementation of cooperative wildlife
management programs with agencies of the Federal Government.
(13) May offer and pay rewards for the arrest and conviction of
any person who has violated any of the wildlife laws { + or who
has committed the crime of criminal trespass on riparian land or
violated ORS 164.785 or section 11 of this 1997 Act + }. No such
reward shall exceed $100 for any one arrest and conviction.
(14) May by rule prescribe fees for falconry licenses issued
pursuant to the wildlife laws, unless such fees are otherwise
prescribed by law. Fees prescribed by the commission pursuant to
this subsection shall be based on actual or projected costs of
administering falconry regulations and shall not exceed $250.
(15) May establish special hunting seasons and bag limits
applicable only to those persons who are permanently unable to be
mobile without the assistance of a wheelchair.
(16) May adopt optimum populations for deer and elk consistent
with ORS 496.012. These population levels shall be reviewed at
least once every five years.
(17) Shall establish a preference system so that individuals
who are unsuccessful in controlled hunt permit drawings for deer
and elk hunting have reasonable assurance of success in those
drawings in subsequent years.
SECTION 19. ORS 497.071 is amended to read:
497.071. The Legislative Assembly finds it imperative that the
wildlife resources of the State of Oregon be augmented to a level
sufficient to provide Oregonians the recreational benefits of
hunting and angling, an abundance of wildlife, and the reasonable
expectation that their efforts will result in the taking of game
or fish. The intent of this legislation is to provide adequate
revenue to the State Fish and Wildlife Commission whereby game
mammal herds and game fish populations may be increased for the
benefit of Oregon hunters and anglers. Concomitant with the
purposes for which the Legislative Assembly approves this
legislation, the State Fish and Wildlife Commission is directed
to expend the revenues created by this section and ORS 497.102 to
497.134 in achieving wildlife management objectives including,
but not limited to the following:
(1) Habitat management.
(2) Predator control.
(3) Replenishment of fish and game populations.
(4) Reduction of the anadromous bag limit.
(5) Adjustment of seasons and deadlines to protect returning
anadromous adults.
(6) Supplemental wildlife feeding.
(7) Protection of game mammals and game birds with
characteristics of high reproductive potential.
(8) Enforcement of closings necessitated by herd or population
depletion.
(9) Expansion of the road and access closure program when
necessary to reduce hunting pressure in specific areas.
{ + (10) Payment to landowners for a lease negotiated under
section 17 of this 1997 Act. + }
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