Navigable or not?

Public access to the Scott River and other Siskiyou County waterways may soon be reinterpreted and redefined as Siskiyou County Sheriff Jon Lopey and Siskiyou County Council Tom Guarino are acknowledging that the Scott River does likely meet the state of California’s definition of a “navigable” river.

For nearly two decades, navigability of the Scott River has been a contentious issue among environmentalists, recreators, private property rights advocates and landowners along the river. The issue has also been debated on other rivers throughout the country.

The issue regarding the Scott River was recently revived by a Dec. 29 press release from a group calling itself the Jim Denny Scott River Brigade. The release stated that the Brigade currently wishes to remain anonymous, but “intends to defy Siskiyou County Sheriff Jon Lopey this spring by floating the Scott Valley portion of the Scott River.”

The release claims that “Lopey has declared that the Scott is ‘non-navigable’ and, therefore, that access can be denied by Scott Valley landowners.”

The statement by Lopey referred to in the release was made at a September, 2011 property rights meeting in Yreka. The statement, as reported by the “Two Rivers Tribune” was, “It’s not navigable if you can’t put a boat on it.”

The Tribune added that Lopey “coached landowners that they have a right to file a complaint if people trespass” on the Scott River.

 On Wednesday Lopey told the Daily News that he has since done research of his own and conferred with county counsel on the subject of navigability on both the Scott and Shasta rivers.

“In my opinion, the Scott River does meet the definition and I have asked county counsel to evaluate historical data and legal findings related to the Shasta River,” Lopey said.

According to Lopey, there is enough case law on the books to adequately manage access to the Scott River without the issue being tested in court. However, he expressed concern over the use of navigable waterway law for activism purposes, adding that navigability in no way alters private property rights outside the high-water line of the river.

 “I fear that activists will use this issue to incite discord, anger and to diminish precious resources of the involved county agencies, which are invariably going to be tasked with mitigating problems which may occur through provacative or unlawful actions,” Lopey said.

Guarino told the Daily News that though the Scott River likely meets the definition of navigability according to state law, many of its smaller tributaries may not qualify. Former County Counsel Frank DeMarco issued a memo on Feb. 28, 2000 stating that he also believed the Scott River fit the definition of navigability.

That memo was the result of Scott Valley resident Ken Maurer’s inquiries to the California State Lands Commission. Maurer, who believed the Scott qualified as navigable, contacted the State Lands Commission after failing to convince Siskiyou County government to acknowledge the navigable status of the river.

In the memo, DeMarco said, “The California State Lands Commission states preliminarily the opinion that the Scott River ‘would support small craft navigation and be subject to a right in the public for navigation’ under the test applied in Hitchings v. Del Rio Woods.”

DeMarco cited the Third District Court of Appeals in the case as saying, “the test of navigability can well be restated as follows: Members of the public have the right to navigate and to exercise the incidents of navigation in a lawful manner at any point below high water mark on waters of this state which are capable of being navigated by oar or motor propelled small craft ...”

But Jim Frey, senior staff council for the State Lands Commission, told the Daily News on Wednesday that navigability depends on much more than citing court precedents and legal opinions. He said that, in the long-run, the final decision comes down to the courts.

Frey said that even though the Hitchings v. Del Rio Woods case was ruled in Siskiyou County’s appellate district, the individual circumstances of each river play a role in its determination. Therefore, if there is no court precedent for a specific river, landowners on that river could essentially press charges against perceived trespassers, though they may not win. Frey added that if a river is determined to be navigable, the state then owns the river bed between the high-water marks and landowners are forbidden from obstructing passage on the stream.

District 1 Supervisor Jim Cook said he doesn’t think navigability designations on local streams are “desireable.” He said he has had conversations with DFG wardens who have serious concerns about the implications of hunting access on navigable streams that could result in problems with trespass.

“I think it puts people in harm’s way,” Cook said.

He added that he doesn’t believe the Board of Supervisors can make the designation one way or the other, though he says the warden told him the county district attorney could made the determination.

Erica Terence, executive director and conservation director for Klamath Riverkeeper, told the Daily News, “It’s unfortunate that Sheriff Lopey – an agent of law enforcement himself – didn’t do his homework on the legal definition of navigability before confusing the public on the issue.”

She believes the Scott River and its tributaries clearly pass state and federal navigability tests and are also protected under California’s Public Trust Doctrine.

“This means we have federal and state rights to occupy and travel through the streambeds of the Scott River, which are owned by the state,” Terence said.

As for the Jim Denny Scott River Brigade’s planned float of the Scott River, Lopey says he does not perceive a safety threat to the boaters.  He added that he will meet with the group and landowners before the event to coordinate and educate both sides on their rights and responsibilities. He added that no provocations or diliberate acts of violence will be tolerated from either side.

For now, the issue of navigability won’t have any effect on the California Department of Fish and Game’s (DFG) in-stream activities.

DFG Senior Biologist Mark Pisano said state legislation was passed in the mid-’90s requiring DFG biologists to ask permission from landowners to accesss even navigable streams when performing in-stream studies or surveys. He said even if a river such as the Scott was determined to be navigable, it would take a decision at the state level to change the department’s access policy.