Laws governing recreational access to waters of the Columbia Basin: a survey and analysis.

I. INTRODUCTION

IS floating down a stream the archetypal American experience of freedom, as in Huckleberry Finn, or an un-American violation of private property rights? It depends on which stream--and on which side you stand of the growing chasm between boaters and owners of land adjacent to recreational waters. In recent years boaters on waters adjacent to private property have been threatened with rifles or warning shots; others have had to contend with barbed wire strung across streams, trespass law suits, and police helicopter buzzings. (4) Meanwhile, landowners face increasing problems with trespass, litter, and vandalism. (5) Fueling the controversy is the burgeoning property rights movement. (6) In Oregon, the passage of Measure 7 (7) and the furor over water rights in the Klamath Basin (8) make clear that many people are fed up with government interference with property rights. In this context, perceived encroachment by private boaters and fishers will be even less warmly received.

Much of this discord stems from confusion regarding the legal rights possessed by both sides, with landowners fearing trespass, the creation of public easements on their land, and liability to recreationists. People on both sides of the conflict often operate under mistaken assumptions. In Oregon, for example, a recent survey revealed that recreational users misunderstand the rights they possess vis-a-vis landowners along waterways. For example, most recreational users believe that riparian lands are publicly owned, thus giving a legal right to portage, anchor, walk, and fish on the beds and banks of the state's streams and rivers. (9) Actually, the majority of the riparian lands in Oregon are privately owned, fueling the potential for future conflicts. (10) The discrepancy between actual and perceived ownership may help explain many of the problems and conflicts occurring between users and landowners along the rivers.

Landowners, for their part, may not be aware of laws vesting in the state title to the beds of navigable streams and lakes of the state, despite what their deeds may say. (11) And even when private title does extend to the bed of the waterway, the landowner's right to exclude others is often not absolute, contrary to what many believe. (12) This confusion suggests that better information should be available concerning land ownership and recreational use rights along waterways of the Columbia River Basin. An understanding of current river access laws in the four Basin states could help alleviate tension and reduce conflicts between users and landowners.

Recreational access laws in the Columbia River Basin states--Washington, Oregon, Idaho, and Montana--have evolved over the past century and a half in response to social and economic developments, and may be expected to continue evolving in response to the growing demand for recreational opportunities. This Article surveys current laws and traces their origins in an attempt to discern the trajectory of future developments in the field. This Article also provides a state-by-state overview of recreational access laws in the four Columbia River Basin states. Each state has a different approach to water access, providing recreational users with varying degrees of access, floatage, and portage rights. Section II of this Article provides background information on federal navigability laws, the doctrine of custom and the public trust doctrine, all of which were essential in shaping state doctrines and have the potential to reshape them further. Section III surveys the laws of each state, analyzing key legislation and court cases in three areas of state law: public access, the public trust doctrine, and recreational use laws limiting landowners' liability. The Article concludes with comments and recommendations to improve access and liability laws in Washington and Oregon, and to provide users and landowners with more certainty about their respective rights.

II. SUMMARY OF KEY CONCEPTS IN DETERMINING RECREATIONAL ACCESS

A. Navigable Water Bodies and Property Rights

The common law of property draws a distinction, for title purposes, between lands under navigable water bodies and lands under nonnavigable water bodies. Title to submerged and submersible lands (13) under navigable water bodies vests in each particular state, and thus these lands are known as "sovereign lands." Title to lands under nonnavigable water bodies, however, may be vested in private ownership. (14) The test to determine navigability for title purposes is based on federal law. (15) This test does not, however, preclude a more liberal state navigability test establishing a right of public passage whenever a water body is useful for commerce or recreation, or is "navigable in fact" by small craft. (16) In other words, title navigability under federal law establishes the minimum number of waterways open to public access, but typically not the maximum.

In the case of a water body navigable under the federal test, submerged and submersible lands belong to the state in trust for common usage. (17) That is, ownership of the beds and banks up to the high water mark remains with the state. The public, then, can pass freely over these waters and use them to boat, fish, and bathe. Although there may still be conflict with adjacent landowners, the law is clear regarding ownership of the beds and banks of such waters and the public's right of access. States may, of course, regulate or restrict access to these water bodies for various other reasons such as public health and welfare.

As determined by the federal test, title to nonnavigable water bodies did not pass to a state upon entering the union, but remained with the private grantee or the federal government. (18) Land ownership extends to the center, or "thread," of the water body for each landowner adjacent to a stream. (19) Thus, a landowner maintains a bundle of rights in the bed and banks of a nonnavigable river. Normally, private property ownership includes the right to exclude others. (20) However, this right of exclusion is limited in the context of waterway ownership, because the state--not the landowner--owns the water that flows above such lands. (21) In other words, the property rights of such landowners are subject to the state's right to use and control the public's waters as it sees fit. (22)

One way states provide for public use of water is by allowing a public floatage easement over waters navigable-in-fact but not meeting the federal title navigability test. In some states, a right to disembark and pull, push, or carry over shoals and rapids accompanies this right of flotation as a necessary incident to the full enjoyment of the public easement. (23) In most states, however, wading in privately owned beds or walking on private banks is trespassing. (24)

In sum, if a water body is navigable under the federal test, then submerged lands belong to the state in trust for common usage. Thus, these water bodies provide the broadest access rights for recreational users. If a water body does not meet the federal title navigability test, the submerged lands can be held by private riparian or littoral owners. However, if these water bodies are navigable-in-fact under state law, there is usually a more limited public access right for surface usage. Regardless of whether a water body is designated "navigable" under a federal or state test, the public may not trespass over private property to gain access to such water bodies. (25) This includes, in some states, allowance for incidental contact with the beds and banks, and for portage around obstructions. If a water body does not meet either navigability test, title to the bed and banks lies in riparian or littoral owners and there is no surface easement for public access.

B. The Federal Test of Navigability for Title

The concept of navigability arises in various areas of American water law. Under federal law, navigability of a particular waterway determines, for example: the ownership of submerged lands; the extent of the navigational servitude; (26) regulatory jurisdiction under the Commerce Clause; (27) and the extent of admiralty jurisdiction. The navigability tests developed by the Supreme Court in each area are similar, but not identical. This Article addresses only the federal navigability test for determining the ownership of submerged and submersible lands, or navigability-for-title. Classification of a water body as navigable under this test vests title of the bed and banks of that water body in the state. State ownership of submerged lands, in turn, affects the access rights held by the public as well as the rights held by private riparian or littoral owners.

1. Navigability-for-Title

The concept of navigability-for-title evolved from Roman law, and later English common law, to distinguish submerged lands held in public trust by the sovereign from those submerged lands capable of private ownership. (28) In the United States, the federal definition of "navigable" waters determines title to the submerged land underlying rivers and lakes in each of the states. On the date a state enters the union, title to all beds and banks--up to the high-water mark--of navigable water bodies within that state become the sovereign lands of the state. (29) The state's title is subject only to the power of the United States to control such waters for purposes of navigation in interstate and foreign commerce. (30) Acquiring title to such lands likewise binds the state to the public trust doctrine, which limits the state's ability to dispose of such lands. (31)

The navigability-for-title test is exclusively a question of federal law. (32) Under the federal test, a water body is navigable in law if it is navigable in fact. (33) Water bodies are navigable in fact when they are "used, or are susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water." (34) Thus, the test for navigability focuses on four particular elements a water body must meet. First, it is sufficient that the water body is capable of supporting navigation, even if in fact it never has. (35) Second, the water body must be susceptible to use as a "navigable highway," whether for commercial or some other business purpose. (36) Third, the water body must be navigable for commerce in its "natural and ordinary condition," although some difficulties or obstructions will not defeat a navigability claim. (37) Fourth, the commercial navigation must occur through a "customary mode[] of trade or travel." (38) The relevant date for applying the four elements is the time of statehood. (39)

In sum, the test focuses on the use or potential use of the water body at the time the state was admitted into the union, without significant improvement, as a means for normal commerce on water. The water body need not accommodate large ships or barges; it simply must prove useful for commercial transport. (40) Thus, navigability findings have been based on log rafting, canoeing, and so forth. (41)

2. The Federal Navigability Test in the Columbia River Basin

The definition of navigability may seem clear upon a cursory inspection; however, questions as to the scope of the definition quickly appear. What methods constitute "customary modes of trade and travel" at the time of statehood? What evidence suffices for showing a water body's susceptibility to commerce at statehood, especially when the water body was undeveloped upon the state's admission to the union? The answers to these questions usually depend on the facts of the particular case before the court. The definition of navigability for title is not static and its scope continues to evolve. (42)

The Ninth Circuit Court of Appeals, with federal jurisdiction over Idaho, Oregon, Montana and Washington, elucidated the scope of the Navigability-for-title test in decisions that address the questions posed above. The Ninth Circuit liberally construes the phrase "customary modes of trade and travel on water." (43) For example, in Oregon v. Riverfront Protection Association, (44) the Ninth Circuit adopted the saw log test of navigability and declared the MacKenzie River in Oregon navigable because of its use for transporting logs, despite the fact that log drives could be conducted during only three months of the year. (45) The court found that driving logs on the river was a customary mode of commerce and that movement of goods on the water was feasible, even if sometimes difficult. Periodic log drives were enough to establish useful transportation of goods on the river at the time of statehood, and thus determined navigability. (46)

Other cases have based the navigability determination on evidence of travel by Indian canoes. "The 'personal or private use by boats' may demonstrate 'the availability of the stream for the simpler types of commercial navigation." (47) Even canoe traffic can suffice to establish navigability. (48) In Puget Sound Power & Light v. FERC, because the evidence also established historic use of the river for floating shingle bolts, the court did not have to decide if canoe travel alone would establish navigability. But the court did not foreclose this possibility. (49)

In another case, the Ninth Circuit addressed the question of what constitutes sufficient evidence to establish a water body's susceptibility for commerce at statehood. In Alaska v. Ahtna Inc., (50) the court concluded that recreation-related commercial use of the Gulkana River in Alaska at the time the case was adjudicated provided conclusive evidence of the Gulkana's susceptibility to commercial use upon entering the Union in 1959. (51) The court found the river's physical characteristics had not changed since statehood and that the present use included guided fishing boats and sightseeing rafting tours with a maximum load capacity of 2,000 pounds. (52) The court reasoned that because customary watercraft used by hunters and fishermen on the river in 1959 included 16- to 24-foot powered boats that had a load capacity of 1000 pounds, these customary watercraft could have at least supported commercial activity of the type carried on today--with "minor modifications." (53) Therefore, the Gulkana was found susceptible to use as a highway for recreational commerce at statehood even though the original hunters and anglers who navigated the Gulkana were not engaged in any commerce. (54) Thus, the river was navigable, and title passed to the state at the time of statehood. (55)

In the Ninth Circuit, Indian canoeing and fishing use of a water body--uses not typically thought of as commercial--are sufficient to establish federal navigability for title. (56) Presumably, guided whitewater float trips could provide similar evidence that, at the time of statehood, a stream could support "the simpler types of commercial navigation." (57) Under this recreation industry test, many floatable waters would be navigable-for-title, so title would have passed to a state upon its entry into the Union. (58) Recreationists would have full access to such waters, including their beds and banks, subject to state regulation.

C. State Tests of Navigability

While the federal test for navigability determines title, state navigability tests determine additional rights of use. Historically, navigability tests at the state level served both functions: identifying water bodies to whose beds the state claimed title and distinguishing water bodies that are subject to a paramount servitude or easement of public use from those in which riparian owners maintain exclusive use. (59) In many instances states used the same navigability test both to determine title of submerged lands and to distinguish public versus private usufructuary interests. (60) However, after 1926, when the Supreme Court declared the federal test controlling for title purposes, (61) states either adopted the federal test or construed their own title test to comport with federal requirements. Many states, recognizing the limits of the federal navigability-for-title test, thereafter adopted a broader test of navigability for determining public use rights.

State law governs navigability-for-use, defining the waters to which the public has some right for various purposes, including recreation. (62) The power of states to recognize public rights for boating, fishing, hunting, and other recreational purposes by preserving a general public right of use or easement on the water is derived from the state's sovereign police power. (63) Because the state can protect public use interests in surface water, title to the beds and banks is irrelevant when determining navigability-for-use. (64) Thus, under a state's navigability-for-use test, a nonnavigable water body is one subject to the exclusive use of the riparian owners, while a navigable water body is one in which the general public has rights of use, regardless of who owns the bed of the water body. (65) The details of how the Columbia River Basin states have developed and applied state navigability-for-use tests are considered further in Part III of this paper.

The real dispute lies in the use of privately owned beds and banks of water bodies navigable under a state's public use test. Whereas some states allow limited use of the beds and banks when incidental to use of the water, other states restrict such access and view it as a trespass. (66) Most states, however, attempt to reconcile granting the public access to navigable-for-use waters with protection of adjacent property owner rights. (67)

In addition to navigability tests, other legal doctrines provide the bases for protecting public interests in waters of the Columbia Basin. The following sections discuss two of these: the public trust doctrine and the doctrine of custom.

D. The Public Trust Doctrine

The public trust doctrine protects public property interests for various uses of navigable waters and the underlying lands. (68) The doctrine imposes an obligation on states to preserve trust resources and safeguard against significant impairments of public uses of property held in trust. (69) Traditional trust uses are fishing, commerce, and navigation. (70) Various jurisdictions, however, have expanded the doctrine to include habitat conservation, aesthetic value preservation, and recreation. (71) Therefore, the doctrine can provide a legal basis for asserting rights to recreational access.

The public trust doctrine is, however, an elusive principle of law. As one scholar asserts, "there are fifty-one public trust doctrines in this country alone." (72) Each state's version being somewhat different, the public trust doctrine is discussed for each of the Basin states in Part III below. The general discussion here provides necessary background.

First, there is some debate as to the origin and scope of the doctrine, which may affect its applicability. (73) The public trust doctrine clearly has various legitimate sources in American law. (74) The predominant theories on the doctrine's origins suggest it arose from some combination of the following: the common law; an encumbrance on title conveyed from the United States government; the U.S. Constitution; state constitutions; or state water codes. (75) All of these sources have support in the laws of the states, and are not mutually exclusive. Overall, the doctrine developed almost entirely in the laws of the various states, although United States Supreme Court jurisprudence clearly recognizes the doctrine as well. (76)

Early cases attribute the public trust doctrine to state common law. For example, the New Jersey Supreme Court, in Arnold v. Mandy, (77) defined the first clear formulation of the doctrine: the navigable waters and the land beneath are held in trust by the sovereign for the "direct and immediate enjoyment" of the citizens. (78) Additionally, the sovereign power "cannot ... make a direct and absolute grant of the waters of the state, divesting all of the citizens of their common right." (79) Any conveyance is subject to the public trust interest.

Seventy years later the U.S. Supreme Court built upon the principles articulated in Mundy and held in Illinois Central Railroad v. Illinois (Illinois Central) (80) that the state of Illinois could revoke a conveyance to the Illinois Central Railroad of title to the bed of Lake Michigan. The Court stated that the land at issue, along the Chicago waterfront, was "held in trust for the people of the State so that they may enjoy the navigation of the waters, carry on commerce over them, and have liberty of fishing therein freed from the obstruction or interference of private parties." (81) The Court found that Illinois could "no more abdicate its trust over property in which the whole people are interested ... than it can abdicate its police powers." (82) Although the Court did not state whether the public trust is based on state or federal law, in a subsequent opinion the Court declared that Illinois Central was decided on state law principles. (83)

This revocation of a legislative grant of state sovereign resources to a private party did not impair contract obligations or violate due process because the state did not have the power to make the grant in the first place. (84) In general, states have vast discretion in managing state sovereign resources for public benefit. Most states recognize the principle that grantees of state sovereign lands ordinarily take title subject to the same public rights that bind the state. (85) For example, in People v. California Fish Co. (86) the California Supreme Court held that a private grantee received only "the naked title to the soil," while public use rights were retained by the state for the people. (87)

Early cases associated the public trust doctrine with the state sovereign ownership doctrine, applying the public trust only to submerged and submersible lands under waters in which the tide ebbs and flows and under rivers navigable-for-title under the federal test. (88) At least one state has extended the public trust doctrine to reach activities on nonnavigable tributaries to navigable waters when those activities affect the navigable waters. In the well-known National Audubon Society v. Superior Court, (89) the California Supreme Court held that rights to divert water to Los Angeles from nonnavigable streams flowing into Mono Lake were subject to limitations to protect the public trust interest in Mono Lake itself. (90) The state was charged with exercising "continuing supervision" over trust resources and applying a principle of accommodation between trust interests and economic uses. (91)

Whatever its scope in a particular state, the public trust doctrine can protect water bodies from significant impairments, thus providing a measure of protection for recreational uses. Two issues arise in applying the doctrine. The first is determining which water bodies are covered by the doctrine. The second is determining whether the scope of the doctrine reaches recreational use. The U.S. Supreme Court has held that the doctrine covers at least all lands underlying waters influenced by the tide as well as waters meeting the federal definition of navigability. (92) The doctrine does not necessarily reach navigable-for-use waters--the majority of rivers, streams, and lakes in most states--unless extended to those waters by state law. The public trust law of each Columbia River Basin state is examined below in Part III.

In states that expand coverage to include water bodies not navigable under the federal test, there is an inherent conflict between recreational water users and landowners, who own a contingent bundle of rights in riparian lands. Courts attempt to reconcile the competing interests by affirming public use rights--but limit those rights to minimize impact on private landowners. (93)

E. Doctrine of Custom

The common law doctrine of custom has the potential to shape recreational rights in the Columbia River Basin. Historically; the doctrine, which originated in medieval England, provided that residents of a given locality could defeat a property owner's claim of the right to exclude by showing a very long and common use of a defined area. (94) The customary right could apply to a variety of activities; for example, a right to pasture animals in a certain field, gather wood, or cut turf on the manor commons. (95) Under the doctrine of custom, only a right of use or passage was obtained; the underlying title to the land remained with the owner. (96)

In 1969, the Oregon Supreme Court invoked the doctrine of custom to uphold the public's right to use the dry sand area of Oregon's coastal beaches in the landmark case Thornton v. Hay. (97) In Thornton the state of Oregon brought suit to prevent owners of a beachfront motel from blocking access to the dry sand portion of their property. (98) The trial court granted an injunction because the public had shown the necessary elements to prove a prescriptive easement. On appeal to the Oregon Supreme Court, the State argued that the trial court was correct in finding a prescriptive easement. The Oregon Supreme Court, although recognizing its ability to find a prescriptive easement, instead decided the case under the doctrine of custom. (99) The court looked to Blackstone's commentaries on the early English doctrine of custom and adopted his seven criteria for establishing a custom. (100) The court found that the custom of the people of Oregon to use the dry sand area of the beach for public recreational purposes satisfied Blackstone's seven requirements for customary use. (101) Thus, the court concluded that the public had established a recreational right to use the dry sand beach without regard to the record title as held by the private landowners. (102)

The doctrine of custom has not been extended from beaches to rivers and streams, although doing so could provide an additional legal basis for broad public access. However, it may be difficult to prove Blackstone's requirements of ancient and uninterrupted use for many waterways. (103) To establish the historical use of a river, evidence can be gained by researching the river in history books, libraries, and museums in the towns through which the river runs, and by interviewing people who have historically used the river. Oral traditions and archeological evidence could also establish use by Native American canoes or other craft. (104) Courts may support such access rights under the doctrine of custom--at least in Oregon--because many of the same fundamental reasons the Oregon Supreme Court adopted the doctrine for beaches (i.e., historical public use, desire to avoid tract-by-tract litigation) also apply to rivers and their beds and banks. No other Columbia River Basin state has adopted the doctrine of custom, so its applicability in those states remains unclear. (105)

F. Landowner Liability

Beyond broad public access, landowners also fear liability for injuries suffered on waters flowing through theft land. Typically, state tort law differentiates the legal duties owed to three classes of people who come upon the land of another. The legal status of those who enter determines the duty owed to each by the landowner.

A trespasser is someone who comes upon the land of another without the consent of the landowner or occupier. As a rule, an owner or occupier of land owes no duty to an unknown trespasser, and thus is not liable for any injury the trespasser may suffer. (106)

A licensee is someone who is invited or tolerated on the land, but does not bestow any economic benefit upon the landowner--for example, a social guest. An owner must warn a licensee of any concealed dangers, and avoid willful or wanton misconduct toward him, but otherwise the licensee takes the premises as he or she finds them. (107)

An invitee is someone who comes upon the land bestowing an economic benefit, such as a business's customer. Most states embrace a broader public invitation test, in which those entering premises held open to the public are also invitees, whether or not those people bestow an economic benefit. (108) Owners have the highest duty of care toward invitees: not only to warn but to inspect and take actions to make the premises reasonably safe--including posting warning signs or fences. (109)

Landowners are often concerned that if they open theft land to the public and allow access for recreational purposes, then those who enter upon theft land will have invitee status, so that landowners would open themselves to liability for dangerous conditions or for not providing warning signs of dangers on the land. Fortunately, this is not the case. To encourage landowners to make theft land available for free recreational use, every state has enacted a statute limiting landowner liability in such situations. (110) This effectively creates a fourth class of entrant upon the land: the recreational user. (111) As the extent of protection afforded by recreational use statutes varies widely from state to state, liability issues in each of the Columbia River Basin states is addressed below.

Unlike the issue of access, the liability issue finds landowners and recreationists generally on the same side: Both advocate strong laws protecting owners and shifting the risks of activity to recreational users. (112) Landowners do not have to fear lawsuits, encouraging them to open more lands for recreation, which is what users want. (113)

This completes the overview of basic principles governing recreational access to waters and disputes that arise from public access. Each state of the Columbia Basin employs some combination of these principles to balance the interests of the public with those of private landowners. Important differences exist, however, between the states, so it is essential to examine in detail state laws governing recreational access. The following section surveys the laws of each Columbia River Basin state.

III. RECREATIONAL ACCESS IN OREGON, IDAHO, MONTANA, AND WASHINGTON

A. Recreational Use Access in Oregon

1. Public Use Rights on Oregon Water Bodies

So far, eleven rivers in Oregon have been officially designated as navigable under the federal test. (114) The state of Oregon, therefore, retains title to the beds and banks of each river, and on these rivers the public has broad recreational access rights. Because the state owns the subadjacent lands, the rights of recreationists and private landowners are clearly defined. (115) Additionally, even if the state disposes of these lands, the transferred interest is subject to the public trust doctrine, thereby ensuring public access for navigation, commerce, fishing and, probably, recreation. (116)

The Oregon State Land Board has jurisdiction to determine state waterways navigable. (117) The Land Board may assert state title to submerged or submersible lands only if the waterway is deemed navigable by a court or the Oregon Division of State Lands (DSL). (118) The Land Board may order DSL to conduct a navigability study only after it determines there is "sufficient economic justification" or a "substantial public interest" for doing so. (119) Economic justification exists if the Land Board concludes that a navigability finding will result in generating Common School Fund revenue through the leasing of the water body for various uses, such as the addition of a marina or aggregate extraction. (120) A substantial public interest exists if a navigability finding is required to resolve conflicts between users and landowners, protect the watercourse for environmental or scenic reasons, or facilitate and promote commerce. (121)

Water bodies not designated navigable under the federal test--hencecapable of private ownership--may nonetheless be accessible to public use. The Oregon Supreme Court has employed a version of the common law' "pleasure boat test" (122) in recognizing public use rights on Oregon water bodies. In Guilliams v. Beaver Lake Club (123) neighbors of the Beaver Lake Club brought suit to enjoin the club from maintaining a dam obstructing access via small crafts to Beaver Creek, a small coastal stream. (124) The court found the stream did not meet the federal test of navigability because the lake was not "susceptible of being an artery of any very extended commerce." (125) However, the court rejected a narrow commercial definition as the only test for navigability, citing with approval the landmark Minnesota case Lamprey v. Metcalf: (126) "[W]e do not see why boating or sailing for pleasure should not be considered navigation, as well as boating for mere pecuniary profit." (127) Holding that Beaver Creek possessed a "qualified navigability," the court expanded the types of public navigation and commerce recognized as conferring navigability on these smaller streams to include the plaintiff's recreational boating. (128)

The court noted that in Oregon, at common law, the public maintained an easement across navigable water bodies, and the landowner held title subject to the "superior right of the public to use the water for the purposes of transportation and trade." (129) By broadening the definition of navigability, the Guilliams court extended this flotation easement to include water bodies unlikely to support commerce, but nonetheless capable of other public uses such as recreation. Accordingly, the court held that the defendant could not maintain an obstruction that impeded the passage of the plaintiff's small boat even though the plaintiff was not engaged in any conventional commerce, and even though the stream was not navigable for title purposes. (130)

Eighteen years later, the court extended this rule to small inland lakes in Luscher v. Reynolds. (131) In Luscher a dispute arose over title to a narrow strip of land bordering Blue Lake. (132) The court concluded Blue Lake was not navigable for title purposes; title to the bed of the lake did not pass to the state of Oregon upon admission to the Union and could be held privately. However, the lake did possess a qualified navigability. (133) While title to the bed of Blue Lake remained with the adjacent owners, that title was "subject ... to the superior right of the public to use the water for the purposes of commerce and transportation." (134) Following Guilliams, the court defined commerce as embracing "pleasure-seeking" as well as business, granting in effect a recreational easement on the lake. (135)

Guilliams and Luscher recognize that public use of Oregon's rivers, lakes and streams includes not only transportation and trade, but recreation. Both cases further recognize that public use rights to a waterway may be independent of ownership of the underlying land. However, the cases fail to outline the full scope of the public's rights in Oregon's waterways. There can be no dispute that in Oregon, the public has the right to use the surface of navigable-for-use waters for recreational purposes. It is not clear, however, whether this right includes the right to walk on the beds of such rivers or portage around obstructions on their banks.

Guilliams suggested that a water body in which a person would have to push or haul a craft would not meet even the qualified definition ofnavigability. The court stated that to qualify for the navigability-for-use test, the water body must have a well-defined channel and a "fairly constant" minimum amount of water. (136) In fact, the court distinguished the situation where a person must push or haul his boat over shallow beds, finding such navigation a pretext for enabling trespassing. (137) Furthermore, the court concluded its discussion of navigability by stating that a person using the river would not have "any right to land at any point on [a landowner's] land without permission." (138)

Given the court's emphasis on broad public use for recreational purposes, and its insistence that a narrow and outmoded interpretation of "navigability" not be used to deny such uses, it is still possible to read these cases as authorizing incidental contact with beds and banks. If confronted directly with a question of incidental use, the court might find navigability-for-use in a water body that supports recreational craft, but also has areas where navigators must encroach upon the underlying land. (139) Moreover, the Guilliams court embraced language from Lamprey recognizing water body uses requiring incidental contact with the beds and banks, such as bathing and water supply systems. (140)

Regardless of ownership, Oregon water bodies that are navigable-in-fact, whether for commercial or recreational purposes, are thus navigable by law. Oregon recognizes recreational rights on waters that meet the state's broad definition of navigability-for-use. (141) Whether those rights extend to incidental encroachments on private lands adjacent to navigable water bodies is less certain. The Oregon Legislature, in its last two sessions (1999 and 2001), declined to clarify those rights in favor of broad public access, (142) leaving intact the potential for conflicting interpretations by landowners and recreational users.

2. The Public Trust Doctrine in Oregon

The Oregon Constitution contains language supporting the public trust doctrine: "[T]he use of all ... waterways necessary to promote the transportation of raw products of a mine or farm or forest or water for beneficial use is necessary to the development and welfare of the state and is declared a public use." (143) Several Oregon statutes also contain references supporting the public trust doctrine--for example, stating that the public owns all of the water within the state, (144) defining conservation and recreation as public uses, (145) and asserting title to and jurisdiction over submerged and submersible lands. (146)

The Oregon judiciary has always assumed the existence of the public trust doctrine in state law. (147) In the seminal tidelands case Bowlby v. Shively, (148) the state granted Bowlby title to tidelands lying between the Columbia River and Shively's upland property. Bowlby then built a wharf into the river. The Oregon Supreme Court held the state was the sovereign owner of tidelands, and it could convey these lands "subject only to the paramount right of navigation and commerce" held in trust for the public. (149)

The Oregon Supreme Court later extended the public trust doctrine beyond tidelands to waterways deemed navigable for title under the federal test. In Lewis v. City of Portland (150) the plaintiffs built a wharf in the Willamette River adjacent to their riparian property. The court held the plaintiffs had a right to build the wharf, and the state must compensate them for taking the wharf when the government built Portland's Burnside Bridge. In part the plaintiffs' right derived from the fact that the wharf did not impair but rather enhanced commerce and the public trust right to navigation. (151)

The Oregon Supreme Court seemed to rein in the reach of the public trust doctrine in 1979 in Morse v. Division of State Lands. (152) The state granted the city of North Bend a permit to fill thirty-two acres of Coos Bay in order to extend the runway of the local airport. The Oregon Supreme Court recognized a public trust interest but found the need to enlarge the airport outweighed the trust interest in preserving that portion of the estuary. The court found the waters in question were used only for "very casual navigation of the recreational kind;" (153) the fill project, therefore, was not a "substantial impairment" (154) of the trust right to "navigation, fishing, and recreational purposes." (155) While the case by no means abdicated the public trust doctrine and explicitly included recreation within the public trust, it signaled a willingness to subject the doctrine to stricter scrutiny and limit its reach to cases involving "substantial" damage to trust resources, while balancing non-trust public interests. (156)

As the Oregon Supreme Court declared, the public trust doctrine is "a settled rule of property" in the state. (157) Although the state can alienate the jus privatum--the naked title--it cannot abdicate the jus publicum--that portion of its interest held in trust on behalf of the public for fisheries, commerce, and navigation, including recreation--unless it can do so without substantially impairing the balance of the trust resources. (158)

3. Landowner Liability to Recreational Users in Oregon

Above, this Article discussed state statutes that explicitly limit landowners' liability for injuries on their property if they opened their lands free of charge for recreational use. (159) Oregon's version of such a statute is the Public Use of Lands Act. (160) The Public Use of Lands Act declares that Oregon landowners are "not liable in contract or tort for any personal injury, death or property damage that arises out of the use of the land for recreational purposes." (161) An exception is made for intentional injury or damage to persons coming onto the land. (162) The statute declares: "[I]t is the public policy of the State of Oregon to encourage owners of land to make their land available to the public for recreational purposes ... by limiting their liability toward persons entering thereon for such purposes and by protecting their interests in their land from the extinguishment of any such interest or the acquisition by the public of any right to use or continue the use of such land for recreational purposes." (163) The limitation on liability applies whenever the primary purpose of entering the land is recreational, even if the injury occurs when the person is engaged in some other activity. (164)

The public use statute recently faced--and withstood--a challenge under the Oregon Constitution in Brewer v. Dept. offish and Wildlife. (165) In Brewer a woman and her nine-year-old daughter drowned in a section of Catherine Creek below a fish migration dam owned and operated by the Oregon Department of Fish and Wildlife and a local irrigation district. The estates of the deceased brought suit, alleging the dam unreasonably created a dangerous undertow. (166) The trial court dismissed the suit on the ground that the defendants were immune from suit pursuant to the Public Use of Lands Act. (167) The plaintiffs appealed, arguing the statute unconstitutionally deprived them of a remedy in violation of Article I, section 10 of the Oregon Constitution. The Oregon Court of Appeals affirmed the lower court, holding that the Legislature may alter causes of action by striking legitimate balances between competing rights:

   The tradeoff represented by this policy is manifest. The owner of
   land opened for recreational use in accordance with the Act gives up
   exclusive enjoyment of the land and, in return, is insulated from
   certain types of liability for injuries that may occur there. The
   users of recreational lands opened in accordance with the Act give
   up their rights to sue land owners for certain types of injuries but
   gain the benefit of using land for recreation that otherwise would
   not be available to them. (168)

The statute, concluded the court, did not abolish a remedy but permissibly extinguished a right. (169)

The Brewer court held that fixtures, such as dams, are part of the "land" as defined in the public use statute. (170) Moreover, any entity that owns or operates such a fixture is an "owner" under the statute's broad definition. Therefore, under the statute the trial court properly granted summary judgment. The court did not have to inquire into whether, and to what extent, the dam actually was unreasonably dangerous, because the statute exempts owners from liability for all unintentional injuries. (171)

Oregon's public use statute, and its judicial interpretation in Brewer, should allay the fears of landowners regarding potential liability to recreational users. Held constitutional in immunizing government agencies as well as a quasi-governmental irrigation district, (172) the Public Use of Lands Act provides a powerful liability shield for owners and occupiers of land. Brewer likened the legislative "tradeoff' of rights--owners grant access, but gain immunity from suit--to the tradeoff involved in the workers' compensation scheme. (173) Arguably, this tradeoff goes too far in protecting landowners at the expense of those injured through negligent--even grossly or willfully negligent--behavior. (174) There is no denying, however, that the statute's broad immunity should encourage landowners to open their land for recreation, in fulfillment of the statute's purpose.

B. Recreational Access in Idaho

1. Public Use Rights to Idaho Water Bodies

Idaho distinguishes navigability for state title purposes from navigability for right-of-way purposes. (175) Navigability for title is based on a finding of navigability-in-fact under the federal test. Evidence of use for log drives or by small craft, even for strictly recreational purposes, can suffice to show navigability at the time of statehood. (176) The Idaho Department of Lands maintains lists of lakes and streams considered navigable for state title purposes. (177)

The test for public right-of-way navigability is whether the water body will float cut timber of six inches or more in diameter or whether it can be navigated by any small craft for business or pleasure. (178) This test is less rigorous than for title navigability and can rely on present capability rather than establishment of historical use at statehood. (179) If a lake or stream meets this test, the water body is a "public highway" for commerce and recreation. (180) This highway includes the beds and banks of such waters to the ordinary high water mark. Additionally, as a necessary incident to recreational purposes, the easement allows for portage around passage obstructions. (181) Thus Idaho combines the "saw log" commerce test with the "pleasure boat" recreation test to determine waters subject to public use rights, regardless of ownership of the bed and banks. (182)

Southern Idaho Fish and Game Association v. Picabo Livestock was the first case to establish Idaho's broad test for navigability for a public right of way. (183) Picabo Livestock corporation attempted to prevent six members of the Southern Idaho Fish and Game Association from fishing along a stretch of Silver Creek--a famed fly fishing stream flowing through the corporation's land--claiming the fishermen were trespassing on private property. (184) The fishermen did not enter the creek from the corporation's property and had stayed in the water at all times except to portage around a dam. (185)

The Idaho Supreme Court affirmed a lower court finding declaring Silver Creek navigable. (186) Any stream is navigable for public use rights, the court said, if it will float logs or other commodities in its natural state, "or is capable of being navigated by oar or motor propelled small craft, for pleasure or commercial purposes." (187) The court summarized the question of navigability-for-use as "simply the suitability of a particular water for public use." (188)

The Idaho Supreme Court also affirmed the trial court's conclusion that the Idaho Constitution and state statutory law mandate that the title to all the water in Silver Creek belongs to the state and that a public, easement exists for a right of way through the natural channels of Silver Creek for such waters, including the lands submerged by them. (189) Additionally, the court affirmed the finding that this easement extended public use rights to boating, swimming, hunting, and all recreational purposes, plus the necessary incidents to such use. (190)

The Idaho Legislature has since codified the essential holding of Picabo Livestock, declaring navigable waterways "highways for recreation" and defining as navigable water bodies capable of floating cut timber having at least a diameter of six inches or capable of being navigated by small crafts for pleasure. (191) The Legislature also authorized recreational use between the ordinary high water marks of such rivers including boating, swimming, fishing, hunting, and all recreational purposes. (192) This access is limited to the submerged and submersible lands under the high water mark except where irrigation dams or other obstructions interfere with the navigability of the water body. (193) In this case, the public may walk or portage around the obstruction, reentering the stream "at the nearest point where it is safe to do so." (194)

Idaho law provides liberal public access rights. The navigability test for public right-of-way employs a present-use test, obviating the need for difficult proof of historical use at the time of statehood. (195) In addition, the statutory right of portage around obstructions provides an important right incident to recreational use. Among the Columbia River Basin states, only Montana's access laws are more clear and accommodating to recreational use than Idaho's. (196)

2. The Public Trust Doctrine in Idaho

In 1983, the Idaho Supreme Court outlined the public trust doctrine in Kootenai Environmental Alliance v. Panhandle Yacht Club (Kootenai). (197) The defendant yacht club applied for and received from the Department of Lands a permit to build a private dock over the bed of Lake Coeur d'Alene, a navigable waterway impressed with the public trust. (198) The court adopted a two-part test from Illinois Central to determine whether such a grant of public trust assets is valid. First, Idaho courts must consider whether the grant furthers navigation, commerce, or other trust purposes. (199) The court must then determine if the grant substantially impairs the public interest in the remaining land and water. (200) The Kootenai court interpreted public interests to include the "effect of the proposed encroachment upon adjacent property and lake value factors of navigation, fish, and wildlife habitat, aquatic life, recreation, aesthetic beauty and water quality." (201) Additionally, the judiciary, not the legislature or administrative agency, should determine whether a grant violates the public trust. Emphasizing that courts are not to act "merely as a rubber stamp for agency or legislative action," the court adopted the California Supreme Court's ruling that alienation of public trust lands neither eliminates the public interest in the lands nor absolves the state of its public trust duties. (202)

Other Idaho decisions have applied and further defined the scope of the public trust doctrine. The public trust doctrine is not applicable to lands above the "ordinary mean high water mark" of navigable waters. (203) A 1971 case held that lands below waters that have dried up or been diverted are no longer protected by the public trust doctrine and are subject to adverse possession. (204) However, the general public cannot acquire prescriptive rights, such as easements, in private property. (205)

A later case, Idaho Forest Industries v. Hayden Lake Watershed Improvement District, (206) further addressed the scope of the public trust doctrine concerning artificial changes in water levels. For protection under the public trust doctrine, lands must have been covered by navigable waters at the time Idaho became a state. This navigability requirement requires applying the federal test. (207) Additionally, navigable waters must continue to flow over the lands in order to retain their public trust qualities. (208)

The 1996 Legislature, reacting to two Idaho Supreme Court cases in which the public trust doctrine seemed to threaten irrigators (209) and the timber industry, (210) passed a bill limiting judicial application of the public trust doctrine in Idaho. (211) The stated purpose of this law is "to clarify the application of the public trust doctrine in the state of Idaho and to expressly declare the limits of this common law doctrine in accordance with the authority recognized in the state to define the extent of the common law." (212) The statute states that Idaho's public trust doctrine "is solely a limitation on the power of the state to alienate or encumber the title to the beds of navigable waters." (213) The statute prohibits application of the public trust doctrine to: 1) the management or disposition of state trust lands, 2) appropriation, adjudication or administration of water or water rights, and 3) any exercise of private property rights in Idaho. (214) The law also reduces the number of waterways subject to the public trust doctrine by adopting the more narrow federal test for navigability in defiance of the standard announced in Picabo Livestock. (215) This test would exclude water bodies used for recreation but too small for commercial crafts.

Prior to the enactment of this bill, the public trust doctrine allowed alienation of navigable bed-lands only if the sale benefited navigation, fisheries, and water-associated commerce. (216) House Bill 794 now allows the Idaho State Land Board to alienate title to the beds of navigable waters for mining, agriculture, and forestry as long as the grant complies with Idaho statutes and the Idaho Constitution. (217) The Idaho Supreme Court has stated that the Land Board's power to dispose of public lands is subject to the limitations imposed by the public trust doctrine. (218) It remains to be seen if the court locates the source of the doctrine's authority in the Idaho Constitution. If so, the statute may be unconstitutional. (219)

The Arizona Supreme Court deemed a similar attempt by the Arizona Legislature to eliminate the public trust doctrine from consideration in water rights adjudication and allocation an unconstitutional abdication of the state obligation to manage public resources, including water, in the public trust. (220) Because the constitutionality of the Idaho legislation is still in question, the public trust doctrine predating the legislation may still be a viable legal basis for assuring public access to Idaho waters.

3. Landowner Liability to Recreational Users in Idaho

Like Oregon, Idaho has a statute limiting liability for private landowners who make their land available for public recreational use. (221) The limitation excuses landowners from keeping premises safe and warning users of dangerous conditions on the land. (222) Persons coming onto private property for recreation are not elevated to the legal status of an invitee or licensee, and owners are not liable for injuries caused by acts or omissions. (223) The provisions apply similarly to land leased to the state for recreational purposes. (224) The stated policy is "to encourage owners of land to make land and water areas available to the public without charge for recreational purposes by limiting their liability toward persons entering thereon for such purposes." (225)

The recreational use statute withstood a constitutional test in Johnson v. Sunshine Mining Co. (226) Even though a young man who died while motorcycling on the Sunshine Mining Company's land had the implied consent of the mining company, under the statute he was not an invitee or licensee, and Sunshine had no duty to warn him of hazards such as a steep drop off in a road. (227) The plaintiffs argued that the statute violated the Equal Protection clause of the Fourteenth Amendment by creating two classes of persons: nonpaying recreational users of another's land and all other persons using the land. Applying the rational basis test, the court determined that the statute advances legitimate legislative goals--encouraging landowners to open land and water areas for recreation--in a rational fashion and was therefore constitutional. (228) The statute thus protected Sunshine from liability to the estate of the dead motorcyclist. (229)

The statute applies to public entities as well as private landowners. Thus the state was immune from liability when a snowmobiler in a state park, open to the public free of charge, struck a cable strung across a path. (230)

The immunity conferred by the statute is not absolute. Those who use another's land for recreation are entitled to at least the same protection as trespassers. (231) Therefore the statute does not shield the landowner from "willful or wanton" conduct. (232) In Jacobsen v. City of Rathdrum. (233) the Idaho Supreme Court reversed a summary judgment rendered for the city based on the recreational use statute and remanded the case to determine whether the city knew and willfully ignored the danger of an irrigation ditch bordering a playground. (234) The Jacobsen court also identified a second exception: The statute does not shield a landowner from liability to a trespassing child under the attractive nuisance doctrine. (235)

These narrow exceptions to the statutory liability shield simply affirm that landowners owe a minimal duty of care to recreationists--essentially the same duty owed to trespassers under the common law. The statute assures them that no higher duty of care will be created by recreational use of their property or water bodies adjoining or intersecting that property. (236) A statute that immunized a mining company from liability for digging a fifteen-foot-deep trench across a known motorcycle path on its property (237) should provide adequate protection to the average landowner.

C. Recreational Access in Montana

1. Public Use Rights on Montana Water Bodies

Navigability for title in Montana is determined by the federal test--that is, susceptibility to commerce at the time of statehood. (238) The test is satisfied by evidence of saw log flotation at the time of statehood. (239) As far as public access is concerned, however, title to the beds and banks of waterways is irrelevant. (240) Navigability for use is a question of state law separate from the federal issue of navigability for title. (241) On waters capable of recreational use, the public maintains the right to use the bed and banks up to the high water mark, and to portage around barriers. (242)

Montana Coalition for Stream Access, Inc. v. Curran (243) established what are probably the broadest public use rights in the nation. (244) Members of the plaintiff coalition fished and floated upon a stretch of the Dearborn River that ran through property belonging to Curran, an oil company. (245) Curran claimed title to the streambed along the particular stretch and, therefore, the right to restrict its use. (246) The Montana Supreme Court, relying on the Montana Constitution and the public trust doctrine, found that the water of the Dearborn belonged to the state. (247) The issue was not whether the water was navigable but whether it was susceptible to recreational use by the public. The court stated that "the capability of use of the waters for recreational purposes determines their availability for recreational use by the public." (248)

Curran held that because public use rights are based upon the susceptibility of waters for such purposes, the ownership of the streambed is irrelevant when deciding public use rights. (249) Thus, even if Curran owned the streambed, the company did not own the surface waters and had no right to control such water to the exclusion of the public. Therefore, irrespective of streambed ownership, the Montana Constitution "does not permit a private party to interfere with the public's right to recreational use of the surface of the state's waters." (250)

The court limited the scope of public recreational use rights to the ordinary high water mark of waters belonging to the state. Additionally, the court held that the public may leave the water and enter private property to portage around barriers, so long as the encroachment is accomplished in the least intrusive manner possible. (251) Finally, the court stated that the public does not have the right to enter upon or trespass across private property to access state-owned waters for recreational enjoyment. (252)

In Montana Coalition for Stream Access v. Hildreth, (253) Hildreth, an owner of land abutting the Beaverhead River, installed a fence across the river and was preparing to install a cable across the river for the opening day of fishing season. The coalition filed suit, alleging the public was entitled to float on the Beaverhead through Hildreth's property. Although the district court held the Beaverhead navigable for recreational use under the pleasure-boat test, the Montana Supreme Court stated that this test had not been adopted in Montana; rather, the Montana Constitution provides that "the only possible limitation of use can be the characteristics of the waters themselves." (254) The court went on to affirm its holding in Curran that no adjacent property owner "has the right to control the use of [state] waters as they flow through [the owner's] property." (255) Additionally, the court affirmed the public's right to use the bed and banks under such waters up to the high water mark and the right to portage around barriers in the least intrusive manner possible. (256) The court reiterated that its opinions do not grant the pubic "the right to enter upon or cross over private property to reach the state-owned waters available for recreational purposes." (257)

The Montana Legislature essentially codified the holdings of Curran and Hildreth by enacting a stream access law in 1985. (258) The law creates two classes of waters in the state. Class I encompasses waters navigable under the federal test or waters capable of supporting commercial activity such as log rolling, rafting, commercial guiding, and transporting merchandise. (259) Class II waterways include all waters that are not class I waters, except lakes. (260) The statute provides that "all surface waters that are capable of recreational use, (261) with the exception of lakes, may be so used by the public without regard to the ownership of the land underlying the waters." (262) "Surface water" is defined as the body of water, its bed, and its banks up to the high water mark. (263) Under the statute, the public, therefore, maintains the equivalent of an easement to use the water, beds, and banks of all flowing waters capable of supporting recreational use.

The Montana Supreme Court somewhat qualified this broad public use right in Galt v. Montana Department of Fish, Wildlife, and Parks, (264) stating that "there is no attendant right that such use be as convenient, productive, and comfortable as possible [and] that any use of the bed and bank must be of minimal impact." (265) The court confirmed the public's right of use up to the high water mark, but limited this right to only such use as is necessary to use the water itself. (266) The court stated that this easement must be narrowly confined to minimize the impact to beds and banks owned by private individuals. (267) The court struck down two provisions of the statute relating to access of state-owned waters, one allowing overnight camping on the banks and the other allowing big game hunting from the river, finding such uses were not a necessary part of the easement granted to the public for its enjoyment of the water resource itself. (268) Though the court reaffirmed a public easement on state-owned water capable of recreational use, (269) it narrowly confined the easement to use necessary for the enjoyment of the water resource, so that impact on private landowners would be minimized. (270)

Recently, in Madison v. Graham, (271) Montana's Stream Access Law was challenged in federal court as violating the substantive due process rights of landowners under the Fourteenth Amendment of the U.S. Constitution. Three landowners, represented by the Mountain States Legal Foundation, sued the director of Montana's Fish, Wildlife and Parks Commission seeking to enjoin permanently enforcement of the Montana Stream Access Law. (272) The federal District Court of Montana found the claim actually arose under the Fifth Amendment Takings Clause and held the statute did not affect a compensable taking of property under the Fifth or Fourteenth Amendments because, far from denying the property owner all economically viable use of the land, its effect was "de minimis." (273) Moreover, if properly raised, the due process challenge would have failed; the court held the statute advanced a legitimate government interest and thus passed the rational basis test. (274) Finally, the court rejected the argument that the Stream Access Law was void for vagueness; contrary to the complaint, the court found the phrase "ordinary high water mark" easily understandable. (275) The Ninth Circuit recently affirmed. (276)

As interpreted in Curran, Hildreth, and Gait and codified in state statute, Article IX, section 3 of the Montana Constitution creates broad public rights in waters owned by the state. When these rights come into conflict with private property rights, Montana's courts and Legislature have attempted to strike a balance that protects each to the greatest extent possible. The result of this compromise is that recreational users may use state-owned water suitable for recreation without regard to ownership of underlying lands. This right entails any incidental contact with such subadjacent lands pursuant to recreation as well as the right to portage around barriers. Recreational users are assured that adjacent private property owners will not hinder normal recreational use of state-owned waters. Property owners, on the other hand, are assured that others do not have the right to enter or cross private property to obtain access to state-owned waters (277) and recreational users cannot unnecessarily encroach upon private property when exercising their right to use such waters.

2. The Public Trust Doctrine in Montana

The Montana Constitution states that "all surface, underground, flood, and atmospheric waters within the boundaries of the state are property of the state for the use of its people and are subject to appropriation for beneficial uses as provided by law." (278) As discussed above, the Montana Supreme Court relied on this clause and the public trust doctrine in guaranteeing access to all waters capable of recreational use. (279) Given the constitutional basis of the court's holdings and their subsequent codification in the Stream Access Law, the public trust doctrine is not really necessary to ensure broad public access to water bodies for recreation. (280)

The public trust doctrine will continue to be crucial, however, in the ongoing conflict between water diverters and those pushing for instream water rights protecting public trust interests in fishing and boating. (281) Recreational access to streams will not mean much if streams contain no water, or if the water is of such low quality it cannot support fishing and other forms of recreation. For this reason it is important that the Montana Supreme Court found the public trust doctrine rooted in the Montana Constitution. In Galt the court explained that Curran's holding affirming broad public access to all waters--regardless of ownership of beds--is based on "the public trust doctrine as derived from the Montana Constitution." (282) The court further noted that "[t]he public trust doctrine in Montana's Constitution grants public ownership in water." (283) Because the public trust doctrine in Montana derives its authority from the state constitution, the Legislature cannot override it as Idaho's Legislature attempted to do. (284) Therefore, the public trust doctrine should continue to protect the quality of trust resources as well as access to them.

3. Landowner Liability to Recreational Users in Montana

In 1985 the Montana Supreme Court replaced the traditional landowner liability trinity of invitee, licensee, and trespasser with a single standard of reasonable care under the circumstances. (285) Because this single standard conflicted with the legislative policy of limiting landowner liability for recreational use of land, the Legislature adopted language explicitly limiting such liability. (286) Under the statute, the landowner gives no assurances of the land's safety for any purpose and owes no duty of care--beyond avoiding "willful or wanton misconduct"--to any nonpaying recreational user. (287) "Landowners" include tenants as well as "private, governmental, or quasi-governmental" entities, including irrigation districts, drainage districts, or others in control of the property. (288) "Property" includes water and watercourses, as well as any structures or equipment. (289)

The statute's limitation on liability only applies to land made available for public use, (290) and does not apply if the owner charges a fee or receives other valuable consideration for the use. (291)

The statutory limitation on liability applies only if the use is "recreational," and it is not always easy to tell how a court will characterize a given activity. In Dobrocke v. City of Columbia Falls, (292) the Montana Supreme Court refused to allow the city to immunize itself with the statute when a woman tripped on fence wire walking her dog in an unmaintained grassy area in a city right-of-way. The court acknowledged that in some contexts walking was a form of recreation, but held that "walking to and from one's home is an everyday, ordinary and expected use of city property by one of its citizens," not recreation. (293) The outcome was different in Fisher v. United States, (294) where the surviving parents of a child killed on a field trip to Metcalf National Wildlife Refuge argued the purpose of the trip was not recreation but education, so the statute did not relieve the defendant United States of liability. But the federal district court held the statute applicable whenever "the entry is made for what could reasonably be regarded by the general public as a recreational use, regardless of some different purpose in the mind of a particular user." (295) The court refused to be put in the position of deciding when a hike, for instance, ceases to be recreational because of the hiker's search for flora. (296) Presumably, then, riparian landowners are shielded from liability to subsistence hunters and fishermen, and even river guides, even though their purposes may not be strictly recreational. Dobrocke's distinction between recreational and "ordinary and expected" uses may be difficult to apply, however, when the ordinary use of the land is recreational, as with the wildlife refuge in Fisher. (297)

Although there is no case law applying the Montana limited-liability statute directly to recreational users of watercourses through private lands, its similarity to the statutes of Oregon and Idaho, and the case law supporting those statutes, suggests that Montana's law should sufficiently protect landowners.

D. Recreational Access in Washington

1. Public Use Rights on Washington Water Bodies

In Washington there are essentially three categories of water with different public access rights:

1) Waters navigable for title under the federal test. The state holds title to the beds of these waters under the equal footing doctrine and guarantees public access for commerce and navigation, including recreation. (298)

2) Waters navigable for use under the shingle bolt test. Although the beds may be privately owned, the public retains a flotation easement over them. (299)

3) "Nonnavigable" waters. The public has no access through private lands, without the owner's consent, on waters with no commercial use, even though the waters may float small pleasure craft. (300)

The Washington Constitution grants the state ownership of the beds and shores of all navigable-for-title waters to the ordinary high water mark, except where a federal patent was perfected prior to statehood. (301) The Washington Supreme Court concluded in a series of decisions over several decades that the state owned these lands (tidelands and the beds of navigable waters) in fee, (302) and entry into statehood extinguished all riparian rights of adjacent landowners to navigable waters. (303) The state courts have cited the public interest in preserving navigation and commerce as a limit on private ownership of lands beneath navigable waters. (304)

Early on, the Washington Supreme Court expanded public access beyond waters navigable for title by adopting the shingle bolt test: Even when a bed is privately owned, the capacity to float logs or shingle bolts on the stream provides a basis for a public right to use the water. (305)

Other than through the shingle bolt test, Washington does not officially recognize public access to streams navigable only for use and not title. In the 1900 case Griffith v. Holman, (306) the plaintiff sued to recover the cost of a barbed-wire fence across the Little Spokane River that defendant had cut, as well as the value of trout defendant caught in the stream flowing through plaintiffs property. (307) The Washington Supreme Court upheld the $250 damages award against the river user, (308) holding that although the Little Spokane could float a fishing skiff, to be navigable "it must be capable of such floatage as is of practical utility and benefit to the public as a highway for trade and commerce." (309)

A year later, in Watkins v. Dorris, (310) the court recognized the right to run logs on nonnavigable-for-title streams. (311) It appears the early court was willing to burden private property rights of riparians for the sake of the logging industry but not for recreation.

The Washington Supreme Court implicitly rejected the pleasure boat test in Neterer v. State, (312) adhering to the commercial test from Griffith. In holding a shallow 275-acre lake--which "had been used only for pleasure and for fishing" (313)--not navigable, the court cited a remark from Massachusetts Chief Justice Lemuel Shaw: "Nor is it every small creek, in which a fishing skiff or gunning canoe can be made to float, at high water, which is deemed navigable. But, in order to have this character, it must be navigable for some purpose useful to trade or agriculture." (314)

As the business of recreation becomes more important to the Northwest than its logging industry, (315) this earlier distinction between commerce and pleasure breaks down and its reasoning thus becomes less persuasive. Some commentators feel that Griffith's narrow commercial view of navigability-for-use is ripe to be overruled. (316)

In any case, Washington has interpreted the shingle-bolt test liberally. The stream need not continually support such flotation; even if it will float shingle-bolts only during heavy rains and spring freshets, it is navigable in fact and thus a public highway. (317) Once established, a stream's navigability is not "destroyed by disuse." (318) The stream must be navigable in its natural state; thus, where a logging company spent more than $20,000 in improvements (in late 1800s dollars) to make a stream float timber, the stream was deemed not navigable. (319) However, the stream need not support flotation in its natural state year-round; where an artificial channel allowed canoes to navigate over a series of riffles during summer months, the stream was held navigable. (320) Similarly, occasional portages do not destroy navigability. (321)

Thus, although the beds of streams navigable for use may be privately owned, they are subject to a public easement for driving timber products or other useful commercial activities. (322) This easement extends to recreational navigation and fishing as well. In Wilbour v. Gallagher, (323) a hydropower dam raised the level of Lake Chelan, inundating private lands. The court held that "the public has the right to go where the navigable waters go, even though the navigable waters lie over privately owned lands." (324) Navigation includes "incidental rights of fishing, boating, swimming, water skiing, and other related recreational purposes generally regarded as corollary to the right of navigation and the use of public waters." (325) When the boundaries of a navigable-for-title waterway expand to cover private property, the public right of navigation expands over that property as well.

Washington case law does not provide clear guidance regarding public access to recreational waters. Wilbour seems to apply a liberal rule of navigability-for-use: Any waters, even over private land, may be used for recreation if possible. (326) However, Griffith v. Holman, which limited access to waters "of practical utility and benefit ... as a highway for trade and commerce," (327) is still good law. Although the newer cases seem to support the more liberal rule, the rights of recreationists and property owners remain uncertain until the Washington Legislature takes the politically difficult step of clarifying those rights.

2. The Public Trust Doctrine in Washington

The public trust doctrine has been employed in Washington for more than a century. (328) Trust resources include tidelands, shorelands, and beds of navigable waters, as well as the waters themselves. A 1901 case, City of New Whatcom v. Fairhaven Land CO., (329) confirmed the doctrine's applicability to all waters in the state that are navigable under the federal test. Noting the roots of the public trust in the English doctrine recognizing public access to the sea and tidal rivers, the Washington Supreme Court interpreted the Washington Constitution to extend the public trust to all navigable waters-fresh or salt. (330) The state's title to such submerged and submersible lands is burdened with an inalienable easement in the waters "for the purposes of travel, as on a public highway." (331)

In Wilbour, the Washington Supreme Court extended the application of the public trust doctrine to navigable waters above privately owned lands. (332) The defendants had filled their land to raise it above the artificially high level of Lake Chelan during summer months when a dam was closed. Even though this high water level only occurred during three months of each year, the court ordered the fill removed because it destroyed public navigation in those areas during those months. A later court explained that the jus publicum (public interest) maintained by the state in all navigable waters includes rights of "navigation, together with its incidental rights of fishing, boating, swimming, water siding, and other related recreational purposes generally regarded as corollary to the right of navigation and the use of public waters." (333) The public trust in Washington thus includes rights to recreate.

The public trust doctrine does not guarantee that public access to trust resources is completely unimpeded. In Caminiti v. Boyle, the Washington Supreme Court upheld a statute granting a revocable license to riparian owners to build private recreational docks on state-owned tidelands and shorelands. (334) The court, while acknowledging the power and extent of the public trust doctrine in Washington, found the docks authorized by the statute did not substantially impair public uses. (335) The court emphasized that the jus publicum is inalienable, (336) and that private docks must not block public access to the tidelands. (337)

That same year the Washington Supreme Court used the public trust doctrine to curtail development of privately owned land. In Orion Corp. v. Washington, (338) state regulations prevented a development company from filling thousands of acres of tidelands comprising a unique and fragile ecosystem in Padilla Bay. The developer, Orion, filed an inverse condemnation suit against the state. The court found Orion had purchased the property subject to the limitations imposed by the public trust doctrine. (339) Filling the bay to create a residential community was hardly consistent with public trust requirements, so Orion's plan was never legally permissible. Therefore, the state's regulations placed no more burden on the land than that which had always existed. (340) The court added that private use of protected trust lands must conform to the public interest in navigation, fishing, and recreation. (341)

More recently, the Washington Supreme Court affirmed that the public trust doctrine "prohibits the state from disposing of its interest in waters of the state in such a way that the public's right of access is substantially impaired, unless the action promotes the overall interest of the public." (342) In Rettkowski w. Department of Ecology, the Department of Ecology ordered irrigators to cease drawing additional groundwater appropriations that were causing hydrologically connected Sinking Creek to live up to its name. (343) The court held that the Department lacked statutory authority to conduct an extrajudicial adjudication of water rights (344) and it could not assume the state's public trust responsibilities. (345) In addition, while affirming the existence of the trust, the court refused to extend its scope to nonnavigable waters. (346) However, the majority based its ruling on a fundamental principle of administrative law--"an agency may do only that which it is authorized to do by the Legislature" (347)--and disavowed any intent to limit the scope of the public trust doctrine. Moreover, the two dissenting justices agreed that the state's interest in trust lands goes beyond navigation to include bathing, swimming, recreation, and other uses. (348) The dissent quoted the U.S. Supreme Court's decision in Phillips Petroleum v. Mississippi. "It would be odd to acknowledge such diverse uses of public trust tidelands, and then suggest that the sole measure of the expanse of such lands is the navigability of the waters over them." (349) It may be that the Washington court will eventually recognize the scope of the public trust to include nonnavigable surface waters, if not groundwater. (350)

The public trust doctrine in Washington presently applies to all navigable waters of the state. Even if the state conveys title, the state continues to hold rights to navigation and commerce over those lands in trust for the public. These rights extend to recreation, and cannot be alienated. The doctrine thus seems to provide strong protection for public use of water resources in the state. (351)

3. Landowner Liability to Recreational Users in Washington

Washington's recreational-use immunity statute provides a powerful shield to landowners who allow the public to use their land for "outdoor recreation," which is defined broadly to include not only traditional sports and activities but also nature study and enjoyment of historical or scientific sites. (352) The statute's purpose is to "encourage owners or others in lawful possession and control of land and water areas or channels to make them available to the public for recreational purposes" and to protect from liability those owners of recreation areas who open their land to the public for recreational purposes. (353) To accomplish this purpose, the statute creates a new category of entrant upon land to supplement the traditional tort trinity of trespasser, licensee and invitee: the recreational user. (354)

Landowners, public or private, who do not charge fees are not liable for unintentional injuries to recreational users of their land. (355) However, those in possession and control are liable for injuries caused by "a known artificial latent condition for which warning signs have not been conspicuously posted." (356) To trigger this exception, the cause of injury must be: "known," "dangerous," "artificial," and "latent." (357) All four must exist before a duty to post warning signs arises. (358)

The landowner's knowledge of the hazard must be actual, not merely constructive. (359) In Davis v. Washington, a motorcyclist drove off the leeward side of a sand dune on state-owned recreational land. The court held the State not liable for the resulting injuries; although the manager knew the terrain could include steep slopes, he did not know of the particular transitory condition in question. (360) This case has an important application to whitewater rafting. Like the contours of sand dunes, stream channels and conditions constantly change. Flows may surge following storms, or boulders may be exposed or concealed. Following Davis, landowners are assured they have no duty to continually monitor such transient conditions to avoid liability for injuries.

The leading recreational use immunity case in Washington dealing directly with injuries on water is Ravenscroft v. Washington Water Power Co. (361) In Ravenscroft the plaintiff was injured when his boat struck a submerged rooted tree stump in Long Lake, a reservoir on the Spokane River. The defendants, the power company and Spokane County, claimed immunity under the recreational use statute. At issue was whether the injury-causing condition (the submerged stump) was "artificial" and "latent," thus falling within the exception to landowner immunity. (362)

The court first made clear that the recreational-use immunity statute applies not only to "natural" bodies of water or land in some hypothetical pristine state but also to "any lands ... or water areas or channels." (363) Reservoirs, no less than "primeval" lands, are thus subject to the statute. (364) But the fact that Long Lake was created by human art (a dam) did not by itself make it an artificial condition under the statute. The court noted the statute had been held to apply to a variety of unnatural phenomena: a gravel mound on an excavation site, tracks on a roadway over a dam, a logging road, and the Burke-Gilman Trail, which runs through Seattle. (365) Thus the court avoided--for the moment--the impossible task of distinguishing the natural from the artificial on this pervasively humanized planet.

The injury-causing condition, Ravenscroft determined, was created by a combination of activities: cutting down the trees, leaving the stumps, and raising the water level to (barely) cover them. Being "contrived through human effort, not by natural causes detached from human effort," the condition was artificial. (366)

The court then had to determine whether this known, dangerous, artificial condition was also latent, triggering the exception to the statutory immunity. The inquiry here was whether the condition is apparent to the general class of recreational users, not whether one particular user might fall to discover it. (367) Moreover, the danger itself need not be apparent if the condition is. (368) Latency is largely a factual issue, and the Ravenscroft court refused to decide it on the record and instead remanded the issue to the trial court.

Ravenscroft's holding that a stump submerged in a reservoir can constitute an "artificial" hazard and that the landowner may be liable for any injuries it causes, has provided a rationale--or pretext--for restricting recreational use of waters in Washington. The Chelan County Public Utility District (PUD) cited the case in explaining its reluctance to release water for recreational flows on a dewatered river section. (369) If the flows are deemed "artificial," PUD's immunity under the statute could be eliminated. Ironically, by restoring the stream to something like its natural flow rate, PUD could face liability for injuries caused by an artificial condition.

These fears may be justified, given the profound difficulty of distinguishing natural from artificial conditions. As the Ravenscroft court noted, "A tree stump, on its own, may be no more artificial than a large rock." (370) It could be the result of a lightning strike, a tornado, or a beaver. (371) The artificiality of the stump in Ravenscroft was a product of its placement in the shallow middle channel of a reservoir--in short, its factual circumstances. What if the collision had been with the court's "large rock"--the emblem of "natural"? Would it matter in the court's totality of artifice test whether the rock was laid there by a receding glacier at the close of the Ice Age or dislodged by mining operations uphill one hundred years ago?

Ordinary judicial common sense may be all that is needed to surmount such difficulties. Still, given the fact that many--or even most--water bodies in the West are subject to artificial variations in level or flow, as water is diverted for irrigation and other purposes, the wording of the Washington statute provides at least a plausible basis for owners seeking to exclude recreational users from their land. The easiest way to defeat such an argument is to stress the companion requirement of latency. It is not hazards per se--natural or artificial--that trigger the exception to immunity, but unwarned hidden hazards. Adequate signage, or buoys around the stumps, would have sufficed to secure statutory immunity for the defendants in Ravenscroft. While this places more responsibility on the landowner than the statutes of Oregon or Idaho do, the Ravenscroft court said, "We do not view this as an onerous duty." (372)

Even more reassuring to Washington landowners may be that Washington courts almost always find that dangers were obvious, thus not latent. (373) Even in Ravenscroft the court remanded, rather than decide as a matter of law the issue of latency. Any danger presented by Chelan County PUD's recreational flows of water--whether deemed artificial, natural, or only less unnatural--would likely be found readily apparent. On the whole, the Washington recreational-use immunity statute seems to strike an adequate balance among the rights of landowners, the public, and the few who are injured on the water.

IV. CONCLUSIONS

A. Access

The conflicts between landowners and recreational users of waters in the Columbia Basin are part of a larger social conflict between public rights and private property. From the passage of Measure 7 in Oregon to renewed attempts to repeal or gut the Endangered Species Act, (374) property rights groups have succeeded to some extent in fostering the impression that regulation and restriction of property use--particularly to serve conservation and recreation values--is a recent and un-American perversion of traditional, absolute property rights. In fact, however, public rights to the use of water in place, even over privately held land, are deeply rooted in Anglo-American common law. (375) By the same token, the laws of trespass and vandalism temper the rights of the public and protect those of landowners. Laws in the Columbia River Basin states have evolved to reflect a balancing and rebalancing of these rights.

Where the scope of the public's right is most clear, as in Montana, there should be minimal conflict in the long run. While landowners may not like Montana's liberal stream access statute, it is clear and consistent with the state's case law. Landowners as well as recreational users can plan their affairs accordingly.

By contrast, where the scope of the public's right is unclear, as in Oregon, the potential for conflict is greatest. The leading cases on public access to waters over privately owned lands date from 1918 (Guilliams) and 1936 (Luscher). (376) Neither case makes clear whether incidental contact with beds and banks of such waters is permitted. With the Oregon Legislature again failing to pass a recreational use statute in the 2001 session, this issue may ultimately be resolved in court, perhaps when boaters or fishermen are arrested for trespass as in Picabo Livestock in Idaho. (377)

Washington has the most restrictive access law of the four Columbia River Basin states. (378) Its category of nonnavigable waters includes those that could float pleasure boats but have no commercial use. (379) Each of the other states, in various ways, recognizes a public right at least to float on waters navigable for recreation as well as for commerce, even though in Idaho, those waters may be drained out from under recreational users. But the leading Washington case restricting navigability to a commercial test, Griffith v. Holman, is more than a century old. (380) The realities of Washington's present-day economy undermine the logic of Griffith's distinction between commerce and pleasure. In Washington and throughout the Northwest, streams are now more valuable floating kayaks than shingle bolts. (381) For this reason Griffith is ripe to be overruled. It would be even more desirable, however, for the Washington Legislature to take the lead and pass a comprehensive recreational access statute, perhaps along the lines of Montana's, or at least clarifying the current balance of rights.

B. The Public Trust Doctrine

The public trust doctrine has an impressive pedigree in all of the Columbia Basin states. Historically, the doctrine has provided an established common law basis for maintaining public access to water resources. While this function should continue, perhaps more important may be the future role of the doctrine suggested by the Idaho Supreme Court's decision in Selkirk-Priest Basin Association v. State ex rel Andrus (382) and Orion in Washington: (383) to preserve the environmental quality that gives value to the public trust resources. If logging sales in Idaho could be stopped to protect the public's interest in navigation, fishing and recreation, as the court held in Selkirk-Priest Basin, (384) and if the "corollary rights" of the public trust interest in navigation include protection of water quality and wildlife, as the Orion court suggested, (385) the public trust doctrine could become a powerful tool for protecting not only recreational access to waters but the quality of that recreational experience. Although the Idaho Legislature attempted to overrule Selkirk-Priest Basin, (386) the resulting statute may be stricken if the Idaho Supreme Court someday finds, as the Arizona Supreme Court did, (387) that legislative abdication of the public trust doctrine contravenes the state constitution. (388) In any event, as the economic importance of outdoor recreation continues to grow and the value of commodity extraction declines, the legislative deference granted to the mining, lumber, and agricultural industries may erode--even in Idaho.

C. Liability

All of the Columbia River Basin states provide statutory protection limiting landowner liability to nonpaying recreational users, but the extent of that protection varies substantially. Washington has the least protective and most difficult statute to interpret because of the exception for known, dangerous, artificial, and latent conditions. "Artificial" is an inherently vague term because of the region's pervasive human manipulation of the natural environment, including lake levels and stream flows. Washington landowners, both public and private, may justifiably decide that caution dictates keeping their lands closed to public recreation. Support for a revised law more clearly protective of landowners--one like those of Idaho and Montana, that limit liability to willful or wanton acts--would likely receive broad support from landowners and recreationists alike. (389)

Oregon's statute errs in the opposite direction, perhaps, in absolving owners and controllers of land from liability for all but intentional acts. If the dam in Brewer (390) did create an unreasonably dangerous undertow for swimmers, a finder of fact should have had the opportunity to find that the state's maintenance of that condition, or failure to warn of it, was reckless or willful and wanton, thereby forfeiting the state's statutory immunity. Recreational use statutes are designed to encourage private landowners to provide access, but their more common function is to shield state and federal governments, whose lands are generally already open to public use. (391) Brewer highlighted the anomaly created by a statute in which Oregon citizens on state land are owed a lesser duty of care than trespassers onto private land under the common law.

The Idaho and Montana statutes strike the appropriate balance between encouraging openness to recreation and maintaining a minimal accountability for dangerous conditions. By reserving liability only for willful or wanton acts or omissions, these statutes protect landowners acting in good faith without entirely abandoning the possibility of compensation for the few recreationists who may be injured. Oregon should revise its recreational use statute to strike this sensible balance. (392)

Public rights to the use of water in place derive from various sources in state and federal law. Traditionally, the rights protected included navigation, commerce, and fishing. (393) Increasingly, navigation and commerce are defined broadly to include recreational uses. As Joseph Sax wryly noted, "When the question was getting timber to markets in places which lacked highways or railroads but not rivers, those rivers suitable for floating logs to market magically became navigable." (394) It is possible, then, that some riparian landowners in Oregon and Washington may soon find their lands "magically" burdened with an easement allowing the public to portage around obstructions or falls, just as a century earlier their predecessors in interest suffered mule trains dragging log floats down the same streams. Of course, such changes in status are not magical at all, but simply the normal course of law evolving to reflect--and help shape---changing historical, cultural, and economic developments. Even though protecting property rights will continue to command respect and generate passion, the scope of public use rights may be expected to expand to accommodate increasing demand for recreational opportunities.

(1) J.D. with Certificate in Environmental and Natural Resources Law 2003, Lewis & Clark Law School. Thanks to Jack McDonald and Professor Janet Neuman for their rigorous review and Brian Wayson for his unerring editing. Thanks also to Garrick Baxter, who contributed most of Part II.E on the doctrine of custom in Oregon. Special thanks to my wife Nancy and daughters Laurel, Olivia, and Carly for their patience, love, and support.

(2) J.D. 2000, Lewis & Clark Law School.

(3) J.D. 2001, cum laude, Lewis & Clark Law School. Public Defender, Greenwood/Abbeville Counties, South Carolina. College of Charleston; B.S., B.A. 1998. I thank Jack McDonald and Professor Jan Neuman for their insightful direction and comments, Mike James, Anne Kunkle, Steve Hammond, and Joe Vincent for their unique perspectives, and my family for their continuous love and support.

(4) Patrick O'Driscoll, Boating Rights Hit Choppy Waters, USA TODAY, July 27, 2001, at A3; Jason Robertson, Why 'Access'? at http://www. americanwhitewater.org/archive/article/175 (last visited Jan. 15, 2002). This is a national problem. American Whitewater, a boaters' group, logs 80-200 reports of conflict between landowners and recreationists per year. O'Driscoll, supra, at A3.

(5) O'Driscoll, supra note 4, at A3.

(6) At the national level, prominent groups lobbying and litigating on behalf of private property interests include Defenders of Property Rights and the Mountain States Legal Foundation. See http://www.yourpropertyrights.org/front.asp (Defenders' web site); see also http://www.mountainstateslegal.org (declaring the Foundation's dedication to "the right to own and use property, limited and ethical government and the free enterprise system"). Mountain States Legal Foundation challenged Montana's liberal Stream Access Law in Madison v. Graham, 126 F. Supp. 2d 1320 (D. Mont. 2001). See supra notes 4-5 and accompanying text.

(7) Measure 7, passed by initiative in November 2000, required governments to pay private property owners for any deprivation in property value resulting from government regulation. Measure 7 was held unconstitutional by the Marion County Circuit Court; on review, the Oregon Supreme Court invalidated the measure because it amended two sections of the state constitution, in violation of the rules for amendment. League of Or. Cities v. State, 56 P.3d 892, 911 (Or. 2002). For a concise account of "Oregon's property-rights wars," see David Reinhard, Time for a Measure 7 Compromise, OREGONIAN, Apr. 19, 2001, at D15.

A new incarnation of Measure 7, dubbed "Son of 7," had resurfaced in a bill before the Oregon Legislature as this Article went to print. Dave Hogan, New Bill Resurrects Property Rights Issue, OREGONIAN, Jan. 22, 2003, at B1. House Bill 2137 would require compensation to landowners for land-use restrictions enacted after November 2000 (when Measure 7 passed) that lower property values by more than ten percent. Id.

(8) Faced with a continuing drought, snowpack only one-third of normal, and a court order to protect endangered suckers in Upper Klamath Lake and coho in the Klamath River, the Bureau of Reclamation announced on April 6, 2001 that it would not deliver irrigation water to much of the Klamath irrigation project. The Bitter Taste of Drought: Farmers are Left High and Dry in Klamath Basin and the Federal Government Must Come to Their Aid, OREGONIAN, Apr. 15, 2001, at C4; Bud Ullman & Larry Dunsmoor, Klamath Basin Water: Too Many Promises, BIG RIVER NEWS, Summer 2001, at 1, available at http://www.lclark.edu/dept/water/objects/BRN73.pdf (last visited Feb. 19, 2003); see also Pac. Coast Fed'n of Fishermen's Ass'ns. v. U.S. Bureau of Reclamation, 138 F. Supp. 2d 1228 (N.D. Cal. 2001) (enjoining the Bureau from releasing irrigation water whenever Klamath River flows are too low to protect fish).

(9) OREGON STATE MARINE BOARD, MANAGING RIVER RECREATION: A STATEWIDE ASSESSMENT OF NEEDS FOR BOATING ACCESS, FACILITIES, ENFORCEMENT, AND EDUCATION 8-9 (Report to the Joint Legislative Interim Committee on Navigability) (Dec. 1998), available at http://www.marinebd.osmb.state.or.us/Library/finalreport.pdf.

(10) Privately owned lands account for 76 percent of Oregon lands lying along rivers and streams. By contrast, river users estimated that 66 percent of such lands were public. Id. at 8. This may be why 77 percent of users believe they may fish from the banks and 75 percent believe they may portage around obstructions on the rivers they use.

(11) See infra Part II.B on navigability for title. In some eases, owners have even paid taxes on the submerged land in state ownership for years. Doug Irving, State Readies Claim to Sandy Riverbanks, OREGONIAN, Feb. 16, 2001, at D3. The Oregon State Land Board ruled on February 5, 2002 that the state did own these submerged and submersible lands. Gerald Ewing, Ruling Favors Sandy River Anglers, Boaters, OREGONIAN, Feb. 6, 2002, at C3.

(12) See generally Charles B. Marvel, Annotation, Public Rights of Recreational Boating, Fishing, Wading, or the byre in Inland Stream the Bed of which is Privately Owned, 6 A.L.R. 4th 1030 (1981).

(13) In Oregon, these lands are defined by statute. "'Submerged lands', ... means lands lying below the line of ordinary low water of all navigable waters ... whether such waters are tidal or nontidal." "'Submersible lands' ... means lands lying between the line of ordinary high water and the line of ordinary low water of all navigable waters and all islands, shore lands or other such lands held by or granted to this state by virtue of her sovereignty, wherever applicable ... whether such waters or lands are tidal or nontidal." OR. REV. STAT. [section] 274.005(7) & (8) (2001).

(14) Pollard v. Hagan, 44 U.S. (3 How.) 212, 230 (1845). The state may, in some cases, dispose of sovereign land to private landowners; however, these transfers are subject to the public trust doctrine, which limits the circumstances under which such transfers are allowed. See discussion infra Part II.D.

(15) See infra Part II.B.

(16) See S. Idaho Fish & Game Ass'n v. Picabo Livestock, 528 P.2d 1295, 1298 (Idaho 1974) (determining that the federal test of navigability for title does not preclude less restrictive state test for navigability establishing a right of public passage). See generally 4 WATERS AND WATER RIGHTS [section] 37.4 (Robert E. Beck ed., 1991). State navigability-for-use tests are commonly referred to as the "saw log" (or "log flotation") and "pleasure boat" tests. Id. [section] 32.01-.03.

(17) Shively v. Bowlby, 152 U.S. 1, 14-16 (1894). The beds and banks of navigable waters were "sovereign" lands under English common law, held by the King in trust for the public. The original thirteen colonies took possession of such lands at the Revolution. Id. at 14-16. Under the equal footing doctrine each subsequent state succeeded to ownership of sovereign lands as well. Martin v. Lessee of Waddell, 41 U.S. (16 Pet.) 367, 410 (1842).

(18) Martin, 41 U.S. at 410-11.

(19) See, e.g., Wycoff v. Mayfield, 280 P. 340, 342 (Or. 1929) (holding that, where boundary of property is nonnavigable stream, rights of grantee extend to thread of stream); Parker v. Farrell., 445 P.2d 620, 622 (Wash. 1968) (finding where stream divides two parcels of property, thread of stream is boundary).

(20) See Kaiser Aetna v. United States, 444 U.S. 164, 176 (1979) (noting right to exclude is "one of the most essential sticks in the bundle of rights that are commonly characterized as property").

(21) For instance, Oregon's water code declares that "[a]ll water within the state from all sources of water supply belongs to the public." OR. REV. STAT. [section] 537.110 (2001); cf. Guilliams v. Beaver Lake Club, 175 P. 437, 441 (Or. 1918) ("Whatever may be the title to the bed of such streams or bodies of water ... [riparians] do not own the water itself but only the use of it as it flows past their property."); see also MONT. Cossv. art. IX, [section] 3 (declaring "surface, underground, flood, and atmospheric" waters to be property of the state subject to appropriation for beneficial use); cf. IDAHO CONST. art. XV, [section] 1 (declaring use of waters to be a public use).

(22) Additionally, all of the Columbia Basin states extend the public trust to include water bodies that do not meet the federal test for navigability, but do comport with a more liberal state test for public use. See infra Part III.

(23) See Mont. Coalition for Stream Access v. Hildreth, 682 P.2d 1088, 1091 (Mont. 1984) (establishing the public's right to use bed and banks up to high water mark, regardless of ownership, and to portage around obstructions in least intrusive manner possible).

(24) 4 WATERS AND WATER RIGHTS, supra note 16, [section] 31.02(b); Guilliams, 175 P. at 424 (finding that although boater on stream over privately owned land has flotation easement, he has no right to land at any point without owner's permission).

(25) 4 WATERS AND WATER RIGHTS, supra note 16, [section] 33.01(b).

(26) The navigational servitude is related to the determination of state-owned submerged lands. In general, the servitude allows the federal government to displace a state-recognized property right, to promote navigation, without compensating the property holder. See United States v. Willow River Power Co., 324 U.S. 499 (1945) (raising the level of the St. Croix River for navigation purposes and thereby destroying a power company's head for power generation was not compensable as a taking).

(27) Congress has extensive authority over U.S. waters under the Commerce Clause. U.S. CONST. art. I, [section] 8, cl. 3; Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 22 (1824) (Commerce Clause gives the federal government power to regulate the navigable waters of the United States.). This authority reaches beyond navigation to encompass regulation of activities producing water pollution or other environmental hazards that may affect more than one state. Hodel v. Va. Surface Mining & Reclamation Ass'n., 452 U.S. 264, 282 (1981). But see Solid Waste Agency of N. Cook County v. U.S. Army Corps of Eng'rs, 531 U.S. 159, 168, 171 (2001) (Commerce Clause authority does not extend to regulation through the Clean Water Act of isolated, nonnavigable wetlands.).

(28) Glenn J. MacGrady, The Navigability Concept in the Civil and Common Lam: Historical Development, Current Importance, and Some Doctrines That Don't Hold Water, 3 FLA. ST. U. L. REV. 513, 606-10 (1975).

(29) Martin, 41 U.S. (16 Pet.) 367, 410 (1842). In Martin, a dispute arose over ownership of mud-flats on the Raritan River in New Jersey between the state and the riparian owner, who held grants traceable to Charles II. Justice Taney declared that at common law the "dominion and property in navigable waters, and in the lands under them, were being held by the king as a public trust [and] ... when the Revolution took place, the people of each state became themselves sovereign; and in that character hold the absolute right to all their navigable waters and the soils under them for their own common use." Id. at 410-11. Thus, the original 13 states obtained title to the lands beneath its navigable waters by defeating England in the American Revolution. Subsequently, as states were admitted into the union, each state also received title to the lands beneath their navigable waters under the "equal footing" doctrine. Pollard, 44 U.S. (3 How.) 212 (1845); Shively, 152 U.S. 1, 57-58 (1894). If the waters are not navigable at the time of statehood, the title of the United States to land underlying them remains unaffected by the creation of a new state. United States v. Utah, 283 U.S. 64, 75 (1931).

Although there is a strong presumption that title to lands under navigable waters passed to the state at the time of statehood, that presumption can be overcome in certain circumstances. Recently, in Idaho v. United States, 533 U.S. 262, 279-81 (2001), the U.S. Supreme Court held that congressional approval of an Executive Order signed by President Grant in 1873 manifested a clear intent that title to part of Lake Coeur d'Alene be held in trust by the federal government for the Coeur d'Alene Tribe rather than pass to the state upon its entry into the Union in 1889. Id. at 279-81.

(30) United States v. Oregon, 295 U.S. 1, 14 (1935).

(31) See discussion infra Part II.D.

(32) United States v. Oregon, 295 U.S. at 14 (declaring that "[s]ince the effect upon the title to such lands is the result of federal action in admitting a state to the Union, the question, whether the waters within the State under which the lands lie are navigable or nonnavigable, is a federal, not a local one. It is, therefore, to be determined according to the law and usages recognized and applied in the federal courts.") United States v. Utah, 283 U.S. at 66; United States v. Holt State Bank, 270 U.S. 49, 55-56 (1926); Brewer-Elliott Oil & Gas Co. v. United States, 260 U.S. 77, 89 (1922).

(33) The Daniel Ball, 77 U.S. (10 Wall.) 557, 563 (1870).

(34) Id. Although the issue in Daniel Ball was admiralty jurisdiction, the Supreme Court has adopted the same test for title purposes. See, e.g., United States v. Oregon, 295 U.S. at 14-15; United States v. Utah, 283 U.S. at 76.

(35) The Daniel Ball, 77 U.S. at 563; see also United States v. Oregon, 295 U.S. at 15 (finding that the lower court used the appropriate standard, but erred in concluding that the waters were nonnavigable).

(36) Utah v. United States, 403 U.S. 9, 11 (1971) (finding the Great Salt Lake navigable for title even though traffic at the time of statehood was limited to ranchers hauling their own livestock, not commercial carriers). The Court stated, "The lake was used as a highway and that is the gist of the federal test." Id.

(37) The Montello, 87 U.S. (20 Wall.) 430, 441-42 (1874) (stating that "the true test of the navigability of a stream does not depend on the mode by which commerce is, or may be, conducted, nor the difficulties attending navigation"). But navigability for federal regulatory jurisdiction under the Commerce Clause should also be considered "in the light of the effect of reasonable improvements." United States v. Appalachian Elec. Power Co., 311 U.S. 377, 407 (1940) (holding that "[t]o appraise the evidence of navigability on the natural condition only of the waterway is erroneous. It's availability for navigation must also be considered").

(38) United States v. Oregon, 295 U.S. at 15.

(39) United States v. Utah, 283 U.S. at 83.

(40) The Montello, 20 U.S. at 441-42 ("It would be a narrow rule to hold that in this country, unless a river was capable of being navigated by steam or sail vessels, it could not be treated as a public highway."); see also United States v. Holt State Bank, 270 U.S. 49, 56 (1926) (explaining that "navigability does not depend on the particular mode in which such use is or may be had--whether by steamboats, sailing vessels or flatboats--nor on an absence of occasional difficulties in navigation, but on the fact, if it be a fact, that the stream in its natural and ordinary condition affords a channel for useful commerce").

(41) See infra notes 42-49 and accompanying text.

(42) See Appalachian Elec. Power, 311 U.S. at 406 (stating that "[e]ach application of [the Daniel Bali test] is apt to uncover variations and refinements which require further elaboration").

(43) Alaska v. United States, 754 F.2d 851, 854 (9th Cir. 1985) (quoting Daniel Ball, 77 U.S. (10 Wall.) 557, 563 (1870)).

(44) 672 F.2d 792 (9th Cir. 1982).

(45) Id. at 795-96 (stating that under the saw log test, evidence of floating logs down a river to a mill is sufficient to support a finding of navigability). But see United States v. Rio Grande Dam & Irrigation Co., 174 U.S. 690, 698 (1899) ("The mere fact that logs, poles and rafts are floated down a stream occasionally and in times of high water does not make it a navigable river."). The court in Riverfront Protection Association distinguished Rio Grande Dam by noting that log drives on the McKenzie River did not depend on high water and were not occasional, in that the drives took place in April, May, and June over a period of seventeen years, moving thousands of logs and millions of board feet of timber. Riverfront Protection Ass'n, 672 F.2d at 795; see also Puget Sound Power & Light Co. v. FERC (Puget Sound), 644 F.2d 785, 787 (9th Cir. 1981) (holding that the White River in Washington is navigable under 16 U.S.C. [section] 796(8), which parallels the language of cases declaring the authority of the United States under the Commerce Clause of the Constitution). The court formulated a similar liberal test to define navigability for federal regulatory jurisdiction, where evidence of floating "shingle bolts" was sufficient to establish navigability even though the bolts required constant manipulation to break up jams or to free those caught on the banks or shoals. A shingle bolt is a quartered section of log about four feet, six inches in length used for making shingles. Id. at 788.

(46) Riverfront Protection Ass'n, 672 F. 2d at 795-96.

(47) Puget Sound, 644 F. 2d at 788 (quoting Appalachin Elec. Power, 311 U.S. at 416).

(48) Alaska v. United States, 201 F.3d 1154, 1157 (9th Cir. 2000) (finding that trappers using canoes to bring supplies upstream and furs downstream may demonstrate navigability at statehood.).

(49) Puget Sound, 644 F.2d at 788.

(50) 891 F.2d 1401 (9th Cir. 1989) (also known as the Gulkana River case).

(51) Id. at 1405.

(52) Id.

(53) Id.

(54) Id. The court went on to state that "[t]o deny that this [present] use of the River is commercial because it relates to the recreation industry is to employ too narrow a view of commercial activity." Id.

(55) The applicability of the Gulkana River outside Alaska may be limited by the fact that ordinary modes of trade and transportation have changed little in the relatively brief time since statehood in 1958.

(56) See supra notes 47-49 and accompanying text.

(57) Puget Sound, 644 F.2d at 788 (quoting Appalachian, 311 U.S. at 416).

(58) See 4 WATERS AND WATER RIGHTS, supra note 16, [section] 30.01(d)(3)(C) (discussing for purposes of the federal navigability-for-title test, the importance of establishing that at the time of statehood, a waterway was susceptible to use as a commercial highway).

(59) Arnold v. Mundy, 10 Am. Dec. 356, 370 (N.J. 1821) (determining that the proprietors had no interest in the submerged land, the water or usufructory interests because such interests in navigable waters are common to New Jersey residents).

(60) Id.

(61) United States v. Holt State Bank, 270 U.S. 49, 55-56 (1926); United States v. Oregon, 295 U.S. 1, 14 (1935).

(62) Fox River Paper Co. v. R.R. Comm'n, 274 U.S. 651,655 (1927); Barney v. Keokuk, 94 U.S. 324, 334 (1876).

(63) See, e.g., In re Willow Creek, 144 P. 505, 514 (Or. 1914) (stating that "[w]ater rights, like all other rights, are subject to such reasonable regulations as are essential to the general welfare, peace and good order of the citizens of the state"); Joseph L. Sax, The Constitution, Property Rights and the Future of Water Law, 61 U. COLO. L. REV. 257, 260-61 (1990) (pointing out that water rights have the same status as any other property right and can be regulated under the states' police power to the same extent as land, subject only to constitutional protections). A further limit on states' power over water use, however, inheres in the federal navigation servitude impressed on navigable waterways in a state. The state may not regulate use of navigable waters in such a way as to impair navigability. United States v. Oregon, 295 U.S. at 14 (stating that states' power over navigable waterways is "subject only to the paramount power of the United States to control such waters for purposes of navigation in interstate and foreign commerce").

(64) See 4 WATERS AND WATER RIGHTS, supra note 16, [section] 30.033 at 65 (citing cases in which "states have recognized a public easement for passage entirely independently from their notions of the proper test for navigability for title"); cf. Lebanon Lumber Co. v. Leonard, 136 P. 891, 892 (Or. 1913) (declaring that, in Oregon, large streams "are considered nature's highways without the aid of legislation").

(65) See generally 4 WATERS AND WATER RIGHTS, supra note 16, [section] 31.02(a) (surveying public rights to use of water where bed is privately owned).

(66) Compare Mont. Coalition for Stream Access, Inc. v. Curran, 682 P.2d 163 (Mont. 1984) (finding the public may use bed and banks up to high water mark and may portage around obstructions), with People v. Emmert, 597 P.2d 1025, 1027-28 (Colo. 1979) (finding the Colorado Constitution does not give public the right to float through private land without the owner's consent, much less use the banks or portage).

(67) Montana, with the most liberal access policy, still tries to balance access with the rights of property owners. See MONT. CODE ANN. [section] 23-2-311 (2000) (recognizing a right to go above high-water mark to "portage around barriers in the least intrusive manner possible, avoiding damage to the landowner's land and violation of his rights").

(68) See generally 4 WATERS AND WATER RIGHTS, supra note 16, [section] 30 (stating the sources of the public right to the use of water).

(69) Ill. Cent. R.R. v. Illinois, 146 U.S. 387, 435 (1892).

(70) Id. at 452.

(71) See, e.g., Kootenai Envtl. Alliance, Inc. v. Panhandle Yacht Club, Inc. (Kootenzu), 671 P.2d 1085 (Idaho 1983) (recognizing public trust protection for recreational boating, fish, aquatic habitat, and wildlife and aesthetic beauty); Marks v. Whitney, 491 P.2d 374 (Cal. 1971) (finding ecological and recreational purposes added to the public trust); Morse v. Or. Div. of State Lands, 590 P.2d 709 (Or. 1979) (noting that navigation, fishing and recreation are public trust interests to be protected by the state).

(72) Charles F. Wilkinson, The Headwaters of the Public Trust: Some Thoughts on the Source and Scope of the Traditional Doctrine, 19 ENVTL. L. 425, 425 (1989).

(73) See generally MacGrady, supra note 28 (examining law related to navigability and public waters in early society and Europe).

(74) The public trust doctrine can ultimately be traced to ancient Roman law, which deemed the sea and seashore 'res communes,' meaning 'common to all.' Richard Ausness, Water Rights, The Public Trust Doctrine, and the Protection of Instream Uses, 1986 U. ILL. L. REV. 407, 409 (1986). The English common law also incorporated the "res communes" doctrine, reserving certain lands titled in the King for the benefit of the public including seas, seashores, air, and running water. Daniel R. Coquillette, Mosses from an Old Manse: Another Look at Some Historic Property Cases About the Environment, 64 CORNELL L. REV. 761, 804-06 (1979). The doctrine is prevalent in African, European, and Asian legal systems as well. Wilkinson, supra note 72, at 429; see also MacGrady, supra note 28 at 534-77 (discussing the existence of the public trust doctrine in Europe).

(75) Michael C. Blumm & Thea Schwartz, Mono Lake and the Evolving Public Trust in Western Water, 37 ARIZ. L. REV. 701, 713-15 (1995).

(76) See Illinois Central, 146 U.S. 387, 435 (1892) (recognizing state right to use or dispose of land covered by tide or navigable waters so long as use won't substantially impair public interest); Shively, 152 U.S. 1, 47 (1894) (same).

(77) 10 Am. Dec. 356 (N.J. 1821).

(78) Id. at 368.

(79) Id. at 369-70.

(80) 146 U.S. 387, 460 (1892).

(81) Id. at 452.

(82) Id. at 453.

(83) Appelby v. City of New York, 271 U.S. 364, 395 (1926).

(84) Illinois Central, 146 U.S. at 460.

(85) 4 WATERS AND WATER RIGHTS, supra note 16, [section] 30.02(d).

(86) 138 P. 79 (Cal. 1913).

(87) Id. at 88.

(88) The Montello, 87 U.S. 430, 439 (1874); The Daniel Ball, 77 U.S. 557, 563 (1870); see also Phillips Petroleum Co. v. Mississippi, 484 U.S. 469, 486 (1988).

(89) 658 P.2d 709 (Cal. 1983). In this case, the city of Los Angeles diverted water from nonnavigable streams that flowed into Mono Lake, a navigable lake under the federal test. The diversions were challenged as a violation of the public trust doctrine. The court held that Los Angeles water rights in nonnavigable tributaries were subject to limitations to protect the public trust right to navigation on the waters of Mono Lake itself, wildlife habitat, and recreation.

(90) Id. at 728.

(91) Id.

(92) Phillips Petroleum, 484 U.S. at 476.

(93) See, e.g., Curran, 682 P.2d 163, 172 (Mont. 1984) (holding that the public may portage around stream obstructions, but in "the least intrusive way possible, avoiding damage to the private property holder's rights").

(94) 2 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 90-91, 95-97 (1765); Carol M. Rose, The Comedy of the Commons: Custom, Commerce, and Inherently Public Property, 53 U. CHI. L. REV. 711, 740 (1986).

(95) BLACKSTONE, supra note 94, at 32-35.

(96) Id.

(97) 462 P.2d 671, 679 (Or. 1969).

(98) Id. at 672.

(99) Id. at 676.

(100) The elements of the common law doctrine of custom are that the alleged custom must be or must have been: 1) ancient, 2) exercised without interruption, 3) peaceable and free from dispute, 4) reasonable, 5) certain, 6) obligatory or compulsory, and 7) consistent with other customs or laws. Id. at 677.

(101) Id. at 673.

(102) Id. at 678. A later case appeared to back away from Thornton's blanket application to the entire Oregon coast by holding that a freshwater cove did not meet Blackstone's criteria for applying the doctrine of custom. McDonald v. Halvorson, 780 P.2d 714 (Or. 1989). By considering evidence pertaining to a particular parcel of land, the McDonald court seemed to countenance the tract-by-tract litigation it sought to avoid in Thornton. But McDonald explicitly affirmed Thornton, suggesting that the parcel's anomalous nature accounted for the outcome:

   [Little Whale Cove] is a uniquely located freshwater pool formed at
   the coast where a basalt dam prevents two freshwater streams from
   discharging directly into the ocean. Because Little Whale Cove is
   not a part of the ocean, the location of its beach is not congruent
   with the Haycourt's assumption that it was speaking of beaches that
   bordered on the ocean.

Id at 723. The court again affirmed Thornton's application of the doctrine of custom four years later. Stevens v. City of Cannon Beach, 854 P.2d 449 (Or. 1993). In Stevens, the court upheld a grant of summary judgment to the city, based on Thornton, that prevented the landowner from presenting any factual case that the Blackstone criteria for customary rights did not apply to his particular parcel. Id. at 451. The court discussed Lucas v. S.C. Coastal Council, which held that a regulation denying the owner all economically viable use is a compensable "taking" of property unless the use was already prohibited by a background principle of state property law. Id. at 455-56 (citing Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1029 (1992)). The Stevens court held that the doctrine of custom was precisely such a background principle. The restrictions on developing the dry sand portion of the beach were not newly legislated but inhered in the title to the property under the common law of Oregon. Stevens, 854 P.2d at 456-57. On appeal to the U.S. Supreme Court, Stevens was denied certiorari but did catch the attention of one justice. Objecting to a perceived inconsistency in the Oregon Supreme Court's application of the doctrine of custom in McDonald and Stevens, Justice Scalia, in a rare written dissent from the denial of certiorari, suggested Thornton's proclamation of a public right in the dry-sand area of Oregon's entire coast might be a "land grab," and questioned whether the doctrine of custom was really a background principle of state property law or whether the Oregon court was "creating the doctrine rather than describing it." Stevens, 510 U.S. 1207, 1212 n.4 (1994) (cert. denial) (Scalia, J., dissenting).

(103) William A. Lund, Achieving River Access in the Beach Access State, 35 WILLAMETTE L. REV. 183, 199-202 (1999).

(104) In Thornton v. Hay the court pointed to evidence that Oregon's aboriginal inhabitants used the foreshore for digging clams and the dry-sand areas of the beach for their cooking fires to establish the custom as "ancient." 462 P.2d at 673, 677.

(105) The Idaho Supreme Court has declined the invitation to embrace the doctrine of custom. State ex rel. Haman v. Fox, 594 P.2d 1093 (Idaho 1979). After describing the doctrine as a "dead letter in the United States," the Haman court noted the doctrine was "exhumed" by Thornton v. Hay but remained "of opinion that the doctrine does obtain in Idaho." Haman, 594 P.2d at 1101. Nonetheless, the court proceeded to apply the doctrine to the facts at bar, affirming the trial court's finding that the usage failed to meet six of Blackstone's seven requirements for customary rights. Id. Perhaps on better facts the doctrine of custom could be "exhumed" from the legal soil of Idaho as well.

The state of Washington used the doctrine of custom as an affirmative defense in a quiet title action brought by coastal landowners in Gray's Harbor. In Jacobsen v. State, 569 P.2d 1152, 1157 (Wash. 1977), the Washington Supreme Court ruled that the state's "bare allegation" that the doctrine applied to the land in question was not enough to defeat the summary judgment motion granted the private landowners in the lower court. Id. at 1157. So although the content of the doctrine in Washington remains unclear, the state's supreme court has indicated it does exist--or at least has not said it does not.

(106) See, e.g., Ward v. S. Pac. Co., 36 P. 166, 167 (Or. 1894) (explaining that the railroad had no duty to keep a lookout for trespasser or guard him from danger); Peterson v. Romine, 960 P.2d 1266, 1269 (Idaho 1998) (concluding that the only duty to a trespasser is to avoid "willful or wanton" acts that may cause injury).

(107) McHenry v. Howells, 272 P.2d 210, 212 (Or. 1954) (holding that an owner was not liable to plaintiff mother who fell down stairs; steps were an obvious hazard); Bates v. E. Idaho Reg'l Med. Ctr., 755 P.2d 1290, 1291-92 (Idaho 1988) (holding that the hospital was not liable to visitor who slipped on ice in parking lot because hazard was apparent).

(108) See, e.g., McKinnon v. Wash. Fed. Sav. & Loan Ass'n, 414 P.2d 773, 776 (Wash. 1966) (stating that a plaintiff who tripped on sprinkler head was an invitee, though not a customer, of the defendant bank where bank held itself open for meetings of public groups).

(109) Wilk v. Georges, 514 P.2d 877, 880-81 (Or. 1973) (holding that a slippery plank in a Portland plant nursery was "unreasonably dangerous," so owner must not only warn but take reasonable steps to obviate the danger).

(110) See generally Robin Cheryl Miller, Annotation, Effect of Statute Limiting Landowner's Liability for Personal injury to Recreational User, 47 A.L.R. 4th 262 (1986 & Supp. 2002) (surveying recreational use liability statutes).

(111) van Dinter v. City of Kennewick, 827 P.2d 329, 332 (Wash. Ct. App. 1992), aff'd, 846 P.2d 522 (Wash. 1993).

(112) See Jason Robertson, What Are Recreational Use Statutes?, http://www.americanwhitewater.org/archive/article/124/ (Dec. 13, 2000) (advocating clear statements in recreational use statutes that users assume risk and responsibility, in order to further policy of encouraging owners to open lands for whitewater rafting and other recreation).

(113) Id.

(114) The Rogue, Klamath, and Umpqua Rivers were declared navigable through administrative rules and declarations. Oregon Division of State Lands, State Ownership of Navigable Waterways Memorandum, (May 24, 1996); see also Oregon Division of State Lands, Navigable Waterways, at http://statelands.dsl.or.us/navigwaterways.htm (listing all Oregon navigable waterways and the authority by which they have been declared navigable). The Columbia and Snake Rivers were determined navigable upon Oregon's admission to the Union. Id. The Coos and Coquille Rivers are considered navigable because they are affected by tidal influences. Id. Additionally, judicial decisions determined the navigability of three Oregon rivers. The Willamette River was deemed navigable. Oregon ex rel. State Land Bd. v. Corvallis Sand & Gravel, 429 U.S. 363 (1977). The McKenzie River is also navigable. Oregon ex rel. Div. of State Lands v. Riverfront Prot. Ass'n, 672 F.2d 792 (9th Cir. 1982). Additionally, sections of the Chetco River are deemed navigable. Oregon v. Tidewaters Contractors (D. Or. Aug. 10, 1994) (No. 93-6017-HO). Most recently, the Sandy River was deemed navigable by means of administrative adjudication. See Gerald Ewing, Ruling Favors Sandy River Anglers, Boaters, OREGONIAN, Feb. 6, 2002, at C3 (discussing the State Land Board's declaration that the lower 37.5-mile section of the Sandy River meets the federal test for navigability).

Other rivers and water bodies may meet the test as well, but so far have not been officially recognized as navigable by a court or the State Land Board. The Board is currently studying requests to declare segments of several other rivers navigable, including the North Santiam, the Trask, and the Kilchis. Oregon Division of State Lands, Pending Navigability Study Requests, at http://statelands.dsl.or.us/pendingstudyrequests.htm.

(115) See generally 4 WATER and WATER RIGHTS, supra note 16, [subsection] 30-33 (discussing sources and scope of public right, waters subject to public right, and impact of public right on private rights).

(116) See 1000 Friends of Or. v. Div. of State Lands, 611 P.2d 1177, 1179 (Or. 1980) (permit for dike across tidal slough held contrary to public interest in fisheries, navigation, and recreation).

(117) OR. REV. STAT. [section] 274.400-274.412 (2001).

(118) Id. [section] 274.402(2)(a),(b). In February 2001 DSL completed a navigability study of the Sandy River, the first it has conducted under the statutory process adopted in 1995. Looking at evidence from Lewis and Clark's journals of canoe traffic, as well as log flotation shortly after statehood, the report concludes that the Sandy River meets the federal navigability test for public ownership. OR. DIV. OF STATE LANDS, DRAFT SANDY RIVER NAVIGABILITY STUDY REPORT 11-12 (2001). The Oregon State Land Board ruled on February 5, 2002 that the state did own these submerged and submersible lands. Ewing, supra note 11, at C3.

(119) OR. REV. STAT. [section] 274.404(2)(a).

(120) OR. ADMIN. R. [section] 141-121-010(10) (1996).

(121) Id. [section] 141-121-0010(2).

(122) See generally 4 WATERS AND WATER RIGHTS, supra note 16, [section] 32.03. (describing the use of the "pleasure boat test" in deciding what waters are subject to the public right and the limits of the test's application).

(123) 175 P. 437 (Or. 1918).

(124) Id. at 438.

(125) Id. at 439.

(126) 53 N.W. 1139 (Minn. 1893).

(127) Guilliams, 175 P. at 442 (quoting Lamprey, 53 N.W. at 1143).

(128) Id. at 441 ("Even confining the definition of navigability, as many courts do, to suitability for the purposes of trade or commerce, we fail to see why commerce should not be construed to include the use of boats and vessels for the purpose of pleasure.").

(129) Id. at 439.

(130) Id.

(131) 56 P.2d 1158 (Or. 1936).

(132) Id. at 1159. The defendants purchased land from plaintiff in exchange for a promissory note. The lake was partially drained, exposing over two acres on each side of the lake not contained in the warranty deed. The plaintiff sued for payment of the note and defendants asserted that the State, not the plaintiff, owned the land. Id.

(133) Id. at 1162.

(134) Id.

(135) Id. The court concluded with a passage from Lamprey, also quoted approvingly by the Guilliams court: "To hand over all these lakes to private ownership, under any old or narrow test of navigability, would be a great wrong upon the public for all time, the extent of which cannot, perhaps, be now even anticipated." Id. (quoting Lamprey, 53 N.W. 1139, 1143 (Minn. 1893)).

(136) Guilliams, 175 P. 437, 442 (Or. 1918).

(137) Id.

(138) Id. Such dicta seem at odds, however, with at least one case allowing incursion onto private riparian land for the purpose of getting timber to market. See Weise v. Smith, 3 Or. 445 (1869) (denying damages from defendant who fastened a boom on plaintiffs property to catch saw logs); see also Felger v. Robinson, 3 Or. 455, 458 (1869) (declaring that "[a]ny stream in which logs will go by the force of the water is navigable").

(139) Both Idaho and Montana allow such encroachments incidental to recreational use of waters navigable-in-fact. See infra notes 180-81 and accompanying text (discussing Idaho's incidental use rights) and notes 246-50 and accompanying text (Montana's).

(140) Guilliams, 175 P. at 442. In Lamprey, the Minnesota Supreme Court stated:

   Many, if not the most, of the meandered lakes of this state, are not
   adapted to, and probably will never be used to any great extent for
   commercial navigation; but they are used--and as population
   increases, and towns and cities are built up in their vicinity, will
   be still more used--by the people for sailing, rowing, fishing,
   fowling, bathing, skating, taking water for domestic, agricultural,
   and even city purposes, cutting ice, and other public purposes which
   cannot now be enumerated or even anticipated. To hand over all these
   lakes to private ownership, under any old or narrow test of
   navigability, would be a great wrong upon the public for all time,
   the extent of which cannot, perhaps, be now even anticipated.

Guilliams, 175 P. 437 (Or. 1918) (quoting Lamprey, 53 N.W. 1139, 1143 (Minn. 1893)).

(141) See supra notes 122-40 (discussing Oregon's flotation easement).

(142) 2001 House Bill 3741 would have allowed boaters to use private beds and banks in emergencies or as incidental and necessary to safe navigation. Senate Bill 565, modeled on Montana's recreational use statute, MONT. CODE ANN. [section] 23-2-301-302, would have created two classes of waters, Categories 1 and 2. Category 1 included waters that passed the federal navigability test at statehood, or had been declared judicially to be navigable. Category 2 included all other waters navigable-in-fact. The bill would have permitted recreational use on all Category 2 waters, including "related unavoidable or incidental uses of land," Sen. Bill 565, 2001 Leg., Reg. Sess., [section] 1(6), while ensuring no prescriptive easements would be created. Id. [section] 2(4).

(143) OR. CONST. art. I, [section] 18.

(144) OR. REV. STAT. [section] 537.110 (1998).

(145) Id. [section] 537.332.

(146) Id. [section] 274.025.

(147) Michael B. Huston & Beverly Jane Ard, The Public Trust Doctrine in Oregon, 19 ENVTL. L. 623, 623 (1989).

(148) 30 P. 154 (Or. 1892), aff'd, Shively v. Bowlby, 152 U.S. 1 (1894).

(149) Id. at 160.

(150) 35 P. 256 (Or. 1893).

(151) Id. at 263; cf. Cook v. Dabney, 139 P. 721, 722 (Or. 1914) (holding that title of the state to lands under navigable waters is "burdened with a trust, so to speak, in favor of those two occupations [navigation and fishery]").

(152) 590 P.2d 709 (Or. 1979).

(153) Id. at 711.

(154) Id. (quoting Shively, 152 U.S. 1, 47 (1894)).

(155) Id. at 714.

(156) Id. at 712.

(157) Corvallis & Eastern R.R. v. Benson, 121 P. 418, 422-23 (Or. 1912).

(158) See 1000 Friends of Or. v. Div. of State Lands, 611 P.2d 1177 (Or. 1980) (holding permit for dike across tidal slough contrary to public interest in fisheries, navigation, and recreation).

(150) See supra Part II.F.

(160) OR. REV. STAT. [subsection] 105.672-105.692 (2001).

(161) Id. [section] 105.682(1). "Owner[s]," under the statutory definition, includes tenants, lessees, occupants or others in possession of the land. Id. [section] 105.672(4).

(162) Id. [section] 105.682(2).

(163) Id. [section] 105.676.

(164) Id. [section] 105.682(1).

(165) 2 P.3d 418 (Or. Ct. App. 2000).

(166) Id. at 420-21.

(167) Id. at 420; OR. REV. STAT. [subsection] 105.672-105.692.

(168) Brewer, 2 P.3d at 427.

(169) Id. at 427-28.

(170) Id. at 421 (citing OR. REV. STAT. [section] 105.672(3)).

(171) OR. REV. STAT. [section] 105.682(2).

(172) In addition to the Oregon Department of Fish and Wildlife, the Oregon Department of Transportation was named as a defendant. The court was unsure how to characterize the ditch company, but held it fell within the ambit of the Act for purposes of immunity. Brewer, 2 P.3d 418, 422 (Or. Ct. App. 2000).

(173) Id. at 427. Workers compensation statutes bar employees from suing their employers for injuries suffered in the workplace; in return, workers receive the right to participate in a no-fault statutory compensation scheme. See, e.g., OR. REV. STAT. [section] 656.001-656.990 (2001) (Oregon Workers Compensation Law).

(174) See infra Part IV.C (suggesting a revision of Oregon's recreational use liability statute to preserve liability for willful or wanton negligence).

(175) Idaho Dept. of Lands, Operations Memorandum No. 1700 [paragraph] 1 (May 13, 1986) [hereinafter Operations Memorandum No. 1700].

(176) S. Idaho Fish & Game Ass'n. v. Picabo Livestock, 528 P.2d 1295, 1297 (Idaho 1974).

(177) Operations Memorandum No. 1700, supra note 175, at 2-6.

(178) IDAHO CODE [section] 36-1601(a) (Michie 2002).

(179) Operations Memorandum No. 1700, supra note 175, [paragraph] 6.

(180) IDAHO CODE [section] 36-1601(b) (Michie 2002).

(181) Id. [section] 36-1601(c).

(182) See supra Part II.C (discussing state navigability tests in general).

(183) 528 P.2d 1295 (Idaho 1974). Southern Idaho Fish and Game Association. filed a declaratory judgment action requesting the determination of public use rights in and to the use of the waters of Silver Creek, including the beds, banks, and channels for fishing and recreational purposes. Id. at 1296.

(184) Id. at 1296. Three of the members were fishing from a boat, and three were fishing from float rings.

(185) Id.

(186) Id. at 1297.

(187) Id.

(188) Id. at 1298.

(189) Id. at 1297-98.

(190) Id.

(191) IDAHO CODE [section] 36-1601(a) (Michie 2002).

(192) Id. [section] 36-1601(b).

(193) Id. [section] 36-1601(c). The statute reads:

   [N]othing herein contained shall authorize the entering on or
   crossing over private land at any point other than within the high
   water lines of navigable streams except that where irrigation dams
   or other obstructions interfere with the navigability of the stream,
   members of the public may remove themselves and their boats, floats,
   canoes or other floating crafts from the stream and walk or portage
   such crafts around said obstruction re-entering the stream
   immediately below such obstruction at the nearest point where it is
   safe to do so.

Id.

(194) Id.

(195) See Id. [section] 36-1601(a) (declaring navigable any stream that "will float cut timber ... or is capable of being navigated by oar or motor propelled small craft for pleasure or commercial purposes") (emphasis added).

(196) See infra Part III.C.1 (discussing Montana's stream access laws).

(197) 671 P.2d 1085 (Idaho 1983).

(198) Id. at 1087.

(199) Id. at 1089.

(200) Id.

(201) Id. at 1095 (citing IDAHO CODE [section] 58-147 (Michie 1974)) (current version at IDAHO CODE [section] 58-1306 (Michie 2002)). The Kootenai court discussed the Mono Lake case, see supra note 89, and adopted "the California rule" that the state may revoke a conveyance no longer compatible with the public trust. Id. at 1094.

(202) Id. at 1092-93 (citing People v. Cal. Fish Co., 138 P. 79 (Cal. 1913)) (finding that private grantees of tidelands receive "naked title to the soil" subject to a public easement retained by the state on behalf of the people).

(203) Haman, 594 P.2d 1093, 1102 (Idaho 1979).

(204) Rutledge v. State, 482 P.2d 515, 517 (Idaho 1971). In Rutledge, a Boise motel owner sought to quiet title to the property. Idaho claimed ownership because the land formerly lay within the bed of Boise River, a navigable waterway at statehood. The court held for the motel owner, reasoning that when the reason for holding the property in trust for the public ceases-the dry bed no longer supported navigability or fishing--the immunity from adverse possession also ceases. Id.

(205) Haman, 594 P.2d at 1098.

(206) 733 P.2d 733 (Idaho 1987).

(207) Id. at 737.

(208) Id. at 738 (citing Rutledge, 482 P.2d at 517). But where the Rutledge court called the cause of the change in the boundary of the watercourse "irrelevant," 482 P.2d at 516, the Idaho Forest court suggests in dicta that a man-made diversion destroying navigability might not, for equitable reasons, eliminate the public trust status of the formerly submerged land. Idaho Forest, 733 P.2d at 738.

(209) Idaho Conservation League v. State, 911 P.2d 748 (Idaho 1995). In this case the court, while denying the conservation group's attempt to intervene in the Snake River Basin Adjudication proceedings, suggested in dicta that "[t]he public trust doctrine takes precedent [sic] even over vested water rights." Id. at 750 (quoting Kootenai 671 P.2d 1085, 1094 (Idaho 1983)). A more traditional formulation would be that instead of the doctrine trumping vested rights, the rights, to the extent they interfere with the public trust interests, never vest in the first place. James A. Kearney, Recent Statute Closing the Floodgates? Idaho's Statutory Limitation on the Public Trust Doctrine, 34 IDAHO L. REV. 91, 96 n.29 (1997).

(210) Selkirk-Priest Basin Ass'n v. State ex rel. Andrus, 899 P.2d 949 (Idaho 1995). The court held that the public trust doctrine might prohibit logging if it would substantially impair public trust interests in a navigable waterway, defined under the expansive state test from Picabo Livestock. Id. at 953-55.

(211) House Bill 794, 53rd Idaho Legislature, 2d Sess., codified at IDAHO CODE [section] 58-1201 (Michie 2002).

(212) IDAHO CODE [section] 58-1201(6) (Michie 2002).

(213) Id. [section] 58-1203(1).

(214) Id. [section] 58-1203(2)(a)-(c).

(215) Id. [section] 58-1202(3).

(216) Kootenai, 671 P.2d 1085, 1088 (Idaho 1983). Water rights are also real property in Idaho. IDAHO CODE [section] 55-101 (Michie 2002). Such rights are appurtenant to the land upon which the water is used and conveyed along with that land unless specifically reserved. IDAHO CODE [subsection] 42-220, 42-1402 (Michie 2002).

(217) IDAHO CODE [section] 58-1203(3) (Michie 2002).

(218) Kootenai, 671 P.2d at 1095 (Idaho 1983).

(219) See MICHAEL C. BLUMM ET AL., RENOUNCING THE PUBLIC TRUST DOCTRINE: AN ASSESSMENT OF THE VALIDITY OF IDAHO HOUSE BILL 794 (Northwest Water Law & Policy Project, 1996) (arguing that the statute violates the Idaho Constitution, federal law under the equal footing doctrine, and the state's sovereign duty to protect resources for its citizens).

(220) San Carlos Apache Tribe v. Superior Court, 972 P.2d 179 (Ariz. 1999); Sean E. O'Day, San Carlos Apache Tribe v. Superior Court: The Defeat of Legislative Favoritism in Water Right Allocations, 4 U. DENV. WATER L. REV. 29 (2000).

(221) IDAHO CODE [section] 36-1604 (Michie 2000).

(222) Id. [section] 36-1604(c).

(223) Id. [section] 36-1604(d).

(224) Id. [section] 36-1604(e).

(225) Id. [section] 36-1604(a).

(226) 684 P.2d 268 (Idaho 1984).

(227) Id. at 271.

(228) Id. at 272.

(229) Id.

(230) Corey v. Idaho, 703 P.2d 685, 686 (Idaho 1985).

(231) Jacobsen v. City of Rathdrum, 766 P.2d 736, 740 (Idaho 1988).

(232) Id. at 739. The court noted:

   Willful and wanton misconduct is present if the defendant
   intentionally does or fails to do an act, knowing or having a reason
   to know facts which would lead a reasonable man to realize that his
   conduct not only creates unreasonable risk of harm to another, but
   involves a high degree of probability that such harm would result.

Id. at 740 (quoting IDAHO JURY INSTRUCTIONS 225 (1985)). This definition of "willful conduct" is similar to Oregon's definition of recklessness. See Van Gordon v. Portland Gen. Elec. Co., 662 P.2d 714, 717 (Or. 1982) (stating conduct is reckless when defendant knew or had reason to know his actions created an unreasonable risk to others). In Oregon, however, landowners who open their land free of charge to the public for recreation are shielded from liability even for reckless disregard or failure to warn of hazards, so long as the harm inflicted thereby was not intentional. OR. REV. STAT. [section] 105.682 (2001); see supra Part III.A.3 (discussing the Oregon recreation use liability shield statute).

(233) 766 P.2d 736 (Idaho 1988).

(234) Id. at 740-43.

(235) Id. at 742-43; see also Ambrose ex rel. Ambrose v. Buhl Joint Sch. Dist. No. 412, 887 P.2d 1088, 1092-93 (Idaho Ct. App. 1995) (applying attractive nuisance doctrine but finding the nuisance did not entice the child onto school's property as required by Idaho law).

(236) IDAHO CODE [section] 36-1604(d) (Michie 2002).

(237) Johnson, 684 P.2d 268, 269-70 (Idaho 1984).

(238) See supra Part II.B.1 (discussing the navigability for title test).

(239) Curran, 682 P.2d 163, 166 (Mont. 1984).

(240) Id. at 170-71.

(241) Id.

(242) Id. at 171; MONT. CODE ANN. [section] 23-2-302(1) (2000).

(243) 682 P.2d 163 (Mont. 1984).

(244) Id. see also supra notes 238-42 (discussing public use rights in Montana).

(245) Curran, 682 P.2d at 165.

(246) Id.

(247) Id. at 170. The Montana Constitution provides that "[a]ll surface, underground, flood, and atmospheric waters within the boundaries of the state are the property of the state for the use of its people and are subject to appropriation for beneficial uses as provided by law." MONT. CONST. art. IX, [section] 3(3). The Idaho Constitution endorses the prior appropriation scheme for water rights, but does not reserve waterbodies to the state. IDAHO CONST. art. 15, [section] 3.

(248) Curran, 682 P.2d at 170.

(249) Id. at 170-71.

(250) Id. cf. MONT. CODE ANN. [section] 23-2-302(4) (2000) ("The right of the public to make recreational use of surface waters does not grant any easement or right to the public to enter onto or cross private property to use such waters for recreational purposes.") (emphasis added).

(251) Curran, 682 P.2d at 172.

(252) Id.

(253) 684 P.2d 1088 (Mont. 1984).

(254) Id. at 1091.

(255) Id.

(256) Id.

(257) Id.

(258) MONT. CODE ANN. [section] 23-2-301, 302 (2000).

(259) Id. [section] 23-2-301(2).

(260) Id. [section] 23-2-301(3).

(261) "Recreational use" is defined as "fishing, hunting, swimming, floating in small craft or other flotation devices, boating in motorized craft unless otherwise prohibited or regulated by law, or craft propelled by oar or paddle, other water-related pleasure activities, and related unavoidable or incidental use." MONT. CODE ANN. [section] 23-2-301(10) (2000).

(262) Id. [section] 23-2-302(1). The Montana Legislature concluded that under the Montana Constitution the public owned the water, not the beds and banks, but had the right to use the underlying and adjacent land essential to enjoying ownership of the water. Exceptions to this general rule indicate that such recreational access does not extend to irrigation canals, stock ponds or private impoundments, to operation of motorized vehicles not primarily designed for water use, or to other activities which are not primarily water-related pleasure activities.

(263) Id. [section] 23-3-301(12).

(264) 731 P.2d 912 (Mont. 1987).

(265) Id at 915.

(266) Id.

(267) Id. at 916.

(268) Id. at 915-16.

(269) Although property owners may possess title to the beds of streams running through their properties, their "fee [is] impressed with a dominant estate in favor of the public." Id. at 916.

(270) Id.

(271) 126 F. Supp. 2d 1320 (D. Mont. 2001).

(272) Id. at 1322.

(273) Id. at 1324.

(274) Id. at 1325 ("[T]here are numerous, obvious rational reasons for Montana's Stream Access laws, viz., the public's desire to use Montana's streams for recreation, the promotion of Montana's economy through tourism, and the management of Montana's natural resources and wildlife.").

(275) Id. at 1327-28.

(276) Madison v. Graham, 316 F.3d 867, 872 (9th Cir. 2002). The Ninth Circuit agreed that the appellant landowners were really alleging a loss of the right to exclude, a claim that must be brought under the explicit Constitutional sources of property rights protection, the Fifth and Fourteenth Amendments' Takings Clauses. Id. at 871. Because the landowners stubbornly insisted on substantive due process as the predicate for their suit, however, the court did not conduct a takings analysis. Id. The Ninth Circuit also agreed with the district court that there was "nothing vague about the statute." Id. at 872.

(277) Curran, 682 P.2d 163, 172 (Mont. 1984); MONT. CODE ANN. [section] 23-2-302(4) (2000).

(278) MONT. CONST. art. IX, [section] 3(3).

(279) See supra notes 242-61 and accompanying text (discussing recreational users' access to Montana waters under the public trust doctrine); Curran, 682 P.2d at 682; Hildreth, 684 P.2d 1088, 1091 (Mont. 1984).

(280) See Galt, 731 P.2d at 916 (Turnage, C.J., concurring) (finding that because the public trust doctrine derives from common law, not Montana Constitution, court should not resort to such a doctrine when same result can be reached from express constitutional language).

(281) Deborah Beaumont Schmidt, The Public Trust Doctrine in Montana: Conflict at the Headwaters, 19 ENVTL. L. 675, 679-81 (1989).

(282) Galt, 731 P.2d at 913 (emphasis added).

(283) Id. at 915 (emphasis added). But see id. at 916 (Turnage, C.J., concurring) (stating that the public trust doctrine is not set forth in the Montana Constitution).

(284) See supra notes 208-18 and accompanying text (discussing the Idaho Legislature's attempt to eviscerate the public trust doctrine with House Bill 794).

(285) Limberhand v. Big Ditch Co., 706 P.2d 491 (Mont. 1985).

(286) MONT. CODE ANN. [subsection] 70-16-301 et seq. (2000).

(287) Id. [section] 70-16-302(1).

(288) Id. [section] 70-16-302(2).

(289) Id. [section] 70-16-302(3).

(290) Simchuk v. Angel Island Cmty. Ass'n 833 P.2d 158, 161 (Mont. 1992) (holding a landowner could not use the statute to escape liability for an injury that occurred on a tennis court at a private resort).

(291) Id.

(292) 8 P.3d 71 (Mont. 2000), rev'd on other grounds, 43 P.3d 263 (Mont. 2002).

(293) Id. at 83.

(294) 534 F. Supp. 514 (D. Mont. 1982).

(295) Id. at 516.

(296) Id.

(297) Dobrocke, 8 P.3d at 83.

(298) WASH. CONST. art. XVII, [section] 1; Harris v. Hylebos Indus., Inc., 505 P.2d 457, 462 (Wash. 1973); Weden v. San Juan County, 958 P.2d 273, 283 (Wash. 1998).

(299) Fortson Shingle Co. v. Skagland, 137 P. 304, 305 (Wash. 1913) (applying the "floatable" test to enjoin landowner from denying upstream party flotation easement for shingles); Monroe Mill Co. v. Menzel, 77 P. 813, 815 (Wash. 1904).

(300) Neterer v. State, 168 P. 170, 172 (Wash. 1917).

(301) WASH. CONST. art. XVII, [section] 1.

(302) See, e.g., Muir v. Johnson, 94 P. 899, 900 (Wash. 1908) (holding that state owns tidelands and shorelands by title in fee).

(303) See Harris, 505 P.2d at 459-60 (finding the absence of riparian rights to navigable waterways so complete that the state could divert entire stream and sell river bed without impairing any right of upland owner).

(304) Id. at 462; Weden v. San Juan County, 958 P.2d 273, 283 (Wash. 1998) (citing Ralph W. Johnson et al., The Public Trust Doctrine and Coastal Zone Management in Washington State, 67 WASH. L. REV. 521, 560 (1992)).

(305) See Fortson Shingle Co. v. Skagland, 137 P. 304, 305 (Wash. 1913) (holding that where a stream in its natural condition provides a useful highway for commerce, a flotation easement exists); Monroe Mill Co. v. Menzel, 77 P. 813, 815 (Wash. 1904) ("[T]he valuable products of [the forest] would have had no avenue to market if the public easement in the streams had been restricted to navigation by boats or rafts.").

(306) 63 P. 239 (Wash. 1900).

(307) Id. at 239-40.

(308) Id. at 243.

(309) Id. at 242.

(310) 64 P. 840 (Wash. 1901).

(311) Id. at 843.

(312) 168 P. 170 (Wash. 1917).

(313) Id. at 171.

(314) Id. (quoting Rowe v. Granite Bridge Corp., 21 Pick. 344 (Mass. 1838)); see also Griffith, 63 P. at 241 (quoting the same passage from Rowe).

(315) See Terry McDermott & Sylvia Nogaki, Once a Great Notion--Decline of the Timber Industry Marks the Death of the Old Northwest, SEATTLE TIMES, Dec. 16, 1990, at A1 (describing the process of economic evolution by which "trees become more valuable as producers of scenery than producers of wood"). For a thorough discussion of the decline in economic importance of commodity extraction, and the concurrent rise in recreational use, on public lands generally, see Jan G. Laitos & Thomas A. Carr, The Transformation on Public Lands, 26 ECOLOGY L.Q. 140 (1999).

(316) Ralph W. Johnson et al., The Public Trust Doctrine and Coasted Zone Management in Washington State, 67 WASH. L. REV. 521,560 (1992).

(317) Monroe Mill Co. v. Menzel, 77 P. 813, 815 (Wash. 1904).

(318) Kemp v. Putnam, 288 P.2d 837, 840 (Wash. 1955), overruled on other grounds by Save a Valuable Env't (SAVE) v. City of Bothell, 576 P.2d 401 (Wash. 1978).

(319) E. Hoquiam Boom & Logging Co. v. Neeson, 54 P. 1001, 1002 (Wash. 1898).

(320) Kemp, 288 P.2d at 839-40.

(321) Id. at 840.

(322) Sumner Lumber & Shingle Co. v. Pac. Coast Power Co., 131 P. 220, 222 (Wash. 1913) (citing Watkins v. Dorris, 64 P. 840 (Wash. 1901)).

(323) 462 P.2d 232 (Wash. 1969).

(324) Id. at 238.

(325) Id. at 239.

(326) Id. at 238.

(327) 63 P. 239, 242 (Wash. 1900).

(328) See generally F. Lorraine Bodi, The Public Trust Doctrine in the State of Washington: Does It Make Any Difference to the Public, 19 ENVTL. L. 645 (1989) (detailing the history of the doctrine's application in Washington).

(329) 64 P. 735 (Wash. 1901).

(330) Id. at 737-38.

(331) Id. at 739 (citing Smith v. City of Rochester, 92 N.Y. 463 (1883)).

(332) 462 P.2d 232, 238 (Wash. 1969).

(333) Caminiti v. Boyle, 732 P.2d 989, 994 (Wash. 1987) (quoting Wilbour, 462 P.2d at 232).

(334) Id. at 992-98 (Wash. 1987).

(335) Id. at 996.

(336) Id. at 994.

(337) Id. at 996.

(338) 747 P.2d 1062 (Wash. 1987).

(339) Id. at 1073.

(340) Id. at 1082-83. The court likened the restrictions on use imposed by the public trust doctrine to "a covenant running with the land (or lake or marsh or shore) for the benefit of the public and the land's dependent wildlife." Id. at 1072-73 (quoting Scott Reed, The Public Trust Doctrine: Is it Amphibious?, 1 ENVTL. L. & LITIG. 107, 118 (1986)).

(341) Id. at 1073. The court also suggested the public trust doctrine might apply more broadly to protect the environment, remarking in a footnote that "trust principles are reflected in the [Shore Management Act's] underlying policy, which contemplates 'protecting against adverse effects to the public health, the land, and its vegetation and wildlife, and the waters of the state and their aquatic life, while protecting generally public rights of navigation and corollary rights thereto.'" Id. at 1073 n.11 (quoting Portage Bay-Roanoke Park Cmty. Council v. Shoreline Hearings Bd., 593 P.2d 151 (Wash. 1979)).

(342) Rettkowski v. Department of Ecology, 858 P.2d 232, 239 (Wash. 1993).

(343) Id. at 235.

(344) Id. at 237.

(345) Id. at 239.

(346) Id.

(347) Id. at 236.

(348) Id. at 243 (stating that "the navigability requirement is not inherent in the [public trust] doctrine and should be abandoned").

(349) Id. at 244 (quoting Phillips Petroleum Co. v. Mississippi, 484 U.S. 469, 482 (1988)).

(350) MICHAEL C. BLUMM & THEA SCHWARTZ, MONO LAKE AND THE EVOLVING PUBLIC TRUST IN WESTERN WATER 48-49 (Northwest Water Law & Policy Project 1995).

(351) For an argument that, in practice, the protection against private development afforded by the public trust doctrine is more apparent than real, see Bodi, supra note 328, at 652 (noting that the state continues to approve filling and other development, often in the face of objections by resource agencies and the public).

(352) WASH. REV. CODE [section] 4.24.210 (2002).

(353) Id. [section] 4.24.200.

(354) Van Dinter v. City of Kennewick, 827 P.2d 329, 332 (Wash. Ct. App. 1992), aff'd 846 P.2d 522 (Wash. 1993).

(355) WASH. REV. CODE [section] 4.24.210(1). "Land" encompasses "water areas or channels, and lands adjacent to such areas or channels." Chamberlain v. Dep't of Transp., 901 P.2d 344, 347 (Wash. Ct. App. 1995).

(356) WASH. REV. CODE [section] 4.24.210(3).

(357) Davis v. Washington, 6 P.3d 1191, 1195 (Wash. Ct. App. 2000).

(358) Tabak v. Washington, 870 P.2d 1014, 1017 (Wash. Ct. App. 1994).

(359) Davis, 6 P.3d at 1197-98; Tabak, 870 P.2d at 1017.

(360) Davis, 6 P.3d at 1198.

(361) 969 P.2d 75 (Wash. 1998).

(362) Id. at 80. The court did not consider the other two elements; the issue of knowledge was not brought before the court, and the stump had obviously proven dangerous.

(363) Id. at 80-81 (quoting WASH. REV. CODE [section] 4.24.210(1) (2002)) (emphasis in original)).

(364) Id. at 81.

(365) Id.

(366) Id. at 82.

(367) Tennyson v. Plum Creek Timber Co., 872 P.2d 524, 528 (Wash. Ct. App. 1994) (noting that a pit adjacent to a gravel mound was in plain view, so the motorcyclist who rode over the mound from the opposite direction and fell into the pit could not claim it was "latent" within the meaning of the statute).

(368) Van Dinter, 846 P.2d 522, 526 (Wash. 1993) (holding that five-foot caterpillar toy at a park was in plain view and thus did not present a latent condition; therefore, the city was immune from liability to plaintiff who injured his eye on antenna).

(369) Jason Robertson & Steven Ledbetter, Trends in Recreational Water Rights in the Pacific Northwest, 6 BIG RIVER NEWS 13 (Fall 1999).

(370) Ravenscroft, 969 P.2d at 81.

(371) We will leave to philosophers the question whether it is any less natural for a human than a beaver to cut down a tree--or build a dam.

(372) Ravenscroft, 969 P.2d at 82.

(373) See supra notes 367-68 (citing cases).

(374) Michael Milstein, Endangered Species Act Reform Urged, Review is Promised, OREGONIAN, June 17, 2001, at A17. Oregon's six Republican congressmen called for reforming the Act at a field hearing in Klamath Falls, Oregon, where drought forced the Bureau of Reclamation to withhold water from many irrigators to protect endangered suckers in Upper Klamath Lake and threatened salmon in the Klamath River.

(375) Harrison C. Dunning, Antiquity of the Public Right 4 WATERS AND WATER RIGHTS, supra note 16, [section] 29.01.

(376) See supra notes 123-40 (discussing these cases).

(377) See supra notes 183-90 and accompanying text (discussing Picabo Livestock). In fact, Oregon fishermen are currently seeking a navigability determination in court as a result, in part, of an arrest on the John Day River. Although the angler was not prosecuted, the Northwest Steelheaders Association brought suit against the Oregon Division of State Lands seeking a declaration that the John Day is navigable. The case was heard in February 2002; the decision is currently pending.

(378) See supra Part III.D.1 (discussing Washington's three different categories of water with different public access rights).

(379) See supra notes 312-14 and accompanying text (discussing the Washington Supreme Court's rejection of the pleasure boat test for navigability-for-use).

(380) Griffith v. Holman, 63 P. 239 (Wash. 1900). See supra notes 306-09 and accompanying text (summarizing Griffith).

(381) See Laitos & Cart, supra note 315, at 146-78 (discussing the changing uses of public lands).

(382) 899 P.2d 949 (Idaho 1995) (extending doctrine in this case due to potentially deleterious impacts that logging could have on the public trust).

(383) Orion Corp. v. State, 747 P.2d 1062 (Wash. 1987).

(384) 899 P.2d at 953-55 (holding that public trust doctrine might prohibit logging if it would substantially impair interests in navigable waters).

(385) 747 P.2d at 1073 (recognizing that the public trust doctrine extends beyond navigation).

(386) See supra notes 211-15 and accompanying text (discussing the Idaho Legislature's passage of a bill limiting judicial application of the public trust doctrine in Idaho).

(387) See supra note 220 (discussing the Arizona Supreme Court's holding that a bill passed by the Arizona Legislature attempting to limit judicial application of the public trust doctrine in Arizona was unconstitutional).

(388) The Montana Supreme Court indicated that the public trust doctrine is rooted in the state constitution. Gait, 731 P.2d 912, 915 (Mont. 1987).

(389) American Whitewater, like most boating groups, stresses personal responsibility for safety and advocates strong laws protecting landowners to encourage them to allow public access to waters through their lands. Personal Communication with Jason Robertson, Access Director, American Whitewater (Aug. 7, 2001).

(390) See supra Part III.A.3 (arguing that Oregon's Public Use of Land Act, which limits landowners' liability for injuries incurred on their property, may go too far in protecting landowners at the expense of injured parties).

(391) See Dobrocke, 8 P.3d 71, 83 (Mont. 2000) (refusing to apply the statute when the land in question was public land freely available to the public and no incentive from limited tort liability was necessary to keep it so).

(392) Before 1995, Oregon law did strike such a balance. The statutes limiting liability of property owners who opened their lands free of charge for public recreation contained a provision that nothing in the statutes limited any liability of an owner of land "[f]or the willful, wanton and reckless failure of an owner to guard or warn against a known dangerous structure or ... activity on the land." OR. REV. STAT. [section] 105.675(1) (1993). In fact, in drafting the original statute, the legislature deliberately substituted "reckless" for "malicious" upon learning that the latter implied intent and a higher degree of fault. Van Gordon v. Portland Gen. Elec. Co., 662 P.2d 714, 716 (Or. 1982) (citing Minutes, House Natural Resources Subcommittee, May 19, 1971). This section was repealed, however, in 1995. 1995 Or. Laws ch. 456 [section] 9. The present version restores the "malicious" standard of fault, immunizing landowners from liability for all but "intentional injury or damage to a person coming onto land for recreational purposes, woodcutting or the harvest of special forest products." OR. REV. STAT. [section] 105.682(2) (2001).

(393) See Illinois Central, 146 U.S. 387, 452 (1892) (noting that public trust doctrine guarantees enjoyment of navigation, commerce over waters, and the ability to fish).

(394) Sax, supra note 63, at 268.

* This study was produced as part of the Northwest Water Law & Policy Project, a project of the Natural Resources Law Institute of Lewis & Clark Law School, Portland, Oregon.

STEPHEN D. OSBORNE, (1) JENNIFER RANDLE, (2) AND MICHAEL GAMBRELL (3) **

** [c] 2003 Stephen D. Osborne, Jennifer Randle, and Michael Gambrell.