|PROPERTY OWNER BATTLING STATE OVER RIVER ACCESS|
|October 09, 2001 11:00 pm|
A controversy about fishing access to the Chetco River at Willow Bar heated up again this month when the Oregon Division of State Lands (DSL) served a cease and desist order on property owner Bill Hansen.
In a letter to Hansens attorney, Assistant Attorney General William Cook said Hansen appears to be the person who placed a fence, large boulders and a couch and mattresses on lands at Willow Bar.
It appears that the fence, boulders and materials are within the permitting jurisdiction of the Oregon Removal-Fill Law, said Cook.
He said DSL is investigating the violation, which could be remedied with criminal charges, restraining orders and civil penalties.
Cook said DSL was already investigating a dispute with Hansen concerning the ordinary high water line on his property near Loeb State Park on the Chetco River.
That line is key to a public angling access easement that the Oregon Department of Fish and Wildlife (ODFW) purchased from the previous owners of Hansens property.
The fishing easement is 125 feet wide. A road on the easement extends from the North Bank Road toward the river until it meets another road that extends down river diagonally to gravel bars on the river.
Hansen said a $6,500 survey conducted by Shawn Kampmann of Polaris Land Surveying in Ashland proves the ordinary high water line is well below the terrace the road is built on.
There is no dispute that the diagonal road is beyond the fishing easement.
If the ordinary high water line is where Hansens surveyor says it is, the road is on private property.
Hansen said he placed boulders across the road in April. He posted a sign declaring it private property, but allowing access for fishing between Oct. 1 and March 31.
He said fishermen on foot, without dogs, are welcome to cross his land at that point to fish. He banned dogs because of the threat to his livestock.
Hansen said he built the barbed-wire fence just outside the fishing easement about a month ago.
He said the sofa and mattresses are typical of the kind of garbage people throw on his property near the easement road. He said he did not place them there and welcomed ODFW personnel to remove them.
Hansen said Kampmann has extensive experience in surveying ordinary high water lines. He said Kampmann used high-tech equipment to measure 23 points on both sides of the river during nine days.
Were confident in the surveyors ability, said Hansen.
He said he did not tell Kampmann why he commissioned the survey, or where he expected the ordinary high water line to be.
Hansen also said court decisions and state statutes define the ordinary high water line as where rivers ordinarily rise to each year for a sustained period. He said the line does not mark flood events.
He said the surveyor also researched court cases and found upland vegetation such as ceanothus, or buckbrush, does not survive below the ordinary high water line. Hansen pointed out several such plants growing on the disputed terrace.
Based on the survey and laws, Hansen said he had the right to put the boulders on his property and block vehicle access.
He said while he welcomes anglers, people use the easement to come onto his property to shoot, picnic and dump trash.
He said four-wheelers carve up the river banks and bed and destroy fish habitat, while ATV trails are cut through riparian vegetation.
Is this sports fishing? he said as he pointed to a photograph of a pickup parked in the river itself, with people fishing out of the bed.
Cook said DSL sent down two assistant directors from Salem to meet with Hansen and his surveyor in June.
He said DSLs analysis after that meeting continued to support the view that the ordinary high water line is much farther shoreward than the line located by Mr. Kampmann.
Beyond that, said Cook, the Oregon Removal-Fill law applies to land that often lies shoreward of the ordinary high water line, so Hansen may have still needed to obtain a permit to place the boulders.
Hansen said the DSL representatives didnt have a problem with the boulders in June, but have since reacted to complaints from ODFW.
He said he has no problem complying with the cease and desist order, because he finished building his fence and barriers some time ago, and will not build more unless someone removes what is already there.
Hansen said he is within his rights and has not blocked access to fishermen, even those on his private property.
He intends to wait and see if the state can prove Kampmanns survey is not accurate. He has also asked ODFW to change its sign from public access to one that accurately describes the easement as being for angling access only.
Hansen said the entire issue has become a personal vendetta for ODFW biologist Russ Stauff.
Stauff said he is only trying to protect the fishing access that the public paid $20,000 for. He said the easement was purchased in 1978, but the trouble began when Hansen bought the property about 10 years later.
In my opinion, said Stauff, he has taken incremental steps to close off the easement. The Hansens are on one side, and the fishing public is on the other.
He said the access road in the easement was blocked when Hansen locked a gate across it. He said ODFW took out that gate and put up its own, which it could lock open year round.
Stauff said he tried to accommodate Hansen by locking the gate closed in the summer to prevent drinking parties. He said that didnt satisfy Hansen, who then moved in boulders to block the road.
Stauff said DSL must delineate where the ordinary high water line is, and will do so in the near future. Hansen said Oregon law states that only a licensed surveyor can determine the line.
Stauff said once DSL delineates the line, his department will honor the decision, whatever it is.
He believes the line will be drawn far shoreward of where Kampmann placed it. He said the line must take average winter high water events into consideration.
Were very much interested in protecting angling access on the Chetco River, he said, but we dont want to infringe on his (Hansens) property.
At the same time, said Stauff, his department wont allow Hansen to infringe on public access to public property.
A 1992 decision made clear everything below the high water line is public property, he said.
To protect that property, he said, his department is working with DSL and the Oregon Department of Justice. He said that is why DSL served the cease and desist order.
He said Hansen also violated Curry County riparian setback ordinances, and cut down willows and riparian vegetation.
Its a high profile issue for us, said Stauff. DSL will delineate the ordinary high water line, and well enforce it.
He believes that will mean Hansen has to remove barriers to public access, and it could mean other civil or criminal penalties. He said his department plans to resolve the issue by the end of the month.