By BILL LUNDQUIST
Pilot Staff Writer
PISTOL RIVER - Two barbed wire fences strung across the Pistol River, plus a disturbance of gravel in the river, have spurred an investigation by the Oregon Division of State Lands (DSL).
Sgt. Dave Gifford, of the Oregon State Police Fish and Wildlife Division, said he had also investigated the case and sent reports to the DSL and the Oregon Marine Board.
The DSL's Compliance Team Leader, Steve Morrow, said Thursday that the actions took place on property purchased during the summer by Ted McNeely of Myrtle Point.
Todd Confer, from the Gold Beach Office of the Oregon Department of Fish and Wildlife (ODFW), photographed the site from the ground and air.
andquot;There are two issues,andquot; he said, andquot;a fairly large disturbance of a gravel bar, and the fences across the river.andquot; Confer said he had no problem with a landowner trying to control the erosion of his land, but objected to when and how it was done.
He said the property had been part of an unresolved estate, and had lost 10 to 15 acres of pasture land to the river since 1993.
Confer said the ODFW is not a regulatory agency on fill and removal issues, but can comment on biological issues and render opinions.
Morrow said McNeely had no permit to move gravel in the river, and the action is being investigated as an open enforcement case.
He said the fences block people from floating down the river, raising two issues. One is the navigability of the Pistol River, which governs public ownership of it.
Morrow said there has been no navigability study of the river, so it is only considered navigable up to 1.4 miles from the sea. The McNeely property is two to three river miles from the sea.
Morrow felt McNeely was testing whether the river was navigable or not where it crosses his property.
andquot;He has the right,andquot; said Morrow. andquot;We have courts to ultimately determine navigability.andquot; Morrow said the state feels that the river is navigable up to and beyond McNeely's property.
Beyond that issue, he said, is the common law of floatage, the public's right to move up and down rivers.
Confer said if the river is not deemed navigable, the landowner owns the river bed and banks, but still can't block people from floating down the river.
andquot;We're not interested in having conflicts with landowners,andquot; he said, andquot;but we also want people to have access to fish.andquot; Confer said people fish for fall Chinook salmon in the Pistol River after the rains begin, then fish for steelhead until the end of March.
He said McNeely had a legitimate issue if he wanted to fence his cattle in on his property. Confer still felt people had a right to float the river.
He said the state police became involved when some fishermen dropped anchor, which, depending on the navigability ruling, could mean they trespassed. He said McNeely wanted to press charges.
Confer said there had never been many boats on the Pistol River, but five or six were usually put in the river from the property just upstream from McNeely's.
He said McNeely's neighbor had always allowed boats access to the river, but began curtailing that access during the last two weeks. Confer said it is hard to put boats in anywhere else.
He said the DSL would probably pursue the case first as a civil matter, and process it as a criminal matter if that failed. He said that is where the state police incident report would come into play.