OAG 72-66.

• Case Date: October 30, 1972
• Court: Oregon

Oregon Attorney General Opinions 1972. OAG 72-66. 150OPINION NO. 72-66[36 Or. Op. Atty. Gen. 150]October 30, 1972No. 6951This opinion is issued in response to questions submitted by the Honorable Anthony Meeker, State Representative and chairman of the Advisory Committee to the State Land Board.FIRST QUESTION PRESENTEDDoes legislative power exist to require an upland owner on a navigable river to execute a rental lease for building new structures or continuing to maintain existing structures on the state's submerged and submersible lands?ANSWER GIVEN Yes, except for temporary log booms maintained for periods of short duration incident to a particular movement of logs and existing wharves still used as wharves and in compliance with ORS 780.040 and 780.050. SECOND QUESTION PRESENTED Do existing statutes authorize the Division of State Lands to require such rental leases for structures other than wharves? ANSWER GIVENYes, except for temporary log booms maintained for periods of short duration incident to a particular movement of logs.151THIRD QUESTION PRESENTED Do existing statutes in conjunction with Article VIII, sections 2 and 5, Oregon Constitution authorize the Division of State Lands to require such rental leases for wharves? ANSWER GIVEN Yes, if subsection (2) of section 5, Article VIII is deemed to be self-executing. We are in doubt as to whether or not section 5(2) is self-executing. Persuasive arguments exist either way. Nevertheless, in light of the persuasive arguments that exist in support of the view that section 5(2) is self-executing, it would be a reasonable exercise of judgment by the State Land Board (acting through the Division of State Lands) to commence requiring rental leases for the construction of new wharves. 152INDEX OF DISCUSSION PageI. STATEMENT OF THE PROBLEM 154II. LEGISLATIVE POWER TO REQUIRE RENTAL LEASE FROM RIPARIAN OWNER PLACING OR MAINTAINING STRUCTURES ON STATE-OWNED SUBMERGED AND SUBMERSIBLE LANDS 155

A. The Nature of Riparian Rights 155

B. Tidelands 157

C. Tidal Submerged Lands 165

D. Submersible and Submerged Lands on Navigable, Fresh-water Rivers 175

E. Existing Structures 181

1. Wharves Authorized By ORS 780.040 and 780.050 181

2. Wharves Not Authorized by ORS 780.040 and 780.050 188

3. Existing Structures Other Than Wharves Placed on Submerged and Submersible Lands. 192

(a) Tidal waters 192

(b) Non-tidal waters or fresh-water rivers 195

(1) Log booms 195

(2) Private docks, marinas and boathouses 202

II. AUTHORITY OF DIVISION OF STATE LANDS UNDER EXISTING STATUTES WITH RESPECT TO STRUCTURES OTHER THAN WHARVES 205

A. Submersible Lands 205

1. New Structures Other Than Wharves 205

2. Existing Structures Other Than Wharves 206

B. Submerged Lands 207

153

C. Competitive Bidding Requirements 208

D. Effect of Port Statutes Upon State's Leasing Authority 208

IIV. AUTHORITY OF DIVISION OF STATE LANDS TO REQUIRE RENTAL LEASES FOR WHARVES UNDER ORS 274.040, 274.915 AND ARTICLE VIII, SECTIONS 2 and 5, OREGON CONSTITUTION 212

A. Under Existing Statutes 212

B. Under Article VIII, Sections 2 and 5, Oregon Constitution 216

1. The Purport of the Land Board's Management Responsibility Under Article VIII 216

2. Legal Effect of Subsection (2) of Section 5 if Self-executing 224

3. Is Subsection (2) of Section 5 Self-executing 228

V. RECOMMENDATIONS 231 VI. COMMENTS CONCERNING State Land Board v. Sause, 217 Or. 52, 342 P.2d 803 (1959); McCarthy v. Coos Timber Co., 208 Or. 371, 302 P.2d 238 (1956); Smith Tug & Barge Co. v. Columbia-Pacific Towing Corporation, 250 Or. 612, 637, 443 P.2d 205 (1968); 34 Op. Att'y Gen. 370 (1968) 232154DISCUSSION I STATEMENT OF THE PROBLEM The advisory committee to the State Land Board is concerned with the problem of whether there is state power to require owners of lands abutting navigable waters, commonly referred to as riparian owners, to pay compensation for the privilege of utilizing submerged and submersible lands owned by the state.(fn1) Specifically the advisory committee wishes to know whether the state may exact payment from riparian owners who wish to construct or continue to maintain a wharf, marina, log boom or similar structure on state-owned submerged or submersible lands. The payment would primarily be to compensate the state for the use of its property. Therefore we are not concerned with payments to be exacted under the state's taxing power nor with payments to defray the costs of a regulation enacted under the state's police power. Rather, our attention focuses on the state's proprietary interests, if any, in its submerged and submersible lands and upon the nature and extent of the riparian owner's property interests in those lands.155In approaching the problem, we have divided the opinion into three main parts: (1) legislative power of the state to require rental leases from riparian owners placing or maintaining structures on the state's submerged and submersible lands; (2) the power of the Division of State Lands to require leases for structures other than wharves under existing statutes; and (3) the power of the Division to require rental leases for wharves under existing statutes in conjunction with Article VIII, sections 2 and 5, Oregon Constitution. II LEGISLATIVE POWER TO REQUIRE RENTAL LEASE FROM RIPARIAN OWNER PLACING OR MAINTAINING STRUCTURES ON STATE-OWNED SUBMERGED AND SUBMERSIBLE LANDSA. The Nature of Riparian RightsSince the concern of this opinion is the power of the state to charge rental of riparian owners wishing to conduct certain activities on state-owned submerged and submersible lands, it is appropriate to first analyze the nature of riparian rights. The term "riparian" is an adjective meaning "Of, pertaining to, or living on, the bank of a river, of a lake, or of a tidewater." Webster's New International Dictionary (2d edition unabridged). "Riparian rights" describes those rights which at common law were accorded to owners of land abutting on bodies of water by reason of their adjacency to the water and which are different from those belonging to the public generally. 1 Farnham, "Waters and Water Rights", §62 at 278.156Farnham describes these rights as including: (1) the right to have the water remain in place and to retain its natural character; (2) the right to have contact with the water remain intact, that is, the riparian owner's right of access to the water; (3) the right to erect wharves to reach the navigable portion of the stream; (4) the right of preference in case the land under water is sold; (5) the right to accretions; (6) the preferential right to fill out into the water, if such filling is permitted by the public; (7) the right to use the shore immediately adjacent to the land belonging to the public; and (8) the preferential right to service ferry franchises. 1 Farnham, supra, §62 at 279-280. According to Farnham, these riparian rights are natural rights entitled to protection:

". . . These rights come to the riparian owner by nature, and in justice he should not be deprived of them by the public without compensation any more than he should of other natural rights which are his because of the character or situation of his property. . ." 1 Farnham, supra, at 280.

The text at §63, pp 280-281 continues:

"It is said in Lyon v. Fishmonger's Co. that 'the rights of a riparian proprietor, so far as they relate to any natural stream, exist jure naturae because his land has, by nature, the advantage of being washed by streams; and if the facts of nature constitute the foundation of the right, I am unable to see why the law should not recognize fully the course of nature in every part of the same stream.' Accordingly it is generally held that riparian ownership is a thing of value, to which are attached rights and privileges conferred by law, of which the owner cannot be deprived by illegal proceedings . . ." (emphasis supplied)

As Farnham points out, not all courts recognize all the riparian rights he enumerates. 1 Farnham, supra, §62 at 280.157It is the province of each state to decide for itself what rights it will retain for itself in lands underlying navigable waters and what rights it will accord to the adjacent riparian owners. Barney v. Keokuk, 94 U.S. 324, 338 (1876); Bowlby v. Shively, 22 Or. 410, 427 (1892), affirmed 152 U.S. 1 (1893).What rights Oregon has accorded riparian owners will be discussed later in this opinion. We will also make a basic distinction between two classes of riparian rights. The first class includes those riparian rights that are proprietary; that is, rights that exist by virtue of the character and situation of the riparian owner's property and which can be insisted upon by the riparian owner against the will of the government and are protected by the constitution. An example of such a right is the riparian owner's right of physical access to the water. The second class includes non-proprietary rights which exist only by virtue of the government's willingness to accord them. An example is the right to wharf out. The state need not grant such a privilege, but if it does, the riparian owner by virtue of his right of access to the stream has the sole right to exercise such privilege.B. TidelandsWe now turn our attention to the issue of the state's legislative power to require a rental lease from a riparian owner. At the outset we emphasize the familiar legal principle that "The legislative power which has been vested in our state 158...