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Cable Park meeting with Hood River Port Commission tonight
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Bond1



Joined: 25 Apr 2000
Posts: 130

PostPosted: Fri Sep 14, 2012 7:58 am    Post subject: Reply with quote

I remember very well the attitude of my elders toward those who chose to move to beautiful Oregon, then almost immediately started telling us how we should change Oregon to better suit what they want.

That was in the 60s. Rinse and repeat.
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youwindsurf



Joined: 18 Aug 2012
Posts: 546
Location: North Shore High School

PostPosted: Fri Sep 14, 2012 8:35 am    Post subject: Reply with quote

phazle5499 wrote:
Actually, the Public Trust Law and the Public use law (aka the floatage easement) are separate, but related laws. The former (Public Trust law) is a federal law that holds ownership (title) to the submerged and submersible lands, as well as the waters, in trust for the public. Title was turned over to the State of Oregon at the time of statehood in 1859.
The Public Use law is an Orgeon State Common law that has nothing to do with the submersible lands underneath the water. It provides the public with an easement for the use of navigable waterways over privately owned (titled)submerged lands. Think of it as an easement over a privately owned road for public use. If you are the landowner, you can not restrict, block off or prevent passage over the road on which there is a public easement.
Assuming the Port of Hood River owns the submerged land in the Nichols Boat Basin, the public has an easement to float boats, swim and fish in the waters of the basin. Those rights are guaranteed by Oregon State's Public Use Common Law.
These two laws together (the Public Trust and the Public Use laws) are what allow us to walk on the beaches at the coast below the high water mark, swim and surf in the ocean in front of someone else's house, windsurf, kite, swim, canoe, kayak or float over and fish in rivers and streams in Oregon over the submerged land that may be owned by an adjacent landowner. We should all be thankful for the foresight of the lawmakers who provided these public protections for use of Oregon waterways.
So, Mr. Sampiero, if you disgusted and don't like the fact that people are unyielding in their efforts to protect their rights to use the public easement in the boat basin, you should try to change the law. Good luck with that.


Thank you for clarifying the Public Use Doctrine. Is the Port or the Developer claiming that the land under the waters of the Boat Basin is private property?
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youwindsurf



Joined: 18 Aug 2012
Posts: 546
Location: North Shore High School

PostPosted: Fri Sep 14, 2012 8:56 am    Post subject: Reply with quote

jsampiero wrote:
Josh's most important lesson of the night:
Don't check iWindsurf forums directly before going to bed.

Youwindsurf: My admittedly poorly articulated point is that while we designate certain beaches and make them friendly for certain activities, We also designate that some other activities can't happen at certain beaches - like kiteboarding at the marina, or windsurfing from the new waterfront park. Those areas are designated for swimming. Why is it unreasonable to designate an area for wakeboarding? Like swimming, it's an activity that many people like to participate in. Like it's not great for kiters to be around swimmers (swimmers have rights, don't they?), it's not great for other water users to be around wakeboarders (wakeboarders have rights, don't they?).


One distinction I see is that all uses of the public waterways, other than cable park users, are free of charge. I may pay a parking fee to windsurf at the Hatchery, but I don't pay a fee to make "x" number of reaches. If I chose, I can get someone to drop me off at the Hatchery and thereby windsurf free of any fee. It is the same for SUP'ing and swimming.

This is opposed to a cable park which requires a fee for the use of the public waterway. The fact that the use of the public waterway is restricted to those who pay, leads me to the conclusion that the cable park does not benefit all of the citizens.

Furthermore, the Public Trust Doctrine is based on commerce and navigation which benefits all citizens. The cable park restricts navigation and primarily provides a commercial benefit to the developer. It is not as though the developer is building a port which will allow goods to be shipped in and out of Hood River from which all citizens will benefit. The cable park is an exclusionary and restrictive use limited to those who have the financial resources to enjoy it. If the Developer wants to make the use of the cable park free of charge, like swimming, perhaps I could be persuaded to change my position.
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CUSalin



Joined: 11 Mar 2001
Posts: 301
Location: Portland / Hood River, OR

PostPosted: Fri Sep 14, 2012 9:09 am    Post subject: Reply with quote

Josh,

A couple of things:

First, I think that it's important to frame this issue correctly as one about use within The City of Hood Rivers Waterfront. I can't disagree with you that The Gorge offers lots of places to do lots of things - but this not about The Gorge. This issue is about use opportunities along The City of Hood River's Waterfront. Using your reasoning, the same could be said of a cable park - I think there are plenty of other places in The Gorge a developer might seek to build a cable-park, but I think that argument is moot.

Secondly, I have to disagree with your assertion that competing use interest is the only valid issue here. There are many other perfectly valid opinions and concerns over real and potentially negative impacts a cable park in The Basin would have - to mention just a few - visual impact, crowds, amusement park atmosphere, envronmental, restoration if the cable park fails, legal and financial, etc.

Finally, I'm no lawyer either, and I'm certainly not a judge, so I'm going to keep out of the legal fray - but eitherway - and if need be, it appears those matters might have to be addressed by the courts. I can only hope it doesn't come to that... but if disagreement is strong enough, I guess that's where legal arguements belong and are ultimately decided.

We can wax on about the legal stuff, but none will amount to a hill-o-beans unless one party or the other says "uncle" on the advice of legal counsel or a court rules on it. I'm confident The Port has good lawyers and will make a well calculated decision regarding their legal standings and whether or not they are worth arguing over in court.


Last edited by CUSalin on Fri Sep 14, 2012 9:52 am; edited 1 time in total
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phazle5499



Joined: 03 Jul 2006
Posts: 104

PostPosted: Fri Sep 14, 2012 9:49 am    Post subject: Reply with quote

jsampirto writes:
"There is one spot that's suitable for a cable park. One."
_______________________________

Dig a whole anywhere you like ,on your own private land ,and stick a cable park in it. To say that there is only one place for a cable park is ridiculous. It is even more ridiculous to say that it has to be placed in a public waterway--the Columbia River.

And no, you can't obstruct a portion of public waters (or a public easement on a road) just because you want to reserve it for your own use to the exclusion of the public easement. Imagine if I owned a submerged piece of property in front of my house along a river in Oregon (right in that spot where the big steelhead hang out). It might be nice if I could string a buoy line around that spot and tell everyone else that "There are plenty of other places to fish. This place is mine. You can't fish here."The point is, you cannot obstruct a public easement on any navigable waterway in the State of Oregon. A cable park in the basin would be an obvious obstruction, not allowed by Oregon State Common Law.
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phazle5499



Joined: 03 Jul 2006
Posts: 104

PostPosted: Fri Sep 14, 2012 9:51 am    Post subject: Reply with quote

ooops. sorry, I meant to say "dig a hole anwhere you like....."
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phazle5499



Joined: 03 Jul 2006
Posts: 104

PostPosted: Fri Sep 14, 2012 10:27 am    Post subject: Reply with quote

youwindsurf asks,
"Is the Port or the Developer claiming that the land under the waters of the Boat Basin is private property?"
_______________________________
Good question, youwindsurf. I know the Port acquired various lands from farming and timber interests over a period of time before the Bonneville dam was built. However, the federal government took back some of those lands before the dam was built to accomodate the Columbia River. I assume the feds turned over the submerged lands to the Port of HR, but the Port does not own the Columbia River waters in the basin. The navigable waters in the basin are held in trust for the public and subject to Oregon State common law for public use.
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tweeky



Joined: 19 Sep 2004
Posts: 256

PostPosted: Fri Sep 14, 2012 11:19 am    Post subject: Reply with quote

phazle5499 wrote:

And no, you can't obstruct a portion of public waters (or a public easement on a road) just because you want to reserve it for your own use to the exclusion of the public easement. Imagine if I owned a submerged piece of property in front of my house along a river in Oregon (right in that spot where the big steelhead hang out). It might be nice if I could string a buoy line around that spot and tell everyone else that "There are plenty of other places to fish. This place is mine. You can't fish here."The point is, you cannot obstruct a public easement on any navigable waterway in the State of Oregon.


Wow, guess you better let these guys know:



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phazle5499



Joined: 03 Jul 2006
Posts: 104

PostPosted: Fri Sep 14, 2012 12:05 pm    Post subject: Reply with quote

tweeky-What are you trying to say?? What I see in the photo is a mooring for small boats that INCREASES access to the public waterways, not obstructs it. A cable park OBSTRUCTS access by everyone else to the waterways by just going around in circles, thereby keeping everyone else out of the water. Apples and oranges. A cable park is the opposite of a wharf, marina or mooring for small boats that facilitate the public use of the waters.
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tweeky



Joined: 19 Sep 2004
Posts: 256

PostPosted: Fri Sep 14, 2012 12:18 pm    Post subject: Reply with quote

phazle5499 wrote:
tweeky-What are you trying to say?? What I see in the photo is a mooring for small boats that INCREASES access to the public waterways, not obstructs it. A cable park OBSTRUCTS access by everyone else to the waterways by just going around in circles, thereby keeping everyone else out of the water. Apples and oranges. A cable park is the opposite of a wharf, marina or mooring for small boats that facilitate the public use of the waters.


The screen shot is of floating houses. Its private, not open to the general public. You can't paddle over top of the houses, they obstruct the water-space they occupy 24/7, 365 days a year.

Your response as quoted above typifies the problem with the opposition, and completely validates the point Josh is trying to make. You'll spin-doctor anything and everything, so long as it means no cablepark in the basin.

By your own assertion then, if the Port were going to develop the basin as a private dock to facilitate floating homes, you wouldn't have an issue with it, because by your interpretation, that would "increase" public access. CUsalin is right, its pointless to try and discuss this online.
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