US Laws, Codes, Statutes & Cases

Chapter 274 — Submersible and Submerged Lands

 

2005 EDITION

 

 

SUBMERSIBLE AND SUBMERGED LANDS

 

PUBLIC LANDS

 

GENERAL PROVISIONS

 

274.005     Definitions

 

274.015     Determination of ordinary high and low water

 

274.025     Jurisdiction over submersible and submerged lands generally

 

NAVIGABILITY OF STREAMS

 

274.036     Status of channel of Willamette River; approval of dam; state not obligated to maintain river location

 

SUBMERSIBLE LANDS

 

(Sale or Lease)

 

274.040     Sale or lease of submersible lands; easements; occupation for water works

 

274.043     Exemptions from leasing requirements

 

(Harbor Improvements)

 

274.060     Regulation of harbor improvements; oyster beds; public easement in submersible lands

 

(Common School Fund Investments)

 

274.085     Acquisition for Common School Fund investment authorized; lease of lands

 

DRAINAGE AND RECLAMATION

 

274.205     Definition for ORS 274.210 to 274.290

 

274.210     Authority of department to contract for drainage and reclamation of certain lands

 

274.220     Applications for drainage and reclamation of lands

 

274.230     Investigation and report by Water Resources Director; terms of contract; bond

 

274.240     Performance by contractor; disposal of lands; rules

 

274.250     Nonperformance; action by department; appeal from decision of department

 

274.260     Title of riparian owners

 

SWAMP AND SUBMERSIBLE LANDS

 

274.280     Surveys and plans for reclamation of lands

 

274.290     Execution of plan

 

BEDS OF STREAMS, LAKES AND BAYS

 

(Ownership)

 

274.400     Definition for ORS 274.400 to 274.412

 

274.402     Exclusive jurisdiction to assert title to submerged or submersible lands in navigable waterway

 

274.404     Administrative determination of navigable waterway; rules; procedure

 

274.406     Declaration of state’s claim; effect

 

274.408     Public notice of claim; content

 

274.412     Judicial review of declaration of state’s claim

 

274.425     Definition for ORS 274.430 to 274.520

 

274.430     State ownership of meandered lakes; status as navigable and public waters

 

274.440     Acquisition of future rights to meandered lakes denied; extension of riparian ownership; lands overflowed by high water

 

274.450     Acquisition of riparian rights by department

 

274.460     Settler’s and riparian owner’s preferential right to purchase land within meander lines

 

274.470     Settler’s right to deed to land within meander lines; preferential right to additional land; tacking by successive settlers

 

274.480     Rights of riparian owners on Malheur and Mud Lakes

 

274.490     Settlement of conflicting preferential rights

 

274.500     Conveyance of compact area; prices; maximum acreage

 

274.510     Lake bed lands claimed by the United States

 

274.520     Acceptance of deed to lake bed lands as precluding any other claim

 

(Removing Materials)

 

274.525     City use of stream bed material

 

274.530     Lease or license of stream beds for removal of material; rules for measurement of volume removed

 

274.550     Removal of material without payment of royalties; eligible material and uses

 

274.560     Lease terms; bond or security; option to lease or purchase forbidden; monthly reports and payments; rules

 

274.590     Cooperation with Washington authorities respecting removal of material from bed of Columbia River

 

EXPLORATION FOR MINERALS

 

274.610     Contracts for exploration for hard minerals prohibited; scientific research not prohibited

 

TIDAL SUBMERGED AND SUBMERSIBLE LANDS

 

(General Provisions)

 

274.705     Definitions for ORS 274.705 to 274.860

 

274.710     Jurisdiction of department over tidal submerged lands; easements; leases for oil, gas and sulphur

 

274.715     Sulphur leases

 

274.720     Effect of ORS 274.705 to 274.860 on power to make other leases and on jurisdiction of agencies other than department

 

274.725     Scope of leases and permits; persons ineligible

 

(Geological and Geophysical Surveys)

 

274.735     Application for survey permit; effect of permit; rules

 

274.740     Issuance of survey permit; renewal; reports

 

274.745     Drilling logs and records

 

(Bid Procedure)

 

274.755     Hearing prior to granting lease or easement

 

274.760     Considerations involved in granting lease or easement

 

274.765     Publishing offer to lease tidal submerged lands; bids; cash bonus; award of lease; fee

 

274.770     Discriminatory requirements prohibited

 

(Leases)

 

274.780     Conditions in leases and permits; execution; delivery of bonds or contracts to department

 

274.785     Exclusive rights granted by lease; requirement of diligence; maximum area; assignment

 

274.790     Royalties

 

274.795     Rents

 

274.800     Bonds

 

274.805     Drill sites

 

274.810     Commencement of drilling; operational requirements

 

274.815     Extension of time when wells to be drilled from filled land or structure

 

274.820     Water contamination or pollution

 

274.825     Nonconflicting use of leased lands

 

274.830     Protecting lands from drainage

 

274.835     Conformance to laws and regulations; periodic negotiations

 

274.840     Continuation of lease after cessation of production

 

274.845     Surrender of lease

 

274.850     Cancellation of lease; partial retention of leasehold; removal of equipment

 

274.855     Restoration of leasehold to original condition

 

274.860     Protection and location of filled lands

 

(Kelp Fields)

 

274.885     Lease of kelp fields

 

274.890     Time allowed lessee for survey and erection of plant; filing copy of survey with department

 

274.895     Removing kelp without lease

 

SUBMERSIBLE, SUBMERGED AND NEW LANDS

 

274.905     Definitions for ORS 274.905 to 274.940

 

274.910     Application and effect

 

274.915     Department to lease or dispose of new lands; method

 

274.920     Creation of new lands upon submersible or submerged lands

 

274.925     Right of public riparian owner to purchase new lands; price determination

 

274.929     Right of nonpublic riparian owner to purchase new lands; price determination; applies to certain new lands

 

274.932     Right of public body to purchase new lands created by it; price determination

 

274.935     Ownership, by nonpublic owner of submersible or submerged lands, of new lands created thereon

 

274.937     Right of individual to purchase new lands created by individual; price determination

 

274.940     Reservation of new lands

 

FORMERLY SUBMERGED, SUBMERSIBLE LANDS

 

274.960     Definitions for ORS 274.960 to 274.985

 

274.963     Legislative findings

 

274.965     Determination of state interest; designation of areas; study deadlines

 

274.967     Department studies; report, submission to board; hearings

 

274.970     Board review; referral to department for further study; adoption

 

274.975     Board declaration of state interest; effect

 

274.977     Notification of declaration to public, landowners

 

274.980     Board to send copy of declaration to affected counties; recording required

 

274.983     Forwarding original declarations and administrative records to director; disposition; use of certified copy as evidence

 

274.985     Judicial review of declarations

 

PENALTIES

 

274.990     Criminal penalties

 

274.992     Civil penalty for violation of ORS 274.040

 

274.994     Amount of civil penalty for violation of ORS 274.040; rules; considerations in imposing penalty

 

GENERAL PROVISIONS

 

      274.005 Definitions. As used in this chapter, unless the context requires otherwise:

      (1) “Department” means the Department of State Lands.

      (2) “Director” means the Director of the Department of State Lands.

      (3) “Line of ordinary high water” means the line on the bank or shore to which the high water ordinarily rises annually in season.

      (4) “Line of ordinary low water” means the line on the bank or shore to which the low water ordinarily recedes annually in season.

      (5) “Land” includes water, water rights, easements of every nature and all appurtenances to land.

      (6) “Material” includes gravel, rock, sand and silt, but does not include hard minerals subject to ORS 274.610, or oil, gas and sulphur subject to ORS 274.705 to 274.860.

      (7) “Submerged lands,” except as provided in ORS 274.705, means lands lying below the line of ordinary low water of all navigable waters within the boundaries of this state as heretofore or hereafter established, whether such waters are tidal or nontidal.

      (8) “Submersible lands,” except as provided in ORS 274.705 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, within the boundaries of this state as heretofore or hereafter established, whether such waters or lands are tidal or nontidal. [1967 c.421 §98 and 1967 c.616 §13; 1969 c.594 §31; 1991 c.217 §3; 2003 c.253 §20]

 

      274.010 [Amended by 1961 c.619 §41; renumbered 274.885]

 

      274.015 Determination of ordinary high and low water. For purposes of this chapter, when the lines of ordinary high or low water cannot be determined by survey or inspection, then such lines shall be determined by the use of the annual mean high or mean low water for the preceding year. [1967 c.421 §99]

 

      274.020 [Renumbered 274.890]

 

      274.025 Jurisdiction over submersible and submerged lands generally. (1) The title to the submersible and submerged lands of all navigable streams and lakes in this state now existing or which may have been in existence in 1859 when the state was admitted to the Union, or at any time since admission, and which has not become vested in any person, is vested in the State of Oregon. The State of Oregon is the owner of the submersible and submerged lands of such streams and lakes, and may use and dispose of the same as provided by law.

      (2) No person shall acquire any right, title or interest in or to the submersible and submerged lands of any such navigable lakes, or any part thereof, by reliction or otherwise, or by reason of the lowering or drainage of the waters of such lakes, except as provided by statute. [Formerly 274.420]

 

      274.029 [1973 c.496 §1; 1977 c.471 §1; 1981 c.219 §1; repealed by 1983 c.566 §1]

 

      274.030 [Amended by 1961 c.619 §42; renumbered 274.895]

 

      274.031 [Formerly 274.034; 1981 c.219 §2; repealed by 1983 c.566 §1]

 

      274.032 [1977 c.471 §2; repealed by 1983 c.566 §1]

 

      274.034 [1973 c.496 §2; 1977 c.637 §1; renumbered 274.031]

 

      274.035 [Formerly 274.570; repealed by 1969 c.594 §63]

 

NAVIGABILITY OF STREAMS

 

      274.036 Status of channel of Willamette River; approval of dam; state not obligated to maintain river location. The Willamette River at mile 176.5 has been returned to its pre-1971 channel. The Legislative Assembly finds that in the interests of the state’s ownership in the bed of the Willamette River and protecting the public rights of navigation, fisheries, recreation and wildlife habitat, the river at that point should be allowed to remain at its present location. The Legislative Assembly further finds that the construction of the dike at river mile 176.5 which returned the river to its pre-1971 channel is hereby approved as being in accordance with the intent and purposes of ORS 780.010. Nothing in this section is intended to imply a continuing obligation by the state to maintain the river in any location or waive the requirements of ORS 196.600 to 196.905. [1975 c.412 §2]

 

SUBMERSIBLE LANDS

 

(Sale or Lease)

 

      274.040 Sale or lease of submersible lands; easements; occupation for water works. (1) Except as provided in ORS 274.043 (1) to (3), in ORS 274.085 for leases of submersible lands acquired as an investment for the Common School Fund, in ORS 274.530 (1) for leases of submersible lands of less than one year’s duration, in ORS 274.530 (3) for licenses of less than three years’ duration and in subsections (2) and (3) of this section, submersible lands owned by the State of Oregon may be leased only to the highest bidder, bidding at least the minimum amount designated by the Department of State Lands under subsection (6) of this section for the lease of any such lands, after being advertised not less than once each week for two successive weeks in one or more newspapers of general circulation in the county in which the lands are situated. However, any owner of lands abutting or fronting on such submersible lands shall have the preference right to lease the lands unless the submersible lands are occupied by a person claiming the right of occupancy under a conveyance recorded before January 1, 1981, from the present owner or predecessor in interest of lands abutting or fronting the submersible lands. If so, the occupant of the submersible lands shall have the preference right to lease the lands. An easement or license related to utility service on the submersible lands does not establish a preference right under this subsection. The lands shall be leased for the amount designated by the department under subsection (6) of this section as the minimum amount for the lease of any such lands. The preference provided in this subsection applies to any lease of submersible land for one year or more offered or issued under ORS 274.530. The preference provided in this subsection does not apply to any lease offered or issued by the department under ORS 274.705 to 274.860.

      (2) Submersible lands owned by the State of Oregon that are determined by the State Land Board to be available for sale may be sold only to the highest bidder, after being advertised not less than once each week for two successive weeks in one or more newspapers of general circulation in the county in which the lands are situated. However:

      (a) No such lands shall be sold for less than for a fair appraised value as determined by an appraiser appointed by the department.

      (b) All sales of such submersible lands shall be approved by the State Land Board.

      (c) Any owner of lands abutting or fronting on such submersible lands shall have the preference right to purchase such lands for the fair appraised value provided that the sale of such lands be approved by the State Land Board.

      (3)(a) The department may grant, to any person holding a permit from the Water Resources Director authorizing the impoundment for beneficial use of the waters of any lake or stream, easements over submersible lands for flowage and storage of waters, and for the construction, maintenance and operation of any structures or facilities necessary for the use of the water under the terms of the permit upon payment of just compensation by the grantee.

      (b) In addition to the authority of the department under paragraph (a) of this subsection to grant easements over submersible lands, a person holding a water right permit, water right certificate, proposed or final order approving a water right permit or court decree evidencing a water right may occupy state-owned submersible lands for the construction, maintenance and operation of any structure or facility necessary for the use of water if the proposed use under the permit, certificate, order or decree is for irrigation or domestic use. The department may not charge for the occupation of state-owned submersible lands pursuant to this paragraph, nor may the department require that a person obtain written documentation to substantiate the permission granted under this paragraph. Upon request by the Department of State Lands, the Water Resources Department shall provide information to the Department of State Lands regarding any change of use of the water right. A person may continue to occupy state-owned submersible lands pursuant to this paragraph until:

      (A) The water right permit is canceled pursuant to ORS 537.260;

      (B) The water right is canceled pursuant to ORS 540.641; or

      (C) The water is no longer being applied to irrigation or domestic use.

      (c) An easement or the permission granted under this subsection may not be construed to be a sale or lease of the submersible lands within the meaning of subsections (1) and (2) of this section.

      (d) A person granted an easement or permission to use or occupy state-owned submersible lands under this subsection shall indemnify and hold harmless the state from all liability and claims arising from or attributable to the use or occupation.

      (4) All easements or the permission granted pursuant to subsection (3) of this section shall be subject to conditions that will ensure the safety of the public and the preservation of economic, scenic and recreational values and to lawful rules promulgated by state agencies affected by the activities of the grantee.

      (5) Nothing in this section affects the provisions of ORS 509.505, 509.510, 511.606 to 511.806, 622.270 or 622.320 to 622.350.

      (6) The Department of State Lands shall designate the minimum acceptable amount for the lease of any submersible lands otherwise authorized by law, other than any lease offered or issued by the department under ORS 274.705 to 274.860.

      (7) For the purpose of sale, the value of state-owned submersible lands shall be determined by an appraiser appointed by the department.

      (8) The act of any person entering into an agreement with the department under this section or ORS 274.530 for the lease of submersible lands shall not be considered a waiver by such person of any claim of ownership in the submersible lands described in the agreement. [Amended by 1961 c.37 §1; subsection (3) enacted as 1961 c.37 §2; 1967 c.421 §104; 1969 c.594 §32; subsection (4) enacted as 1969 c.675 §17; 1975 c.547 §1; 1975 c.765 §2; 1979 c.793 §3; 1981 c.158 §1; 1981 c.432 §1; 1991 c.217 §5; 1995 c.113 §2; 2003 c.350 §1]

 

      274.042 [1979 c.793 §2; repealed by 1991 c.521 §1 (274.043 (1) to (3) enacted in lieu of 274.042)]

 

      274.043 Exemptions from leasing requirements. (1) A privately owned float or dock occupying an area of 200 square feet or less is exempt from the leasing requirements of ORS 274.040 if:

      (a) The structure belongs to the immediately adjacent riparian landowner; and

      (b) The float or dock is uncovered, unenclosed and open on all sides.

      (2) A privately owned float or dock constructed prior to September 29, 1991, and exempted under ORS 274.042 (1989 Edition) is exempt from the provisions of ORS 274.040.

      (3) The Department of State Lands may, by rule, provide for additional exemptions to the leasing requirements of ORS 274.040.

      (4) Any float or dock described in subsections (1) to (3) of this section shall be registered with the department. [Subsections (1) to (3) enacted as 1991 c.521 §2 in lieu of 274.042; subsection (4) enacted as 1991 c.521 §6]

 

      274.045 [Subsection (1) of 1965 Replacement Part enacted as 1961 c.703 §9; subsection (2) of 1965 Replacement Part enacted as 1961 c.619 §35; repealed by 1967 c.421 §206]

 

      274.050 [Renumbered 273.900]

 

(Harbor Improvements)

 

      274.060 Regulation of harbor improvements; oyster beds; public easement in submersible lands. (1) Nothing in ORS 274.040 prevents the Legislative Assembly from providing for regulation of the building of wharves or other improvements in any bay, harbor or inlet of this state, subject to ORS 780.060, or grants the exclusive right to any person to use the natural oyster beds of this state.

      (2) The grantee of any submersible lands under ORS 274.040 shall hold the same subject to the easement of the public, under the provisions and restrictions of law, to enter thereon and remove oysters and other shell fish therefrom. [Amended by 1967 c.421 §105; 1969 c.594 §§33,33a]

 

      274.065 [1965 c.368 §1; 1967 c.421 §114; renumbered 390.710]

 

      274.070 [Amended by 1965 c.368 §2; 1967 c.421 §115; renumbered 390.720]

 

      274.075 [1961 c.36 §§1,2,3,4; 1967 c.421 §116; 1969 c.594 §34; repealed by 1969 c.601 §30]

 

      274.080 [Amended by 1955 c.257 §1; 1965 c.368 §3; 1967 c.421 §117; repealed by 1969 c.601 §30]

 

(Common School Fund Investments)

 

      274.085 Acquisition for Common School Fund investment authorized; lease of lands. Whenever it appears to the State Land Board to be prudent and to the financial benefit of the Common School Fund, the State Land Board may acquire as an investment for the Common School Fund any parcel of land, whether or not submerged, and submersible lands or formerly submerged and submersible lands. The consideration for such acquisition may be an exchange of other lands under the jurisdiction of the State Land Board including submerged and submersible lands or formerly submerged and submersible lands or cash or a combination of such lands and cash. In leasing any lands acquired as an investment for the Common School Fund, the board may use negotiation, competitive bidding, solicitation of proposals or whatever procedure or combination of procedures the board determines will maximize the financial benefit to the Common School Fund. The board may determine on a case-by-case basis what notice, publication or bidding procedures, if any, it wishes to use in implementing its authority under this section. [1979 c.546 §1; 1981 c.158 §2]

 

      Note: 274.085 was enacted into law by the Legislative Assembly but was not added to or made a part of ORS chapter 274 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.

 

      274.090 [Amended by 1959 c.237 §1; 1965 c.368 §4; 1967 c.421 §118; renumbered 390.730]

 

      274.100 [Amended by 1965 c.368 §5; 1967 c.421 §119; renumbered 390.740]

 

      274.110 [Amended by 1967 c.421 §120; renumbered 390.750]

 

      274.120 [Renumbered 273.902]

 

      274.130 [Renumbered 273.903]

 

DRAINAGE AND RECLAMATION

 

      274.205 Definition for ORS 274.210 to 274.290. As used in ORS 274.210 to 274.290, “reclamation” includes, but is not limited to, irrigation. [1969 c.594 §36]

 

      274.210 Authority of department to contract for drainage and reclamation of certain lands. The Department of State Lands on behalf of the State of Oregon may enter into contracts for:

      (1) The drainage of submersible and submerged lands adjoining or underlying any lakes, marshes or swamps in this state, or for the drainage of that part which is in this state of submersible and submerged lands adjoining or underlying any lake, marsh or swamp lying partly in this state and partly in another state, and for the reclamation of any such lands; and

      (2) The sale or disposal of such drained and reclaimed lands as provided for in ORS 274.210 to 274.260. [Amended by 1967 c.421 §121; 1969 c.594 §37; 2001 c.104 §82]

 

      274.220 Applications for drainage and reclamation of lands. (1) Any person desiring to enter into a contract to drain submersible and submerged lands under ORS 274.210 to 274.260 and reclaim such lands shall file with the Department of State Lands an application.

      (2) The applicant, at the expense of the applicant and without any cost or charge to the state, shall make the necessary surveys and prepare a map of the lands proposed to be reclaimed. The map shall exhibit a plan showing the area that is submersible or submerged and the mode of the contemplated drainage and reclamation, and shall be accompanied by a list of the lands proposed to be drained, with sufficient description to identify the lands in accordance with rules promulgated by the department.

      (3) The application shall contain an estimate of the cost of the construction of the proposed system of drainage and reclamation. [Amended by 1967 c.421 §122; 1969 c.594 §38]

 

      274.230 Investigation and report by Water Resources Director; terms of contract; bond. (1) Upon receipt of the application, map and plan of drainage and reclamation under ORS 274.220, the Department of State Lands may require the Water Resources Director to make an investigation and report at the expense of the applicant. If the project appears feasible and desirable and such applicant responsible, the department may enter into a contract with the applicant for construction of the drainage and reclamation works.

      (2) The applicant shall agree:

      (a) To drain the submersible and submerged lands substantially in accordance with the plans set forth in the contract;

      (b) To make such proofs of reclamation as are required by the department;

      (c) To pay all costs incident to the contract and making of the proof and any other expense connected therewith;

      (d) That work will be commenced upon the ditches or other works necessary for such drainage and reclamation at a time fixed by the department and agreed upon in the contract;

      (e) That by the end of the first year after the time fixed in the contract for beginning such work, 10 percent of the necessary expenditure will be made; and

      (f) That this work will be prosecuted with due diligence until complete and the required proof of reclamation is made.

      (3) The department shall require a bond subject to its approval in any sum it finds necessary to insure the faithful performance of the contract. [Amended by 1967 c.421 §123; 1969 c.594 §39]

 

      274.240 Performance by contractor; disposal of lands; rules. (1) Immediately upon execution of the contract, the contractor undertaking the drainage and reclamation may enter upon the lands for the purpose of reclaiming the same.

      (2) The Department of State Lands shall fix the amount to which the contractor is entitled for reclaiming the lands and shall also fix the amount to be paid to the state for such lands. The department may permit the contractor to sell or dispose of the lands at such price and upon such terms as the department may fix in tracts not to exceed 640 acres to any one person under such rules as the department may promulgate governing disposal.

      (3) Upon proof satisfactory to the department that the amount fixed by the department as due for reclamation and the amount due the State of Oregon has been fully paid, the department shall issue a quitclaim deed for not more than 640 acres to the purchaser of such land. [Amended by 1967 c.421 §124; 1969 c.594 §40]

 

      274.250 Nonperformance; action by department; appeal from decision of department. (1) Upon failure of any parties having contracts with the state for construction of drainage and reclamation works to begin the same within the time specified by the contract, or to complete the same within the time or in accordance with the specifications of the contract, the Department of State Lands shall give such parties written notice of such failure. If the parties have failed to proceed with the work or to conform to the specifications of the contract on or before the 60th day after the sending of such notice, the contract and all work constructed thereunder is forfeited to the state.

      (2) Upon forfeiture, the department shall immediately give notice once every week for a period of four weeks in some newspaper of general circulation in the county in which the work is situated, and in one newspaper of general circulation in this state, declaring the forfeiture of the contract, and that upon a day stated in the notice proposals will be received at the office of the department for the purchase of incomplete works and for the completion of the contract, the time for receiving such bids to be not earlier than the 60th day after issuance of the last notice of the forfeiture. The sales shall be for cash to the highest responsible bidder. The money received from the sale of the partially completed works under this section shall first be applied to the expenses incurred by the state in their forfeiture and disposal, and any surplus shall be paid into the State Treasury and become a part of the Common School Fund.

      (3) The contractors may appeal from the decision of the department. The appeal shall be heard in chambers by the circuit court of the district wherein the head works of the drainage system are situated. [Amended by 1967 c.421 §125]

 

      274.260 Title of riparian owners. (1) The title of owners of land riparian to lakes and ponds drained under ORS 274.210 to 274.260 extends to only so much of the submersible or submerged lands adjoining or underlying such lake or pond which may be reclaimed by such drainage as is required to fill up the fractional subdivision or subdivisions of a section which the owner owns and which are rendered fractional by such lake or pond, and the title of such owner is so limited when the waters of such lake or pond receding, because of such drainage, uncover the submersible or submerged lands adjoining or underlying such lake or pond.

      (2) This section shall not affect the right of riparian owners to land acquired by natural accretion or reliction because of the gradual and natural recession of the waters of the lake or pond to which the lands of such owners are riparian. [Amended by 1967 c.421 §126; 1969 c.594 §41]

 

      274.270 [Repealed by 1967 c.421 §206]

 

SWAMP AND SUBMERSIBLE LANDS

 

      274.280 Surveys and plans for reclamation of lands. In addition to its powers under ORS 274.210 to 274.260, the Department of State Lands may cause reclamation surveys, plans and specifications to be made for the reclaiming of any unsold swamp lands and submersible lands under the control of the department. [Amended by 1967 c.421 §127; 1969 c.594 §42]

 

      274.290 Execution of plan. The Department of State Lands may direct the Water Resources Director to submit an estimate of the probable cost of any survey, plan or specification of any contemplated reclamation project under ORS 274.280. On consideration thereof, if the department finds it to be in the interest of the state, the department shall direct the Water Resources Director to cause such survey and plans and specifications to be made and prepared. Upon receipt thereof the department may proceed under the plan to the extent and in such manner as it considers advisable. [Amended by 1967 c.421 §128]

 

      274.300 [Amended by 1967 c.421 §22; renumbered 273.111]

 

      274.310 [Amended by 1967 c.421 §129; 1969 c.594 §14; repealed by 2005 c.755 §59]

 

      274.355 [1961 c.479 §1; 1967 c.421 §109; repealed by 1967 c.567 §14]

 

      274.360 [1961 c.479 §§2,3; 1967 c.421 §110; repealed by 1967 c.567 §14]

 

      274.365 [1961 c.479 §§4,6; 1967 c.421 §111; repealed by 1967 c.567 §14]

 

      274.370 [1961 c.479 §5; 1967 c.421 §112; repealed by 1967 c.567 §14]

 

      274.375 [1961 c.479 §7; 1967 c.421 §113; repealed by 1967 c.567 §14]

 

BEDS OF STREAMS, LAKES AND BAYS

 

(Ownership)

 

      274.400 Definition for ORS 274.400 to 274.412. As used in ORS 274.400 to 274.412, “board” means the State Land Board. [1995 c.471 §2]

 

      274.402 Exclusive jurisdiction to assert title to submerged or submersible lands in navigable waterway. (1) The State Land Board has exclusive jurisdiction to assert title to submerged or submersible lands in navigable waterways on behalf of the State of Oregon.

      (2) The board shall not in any manner assert title to submerged or submersible lands in any waterway in this state unless either:

      (a) A court having jurisdiction to determine title to real property in Oregon has determined that the waterway or part of the waterway is navigable and that determination is final; or

      (b) The board has made a declaration under ORS 274.406 that contemplates the assertion of such title. [1995 c.471 §3]

 

      274.404 Administrative determination of navigable waterway; rules; procedure. (1) On or before July 1, 1996, the State Land Board shall adopt by rule a procedure that is consistent with ORS 274.400 to 274.412 by which the board and the Department of State Lands shall make a final administrative determination as to whether a waterway or part of a waterway is navigable, and if so, the extent of the interest claimed by the State of Oregon in the navigable portion of the waterway.

      (2) The rules adopted under subsection (1) of this section shall incorporate the following procedures that the board and the department shall follow:

      (a) The board may direct the department to make a determination of navigability if there is sufficient economic justification or if there is a broad and substantial public interest. If the board so directs, the department shall conduct a study to make the determination.

      (b) The department shall provide prompt public notice to affected property owners that the department is beginning the study.

      (c) Upon completion of a study directed under paragraph (a) of this subsection, the department shall prepare and submit to the board a draft report setting forth the department’s findings and conclusions as to whether the waterway or part of the waterway under study is navigable and, if so, the extent of the State of Oregon’s interest in the waterway or part of the waterway.

      (d) The department shall provide appropriate prior public notice to affected property owners and other interested parties concerning the draft report. The notice shall provide an opportunity for a public hearing in the area of the affected waterway and an opportunity for the public to submit written comments on the draft report and to submit testimony or other evidence concerning the navigability of the affected waterway or part of the waterway or the State of Oregon’s interest in the waterway or part of the waterway.

      (e) Following the public hearing, the board may adopt the draft report submitted by the department if substantial evidence in the record supports the report’s findings and conclusions, or the board may refer the report to the department for further action as determined by the board. [1995 c.471 §4]

 

      274.406 Declaration of state’s claim; effect. (1) Upon the adoption of a report by the State Land Board under ORS 274.404 (2)(e), the board shall declare the nature and extent of the state’s claim to any interest that remains or is vested in the State of Oregon with respect to any land or waterway described in the report.

      (2) Except as it may be modified upon review pursuant to ORS 274.412, a declaration made by the board pursuant to subsection (1) of this section shall be binding upon the State of Oregon with respect to the interest, if any, of the State of Oregon in any land or waterway described in the declaration.

      (3) Nothing contained in this section is intended to affect the ability of a court of competent jurisdiction to make a determination with respect to a private claim to or interest in real property. [1995 c.471 §5]

 

      274.408 Public notice of claim; content. Immediately following a declaration made by the State Land Board pursuant to ORS 274.406, the board shall:

      (1) Cause reasonable public notice of the declaration to be given to interested parties. The notice shall:

      (a) Describe the land or waterway affected and the nature and extent of the state’s claim. Such notice need not describe the land or waterway in legal terms, but by the use of common descriptions or maps shall be designed to identify the land or waterway in a manner intelligible to the layperson and useful in establishing the exact location of the state claim in relation to existing legal descriptions.

      (b) Advise that any person aggrieved by the declaration may seek judicial review of the declaration pursuant to ORS 274.412.

      (2) Send to each owner of record of land described in the declaration a copy of the declaration made with respect to the land and a statement advising such owner that any aggrieved party may seek judicial review of the declaration pursuant to ORS 274.412. [1995 c.471 §6]

 

      274.410 [Renumbered 274.525]

 

      274.412 Judicial review of declaration of state’s claim. Any person who is aggrieved by a declaration of the State Land Board made pursuant to ORS 274.406 may seek judicial review of the declaration in the manner provided in ORS chapter 183 for judicial review of final orders in other than contested cases. For purposes of ORS 183.484 (2), the date three days after the date of mailing of notice under ORS 274.408 (2) shall be considered the date the order is served on the owner. [1995 c.471 §7]

 

      274.420 [Amended by 1967 c.421 §100; renumbered 274.025]

 

      274.425 Definition for ORS 274.430 to 274.520. As used in ORS 274.430 to 274.520, “meandered lake” means a lake wholly or partly within this state that has been meandered by the United States surveys. [1967 c.421 §131]

 

      274.430 State ownership of meandered lakes; status as navigable and public waters. (1) All meandered lakes are declared to be navigable and public waters. The waters thereof are declared to be of public character. The title to the submersible and submerged lands of such meandered lakes, which are not included in the valid terms of a grant or conveyance from the State of Oregon, is vested in the State of Oregon.

      (2) ORS 274.430 to 274.450 shall not apply to any nonnavigable lakes lying within the boundaries of any duly organized and incorporated drainage district which was in existence on January 1, 1921.

      (3) Nothing in this section impairs the title of any upland or riparian owner to or any vested rights in land which was added prior to May 25, 1921, by natural accretion or reliction to the lands of such upland owner. [Amended by 1967 c.421 §132]

 

      274.440 Acquisition of future rights to meandered lakes denied; extension of riparian ownership; lands overflowed by high water. (1) There are no vested rights in or to any future accretion or reliction to the lands of any upland or riparian owner on any meandered lake. No person shall acquire any right, title or interest in or to the submerged or submersible lands of any such lakes, or any part thereof, by reliction, accretion or otherwise, or by reason of the lowering or drainage of the waters of such lakes, except as provided by statute.

      (2) Upon drainage of meandered lakes, the title of owners of land riparian to such lakes drained under any law shall extend to so much of the submersible and submerged lands reclaimed by such drainage as is required to fill out the least fractional subdivision or subdivisions of any section owned by such riparian owners and which is rendered fractional by the meander line of such lake; and the title of such owners shall be so limited when the receding lake waters, because of such drainage, uncover the submersible and submerged lands. Where by reason of natural accretion or reliction such fractional subdivision or subdivisions of such upland owners were filled out thereby prior to May 25, 1921, such upland owners shall hold to the line of such lands as extended by the natural accretion or reliction.

      (3) Submersible and submerged lands covered at ordinary high water at ordinarily recurring seasons by the waters of meandered lakes, or from which the waters of any such lakes have not at ordinarily high water permanently receded, are not considered to be accreted or relicted lands, but the same and all accretions and relictions occurring or formed over any of the lands of the State of Oregon, as provided by ORS 274.430, are the property of the State of Oregon, and may be by it leased, sold or managed in the manner provided by law. [Amended by 1967 c.421 §133]

 

      274.450 Acquisition of riparian rights by department. The Department of State Lands may acquire by purchase, gift, condemnation or otherwise, any riparian rights which may, by any court of competent jurisdiction, be held to be owned by or vested in any upland or riparian owner on any meandered lakes, and may institute such suits or actions as may be necessary in such condemnation proceedings. [Amended by 1967 c.421 §134]

 

      274.460 Settler’s and riparian owner’s preferential right to purchase land within meander lines. All persons qualified to become entrymen and to secure land patents under the homestead laws of the United States and who prior to January 1, 1921, in good faith settled upon lands within the meander lines of lakes returned as navigable by the United States surveys and who, on January 1, 1921, by reason of settlement, cultivation and improvements on any such lands would be entitled to patent from the United States if such lands were open or subject to homestead entry are given a preference right to purchase from the State of Oregon such lands so settled upon by them, not exceeding 160 acres for any one person, upon such terms and at such prices and within such times as shall be fixed by the Department of State Lands. However, owners of the upland bordering upon such ordinary high water mark have a preference right to purchase, at the best price bid, state lands described in ORS 274.430 and riparian to their lands, and not exceeding 160 acres, in addition to the lands granted them by ORS 274.430 and 274.440. [Amended by 1967 c.421 §135]

 

      274.470 Settler’s right to deed to land within meander lines; preferential right to additional land; tacking by successive settlers. (1) Any person who in good faith settled upon lands within the meander lines of any meandered lake and who, on January 1, 1921, actually resided thereon, who maintained residence thereon for at least five years immediately prior to such date, and who complied with the requirements of settlement, residence, cultivation and improvement, specified for homestead entrymen under the homestead laws of the United States, and which would be sufficient to acquire title by patent if such lands were subject to homestead entry by qualified entrymen, upon proof of such facts to the satisfaction of the Department of State Lands:

      (a) Is entitled to a deed from the state, conveying and granting such lands not exceeding 160 acres without cost; and

      (b) Has a preferential right to purchase from the State of Oregon 160 acres of additional lands, chiefly valuable for agricultural purposes.

      (2) Any person who did not reside on any lands described in subsection (1) of this section for five years immediately prior to January 1, 1921, but who purchased the improvement or possessory rights or claims of a prior occupant, and whose residence and possession when tacked to that of such prior occupant extended for a period of not less than five years immediately prior to such date, shall have a preferential right to purchase such lands, not exceeding 160 acres, the price of which shall be fixed without reference to the value of the improvements thereon. [Amended by 1967 c.421 §136]

 

      274.480 Rights of riparian owners on Malheur and Mud Lakes. The owners of lands riparian to Malheur and Mud Lakes, in Harney County, Oregon, shall be granted title to so much of the lands within the meander lines of such lakes as is required to fill out the least fractional subdivision or subdivisions of any section owned by such upland owners, and which is rendered fractional by the meander line of such lakes, in addition to the rights recognized by ORS 274.430 to 274.460 to any natural accretion or reliction added to the lands of such upland owners prior to May 24, 1923. Owners of any upland bordering upon such meander lines shall have a preferential right to purchase, in addition, 160 acres of such state lands, chiefly valuable for agricultural purposes. [Amended by 1967 c.421 §137]

 

      274.490 Settlement of conflicting preferential rights. Settlers within the meander line of any meandered lake have the first preferential right, and the Department of State Lands shall, so far as practicable, work out the various preferential rights by securing to each, all the lands which would be most advantageously used by such several persons. In case of conflict, the department shall give the parties a reasonable time in which to agree, and if they cannot agree, the department shall decide the matter and make conveyances as it considers equitable, and its decision in the matter shall be final. The department shall fix the time within which such preferential rights shall be exercised. [Amended by 1967 c.421 §138]

 

      274.500 Conveyance of compact area; prices; maximum acreage. (1) All of the lands referred to in ORS 274.470 and 274.480 granted or conveyed by the state, shall be granted and conveyed in a reasonably compact area, to be determined by the Department of State Lands.

      (2) All sales of such state lands shall be at prices fixed by the department, and no more than 320 acres shall be sold or conveyed to any one person. [Amended by 1967 c.421 §139]

 

      274.510 Lake bed lands claimed by the United States. (1) If the federal government claims title or interest in any lands referred to in ORS 274.470 or 274.480 the same shall not be conveyed or otherwise disposed of, or preferential right therein accrue until such claim is settled. The Department of State Lands may enter into such agreements with the federal government affecting such lands as it deems best in the interest of the public, and make such deeds and conveyances to the United States in consideration of the issuance of such patents by the United States to the State of Oregon of such lands within the meander lines of any such lakes as the department and the federal government agree.

      (2) Nothing in this section is a recognition of any title or interest in the United States within the meander lines of any meandered lake to any lands or waters of any such lake prior to the execution and delivery of a deed or conveyance from the State of Oregon as provided for in this section.

      (3) In carrying out such agreements the department may utilize the proceeds from the sale of such lands in which title or interest is claimed by the federal government. This section does not authorize the department or any other state agency to enter into any agreement which will divest any person of any water rights acquired under the laws of this state or otherwise. [Amended by 1967 c.421 §140]

 

      274.520 Acceptance of deed to lake bed lands as precluding any other claim. Any person who elects to take any deed from the State of Oregon under ORS 274.430 to 274.520 to any lands within the meander lines of a lake takes the same in lieu of any claim to any other lands within the meander line of such lake in which such deeded lands lie, and shall not thereafter maintain in any court any claim to any lands inside the meander line of such lake other than to the lands conveyed to such person by deed from the state under ORS 274.430 to 274.520 or which such person acquires in good faith from a grantee or purchaser from the State of Oregon under such statutes. [Amended by 1967 c.421 §141]

 

      274.523 [1967 c.421 §143; repealed by 1969 c.594 §63]

 

(Removing Materials)

 

      274.525 City use of stream bed material. (1) Any city of the State of Oregon bordering on a navigable stream may dredge out and use material from submersible and submerged lands of the stream, owned by the State of Oregon and in front of such city, for the purpose of filling in or reclaiming the submersible lands within such city, under the rules of the Department of State Lands. The consent of the appropriate agency of the United States Government shall be first obtained by such city.

      (2) Any contractor who has entered into a contract with any such city to fill in or reclaim any of its submersible lands may dredge and use such material in the same manner as may be done by such city. [Formerly 274.410; 1967 c.421 §145; 1969 c.594 §43]

 

      274.530 Lease or license of stream beds for removal of material; rules for measurement of volume removed. (1) The Department of State Lands may, after notice of competitive bidding, and following such competitive bidding, lease or license submersible and submerged lands of navigable streams owned by the State of Oregon for the purpose of removing material therefrom. Competitive bid requirements may be waived for leases of less than one year’s duration. No lease shall be made for a lump sum but only on a basis of the price per cubic yard or ton for the material removed.

      (2) The department may prescribe by rule the manner in which the volume in cubic yards or the weight in tons for the material removed shall be determined.

      (3) Notwithstanding subsections (1) and (2) of this section, the department may enter into a license for the removal of material from submersible and submerged lands of navigable streams owned by the State of Oregon based on a competitive market rate that reflects fair market value.

      (4) The department shall, prior to any competitive bidding notice, establish prebid qualifications that include but are not limited to the following:

      (a) The minimum yardage amount of material that must be removed for each year for which the lease is valid.

      (b) Evidence that all bidders have an established market, as provided by each bidder. [Amended by 1961 c.509 §2; 1961 c.676 §3; 1967 c.421 §144; 1967 c.567 §§15, 15a; 1971 c.509 §1; 1995 c.113 §1]

 

      274.540 [Amended by 1953 c.181 §2; 1961 c.509 §3; 1961 c.676 §4; 1967 c.421 §45; renumbered 273.225]

 

      274.550 Removal of material without payment of royalties; eligible material and uses. (1) A person may remove material from submersible and submerged lands owned by the State of Oregon without payment of royalties to the Department of State Lands if the material is:

      (a) Removed for channel or harbor improvement or flood control;

      (b) Used for filling, diking or reclaiming land owned by the state or any political subdivision as defined in ORS 271.005 and located not more than two miles from the bank of the stream;

      (c) Used for the creation, maintenance or enhancement of fish or wildlife habitat;

      (d) Used for the maintenance of public beaches; or

      (e) Contaminated with hazardous material, as defined in ORS 466.605, provided that the person gives the department written notice of the removal at least 30 days prior to disposal.

      (2) A person does not have to pay royalties to the state for the following uses of material, if the person provides at least 30 days’ written notice to the department of the intended use:

      (a) The filling of any property up to an elevation of one foot above the line of ordinary high water of a waterway by a state agency or political subdivision, as defined in ORS 271.005.

      (b) The material is used solely for a public purpose by a political subdivision, as defined in ORS 271.005.

      (3) A person may not remove any material from the place it was first deposited or use the material as an article of commerce without providing, prior to the removal of the material, written notification to the department and payment of any royalties for the material as determined by the department.

      (4) In addition to the purposes enumerated in subsection (1) of this section, any person may take material for the exclusive use of the person to the extent of not more than 50 cubic yards or the equivalent weight in tons in any one year. However, before taking the material, the person shall first notify the department.

      (5) Upon the removal of material from submersible or submerged lands not exempt from the payment of royalties, royalties in an amount established by the department must be paid to the department.

      (6) For purposes of this section:

      (a) “Article of commerce” means any material, other than material used for upland disposal or contaminated material put to beneficial use, that is bought, sold or exchanged in any manner for goods or services and that otherwise would have to be acquired from alternative sources.

      (b) “Reclaiming land” means raising the elevation of a portion of land within a 100-year floodplain to not more than one foot of elevation higher than the highest elevation of the 100-year floodplain, or protecting land otherwise in the 100-year floodplain by the construction of dikes or other flood control improvements. [Amended by 1961 c.149 §1; 1961 c.676 §5; 1967 c.421 §146; 1969 c.594 §44; 1971 c.509 §3; 1981 c.787 §53; 2003 c.465 §1]

 

      274.560 Lease terms; bond or security; option to lease or purchase forbidden; monthly reports and payments; rules. (1) The Department of State Lands may enter into contract of lease for purposes of ORS 274.525 to 274.590 with such stipulations protecting the interest of the state as the department may require, and may require a bond with a surety company authorized to transact a surety business in this state, as surety, or other form of security, to be given by the lessee for performance of such stipulations, and providing for forfeiture for nonpayment or failure to operate under the contract. No contract shall be entered into giving any person an option of leasing or purchasing the property of the State of Oregon. The lessee in all such contracts shall report monthly to the department the amount of material taken under the contract and pay to the department the amount of royalty thereon provided in the contract.

      (2) The department shall adopt rules to establish criteria to determine when security is required. [Amended by 1965 c.375 §1; 1967 c.421 §147; 1969 c.594 §45; 1991 c.264 §1]

 

      274.570 [Amended by 1967 c.421 §106; renumbered 274.035]

 

      274.580 [Amended by 1961 c.509 §4; 1967 c.421 §46; renumbered 273.231]

 

      274.590 Cooperation with Washington authorities respecting removal of material from bed of Columbia River. The Department of State Lands shall cooperate with the proper authorities of the State of Washington in contracting for, receiving and collecting royalties or other revenues for the taking of material from the submersible and submerged lands of the Columbia River and enter into such agreements as may be advisable or necessary with such officers of the State of Washington for the division of such royalties. [Amended by 1967 c.421 §148]

 

      274.600 [Amended by 1967 c.33 §1; 1967 c.421 §47; 1967 c.567 §16; renumbered 273.235]

 

      274.605 [Amended by 1967 c.421 §48; renumbered 273.241]

 

EXPLORATION FOR MINERALS

 

      274.610 Contracts for exploration for hard minerals prohibited; scientific research not prohibited. (1) The Department of State Lands shall not enter into contracts for governmental or private development or exploration for hard minerals on state-owned submersible and submerged lands within the territorial sea and navigable bays that are subject to the jurisdiction of the department.

      (2) Nothing in this section shall be considered to prohibit scientific research conducted by or on behalf of an academic institution or a government agency.

      (3) As used in subsection (1) of this section, “hard minerals” includes but is not limited to natural deposits or mineral sources of gold, silver, copper, lead, iron, manganese, silica, chrome, platinum, tungsten and zirconium. “Hard minerals” does not include oil, gas or sulphur deposits subject to ORS 274.705 to 274.860.

      (4) As used in this section:

      (a) “Exploration” means any activity the principal purpose of which is to define, characterize or evaluate hard mineral deposits for possible commercial development or production.

      (b) “Scientific research” means any activity the principal purpose of which is to improve scientific or technical understanding of earth, ocean or atmospheric processes, hazards and resources and for which the data generated are nonproprietary or public. [1991 c.217 §1]