Practical Solutions to Business Puzzles

by Coleen Rutledge Davis
April 27, 1990

For Public Lands Law

Preface - May 2007

As this paper was written in 1990 when I was a third year law student, parts of it are out of date and will be updated in the future. Many of the historical documents would be difficult for others to locate so, for that reason, the paper is being posted in this blog.

The postings will be made in sections. This posting is the first of six that will make up the body of the paper.

Introduction

This paper is concerned with the Wild and Scenic Rivers Act of 1968, 16 U.S.C. section 1271 - 1287 (1988). This statute establishes a complex and highly variable management scheme. As a consequence, this paper will rely heavily on the paplication of the Wild and Scenic Rivers Act (the Act) to the Rogue River. In this way, the paper will be better able to provide a general understanding of the Act.

The author selected the Rogue River for this case study for four reasons. First, the author is familiar with the Rogue River and its administration under the Act. Second, the Rogue River has been administered under the Wild and Scenic Rivers Act since the Act was passed. Third, most of the administrative materials to which the author has access relate to the Rogue River. Finally, the lobbying efforts of visitors to and residents of the Rogue River area played a large part in the passage of the Wild and Scenic Rivers Act.

Under the Wild and Scenic Rivers Act, the history of a river is very important in determining how the river wil be administered. For that reasn, this paper will begin by introducing the Rogue River. It will then discuss the origins of the Act, the legislative history of the Act, and important provisions of the Act. From there, the paperw ill discuss management under the Act in both general and specific terms. Finally, the paper will consider issues that arise when a river is considered for designation under the Act.

The Rogue River

The Rogue River is a rapidly flowing stream that cuts a path through southwestern Oregon as it carries waters from Crater Lake to the Pacific Ocean. Along the way, the Rogue River passes through wide, open valleys, and deep narrow canyons. The River’s banks are lined with tree-covered slopes, granite cliffs, and sandy beaches. Along the Rogue River, wildlife is abundant and includes deer, black bear, beavers, otters, and Roosevelt elk. In the water, salmon, steelhead, sturgeon, and eels are found. Soaring above the River, pair of bald eagle, many blue herons, egrets, and buzzards are among the common sites.

Today, thousands of people visit the Rogue River annually. These visitors come from every state and many foreign countries. The Rogue River’s fame comes from its quality as a fishing stream, its natural scenic beauty, and its white-water boat trips.¹Visitors enjoy the River in up to three ways. Some enjoy the stillness of its deep canyons followed by the rushing of water over rapids as they float down the river in rafts, kayaks, and the like. Others walk in the paths of the pioneers and Indians on trails built more than 1o0 years ago. On parts of the Rogue River, powerboats provide access for visitors who cannot otherwise see the river (and for residents lacking road access).

Commercial boating on the Rogue River has a long history. As a small child, the author heard many stories about freight being poled upstream from Gold Beach to Agness about 1900. Beginning around 1930, motors began to be used on these boats. Today, motor boats are still used to haul groceries to lodges in the Wild Section.

Motorboats have been used in guiding and tours on the Rogue River for many years. These activities began before the Wild and Scenic Rivers Act was passed in 1968. Today, these uses continue and the public demand for these services has increased dramatically since the Rogue River was designated under the Act.

Commercial boating also involves the use of drift boats and rafts. The rafting is relatively new, but drift boats have long been used for fishing trips through the Rogue River Canyon.

The newest use of boats on the River involves the use of rafts for private purposes. The private recreational party is a development that has occurred since the 1960s. Private recreational parties are the result of increased publicity for the Rogue River, increased interest in outdoor recreation, and improvements in the quality and durability of materials used to construct the rafts.

Visitors to the Rogue Rvier see several residences from the water. Within the Rogue National Wild and Scenic River, a few small communities and several scattered lodges are located. The Agness Recreational Area provides a good example of this. The Agness Recreational Area includes the communities of both Agness and Illahe. The Area is eleven river-miles long on the Rogue River and three river-miles long on the Illinois River.

Most of the people residing in the confines of the Rogue National Wild and Scenic River are of Indian heritage. The Rogue River has a long history of Indian population. It may have been named by French fur trappers for the hostile Indians who lived along its banks.²Numerous artifacts ahve been found along the Rogue River.

In 1851, gold was discovered near the mouth of the Applegate River.³ With this discovery, minors came to the Rogue River. Although most of the river had placer mining for gold, very little evidence of that activity remains. The remaining signs consist primarily of extensive water trenches, some rusted mining equipment, and a few mining scars on the canyon walls.

Eighty-four miles of the Rogue River has been designated as a component of the National Wild and Scenic Rivers System (the System). The Rogue River is also impacted by the Wild and Scenic River designation of the Illinois River, one of its major tributaries. Other federal land management schemes are extremely important in understanding the Rogue National Wild and Scenic River. Since the Rogue River flows through Siskiyou National Forest, the management plan applicable to the forest is very important. In addition, part of the Wild Section of the Rogue River is included in the Wild Rogue Wilderness.⁴Aside from the management schemes developed for these resources, several species of both plants and animals are protected under the Endangered Species Act.⁵

Origins of the Wild and Scenic Rivers Act

In 1966, there was a strong possibility that the Rogue River would cease to exist in its then-existing condition. A proposal had been made to build a hydroelectric power plant and a dam at Copper Canyon. The proposal would have converted much of the Rogue River into a lake and raised water levels approximately 600 feet over eleven miles upstream from the project. In fact, the project would have given Grants Pass pool frontage and almost all the Rogue National Wild and Scenic River would have been covered with water. ⁶

People who relied on the River for their livelihood and recreation held a meeting at The Illahe Lodge, a fishing lodge owned by the author’s family. This meeting resulted in The Wild Rivers Committee of Oregon (of which the author’s grandfather was the first chairman).⁷ The Organization hoped to prevent the hydroelectric project by means of state legislation. When this was unsuccessful, the Organization and the Sierra Club joined forces to advocate federal legislation protecting the Rogue River. There were many amendments during the course of congressional debate, but the eventual result was the Wild and Scenic Rivers Act.

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Footnotes  for Part 1

1.  H.R. Rep. No. 1623, 90th Cong., 2d Sess. 6, reprinted in 1968 U.S. CODE CONG. & ADMIN NEWS 3801, 3805.

2.  Preliminary Draft, Development and Management Plan for Implementation of the Wild and Scenic Rivers Act, Bureau of Land Management 9 (1969).

3. See, Rogue National Wild and Scenic River - Revised Management Plan, 37 Fed. Reg. 13,408 (1972) [hereinafter Joint Management Plan].

4. Wilderness Act 16 U.S.C. sections 1131-1136 (1988).

5. Endangered Species Act, 16 U.S.C. sections 1531-1544 (1988).

6. Telephone interview with Ernest R. Rutledge, Owner of the Illahe Lodge (Agness, Oregon) (Feb. 25, 1990).

7. OREGON GUIDES & PACKERS, INC., HUNTING AND FISHING IN OREGON, 1969 - 1970, at inside front cover (1969).