OAR 141-123-0020
General Provisions
(1)
Pursuant to Article VIII, Section 5(2) of the Oregon Constitution, the State Land Board, through the Department, has a constitutional responsibility to manage all land (Trust and Non-Trust) under its jurisdiction “with the object of obtaining the greatest benefit for the people of this state, consistent with the conservation of this resource under sound techniques of land management.”(2) The Department shall follow the guiding principles and resource-specific management prescriptions contained in the Real Estate Asset Management Plan, and consider the comments received from federal, state, and local governments and interested persons when determining whether to authorize or condition an easement on state-owned land.
(3) All tidally influenced and title navigable waterways (referred to as state-owned submerged and submersible land) have been placed by the Oregon State Legislature under the jurisdiction of the State Land Board and the Department, as the administrative arm of the State Land Board.
(4) All references in these rules to “state-owned submerged and submersible land” include state-owned submerged lands or submersible lands or both.
(5) State-owned submerged and submersible land is managed to ensure the collective rights of the public to fully use and enjoy this resource for commerce, navigation, fishing, recreation, and other public trust values. These rights are collectively referred to as “public trust rights”.
(6) All uses of state-owned land must conform to applicable local (including local comprehensive land use planning and zoning ordinance requirements), state and federal laws.
(7) No applicant or grantee is allowed to request from any government agency a change in the zoning for, or approved uses of, state-owned land without first applying to and receiving written approval from the Department.
(8) The Department shall not grant an easement if:
(a) As a result of its circulation for public comment of the application for easement as described in OAR 141-123-0050 (Easement Application Review and Approval Process)(4) it determines that the proposed use or development would unreasonably impact use or developments proposed or already in place within the requested area; or
(b) If the proposed use or development is inconsistent with local, state, or federal laws; or
(c) If the proposed use or development is inconsistent with these rules; or
(d) If the proposed use or development has unacceptable impacts on public health, safety or welfare, or would result in the loss of, or damage to natural, historical, cultural or archaeological resources, as determined by the Department; or
(e) If the proposed use or development is prohibited by a State Land Board or Department-adopted area closure, use restriction, or area management plan (such as the Lower Willamette River Management Plan; or a Total Maximum Daily Load Implementation Plan); or
(f) If the proposed use or development is inconsistent with any endangered species management plan adopted by the Department under the Oregon Endangered Species Act (ORS 496.171 (Definitions for ORS 496.171 to 496.182) to 496.192 (Effect of law on commercial forestland or other private land)).
(9) The Department may, at its discretion, deny an easement if the applicant’s financial status or past business practices, or both, indicate that the applicant may not:
(a) Be able to fully meet the terms and conditions of an easement offered by the Department; or
(b) Use the land applied for in a way that meets the provisions of OAR 141-123-0020 (General Provisions).
(10) The Department may, at its discretion, deny an easement if the applicant is out of compliance with the terms and conditions of any previous authorization issued, or is subject to any enforcement or corrective action, by the Department.
(11) The Department shall:
(a) Recognize all valid easements of record on land acquired by the Department as disclosed at the time of acquisition; and
(b) Honor any renewal provisions contained in existing valid easements granted by the Department if the Holder of the easement has complied with all terms and conditions of the easement and applies to the Department for a new easement as prescribed in these rules.
(12) Except as provided in OAR 141-123-0010 (Purpose and Applicability)(4) and OAR 141-123-0100 (Easements for Structures and Facilities Necessary for the Use of Water)(2), any person wanting to use or place a development on state-owned land subject to an easement must obtain a written authorization in the form of an easement from the Department prior to beginning the use or placing the development. Additionally, an easement is required for any use or development that encroaches on state-owned land regardless of its height above or below, or manner of crossing the state-owned land.
(13) Unless otherwise exempt by these rules, each individual use of, or development placed on, state-owned land constitutes a separate discrete activity subject to:
(a) An easement specifically authorizing only that individual use or development; and
(b) Payment of compensation as required in these rules.
(14) An easement cannot be established on Department-managed land by adverse possession regardless of the length of time the use or development has been in existence.
(15) The Department may:
(a) Conduct field inspections to determine if the uses and developments in place on state-owned land are authorized by, or conform with, the terms and conditions of an easement and, if not;
(b) Pursue whatever remedies are available under law and OAR 141-123-0120 (Enforcement Actions; Civil Penalties and Other Remedies) to ensure that unauthorized uses subject to an easement on state-owned land are either brought into compliance with the requirements of these rules or removed.
Source:
Rule 141-123-0020 — General Provisions, https://secure.sos.state.or.us/oard/view.action?ruleNumber=141-123-0020.