Judge advances fight for right to Willamette River recreation
EUGENE, Ore. (CN) — A civil rights lawsuit challenging Oregon’s rules for boating on the Willamette River inched forward Friday after a federal judge denied the state’s motion to dismiss the case.
The peculiar civil rights case emerged in March 2023 in response to the Oregon Marine Board’s enforcement of Senate Bill 1589, a law passed in 2022 that amends existing regulations for recreational boating activities along a 28-mile stretch of the Willamette River from the Willamette Falls to the mouth of the Yamhill River.
In 2019, Oregon legislators designated the stretch of river as the “Newberg Pool Congested Zone” with House Bill 2352, which created a towed watersports program within the state marine board and an endorsement requirement for boaters engaged in wakeboarding and wake surfing on this portion of the river.
From there, the marine board created a rule that boats qualifying for a towed watersports motorboat certificate could not exceed a loading weight of 10,000 pounds and defined wake surfing as a permitted activity under its towed watersports program.
But the rules changed in 2022 with the passage of Senate Bill 1589, which amended the marine board’s program to exclude wake surfing from the definition of “towed watersports” while lowering the maximum weight of certifiable boats to 5,500 pounds. The amendments also prohibited wake surfing outright along with any “devices or individuals” that increase wakes on the Newberg Pool.
While significantly lower than before, the bill’s new weight limit is 1,000 pounds higher than one proposed through two House bills in 2021. Those proposed amendments, like the initial and subsequent regulations, sought to prevent wake waves from causing shoreline erosion and silt buildup in fish habitats.
Nonetheless, SB 1589 prompted the Oregon nonprofit Boaters Rights Association to sue Oregon Department of Fish and Wildlife director Curt Melcher and five other marine board officials last spring, claiming that enforcing the new regulations violates their civil rights under the Federal Aid in Sport Fishing Restoration Act of 1950.
The federal law — also called the Dingell-Johnson Act — funds state agencies for projects that improve and maintain sport fishery resources while enhancing access to boating facilities and aquatic education programs.
“One of the act’s purposes is to increase access to rivers, including the Willamette River, for recreational boating by providing federal funds to build and maintain boating facilities,” Boaters Rights say in the complaint. “All facilities funded by the act must be available to all recreational boaters.”
The Newberg Pool’s funded facilities include those at Boones Ferry Marina, Hebb Park and Rodger’s Landing. According to the complaint, Melcher manages federal funds from the act, averaging $25 million annually, obligating him to provide equal access to recreational boaters for those funded facilities.
However, plaintiff Scott Putnam says that in 2022 he received a citation for engaging in towed watersports without displaying a towed watersport decal on his boat, which exceeded 5,500 pounds. Since then, he and his family no longer recreate on the river, which the Marion County resident says is the reason he purchased his home on the river.
Attorneys from the Oregon Department of Justice moved to dismiss the suit in July, arguing that the Dingell-Johnson Act does not guarantee an individual right under Section 1983 of Title 42 of the U.S. Code — a section that allows individuals to sue state government employees for depriving them of existing civil rights in an official capacity.
The state also sought to dismiss claims against Melcher, asserting that he has immunity under the 11th Amendment because he has no authority or responsibility to enforce Oregon law.
On Friday, U.S. Magistrate Judge Mustafa Kasubhai dismissed Melcher from the suit with prejudice. But after employing a test from the U.S. Supreme Court case Blessing v. Freestone, Kasubhai was less convinced that Congress did not intend to confer an enforceable right under Section 1983.
Kasubhai noted the Blessing test determines Congress’ intent by considering whether a statute is intended to benefit the class of plaintiffs, that a statute provides clear and enforceable standards and that it is mandatory, not precatory, in nature.
“Because all three prongs of the Blessing test are satisfied, plaintiffs’ asserted right is presumptively enforceable through § 1983,” Kasubhai wrote, adding that the plaintiffs’ enforceable right is unrebutted and that the act “confers recreational boaters with the enforceable right under §1983 to access the Newberg Pool for specified recreational purposes.”
From there, Kasubhai determined that the plaintiffs had brought a plausible violation of their right to boat and wake surf.
“Because the state law prohibits plaintiffs from wake surfing and engaging in other recreational boating activities in the Newberg Pool, plaintiffs have plausibly alleged that the state law violates plaintiffs’ right, conferred under the act, to use federally funded facilities to access waterways for specified recreational purposes,” Kasubhai wrote. “Defendants are not entitled to dismissal of the case pursuant to Fed. R. Civ. P. 12(b)(6).”
Kasubhai ordered attorneys for the remaining marine board defendants to file an answer by Feb. 7 and will oversee a Rule 16 conference on Valentine’s Day.
Attorneys for the plaintiffs and state officials did not immediately respond to a request for comment.