It Is Time For Oregon To Define Its Public Trust Duties
By Olivier Jamin, a 2L at Lewis & Clark Law School, where he is the Online Journal Editor for Environmental Law.
The public trust doctrine (PTD) is a concept under which states have the duty to preserve certain natural and cultural resources for the benefit of the public. The PTD is a common law doctrine, and state courts around the country have spent the last three decades applying — and in some cases rejecting — it to a variety of natural resources. For example, the New Jersey Supreme Court applied the PTD to beaches and shores, the California Supreme Court applied it to navigable streams and their tributaries, and the U.S. Supreme Court has held that states own fish and game within their borders on behalf of their citizens, a position followed by many states. However, the most traditional application of the PTD has been to tidal and submerged lands. Oregon has been slow to develop its application of the PTD, as illustrates the lack of case law. Professor Blumm explains that although Oregon courts have repeatedly announced broad public rights in all waters of the state, the courts have not addressed the PTD since 1979. Last year however, the PTD was the topic of a circuit court opinion in Lane County that could mandate the Oregon Supreme Court to define precisely the extent of the doctrine in the state. The decision is highly controversial as it constitutes one of the most restrictive approach to the PTD, as to its scope and duties. The plaintiffs, Kelsey Juliana and Olivia Chernaik, represented by Our Children’s Trust, a non-profit organization advocating for greater reduction of CO2 emissions, appealed the decision last summer, gathering support from local law professors. Because the decision gave an erroneous overview of the PTD in Oregon, the court of appeals, and possibly the Supreme Court should seize on this opportunity to clarify the scope of the doctrine in the state.
II. Summary of the decision
The case dates back to 2011, when Plaintiffs (children and their families living in Oregon) filed an Amended Complaint for Declaratory Judgment and Equitable Relief against the State of Oregon and Governor Kitzhaber. Plaintiffs alleged their personal welfare and wellbeing were directly dependent upon the state’s natural resources, including water resources, submersible lands, coastal lands, forests, wildlife, and the atmosphere. According to the plaintiffs, these resources were being threatened by the state’s failure to regulate climate change and enforce adequate limitations on the levels of greenhouse gas emissions. They sought a declaration that “the atmosphere is a part of the public trust res and is therefore held in trust by the State for the benefit of the present and future citizens of Oregon.” Plaintiffs also sought an order to force the state to implement a plan to reduce greenhouse gas emissions.
In October 2011, Defendants filed a motion to dismiss for lack of subject matter jurisdiction. The Lane County circuit court granted the motion. Plaintiffs appealed in July 2012, and the Court of Appeals reversed and remanded the case in June 2014. The Court of Appeals held the Plaintiffs were
entitled to a judicial declaration of whether, as they allege, the atmosphere ‘is a trust resource’ that ‘the State of Oregon, as a trustee, has a fiduciary obligation to protect . . . from the impacts of climate change,’ and whether the other natural resources identified in plaintiffs’ complaint also ‘are trust resources’ that the state has a fiduciary obligation to protect.
On remand, the court’s opinion and order provided a thorough overview of the PTD in Oregon and explained that the doctrine “is a matter of state law, subject to the federal power to regulate navigation under the Commerce Clause and admiralty power.” The court’s opinion and order analyzed the scope of the PTD (i.e., the resources to which it applies), the state’s duties are under the PTD, and the applicable remedies where the state fails to carry out those duties.
B. The Scope of the Public Trust Doctrine
The parties and the court agreed that “submerged and submersible lands are encompassed by the public trust doctrine, according to case law.”
The court rejected Plaintiffs’ argument that “waters of the state” are encompassed by the public trust doctrine. According to the court, the public trust doctrine finds its source on the title transferred to the State of Oregon upon its admission to the Union, and the title transferred to the state was burdened with a public trust. The court argued that “unlike submerged and submersible lands, title to navigable waters themselves did not pass to the State.”
Similarly, the court rejected Plaintiffs’ argument that “beaches and shorelands” are encompassed by the PTD. The court relied on the absence of case law recognizing such a trust in Oregon, explaining that “Oregon’s public trust doctrine has not traditionally incorporated lands adjacent to but not underlying navigable waters.”
Plaintiffs’ argument that the PTD encompasses “fish and wildlife” was also rejected. The court acknowledged that the protection of such resource was under the state’s police power authority, but concluded that courts “have always treated the public trust doctrine as distinct from the State’s police power authority.” Accordingly, the PTD does not apply to “fish and wildlife.”
Finally, regarding the atmosphere, the court questioned whether the atmosphere is a “natural resource.” However, the court concluded that, even if the atmosphere were a natural resource, the PTD would not apply to it. Again, the court relied on the fact that “[u]nlike submerged and submersible lands . . . the State has not been granted title to the atmosphere” and that the atmosphere is not “exhaustible and irreplaceable” in nature. The court then addressed the state’s obligations and duties under the PTD.
C. The State’s Duties Under the Public Trust Doctrine
Although plaintiffs alleged in their complaint that the state has a fiduciary obligation to protect the atmosphere and other natural resources covered by the public trust from impairment, the court interpreted the state’s duties under the PTD more narrowly. The court held that the public trust doctrine merely prevents the state “from entirely alienating submerged and submersible lands under navigable waters.” To support this holding, the court relied on Morse v. Oregon Division of State Lands. There, the Supreme Court of Oregon held that the state has sovereignty over submerged and submersible lands and a right to use or dispose of any portion thereof, “when that can be done without substantial impairment of the interest of the public in such waters.” Although it is true that Oregon has not clearly recognized a fiduciary obligation to protect natural resources encompassed by the public trust, the court’s definition of the state’s duties seems narrower than the holding of Morse. Specifically, the court in Morse did recognize that “the severe restriction upon the power of the state as trustee to modify water resources is predicated not only upon the importance of the public use of such waters and lands, but upon the exhaustible and irreplaceable nature of the resources and its fundamental importance to our society and to our environment.” The language used in Morse seems to go further than a simple restriction on alienation.
D. The Remedy for a State’s Failure to Fulfill its Public Trust Duties
Regarding remedies, Plaintiffs asked the court to declare that Defendants have failed to protect the atmosphere from climate change, and to compel Defendants to address the impact of climate change by reducing GHG emissions in a specific amount over an established timeframe. The court concluded the remedies sought by Plaintiffs would have intruded on the separation of powers. The court explained: “whether the court thinks global warming is or is not a problem and whether the court believes the legislature’s GHG emission goals are too weak, too stringent, or are altogether unnecessary is beside the point. These determinations are not judicial functions. They are legislative functions.” The court concluded that providing relief beyond a declaratory judgment as to the scope of the public trust doctrine and the state’s duties under the doctrine would violate the separation of powers doctrine. According to the court, even if it were to declare that the PTD imposed new obligations on the state, the declaration itself would provide a sufficient remedy. That is, once the new duties were declared, the court would simply assume that the state would comply with the new law, without need for further remedies.
II. The Decision Misunderstood the Public Trust Doctrine.
The heart of the case was to decide whether the PTD applied to the atmosphere in Oregon and if so, what duties fell upon the state to protect it. Additionally, Plaintiffs asked the court to recognize water resources, navigable waters, submerged and submersible lands, islands, shore lands, coastal areas, wildlife and fish as trust resources. The court took a very narrow approach regarding the scope, the state’s duties, and the remedy under the PTD. The court provided very limited analysis to support some of its conclusions, and in many instances, relied only on the fact that no Oregon court had previously recognized a specific resource as being subject to the PTD. However, the absence of a previous Oregon case on point does not necessarily mean the PTD is as narrow as the court concluded. Particularly, the court’s conclusion that the waters of the state and beaches and shorelands are not subject to the PTD is questionable to say the least. The justification that the atmosphere is not a trust resource because it is not “exhaustible and irreplaceable” in nature is a point that will be addressed on appeal.
Most coastal states have held that the PTD applies to beaches, and the reasoning of the court, that “Oregon cases have not clearly recognized it,” is not a strong one. In New Jersey for example, courts have recognize that the PTD applies to beaches, and that the “public must be given both access to and use of privately-owned dry sand areas as reasonably necessary.” In California, courts have long recognized that the PTD “protects navigable waters from harm caused by diversion of nonnavigable tributaries,” and that it is an “affirmation of the duty of the state to protect the people’s common heritage” of these waters. The decision, however, does not mean that there is no public access to the Oregon coast, since the Oregon Supreme Court recognized such access, but based on the doctrine of custom.
Similarly, when analyzing the state’s duties under the public trust doctrine, the court might have taken an unnecessary narrow stance by limiting them to a “restraint from entirely alienating submerged and submersible lands under navigable waters.” The Court of Appeals of Oregon held that “that doctrine provides that submerged and submersible lands are preserved for public use in navigation, fishing and recreation. The state, as trustee for the people, bears the responsibility of preserving and protecting the right of the public to the use of the waters for those purposes.” It seems that although it is not clear what affirmative duties the Court of Appeals imposed on the state in that case, it goes further than a restraint for complete alienation.
Our Children’s Trust released a press article immediately after the decision, criticizing the judgment. Michael Blumm, professor of law at Lewis and Clark Law School, was quoted in the press release:
The decision handed down today is a crabbed interpretation of the state’s public trust doctrine. Judge Rasmussen’s opinion is founded on erroneous notions of the state’s fiduciary responsibilities for natural resources it clearly owns in a sovereign capacity, like water and fish and wildlife. Moreover, the opinion’s questioning of whether the atmosphere is a natural resource because the state doesn’t hold title to the air – allegedly due to the fact that the atmosphere is not a tradable commodity – ignores the fact that pollution rights in the atmosphere are indeed traded every day under several programs, including those regulating acid rain, nitrogen oxide, and interstate emissions. One hopes that the Court of Appeals will once again correct Judge Rasmussen’s errors.
Counsel for Plaintiffs already appealed the decision, and the case should be decided during the fall of 2016. The court’s decision to reach a very narrow interpretation of the scope and duties of the PTD makes the opinion vulnerable to another reversal (or partial reversal) by the Oregon Court of Appeals. The decision that “waters of the state” and “beaches and coastal lands” are not protected is particularly vulnerable, as well as the restrictive view of the state’s duties under the PTD. Given the fundamental role that the PTD plays in the protection of our natural resources, environmental groups in Oregon should pay special attention to what the court of appeals will say about this case. Beyond these environmental concerns, the Oregon courts should seize on the opportunity offered to them to finally clarify and delimitate the scope of the PTD and the state’s duties under the doctrine.
 The late Joseph L. Sax, the most influential public trust doctrine scholar, is often celebrated for shedding light on the PTD. Joseph L. Sax, The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention, 68 Mich. L. Rev. 471 (1970).
 Richard M. Frank, The Public Trust Doctrine: Assessing Its Recent Past & Charting Its Future, 45 U.C.D. L. Rev. 665, 671 (2012).
 Matthews v. Bay Head Improvement Ass’n, 471 A.2d 355 (N.J. 1984)
 Nat’l Audubon Soc’y v. Superior Court, 658 P.2d 709 (Cal. 1983) [hereinafter Mono Lake].
 Geer v. Connecticut, 161 U.S. 519, 529 (1896).
 Ex parte Maier, 37 P. 402, 404 (Cal. 1894); Owichek v. State Guide Licensing Bd., 763 P.2d 488, 495-496 (Alaska 1988); Wade v. Kraemer, 459 N.E.2d 1025, 1027-29 (Ill. App. Ct. 1984); Commonwealth v. Alger, 61 Mass. 53, 98 (1851).
 Frank, supra note 2.
 Michael C. Blumm & Erika Doot, Oregon’s Public trust Doctrine: Public Rights in Waters, Wildlife, and Beaches, 42 Envt’l L. 375, 378 (2012).
 Id. at 377, n. 7; Morse v. Or. Div. of State Lands, 590 P.2d 709, 713–14 (Or. 1979).
 Chernaik v. Brown, Case No. 16-11-09273 (Or. Lane County, May 11, 2015), available at https://ourchildrenstrust.org/sites/default/files/15.05.11.OregonCircuitCtOpinion.pdf.
 Our Children’s Trust, Oregon Youth File Critical Appeal In Their Climate Change Lawsuit, July 7, 2015, available at http://ourchildrenstrust.org/sites/default/files/15.07.07OregonAppealPR.pdf.
 Michael C. Blumm, Mary C. Wood & Steven M. Thiel, The Oregon Public Trust Doctrine and Atmospheric Greenhouse Gas Pollution: A Law Professors’ Amicus Brief, Feb. 1, 2016, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2720012.
 Amended Complaint for Declaratory Judgment and Equitable Relief, Chernaik v. Kitzbhaber, Case No. 16-11-09273, May 19, 2011.
 Id. at 2.
 Id. at 15.
 Chernaik v. Kitzhaber, 263 Or App 463, 481 (2014).
 Chernaik v. Brown, at 8.
 Id. (citing Cook v. Dabney, 70 Or 529, 532 (1914)).
 Id. at 9.
 Id. at 10.
 Id. at 10–11.
 Id. at 11–12.
 Id. at 13.
 285 Or 197 (1979)
 Id. at 201–02.
 Morse v.Oregon Division of State Lands, 34 Or. App. 853, 859–60 (1978).
 Chernaik v. Brown, at 15.
 Id. at 17.
 Id. at 13, n. 10.
 See Blumm, Wood & Thiel, supra note 12.
 Matthews, 471 A.2d at 365.
 Mono Lake, 658 P.2d at 721.
 Id. at 724.
 State ex rel. Thornton v. Hay, 254 Or 584 (1969). Oregon statutes also recognize access to the beach.
 Oregon Shores Conservation Coalition v. Oregon Fish and Wildlife Com’n, 62 Or App 481, 493 (1983).
 Our Children’s Trust, Court Questions Whether Atmosphere is a “Natural Resource”, May 11, 2015, available at http://ourchildrenstrust.org/sites/default/files/2015.05.11OregonDecisionPR.pdf.
 Our Children’s Trust, Oregon Youth File Critical Appeal in Their Climate Change Lawsuit, July 7, 2015, available at http://ourchildrenstrust.org/sites/default/files/15.07.07OregonAppealPR.pdf.