Wednesday, September 14, 2011
Michael Blumm (Lewis & Clark) and Erika Doot (Lewis & Clark) have posted Oregon’s Public Trust Doctrine: Public Rights in Waters, Wildlife, and Beaches (Environmental Law Review) on SSRN:
Oregon’s public trust doctrine has been misunderstood. The doctrine has not been judicially interpreted in over thirty years but was the subject of an Oregon Attorney General’s opinion in 2005. That opinion interpreted the scope of the doctrine to be limited to the beds of tidelands and navigable-for-title waters and erected a separate “public use” doctrine protecting public rights in other waters, including recreational waters. However, since Oregon courts have never limited public rights in the state’s waters to those with publicly owned bedlands, the opinion should have recognized that the public trust doctrine provides broad public recreational rights in all waters. Indeed, since early statehood, Oregon courts and the legislature have recognized that water is publicly owned, and the Oregon Supreme Court has ruled consistently in favor of public rights in waterways, based on language in the Statehood Act that declared navigable waters to be public highways that would remain “forever free,” not monopolized by private owners. Moreover, in the early 20th century, the court explicitly ruled that the scope of public rights in publicly-owned waters could and should evolve over time.
This Article maintains that the Oregon public trust doctrine is grounded on public ownership of natural resources held in trust by the state in a sovereign capacity. The state has always claimed ownership of water and wildlife within the state, so the courts should recognize both as public trust resources. Although the state can authorize private rights in those resources, all private rights are subject to the state’s sovereign ownership – a public easement – requiring the state to maintain these resources as trustee for the public. Like the Statehood Act’s declaration of public ownership of waterways, courts should interpret the public trust doctrine to be implicit in other statutory declarations of public ownership of natural resources. Similarly, use rights in ocean beaches, claimed by the public under the doctrine of custom, are public trust resources, necessary to enable public use of the adjacent ocean waters. This Article suggests that public ancillary rights exist in other uplands where necessary to provide public access to, or preservation of, public trust water and wildlife resources.
Oregon’s public trust doctrine is not of mere academic interest. The doctrine imposes duties on the state as sovereign owner of water, wildlife, and ancillary uplands. In an era of widespread skepticism of government management, the venerable public trust doctrine seems an especially appropriate mechanism to give citizens an opportunity to gain review of government action and inaction threatening unsustainable development of natural resources that are central to the state’s identity, culture, and economy.