public trust doctrine in Oregon

2020He continued, explaining that “[w]e attempted to put into the statute what 7 Paragraph (a) also specifies that “[w]hen the applicant for a fill permit is a public body, the director may accept and rely upon the public body’s findings as to local public need and local public benefit.” Id. 8 The circumstance of a “public use” for the proposed fill was important to the decision in Morse because the estuary was a body of water subject to the public trust doctrine, which limits the government’s ability to impair the public’s inter- est in the water. 285 Or at 201 . 9 We explained in Gaines that we

2019See Morse v. Oregon Division of State Lands , 285 Or. 197 , 203, 590 P.2d 709 (1979) (state not prohibited by the public-trust doctrine from granting permit for estuary fill for nonwater-related uses; "[t]here is no grant here to a private party which results in such substantial impairment to the public's interest as would be beyond the power of the legislature to authorize"); Cook v. Dabney , 70 Or. 529 , 532, 139 P. 721 (1914) (state had no right to convey property "in a manner and for a purpose which would act as a direct and permanent impediment to navigation"); Corvallis & Eastern R.

2019See, e.g. , PPL Montana, LLC v. Montana , 565 U.S. 576 , 603, 132 S.Ct. 1215 , 182 L.Ed.2d 77 (2012) (affirming that the doctrine is a matter of state law); Shively v. Bowlby , 152 U.S. 1 , 57-58, 14 S.Ct. 548 , 38 L.Ed. 331 (1894) (describing the nature and origin of the public-trust doctrine).

2019See, e.g. , PPL Montana, LLC v. Montana , 565 U.S. 576 , 603, 132 S.Ct. 1215 , 182 L.Ed.2d 77 (2012) (affirming that the doctrine is a matter of state law); Shively v. Bowlby , 152 U.S. 1 , 57-58, 14 S.Ct. 548 , 38 L.Ed. 331 (1894) (describing the nature and origin of the public-trust doctrine).

2020See Luscher v. Reynolds, 153 Or 625, 635 , 56 P2d 1158 (1936) (rejecting “navigability” test to determine what resources are protected by the public trust doctrine because “[t]here are hundreds of similar beautiful, small inland lakes in this state well adapted for recreational purposes, but which will never be used as highways of commerce in the ordinary acceptation of such terms”); Guilliams v. Beaver Lake Club, 90 174 Chernaik v. Brown trust doctrine to extend to more resources because it would not further core purpose of the doctrine); see also Kramer, 365 Or at 449 (explaining that the li

2020See Luscher v. Reynolds, 153 Or 625, 635 , 56 P2d 1158 (1936) (rejecting “navigability” test to determine what resources are protected by the public trust doctrine because “[t]here are hundreds of similar beautiful, small inland lakes in this state well adapted for recreational purposes, but which will never be used as highways of commerce in the ordinary acceptation of such terms”); Guilliams v. Beaver Lake Club, 90 174 Chernaik v. Brown trust doctrine to extend to more resources because it would not further core purpose of the doctrine); see also Kramer, 365 Or at 449 (explaining that the li

2020First, he argued that the state did not “permit” the public to use the lake, because—under both the public trust doctrine and the pub- lic use doctrine—the public already had “an absolute right to use—and recreate in—the lake.”1 (Emphasis in original.) Second, he argued that, even if the state did “permit” the 1 This court recently described those doctrines in Kramer v. City of Lake Oswego, 365 Or 422, 430 , 446 P3d 1 (2019), stating: “In Oregon, two related doctrines create a public right to use certain bodies of water, regardless of who owns the abutting upland.

2020First, he argued that the state did not “permit” the public to use the lake, because—under both the public trust doctrine and the pub- lic use doctrine—the public already had “an absolute right to use—and recreate in—the lake.”1 (Emphasis in original.) Second, he argued that, even if the state did “permit” the 1 This court recently described those doctrines in Kramer v. City of Lake Oswego, 365 Or 422, 430 , 446 P3d 1 (2019), stating: “In Oregon, two related doctrines create a public right to use certain bodies of water, regardless of who owns the abutting upland.

2020The state holds resources to which the public trust doctrine applies in “trust” for the public.3 See, e.g., Kramer, 365 Or at 438 (noting that “this court’s cases describe the public’s right in terms of the beneficial interest of one for whom land is held in ‘trust’ ”); Corvallis Sand & Gravel v. Land Board, 250 Or 319, 335-36 , 439 P2d 575 (1968) (explaining that state holds title to public trust resources but title is held “not in a proprietary capacity, but in its sov- ereign capacity, that is to say, as trustee for the public”).

2020The state holds resources to which the public trust doctrine applies in “trust” for the public.3 See, e.g., Kramer, 365 Or at 438 (noting that “this court’s cases describe the public’s right in terms of the beneficial interest of one for whom land is held in ‘trust’ ”); Corvallis Sand & Gravel v. Land Board, 250 Or 319, 335-36 , 439 P2d 575 (1968) (explaining that state holds title to public trust resources but title is held “not in a proprietary capacity, but in its sov- ereign capacity, that is to say, as trustee for the public”).

2020Although we have “long used the met- aphor of a trust to describe the state’s sovereign interest in wildlife,” id., and some similarities exist between the “wild- life trust” and the public trust doctrine, plaintiffs errone- ously conflate the use of the trust metaphor with a conclu- sion that fish and wildlife are natural resources that are protected by the public trust doctrine.

2020See, e.g., State v. Dickerson, 356 Or 822, 834-35 , 345 P3d 447 (2015) (explaining that the trust metaphor is used to describe the wildlife trust doctrine); Kramer, 365 Or at 437 n 12 (discussing Dickerson and noting that “water is not the only resources that the state holds in trust”).2 In fact, plaintiffs expressly state that “[w]hether or not [the public trust] obligation exactly mirrors the fiduciary roles under private trust law (including duties of loyalty and confi- dence) is not essential to the resolution of plaintiffs’ claims.” Instead, they “ask this court to declare that the public

2019Co. , 61 Or. at 372 , 121 P. 418 (rejecting argument that the state could convey title to tidelands only for a public benefit); Bowlby v. Shively , 22 Or. 410 , 427, 30 P. 154 (1892), aff'd , 152 U.S. 1 , 14 S.Ct. 548 , 38 L.Ed. 331 (1894) (state may dispose of tidelands in whatever manner it deems best, "subject only to the paramount right of navigation and the uses of commerce").

2017Co., 61 Or 359, 370, 372 , 121 P 418 (1912), the court upheld under the public-trust doctrine a grant of private rights in certain tidelands, observing that its opinion in Bowlby was “[t]he controlling precedent in this State” and rejecting the defendants’ argument that “the title that the State holds to its tidelands is incident to and a part of its sovereignty which cannot be surrendered or alienated, except for some public purpose, or any reasonable use for the public benefit.” In Cook , on the other hand, the court held that the public-trust doctrine voided the state’s conveyance of a port

2019Thus, we concluded that "the trial court erred by not entering declarations regarding whether , as plaintiffs allege, under the public trust doctrine: "• 'the atmosphere is a trust resource, and * * * the State of Oregon, as a trustee, has a fiduciary obligation to protect the atmosphere as a commonly shared public trust resource from the impacts of climate change for Plaintiffs and for present and future generations of Oregonians'; and "• 'water resources, navigable waters, submerged and submersible lands, islands, shorelands, coastal areas, wildlife, and fish are trust resources, and * * * t

2019Thus, we concluded that "the trial court erred by not entering declarations regarding whether , as plaintiffs allege, under the public trust doctrine: "• 'the atmosphere is a trust resource, and * * * the State of Oregon, as a trustee, has a fiduciary obligation to protect the atmosphere as a commonly shared public trust resource from the impacts of climate change for Plaintiffs and for present and future generations of Oregonians'; and "• 'water resources, navigable waters, submerged and submersible lands, islands, shorelands, coastal areas, wildlife, and fish are trust resources, and * * * t

2019In deciding cases based on the public-trust doctrine, Oregon courts have "focused on the extent to which the state can alienate the lands held in trust, or on the power of the state to regulate activity with respect to title-navigable waterways." Kramer , 285 Or.

2019App. at 203 , 203-04 , 395 P.3d 592 (discussing cases). 8 Thus, historically, the public-trust doctrine has served to place restraints on state action with respect to the lands it holds underlying navigable waterways to protect the recognized public uses in those waterways.

2020Co. v. State Tax Com., 156 Or 505, 511 , 62 P2d 7 (1936), cert den, 301 US 689 , 57 S Ct 793 , 81 L Ed 1346 (1937) (explaining that, “although title passed to the state by virtue of its sovereignty, its rights were merely those of a trustee for the public” and that the purpose of the trust doctrine was to ensure that the resources “remain public so that all persons may use them”); accord Idaho v. Coeur d’Alene Tribe of Idaho, 521 US 261, 285 , 117 S Ct 2028 , 138 L Ed 2d 438 (1997) (describing state’s duty under public trust doctrine as an “obligation to regulate, improve, and secure submerged

2020Co. v. State Tax Com., 156 Or 505, 511 , 62 P2d 7 (1936), cert den, 301 US 689 , 57 S Ct 793 , 81 L Ed 1346 (1937) (explaining that, “although title passed to the state by virtue of its sovereignty, its rights were merely those of a trustee for the public” and that the purpose of the trust doctrine was to ensure that the resources “remain public so that all persons may use them”); accord Idaho v. Coeur d’Alene Tribe of Idaho, 521 US 261, 285 , 117 S Ct 2028 , 138 L Ed 2d 438 (1997) (describing state’s duty under public trust doctrine as an “obligation to regulate, improve, and secure submerged

2020See, e.g., Nat’l Audubon Soc’y v. Superior Court, 33 Cal 3d 419, 437, 658 P2d 709 , cert den, 464 US 977 (1983) (in action to enjoin city water department from diverting water that would ultimately flow into Mono Lake, explaining that the public trust doc- trine in California “protects navigable waters from harm caused by diversion of nonnavigable tributaries”); Environmental Law Foundation v. State Water Resources Control Bd., 26 Cal App 5th 844, 859, 237 Cal Rptr 3d 393 (Cal Ct App 2018) (involving whether state agency had a duty under the public trust doctrine to regulate extractions of gro

2020See, e.g., Nat’l Audubon Soc’y v. Superior Court, 33 Cal 3d 419, 437, 658 P2d 709 , cert den, 464 US 977 (1983) (in action to enjoin city water department from diverting water that would ultimately flow into Mono Lake, explaining that the public trust doc- trine in California “protects navigable waters from harm caused by diversion of nonnavigable tributaries”); Environmental Law Foundation v. State Water Resources Control Bd., 26 Cal App 5th 844, 859, 237 Cal Rptr 3d 393 (Cal Ct App 2018) (involving whether state agency had a duty under the public trust doctrine to regulate extractions of gro

2020See, e.g., Nat’l Audubon Soc’y v. Superior Court, 33 Cal 3d 419, 437, 658 P2d 709 , cert den, 464 US 977 (1983) (in action to enjoin city water department from diverting water that would ultimately flow into Mono Lake, explaining that the public trust doc- trine in California “protects navigable waters from harm caused by diversion of nonnavigable tributaries”); Environmental Law Foundation v. State Water Resources Control Bd., 26 Cal App 5th 844, 859, 237 Cal Rptr 3d 393 (Cal Ct App 2018) (involving whether state agency had a duty under the public trust doctrine to regulate extractions of gro

2020See, e.g., Nat’l Audubon Soc’y v. Superior Court, 33 Cal 3d 419, 437, 658 P2d 709 , cert den, 464 US 977 (1983) (in action to enjoin city water department from diverting water that would ultimately flow into Mono Lake, explaining that the public trust doc- trine in California “protects navigable waters from harm caused by diversion of nonnavigable tributaries”); Environmental Law Foundation v. State Water Resources Control Bd., 26 Cal App 5th 844, 859, 237 Cal Rptr 3d 393 (Cal Ct App 2018) (involving whether state agency had a duty under the public trust doctrine to regulate extractions of gro

2020(CC 161109273) (CA A159826) (SC S066564) 475 P3d 68 Plaintiffs asserted that the Governor and the State of Oregon (the state) have, and have breached, a fiduciary duty under the public trust doctrine to protect a range of natural resources in Oregon, including the atmosphere, from substantial impairment caused by climate change.

2020After observing that the public trust doctrine has historically only prevented the state from “entirely alienating submerged and submersible lands under navigable waters,” the court determined that Cite as 367 Or 143 (2020) 153 the state does not have a fiduciary obligation under the pub- lic trust doctrine to protect public trust resources from the effects of climate change.