Establishing a Legal Guardian to Protect Public Rights in Oregon's Natural Resources After the Kramer and Chernaik Decisions

Document Type

Article

Publication Title

Environmental Law

Version

pre-publication

Journal Abbreviation

Env’t L.

Abstract

Oregon’s public trust doctrine historically included both traditionally navigable-in-title as well as navigable-in-fact waters. However, in 2005, the Oregon Attorney General issued an opinion that drastically limited the scope of the public trust doctrine to include only to navigable-in-title waters, thereby reducing the state’s fiduciary obligations under the public trust doctrine by creating the so-called “public use” doctrine. In the wake of that opinion, in two high-profile cases the state proceeded to deny state trust protection to a 400-acre navigable lake and to the atmosphere. The state has consistently denied it has any fiduciary obligations for the only trust resources it acknowledges—navigable-in-title waters and the underlying submerged lands. The attorney general’s 2005 opinion, denying of public trust protection to waterbodies underlying private submerged lands, has created what is likely among the narrowest of public trust obligations in the United States, and one completely out of step with public trust developments abroad.

The role of the attorney general in denying public trust obligations that are widely recognized elsewhere is the result of a conflict of interest: defending state agencies eschewing trust responsibilities to public beneficiaries. A potential solution to this conflict, evident in these two recent decisions, was offered over a decade ago. In 2012, the Oregon State Bar Section on Sustainable Future proposed the creation of the Office of the Legal Guardian to monitor and act as an advisor for the state’s public trust resources. Building on that 2012 proposal, as well as the experiences of New Jersey’s comparable former Department of the Public Advocate, this article offers suggestions for establishing a Legal Guardian in Oregon today. The result, we maintain, would not only eliminate the attorney general’s ongoing conflict of interest, but would give the Oregon public an unbiased advocate to protect important resources to which the state has denied trust protection.

First Page

1

Last Page

39

Publication Date

2024

Comments

The page numbering in this pre-publication version differs from the final published article.

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