The Public Trust Doctrine

The Public Trust Doctrine

Joseph L. Sax, the leading scholar of the 20^th century on the Public Trust Doctrine wrote in 1970:

“Private citizens, no longer willing to accede to the efforts of administrative agencies to protect the public interest, have begun to take the initiative themselves.”ⁱ

Mary C. Wood, the leading scholar of the 21^st century on the Public Trust Doctrine explains in 2014 why:

“Environmental law has failed us all. As ecosystems collapse across the globe and the climate crisis intensifies, environmental agencies worldwide use their authority to permit the very harm that they are supposed to prevent. Growing numbers of citizens now realize they must act before it is too late…An ancient and enduring principle, the trust doctrine asserts public property rights to crucial resources. Its core logic compels government, as trustee, to protect natural inheritance such as air and water for all humanity.”ⁱⁱ

Regarding the Public Trust Doctrine, Sax writes:

The approach with the greatest historical support holds that certain interests are so intrinsically important to every citizen that their free availability tends to mark the society as one of citizens rather than of serfs. It is thought that, to protect those rights, it is necessary to be especially wary lest any particular individual or group acquire the power to control them.

An allied principle holds that certain interests are so particularly the gifts of nature’s bounty that they ought to be reserved for the whole of the populace.ⁱⁱⁱ

Going back over 2,000 years, monarchs and governments have used their power to declare that navigable waters and fisheries shall be held in trust for the public benefit. This meant protecting, preserving and conserving the natural phenomena not only for human use, but also protecting it for the welfare of the flora and fauna too because that was also in the public benefit.

Over time, the concept of the Public Trust Doctrine has evolved to include shorelines, non-navigable tributaries that feed into navigable waters, protected lands, and “public values related to recreation, scenic value, the scientific study of the natural ecology, and environmental protection.”^iv

Now, the public has demanded that Oregon include the atmosphere as a natural phenomena trustees of the state (elected and appointed officials) must hold in the public trust.

In Chernaik v. Brown in the Supreme Court of Oregon, the court summarized the plaintiffs’ concerns, saying:

…that the state was required to act as a trustee under the public trust doctrine to protect various natural resources in Oregon from substantial impairment…Among other things, plaintiffs asked the circuit court to specify the natural resources protected by the public trust doctrine and to declare that the state has a fiduciary duty, which it breached, to prevent substantial impairment of those resources…

…plaintiffs assert first that, as a matter of common law, the public trust doctrine is not fixed and, indeed, that it must evolve to address the undisputed circumstances presented, namely, that climate change is damaging Oregon’s natural resources. They argue that the doctrine is not limited to the natural resources that the circuit court identified and, indeed, that the doctrine should cover other natural resources beyond those that have been traditionally protected.

The judges in Chernaik v. Brown rejected the plaintiff’s cause, saying [emphasis added]:

We hold that the public trust doctrine currently encompasses navigable waters and the submerged and submersible lands underlying those waters. Although the public trust is capable of expanding to include more natural resources, we do not extend the doctrine to encompass other natural resources at this time.^v

The judges affirmed the fact that the Public Trust can and will incorporate more natural phenomena as time goes by – they had to acknowledge this common historical fact. Ostensibly, their reason for such expansion of what is held in the public trust would result from the degradation of natural phenomena, not the intrinsic and inherent value prior to the destruction. Theirs is an untenable legal position since the Public Trust Doctrine has always been upheld to protect natural phenomena to prevent its destruction, not to clean up or mitigate the mess afterwards. Our task as citizens is to press for protection as the children plaintiffs did in Chernaik v. Brown.

The case was a hard fought loss for the children who contested Governor Kate Brown’s steely position that is best summarized by the judges, who ruled:

We also decline, in this case, to adopt plaintiffs’ position that, under the public trust doctrine, the state has the same fiduciary duties that a trustee of a common-law private trust would have, such as a duty to prevent substantial impairment of trust resources.^vi

This arbitrary declaration is astonishing for its cruelty and brazen offense to the common sense that other states’ hold on the matter. For example, California judges said about Water in 1983:

The public trust is more than an affirmation of state power to use public property for public purposes. It is an affirmation of the duty of the state to protect the people’s common heritage of streams, lakes, marshlands and tidelands, surrendering that right of protection only in rare cases when the abandonment of that right is consistent with the purposes of the trust.^vii

How is it possible for Oregon – its Supreme Court judges and governor – to be so regressive compared to California? What is their reason for rejecting such Common Law that “under the public trust doctrine, the state has the same fiduciary duties that a trustee of a common-law private trust would have, such as a duty to prevent substantial impairment of trust resources?” What and who, exactly, are they protecting when it is clear they are not protecting the natural phenomena as other states do? Recall Joseph Sax’s admonition: “to protect those rights, it is necessary to be especially wary lest any particular individual or group acquire the power to control them.“

The Public Trust Doctrine calls on us to answer these questions. We must press our question why our trustees reject their fiduciary “duty to prevent substantial impairment of trust resources.” In so doing, we will hold our trustees accountable to get on board with the public – our welfare, health, safety – all in service of the public interest and benefit.

Regressive attitudes as held by our state trustees have effectively scared away Water, and so now we have Water Scarcity. The closest to Water we’ll ever get is our own bodies. Water lives in us all. How we treat Water is how we treat ourselves and each other. We are Water. What our elected and appointed state officials do to Water, they do to us.

We must demand that our state trustees do a better job holding our natural phenomena in the public trust…and that includes our atmosphere, rivers and groundwater, forests, and shorelines.

Endnotes:

iJoseph L. Sax, The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention, 68 MICH .

L. REV . 471 (1970). Pg. 473 Available at: https://repository.law.umich.edu/mlr/vol68/iss3/3

iiMary Christina Wood. Nature’s Trust: Environmental Law for a New Ecological Age. United Kingdom: Cambridge University Press, 2014. Front page – Abstract Summary.

iiiSax, supra note 1 at 484.

ivL.H. Miike, The Waiāhole Ditch: a case study of the management and regulation of water resources in Hawai’i, WIT Transactions on State of the Art in Science and Engineering, Vol 33, © 2008 WIT Press. Pg. 384

vChernaik v. Brown, 367 Or. 143 (2020) Pg. 147.

viIbid, 148.

viiNational Audubon Society v. Superior Court (1983)