Oregon's Public Trust Doctrine: Public Rights in Waters, Wildlife, and Beaches

Article excerpt

  I. INTRODUCTION
 II. THE 2005 ATTORNEY GENERAL OPINION
III. PUBLIC WATER USE RIGHTS UNDER THE OREGON PTD
     A. Public Rights of Navigation, Fishing, and Commerce
     B. Public Recreational Rights
 IV. PUBLIC RIGHTS IN WATER, WILDLIFE, BEACHES, AND UPLANDS UNDER THE
     OREGON PTD
     A. Water Rights
     B. Wildlife
     C. Beaches and Uplands
  V. CONCLUSION

I. INTRODUCTION

The public trust doctrine (PTD) in Oregon has a long and venerable history, dating to numerous nineteenth and early twentieth century court decisions that consistently recognized public rights in navigable waters. (1) Shortly after statehood in 1859, Oregon courts acknowledged paramount public rights of navigation, fishing, and commerce in navigable-in-fact waterways, regardless of bed ownership." (2) Since 1918, the Oregon Supreme Court has recognized public rights to use all navigable-in-fact waters for recreational purposes, within the scope of commerce protected by the public navigation easement. (3) Oregon courts have consistently acknowledged broad public rights in state-owned natural resources, explaining that, like other common law doctrines, the PTD evolves as public uses change over time. (4)

Although the early Oregon Supreme Court did not employ the phrase "public trust doctrine'--the term was not widely used before Professor Joseph Sax published his influential article in 1970 (5)--many other states have recognized that public recreational uses are protected navigation rights under the PTD over the last forty years. (6) But there is little modern case law on the Oregon PTD, (7) giving rise to substantial questions about the extent of the doctrine and its effects on public and private rights in Oregon's natural resources. (8)

In 2005, after receiving a request from the state treasurer, the Attorney General (AG) issued an opinion on the scope of the Oregon PTD. (9) The lack of recent case law made it impossible for the AG to resolve definitively several questions about the relationship between public use rights and riparian landowner rights. (10) For example, the AG was unable to offer guidance as to whether the public may use the beds of all navigable-in-fact waters to the ordinary high water mark for recreational purposes ancillary to public navigation rights, or whether the public may cross private uplands when necessary to access navigable waters. (11) The AG did not limit public recreational rights to use state-owned submerged lands under navigable-for-title waters (12)--but he provided little clarification on the scope of public rights to use beds that may be privately owned when navigating, fishing, and recreating on waterways in the state. (13)

The 2005 AG opinion assumed that the PTD applies only to navigable-for-title waters with state-owned beds. (14) The opinion also attempted to explain how a so-called "public use" doctrine, or floatage easement, applies to privately owned waters that are navigable-in-fact but not navigable-for-title, that is, those with privately owned beds. (15) This analysis was flawed because it failed to recognize that waters historically susceptible of floatation by small craft or even seasonal log floats satisfy the federal test of title navigability. (16) Further, by limiting public rights in waters over private beds, the opinion adopted an unnecessarily constrained view of the PTD because the Oregon Supreme Court has repeatedly recognized a public easement in all navigable-in-fact waters for navigation, fishing, commerce, and recreation, and has also articulated limited ancillary rights to use uplands. (17)

The 2005 AG opinion recognized that case law does not limit public use rights to navigable-for-title waters in Oregon. (18) Indeed, since 1869, the Oregon Supreme Court has consistently recognized broad public rights in all navigable-in-fact waters, regardless of ownership of the underlying land. (19) By restricting the PTD to navigable-for-title waters, the AG confused the scope of public rights because the courts have never limited public use rights to these waters, and the PTD protects public uses like recreational boating and floating in all lawfully accessed state waters. …