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143
Argued and submitted November 13, 2019, at David Douglas High School,
Portland, Oregon; decision of Court of Appeals affirmed, judgment of circuit
court vacated, and case remanded to circuit court October 22, 2020
Olivia CHERNAIK,
a minor and resident of Lane County, Oregon;
Lisa Chernaik, guardian of Olivia Chernaik;
Kelsey Cascadia Rose Juliana,
a minor and resident of Lane County, Oregon;
and Catia Juliana, guardian of Kelsey Juliana,
Petitioners on Review,
v.
Kate BROWN,
in her official capacity as
Governor of the State of Oregon;
and State of Oregon,
Respondents on Review.
(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. On remand from the Court of
Appeals, the circuit court granted the stateâs motion for summary judgment on
all of plaintiffsâ claims for declaratory and injunctive relief and denied plaintiffsâ
motion for partial summary judgment. In plaintiffsâ second appeal, the Court
of Appeals concluded that the state does not have a fiduciary duty under the
public trust doctrine to affirmatively protect trust resources from the effects of
climate change. Held: Plaintiffs are entitled to a declaration that the public trust
doctrine encompasses navigable waters and submerged and submersible lands
underlying navigable waters; however, plaintiffs failed to establish that the state
has a fiduciary duty under the public trust doctrine, based on common-law trust
principles, to protect trust resources from the effects of climate change.
The decision of the Court of Appeals is affirmed. The judgment of the circuit
court is vacated, and the case is remanded to the circuit court.
On review from the Court of Appeals.*
Courtney Johnson, Crag Law Center, Portland, argued
the cause and filed the briefs for petitioners on review. Also
on the briefs was William Sherlock.
_____________________
* On appeal from Lane County Circuit Court, Karsten Rasmussen, Judge.
295 Or App 584, 436 P3d 26 (2019).
144 Chernaik v. Brown
Carson L. Whitehead, Assistant Attorney General,
Salem, argued the cause and filed the brief for respondents on
review. Also on the brief were Ellen F. Rosenblum, Attorney
General, and Benjamin Gutman, Solicitor General.
Charles M. Tebbutt, Law Offices of Charles M. Tebbutt
P.C., Eugene, filed the brief for amici curiae Michael
Dembrow, Shemia Fagan, Lew Frederick, Jeff Golden, Ken
Helm, Alissa Keny-Guyer, Karin Power, Floyd Prozanski,
Andrea Salinas, Kathleen Taylor, and Marty Wilde. Also on
the brief was Daniel C. Snyder.
Kenneth E. Kaufmann, Law Office of Kenneth Kaufmann,
West Linn, filed the brief for amici curiae Randall S. Abate,
Nadia B. Ahmad, Robert T. Anderson, Craig Anthony Arnold,
Hope Babcock, Michael C. Blumm, Sara A. Colangelo, Kim
Diana Connoly, Karl Coplan, John Davidson, Myanna
Delinger, Rachele Deming, John C. Dernbach, Debra L.
Donahue, Tim Duane, Richard Fink, Alyson C. Flourney,
Denise D. Fort, Dale D. Goble, Carmen Gonzalez, Jaqueline
Hand, Richard Hildreth, Hillary Hoffman, Oliver Houck,
Blake Hudson, Sam Kalen, Helen H. Kang, Christine A.
Klein, Kenneth T. Kristi, Katrina Kuh, Howard Latin, Ryke
Longest, Kevin Lynch, Peter Manus, Patrick C. McGinley,
David K. Mears, Errol Meidinger, Joel A. Mintz, Catherine
A. OâNeill, Jessica Owley, Patrick A. Parenteau, Cymie
R. Payne, Jacqueline Peel, Zymunt Jan Broel Plater, Ann
Powers, Melissa Powers, Karl R. Rabago, Rick Reibstein,
Kaylani Robbins, Jason Anthony Robison, Daniel John
Rohlf, Jonathan Rosenbloom, Collette Routel, John Ruple,
Erin Ryan, Shelley Ross Saxer, Amy Sinden, William
Snape, Gus Speth, David Takacs, Gerald Torres, Clifford
J. Villa, Elizabeth Kronk Warner, Charles F. Wilkinson,
Robert A. Williams, Jr., Chris Wold, Mary Christina Wood,
and Sandra Zellmer.
Elisabeth A. Holmes, Blue River Law, P.C., Eugene, filed
the briefs for amici curiae 350 Corvallis, 350 Deschutes,
350 Eugene, 350 PDX, Ashland Food Co-Op, Beyond
Toxics, Cascadia Action Network, Cascadia Wildlands,
Churchill Climate Action Club, Citizens for Renewables
of Coos County, City of Milwaukie, Clackamas Climate
Cite as 367 Or 143 (2020) 145
Action Coalition, Climate Action Coalition, Climate Justice
League, Climate Reality Project: Portland, Coconut Bliss,
Earth Guardians 350 Club, Ecumenical Ministries of
Oregon, Eugene Springfield NAACP, First Unitarian
Church of Portland, Friends of the Columbia Gorge, Hair
on Fire Oregon, Paul Holvey, Hummingbird Wholesale,
Indivisible North Coast Oregon, Indow Windows, Inter-
faith Earthkeepers, League of Women Voters of Oregon,
John Lively, Mount Pisgah Arboretum, Multnomah Youth
Commission, OPAL Environmental Justice Oregon, ORD2
Indivisible, Oregon Environmental Council, Oregon League
of Conservation Voters, Oregon Physicians for Social
Responsibility, Oregon Unitarian Universalist Voices for
Justice, Oregon Youth Legislative Initiative, Organically
Grown Company, Partners for Sustainable Schools,
Portland Youth Climate Council, Reverend Cecil Prescod,
Riverside Community Church, Royal Blue Organics,
Reverend Dr. Marilyn Sewell, Reverend John Shuck, Stop
Fracked Gas PDX, Eric Strid, Temple Beth Israel, The
Center for Sustainable Economy, The Green Energy
Institute, The Raven Corps, The Sierra Club and its Oregon
Chapter, The Village School, Thrive Hood River, Unitarian
Universalist Church of Eugene, Mayor Lucy Vinis, and
Willamette Riverkeeper.
Courtney Lords, Multnomah County Attorneyâs Office,
Portland, filed the brief for amici curiae Multnomah and
Lane Counties. Also on the brief was Jenny M. Madkour,
County Attorney for Multnomah County.
Travis Eiva, Zemper Eiva Law LLC, Eugene, filed the
brief for amicus curiae Oregon Trial Lawyers Association.
Brian T. Hodges, Pacific Legal Foundation, Bellevue,
Washington, filed the brief for amicus curiae Pacific Legal
Foundation.
Before Walters, Chief Justice, and Balmer, Nakamoto,
Flynn, Duncan, and Nelson, Justices, and Kistler, Senior
Judge, Justice pro tempore.**
_____________________
** Garrett, J., did not participate in the consideration or decision of this case.
146 Chernaik v. Brown
NAKAMOTO, J.
The decision of the Court of Appeals is affirmed. The
judgment of the circuit court is vacated, and the case is
remanded to the circuit court.
Walters, C. J., dissented and filed an opinion.
Cite as 367 Or 143 (2020) 147
NAKAMOTO, J.
Relying on an expanded view of the public trust
doctrine, plaintiffsâtwo young Oregonians, concerned
about the effects of climate change, and their guardiansâ
brought this action against the Governor and the State of
Oregon (collectively, the state). Broadly speaking, plaintiffs
contended 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 due to
greenhouse gas emissions and resultant climate change and
ocean acidification. 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 caused by emissions of green-
house gases. Plaintiffs also asked for an injunction ordering
the state to (1) prepare an annual accounting of Oregonâs
carbon dioxide emissions and (2) implement a carbon reduc-
tion plan protecting the natural resources, which the court
would supervise to ensure enforcement.
The circuit court granted the stateâs motion for
summary judgment and denied plaintiffsâ motion for partial
summary judgment. The court concluded that no trial was
needed, because the public trust doctrine did not encompass
most of the natural resources that plaintiffs had identified
and did not require the state to take the protective measures
that plaintiffs sought. In 2015, the circuit court entered a
general judgment dismissing the action, and the Court of
Appeals vacated the judgment and remanded for the cir-
cuit court to enter a judgment, consistent with the Court of
Appeals opinion, declaring the partiesâ rights. Chernaik v.
Brown, 295 Or App 584, 601, 436 P3d 26 (2019).
On review, 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 cir-
cumstances presented, namely, that climate change is
damaging Oregonâs natural resources. They argue that the
doctrine is not limited to the natural resources that the cir-
cuit court identified and, indeed, that the doctrine should
cover other natural resources beyond those that have been
148 Chernaik v. Brown
traditionally protected. Second, plaintiffs contend that at
least some of the relief that they sought is permissible under
the public trust doctrine, and the circuit court erred when it
granted summary judgment to the state.
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 natu-
ral resources, we do not extend the doctrine to encompass
other natural resources at this time. We also decline, in
this case, to adopt plaintiffsâ position that, under the pub-
lic 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. Accordingly, we affirm the decision of the Court
of Appeals, which vacated the judgment of the circuit court,
and remand the case to the circuit court to enter a judgment
consistent with this opinion.
I. FACTS AND PROCEDURAL HISTORY
Our review concerns the second phase of this
long-running case, so we only briefly describe the first phase,
an initial appeal and remand to the circuit court, as part
of the procedural background. Plaintiffs sued the Governor
and the State of Oregon in 2011. The state moved to dismiss
the complaint on jurisdictional grounds. By agreement of
the parties, the motion did not address the merits of plain-
tiffsâ claims. The circuit court concluded that (1) plaintiffsâ
requested declaratory relief exceeded the courtâs authority
under Oregonâs Declaratory Judgment Act, (2) plaintiffsâ
claims were barred by sovereign immunity, (3) the requested
relief violated the separation of powers doctrine, and (4) the
suit presented political questions. Based on those conclu-
sions, the circuit court granted the stateâs motion to dismiss.
Plaintiffs appealed, and the Court of Appeals
reversed. The Court of Appeals concluded that plaintiffs
were entitled to declarations on whether the atmosphere
and other natural resources are public trust resources and
whether the state, as trustee, has a fiduciary obligation to
protect those resources from the impacts of climate change.
Cite as 367 Or 143 (2020) 149
Chernaik v. Kitzhaber, 263 Or App 463, 481, 328 P3d 799
(2014).
The second phase of this case began on remand to
the circuit court. In the prayer for relief in their amended
complaint, plaintiffs sought four declarations:
âA declaration that the atmosphere is a trust resource,
and that 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.â
âA declaration that water resources, navigable waters,
submerged and submersible lands, islands, shorelands,
coastal areas, wildlife, and fish are trust resources, and
that the State of Oregon, as a trustee, has a fiduciary obli-
gation to protect these assets as commonly shared pub-
lic trust resources from the impacts of climate change
for Plaintiffs and for present and future generations of
Oregonians.â
âA declaration that Defendants have failed to uphold
their fiduciary obligations to protect these trust assets
for the benefits of Plaintiffs as well as current and future
generations of Oregonians by failing adequately to regu-
late and reduce carbon dioxide emissions in the State of
Oregon.â
âA declaration that the best available science requires
carbon dioxide emissions to peak in 2012 and to be reduced
by at least six per cent each year until at least 2050.â
Plaintiffs also sought injunctive relief. They first
requested an order requiring the state âto prepare, or cause
to be prepared, a full and accurate accounting of Oregonâs
current carbon dioxide emissions and to do so annually
thereafter.â Second, plaintiffs asked for an order requiring
the state âto develop and implement a carbon reduction plan
that will protect trust assets by abiding by the best avail-
able science.â In connection with their requested injunctive
relief, plaintiffs requested â[t]hat [the circuit court] retain
continuing jurisdiction over this matter for purposes of
enforcing the relief awarded.â
In its answer, the state admitted several of the
scientific facts and future effects of climate change that
150 Chernaik v. Brown
plaintiffs had alleged.1 Overall, the state agreed that âglobal
climate change is a very serious problem that is causing,
and will continue to cause, harm to our planet and the State
of Oregon, if global greenhouse gas emissions are not cur-
tailed.â The state then asserted four affirmative defenses:
(1) plaintiffs failed to state a claim, (2) the matter was not
justiciable, (3) the requested relief was barred by the politi-
cal question doctrine, and (4) the requested relief was barred
by principles of separation of powers. The parties then filed
cross-motions for summary judgment.
In their motion for partial summary judgment,
plaintiffs sought a ruling only on their entitlement to declar-
atory relief. Plaintiffs contended that they were entitled as a
matter of law to four declarations, all of which had morphed
from what was contained in the amended complaint.
First, plaintiffs sought a declaration concerning the
scope of the public trust doctrine:
â[The] State of Oregon, as a trustee and sovereign entity,
has a fiduciary obligation to manage the atmosphere, water
resources, navigable waters, submerged and submersible
lands, shorelands and coastal areas, wildlife and fish as
public trust assets, and to protect them from substantial
impairment caused by the emissions of greenhouse gases
in, or within the control of, the State of Oregon and the
resulting adverse effects of climate change and ocean
acidification[.]â
That requested declaration was not exactly stated in their
amended complaint and instead was a combination and
1
Among the scientific facts that plaintiffs alleged and that the state admit-
ted were the following: Earthâs average temperature has increased approx-
imately 0.8 degrees Celsius in the last 100 to 150 years; human-caused fossil
fuel burning and resulting climate change are already contributing to numerous
adverse impacts to public health; climate changes are occurring faster than even
the most pessimistic scenarios presented in 2007; and, if the atmosphere passes
certain thresholds or tipping points, the existing climatic conditions that exist
today cannot be restored.
The state also admitted that âglobal climate changeâ is likely to result in
âsomeâ (1) heating of the oceans and impacts on fisheries; (2) rising tempera-
tures and weather changes that may lead to increased allergy and related health
problems; (3) change to ecosystems from drought and rising temperatures and
changes to Oregonâs weather patterns; (4) loss of beaches and shorelines from
erosion, rising sea levels, and the heating of the ocean and consequent impacts on
fisheries and other sea life; and (5) reduced water availability, drought, increases
in pests, rising temperatures, and weather changes.
Cite as 367 Or 143 (2020) 151
reformulation of the first two declarations that plaintiffs
had pleaded. Next, plaintiffs requested, with slight modifica-
tions, the third declaration included in their prayer for relief
concerning defendantsâ breach of âfiduciary obligationsâ:
âA declaration that [d]efendants have failed, and are
failing, to uphold their fiduciary obligations to protect
these trust assets from substantial impairment by not ade-
quately reducing and limiting emissions of carbon dioxide
and other greenhouse gases in, or within the control of, the
State of Oregon.â
Finally, plaintiffs requested that the circuit court
enter two additional declarations based on the premise that
a specific carbon dioxide level in the atmosphere will lead to
substantial damage to Oregonâs natural resources:
âA declaration that atmospheric concentrations of car-
bon dioxide (CO2) exceeding 350 parts per million (ppm)
constitutes substantial impairment to the atmosphere and
thereby the other public trust assets[.]â
âA declaration that to protect these public trust assets
from substantial impairment, Oregon must contribute to
global reduction in emissions of CO2 necessary to return
atmospheric concentrations of carbon dioxide to 350 ppm by
the year 2100[.]â
Those declarations appear to be a refined version of a decla-
ration included in their prayer for relief that the âbest avail-
able science requires carbon dioxide emissions to peak in
2012 and to be reduced by at least six per cent each year until
at least 2050.â The specific carbon dioxide level seems to be
based on an allegation in the amended complaint that â[t]o
limit average surface heating to no more than 1° C (1.8° F)
above pre-industrial temperatures, and to protect Oregonâs
public trust assets, the best available science concludes that
concentrations of atmospheric carbon dioxide cannot exceed
350 parts per million or âppm.â â
Plaintiffs further noted that they would petition for
supplemental relief in the form of an injunction if the court
granted the requested declaratory relief. That injunction
would require the state to (1) prepare an annual account-
ing of Oregonâs greenhouse gas emissions and (2) develop
and implement a greenhouse gas reduction plan that would
152 Chernaik v. Brown
return atmospheric concentrations of carbon dioxide to 350
ppm by the year 2100. Plaintiffs also indicated their intent
to request continuing supervision from the court.
The state moved for summary judgment on all of
plaintiffsâ claims for relief. The stateâs primary contentions
were that the public trust doctrine does not extend to the
atmosphere, or all waters of the state and fish and wildlife,
and that the public trust doctrine does not impose fiduciary
duties upon the state like those associated with traditional
private trusts. In tandem, the state argued that, â[b]ecause
there are no fiduciary duties associated with the common
law public trust doctrine, any declaratory or injunctive
relief based on an alleged violation of such duties must be
denied.â In addition, the state opposed injunctive relief, even
were the court to recognize ânew fiduciary duties,â because,
in its view, the court was being asked to violate the princi-
ple of separation of powers and to decide a political ques-
tion entrusted to the legislative and executive branches of
government.
In responding to plaintiffsâ motion for partial sum-
mary judgment, the state highlighted the changes between
what plaintiffs had included in the amended complaint
and later sought in their motion for partial summary judg-
ment. The state argued that the changes in requested relief
demonstrated that plaintiffs themselves were unable to set-
tle on what they thought the public trust doctrine required
the state to do and that the declaratory relief they sought
was too uncertain to be granted. Plaintiffs responded that
the requested relief permitted the legislative and executive
branches to fashion the specifics.
The circuit court denied plaintiffsâ motion and
granted the stateâs motion. The court concluded that the
public trust doctrine encompasses only submerged and
submersible landsânot navigable waters, beaches, other
waters of the state, shorelands, islands, fish and wildlife,
and the atmosphere. Next, the court examined the stateâs
duties under the public trust doctrine. After observing that
the public trust doctrine has historically only prevented the
state from âentirely alienating submerged and submersible
lands under navigable waters,â 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. The circuit court further concluded
that granting plaintiffsâ requested relief would violate the
separation of powers doctrine. Based on those conclusions,
the circuit court entered a general judgment of dismissal.
Plaintiffs appealed, and the parties presented argu-
ments to the Court of Appeals that largely mirrored their
arguments to the circuit court. Plaintiffs advanced two
additional arguments, which the state disputed: The circuit
court erred by treating all facts relating to climate change
as âlegislative factsâ and applied an incorrect standard of
review under ORCP 47, and the circuit court improperly had
issued an advisory opinion on injunctive relief. For its part,
the state added that the court should not consider plain-
tiffsâ proposed declaration that âatmospheric concentrations
of carbon dioxide (CO2) exceeding 350 parts per million
(ppm) constitutes substantial impairment,â because it was
not pleaded. But the state conceded that the circuit court
had erred by stating the public trust doctrine too narrowly,
because the doctrine also applies to the stateâs navigable
waters.
The Court of Appeals did not decide the pleading
dispute and rejected without discussion plaintiffsâ assertion
that the circuit court had applied an incorrect legal stan-
dard under ORCP 47 when it considered the partiesâ sum-
mary judgment motions. Chernaik, 295 Or App at 592 n 6.
The court also did not decide what types of resources are
protected by the public trust doctrine. Id. at 592, 596 n 10.
The court only addressed âwhether the state has fiduciary
obligations under the public-trust doctrine to affirmatively
protect public-trust resources from the effects of climate
change,â because its conclusion on that issue was disposi-
tive. Id. at 592.
To address the stateâs duties under Oregonâs public
trust doctrine, the Court of Appeals first examined the his-
torical underpinnings of the doctrine in Oregon. The court
concluded from this courtâs case law that the doctrine has
âserved to place restraints on state action with respect to
the lands it holds underlying navigable waterways to protect
154 Chernaik v. Brown
the recognized public uses in those waterways,â those uses
being the publicâs right to navigation, commerce, fishing, or
recreation. Id. at 594.
The Court of Appeals rejected plaintiffsâ and amici
law professorsâ reliance on out-of-state case law and on other
sources of Oregon law, such as statutes, to support their
understanding of Oregonâs public trust doctrine. Instead,
the court concluded, only Oregonâs common law determines
the contours of the doctrine. Id. at 596-97. As for Oregon
case law, plaintiffs relied on State v. Dickerson, 356 Or 822,
835, 345 P3d 447 (2015), in which this court stated that,
â[a]lthough the trust metaphor is an imperfect one * * *,
the stateâs powers and duties with respect to wildlife have
many of the traditional attributes of a trusteeâs duties.â The
court found plaintiffsâ reliance on Dickerson to be misplaced,
explaining that that statement affirmed the stateâs author-
ity to enact laws protecting wildlife, but that this court had
not determined that the state had a duty to enact such laws.
Chernaik, 295 Or App at 599-600.
Ultimately, the court determined that nothing in
Oregonâs public trust doctrine suggested that the doctrine
imposed fiduciary obligations on the state to prevent dam-
age to trust resources from the effects of greenhouse gases
and climate change. Id. at 600. Instead, the court concluded
that Oregonâs public trust doctrine âis rooted in the idea that
the state is restrained from disposing or allowing uses of
public-trust resources that substantially impair the recog-
nized public use of those resources.â Id. (emphasis in origi-
nal). Consistently with that conclusion, the Court of Appeals
held that the circuit court had correctly granted the stateâs
motion for summary judgment and denied plaintiffsâ motion
for partial summary judgment. However, because the case
involved declaratory relief, the court determined that dis-
missal of the case was not the correct disposition. Therefore,
it vacated the judgment and remanded for the circuit court
to enter a judgment that declared the partiesâ rights.2 Id. at
601. We allowed plaintiffsâ petition for review.
2
The circuit court issued a lengthy, detailed opinion and order that con-
tained declarations at various points, but the judgment, which incorporated the
opinion and order by reference, did not set out any declarations.
Cite as 367 Or 143 (2020) 155
II. ANALYSIS
On review, the parties continue to dispute the scope
of natural resources subject to the public trust doctrine and
the stateâs obligations with respect to natural resources
subject to the doctrine. Urging an expansion of the public
trust doctrine, plaintiffs contend that the state has, and
breached, fiduciary obligations to prevent impairments
due to climate change with respect to a range of natural
resources in Oregon. Although the state agrees that the
natural resources in Oregon that plaintiffs describe have
suffered some adverse effects of climate change brought on,
in part, by carbon dioxide emissions, the state contends that
the Court of Appeals correctly determined that the state
does not have the obligations that plaintiffs claim and that
plaintiffs overstate the range of natural resources subject
to the public trust doctrine. Thus, we are presented with
two questions on review: whether the public trust doctrine
applies to other natural resources, beyond the submerged
and submersible lands that the circuit court identified, and
whether the public trust doctrine imposes a fiduciary duty
upon the state to protect trust resources from the negative
impacts of climate change.
A. Resources Protected by the Public Trust Doctrine
We begin with plaintiffsâ argument that the circuit
court erred in concluding that the public trust doctrine3
applies only to submerged and submersible state lands. In
their view, the public trust doctrine is a common-law doc-
trine that can and should be applied flexibly and expansively
to protect a range of Oregonâs natural resources, specifically,
all the stateâs waters, wild fish and other wildlife, and the
atmosphere.
As the state has correctly conceded, the public trust
doctrine currently extends both to the stateâs navigable
3
The term âpublic trust doctrineâ gained widespread use following Joseph
Saxâs landmark article, The Public Trust Doctrine in Natural Resource Law:
Effective Judicial Intervention, 68 Mich L Rev 471 (1970). Although early Oregon
cases do not use the term âpublic trust doctrine,â we use that term throughout
this opinion to remain consistent. The first Oregon case to use that term was
Morse v. Division of State Lands, 34 Or App 853, 581 P2d 520 (1978), affâd, 285 Or
197, 590 P2d 709 (1979).
156 Chernaik v. Brown
waters and to the stateâs submerged and submersible lands.
And, we agree with plaintiffs that the public trust doctrine,
as a common-law doctrine, can be modified to reflect changes
in societyâs needs. But whether the public trust doctrine is
capable of expanding beyond its current scope and whether
plaintiffs have established the legal grounds justifying an
expansion of the doctrine in this case are two distinct ques-
tions. For reasons explained below, we reject plaintiffsâ con-
tention that this court should adopt an expansive test for
determining protected trust resources and, applying that
test, should hold that the public trust doctrine extends to all
the waters of the state, wild fish and other wildlife, and the
atmosphere in Oregon.
1. Currently protected resources
As it stands today, the public trust doctrine applies
to ânavigableâ waterways and the lands underlying those
waterways. Under the doctrine, Oregon acquired title at
statehood to âthe lands underlying all bodies of water
within the state that meet the federal test for navigability.â 4
Kramer v. City of Lake Oswego, 365 Or 422, 438, 446 P3d 1,
adhâd to as modified on recons, 365 Or 691, 455 P3d 922
(2019). Although title passed to the state âby virtue of its
sovereignty, its rights were merely those of a trustee for the
public.â Corvallis Sand & Gravel v. Land Board, 250 Or 319,
334, 439 P2d 575 (1968) (quoting Winston Bros. Co. v. State
Tax Com., 156 Or 505, 511, 62 P2d 7 (1936), cert den, 301 US
689 (1937)).
In addition to the land underlying bodies of water
that meet the federal test for navigability, the navigable
waters themselves are a public trust resource. See PPL
Montana, LLC v. Montana, 565 US 576, 590, 132 S Ct 1215,
182 L Ed 2d 77 (2012) (the people, âbased on principles of
sovereignty, âhold the absolute right to all their naviga-
ble waters and the soils under themâ â (citations omitted));
Kramer, 365 Or at 437 n 12 (âWater is not the only resources
that the state holds in trust.â); Winston Bros. Co., 156 Or at
4
Federal law governs any questions concerning navigability of watersâthe
criterion that determines whether Oregon acquired title to the underlying land
at statehoodâbut state law determines what the public trust doctrine means for
the resources it protects. Kramer, 365 Or at 437.
Cite as 367 Or 143 (2020) 157
511 (ownership of land underlying waters âis that of the peo-
ple in their united sovereignty, while the waters themselves
remain publicâ). In Kramer, a case concerning the publicâs
right to use Oswego Lake, we explained that the public trust
doctrine is also partially codified by statutes that âdeclare
that the waters of all navigable lakes are âof public charac-
terâ and that title to what the statute refers to as âsubmers-
ible and submerged landsâ beneath navigable lakes is vested
in the State of Oregon.â 365 Or at 438-39. The statutes apply
likewise to waters of navigable âstreams.â5 Accordingly, the
circuit court erroneously concluded that the scope of the nat-
ural resources subject to the public trust doctrine in its cur-
rent form was limited to submerged and submersible state
lands; the stateâs navigable waters are also subject to the
public trust doctrine.
We reject plaintiffsâ contention that this court pre-
viously has ârecognized that the trust extends to waters and
wild fishâ as well as wild animals. In part, they rely on Alsos
v. Kendall et al., 111 Or 359, 227 P 286 (1924). In Alsos, this
court explained that the state has âabsolute ownership in
and dominion over the bed and soil which underlies the tidal
waters of the stateâ and âthe waters themselves,â and the
state holds âin trust for its own citizens, title to and owner-
ship of the fish in such waters, so far as they are capable of
ownership while in a state of freedom * * *.â Id. at 371. Alsos
reiterates that navigable waters (at that time, based on the
âebb and flow of the tideâ test) and underlying lands are sub-
ject to the public trust doctrine. The decision does not per-
tain to waters of the state generally, and it fails to support
plaintiffsâ position that the public trust doctrine extends to
all waters of the state.
5
ORS chapter 274 governs the submersible and submerged lands in the
state. In relevant part, ORS 274.025 provides:
âThe title to the submersible and submerged lands of all navigable streams
and lakes in this state now existing or which may have been in existence in
1859 when the state was admitted to the Union, or at any time since admis-
sion, and which has not become vested in any person, is vested in the State
of Oregon.â
Relatedly, ORS 274.430 states that â[a]ll meandered lakes are declared to be nav-
igable and public waters. * * * The title to the submersible and submerged lands
of such meandered lakes, which are not included in the valid terms of a grant or
conveyance from the State of Oregon, is vested in the State of Oregon.â
158 Chernaik v. Brown
As for wildlife, plaintiffs assert that, in Dickerson,
this court affirmed several of its early decisions concluding
that the state controls fish and wildlife âin its sovereign
capacity for the benefit of, and in trust for, its people in com-
mon.â According to plaintiffs, to the extent that this courtâs
cases have differentiated between the public trust doctrine
and what the parties and this court have referred to as a
âwildlife trustâ doctrine, see Dickerson, 356 Or at 834, âthe
legal concept is analogousâ and no distinction between the
two kinds of trusts is warranted.
We disagree. Although we have âlong used the met-
aphor of a trust to describe the stateâs sovereign interest in
wildlife,â id., and some similarities exist between the âwild-
life trustâ 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. The two doctrines
are currently separate and distinct doctrines. In contrast
to the public trust doctrine, which provides that the gen-
eral public has a right to use navigable waters for certain
purposesâsubject to objectively reasonable restrictions on
that rightâand which we later describe in more detail, the
wildlife trust doctrine describes the stateâs broad authority
over wild fish and animals in Oregon. The wildlife trust doc-
trine provides that the state has âthe authority to manage
and preserve wildlife resources,â id. at 835, and that the
legislature may restrict, prohibit, or condition the taking of
game or fish in Oregon âas the law-making power may see
fit,â State v. Pulos, 64 Or 92, 95, 129 P 128 (1913).
2. The public trust doctrine as a common-law doctrine
As a common-law doctrine, the public trust doctrine
is not necessarily fixed at its current scope. It is within the
purview of this court to examine the appropriate scope of
the doctrine and to expand or to mold it to meet societyâs
current needs, as we have done in the past. See, e.g., Horton
v. OHSU, 359 Or 168, 218, 376 P3d 998 (2016) (â[T]he com-
mon law is not inflexible but changes to meet the changing
needs of the state.â); Re Water Rights of Hood River, 114 Or
112, 180, 227 P 1065 (1924), dismissed, 273 US 647, 47 S Ct
245, 71 L Ed 821 (1926) (âThe very essence of the common
Cite as 367 Or 143 (2020) 159
law is flexibility and adaptability.â). Indeed, from the ear-
liest days of the doctrine in this country, the public trust
doctrine has evolved in response to different circumstances
and societyâs changing needs.
The public trust doctrine in the United States
traces its roots to English common law. At English common
law, the crown held title to the beds of âwaters subject to
the ebb and flow of the tide,â but the public âretained the
right of passage and the right to fish in the stream.â PPL
Montana, LLC, 565 US at 589. The crown asserted the same
title to such resources in North America, and that title
transferred to the original 13 states following the American
Revolution. Pacific Elevator Co. v. Portland, 65 Or 349, 379,
133 P 72 (1913). Under the equal-footing doctrine, each new
state after the 13 original states also acquired the same
title to the beds of navigable waters within its borders. PPL
Montana, LLC, 565 US at 591. Thus, upon statehood, each
stateâincluding Oregonââgain[ed] title within its borders
to the beds of waters then navigable,â while the United
States retained âany title vested in it before statehood to
any land beneath waters not then navigable.â Id.
Because of the vast geographic differences between
North America and England, the English âebb and flow of
the tideâ test excluded large bodies of waters in the United
States from being considered navigable, meaning that the
states did not gain title to those waters and land underlying
them upon statehood. Those differences led some states to
conclude that a state held âpresumptive title to navigable
waters whether or not the waters [were] subject to the ebb
and flow of the tide.â Id. at 590. But at first, Oregon adhered
to the original âebb and flow of the tideâ test for purposes of
determining whether it held title to the land under a body
of water within its boundaries. Thus, in the late 1800s, this
courtâs case law identified three classes of waters: (1) waters
in which the tide ebbed and flowed, which were deemed nav-
igable, with âall right[s] in [them] belong[ing] exclusively
to the public,â with the state owning the subjacent soil;
(2) streams that were navigable in fact, which were consid-
ered public highways in which the public had an easement
for navigation and commerce, with the title of the subjacent
soil to the middle of the stream remaining with the riparian
160 Chernaik v. Brown
owner;6 and (3) streams that were so âsmall or shallow as
not to be navigable for any purpose,â in which the public
had no right of use, which were considered âaltogether pri-
vate property.â Shaw v. Oswego Iron Co., 10 Or 371, 375-76
(1882). Although aware of the trend toward expanding the
doctrine to âlarge fresh water riversâ that are ânavigable in
fact,â the court in Shaw declined to answer whether Oregon
should also follow that trend, id. at 377, 383, and concluded
that the Tualatin River was ânot a stream in which the tide
ebbs and flowsâ and so, âin the common law sense,â was ânot
navigable,â id. at 376.
Over 35 years after Shaw, in Guilliams v. Beaver
Lake Club, 90 Or 13, 175 P 437 (1918), this court addressed
whether to expand the public trust doctrine to include
waters that were not subject to the ebb and flow of the tide.
In Guilliams, a case concerning the defendantâs erection of a
dam in a creek navigable by boat, this court reiterated the
three classes of waters that it had previously described in
Shaw. Id. at 19. It then stated: âTo this list may be added
our larger rivers susceptible of a great volume of commerce
where the title to the bed of the stream remains in the
state for the benefit of the public.â Id. Thus, the first major
advancement in Oregonâs public trust doctrine was to adopt
the nationwide trend abandoning the narrow ebb-and-flow
test as the sole test of navigability and thereby expand the
resources that were included in the public trust doctrine.
Cf. PPL Montana, LLC, 565 US at 590 (âBy the late 19th
century, the Court had recognized the now prevailing doc-
trine of state sovereign title in the soil of rivers really navi-
gable.â (Internal quotation marks omitted.)).
The court in Guilliams also expanded the public
trust doctrine in another way, by extending the concept of
navigabilityâunder what later would become known as the
public use doctrineâto include âthe use of boats and vessels
for the purposes of pleasure.â 90 Or at 27. To support that
expansion, the court quoted with approval the reasoning
from a Minnesota case that it viewed as having matching
facts: â âTo hand over all these [lakes that will probably never
6
The publicâs easement for navigation and commerce on such waters is now
referred to as the âpublic use doctrine.â Kramer, 365 Or at 432-33.
Cite as 367 Or 143 (2020) 161
be used for commerce] to private ownership, under any old or
narrow test of navigability, would be a great wrong upon the
public for all time, the extent of which cannot, perhaps, be
now even anticipated.â â Id. at 29 (quoting Lamprey v. Metcalf,
52 Minn 181, 200, 53 NW 1139 (1893) (brackets added)).
This court has also expanded the levels of govern-
mental bodies to which the public trust doctrine applies. We
recently examined the public trust doctrine and the limita-
tions it places on local governments. In Kramer, we held that
âany limitations on the stateâs ability to interfere with the
publicâs right to use the public trust waters are, similarly,
limits on the cityâs authority.â 365 Or at 447 n 22.
As the foregoing cases illustrate, at various points
in Oregonâs history, this court has adapted the public trust
doctrine to address new situations as they arose. For over a
century, this court has recognized that the public trust doc-
trine is a forward-looking doctrine that is flexible enough to
accommodate future uses and to protect against unforeseen
harms to the publicâs ability to use public trust resources.
But the earlier adaptations of the public trust doc-
trine all effectuate the core purpose of the doctrine: to obli-
gate the state to protect the publicâs ability to use naviga-
ble waters for identifiable uses. That purpose appears in
the early cases describing the doctrine. The United States
Supreme Court explained that the doctrine is âfounded upon
the necessity of preserving to the public the use of naviga-
ble waters from private interruption and encroachment, a
reason as applicable to navigable fresh waters as to waters
moved by the tide.â Illinois Central Railroad v. Illinois, 146
US 387, 436, 13 S Ct 110, 36 L Ed 1018 (1892). As we recently
recognized in Kramer, the public trust doctrine âlimits the
stateâs authority to interfere with the publicâs right to use the
public waters of the state.â 365 Or at 449. Any restrictions
by the state on the publicâs right of use âmust be objectively
reasonable in light of the purpose of the trust and the cir-
cumstances of the case.â Id. at 449-50. And, this court has
long emphasized that the state may not âsell or dispose of
or grant the right to make any use of [the beds of navigable
streams] which would impair or impede navigation.â Gatt v.
Hurlburt, 131 Or 554, 561, 284 P 172, rehâg den, 132 Or 415,
162 Chernaik v. Brown
286 P 151 (1930); see also Corvallis Sand & Gravel, 250 Or
at 334 (â[T]he state can make no sale or disposal of the soil
underlying its navigable waters so as to prevent the use by
the public of such waters for the purposes of navigation and
fishing.â).
Thus, the first adaptation of the doctrine to include
waters not subject to the ebb and flow of the tide protected the
publicâs use of the large bodies of water in the United States
that were vital for commerce. The expansion of protected
uses to include recreation was based on the recognition that
â[a] boat used for the transportation of pleasure-seeking
passengers is * * * as much engaged in commerce as is a ves-
sel transporting a shipment of lumber.â Luscher v. Reynolds,
153 Or 625, 635, 56 P2d 1158 (1936). And finally, the expan-
sion to include acts by local governments, Kramer, 365 Or at
447, similarly protects the publicâs paramount rights to use
navigable waters in Oregon.
To summarize, the public trust doctrine is not fixed
but is capable of change and expansion. The public trust
doctrine has evolved from its original narrow conception,
when it applied only to lands underlying waters subject to
the ebb and flow of the tide. And although the expansions
relate to different aspects of the public trust doctrine (pro-
tected resources, protected uses, and government actors),
they all resulted from disputes involving a specific body of
water and furthered the primary purpose of the doctrineâ
protecting the publicâs right to use navigable waters for fish-
ing and navigation.
3. Plaintiffsâ argument for expansion of the public trust
doctrine
We now turn to whether this case presents an oppor-
tunity to expand the scope of the doctrine based on plain-
tiffsâ argument that the public trust doctrine should apply
to other natural resources besides submerged and submers-
ible lands underlying navigable waters and the navigable
waters themselves. As noted at the outset, this case is not
about a dispute concerning use or protection of any particu-
lar bodies of water; rather, plaintiffs allege a right to a judi-
cial declaration that broadly expands the natural resources
Cite as 367 Or 143 (2020) 163
subject to the public trust doctrine to include all waters of
the state, wild fish and wildlife, and the atmosphere. The
state maintains that the doctrine has historically been lim-
ited in scope and that plaintiffs have not established a basis
for the court to expand the resources protected by the doc-
trine as plaintiffs request.
We first address plaintiffsâ argument that the state
has âreversed its positions regarding the scope of the natural
resources protected under the public trust [doctrine] and its
fiduciary duty to protect those resources,â because if plain-
tiffs are correct, it may not be necessary to address plain-
tiffsâ proposed test for expanding the public trust doctrine.
In support of their argument, plaintiffs point to the com-
plaint that the state filed in 2018 in the Multnomah County
Circuit Court in State of Oregon v. Monsanto Company,
No. 18CV00540. In that case, the state sought relief from
Monsanto and others âin its sovereign capacity as trustee
for all natural resources within its bordersâ and as a land
owner, alleging environmental contamination and reme-
diation costs due to PCBs (polychlorinated biphenyls) that
Monsanto manufactured. Complaint at 4, State of Oregon v.
Monsanto Co., et al., Case No 18CV00540 (Multnomah Cty
Cir Ct Jan 4, 2018). The state described its relationship to
the natural resources within its borders in one paragraph of
the complaint as follows:
âThe State holds in trust for the public the bed and
banks, and waters between the bed and banks, of all
waterways within the State. By virtue of its public trust
responsibilities, all such lands are to be preserved for pub-
lic use in navigation, fishing, and recreation. The State
is also the trustee of all natural resourcesâincluding
land, water, wildlife, and habitat areasâwithin its bor-
ders. As trustee, the State holds these natural resources
in trust for all Oregoniansâpreserving, protecting, and
making them available to all Oregonians to use and
enjoy for recreational, commercial, cultural, and aesthetic
purposes.â
Id. at 5. Plaintiffs argue that that statement should be
deemed a judicial admission, or, alternatively, that the state
should be estopped from asserting a different position in the
case at hand. Both arguments are without merit.
164 Chernaik v. Brown
We reject the argument that the stateâs complaint
against an unrelated party in another case can be consid-
ered a judicial admission in the present case. In Borgert v.
Spurling et al., 191 Or 344, 352, 230 P2d 183 (1951), this
court quoted Wigmoreâs treatise on evidence to explain that
â â[t]he pleadings in a cause are, for the purposes of use in that
suit, * * * judicial admissions * * * and therefore a limita-
tion of the issues.â â (Emphasis added; quoting IV Wigmore,
Evidence, § 1064, 45 (3d ed).) Thus, this court concluded in
Borgert that, as alleged in the complaint, it was âconclusively
established for the purposes of this caseâ that a codefendant
had parked his car in a certain location. Id.; see also Vokoun
v. City of Lake Oswego, 335 Or 19, 21 n 1, 56 P3d 396 (2002)
(although the defendant disputed a fact on appeal, this court
treated a fact as established by judicial admission because
the defendant had admitted that fact in its answer in that
case).
Plaintiffs similarly fail to demonstrate the elements
of judicial estoppel. Judicial estoppel requires a âbenefit in
the earlier proceeding, different judicial proceedings, and
inconsistent positions.â Hampton Tree Farms, Inc. v. Jewett,
320 Or 599, 611, 892 P2d 683 (1995). At least one of the
three elements is not present in this case. Even assuming
that the stateâs allegation in the Monsanto case is in an âear-
lier proceeding,â the stateâs position in the present case is
not âdiametrically oppositeâ to the position that it has taken
in the Monsanto case, as plaintiffs assert. In the Monsanto
complaint, the state differentiates between resources that
are public trust resources and other natural resources that
it holds in trust, which is consistent with how this court has
described the stateâs trust relationships in the past. And
the complaint in Monsanto is in line with the stateâs posi-
tion in this case about its obligations under the public trust
doctrineâit has the authority to act in the manner plaintiffs
request, but it cannot be compelled to take the requested
actions. Because the stateâs position in the Monsanto case
does not affect this proceeding, we turn to plaintiffsâ other
argument that the public trust doctrine should be expanded
to include additional natural resources.
Plaintiffs have posited a test for expanding the
types of natural resources that are subject to the public
Cite as 367 Or 143 (2020) 165
trust doctrine. They identify two unifying features of public
trust resources: â(1) they are not easily held or improvedâ
and â(2) they are of great value to the public for uses such
as commerce, navigation, hunting, and fisheries.â Restating
those two features, plaintiffsâ proposed test for adding
resources to the public trust doctrine would pose two ques-
tions: (1) Is the resource not easily held or improved? (2) Is
the resource of great value to the public for uses such as
commerce, navigation, hunting, and fishing? According to
plaintiffs, a âyesâ answer to each question would mean that
the resource should be included under the doctrine as a pub-
lic trust resource. Applying that test, plaintiffs conclude
that the atmosphere qualifies as a public trust resource.
To back up their conclusion, plaintiffs assert that
the atmosphere is âintricately linked with other trust assets,
such as waterâ as a factual matter. But the interconnect-
edness of natural resources within Oregon (or of resources
within and outside Oregon) does not mean that all natural
resources, including the atmosphere, must be considered
public trust resources under Oregonâs public trust doctrine.7
Plaintiffs do not provide a corresponding legal theory for
including the atmosphere within the public trust doctrine,
beyond the test that they propose.
Returning to plaintiffsâ proposed test, we agree
that plaintiffsâ two factors are relevant considerations. But
as the only two factors, they are insufficient because they
fail to provide practical limitations. Indeed, the test that
plaintiffs propose is so broad that it is difficult to conceive
7
We do not imply that a factual connection between a condition or activ-
ity affecting a natural resource and adverse effects on a recognized public trust
resource is irrelevant. In California, for example, litigants have sought to estab-
lish that the factual connection between governmental action involving one natu-
ral resource and resultant adverse effects on a particular recognized public trust
resource can form the basis for relief under the public trust doctrine. See, e.g.,
Natâl Audubon Socây 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 âprotects navigable waters from harm caused by diversion
of nonnavigable tributariesâ); 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 groundwater that affected use of the Scott River, a
navigable waterway).
166 Chernaik v. Brown
of a natural resource that would not satisfy it. We do not
foreclose the idea that the public trust doctrine may evolve
to include more resources in the future. However, we decline
to adopt the test that plaintiffs have urged us to use and,
based on that test, to expand the resources included in the
public trust doctrine well beyond its current scope.
B. Plaintiffsâ Requested Remedies
Although we do not expand the scope of resources
protected by the public trust doctrine using plaintiffsâ pro-
posed test, we address plaintiffsâ requested relief. Based on
the current scope of the protected resources and the stateâs
duties under the doctrine, which we explain below, we con-
clude that, in this case, none of plaintiffsâ requested relief
is available beyond a declaration correctly stating that the
doctrine applies to navigable waters and submerged and
submersible lands.
Plaintiffs sought four declarations in their motion
for partial summary judgment. One requested declaration
related to the atmosphere as a public trust resource:
âA declaration that atmospheric concentrations of car-
bon dioxide (CO2) exceeding 350 parts per million (ppm)
constitutes substantial impairment to the atmosphere and
thereby the other public trust assets[.]â
That requested declaration rests on the assumption that
the atmosphere is a public trust resource. Because we have
already concluded that it is not, no further discussion of that
declaration is necessary.
Plaintiffs also requested a declaration concerning
both the scope of the resources covered by the doctrine and
the stateâs duties:
â[The] State of Oregon, as a trustee and sovereign entity,
has a fiduciary obligation to manage the atmosphere, water
resources, navigable waters, submerged and submersible
lands, shorelands and coastal areas, wildlife and fish as
public trust assets, and to protect them from substantial
impairment caused by the emissions of greenhouse gases
in, or within the control of, the State of Oregon and the
resulting adverse effects of climate change and ocean
acidification[.]â
Cite as 367 Or 143 (2020) 167
Because that declaration in part concerns the scope of the
resources covered by the public trust doctrine, and both
plaintiffs and the state correctly point out that the cir-
cuit court erroneously omitted navigable waters as trust
resources, plaintiffs are entitled to a declaration that the
public trust doctrine applies to navigable waters and sub-
merged and submersible lands. For the resources besides
navigable waters and the submerged and submersible lands,
plaintiffsâ requested declaration fails to seek a form of relief
that may be granted in this case.
That same declaration also would impose a âfidu-
ciary obligationâ on the state to protect trust resources,
including navigable waters and submerged and submers-
ible lands under those waters, from substantial impairment
caused by climate change. That component of the requested
relief presents two discrete issues: whether the state has
a fiduciary obligation under the public trust doctrine and,
if so, whether âsubstantial impairmentâ is the appropriate
standard to evaluate the stateâs execution of its fiduciary
obligation. We need only address the first issue.
Plaintiffs argue that courts âhave consistently
defined the stateâs relationship to the public and our shared
natural resources as a âtrust.â â As a result, plaintiffs argue,
this court should acknowledge the legal meaning that
attaches to that word. As plaintiffs view it, common-law
trust principles like those applicable to trustees of private
trustsâincluding that trustees owe beneficiaries fiduciary
dutiesâshould guide an understanding of the stateâs duties
to protect public trust resources under the public trust
doctrine.
This court has described the state as filling the role
of a âtrusteeâ within the doctrine. Winston Bros. Co., 156 Or
at 511 (â[A]lthough the title [to the land underlying naviga-
ble waters] passed to the state by virtue of its sovereignty,
its rights were merely those of a trustee for the public.â).
And we have previously relied on common-law private trust
cases in explaining the stateâs role as trustee, declaring that
âeven when a trustee has discretion with respect to how
trust property is managed, the trusteeâs actions must sat-
isfy the âgeneral standard of reasonablenessâ in exercising
168 Chernaik v. Brown
that discretion.â Kramer, 365 Or at 446 (quoting Rowe v.
Rowe et al., 219 Or 599, 604, 347 P2d 968 (1959)).
But this courtâs case law cannot be read to conclude
that all common-law principles of private trust law govern
the public trust doctrine. Although some common-law prin-
ciples of private trust law may be consistent with the public
trust doctrine, see, e.g., Kramer, 365 Or at 446 (recogniz-
ing the âbasic principle of trust lawâ requiring a trustee to
protect trust property and to manage trust property in a
way that will benefit all trust beneficiaries), we observed
in Kramer that â[n]either the legislature nor this court has
mandated specific requirements or prohibitions to govern
the stateâs management of the waters that it holds in trust
for the public as a whole,â id.8
Given the abstract nature of this litigation and
this courtâs doctrines of judicial restraint and stare decisis,
we reject plaintiffsâ argument in this case that the public
trust doctrine imposes obligations on the state like those
that trustees of private trusts owe to trust beneficiaries.
Plaintiffsâ suggestion of a wholesale importation of general-
ized private trust principles to govern the stateâs obligations
under the public trust doctrine could result in a fundamental
restructuring of the public trust doctrine and impose broad
new obligations on the state, beyond the recognized duty that
the state has to protect public trust resources for the benefit
of the publicâs use of navigable waterways for navigation,
recreation, commerce, and fisheries. Accordingly, under the
legal theory that they articulate in this case, plaintiffs are
not entitled to their requested declaration that the state has
fiduciary obligations under the public trust doctrine that
require that this court declare that the state must protect
8
The dissent misreads the idea in this paragraph of the opinion that
âsome common-law principles of private trust law may be consistent with the
public trust doctrineâ as tantamount to an acknowledgment that the state, as
the trustee of public trust resources, has to comply with a generalized duty to
protect trust resources for the benefit of trust beneficiaries, which the dissent
then concludes encompasses a fiduciary duty to protect resources against the
effects of climate change. 367 Or at 171 (Walters, C. J., dissenting); see also
id. at 174 (citing Kramer for the same argument). That is the dissentâs sole tie to
the existing public trust doctrine, but this court has never extended the stateâs
duties under the public trust doctrine that broadlyânot in this case, not in
Kramer, and not in any of the cases concerning the public trust doctrine since
statehood.
Cite as 367 Or 143 (2020) 169
public trust resources from the effects of climate change.
That conclusion makes it unnecessary to address the stateâs
secondary argument that imposing such duties would vio-
late the principle of separation of powers.
Finally, plaintiffs request two additional declara-
tions that are specifically related to carbon dioxide emis-
sions, applying a âsubstantial impairmentâ standard to
natural resources that are public trust resources as well as
natural resources that are not:
âA declaration that to protect these public trust assets
from substantial impairment, Oregon must contribute to
global reduction in emissions of CO2 necessary to return
atmospheric concentrations of carbon dioxide to 350 ppm by
the year 2100[.]â
âA declaration that [d]efendants have failed, and are
failing, to uphold their fiduciary obligations to protect
these trust assets from substantial impairment by not ade-
quately reducing and limiting emissions of carbon dioxide
and other greenhouses gases in, or within the control of,
the State of Oregon.â
Because we conclude that plaintiffs are not entitled to their
requested declaration concerning the stateâs duties, we need
not decide whether a âsubstantial impairmentâ standard
and specific greenhouse gas emission limits should be used
with respect to the duties that plaintiffs have contended the
state has to protect public trust resources from the effects of
climate change.
III. CONCLUSION
The public trust doctrine in Oregon currently
encompasses submerged and submersible lands underlying
navigable waters and the navigable waters themselves. We
do not foreclose the possibility that the doctrine could expand
to include other resources in the future, but the test that
plaintiffs urge us to adopt sweeps too broadly. We also do not
foreclose the possibility that the doctrine might be expanded
in the future to include additional duties imposed on the
state. However, even though the state acknowledges in brief-
ing to the court that it recognizes the threats posed by cli-
mate change and that the state needs to do more to address
those threats, plaintiffs have not developed a legal theory
170 Chernaik v. Brown
that leads us to alter current law concerning the stateâs duty
under the public trust doctrine. In this case, therefore, we do
not impose broad fiduciary duties on the state, akin to the
duties of private trustees, that would require the state to
protect public trust resources from effects of greenhouse gas
emissions and consequent climate change. Thus, we affirm
the decision of the Court of Appeals and remand the case to
the circuit court for entry of a judgment declaring the par-
tiesâ respective rights, with instructions to include navigable
waters as a public trust resource.
The decision of the Court of Appeals is affirmed.
The judgment of the circuit court is vacated, and the case is
remanded to the circuit court.
WALTERS, C. J., dissenting.
All parties to this case, including the state, agree
that climate change âis causing, and will continue to cause,
harm to our planet and the State of Oregon.â All parties
to this case, including plaintiffs, agree that the legisla-
tive and executive branches of our state government have
taken steps to address and prevent that harm. I conclude
that the judicial branch also has a role to play: This court
can and should determine the law that governs the other
two branches as they undertake their essential work. This
court can and should issue a declaration that the state has
an affirmative fiduciary duty to act reasonably to prevent
substantial impairment of public trust resources. Because
the majority declines to issue that declaration in this case, I
dissent.1
In doing so, however, I want to emphasize that the
majority does not foreclose such a declaration in another
case. Chernaik v. Brown, 367 Or 143, 166, 475 P3d 68 (2020).
The majority begins by considering the natural resources to
which the public trust doctrine applies and issues a decla-
ration that it certainly applies to navigable waters and the
submerged and submersible lands underlying those waters.
The majority expressly does ânot foreclose the idea that the
1
I do not address the majorityâs conclusion that the public trust doctrine does
not encompass natural resources beyond navigable waters and the submerged
and submersible lands underlying those waters.
Cite as 367 Or 143 (2020) 171
public trust doctrine may evolve to include more resources
in the future.â Id. The majority then goes on to consider two
additional questions: âwhether the state has a fiduciary obli-
gation under the public trust doctrine and, if so, whether
âsubstantial impairmentâ is the appropriate standard to
evaluate the stateâs execution of its fiduciary obligation.â
Id. at 167. Although the majority does not answer those two
questions affirmatively, it expressly states that it does ânot
foreclose the possibility that the doctrine might be expanded
in the future to include additional duties imposed on the
state.â Id. at 169.
As I see it, however, the time is now. This court
already has recognized the stateâs duty to protect and pre-
serve the natural resources to which the public trust doc-
trine applies and should declare that that duty exists; the
reasons the majority gives for refusing to do so are not con-
vincing. As to the first questionâwhether the state has a
fiduciary obligation under the public trust doctrineâthe
majority sidles up to, if it does not affirmatively embrace, an
affirmative conclusion. The majority confirms that the state
has a ârecognized dutyâ to âprotect public trust resources for
the benefit of the publicâs use.â Id. at 168. And the majority
acknowledges that that duty is consistent with the â âbasic
principle of trust lawâ requiring a trustee to protect trust
property and to manage trust property in a way that will
benefit all trust beneficiaries.â Id. (quoting Kramer v. City of
Lake Oswego, 365 Or 422, 446, 446 P3d 1, adhâd to as modi-
fied on recons, 365 Or 691, 455 P3d 922 (2019)). Rather than
declaring that the state has that ârecognized duty,â however,
the majority reframes the question. The majority character-
izes plaintiffsâ claim as one that seeks a broader declaration
of the stateâs dutyârequiring the âwholesale importation
of generalized private trust principles to govern the stateâs
obligations under the public trust doctrineââand declines
that invitation to expand the law. 367 Or at 168. The major-
ity cites âthe abstract nature of this litigationâ and âthis
courtâs doctrines of judicial restraint and stare decisisâ and
concludes that âunder the legal theory that they articulate
in this case,â plaintiffs are not entitled to the declaratory
relief that they request. Id. (emphasis added). Then, hav-
ing refused to declare the existence of a duty, the majority
172 Chernaik v. Brown
correctly decides that it need not reach the second question
presentedâwhether âsubstantial impairmentâ is the appro-
priate standard to evaluate the stateâs execution of that
duty. Id. at 169. As I explain below, I would answer both of
the pressing questions that this case presents, and I would
answer them both affirmatively.
THE PUBLIC TRUST DOCTRINE IMPOSES AN
AFFIRMATIVE FIDUCIARY DUTY
I begin with my understanding of plaintiffsâ argu-
ment on the first question presentedâwhether the state has
a fiduciary obligation under the public trust doctrine. As
I understand plaintiffsâ position, they do not seek a decla-
ration that the public trust doctrine incorporates all of the
principles that apply to private trusts. Rather, they argue
that, in deciding the nature of the obligation that the state
has under the public trust doctrine, this court should con-
sider, as it has in the past, the metaphor of a common-law
trust. See, 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 âwater is not
the only resources that the state holds in trustâ).2 In fact,
plaintiffs expressly state that â[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 plaintiffsâ claims.â
Instead, they âask this court to declare that the public trust
doctrine imposes an obligation on the state to protect and
preserve trust resources.â
2
Similarly, the phrase âfiduciary duty,â when used by the plaintiffs, is a
way of describing what plaintiffs assert are the obligations the state owes the
public when managing public trust resources. Plaintiffs assert that when they
use the word âfiduciary,â to describe the stateâs duty, they mean that the duty is
âprotectiveâ in nature. Describing the stateâs obligation as a âfiduciaryâ one does
not mean that the state is under the exact same obligations of that of a trustee
of a common-law trust. See Tamar Frankel, Fiduciary Law, 71 Cal L Rev 795,
795-97 (1983) (noting that â[f]iduciaries appear in a variety of forms,â and that
â[c]ourts, legislatures, and administrative agencies increasingly draw on fidu-
ciary law to answer problems caused by * * * social changesâ). In this case, the
analogy to a âfiduciaryâ is helpful for illustrating the idea that the state holds
title to public trust resources for the benefit of the public and that the stateâs obli-
gations under the doctrine should reflect the benefits that the doctrine is aimed at
achieving.
Cite as 367 Or 143 (2020) 173
Given that understanding of the declaration that
plaintiffs seek, I turn to the merits of the dispute and the
stateâs arguments in opposition. With respect to the first
question presented, the state argues that, to date, this
court has applied the public trust doctrine only as a limit on
state action alienating or restricting the use of public trust
resources. The state contends that we should not expand the
stateâs obligation to incorporate an affirmative duty to act.
I agree with the stateâs description of the factual
context in which this courtâs public trust cases have been
decided. We have decided that the public trust doctrine pro-
hibits the state from taking action that restricts the publicâs
use of public trust resources, but we have not been called
upon to decide whether the public trust doctrine requires
the state to take affirmative steps to protect those resources.
Nevertheless, what we have said about that doctrine and its
purpose leads me to conclude that the stateâs obligation is
indeed one that requires affirmative action when the appli-
cable standard is met.
The state holds resources to which the public trust
doctrine applies in âtrustâ for the public.3 See, e.g., Kramer,
365 Or at 438 (noting that âthis courtâs cases describe the
publicâs right in terms of the beneficial interest of one for
whom land is held in âtrustâ â); 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 ânot in a proprietary capacity, but in its sov-
ereign capacity, that is to say, as trustee for the publicâ).
The âcore purposeâ of the public trust doctrine is âto obli-
gate the state to protect the publicâs abilityâ to use and enjoy
those resources.4 367 Or at 161 (declining to adapt public
3
Under Oregon law, a âtrustâ is simply an âobligationâ that rests upon âa
person by reason of a confidence reposed in him to apply or deal with property for
the benefit of some other person.â Templeton v. Bockler, 73 Or 494, 506, 144 P 405
(1914).
4
This court clarified the nature of the publicâs rights in Kramer; however,
the principle announced in that case was not a new one. See Luscher v. Reynolds,
153 Or 625, 635, 56 P2d 1158 (1936) (rejecting ânavigabilityâ test to determine
what resources are protected by the public trust doctrine because â[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 termsâ); 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 limits on the stateâs
authority under the doctrine further the goal of ensuring
the âpublicâs right to use the public waters of the stateâ);
Winston Bros. Co. 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, âalthough title passed to the state
by virtue of its sovereignty, its rights were merely those of
a trustee for the publicâ and that the purpose of the trust
doctrine was to ensure that the resources âremain public
so that all persons may use themâ); accord Idaho v. Coeur
dâAlene Tribe of Idaho, 521 US 261, 285, 117 S Ct 2028, 138
L Ed 2d 438 (1997) (describing stateâs duty under public trust
doctrine as an âobligation to regulate, improve, and secure
submerged lands for the benefit of every individualâ). That
obligation is âconsistent with a * * * basic principle of trust
law: that a trustee has a duty to protect trust property and
to ensure, consistently with any requirements and prohibi-
tions specific to the trust, that trust property is managed
in a way that will benefit trust beneficiaries.â Kramer, 365
Or at 446 (internal quotations omitted). In Morse v. Oregon
Division of State Lands, 285 Or 197, 201, 590 P2d 709 (1979),
this court relied on Illinois Central R.R. v. Illinois, 146 US
387, 13 S Ct 110, 36 L Ed 1018 (1892), and described that
case as the âbellwetherâ of public trust cases. And in Illinois
Central, the Court explained that the public trust doctrine
âis founded upon the necessity of preserving to the public
the use of navigable waters from private interruption and
encroachment.â 146 US at 436. Because the purpose of the
public trust doctrine is to ensure the publicâs rights to use
and enjoy public trust resources now and into the future,
the doctrine must impose an obligation to protect and
preserve them. To ensure the future use and enjoyment of
public trust resources, the state must do more than refrain
from selling public trust resources and restricting their use.
Or 13, 29, 175 P 437 (1918) (many lakes are not suitable for navigation but used
for recreational purposes and âother public purposes which cannot now be enu-
merated or even anticipatedâ so to âhand over all these lakes to private own-
ership, under any old or narrow test of navigability, would be a great wrong
upon the public for all time, the extent to which cannot perhaps, be new even
anticipatedâ).
Cite as 367 Or 143 (2020) 175
The state must act reasonably to prevent their substantial
impairment.5
Let me give some examples to illustrate circum-
stances in which the state may have a duty to act and this
court may have a role in declaring and enforcing that duty.
The state acknowledges that â[a] court has the power to pro-
hibit state action that would unreasonably restrict the pub-
licâs rights.â Thus, if the state were emitting pollutants that
were substantially interfering with the publicâs rights to use
and enjoy a particular trust resource, then it would seem
beyond contest that, on a plaintiffâs allegations of harm, this
court could and should declare that the state would have an
obligation to act reasonably to prevent substantial impair-
ment of that resource and to enter an injunction prohibiting
the state from unreasonably emitting those pollutants.
Here, the alleged circumstances are different: Plain-
tiffs allege that actors other than the state are causing cli-
mate change, and plaintiffs do not allege that the state is
wrongfully acting; they allege that the state is failing to
act. The state contends that, in this circumstance, no decla-
ration of its affirmative obligations is permitted. The state
argues that the duty that the state owes under the public
trust doctrine is a negative restriction only and that this
court does not have authority to âcompel state action.â
But if the state knew that a particular third party
was emitting a particular pollutant that was causing sub-
stantial impairment to a particular lake and thereby was
interfering with the publicâs rights to use and enjoy that
lake, I cannot imagine that this court would refuse to declare
that the state had a fiduciary obligation to act reasonably to
protect and preserve the lake from substantial impairment.
5
Cases from other jurisdictions articulate the doctrine similarly. See
Pa Env. Def. Foundation v. Com., 640 Pa 55, 100, 161 A3d 911 (2017) (the public
trust doctrine âimpose[s] [a] fiduciary duty to manage the corpus of the * * * pub-
lic trust for the benefit of the people to accomplish its purposeâconserving and
maintaining the corpus by, inter alia, preventing and remedying the degradation,
diminution and depletion of our public natural resourcesâ); In re Water Use Permit
Applications, 94 Hawaiâi 97, 172-73, 9 P3d 409 (2000) (stateâs water permitting
scheme was required to take into account the stateâs âaffirmative duty under the
public trust and statutory instream use protection scheme to investigate, con-
sider, and protect the public interest in the flow of the Kahana streamâ).
176 Chernaik v. Brown
Whether the state or a third party emitted the pollutant
should not matter in the analysis. In either circumstance,
the pollutant would harm the lake and interfere with the
publicâs right to use and enjoy it.
When an entity has a duty to protect person or
property from harm, the entity breaches that duty when it
causes such harm. And an entity can cause harm either by
acting or failing to act. Fazzolari v. Portland School Dist.
No. 1J, 303 Or 1, 734 P2d 1326 (1987) (school could be held
liable for negligence for injuries caused when student was
attacked on school grounds where school knew of previous
attacks and allegedly failed to provide proper supervision
and security personnel, failed to warn, and failed to trim
and remove vegetation where assailant hid); see also Little
v. Wimmer, 303 Or 580, 739 P2d 564 (1987) (noting that
the state has a duty to maintain public roadways it owns);
Stuhr v. Berkheimer Co., 220 Or 406, 349 P2d 665 (1960)
(explaining that âan act or omission may be regarded as
negligent [so long as] the person charged therewith [had]
knowledge or notice that such act or omission involved [a
risk of harm]â (internal quotation omitted)). In Little, for
example, the state argued that it had no duty to remedy
a dangerous condition on a roadway and could not be held
liable for a failure to act. 303 Or at 584. We disagreed and
explained that there was no dispute that the state was
responsible for maintaining the intersection. Id. at 585.
Therefore, we said, the question should be centered not on
whether the state had a duty to maintain the intersection,
but on whether the harm caused by the failure to do so
was foreseeable. Id. Here, because the state has a duty to
protect public trust resources and to preserve the publicâs
rights to those resources, the state breaches that duty when
it causes foreseeable harm, whether by acting or failing to
act.
Here, again, the circumstances are different from
the hypothetical posed: Plaintiffs allege that many actors
are causing climate change and that many, if not all, pub-
lic trust resources are being harmed. Those circumstances
add complexity, but they do not change the nature of the
stateâs fiduciary duty to protect public trusts resources for
the publicâs use and enjoyment. Rather, those circumstances
Cite as 367 Or 143 (2020) 177
may bear, as the state contends in its separation of powers
arguments, on the degree to which a court is permitted to
determine or is reasonably able to determine whether the
state has fulfilled that duty.
Having taken the position that the state has an
affirmative duty to protect public trust resources, it is
incumbent on me to address the merits of the stateâs sepa-
ration of powers arguments.6 I am convinced that, despite
the complexity of the problem posed by climate change, the
judicial branch has an important constitutional role to play
and should declare the governing law.
DECLARING AN AFFIRMATIVE FIDUCIARY
DUTY DOES NOT VIOLATE SEPARATION
OF POWERS PRINCIPLES
The state advances two arguments based on sepa-
ration of powers principles. First, the state argues that, with
respect to climate change, a declaration of an affirmative,
fiduciary duty to act would be fundamentally inconsistent
with the allocation of responsibility outlined in Article III,
section 1, of the Oregon Constitution, and would shift the bal-
ance of power between the branches or authorize the court
to perform the functions of the other branches. Second, the
state argues that the public trust doctrine does not supply
judicially manageable standards for evaluating the stateâs
compliance with that affirmative duty. I recognize that the
responsibility for addressing climate change rests with the
legislative and executive branches of our state government,
and I recognize the complexity of the challenge they face.
That does not mean, however, that our courts do not have a
constitutional role to play.
One of the core functions of the judicial branch is to
determine the legal authority and obligations of the other
two branches of government. As this court said in Pendleton
School Dist. v. State of Oregon, 345 Or 596, 609, 200 P3d
6
As noted, having concluded that plaintiffs are not entitled to their requested
declaration that the state has fiduciary obligations under the public trust doc-
trine, the majorityâcorrectlyâdeclines to address the second issue presentedâ
âwhether a âsubstantial impairmentâ standardâ is the appropriate standard to
evaluate the stateâs execution of its fiduciary obligation to address the effects of
climate change on Oregonâs trust resources. 367 Or at 169.
178 Chernaik v. Brown
133 (2009), it is this courtâs âobligation to determine what
the law is.â See also Marbury v. Madison, 5 US (1 Cranch)
137, 177, 2 L Ed 60 (1803) (âIt is emphatically the province
and duty of the judicial department to say what the law is.â).
Exercise of that authority does not violate separation of pow-
ers principles.
Article III, section 1, of the Oregon Constitution
provides for separation of powers between the stateâs three
branches of government. It provides:
âThe powers of the Government shall be divided into
three separate branches, the Legislative, the Executive,
including the administrative, and the Judicial; and no per-
son charged with official duties under one of these branches,
shall exercise any of the functions of another, except as in
this Constitution expressly provided.â
Or Const, Art III, § 1. That provision ârequires the three
branches of state government to exercise their functions
separately and exclusively.â Cascadia Wildlands v. Oregon
Dept. of State Lands, 365 Or 750, 764, 452 P3d 938 (2019).
However, â[t]he separation of powers principle cannot in prac-
tice work absolutely; there is a necessary overlap between
the governmental functions.â Sadler v. Oregon State Bar,
275 Or 279, 285, 550 P2d 1218 (1976); see also Putnam v.
Norblad, 134 Or 433, 438, 293 P 940 (1930) (âPractically,
[the three branches] are not required to be kept entirely dis-
tinct, as their duties sometimes are blended or overlap.â).
In evaluating a separation of powers argument, âthe appro-
priate inquiry is whether the action of another branch of
government has interfered with [another] in a manner that
prevents or obstructs the performance of [that branchâs]
irreducible constitutional task.â See State ex rel Metropolitan
Public Defender v. Courtney, 335 Or 236, 241, 64 P3d 1138
(2003) (applying the standard to question of legislative inter-
ference with judiciaryâs power); Cascadia Wildlands, 365 Or
at 765 (noting that Courtney states the standard for finding
a separation of powers violation). The separation of powers
principle is therefore ânot offended by choices that the other
branches make, unless those choices unduly burden the
capacity of [another branch] to perform its core function.â
Courtney, 335 Or at 241.
Cite as 367 Or 143 (2020) 179
The state correctly does not contest the authority
of the judicial branch to determine the authority and obli-
gations of the other two branches, nor does it argue that a
declaration of an affirmative fiduciary obligation to protect
public trust resources would unduly burden their ability to
perform their core functions. Rather, the state argues as
follows:
âHow Oregon should respond to the global climate-
change crisis is a policy question of immense importance
and complexity. The political branches of government must
answer that question in the first instance: the legislature
passes laws, after a deliberative process to determine the
appropriate course of action, and the executive enforces
those laws and takes additional action through agencies.
The Governor also has the power to exercise executive
authority, as necessary and as authorized by law. The
courts can then review laws for compliance with the con-
stitution and can review executive actions for compliance
with the law.â
I agree, but I also contend that the courts can
review the acts of the legislature and the Governor not only
for compliance with the constitution and statutory law, but
also for compliance with common-law dictates, including
the common-law public trust doctrine. It is, after all, a core
function of this branch to determine what the public trust
doctrine requires, and, in exercising that authority, this
court may determine that a legislative action which violates
the principles of the public trust doctrine is invalid. See, e.g.,
Kramer, 365 Or at 450 (holding that the city may not unrea-
sonably interfere with the publicâs ability to enter the public
water from abutting upland, and whether cityâs restrictions
should be invalidated depended on a reasonableness test);
Winston Bros. Co., 156 Or at 511 (â[T]he state can make no
sale of the soil underlying its navigable waters so as to pre-
vent the use by the public of such waters for the purposes of
navigation and fishing, but must hold them in trust for the
public.â); Corvallis & Eastern R. Co. v. Benson, 61 Or 359,
369-70, 121 P 418 (1912) (explaining that the state holds
submerged and submersible lands underlying public-owned
waters in trust for the people and that the state may not
dispose of the lands abutting those resources if it would
180 Chernaik v. Brown
materially interfere with the publicâs right to use those
resources themselves).
Again, the state does not seem to take issue with
that application of judicial authority; instead, the state
argues against a consequence that it asserts necessarily will
follow from a declaration of an affirmative fiduciary duty to
protect against harm caused by climate change. The state
argues that plaintiffs ask this court to compel the legisla-
tive and executive branches to make particular policy deci-
sions, including, for example, adopting particular emissions
targets. The state contends that if this court could compel
the other two branches to take those actions, the judicial
branch would wrongfully usurp the roles of the other two
branches and the people of this state.
The state misunderstands or mischaracterizes the
courtâs role in two important respects. First, the state con-
fuses initial decisions about how to combat climate changeâ
decisions only the legislative and executive branches can
makeâwith a review of such decisions for their legalityâa
review that the judicial branch is charged to conduct. Second,
the state fails to recognize that, in undertaking that review
function, a court does not make its own policy decisions;
instead, in the context of a challenge under the public trust
doctrine, the court reviews the decisions of the state under
an objective reasonableness standard. See Kramer, 365 Or
at 450 (explaining that âthe validity of the waterfront reso-
lution depends upon whether the restriction on the publicâs
right to enter the water * * * is objectively reasonable under
the circumstancesâ).
It is true that, when a court determines that an
initial decision made in another branch of government vio-
lates the constitution or other statutory or common law, that
determination may have the effect of precluding the initial
legislative or executive decision and may counsel another.
See State v. Ausmus, 336 Or 493, 508, 85 P3d 864 (2003)
(invalidating statute prohibiting disorderly conduct, former
ORS 166.025(1)(e) (2003), after determining that phrase
âcongregates with other persons in a public placeâ was con-
stitutionally overbroad); see also ORS 166.025(1) (current
version of disorderly conduct statute does not include phrase
Cite as 367 Or 143 (2020) 181
âcongregates with other persons in a public placeâ). But a
courtâs invalidation of a legislative or executive action or
its determination that such an action does not meet a legal
standard, including a common-law legal standard, does not
violate separation of powers principles; it requires that the
other two branches comport with the law.
Here, the applicable legal standard is objective rea-
sonableness.7 Under Kramer, this court evaluates whether
government has violated the public trust doctrine not by
substituting its own views of how best to protect and man-
age public trust resources, but by evaluating whether the
governmentâs acts or omissions are objectively reasonable.
365 Or at 446. Thus, this court may declare that the gov-
ernment has an affirmative fiduciary duty to protect public
trust resources against the ravages of climate change with-
out declaring that the state must meet specific emissions
targets. And a trial court may determine whether the state
breached its duty without explaining what the state would
have had to do to comport with that duty. The question for a
trial court would be whether the state took reasonable steps
to fulfill its fiduciary obligation to protect Oregonâs trust
resources; the fact that the court may have taken different
steps if it had been the policy maker would be immaterial.
The common-law doctrine of nuisance provides
an example of the exercise of the courtâs review function.
That doctrine requires that all property owners, including
the government, maintain and manage property that they
own such that they do not unreasonably interfere with the
use and enjoyment of neighboring properties. See Jacobson
v. Crown Zellerback Corp., 273 Or 15, 18-19, 539 P2d 641
(1975) (to establish nuisance, plaintiffs were required to
7
In Kramer, this court explained that the fiduciary duty to preserve and pro-
tect public trust resources is measured by an âobjective test of reasonableness.â
365 Or at 446-47, 450 (explaining that âwhether a trusteeâs action is reasonable
is an âobjective test of reasonableness in the circumstancesâ â and therefore that
âthe validity of the waterfront resolution depends upon whether the restriction
on the publicâs right to enter the water * * * is objectively reasonable under the
circumstancesâ (quoting White v. Public Employees Retirement Board, 351 Or 426,
443, 268 P3d 600 (2011)). There are other fiduciary duties that may be measured
by different standards, but those are not at issue here. See Strickland v. Arnold
Thomas Seed Service, Inc., 277 Or 165, 172-73, 560 P2d 597 (1977) (noting that
there is a ârigid standard of behavior requiredâ of a trustee under the âduty of
loyalty and good faithâ).
182 Chernaik v. Brown
show that invasion of their right âwas unreasonable in the
sense that the harm to plaintiffs is greater than they should
be required to bear in the circumstancesâ). A court may
declare that that duty exists, may evaluate whether gov-
ernmental owners complied with that duty, and may even
enjoin governmental action without violating separation of
powers principles.
An example of the exercise of that judicial author-
ity is found in Mark v. ODFW, 191 Or App 563, 84 P3d
155 (2004). There, the plaintiffs brought a nuisance claim
against the state, the owner of a public beach adjacent to the
plaintiffsâ land. Id. at 573. The gravamen of the plaintiffsâ
claim was that the state â[had] failed to adequately control
the conduct of [the stateâs] inviteesâ at the public beach. Id.
(internal quotation omitted). On de novo review, the Court
of Appeals found that on sunny days, hundreds, and occa-
sionally, maybe even thousands, of naked adults visited the
public beach and that sometimes those adults engaged in
explicit sexual conduct in plain view of plaintiffs, and some-
times even did so on plaintiffsâ own property. Id. at 574. The
court concluded that the visitorsâ conduct âsubstantially and
unreasonably interfered with plaintiffsâ ability to use or
enjoy their property,â and rejected the stateâs argument that
it could not be liable for nuisance because the plaintiffs had
failed to show that it âdid not undertake reasonable efforts
to control intrusive displays of nudity and associate offen-
sive conduct by beach users.â Id. at 578. The court reviewed
the stateâs âbeach use planâ and found that far from miti-
gating the interference with plaintiffsâ use and enjoyment
of their property, may have exacerbated the problems.
Id. at 579. The court affirmed the trial courtâs determina-
tion that defendants failed to take reasonable steps to con-
trol the offensive uses on their property and its issuance of
a permanent injunction requiring the state to eliminate the
nuisance. Id. at 565.
As a final matter, the court took up the stateâs
arguments about the scope and content of that injunctionâ
specifically, its requirements that the state âadequately staff
the area in and around plaintiffsâ property,â âestablish a
buffer of sufficient length to avoid viewing of nude sunbath-
ers on [the beach] from plaintiffsâ property,â and âsufficiently
Cite as 367 Or 143 (2020) 183
sign the North boundary [of the stateâs property].â Id. at 572.
The state argued that those terms violated principles of
separation of powers because they impermissibly impinged
on the prerogatives of the Oregon Department of Fish and
Wildlifeâan executive agencyââto select the means to
perform its prescribed functions.â Id. at 579. The Court of
Appeals disagreed. It noted that the terms of the injunc-
tion afforded the Oregon Department of Fish and Wildlife
âconsiderable flexibility in choosing the means by which the
mandated ends are to be accomplished,â and that the cases
that the state had cited did not preclude the issuance of the
injunction. Id. at 580.
Similarly, here, the state does not cite any cases
limiting the authority of the judicial branch to declare
the common-law obligations of the other two branches or
to review their acts or omissions for compliance with the
applicable legal standard. Here, the declaration of an affir-
mative fiduciary obligation to protect and manage public
trust property would allow a court to review the actions or
omissions of those in the legislative and executive branches
for objective reasonableness, but the exercise of that review
function would not necessarily usurp or interfere with the
policymaking functions of the other two branches.
That brings me, finally, to the obstacle that all
branches face when confronted with the magnitude of the
problem presented by climate changeâits scientific com-
plexity. The state characterizes that complexity as raising
questions of separation of powers without citing a case that
makes that link. Instead, the state refers to a concern for a
lack of âjudicially manageable standards,â using a phrase
from Baker v. Carr, 369 US 186, 82 S Ct 691, 7 L Ed 2d 663
(1962). There, the Supreme Court characterized questions
under the Guaranty Clause as âpolitical questionsâ due, in
part, to its view that that clause does not include âjudicially
manageable standards.â Id. at 223 (explaining that the
Guaranty Clause is not a ârepository of judicially manage-
able standards which a court could utilize independently in
order to identify a Stateâs lawful governmentâ). Here, the
state does not contend that questions about whether the
state has met its obligations under the public trust doc-
trine are âpolitical questionsâ under Baker; rather, the state
184 Chernaik v. Brown
seems to argue that a courtâs review of the stateâs compli-
ance with its public trust obligations will require the court
to evaluate the stateâs âpolicyâ decisions. The state seems to
assume that the proper standard of review would be review
for abuse of discretion and seems to argue that review under
that standard would require the court to make substantive
âpolicyâ decisions:
âAttempting to apply such a standard to the complex
policy decisions that are required in addressing climate
changeâdecisions that invariably touch on a wide range
of complex issues, including transportation, energy gener-
ation, energy efficiency, and a host of economic consider-
ationsâwould require the court to make substantive policy
decisions under the guise of a common law doctrine.â
That argument is not persuasive. First, as dis-
cussed above, judicial review for compliance with the law
may have the effect of invalidating a policy decision of
another branch, but in exercising that function, a court does
not itself make a policy decision. Second, this court reviews
the stateâs compliance with its trust obligation to preserve
and protect trust resources for objective reasonableness, not
abuse of discretion.8 Third, the fact that review for objective
8
It is interesting that the state cites the Restatement (Third) of Trusts in
support of its argument for an abuse of discretion standard, given its argument
that this court should not consider general trust principles in deciding public
trust cases. More importantly, the provisions that the state cites for that defer-
ential standard are consistent with our decision in Kramer adopting an objective
reasonableness standard. The state asserts that under general trust principles,
â[w]hen a trustee has discretion with respect to the exercise of a power, its exer-
cise is subject to supervision by a court only to prevent abuse of discretion.â
Restatement (Third) of Trusts § 87 (2007). Therefore, the state asserts, plaintiffs
would have to show that the legislature or Governor acted outside âthe range of
legally correct discretionary choicesâ and that those actions did not result in a
âpermissible, legally correct outcome.â See State v. Rogers, 330 Or 282, 312, 4 P3d
1261 (2000) (describing abuse of discretion standard of review). The Restatement
provisions the state relies upon explain, however, that a âcourt will not interfere
with a trusteeâs exercise of a discretionary power (or discretion not to exercise
the power) when that conduct is reasonable.â Restatement § 87 (comment b). The
state appears to be conflating the use of the word âdiscretionâ in the Restatement
(Third) of Trusts, which is used to describe the idea that the trustee has consider-
able discretion in the ability to make the initial choices as to how a trust should
be managed, with this courtâs standard of review for âabuse of discretion.â As the
Restatement explains, the question courts ask is whether the trusteeâs choices
were reasonable, but that does not mean our standard of review when evaluating
a trusteeâs decisions is for abuse of discretion. See Restatement § 87 (comment c)
(noting that in âmost of the litigation in which it is concluded that a trustee has
Cite as 367 Or 143 (2020) 185
reasonableness requires consideration of âa wide range of
complex issues,â does not mean that such a review would
offend separation of powers principles.
Judicial review of the legality of government action
often requires consideration of a range of factors. See, e.g.,
State v. Rodriguez/Buck, 347 Or 46, 58, 217 P3d 659 (2009)
(when determining whether a sentence is so disproportion-
ately severe that it âshocks the moral senseâ of a reasonable
person, this court considers âat leastâ three factors); State
v. Iseli, 366 Or 151, 173, 458 P3d 653 (2020) (determination
of whether state established unavailability of witness by
showing pursuit of âreasonable meansâ to procure witness
should be judged on the âtotality of the circumstancesâ and
â[t]hose circumstances encompass a wide range of factorsâ).
Judicial review may even involve the balancing of competing
interests. See Busch v. McInnis Waste Systems, Inc., 366 Or
628, 650, 468 P3d 419 (2020) (invalidating statutory dam-
ages cap that violated Article I, section 10, and explaining
that the legislature may modify common-law remedies but
may only do so âfor a reason sufficient to counterbalance the
substantive right that Article I, section 10, grantsâ). That
those exercises are difficult does not, however, preclude
their undertaking.
And the same is true even when a court reviews
governmental action for an abuse of discretion. A court also
conducts review for abuse of discretion without substitut-
ing its own substantive policy decisions. School Dist. No. 17
v. Powell, 203 Or 168, 191, 279 P2d 492 (1955) (discuss-
ing abuse of discretion standard of review of school board
decisions and noting that â[c]ourts can interfere only when
the board refuses to exercise its authority or pursues some
unauthorized course,â and that a â[d]ifference in opinion
or judgment is never a sufficient ground for interferenceâ
(internal quotation omitted)).
I turn now to the stateâs final argument, which is
that if plaintiffs prevail, âthen the courts would be hopelessly
committed an abuse of discretion involves a finding that the trustee, in exercising
a power, has acted unreasonablyâ). As we explained in Kramer, under Oregon law,
âwhether a trusteeâs action is reasonable is an âobjective test of reasonableness in
the circumstances.â â 365 Or at 446-47 (quoting White, 351 Or at 443).
186 Chernaik v. Brown
entangled in the discrete policy decisions that are entrusted
to the legislative and executive branches by the constitu-
tion.â That is problematic, according to the state, because
courts are âill equipped to balance such policy concerns.â I
disagree. The complexity of an issue may make a judicial
decision more difficult, but it does not permit this court to
abdicate its role.
Consider, for example, the Eighth Amendment pro-
hibition on âcruel and unusual punishment.â As the United
States Supreme Court has explained, â â[t]he basic concept
underlying the Eighth Amendment is nothing less than the
dignity of man.â â Brown v. Plata, 563 US 493, 510, 131 S Ct
1910, 179 L Ed 2d 969 (2011) (quoting Atkins v. Virginia,
536 US 304, 311, 122 S Ct 2242, 153 L Ed 2d 335 (2002)).
Determining whether a state has violated a prisonerâs
Eighth Amendment rights and how to remedy a violation
requires a weighing of imponderables and a review of expert
decision-making:
âTo incarcerate, society takes from prisoners the means
to provide for their own needs. Prisoners are dependent on
the State for food, clothing, and necessary medical care.
A prisonâs failure to provide sustenance for inmates may
actually produce physical torture or a lingering death. Just
as a prisoner may starve if not fed, he or she may suffer or
die if not provided adequate medical care. A prison that
deprives prisoners of basic sustenance, including adequate
medical care, is incompatible with the concept of human
dignity and has no place in civilized society.
âIf government fails to fulfill this obligation, the courts
have a responsibility to remedy the resulting Eighth
Amendment violation. Courts must be sensitive to the
Stateâs interest in punishment, deterrence, and rehabil-
itation, as well as the need for deference to experienced
and expert prison administrators faced with the difficult
and dangerous task of housing large numbers of convicted
criminals.â
Id. at 510-11 (internal quotations and citations omitted).
In the two consolidated cases that the United States
Supreme Court discussed in Plata, a Special Master and a
Receiver had struggled for over 10 years to oversee efforts to
remediate the unconstitutional conditions in the California
Cite as 367 Or 143 (2020) 187
prisons that had resulted in âoverwhelming evidence of the
systemic failure to deliver necessary care to mentally ill
inmatesâ and an âunconscionable degree of suffering and
death.â Id. at 506-07 (internal quotation omitted). But, as
the Court explained, the need for deference to experienced
and expert prison administrators faced with that difficult
task did not give courts an out:
âCourts nevertheless must not shrink from their obligation
to enforce the constitutional rights of all âpersons,â includ-
ing prisoners. Courts may not allow constitutional viola-
tions to continue simply because a remedy would involve
intrusion into the realm of prison administration.â
Id. at 511 (internal quotation and citation omitted).
Courts also must not shrink from their obligation to
enforce the rights of all persons to use and enjoy our invalu-
able public trust resources. How best to address climate
change is a daunting question with which the legislative
and executive branches of our state government must grap-
ple. But that does not relieve our branch of its obligation to
determine what the law requires. See Alfred T. Goodwin,
A Wake-Up Call for Judges, 2015 Wis L Rev 785, 788 (2015)
(âAs a coequal branch of government, the [judicial] branch
must enforce the legislatureâs obligation to preserve the pub-
lic trust.â). We should not hesitate to declare that our state
has an affirmative fiduciary duty to act reasonably to pre-
vent substantial impairment of our public trust resources. I
respectfully dissent.