Chernaik v. Brown
475 P.3d 68, 367 Or. 143 (2020)
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Rule of Law:
The public trust doctrine in Oregon encompasses navigable waters and the submerged and submersible lands underlying them; however, it does not, under current common-law principles, impose a broad fiduciary duty on the state, akin to that of a private trustee, to protect these resources from the effects of climate change or expand the doctrine to include the atmosphere and all waters/wildlife.
Facts:
- Olivia Chernaik and Kelsey Cascadia Rose Juliana, two young Oregonians, along with their guardians, brought an action against the Governor and the State of Oregon, alleging the state had breached a fiduciary duty under the public trust doctrine.
- The plaintiffs contended that the state was required to act as a trustee under the public trust doctrine to protect various natural resources in Oregon, including the atmosphere, from substantial impairment due to greenhouse gas emissions and resultant climate change and ocean acidification.
- Plaintiffs sought a court declaration that the atmosphere, water resources, navigable waters, submerged and submersible lands, islands, shorelands, coastal areas, wildlife, and fish are public trust resources.
- Plaintiffs also requested a declaration that the state has a fiduciary duty to prevent substantial impairment of these resources caused by greenhouse gas emissions and to implement a court-supervised carbon reduction plan, including an annual accounting of Oregon's carbon dioxide emissions.
- The State of Oregon admitted that global climate change is a very serious problem that is causing, and will continue to cause, harm to the planet and the State of Oregon if global greenhouse gas emissions are not curtailed, and detailed specific adverse impacts already occurring or likely to occur in Oregon.
Procedural Posture:
- Plaintiffs sued the Governor and the State of Oregon in 2011 in state circuit court (the trial court).
- The state moved to dismiss the complaint on jurisdictional grounds, not addressing the merits of the claims.
- The circuit court granted the state's motion to dismiss, concluding that plaintiffs' requested declaratory relief exceeded the court’s authority, claims were barred by sovereign immunity, relief violated separation of powers, and the suit presented political questions.
- Plaintiffs appealed to the Oregon Court of Appeals.
- The Court of Appeals reversed the dismissal, concluding 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, and remanded the case to the circuit court.
- On remand, plaintiffs filed an amended complaint seeking specific declarations and injunctive relief.
- The parties filed cross-motions for summary judgment, with plaintiffs seeking partial summary judgment on their entitlement to declaratory relief.
- The circuit court denied plaintiffs’ motion for partial summary judgment and granted the state’s motion for summary judgment, concluding that the public trust doctrine applied only to submerged and submersible lands, did not impose a fiduciary obligation to protect against climate change effects, and granting relief would violate separation of powers.
- The circuit court entered a general judgment of dismissal.
- Plaintiffs appealed the circuit court's judgment to the Oregon Court of Appeals, and the state conceded that the public trust doctrine also applies to navigable waters.
- The Court of Appeals affirmed the circuit court's conclusion that the state does not have fiduciary obligations under the public trust doctrine to affirmatively protect resources from climate change effects but vacated the judgment and remanded for the circuit court to enter a judgment declaring the parties' rights.
- Plaintiffs (petitioners on review) then sought review from the Oregon Supreme Court.
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Issue:
Does the public trust doctrine in Oregon extend beyond navigable waters and their underlying lands to include all waters, wildlife, and the atmosphere, and does it impose a common-law fiduciary duty on the state to protect these resources from substantial impairment caused by climate change?
Opinions:
Majority - Nakamoto, J.
No, the public trust doctrine in Oregon does not extend beyond navigable waters and their underlying lands to encompass all waters, wildlife, and the atmosphere, nor does it impose a common-law fiduciary duty on the state, akin to a private trustee, to protect these resources from substantial impairment caused by climate change. The court held that the public trust doctrine in Oregon currently encompasses navigable waters and the submerged and submersible lands underlying those waters. While acknowledging that the common-law doctrine is capable of expansion to meet society's needs, the court rejected the plaintiffs' expansive two-part test for determining protected trust resources, finding it too broad and lacking practical limitations. The court clarified that previous adaptations of the doctrine (e.g., from the ebb-and-flow test to 'navigable in fact' waters, or to include recreation as a protected use, as in Guilliams v. Beaver Lake Club and Luscher v. Reynolds) all effectuated the core purpose of obligating the state to protect the public's ability to use navigable waters for identifiable uses, as articulated in Illinois Central Railroad v. Illinois. The court explicitly distinguished the 'wildlife trust' doctrine from the public trust doctrine, stating they are separate and distinct. Regarding the state's duties, the court acknowledged that it has described the state as a 'trustee' (e.g., Winston Bros. Co. v. State Tax Com.) and has relied on some common-law private trust principles (like the duty to manage trust property for beneficiaries' benefit and a 'general standard of reasonableness,' citing Kramer v. City of Lake Oswego and Rowe v. Rowe et al.). However, the court declined to import a wholesale application of generalized private trust principles, including a broad fiduciary duty to prevent 'substantial impairment' from climate change, into the public trust doctrine. It reasoned that such an expansion would fundamentally restructure the doctrine and impose broad new obligations beyond the recognized duty to protect public use of navigable waterways. The court cited judicial restraint and stare decisis, concluding that plaintiffs had not developed a legal theory that warranted such an alteration of current law. Therefore, the court affirmed the Court of Appeals' decision but remanded to the circuit court for a judgment specifically declaring that navigable waters are also public trust resources.
Dissenting - Walters, C. J.
Yes, the judicial branch can and should declare that the state has an affirmative fiduciary duty under the public trust doctrine to act reasonably to prevent substantial impairment of public trust resources, including those currently recognized, from the effects of climate change. Chief Justice Walters argued that the court should immediately declare the state's affirmative fiduciary duty to protect public trust resources. She emphasized that all parties agree climate change is harming Oregon and that the judicial branch has a role in determining the law that governs the other branches, citing Pendleton School Dist. v. State of Oregon and Marbury v. Madison. She noted that the majority acknowledges the state's 'recognized duty' to 'protect public trust resources for the benefit of the public’s use' and that this duty is consistent with the 'basic principle of trust law' requiring a trustee to protect trust property, as per Kramer v. City of Lake Oswego. Walters asserted that plaintiffs were not seeking to import all private trust principles but rather to recognize a 'protective' fiduciary obligation. She reasoned that because the state holds these resources in 'trust' for everyone, with a core purpose to ensure the public's ability to use and enjoy them now and in the future, this obligation must include an affirmative duty to protect and preserve them from substantial impairment, whether the harm is caused by state action or inaction (citing Fazzolari v. Portland School Dist. No. 1J and Little v. Wimmer), or by third parties. Regarding separation of powers, Walters contended that declaring such a duty does not usurp the legislative or executive branches' roles. She explained that the judicial branch's core function is to determine the law governing the other branches, and reviewing the state's actions (or omissions) for compliance with common-law dictates, such as the public trust doctrine, is a legitimate judicial function. Applying an 'objective reasonableness' standard (as established in Kramer) to the state's efforts to protect trust resources against climate change would allow courts to determine if the state's actions are lawful, without dictating specific policies or infringing on legislative/executive prerogatives. She likened this to judicial review in nuisance cases (Mark v. ODFW) or Eighth Amendment cases (Brown v. Plata), where courts address complex issues and balance interests without overstepping their bounds.
Analysis:
This case significantly limits the expansion of the public trust doctrine in Oregon, particularly concerning climate change litigation. While reaffirming the doctrine's adaptability and including navigable waters within its scope, the court refused to broaden the definition of 'trust resources' to include the atmosphere or all wildlife/waters, or to impose a broad, affirmative fiduciary duty on the state to protect against climate change impacts akin to private trust law. This decision establishes a high bar for plaintiffs seeking to leverage the public trust doctrine to compel state action on climate change, requiring a more tailored legal theory than a wholesale importation of private trust principles. Future plaintiffs must either articulate a narrower, more specific theory for expanding the doctrine's scope or duties, or focus on demonstrating how state actions (or inactions) unreasonably interfere with the public's established rights to use existing public trust resources (navigable waters and their underlying lands).
