Oregon's public trust doctrine: public rights in waters, wildlife, and beaches.

• Author: Blumm, Michael C.

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

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

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

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

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

   The 2005 AG opinion recognized that case law does not limit public use rights to navigable-for-title waters in Oregon. (18) Indeed, since 1869, the Oregon Supreme Court has consistently recognized broad public rights in all navigable-in-fact waters, regardless of ownership of the underlying land. (19) By restricting the PTD to navigable-for-title waters, the AG confused the scope of public rights because the courts have never limited public use rights to these waters, and the PTD protects public uses like recreational boating and floating in all lawfully accessed state waters. (20)

   The courts and the State Land Board have not ascertained ownership of the beds of most state waters, (21) which has created substantial confusion about bed ownership. (22) Therefore, by limiting ancillary public rights to use bedlands and adjacent uplands to waterways with state-owned beds, the 2005 opinion failed to appreciate the scope of public navigation rights recognized since the 1800s. (23) Neither early nor modern cases on public water use rights turned on bed ownership. And the PTD is not based exclusively on bed ownership, but instead is based largely on public navigation rights from the "common highways" language in the Statehood Act of 1859 (reflecting the language of the Northwest Ordinance of 1787 (24)) as well as the states' long recognition of public ownership of water. (25)

   The wealth of early Oregon case law protecting broad public rights in navigable waters, including ancillary rights, also suggests that the PTD has become a background principle of state property law. The United States Supreme Court has explained that a state does not owe constitutional compensation under the Takings Clause of the Fifth Amendment when it regulates private property consistent with background principles of state property law. (26) Justice Scalia once questioned whether customary public rights to use Oregon's ocean beaches are actually a background principle of Oregon property law. (27) But since 1869, the Oregon Supreme Court recognized paramount public rights in all navigable-in-fact waters, even those with privately owned beds. (28) In 1912, the state supreme court explained that "[t]he right of the state so to regulate the use of tidelands as not materially to impede the public right of navigation is a constant factor in every title relating to such land, but regulation is not confiscation." (29) The next year, in 1913, Governor Oswald West and the legislature again declared all Oregon tidelands "public highways" based upon their longstanding use for travel along the rugged coast. (30) The modern Oregon Supreme Court declared that customary rights to use Oregon beaches are background principles of state property law burdening private land titles. (31) Consequently, Oregon courts should recognize that public water use rights are also background principles and a defense against compensation claims because the Oregon Supreme Court has consistently upheld these public rights since early statehood. (32)

   This Article maintains that Oregon case law, statutes, and AG opinions support a comprehensive Oregon PTD that protects public rights to use water, wildlife, ocean beaches, and associated uplands. Part II explains how the 2005 AG opinion unnecessarily confined the PTD to navigable-for-title waters while identifying a new category of public use rights in waters with privately owned beds. Part III shows how since the early 1900s, the Oregon Supreme Court has upheld public rights to use all navigable-in-fact waters for recreational purposes, regardless of bed ownership. Part IV proceeds to describe how the courts, the legislature, and executive officials have consistently recognized broad public rights in Oregon's waters, wildlife, and beaches based on public navigation rights, sovereign ownership of water and wildlife, and custom. The Article concludes that Oregon's courts and the AG should unify these common law concepts under the state PTD to consistently recognize public rights in state-owned natural resources. (33)

2. THE 2005 ATTORNEY GENERAL OPINION

   In 2005, controversy surrounding the determination of state bed ownership along segments of the John Day River, combined with high-profile trespass suits involving fishermen's associations, prompted Oregon's Treasurer to request an AG opinion on the scope of public rights in Oregon's navigable waters. (34) In the ensuing opinion, Oregon AG Hardy Myers acknowledged public rights to recreate on both navigable-for-title waters with state-owned beds, and navigable-in-fact waters with privately owned beds. (35) The AG relied on the Oregon Supreme Court's recognition of public rights to use all navigable-in-fact waterways for recreational purposes regardless of bed ownership in the 1918 decision of Guilliams v. Beaver Lake Club (36) and the 1936 decision of Luscher v. Reynolds. (37) However, the opinion confined the PTD to navigable-for-title waters, creating confusion by announcing a new category of public rights, apparently separate from the PTD, on navigable-in-fact waters with privately owned beds: the so-called "public use" doctrine. (38)

   The AG's public use doctrine was a consequence of a failure to appreciate the breadth of the PTD, defining "navigable-for-public-use" waterways as those "navigable-in-fact" waters "open to public use under Oregon law, even if the bed is privately-owned." (39) Although Oregon courts had never distinguished public rights based on state or private bed ownership, (40) the AG erected this wholly new "public use" doctrine protecting public rights to use waters for purposes like those protected under the PTD, including commerce, fishing, and recreation. The new doctrine applied to "navigable-for-public-use" waters with privately owned beds. (41) But the opinion failed to distinguish public rights protected under the public use doctrine from those protected by the PTD. (42) The 2005 opinion explained that the public can use navigable-for-public-use waters to hunt, fish, boat, bathe, and "do other things incidental to the public use of water," (43) suggesting that, like under the PTD, protected public uses can evolve over time. (44) By identifying this new category of public rights protected under the so-called public use doctrine, the opinion created confusion about public rights to navigate, fish, hunt, and recreate on most of Oregon's lakes and small...