OTLA Trial Lawyer Winter 2021

59 Trial Lawyer • Winter 2021 Between the Sheets Lisa T. Hunt Cody Hoesly Christine Moore By Cody Hoesly, OTLA Guardian By Lisa T. Hunt By Christine Moore, OTLA Guardian DECISIONS OF THE OREGON SUPREME COURT The public trust doctrine encompasses navigable waters and the submerged and submersible lands underlying those waters. Although the public trust doc- trine is a common law doctrine that could be expanded to include more natural resources, at this time it does not include the atmosphere, all waters of the state, or fish and wildlife. Under the public trust doctrine, the state does not have the same fiduciary duties that a trustee of a common-law private trust would hold. Chernaik v. Brown, 367 Or 143 (2020); Nakamoto, J.; Dissent by Wal- ters, CJ. The plaintiff was represented by Courtney Johnson and William Sher- lock. Travis Eiva filed an amicus brief on behalf of OTLA. The plaintiffs filed a declaratory judg- ment action against the governor and the state of Oregon, requesting the trial court specify and expand the natural resources protected by the public trust doctrine and to declare the state has a fiduciary duty, which it breached, to prevent sub- stantial impairment of those resources caused by emissions of greenhouse gases. The state moved to dismiss on jurisdic- tional grounds, which the trial court granted. The Court of Appeals reversed and remanded. On remand, the state moved for summary judgment, arguing the public trust doctrine does not extend to the atmosphere, all waters of the state, or fish and wildlife, and the state does not have fiduciary duties under the pub- lic trust doctrine akin to a common-law private trust. The trial court granted the state’s summary judgment motion, hold- ing that the public trust doctrine applies only to submerged and submersible lands and the state does not have a fiduciary obligation to protect public trust re- sources from the effects of climate change. The Court of Appeals also con- cluded the public trust doctrine did not impose fiduciary obligations on the state to protect trust resources from green- house gases and, instead, the doctrine acts as a means to restrain the state from disposing or allowing uses of resources that substantially impair the recognized public use of those resources. The Supreme Court affirmed the decision of the Court of Appeals but remanded to the trial court for entry of a declaratory judgment consistent with its opinion. The court held that the public trust doctrine applies to navigable waterways, which the trial court erred by omitting, and the lands underlying those waterways. The court recognized that the public trust doctrine is not fixed and could be broadened. However, the core purpose of the doctrine is to require the state to protect the public’s ability to use navigable waters for identifiable uses. The court rejected the plaintiffs’ proposed test for expanding the public trust doctrine, which would have identified public trust resources as those that are not easily held or improved and are of great value to the public for uses such as commerce, naviga- tion, hunting and fisheries. The court concluded the test was too broad and failed to provide any practical limita- tions. The court also held that while its prior case law established that some principles of private trust law are appli- cable to the public trust doctrine, the public trust doctrine does not incorpo- rate all the principles that apply to private trusts, including imposing a fiduciary duty upon the state to protect trust re- sources from climate change. The court faulted the plaintiffs for seeking remedies that would impose too broad of obliga- tions on the state that could result in a fundamental restructuring of the public trust doctrine’s central purpose. See Sheets 60