Chernaik v. Brown

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 state’s motion for summary judgment on

all of plaintiffs’ claims for declaratory and injunctive relief and denied plaintiffs’

motion for partial summary judgment. In plaintiffs’ 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. O’Neill, 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 Attorney’s 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, plaintiffs—two young Oregonians, concerned

about the effects of climate change, and their guardians—

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 Oregon’s

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 state’s motion for

summary judgment and denied plaintiffs’ 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 parties’ 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 Oregon’s 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 plaintiffs’ 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-

tiffs’ claims. The circuit court concluded that (1) plaintiffs’

requested declaratory relief exceeded the court’s authority

under Oregon’s Declaratory Judgment Act, (2) plaintiffs’

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 state’s 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:

“A 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.”

“A 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.”

“A 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.”

“A 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.”

Plaintiffs also sought injunctive relief. They first

requested an order requiring the state “to prepare, or cause

to be prepared, a full and accurate accounting of Oregon’s

current carbon dioxide emissions and to do so annually

thereafter.” Second, plaintiffs asked for an order requiring

the state “to develop and implement a carbon reduction plan

that will protect trust assets by abiding by the best avail-

able science.” In connection with their requested injunctive

relief, plaintiffs requested “[t]hat [the circuit court] retain

continuing jurisdiction over this matter for purposes of

enforcing the relief awarded.”

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 “global

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.” 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:

“[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[.]”

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: Earth’s 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 “global climate change” is likely to result in

“some” (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 Oregon’s 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 defendants’ breach of “fiduciary obligations”:

“A 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.”

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 Oregon’s natural resources:

“A 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[.]”

“A 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[.]”

Those declarations appear to be a refined version of a decla-

ration included in their prayer for relief that the “best 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.” The specific carbon dioxide level seems to be

based on an allegation in the amended complaint that “[t]o

limit average surface heating to no more than 1° C (1.8° F)

above pre-industrial temperatures, and to protect Oregon’s

public trust assets, the best available science concludes that

concentrations of atmospheric carbon dioxide cannot exceed

350 parts per million or ‘ppm.’ ”

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 Oregon’s 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

plaintiffs’ claims for relief. The state’s 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, “[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.” In addition, the state opposed injunctive relief, even

were the court to recognize “new fiduciary duties,” 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 plaintiffs’ 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 plaintiffs’ motion and

granted the state’s motion. The court concluded that the

public trust doctrine encompasses only submerged and

submersible lands—not navigable waters, beaches, other

waters of the state, shorelands, islands, fish and wildlife,

and the atmosphere. Next, the court examined the state’s

duties under the public trust doctrine. After observing that

the public trust doctrine has historically only prevented the

state from “entirely alienating submerged and submersible

lands under navigable waters,” 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 plaintiffs’ 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 “legislative facts” 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-

tiffs’ proposed declaration that “atmospheric concentrations

of carbon dioxide (CO2) exceeding 350 parts per million

(ppm) constitutes substantial impairment,” 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 state’s navigable

waters.

The Court of Appeals did not decide the pleading

dispute and rejected without discussion plaintiffs’ assertion

that the circuit court had applied an incorrect legal stan-

dard under ORCP 47 when it considered the parties’ 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 “whether the state has fiduciary

obligations under the public-trust doctrine to affirmatively

protect public-trust resources from the effects of climate

change,” because its conclusion on that issue was disposi-

tive. Id. at 592.

To address the state’s duties under Oregon’s public

trust doctrine, the Court of Appeals first examined the his-

torical underpinnings of the doctrine in Oregon. The court

concluded from this court’s case law that the doctrine has

“served 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,” those uses

being the public’s right to navigation, commerce, fishing, or

recreation. Id. at 594.

The Court of Appeals rejected plaintiffs’ and amici

law professors’ reliance on out-of-state case law and on other

sources of Oregon law, such as statutes, to support their

understanding of Oregon’s public trust doctrine. Instead,

the court concluded, only Oregon’s 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,

“[a]lthough the trust metaphor is an imperfect one * * *,

the state’s powers and duties with respect to wildlife have

many of the traditional attributes of a trustee’s duties.” The

court found plaintiffs’ reliance on Dickerson to be misplaced,

explaining that that statement affirmed the state’s 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

Oregon’s 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 Oregon’s public trust doctrine “is 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.” Id. (emphasis in origi-

nal). Consistently with that conclusion, the Court of Appeals

held that the circuit court had correctly granted the state’s

motion for summary judgment and denied plaintiffs’ 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 parties’ rights.2 Id. at

601. We allowed plaintiffs’ 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 state’s 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 plaintiffs’ 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 Oregon’s natural resources, specifically,

all the state’s waters, wild fish and other wildlife, and the

atmosphere.

As the state has correctly conceded, the public trust

doctrine currently extends both to the state’s navigable

3

The term “public trust doctrine” gained widespread use following Joseph

Sax’s 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 “public trust doctrine,” 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), aff’d, 285 Or

197, 590 P2d 709 (1979).

156 Chernaik v. Brown

waters and to the state’s 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 society’s 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 plaintiffs’ 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 “navigable” waterways and the lands underlying those

waterways. Under the doctrine, Oregon acquired title at

statehood to “the lands underlying all bodies of water

within the state that meet the federal test for navigability.” 4

Kramer v. City of Lake Oswego, 365 Or 422, 438, 446 P3d 1,

adh’d to as modified on recons, 365 Or 691, 455 P3d 922

(2019). Although title passed to the state “by virtue of its

sovereignty, its rights were merely those of a trustee for the

public.” 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, “based on principles of

sovereignty, ‘hold the absolute right to all their naviga-

ble waters and the soils under them’ ” (citations omitted));

Kramer, 365 Or at 437 n 12 (“Water is not the only resources

that the state holds in trust.”); Winston Bros. Co., 156 Or at

4

Federal law governs any questions concerning navigability of waters—the

criterion that determines whether Oregon acquired title to the underlying land

at statehood—but 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 “is that of the peo-

ple in their united sovereignty, while the waters themselves

remain public”). In Kramer, a case concerning the public’s

right to use Oswego Lake, we explained that the public trust

doctrine is also partially codified by statutes that “declare

that the waters of all navigable lakes are ‘of public charac-

ter’ and that title to what the statute refers to as ‘submers-

ible and submerged lands’ beneath navigable lakes is vested

in the State of Oregon.” 365 Or at 438-39. The statutes apply

likewise to waters of navigable “streams.”5 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 state’s navigable waters are also subject to the

public trust doctrine.

We reject plaintiffs’ contention that this court pre-

viously has “recognized that the trust extends to waters and

wild fish” 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 “absolute ownership in

and dominion over the bed and soil which underlies the tidal

waters of the state” and “the waters themselves,” and the

state holds “in 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 * * *.” Id. at 371. Alsos

reiterates that navigable waters (at that time, based on the

“ebb and flow of the tide” 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

plaintiffs’ 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:

“The 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.”

Relatedly, ORS 274.430 states that “[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.”

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 “in its sovereign

capacity for the benefit of, and in trust for, its people in com-

mon.” According to plaintiffs, to the extent that this court’s

cases have differentiated between the public trust doctrine

and what the parties and this court have referred to as a

“wildlife trust” doctrine, see Dickerson, 356 Or at 834, “the

legal concept is analogous” and no distinction between the

two kinds of trusts is warranted.

We disagree. Although we have “long used the met-

aphor of a trust to describe the state’s sovereign interest in

wildlife,” id., and some similarities exist between the “wild-

life trust” 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

purposes—subject to objectively reasonable restrictions on

that right—and which we later describe in more detail, the

wildlife trust doctrine describes the state’s broad authority

over wild fish and animals in Oregon. The wildlife trust doc-

trine provides that the state has “the authority to manage

and preserve wildlife resources,” id. at 835, and that the

legislature may restrict, prohibit, or condition the taking of

game or fish in Oregon “as the law-making power may see

fit,” 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 society’s

current needs, as we have done in the past. See, e.g., Horton

v. OHSU, 359 Or 168, 218, 376 P3d 998 (2016) (“[T]he com-

mon law is not inflexible but changes to meet the changing

needs of the state.”); 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) (“The very essence of the common

Cite as 367 Or 143 (2020) 159

law is flexibility and adaptability.”). Indeed, from the ear-

liest days of the doctrine in this country, the public trust

doctrine has evolved in response to different circumstances

and society’s 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 “waters subject to

the ebb and flow of the tide,” but the public “retained the

right of passage and the right to fish in the stream.” 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

state—including Oregon—“gain[ed] title within its borders

to the beds of waters then navigable,” while the United

States retained “any title vested in it before statehood to

any land beneath waters not then navigable.” Id.

Because of the vast geographic differences between

North America and England, the English “ebb and flow of

the tide” 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 “presumptive title to navigable

waters whether or not the waters [were] subject to the ebb

and flow of the tide.” Id. at 590. But at first, Oregon adhered

to the original “ebb and flow of the tide” 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

court’s case law identified three classes of waters: (1) waters

in which the tide ebbed and flowed, which were deemed nav-

igable, with “all right[s] in [them] belong[ing] exclusively

to the public,” 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 “small or shallow as

not to be navigable for any purpose,” in which the public

had no right of use, which were considered “altogether pri-

vate property.” Shaw v. Oswego Iron Co., 10 Or 371, 375-76

(1882). Although aware of the trend toward expanding the

doctrine to “large fresh water rivers” that are “navigable in

fact,” 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 “not a stream in which the tide

ebbs and flows” and so, “in the common law sense,” was “not

navigable,” 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 defendant’s 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: “To 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.” Id. Thus, the first major

advancement in Oregon’s 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 (“By 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.” (Internal quotation marks omitted.)).

The court in Guilliams also expanded the public

trust doctrine in another way, by extending the concept of

navigability—under what later would become known as the

public use doctrine—to include “the use of boats and vessels

for the purposes of pleasure.” 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: “ ‘To hand over all these [lakes that will probably never

6

The public’s easement for navigation and commerce on such waters is now

referred to as the “public use doctrine.” 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.’ ” 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

“any limitations on the state’s ability to interfere with the

public’s right to use the public trust waters are, similarly,

limits on the city’s authority.” 365 Or at 447 n 22.

As the foregoing cases illustrate, at various points

in Oregon’s 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 public’s 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 public’s 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 “founded 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.” 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 “limits the

state’s authority to interfere with the public’s right to use the

public waters of the state.” 365 Or at 449. Any restrictions

by the state on the public’s right of use “must be objectively

reasonable in light of the purpose of the trust and the cir-

cumstances of the case.” Id. at 449-50. And, this court has

long emphasized that the state may not “sell or dispose of

or grant the right to make any use of [the beds of navigable

streams] which would impair or impede navigation.” Gatt v.

Hurlburt, 131 Or 554, 561, 284 P 172, reh’g den, 132 Or 415,

162 Chernaik v. Brown

286 P 151 (1930); see also Corvallis Sand & Gravel, 250 Or

at 334 (“[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.”).

Thus, the first adaptation of the doctrine to include

waters not subject to the ebb and flow of the tide protected the

public’s 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

“[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.” 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 public’s 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 doctrine—

protecting the public’s right to use navigable waters for fish-

ing and navigation.

3. Plaintiffs’ 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-

tiffs’ 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 plaintiffs’ argument that the state

has “reversed its positions regarding the scope of the natural

resources protected under the public trust [doctrine] and its

fiduciary duty to protect those resources,” because if plain-

tiffs are correct, it may not be necessary to address plain-

tiffs’ 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 “in its sovereign capacity as trustee

for all natural resources within its borders” 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:

“The 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 resources—including

land, water, wildlife, and habitat areas—within its bor-

ders. As trustee, the State holds these natural resources

in trust for all Oregonians—preserving, protecting, and

making them available to all Oregonians to use and

enjoy for recreational, commercial, cultural, and aesthetic

purposes.”

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 state’s 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 Wigmore’s treatise on evidence to explain that

“ ‘[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.’ ” (Emphasis added; quoting IV Wigmore,

Evidence, § 1064, 45 (3d ed).) Thus, this court concluded in

Borgert that, as alleged in the complaint, it was “conclusively

established for the purposes of this case” 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 “benefit in

the earlier proceeding, different judicial proceedings, and

inconsistent positions.” 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 state’s allegation in the Monsanto case is in an “ear-

lier proceeding,” the state’s position in the present case is

not “diametrically opposite” 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 state’s trust relationships in the past. And

the complaint in Monsanto is in line with the state’s posi-

tion in this case about its obligations under the public trust

doctrine—it has the authority to act in the manner plaintiffs

request, but it cannot be compelled to take the requested

actions. Because the state’s position in the Monsanto case

does not affect this proceeding, we turn to plaintiffs’ 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: “(1) they are not easily held or improved”

and “(2) they are of great value to the public for uses such

as commerce, navigation, hunting, and fisheries.” Restating

those two features, plaintiffs’ 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 “yes” 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 “intricately linked with other trust assets,

such as water” 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 Oregon’s 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 plaintiffs’ proposed test, we agree

that plaintiffs’ 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.,

Nat’l Audubon Soc’y 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 “protects navigable waters from harm caused by diversion

of nonnavigable tributaries”); 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. Plaintiffs’ Requested Remedies

Although we do not expand the scope of resources

protected by the public trust doctrine using plaintiffs’ pro-

posed test, we address plaintiffs’ requested relief. Based on

the current scope of the protected resources and the state’s

duties under the doctrine, which we explain below, we con-

clude that, in this case, none of plaintiffs’ 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:

“A 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[.]”

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 state’s duties:

“[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[.]”

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,

plaintiffs’ requested declaration fails to seek a form of relief

that may be granted in this case.

That same declaration also would impose a “fidu-

ciary obligation” 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 “substantial impairment” is the appropriate

standard to evaluate the state’s execution of its fiduciary

obligation. We need only address the first issue.

Plaintiffs argue that courts “have consistently

defined the state’s relationship to the public and our shared

natural resources as a ‘trust.’ ” 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

trusts—including that trustees owe beneficiaries fiduciary

duties—should guide an understanding of the state’s duties

to protect public trust resources under the public trust

doctrine.

This court has described the state as filling the role

of a “trustee” within the doctrine. Winston Bros. Co., 156 Or

at 511 (“[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.”).

And we have previously relied on common-law private trust

cases in explaining the state’s role as trustee, declaring that

“even when a trustee has discretion with respect to how

trust property is managed, the trustee’s actions must sat-

isfy the ‘general standard of reasonableness’ in exercising

168 Chernaik v. Brown

that discretion.” Kramer, 365 Or at 446 (quoting Rowe v.

Rowe et al., 219 Or 599, 604, 347 P2d 968 (1959)).

But this court’s 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 “basic principle of trust law” 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 “[n]either the legislature nor this court has

mandated specific requirements or prohibitions to govern

the state’s management of the waters that it holds in trust

for the public as a whole,” id.8

Given the abstract nature of this litigation and

this court’s doctrines of judicial restraint and stare decisis,

we reject plaintiffs’ 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.

Plaintiffs’ suggestion of a wholesale importation of general-

ized private trust principles to govern the state’s 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 public’s 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

“some common-law principles of private trust law may be consistent with the

public trust doctrine” 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 dissent’s sole tie to

the existing public trust doctrine, but this court has never extended the state’s

duties under the public trust doctrine that broadly—not 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 state’s

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 “substantial impairment” standard to

natural resources that are public trust resources as well as

natural resources that are not:

“A 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[.]”

“A 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.”

Because we conclude that plaintiffs are not entitled to their

requested declaration concerning the state’s duties, we need

not decide whether a “substantial impairment” 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 state’s 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-

ties’ 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 “is causing, and will continue to cause,

harm to our planet and the State of Oregon.” 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 “not foreclose the idea that the

1

I do not address the majority’s 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.” Id. The majority then goes on to consider two

additional questions: “whether the state has a fiduciary obli-

gation under the public trust doctrine and, if so, whether

‘substantial impairment’ is the appropriate standard to

evaluate the state’s execution of its fiduciary obligation.”

Id. at 167. Although the majority does not answer those two

questions affirmatively, it expressly states that it does “not

foreclose the possibility that the doctrine might be expanded

in the future to include additional duties imposed on the

state.” Id. at 169.

As I see it, however, the time is now. This court

already has recognized the state’s 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 question—whether the state has a

fiduciary obligation under the public trust doctrine—the

majority sidles up to, if it does not affirmatively embrace, an

affirmative conclusion. The majority confirms that the state

has a “recognized duty” to “protect public trust resources for

the benefit of the public’s use.” Id. at 168. And the majority

acknowledges that that duty is consistent with the “ ‘basic

principle of trust law’ requiring a trustee to protect trust

property and to manage trust property in a way that will

benefit all trust beneficiaries.” Id. (quoting Kramer v. City of

Lake Oswego, 365 Or 422, 446, 446 P3d 1, adh’d to as modi-

fied on recons, 365 Or 691, 455 P3d 922 (2019)). Rather than

declaring that the state has that “recognized duty,” however,

the majority reframes the question. The majority character-

izes plaintiffs’ claim as one that seeks a broader declaration

of the state’s duty—requiring the “wholesale importation

of generalized private trust principles to govern the state’s

obligations under the public trust doctrine”—and declines

that invitation to expand the law. 367 Or at 168. The major-

ity cites “the abstract nature of this litigation” and “this

court’s doctrines of judicial restraint and stare decisis” and

concludes that “under the legal theory that they articulate

in this case,” 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

presented—whether “substantial impairment” is the appro-

priate standard to evaluate the state’s 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 plaintiffs’ argu-

ment on the first question presented—whether the state has

a fiduciary obligation under the public trust doctrine. As

I understand plaintiffs’ 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 “water is not

the only resources that the state holds in trust”).2 In fact,

plaintiffs expressly state that “[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 plaintiffs’ claims.”

Instead, they “ask this court to declare that the public trust

doctrine imposes an obligation on the state to protect and

preserve trust resources.”

2

Similarly, the phrase “fiduciary duty,” 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 “fiduciary,” to describe the state’s duty, they mean that the duty is

“protective” in nature. Describing the state’s obligation as a “fiduciary” 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 “[f]iduciaries appear in a variety of forms,” and that

“[c]ourts, legislatures, and administrative agencies increasingly draw on fidu-

ciary law to answer problems caused by * * * social changes”). In this case, the

analogy to a “fiduciary” is helpful for illustrating the idea that the state holds

title to public trust resources for the benefit of the public and that the state’s 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

state’s 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

state’s obligation to incorporate an affirmative duty to act.

I agree with the state’s description of the factual

context in which this court’s public trust cases have been

decided. We have decided that the public trust doctrine pro-

hibits the state from taking action that restricts the public’s

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 state’s 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 “trust” for the public.3 See, e.g., Kramer,

365 Or at 438 (noting that “this court’s cases describe the

public’s right in terms of the beneficial interest of one for

whom land is held in ‘trust’ ”); 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 “not in a proprietary capacity, but in its sov-

ereign capacity, that is to say, as trustee for the public”).

The “core purpose” of the public trust doctrine is “to obli-

gate the state to protect the public’s ability” to use and enjoy

those resources.4 367 Or at 161 (declining to adapt public

3

Under Oregon law, a “trust” is simply an “obligation” that rests upon “a

person by reason of a confidence reposed in him to apply or deal with property for

the benefit of some other person.” Templeton v. Bockler, 73 Or 494, 506, 144 P 405

(1914).

4

This court clarified the nature of the public’s 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 “navigability” test to determine

what resources are protected by the public trust doctrine because “[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 terms”); 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 state’s

authority under the doctrine further the goal of ensuring

the “public’s right to use the public waters of the state”);

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, “although title passed to the state

by virtue of its sovereignty, its rights were merely those of

a trustee for the public” and that the purpose of the trust

doctrine was to ensure that the resources “remain public

so that all persons may use them”); accord Idaho v. Coeur

d’Alene Tribe of Idaho, 521 US 261, 285, 117 S Ct 2028, 138

L Ed 2d 438 (1997) (describing state’s duty under public trust

doctrine as an “obligation to regulate, improve, and secure

submerged lands for the benefit of every individual”). That

obligation is “consistent 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.” 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 “bellwether” of public trust cases. And in Illinois

Central, the Court explained that the public trust doctrine

“is founded upon the necessity of preserving to the public

the use of navigable waters from private interruption and

encroachment.” 146 US at 436. Because the purpose of the

public trust doctrine is to ensure the public’s 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 “other public purposes which cannot now be enu-

merated or even anticipated” so to “hand 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

anticipated”).

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 “[a] court has the power to pro-

hibit state action that would unreasonably restrict the pub-

lic’s rights.” Thus, if the state were emitting pollutants that

were substantially interfering with the public’s rights to use

and enjoy a particular trust resource, then it would seem

beyond contest that, on a plaintiff’s 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 “compel state action.”

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 public’s 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 “impose[s] [a] fiduciary duty to manage the corpus of the * * * pub-

lic trust for the benefit of the people to accomplish its purpose—conserving and

maintaining the corpus by, inter alia, preventing and remedying the degradation,

diminution and depletion of our public natural resources”); In re Water Use Permit

Applications, 94 Hawai’i 97, 172-73, 9 P3d 409 (2000) (state’s water permitting

scheme was required to take into account the state’s “affirmative 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 stream”).

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

public’s 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 “an 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]” (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 public’s

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

state’s fiduciary duty to protect public trusts resources for

the public’s 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 state’s 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 state’s

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 majority—correctly—declines to address the second issue presented—

“whether a ‘substantial impairment’ standard” is the appropriate standard to

evaluate the state’s execution of its fiduciary obligation to address the effects of

climate change on Oregon’s trust resources. 367 Or at 169.

178 Chernaik v. Brown

133 (2009), it is this court’s “obligation to determine what

the law is.” See also Marbury v. Madison, 5 US (1 Cranch)

137, 177, 2 L Ed 60 (1803) (“It is emphatically the province

and duty of the judicial department to say what the law is.”).

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 state’s three

branches of government. It provides:

“The 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.”

Or Const, Art III, § 1. That provision “requires the three

branches of state government to exercise their functions

separately and exclusively.” Cascadia Wildlands v. Oregon

Dept. of State Lands, 365 Or 750, 764, 452 P3d 938 (2019).

However, “[t]he separation of powers principle cannot in prac-

tice work absolutely; there is a necessary overlap between

the governmental functions.” 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) (“Practically,

[the three branches] are not required to be kept entirely dis-

tinct, as their duties sometimes are blended or overlap.”).

In evaluating a separation of powers argument, “the 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 branch’s]

irreducible constitutional task.” 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 judiciary’s 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 “not offended by choices that the other

branches make, unless those choices unduly burden the

capacity of [another branch] to perform its core function.”

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:

“How 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.”

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 public’s ability to enter the public

water from abutting upland, and whether city’s restrictions

should be invalidated depended on a reasonableness test);

Winston Bros. Co., 156 Or at 511 (“[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.”); 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 public’s 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

court’s role in two important respects. First, the state con-

fuses initial decisions about how to combat climate change—

decisions only the legislative and executive branches can

make—with a review of such decisions for their legality—a

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 “the validity of the waterfront reso-

lution depends upon whether the restriction on the public’s

right to enter the water * * * is objectively reasonable under

the circumstances”).

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

“congregates with other persons in a public place” 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

“congregates with other persons in a public place”). But a

court’s 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

government’s 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 Oregon’s 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 court’s 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 “objective test of reasonableness.”

365 Or at 446-47, 450 (explaining that “whether a trustee’s action is reasonable

is an ‘objective test of reasonableness in the circumstances’ ” and therefore that

“the validity of the waterfront resolution depends upon whether the restriction

on the public’s right to enter the water * * * is objectively reasonable under the

circumstances” (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 “rigid standard of behavior required” of a trustee under the “duty of

loyalty and good faith”).

182 Chernaik v. Brown

show that invasion of their right “was unreasonable in the

sense that the harm to plaintiffs is greater than they should

be required to bear in the circumstances”). 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

plaintiffs’ land. Id. at 573. The gravamen of the plaintiffs’

claim was that the state “[had] failed to adequately control

the conduct of [the state’s] invitees” 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 plaintiffs’ own property. Id. at 574. The

court concluded that the visitors’ conduct “substantially and

unreasonably interfered with plaintiffs’ ability to use or

enjoy their property,” and rejected the state’s argument that

it could not be liable for nuisance because the plaintiffs had

failed to show that it “did not undertake reasonable efforts

to control intrusive displays of nudity and associate offen-

sive conduct by beach users.” Id. at 578. The court reviewed

the state’s “beach use plan” and found that far from miti-

gating the interference with plaintiffs’ use and enjoyment

of their property, may have exacerbated the problems.

Id. at 579. The court affirmed the trial court’s 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 state’s

arguments about the scope and content of that injunction—

specifically, its requirements that the state “adequately staff

the area in and around plaintiffs’ property,” “establish a

buffer of sufficient length to avoid viewing of nude sunbath-

ers on [the beach] from plaintiffs’ property,” and “sufficiently

Cite as 367 Or 143 (2020) 183

sign the North boundary [of the state’s property].” 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

Wildlife—an executive agency—“to select the means to

perform its prescribed functions.” 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

“considerable flexibility in choosing the means by which the

mandated ends are to be accomplished,” 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 change—its 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 “judicially manageable standards,” 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 “political questions” due, in

part, to its view that that clause does not include “judicially

manageable standards.” Id. at 223 (explaining that the

Guaranty Clause is not a “repository of judicially manage-

able standards which a court could utilize independently in

order to identify a State’s lawful government”). Here, the

state does not contend that questions about whether the

state has met its obligations under the public trust doc-

trine are “political questions” under Baker; rather, the state

184 Chernaik v. Brown

seems to argue that a court’s review of the state’s compli-

ance with its public trust obligations will require the court

to evaluate the state’s “policy” 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

“policy” decisions:

“Attempting to apply such a standard to the complex

policy decisions that are required in addressing climate

change—decisions that invariably touch on a wide range

of complex issues, including transportation, energy gener-

ation, energy efficiency, and a host of economic consider-

ations—would require the court to make substantive policy

decisions under the guise of a common law doctrine.”

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 state’s 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,

“[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.”

Restatement (Third) of Trusts § 87 (2007). Therefore, the state asserts, plaintiffs

would have to show that the legislature or Governor acted outside “the range of

legally correct discretionary choices” and that those actions did not result in a

“permissible, legally correct outcome.” 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 “court will not interfere

with a trustee’s exercise of a discretionary power (or discretion not to exercise

the power) when that conduct is reasonable.” Restatement § 87 (comment b). The

state appears to be conflating the use of the word “discretion” 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 court’s standard of review for “abuse of discretion.” As the

Restatement explains, the question courts ask is whether the trustee’s choices

were reasonable, but that does not mean our standard of review when evaluating

a trustee’s decisions is for abuse of discretion. See Restatement § 87 (comment c)

(noting that in “most of the litigation in which it is concluded that a trustee has

Cite as 367 Or 143 (2020) 185

reasonableness requires consideration of “a wide range of

complex issues,” 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 “shocks the moral sense” of a reasonable

person, this court considers “at least” 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 “reasonable means” to procure witness

should be judged on the “totality of the circumstances” and

“[t]hose circumstances encompass a wide range of factors”).

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 “for a reason sufficient to counterbalance the

substantive right that Article I, section 10, grants”). 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 “[c]ourts can interfere only when

the board refuses to exercise its authority or pursues some

unauthorized course,” and that a “[d]ifference in opinion

or judgment is never a sufficient ground for interference”

(internal quotation omitted)).

I turn now to the state’s final argument, which is

that if plaintiffs prevail, “then the courts would be hopelessly

committed an abuse of discretion involves a finding that the trustee, in exercising

a power, has acted unreasonably”). As we explained in Kramer, under Oregon law,

“whether a trustee’s action is reasonable is an ‘objective test of reasonableness in

the circumstances.’ ” 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.” That is problematic, according to the state, because

courts are “ill equipped to balance such policy concerns.” 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 “cruel and unusual punishment.” As the United

States Supreme Court has explained, “ ‘[t]he basic concept

underlying the Eighth Amendment is nothing less than the

dignity of man.’ ” 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 prisoner’s

Eighth Amendment rights and how to remedy a violation

requires a weighing of imponderables and a review of expert

decision-making:

“To 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 prison’s 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.

“If government fails to fulfill this obligation, the courts

have a responsibility to remedy the resulting Eighth

Amendment violation. Courts must be sensitive to the

State’s 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.”

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 “overwhelming evidence of the

systemic failure to deliver necessary care to mentally ill

inmates” and an “unconscionable degree of suffering and

death.” 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:

“Courts nevertheless must not shrink from their obligation

to enforce the constitutional rights of all ‘persons,’ 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.”

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)

(“As a coequal branch of government, the [judicial] branch

must enforce the legislature’s obligation to preserve the pub-

lic trust.”). 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.