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- Title
ESTABLISHING A LEGAL GUARDIAN TO PROTECT THE PUBLIC'S RIGHTS IN OREGON'S NATURAL RESOURCES AFTER KRAMER AND CHERNAIK.
- Authors
BLUMM, MICHAEL C.; SCHAUER, ALEXANDRA
- Abstract
Until recently, Oregon's public trust doctrine included both traditionally navigable-in-title as well as navigable-in-fact waters. However, in 2005, the Oregon Office of the Attorney General issued an opinion that drastically limited the public trust doctrine to include only navigable-in-title waters, reducing the state's fiduciary trust obligations through the creation of the so-called "public use" doctrine. In the wake of that opinion, the state denied state trust protection to a 400-acre navigable lake and to the atmosphere in two high-profile cases. Oregon has consistently denied any fiduciary obligations for the only trust resources the state acknowledges--navigable-in-title waters and the underlying submerged lands. The attorney general's 2005 opinion, denying public trust protection to waterbodies underlying private submerged lands, has created what is now among the narrowest public trust obligations in the United States, and one entirely out of step with public trust developments abroad. The role of the attorney general in denying public trust obligations that are widely recognized elsewhere stems from an inherent conflict between two of the attorney general's duties: defending state agencies in cases alleging breach of trust responsibilities and representing the public's interest in trust resources. Over a decade ago, the Oregon State Bar offered a potential solution to this conflict, when the Sustainable Future Section proposed the creation of the Office of the Legal Guardian to act as a custodian and advisor for the state's public trust resources. Building on that 2012 proposal, as well as the experiences of New Jersey's comparable former Department of the Public Advocate, this Article offers suggestions for establishing a Legal Guardian in Oregon today. This proposal would not only eliminate the attorney general's ongoing conflict of interest, but would give the Oregon public an unbiased advocate to protect important resources to which the state has denied trust protection.
- Subjects
OREGON; RIGHTS; NATURAL resources; PUBLIC trust doctrine; BODIES of water
- Publication
Environmental Law (Lewis & Clark Law School), 2024, Vol 54, Issue 1, p173
- ISSN
2831-9028
- Publication type
Article