Oregon's Amphibious Public Trust Doctrine: The Oswego Lake Decision

68 Pages Posted: 22 May 2020 Last revised: 10 Aug 2020

See all articles by Michael C. Blumm

Michael C. Blumm

Lewis & Clark Law School

Ryan J. Roberts

Lewis & Clark College, Law School, Students

Date Written: May 8, 2020

Abstract

In late 2019, the Oregon Supreme Court decided the Oswego Lake case, concerning public access rights to the state’s only allegedly “private” lake located in suburban Portland. The court’s unanimous decision was path-breaking, for it interpreted the state’s public trust doctrine, for the first time, to apply to uplands adjacent to navigable waters necessary for accessing those waters. The court also clarified that the doctrine applied to local governments as well as the state, to fish and wildlife, and invoked private trust principles in articulating public trust duties. All of these results were achieved over the objections of the state, which has long sought a narrow judicial interpretation of the doctrine’s public rights. However, the court did not give the public rights to access Oswego Lake, limiting upland access rights to waterbodies that meet the federal test for title, meaning they must have been suitable for commercial trade or transport at statehood, in 1859. While this test may be a boon to historians versed in the settlement conditions of the mid-19th century, it lacks any perceptible policy justification a century-and-a-half post-statehood. The court made no attempt to explain why it restricted public access from public lands to public waters to such an arcane and archaic test in its decision.

This article discusses the Oswego Lake decision, explaining the history of the lake and the persistent efforts of the Lake Oswego Corporation to monopolize access to it. These efforts have proved to be surprisingly successful, despite the fact that for over one-hundred years Oregon state law has recognized public rights to use all waterbodies capable of supporting recreational watercraft, which far outnumber the few waterways that have met the federal 1859 test. The court’s decision means that monopoly use of the lake will continue until the courts determine that evidence from the lake’s history satisfies the federal test, likely a long and expensive process. The article examines how the Oswego Lake case reflected the political dynamics of local government captured by wealthy landowners as well as the state’s antipathy for carrying out public trust duties. Given the state’s evident hostility to its public trust obligations, the article advocates that voters support an initiative proposed by an Oregon bar section that would establish a “legal guardian for future generations” to protect public trust rights that the state apparently cannot.

Keywords: Public Trust Doctrine, Navigable Waters, Public Access, State-Local Relations, Exclusionary Zoning, Monopoly Control

JEL Classification: K11, K32, K41, N52, N92, O13, O18, Q24, Q25, Q38, R14, R52

Suggested Citation

Blumm, Michael C. and Roberts, Ryan, Oregon's Amphibious Public Trust Doctrine: The Oswego Lake Decision (May 8, 2020). Environmental Law, Vol. 50, No. 4, 2020 , Available at SSRN: https://ssrn.com/abstract=3592003

Michael C. Blumm (Contact Author)

Lewis & Clark Law School ( email )

10015 S.W. Terwilliger Blvd.
Portland, OR 97219
United States
503-768-6824 (Phone)
503-768-6701 (Fax)

Ryan Roberts

Lewis & Clark College, Law School, Students ( email )

10015 S.W. Terwilliger Blvd.
Portland, OR 97219
United States
(650) 714-5969 (Phone)

HOME PAGE: http://https://www.linkedin.com/in/ryanjamesroberts

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