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

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 pathbreaking 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 applies to fish and wildlife, and to local governments as well as the State, and invoked private trust principles in articulating public trust duties. The plaintiffs achieved all these results 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 immediate rights to access Oswego Lake, limiting upland access rights to waterbodies that meet the federal test for title: they must have been suitable for commercial trade or transport at statehood in 1859. Although this test may be a boon to historians versed in the settlement conditions of the midnineteenth 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.

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, even though for over 100 years Oregon State law has recognized public rights to use all waterbodies capable of supporting recreational watercraft, which far outnumber the few waterways that passed the federal test in 1859. The court’s decision means monopoly use of the lake will continue until the courts determine evidence from the lake’s history satisfies the federal test, likely a long and expensive process. This 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. Appendix A responds to a recent comment by Dean Huffman. Appendix B sets forth an initiative proposed by an Oregon bar section that would establish a “legal guardian for future generations” to protect public trust rights 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