Adding Confusion to the Muddy Waters of the Oswego Lake Decision: A Response to Dean Huffman

Abstract

Dean Jim Huffman’s recent article in Environmental Law on the Oswego Lake decision claims that the Oregon Supreme Court’s opinion is a “confused treatise on the public trust doctrine.” Objecting to the court’s decision on a number of grounds, Dean Huffman took issue with the court’s recognition of public access rights, its creation of a so-called “public use” doctrine, its use of the law of private trusts, and its recognition of the state’s claim of ownership of water within its jurisdiction. Moreover, and somewhat astonishingly, Huffman claims that the rights of the people cannot be violated by the representatives of the people, seemingly at odds with over a century of case law. Although we agree with a few of Huffman’s criticisms, he overlooks some critical public trust interpretations of the Oswego Lake court, such as its recognition of the trustee status of municipalities. He also confuses other issues, like the state’s distinction between what it calls “navigable-in-fact” waters (those which support recreational watercraft today) and those waterways that are navigable under the federal title test (commercially navigable around the time of statehood). We explain our criticisms in this essay.

Keywords: public trust doctrine, environmental law, energy law, natural resources law, water law, ocean law, wetlands law

JEL Classification: H11, H23, K11, K32, Q01, Q22, Q24, Q25, Q26, Q28