Transcript Slide 1

The Federal Public Trust Doctrine
& Oswego Lake Access:
Two Law Professors' Briefs
~ Michael C. Blumm &
Lynn S. Schaffer
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Amicus Curiae Brief of Law Professors
in Support of Granting Writ of Certiorari,
Alec L. ex rel. Loorz v. McCarthy,
2014 U.S. S. Ct. Briefs LEXIS 3897
Adapted in:
Michael C. Blumm & Lynn S. Schaffer,
The Federal Public Trust
Doctrine: A Law Professors’
Amicus Brief
http://ssrn.com/abstract=2518260
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Copyright Alec Loorz, as published in The Guardian May 2011
Alec L. v. Jackson
D.C. District Court
863 F. Supp. 2d 11
(D.D.C. 2012)
CLAIM  Federal government breached fiduciary trust
obligations & failed to protect atmosphere from climate
change
RELIEF SOUGHT  DECLARATORY JUDGMENT: the
atmosphere is a public trust
INJUNCTIVE RELIEF: mandatory fed’l agency action to
reduce carbon emissions based on best available science
DISMISSED  No federal claim, no federal jurisdiction
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Alec L. v. McCarthy
D.C. Circuit
561 F. App’x 7
(D.C. Cir. 2014) (unpubl.)
“The plaintiffs point to no case . . . standing for the
proposition that the public trust doctrine—or claims based
upon violations of that doctrine—arise under the
Constitution or laws of the United States, as would be
necessary to establish federal question jurisdiction. To the
contrary, the Supreme Court recently reaffirmed that ‘the
public trust doctrine remains a matter of state law’ and that
‘the contours of that public trust do not depend upon the
Constitution.’ ”
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Alec L. v. McCarthy
Continued . . .
“The Supreme Court in PPL Montana . . .
repeatedly referred to ‘the’ public trust doctrine
and directly and categorically rejected any
federal constitutional foundation for that
doctrine, without qualification or reservation.”
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PPL Montana v. Montana
132 S. Ct. 1215 (2012)
“Unlike the equal-footing
doctrine . . . the public
trust doctrine remains a
matter of state law . . . .
[T]he State takes title to
the navigable waters and
their beds in trust for the
public . . . the contours
of that public trust do not
depend upon the
Constitution.”
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Idaho v. Coeur d’Alene Tribe of Idaho
521 U.S. 261 (1997)
“Unlike the equalfooting doctrine . . . the
public trust doctrine
remains a matter of
state law . . . . [T]he
State takes title to the
navigable waters and their beds in trust for the
public . . . the contours of that public trust do not
depend upon the Constitution.”
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Illinois Central Railroad
146 U.S. 387 (1892)
• Illinois conveyed almost all the shoreline of the
Chicago Harbor . . . then rescinded 4 years later
• “A grant of all the lands under the navigable waters of a
state . . . has never been adjudged to be within the
legislative power; and any attempted grant of the kind
would be held, if not absolutely void on its face, as subject
to revocation. The state can no more abdicate its trust over
property in which the whole people are interested, like
navigable waters and the soils under them . . . than it can
abdicate its police powers . . . .”
• State police powers and PTD limits are both reserved
by the 10th Amendment
• The decision cited no state law as authority
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Appleby v. City of New York
271 U.S. 364 (1926)
• Kennedy quoted Appleby in a parenthetical –
Illinois Central was “necessarily a statement of
state law”
• But – the only claim involved Appleby’s successful
challenge to dredging and docking activities on his
submerged Hudson River lots
• No one challenged the state’s submerged land grant
to the city, and no one raised public trust claims –
and the court never took up the issue
• Also, Appleby’s lands would fit within Illinois Central’s
exception for small conveyances that do not
substantially impair remaining trust lands
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Interpreting Justice Kennedy
• Equal Footing lands:
– Implicitly conveyed to the states at statehood
– Constitutionally protected
– means there is a federal core of the PTD that
includes lands submerged beneath navigable
waters at statehood
• Other submerged lands:
– lands submerged beneath non-Equal Footing,
privately owned lands, beaches, parklands, water
rights are subject to the PTD by state law
– “the contours” of which are not of federal concern)
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Interpreting Justice Kennedy
continued . . .
• Federal Statutes:
– national parks and some other federal lands are
subject to the PTD by federal statute
– other resources may be subject to the PTD if they
are, in Illinois Central’s words, resources “in which
the whole people are interested”
– could be the atmosphere outside the D.C. Circuit
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The Public Trust Doctrine as an
inherent limit on all sovereigns
• A reserved power affirmed (not created by) the
10th Amendment
• Applies to the federal as well as state gov’ts
• Limits creation of federal monopolies—e.g.,
• grazing permits
• mineral leases of coal and oil and gas rights
• recreational concessionaire rights
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Brief Of Amici Curiae Law Professors in
Support of Plaintiffs-Appellants in
Kramer & Praeger v. City of Lake
Oswego
Adapted from:
Michael C. Blumm,
The Public Trust Doctrine
& Public Access to an
Allegedly Private Navigable
Lake: A Law Professors'
Amicus Brief
http://ssrn.com/abstract=2563331
Copyright Randy Rasmussen, as published in The Oregonian
Dec. 5, 2013
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Oswego Lake
• The only private lake of its size in Oregon
- public use excluded by municipal ordinance
• Attorney General
refused to defend public
rights
- the so-called
“public use doctrine”
- attempt to limit PTD
to proprietary ownership
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Oswego Lake case
• The Law Profs’ position:
* Navigable water under Oregon Law
* Public right to access:
- a Statehood Act right, affirmed by
Oregon Sup. Ct. in 1918
* access & navigability cases in
Oregon date back to 1860s
- Statehood Act (from NW Ordinance):
“common highways and forever free”
• likely also navigable under federal "title" navigability
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Oswego Lake case
• city cannot, consistent with the PTD, enact ordinances
banning lake access from publicly owned parks
• state cannot deny its PTD obligations by creating a socalled “public use doctrine” (2005 AG opinion)
• lost in Circuit Ct.—which deferred to the state’s position
that it had discretion to not defend the public right
– Ct. Appeals oral argument on May 18
– amicus briefs from law profs & Pacific Legal Foundation
– expect the Oregon Supreme Court to be asked to review
whatever decision the Court of Appeals reaches
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CONCLUSIONS:
two cases that epitomize diversity of PTD litigation
- The Federal Case:
* high-profile case the Supreme Court was asked
to review
* concerns what many people consider the future
of the planet: control of GHG emissions into
atmosphere
- Law profs amicus brief: attempt to control collateral
damage done by the careless use of Justice Kennedy’s
language by the D.C. Circuit
* federal PTD important concerning judicial scrutiny
of public resource allocations
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The PTD in Oregon
• The second case, about public access to a
waterway privately monopolized for
generations
• More traditional use of the PTD, with
questions about what = a navigable water
under state law
• Some novel issues about whether the state
AG can define the PTD in such a way as to
relieve the state of nondiscretionary duties
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The Public Trust in 2015
Potential plaintiffs
should embrace the
public trust as an
antimonopolization
doctrine (as the Sup.
Ct. ruled in Illinois
Central and as Prof.
Sax championed)
- intergenerational
equity is the link to
environmental
protection
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