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Environmental, Natural Resources, & Energy Law

Professor Michael Blumm: Protecting the Public Trust Doctrine

October 20, 2014

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    Professor Blumm with the presidential pen used to sign the original Wilderness Act into law; taken at the 2014 Wilderness Act symposium at Lewis & Clark law school.

Professor Michael Blumm has been actively involved in drafting two important amicus (friend of the court) briefs related to the public trust doctrine. One brief, filed with the Oregon Court of Appeals, challenges the privatization of Oswego Lake in a city just south of Portland. The other was filed in support of a U.S. Supreme Court petition for a writ of certiorari on behalf of five teenagers, and thousands of other young people, in a case demanding—pursuant to the public trust doctrine—that the federal government address global climate change. 

In the Oregon Court of Appeals brief,* 36 law professors and the Willamette Riverkeeper argue that the City of Lake Oswego has effectively granted a monopoly to the private Lake Oswego Corp., and challenge the State of Oregon’s alleged failure to protect public rights to access the public waters of Oswego Lake from adjacent public lands. The law professors claim that public access to navigable waters like Oswego Lake is assured by the state’s public trust doctrine, as recognized by decisions from the Oregon Supreme Court. They maintain that the doctrine was codified in Oregon’s Statehood Act of 1859, which promised that navigable waters in the state would be “common highways and forever free.” 

In an amicus brief filed with the U.S. Supreme Court in support of a certiorari petition filed to enforce the federal government’s obligation to protect essential natural resources for the benefit of future generations,** Professor Blumm (and his co-author: LLM student Lynn Shaffer), joined by over 40 law professors, wrote to emphasize that the public trust doctrine has been misunderstood as merely a state common law principle. The professors explained that it is, in fact, an inherent limit on all sovereign power. This ancient doctrine—widely recognized to have predated the federal Constitution—has imposed limits on the discretion of sovereigns worldwide.  The brief argues that there is ample precedent to apply the doctrine to the federal government, and there is no reason to interpret the Supreme Court’s recent dicta related to the public trust doctrine as being only a creature of state law   

According to the brief, such an interpretation would leave this critically important limit on all sovereign power to the vagaries of state courts, would deprive Article III courts of jurisdiction over nonstatutory resource damage claims, and would allow the federal government unfettered discretion to create and maintain monopolies concerning federal public land and ocean resources.

In the cases mentioned above, Professor Blumm was the principal author of both amicus briefs, which represent his own opinion and those of the signatories, not those of the law school.

Professor Michael Blumm, one of the architects of Lewis & Clark’s Environmental and Natural Resources Law Program, has been teaching, writing, and practicing in the environmental and natural resources law field for over three decades. He is a prolific scholar, with casebooks on the Public Trust Doctrine, Native American Natural Resources Law, and Natural Resources Law and well over 100 published articles, book chapters, and monographs on salmon, water, public lands, wetlands, environmental impact assessment, public trust law, and constitutional takings law, to name just a few subjects. His articles can be read online here. 

 

  * The case is Kramer & Prager v. City of Lake Oswego & the State of Oregon;

https://ungatethelake.files.wordpress.com/2014/02/2014-07-08-kramer-v-lo-amicus-brief-rev-707-2.pdf

** The case is Alec L. v. McCarthy; 

http://ourchildrenstrust.org/sites/default/files/FiledLawProfAmicus.pdf