Oregon Senator Whitsett on Public Trust

Transcript from Whitsett's 11/30/10 speech on KFLS

The Public Trust is a common-law doctrine of property law. It holds that a primary obligation of government is to manage certain resources for the public good on behalf of its citizens. 

In Roman Laws public trust was based on traditional use of common areas for food, travel and commerce. Later, English Common Law established public rights to navigable tidal waters, to the land beneath those navigable tidal waters, and to their shores up to the ordinary high water mark. The Clean Air Act, the Clean Water Act, and the Endangered Species Act are all arguably predicated on government public trust responsibilities. 

Relative to navigability, the United States Supreme Court specifically abandoned the public trust doctrine in favor of the Commerce Clause of the United States Constitution. In a long line of rulings, the Court has expanded navigable waters to include the surface, bed and banks up to the ordinary high water mark of any water body that is capable of serving as a highway of commerce. The Court further expanded navigable waters to include some streams that are tributary to navigable waterways. The Court reasoned that the flow of the tributary was required to retain the flows that enable commerce in the navigable stream.

Long ago, Oregon declared the state’s surface and groundwater to be a public trust resource. All surface and ground water is owned by the public and held in public trust by the sovereign state. By declaring a public trust, the State essentially placed the public’s long-term interest in the water above any private interest in the resource. The Public Trust Doctrine suggests that the State may revoke the use of any water right if the State perceives that the water could be put to a more beneficial public trust use.

I fully expect that attempts will be made during the upcoming Oregon legislature to use the public trust doctrine as the basis to greatly expand stream navigability. Further, I predict that attempts will be made to use the Doctrine to limit the use of both surface water and groundwater for irrigation or other beneficial uses.

SB 1060 was introduced in the 2010 Legislature to expand public ownership of the beds and the banks of navigable streams to include virtually any stream that is capable to floating an inner tube at any time of the year. We helped organize and lead the very strong and widespread resistance to the bill. Thankfully, it died in committee for a variety of reasons.

Secretary of State Kate Brown has hosted a series of monthly interim meetings and workshops in a strong effort to resurrect the concept. The focus is to ensure that all Oregonians are provided access to what is perceived to be public trust waterway resources. These waterways would include virtually any stream that is floatable.

I believe that at least three constitutional issues block the ongoing effort.

First, the state’s ownership of navigable waterways is predicated on the Commerce Clause of the United States Constitution. That clause requires that the waterways be capable of being a highway of commerce. Many of the streams contemplated to be included are clearly not navigable.

Second, the bed and banks of many of the streams are privately owned, may be fenced, and may have other diversions or obstructions. The proposed legislation intends to take possession of the beds and the banks of these streams, up to the high water mark, through declaration of Public Trust. It appears to argue that the ownership of the land has always been held in the Public Trust. Further, the legislation envisages free flowing streams unencumbered by fences or other obstructions. The beds and the banks of many of these streams are privately owned with recorded deeds. The apparent intent of this proposal is to take private property without compensating the land owner.

Third, the proposed legislation would allow public trespass on these newly designated Public Trust lands up to the ordinary high water mark. Once again, the bed and banks of many of these streams are privately owned with recorded deeds. The proposal appears to mandate that private landowners must allow trespass on their deeded private property.

The concepts, when applied to navigable waterways, are well founded because under federal law the State acquired ownership of the beds and banks of navigable waterways at statehood. The legislative proposal appears to contemplate applying the same principles to Oregon’s non-navigable, floatable waterways by expanding the application of the Public Trust Doctrine. However, the United States Supreme Court specifically rejected common law as the authority for navigability based sovereign ownership and adopted the Commerce Clause as the appropriate constitutional power. Constitutional authority for sovereign Public Trust ownership of the bed and the banks of floatable streams appears to be absent because they generally are not navigable streams.

What is more, the public trust doctrine can be applied to negatively affect vested and certificated water rights.

A finite supply of water is available to a watershed each year on average. It is helpful to consider the water supply as a pie and to look at each allowed use of water as a slice of that pie. Existing water rights are diminished each time that a new beneficial use of water is created, just as the size of each piece of a pie is diminished by cutting the pie into smaller slices.

For instance, in the Klamath basin, we have seen the value of our water rights diminished by two biological opinions that mandate new ecological uses for the benefit of endangered sucker fish and salmon. There is always less water available for the previously acknowledged beneficial use of irrigation whenever more water is diverted for increased ecological flows and lake levels. This action has

effectively elevated the Public Trust benefit of fish species over the livelihoods of the people living and working in basin communities.

A strong attempt is being made to include two additional beneficial water uses into Oregon’s new Integrated Water Resources Strategy. Because they allegedly benefit everyone, the inclusion of Peak Flows and Ecological Flows could be considered Public Trust beneficial uses.

We may expect efforts to augment in-stream flows for alleged Public Trust ecological purposes. These efforts could result in severe restrictions on the amount of water that remains available to service existing irrigation water rights regardless of the priority date of those water rights. The focus of the effort is to use the Public Trust Doctrine to trump the Doctrine of Prior Appropriations. 

Mandated Peak Flows during winter run-off events could seriously limit the ability to store water under existing irrigation water rights. Once again, the alleged Public Trust requirement to provide winter flushing flows to alter stream morphology will trump the irrigation storage rights secured under the Doctrine of Prior Appropriations.

It appears that the goal of many Oregon factions is to limit or eliminate out of stream water uses. The Public Trust Doctrine may well be their new “tool of choice” to achieve that goal.