May 10, 2017

Oregon court rejects claim for public access to private lake

By Brian T. Hodges Senior Attorney

Late last week, Oregon’s court of appeals issued its long-awaited decision in the case, Kramer v. City of Lake Oswego—a case in which two public access activists shockingly claimed that the “public trust doctrine” should be extended to create easements across dry, upland property so that the public can gain access “to . . . navigable waters throughout the State or Oregon . . . regardless of ownership.”

The activists asked the court to force owners of a private, man-made lake to open up their community park to the general public. They argued that the right to recreate in certain waters also gave the public the right to cross over someone else’s land to get there.

Property owners call that trespass. Thankfully, the Oregon court agreed. And nothing in the public trust doctrine will make such a trespass lawful.

The public trust doctrine is an ancient legal doctrine that recognizes that certain waters must remain open to the public for commerce, navigation, fishing, and related activities. Historically, the doctrine operated as a limitation on the sovereign’s authority to transfer its interest in submerged or submersible lands into exclusive private ownership—while the property could be sold, the sovereign was required to retain the right to use the waters in trust for the public.

Over the past several decades, activists have convinced courts to expand the doctrine to include recreational and environmental rights in trust waters. But, even though the purposes of the trust have been enlarged, its scope has largely remained fixed. A vast majority of courts have held that any public rights established by the doctrine end at the water’s edge—the doctrine does not give the public a right to use private, upland properties. However, a pair of public access activists—supported by a consortium of progressive law school professors—asked the Oregon Court of Appeals to change that time-honored rule. The activists and law professors argued that the public trust requires the government to provide the public with recreational rights in Oswego Lake, a private, man-made lake, and also argued that the doctrine establishes a right to cross over private property to access the private lake.

PLF filed an amicus brief detailing the historic limits of the “public trust doctrine,” and argued why the doctrine should not be extended to create public rights to cross over dry land. Indeed, over a century ago, the Oregon Supreme Court held that the public trust doctrine provides no right of access across upland properties—such a right can only be secured by the exercise of the State’s eminent domain powers and payment of just compensation.

The court of appeals agreed, holding—without deciding whether the private lake was subject to the public trust doctrine—that nothing in the doctrine gives the public a right to cross over dry land to access the water. In reaching that conclusion, the opinion explains the doctrine’s history and limitations—as was argued by PLF’s amicus brief.

The court also rejected the law professors’ argument that there is an independent doctrine that provides the public with a right to access beaches. PLF’s amicus brief argued that there is no such doctrine in Oregon’s common law. Instead, the beach access cases cited by the professors involved an application of the English doctrine of custom, which requires the moving party to prove, among other factors, that the public has been using the resource for “so long that the memory of man runneth not to the contrary.” Recognizing that the doctrine of custom has no application to a private, man-made lake, it rejected the professors’ argument.

The court of appeals’ lengthy discussion of the public trust doctrine provides a valuable resource for property owners facing similar claims of public access right.

 

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