PLF files amicus brief in the Oswego Lake public access lawsuit

Today, PLF attorneys filed an amicus brief with the Oregon Court of Appeals in Kramer v. City of Lake Oswego—a case in which two public access activists argue 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, including the Lake, . . . regardless of ownership.”

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 expanded 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 cabal of progressive law school professors—are asking the Oregon Court of Appeals to change that time-honored rule. The activists and law professors are not only arguing that the public trust requires the government to provide the public with recreational rights in Oswego Lake, a private, man-made lake, but they are also arguing that the doctrine establishes a right to cross over private property to access the private lake.

But, as argued in PLF’s amicus curiae brief, the rule proposed by the activists would effect a radical expansion of the public trust doctrine, and would rewrite the State’s common law system of property ownership. 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.