A case for the extension of the public trust doctrine in Oregon.

I. Introduction

Amidst the torrential rains and heavy flooding that plagued the Pacific Northwest during the past two years, it is difficult to fathom that there is a water shortage in the state of Oregon. Yet, many of Oregon's rivers and streams lack sufficient water flows during at least part of the year to adequately sustain their aquatic environment.

The realization that unnaturally low flow levels are having a deleterious effect to Oregon watercourses is nothing new. In 1953, the Oregon Legislature organized the Water Resources Committee (Committee) to study and compile a report documenting the conditions of the state's water resources, and make recommendations regarding the formulation of an integrated state-wide approach to the management and allocation of Oregon's water.(1) In 1995, the Committee returned with a report, emphasizing to the legislature that "[t]he investigations of the committee reveal that on many Oregon streams more permits have been issued by the State Engineer, in accordance with the law, for more water than is available during low-flow months."(2) Problems with overappropriation were not solely relegated to the semi-arid portions of Central and Eastern Oregon; such conditions were present even in water-saturated areas west of the Cascade Mountains.(3)

Unfortunately, time has not solved Oregon's streamflow problems. The 1995 Strategic Water Resources Management Plan issued by the Oregon Water Resources Department (OWRD) contains observations similar to those noted by the 1955 Committee Report.(4) The 1995 Plan observed that streamflow problems have remained static and unimproved in many of the state's main river basins, and that in recent years some of Oregon's rivers and streams experienced even lower flows and worsened water conditions.(5)

The environmental and biological effects of unnaturally low streamflows are countless, and a full recitation of such effects is beyond the scope of this paper. However, one of the most obvious and politically timely effects has been that imposed on Oregon's native salmonids.(6) The trials and tribulations of these magnificent fish have been well documented, especially their battle to overcome the effects of the four "Hs": hydroelectric systems, hatcheries, harvest, and habitat degradation.(7) In regard to habitat degradation, low streamflows are one of the primary obstacles to the completion of the salmon's lifecycle, often blocking migration routes, interfering with spawning, or impeding the development of juvenile fish.(8) This is particularly evident in the major Oregon rivers and their tributaries located east of the Cascade Mountains.(9) Native anadromous steelhead and salmon often find an already treacherous return to their natal streams made even more difficult by low flows in the major Columbia River subbasins such as the Deschutes,(10) John Day,(11) and Umatilla.(12)

While the anadromous salmonids in the Pacific Northwest have received the bulk of the attention in recent years, other nonanadromous salmonids have been dramatically affected by adverse stream conditions caused by low streamflows.(13) The Lahontan and Westslope cutthroat trout, two important subspecies of cutthroat trout native to Oregon, have seen their populations dwindle in recent years due in large part of excessive irrigation withdrawals.(14) In addition, many population of Mid-Columbia and Snake River redband trout, a subspecies of rainbow trout, have had their habitat either reduced or adversely affected by unnaturally low flows.(15) The various nonanadromous salmonids are located throughout the Deschutes, Crooked, John Day, Umatilla, Grand Ronde, Imnaha, Burnt, Powder, Malheur, and Owyee River Basins, areas in which water is a scarce commodity in the summer, fall, and sometimes winter months.(16) The slogan "fish need water" is biologically sound, and is confirmed on a daily basis in rivers and streams throughout Oregon.

The problems posed by unnaturally low streamflows cannot be identified solely on a quantitative basis. Low flows often result in adverse water quality conditions. The Oregon Department of Environmental Quality (ODEQ) rencently released a draft list of "water quality limited water bodies."(17) ODEQ used habitat-flow modification as one of the listing criteria to identify water quality limited water bodies.(18) A listing of the areas where flow modification was most severe reads like a "who's who" of Oregon rivers. A nonexhaustive list includes at least one segment of the mainstem and a varying number of tributaries of the following rivers: Crooked, Deschutes, Grand Ronde, John Day, Malheur, Burnt, Powder, Rogue, Umatilla, and Umpqua.(19)

Despite the present dewatered condition of many Oregon rivers and streams, the state legislature has failed to enact a conservation scheme that would adquately remedy the situation. The instream water rights provisions in the state water code enacted in 1987 does not sufficiently balance the needs of the aquatic environment with the usufructuary rights of appropriators.(20)

This Comment argues that the Oregon Supreme Court should adopt the holding enunciated by the California Supreme Court in National Audubon Society v. Superior Court of Alpine County (Mono Lake)(21) to extend the geographical scope of the public trust doctrine in addressing the harm caused to navigable waters by the diversion of water from nonnavigable tributaries. Expanding the geographic scope of the doctrine in this manner would formally wed the public trust and appropriation doctrines in Oregon. The expansion would also judicially recognize equally vital state interests in appropriating water for certain beneficial out-of-stream uses, and in preserving water instream. More importantly, the adoption of the public trust doctrine in the appropriation context would affirm the duty of the State of Oregon to continuously supervise diversionary uses of water to ensure that they are compatible with trust values.(22)

Pertinent Oregon case law indicates that if faced with similar issues addressed by the California court in Mono Lake, the Oregon Supreme Court would identify the public trust doctrine as coexistent with, as opposed to subsumed by, the doctrine of prior appropriation under Oregon's water code. Furthermore, the extension of the public trust doctrine in Oregon is supported by the overaching control that Oregon exercises over the allocation and management of water resources, and the statutory duty of OWRD to incorporate trust considerations in water appropriation decisions.

This Comment is divided into three primary Parts. Pat II examines Oregon's instream water rights statute, exploring some of the primary reasons why this approach has been unsuccessful in preserving a biologically sufficient water level in many state streams. Part III is a brief introduction to the public trust doctrine, exploring its historical development, modern extensions, and application by the California Supreme Court in Mono Lake. Finally, Part IV examines the public trust doctrine in Oregon, and, utilizing the analytical framework established by Mono Lake, argues that the public trust in Oregon should extend to damage caused to navigable waters by excessive diversions from nonnavigable tributaries.

II. Oregon's Instream Water Rights Statute

A. Enactment of Oregon's Instream Water Rights Statute

Oregon has traditionally been in the forefront in enacting statutory schemes aimed at keeping water in the river, and away from the reach of the appropriation process. The Oregon Legislature passed laws that focused on the preservation of minimum stream flows in 1955(23) and 1983,(24) each time with limited success.(25) In 1987 Oregon passed the Instream Water Rights Statute,(26) thereby adopting its present approach to affording some value to keeping water in the stream. Like its "minimum streamflow" predecessor, this statute is progressive in terms of western water law because it recognized that in certain limited circumstances, instream uses are considered equivalent to out-of-stream uses. However, because of limitations both on its face and as applied, the statute has not performed as expected.

Under the Instream Water Rights Statute, only three state agencies are authorized to request an instream water rights.(27) The Oregon Department of Fish and Wildlife (ODFW), ODEQ, or the Oregon Department of Parks and Recreation (ODPR) may individually determine the quantity of water necessary to buoy a particular water use, and then request that the Water Resources Commission issue an instream water right for that amount.(28)

OWRD receives all agency applications for new instream water rights.(29) Once received and deemed complete, the application is processed, and the Director of OWRD undertakes an initial review of the requested instream water right.(30) In addition, each instream water right application is subject to public interest review by OWRD.(31) OWRD presumes that a proposed instream water right will not impair or be detrimental to the public interest if 1) the proposed use is allowed under the applicable basin plan, 2) water is available, 3) no existing water rights are injured, and 4) the instream use will not violate applicable administrative regulations.(32)

When granted, an instream water right dates from the filing of the application, and is held in the name of OWRD "as trustee for the people of the State of Oregon."(33) An instream right has the same legal status as any other water right granted by OWRD.(34) However, the statute contains a strict proviso that an instream water right shall not take away or impair any rights granted by the same prior to the establishment of the instream right.(35)

B. Shortcomings of Oregon's Instream Water Rights Statute

Despite the legitimate attempt to find a place for instream water rights within the doctrine of prior appropriation, the Oregon scheme has not proven satisfactory to conservationists. The Oregon Instream Water Rights Statute has failed to provide adequate flows in many rivers and streams that have been dewatered consistently throughout the last half-century. Three primary reasons contributed to this failure, including: 1) the fact that instream rights are subordinate to all prior perfected water rights, regardless of the actual river conditions; 2) OWRD has been less than diligent in processing and certifying the instream water rights; and 3) the inherent problems associated with enforcing valid instream rights.

The fact that Oregon instream water rights cannot impair or conflict with prior existing rights destroys much of the utility of such a right.(36) An instream right with a post-1987 priority date does virtually nothing for many of the rivers and streams that have been dewatered during certain times of the year based only on the water rights granted prior to 1950.(37) On such rivers, an instream right may be the most junior of numerous junior rightholders who have not received water during the late summer and fall for many years. Under the limitations imposed on the face of the statute, even if ODEQ determines that a certain quantity of instream water is necessary for pollution abatement, the instream right granted by OWRD will be fulfilled only after all other prior existing rights are satisfied. Thus, under the instream water rights statute. ODEQ and human and environmental entities adversely affected by the pollution lose.

An administrative rule promulgated by OWRD espouses that the "implementation of the instream water rights law is a means of achieving an equitable allocation of water between instream public uses and other water uses."(38) However, in reality, the statute is meant to establish an "equitable allocation" between public instream uses and other out-of-stream uses in the post-1987 era.(39) The statute does little to rectify the unnaturally low water conditions that existed prior to its enactment. Therefore, many of the problems regarding overappropriation present in Oregon prior to 1987 still exist.

Delays in processing instream water rights also hindered the success of the statute. Prior to 1992, 876 instream water rights applications were filed, yet only thirty-six certificates were issued.(40) As of 1996, only ten percent of the applications for instream rights filed by the three authorized natural resource agencies had been processed and granted certificates.(41)

One of the primary reasons for delays in the application and certification process is that OWRD has been underfunded and understaffed.(42) This problem affects not only OWRD in processing the applications, but also ODFW, ODEQ, and ODPR in determining what actual instream flow is needed for optimal public benefit.(43) While instream water rights are dated as of the filing of an application with the Water Resources Commission, delays in the instream application process prohibit statutory protections from taking immediate effect. Whatever the rationale, a large number of applications have been filed for instream rights since 1987, but only a comparative few have actually been granted.

Finally, the enforcement of instream water rights has proved difficult in Oregon.(44) First, Oregon has only sixteen watermasters with ten assistants.(45) This group is responsible for overseeing more than seventy thousand water rights which extends over a vast area.(46) Obviously, with such a large domain and so few enforcement personnel, it is difficult to adequately monitor other users to ensure that individual water use does not illegally infringe on a particular instream right.

Second, the nature of the instream right itself makes enforcement inherently difficult.(47) Upstream junior appropriators must be monitored to ensure that they are allowing a sufficient quantity of water to flow downstream to satisfy the instream right. Downstream junior appropriators must allow the water allotted to the instream right to pass without diverting just as if a senior appropriator had removed such water from the stream.(48)

Third, the monitoring of individual water use to ensure the preservation and enforcement of the instream right has been problematic.(49) Measuring individual use of water is important because illegal or excessive water use may be causing injury to an instream right.(50) While Oregon's watermasters operate two hundred stream gauges, such gauges measure only the actual content of the watercourse at that point (the streamflow), and do not measure individual water use.(51) A number of suggestions have surfaced to improve monitoring, such as having individuals self-monitor and document their respective water usage and report to OWRD, or alternatively having OWRD mandate water use measurement. However, none of the suggestions have been formally adopted by statute.(52)

The nine years following the enactment of the Instream Water Rights Statute have shown that this approach is not the answer to the overappropriation problem of many Oregon rivers. OWRD's Strategic Water Resources Management Plan documented that there is not enough water available in Oregon to satisfy existing and future needs.(53) Even in a perfect world, with full funding and accelerated agency action, the statute would provide few answers to the adverse environmental impacts caused on the numerous rivers and streams that have been overappropriated for decades.

The Oregon Legislature has attempted to provide for instream rights, and still allow the prior appropriation system to dictate the nature and extent of such rights. While this mixture is politically expedient, it does little to effect the changes needed to restore many rivers and streams in Oregon to functioning aquatic systems. Because the Oregon statutory scheme has for the most part failed, a new approach is required to ensure that public uses and needs associated with the allocation and management of water in Oregon are properly considered. That new approach should be the extension of the judicially created public trust doctrine, which is capable of curing the harm caused to navigable waters by diversions from non-navigable tributaries. The next Part explores the historical development of the public trust doctrine, and identifies a modern extension of the doctrine which, if adopted by Oregon, would ensure that the environmental consequences of excessive diversions would be taken into account in the management of the state's water resources.

III. The Public Trust Doctrine

The public trust doctrine has been a part of the American legal system since the nation's inception. However, the history and legacy of the doctrine go beyond the borders of this country and extend back over a thousand years in time. This Part begins with brief exploration of the history and development of the public trust doctrine, and then focuses on the recent extension of the doctrine into the realm of western water law.

A. Historical Origins

Property has been described as "[t]that which is peculiar or proper to any person; that which belongs exclusively to one; in the strict legal sense, an aggregate of rights which are guaranteed and protected by the government."(54) However, certain categories of property by their nature may not be owned by one person or entity. Watercourses, both the waters within and the streambeds below, fall within this property hinterland. The public trust doctrine can be seen as an attempt by society to recognize such resources as not belonging to any one person, but to the entire public.

Historically, the public trust doctrine has both ancient and medieval origins.(55) The societies of ancient Rome and medieval England attempted to reconcile traditional notions of property with the unique nature and universal importance of water. Under Roman law, many historians recognize that the foreshore was seen as not belonging to any singular person, but to the Roman people.(56) Under such a system, the seashores were "owned by no one, the public having undefined rights of use and enjoyment."(57)

According to English custom, all grants of land title along the shores of England originated from the crown.(58) While property owners for centuries argued that such title included the foreshore, the English law that emerged from the 16th and 17th centuries held that absent express language to the contrary, land grants from the crown adjacent to the seashore did not include lands between the high and low water marks.(59) In Arnold v. Mundy,(60) the first American state case to acknowledge the public trust, the New Jersey court recognized the importance and validity of the doctrine under English common law.(61) The court held that the state, like the King under English law, held the beds of navigable waters in trust for the public, and emphasized that the public trust doctrine, as it existed in medieval England, provided the public with valid rights in such waters.(62) The court noted that "no king of England has had the power of granting away these common rights, and thereby despoiling the subject of the enjoyment of them."(63)

In England, the public trust doctrine applied to the King as the sovereign owner of the waters and the lands beneath such waters.(64) In the United States, because the federal government had never been the owner of such lands, the original thirteen states were deemed the owners of the lands (trust lands) beneath the navigable waters within their respective state boundaries, and were recognized as the direct successors in interest from the English Crown.(65) With the remaining states, because the federal government had originally owned the lands from which each state was created, there remained the question of whether the state or the federal government was considered the sovereign, and thus, the owner of the beds beneath navigable waters. In 1845, the U.S. Supreme Court in Pollard's Lessee v. Hagan(66) answered the question of sovereignty in favor of the states.(67) The Court held that under the equal footing doctrine, each of the nonoriginal thirteen states was admitted to the Union with the same terms and rights of ownership as the original thirteen colonies, including title to the beds of navigable rivers.(68)

While Pollard's Lessee affirmed that all states did in fact own the beds beneath their navigable waters, it was not until almost fifty years later that the Supreme Court delineated some of the obligations that attach to state ownership of such resources. In Illinois Central Railroad Co. v. Illinois,(69) the lodestar American case enunciating the traditional public trust doctrine,(70) the Supreme Court invalidated an Illinois statute that transferred ownership of a large portion of Chicago's waterfront, including lands submerged beneath the city's harbor, from the state to private hands.(71) In doing so, the Court divided lands owned by the state into two distinguishable forms: lands that are held "jus privatum" and lands that are held "jus publicum."(72) Lands beneath navigable waters were lands held jus publicum. Unlike jus privatum lands for which the state acted as a proprietor and intended such lands for sale, lands held jus publicum were "held in trust for the people of the State that they may enjoy the navigation of the waters, carry on commerce over them, and have liberty of fishing therein freed from the obstruction or interference of private parties."(73) The Court did not outlaw all conveyances of trust lands, but held that the control of the state over such lands can "never be lost," except where the parcels are used to promote the trust interests or can be disposed or without substantial impairment of the trust purposes.(74)

The principles espoused in Illinois Central Railroad Co. have been called the "core" of the public trust doctrine, the trust principles that the Supreme Court "has applied to those watercourses whose shorelines, beds, and banks pass by implication to states at the time of statehood."(75) However, while states appear to the limited by these minimum constitutional requirements, many state courts have individually increased the scope of the traditional public trust doctrine to include other uses and resources.(76)

B. Extensions of the Public Trust Doctrine

In recent years, many states have extended the public trust doctrine beyond its traditional scope. In commenting on the scope of the public trust, Professor Joseph L. Sax notes the narrowness of the traditional doctrine, but asserts that

the judicial techniques developed in public trust cases need not be limited

either to these few conventional interests or to questions of disposition of

public properties. Public trust problems are found whenever governmental

regulation comes into question, and they occur in a wide range of situations

in which

diffuse public interests need protection against tightly organized groups

with

clear and immediate goals.(77)

Individual states have expanded the public trust doctrine in a number of different ways.(78) Most states have extended the doctrine to include the preservation of certain uses of trust resources beyond the traditional triad of navigation, commerce, and fishing. In this regard, some states have utilized the public trust doctrine to prevent authorization by the state of certain activities that, while not necessarily interfering with the navigability, commerce, or fishing on a particular watercourse, did infringe on the following public rights: 1) use for open space, environments that provide food and habitat for birds and marine life, and ecological units for scientific study;(79) 2) recreation, including boating, swimming, water skiing, and other related recreational purposes;(80) and 3) all public uses of water.(81)

Another example of state court ingenuity has been in the realm of access to areas designated as trust resources. For example, the Montana Supreme Court, relying on the Montana Constitution, Montana statutory stream access provisions, and the public trust doctrine, recognized that public rights include access to nearly all waters of the state for recreational purposes.(82) Similarly, the New Jersey Supreme Court, in a tidelands access case, reasoned that the designation of a particular area as a trust resource included the reasonable right of the public to access such areas.(83)

While the above instances reflect the expansive interpretations and flexible nature attributed to the public trust doctrine by state courts in recent years, nowhere has the development and extension of the doctrine been more controversial than in regards to its application in the context of the appropriation and allocation of water resources. The leading state to apply the public trust doctrine in the water rights context has been California.(84) The first California case to do so was National Audubon Society v. Superior Court of Alpine County (Mono Lake).(85) Mono Lake provides an excellent glimpse into what a state court may examine in order to extend the public trust doctrine into the appropriation context.

Mono Lake, a navigable watercourse, is the second largest lake in the state of California. The lake lies at the base of the Sierra Nevada escarpment, and is a resource of unquestionable ecological significance.(86) Mono Lake is saline and contains no fish, but has supported a large population of brine shrimp, which serve as the primary food source for the "vast numbers" of migrating birds that the lake attracts.(87)

In 1940, the Division of Water Resources granted the Department of Water and Power (DWP) of the City of Los Angeles a permit to appropriate virtually the entire flow of water from four of the five nonnavigable tributary streams that flow into Mono Lake.(88) Other than minimal amounts of snow and rain on the actual surface of the lake these streams serve as the sole source of water recharge for Mono Lake.(89) As the diversions by the Department increased over time, the water level of the lake plummeted. its surface area decreased by one-third, and one of the principal islands used by migratory birds became connected to the shore, and could no longer serve as a natural barrier to the birds' predators.(90) In the court's opinion, Justice Allen E. Broussard wrote "there seems little doubt that both the scenic beauty and the ecological values of Mono Lake are imperiled."(91)

The National Audubon Society filed suit to enjoin DWP's diversions from the tributary streams, alleging that the shores, beds, and waters of Mono Lake were protected by the public trust.(92) The group argued in front of the California Supreme Court that allowing continued diversions from the nonnavigable tributary streams violated this public trust.(93)

In a landmark decision, the California Supreme Court held that the public trust doctrine was applicable to the harm caused to a navigable waterbody by excessive diversions from its nonnavigable tributaries, and therefore plaintiffs could rely on the doctrine to argue for a reallocation of water in the Mono Lake Basin.(94) In so holding, the Court reacted to the "collision course" long established between the public trust doctrine and the appropriation system, not by absorbing one into the other, but by recognizing that they represent two parts of a larger whole -- an "integrated system of water law."(95)

Furthermore, the court's decision explicitly applied the public trust doctrine in the water rights context, an area traditionally reserved for those who put water to some statutorily accepted, out-of-stream, beneficial use. Most importantly, the decision expanded the geographic scope of the traditional doctrine, emphasized the nonvested nature of usufructuary property rights in water granted by the state, and affirmed that the state has a never-ending duty to supervise the use rights of appropriators to insure that trust values are monitored and preserved.(96) In arriving at these momentous conclusions, the California court's analysis focused on two primary areas: 1) the judicial development of the public trust doctrine in California;(97) and 2) the relationship between the public trust doctrine and the California water rights system.(98)

1. The Public Trust Doctrine in California

The California Supreme Court examined the judicial development of the public trust doctrine in California to support its extension of the doctrine to the harm caused to a navigable water by diversions from its non-navigable tributaries. First, the court emphasized that prior state case low reinforced that the purposes of the public trust are ambulatory.(99) While traditional public trust easements were confined to those enveloped by navigation, commerce, and fisheries, that does not strictly define the limits of trust purposes because "[t]he objective of the public trust has evovled in tandem with the changing public perception of the values and uses of waterways."(100) The court cited Marks v. Whitney,(101) a tidelands boundary suit in which the court stressed the flexibility of the public trust doctrine in holding that trust uses may encompass the preservation of lands in their natural state.(102) Because of the unique nature of the Mono Lake ecosystem, the court had little difficulty holding that the preservation of such an environment was within the purposes of the trust.(103)

Second, the court found that the geographic scope of the public trust doctrine is not limited to its traditional tidelands roots. The court determined that it was "well settled" throughout both the United States and California that public trust law applies beyond the tidelands area, to include all navigable lakes and streams.(104) Because Mono Lake was navigable, its beds, shores, and waters were protected by the public trust.(105) Following this determination of the scope of the public trust, the court easily connected the protections afforded such a resource with the harm caused by the diversion of water from its nonnavigable tributaries.(106)

Third, Mono Lake asserted that once something is identified as a trust resource, the "dominant theme" regarding the management of such resource is the ability and duty of the state to exercise its sovereign authority to "exercise continued supervision over the trust."(107) Accordingly, the public trust doctrine affirms "the duty of the state to protect the people's common heritage of streams, lakes, marshlands and tidelands, surrendering that right of protection only in rare cases when the abandonment of that right is consistent with the purposes of the trust."(108) In order to fulfill this duty, the state has the ability to revoke previously granted rights that infringe on the trust.(109)

The Mono Lake Court found ample flexibility in prior public trust case law to support an extension of the public trust doctrine to the appropriation context. The court then corroborated such findings with a correlative analysis of California's water rights system.

2. The California Water Rights System

Mono Lake did not rely solely on past judicial pronouncements to support the extension of the public trust doctrine into the water law context. The court also examined California's water rights system, and the administrative framework that governs the management and allocation of the state's water resources. The court held that the California water rights system, as evidenced by the language and policy contained in the state constitution, statutory water code, and water rights administration, strongly indicates that the appropriative rights system and the public trust doctrine were intended to coexist, with neither body of law being subsumed by the other.(110) Under this formulation, the public trust doctrine does not replace the mechanisms in place whereby the state allocates water, but acts as a supplementary force to ensure that public trust values are fully considered before and after appropriate rights are granted.

According to the Mono Lake Court, the California Constitution implies that "[a]ll uses of water, including public trust uses, must now conform to the standard of reasonable use."(111) The court was referring to a 1928 state constitutional amendment concerning the conservation of water resources, which made all uses of water subject to the doctrines of reasonable and beneficial use, and placed them within the state's control (whether such uses were riparian or by appropriation). The court noted that following the 1928 amendment, no one was able to obtain a vested right to the unreasonable use of water.(112) Because no user is able to obtain a vested right to the unreasonable use of water, the state has a duty to ensure that the particular appropriator's uses of such water are in fact reasonable, before and after the permit is granted. After the 1928 amendment, the California Constitution ensures that the granting of a permit is no longer a ministerial act, but one that is subject to state control and supervision.(113)

In addition to the constitutional analysis, Mono Lake also focused on a provision of the state water code explicitly recognizing the interests of the public in waters contained within the state. Water Code section 102 dictates that "[a]ll water within the State is property of the people of the State, but the right to use of the water may be acquired by appropriation in the manner provided by law."(114) The court felt the language of section 102 reinforced the usufructuary nature of a right to appropriate water, with the true ownership of such water remaining not only in the state itself, but in the people of the state.(115)

Finally, Mono Lake traced the development of the State Water Board as the controlling authority over water resource decisions in California. In doing so, the court held that both modern legislative enactments and judicial decisions have recognized the power of the Water Board to "oversee the reasonable use of water and, in the process, made clear is authority to weigh and protect public trust values."(116) Legislative enactments in 1955,(117) 1959,(118) and 1969(119) were all aimed at ensuring that the public interest and trust values were a major part of the appropriation process in California.(120) Court decisions after 1950 have emphasized the expansive powers of the Water Board to determine the best use of, and how to safeguard, the State's water resources.(121) Combining these legislative enactments and judicial decisions, the Mono Lake court found it clear that the Water Board has been entrusted with the authority to manage and control the water resources of California. The duty to protect public rights in trust resources is binding on this authority.(122)

Mono Lake provides the analytical framework to which a state would most likely refer, prior to extending the public trust doctrine into the water law context. First, a court must reflect on pertinent state case law and find recognition of traditional common law notions of the public trust. The court must combine these common law notions with enough flexibility to account for changing societal needs and goals, while allowing the public trust doctrine to develop. Second, a court must analyze state water codes to ensure that the state exercise complete control over its waters and is able to incorporate trust considerations in the allocation and management of water resources. With this framework in mind, this Comment will turn to an analysis of Oregon law.

IV. The Case for the Extension of the Public Trust Doctrine in Oregon

Mono Lake dictates that both state case and statutory law be examined prior to concluding that state law envisions an extension of the public trust doctrine. This Part first examines the public trust doctrine in Oregon, arguing that Oregon's version is flexible enough to support the use of the doctrine in the appropriation context. This Part then explores and arrives at a similar conclusion regarding Oregon's administrative and statutory mechanisms governing the management and allocation of the state's water resources.

A. The Public Trust Doctrine in Oregon

Unlike California, Oregon is not recognized for its progressive line of Supreme Court decisions broadly interpreting and extending the public trust doctrine. However, Oregon case law does establish that the public trust is firmly entrenched in state law, and has been applied for over a century.

Bowlby v. Shively(123) has been described as the first Oregon case to "succinctly summarize[] the status of the public trust doctrine in Oregon."(124) To this day, the case represents Oregon's quintessential statement and application of the public trust doctrine in the tidelands context.

Plaintiff Bowlby brought suit to quiet title to certain Columbia River tidelands.(125) Shively was the original owner of the lands in question.(126) He had acquired the lands from the state of Oregon and had originally platted the tidelands and uplands adjacent to the Columbia River.(127) Over time, Shively sold much of the land to others, including Bowlby's predecessor in interest.(128) Eventually, Bowlby acquired title from the state to much of the tidelands lying between the river and Shively's upland tracts and built a wharf into the Columbia River.(129) Bowlby argued that the state was able to convey its tidelands and that he took free of any claims of the upland owner.(130) Shively answered that the state was unjustified in conveying title to the tidelands areas to Bowlby, as he had implicitly reserved the wharfage rights by not expressly including such rights in the original conveyance to Bowlby's predecessor in interest.(131)

The court held for the plaintiff, recognizing that the state as sovereign owner of the tidelands had the ability to convey such lands, subject to the paramount rights of the public in navigation and commerce.(132) In doing so, the Oregon Supreme Court emphasized both the common law origins of the public trust and the fact that by entering the union on an equal footing with all other states, Oregon had succeeded as owner, and therefore trustee, of all navigable waters and the underlying lands within its boundaries.(133) It is unclear under the reasoning of the court whether the origins of Oregon's public trust doctrine are grounded in the common law or upon Oregon's entrance into the Union.(134) Whatever the origin of Oregon's public trust doctrine, Bowlby represents a clear statement of public rights in the state's tidelands areas and a recognition that the state as sovereign owner of such lands and waters has a duty to preserve these paramount public rights.

One year after Bowlby, the Oregon Supreme Court affirmatively declared that "navigable waters" in the public trust context included navigable freshwater rivers and lakes.(135) In Lewis v. City of Portland, the city wanted to condemn the plaintiff's land, but did not want the wharves that the plaintiff had constructed without state permission to be included in the valuation proceeding.(136) The court concluded that the beds and waters of navigable rivers and lakes were covered under the public trust doctrine.(137) However, the court limited this coverage to some extent by recognizing that there could be private rights that when exercised did not impair the trust, such as those rights claimed by a riparian owner to build a wharf in aid of navigation or commerce.(138) Following Lewis, it is clear that the geographical scope of Oregon's public trust doctrine extends beyond the tidelands area and includes all navigable rivers and lakes.

In the eighty years following Bowlby and Lewis, the Oregon Supreme Court focused primarily on refining the state interests in lands held jus privatum and jus publicum.(139) The cases during this period affirmed that the state could convey an ownership interest in trust lands so long as a riparian owner's access was not restricted and public uses and rights in trust lands and waters were not infringed. In addition, the state itself could not invoke the public trust doctrine to prevent riparian owners from building a wharf or other structure that "arguably" benefited commerce or navigation.(140)

In 1979, the Oregon Supreme Court decided Morse v. Oregon Division of State Lands.(141) The Division of State Lands (DSL) had enacted a temporary rule deleting a prior rule that required all landfill projects be for waterrelated activities.(142) Following the adoption of the temporary rule, the City of North Bend applied for, and was granted, a permit to fill thirty-two acres of Coos Bay in order to extend the runway of the local airport.(143)

Morse overturned DSL's decision to issue the permit, but not because of the public trust doctrine.(144) According to the court, the public trust doctrine did not prohibit "other than water related uses" of trust resources.(145) The court relied on Illinois Central Railroad in determining that nonwaterrelated uses of trust resources do not per se equate with the substantial impairment of the public rights in the trust resource.(146) The court found that there was no conveyance of a trust resource in Morse that would involve a substantial impairment of the trust and therefore it was within the power of the legislature to authorize.(147)

The cases explored above serve as a general outline, showing the history of the public trust doctrine in Oregon, and will serve as the foundation for any future extensions or modifications. From these cases, it is clear that the public trust doctrine exists in full force in Oregon, and applies to both tidelands areas and the beds and waters beneath navigable rivers and streams. The State of Oregon is able to convey private rights to trust resources, so long as such private rights remain subject to certain paramount public rights. In addition, as Morse indicates, Oregon's public trust doctrine does not altogether ban nonwaterrelated uses of trust resources.(148)

While the above cases represent the Oregon Supreme Court's interpretation of the public trust doctrine, they need not serve as a terminal point for review of Oregon's public trust law. Other Oregon court decisions contain statements and themes that the Oregon Supreme Court could combine with the above cases to extend the public trust doctrine to include the harm caused to navigable waters from diversions from non-navigable tributaries.

One of the primary reasons the California court in Mono Lake extended the public trust doctrine into the water law context was that prior enunciations of the doctrine in California had explicitly recognized that public uses of trust resources were ambulatory.(149) The California court stated that "[t]he objective of the public trust has evolved in tandem with the changing public perception of the values and uses of waterways."(150) Therefore, because California recognizes that citizen uses and perceptions of trust resources will change over time, the protections afforded by the state regarding such uses and resources must also remain flexible and change with the times.

Surprisingly, Oregon case law has been relatively quiet regarding the acceptance of expansive public trust uses. For many years following Bowlby, judicial recognition of public trust uses remained limited to the traditional triad of commerce, navigation, and fishing.(151) However, recent cases have added recreation as a recognized and important public use of trust resources.(152) The appellate court in Morse stated that "[b]ecause the trust is for the public benefit, the state's trustee obligation is commonly described as the protection of specified public usages, e.g., navigation, fishery and, in more recent cases, recreation."(153)

If the Oregon Supreme Court were to closely examine the public usage of trust resources in the future, it would be hard pressed to ignore the fact that public uses of trust resources have in fact increased and become more diverse in modern times. The Oregon Supreme Court has been willing to utilize innovative legal concepts to preserve public rights. In Thornton v. Hay,(154) the court invoked the doctrine of custom to preserve public access to the dry sand areas of the Oregon coast, and invalidated an attempt by a landowner to build a fence on his property that would have enclosed the dry sand area of his ocean front lands.(155) The recognition of expanded public trust uses of trust resources in modern times would be no more of a legal stretch than the implementation of an English common law relic that had gone unrecognized through the entire period of Oregon's statehood until it was invoked in Thornton. The traditional triad of commerce, navigation, and fishing now serves as the baseline, and not the boundary, for specific public usage of trust resources. In addition, other states have extended the coverage of the public trust doctrine to protect various public uses ranging from public bathing in trust waters to the preservation of trust resources for the study of wildlife, or merely as biologically significant open space.(156)

Second, the geographic scope of the public trust doctrine in Oregon will be a key factor regarding the extension of the doctrine. Bowlby ensured that the public trust doctrine would be applied in full force to tideland areas in the State of Oregon.(157) In addition, Lewis dictated that the geographic scope of the doctrine included all navigable rivers and lakes.(158) These cases align Oregon with the generally accepted rule in the United States -- that the public trust includes not only tidelands areas, but the beds and waters of navigable rivers and streams.(159) However, the "navigability" of a particular river can be expanded by both federal and state law for different reasons and with varying legal significance, enabling the public trust doctrine to reach certain stretches of a river to which it ordinarily would not have attached.

Many of Oregon's rivers have had their potential for navigability increased because of an expansive federal test in the navigability context. In Oregon v. Riverfront Protection Association,(160) Oregon sued seeking a determination that a particular stretch of the McKenzie River was navigable in 1859, at the time of statehood.(161) In determining the navigability of the river, the Ninth Circuit Court of Appeals first held that for the purposes of title, a stream is navigable if capable of being used for the transportation of commerce according to customary manners.(162) In applying this test to the McKenzie River, the court found that the river had been used for log-floating on a seasonal basis for a period of years and that this was sufficient to qualify that portion of the river as navigable.(163) Thus, the McKenzie River between "river mile 37" and its confluence with the Willamette River was deemed navigable, and the State of Oregon was recognized as the title holder to such lands, with the public trust and its obligations attached.(164) Because logging and the transportation of logs played a large role in Oregon's early history, many of Oregon's rivers may be deemed "navigable" under the federal test beyond the point where most rivers would be recognized as nonnavigable under federal law.

In Guilliams v. Beaver Lake Club,(165) the Oregon Supreme Court recognized the "qualified navigability" of some waters "for the purposes of navigation and commerce, they being deemed public highways for such purposes, although the title to the soil constituting their bed remains in the adjacent owner, subject to the superior right of the public to use ...."(166) This "qualified navigability" was held to include public use for recreational purposes in Luscher v. Reynolds.(167) In Luscher, the court did not want the public enjoyment of these lesser water bodies to be limited by the declaration of private ownership of the beds, and therefore declared that "`commerce' has a broad and comprehensive meaning" and that "a boat used for the transportation of pleasure seeking passengers is, in a legal sense, as much engaged in commerce as is a vessel transporting a shipment of lumber."(168) Most importantly, Guilliams and Luscher illustrate that in certain circumstances, the public has limited rights in waters within the state that are not navigable under federal law. Therefore, the Oregon Supreme Court could utilize such cases to emphasize the flexibility that public uses of water must be afforded.

As illustrated by the above cases, not only does the geographic scope of the public trust doctrine in Oregon extend to navigable rivers and lakes under the federal navigability for title test, but also includes other waters under limited circumstances. However, the tougher question for the Oregon Supreme Court, if it intends to expand the public trust doctrine into the water law context, is whether any prior cases support the extension of the geographic scope of the doctrine to include harm caused by the diversion of nonnavigable tributaries.

In Mono Lake, the court examined two old California cases that dealt with activities in nonnavigable rivers that adversely affected downstream navigable waters. In People v. Gold Run Ditch & Mining Co.,(169) 600,000 cubic yards of sand and gravel were dumped into the North Fork of the American River due to a strip mining operation.(170) As a result, the sand and gravel traveled downstream, raising the beds of the American and Sacramento Rivers and thereby impairing navigation and causing water pollution.(171) Gold Run upheld the injunction barring the dumping, holding that it was "an unauthorized invasion of the rights of the public" to its navigation.(172) In People v. Russ,(173) the defendant had built dams on a number of sloughs adjacent to a navigable watercourse.(174) The court held that because excess diversions from a navigable stream may be directly enjoined, "the waters of a navigable stream [may not] be diverted in substantial quantities by drawing from its tributaries."(175)

Mono Lake held that the reasoning in the above decisions applied fully to "a case in which diversions from a nonnavigable tributary impair the public trust in a downstream river or lake."(176) The court further recognized that if the public trust doctrine applied to constrain fills that impair navigation and other trust uses in navigable waters, it should apply in a similar manner to the diversion of waters from nonnavigable tributaries that have the same adverse effects.(177)

Oregon has no case law expressly enjoining excessive diversions from a nonnavigable tributary that impair the trust values of a downstream navigable river or lake. However, the logic behind such an argument is hard to dismiss. Professor Ralph Johnson asserted that to hold otherwise "would be to permit these highly valued public rights, protected so carefully against intrusion from other directions, to be destroyed with impunity by persons claiming water rights under the prior appropriation system of water law."(178) In other words, an appropriator who causes damage to public rights in navigable waters by excessively diverting water from a nonnavigable tributary should not be released from liability, when the same person would be enjoined from such conduct if it involved the fill or removal of material from such waters that destroyed or impaired navigation or some other trust value in the downstream navigable waterbody.(179) The Oregon Supreme Court should recognize that the damage caused by both excessive diversions and the fill or removal of materials from the stream are activities that can be equally detrimental to public trust values, and therefore within the scope of the state's public trust doctrine.

In expanding the scope of the public trust doctrine into the water law context, the Mono Lake court emphasized the importance of precedent. Prior California case law reflected traditional common law notions of the public trust and incorporated a flexible approach to fact situations that involved harm to trust resources. While not as developed as California's public trust law, the foregoing discussion demonstrates that the body of Oregon public trust law is sufficiently diverse to support a similar extension. Beginning with its early adoption and application of the traditional public trust in Bowlby, the Oregon Supreme Court has been willing to utilize the doctrine to protect trust values associated with tidelands, navigable rivers, and navigable lakes. In addition, cases that have arisen in other contexts such as federal navigability, state navigability, and public access to trust resources suggest that Oregon would be willing to extend the public trust doctrine to include the harm caused to navigable waters by excessive diversions from their nonnavigable tributaries.(180)

Mono Lake did not end its analysis with an examination of state case law. Instead, the court examined the California water code in order to ensure that the state exercised complete control over state waters, and that the state water management agency had the ability to incorporate trust considerations in its management and allocation of state water resources. The next section explores Oregon's water code and identifies that Oregon has similar authority over its waters.

B. The Oregon Water Rights System

Since 1995, Oregon has allocated and managed the state's water resources almost exclusively through the Water Resources Commission (Commission) and the Water Resources Director (Director). This conclusion is supported by 1) the state water code provisions defining the roles of the Commission and the Director, 2) state water code provisions defining the general policies for state water resources administration, 3) Oregon Attorney General Opinions dating from 1962, and 4) Oregon case law. In addition, Oregon water code provisions explicitly incorporate trust considerations that the Commission and Director must take into account when approving applications to appropriate water.

1. State Control Over Water Resources

Before requiring the California Water Board to consider interests protected by the public trust, the California Supreme Court examined the powers of the Board under state statutes and judicial holdings, and reached a simple conclusion. By undertaking the responsibility for the comprehensive management and allocation of California's water resources, the Board was required by statute to consider interests protected by the public trust.(181) In light of similar duties that are carried out by the Commission and Director as the representative state water resources agency under Oregon law, the State of Oregon appears to have assumed a similar obligation regarding the comprehensive management of state water resources.

In 1909, the Oregon water code was enacted and an administrative process was established whereby water could be appropriated from the state.(182) Under the original 1909 system, an application to appropriate water was given to, and processed solely by, the Office of the State Engineer.(183) Accordingly, the state's role was limited to the duties carried out by the State Engineer without a comprehensive scheme formulated to guide Oregon's water policy.(184) However, since 1955, Oregon;s statutory scheme dealing with water resources administration has presented a centralized, integrated approach to water resources management.

In 1955, the Oregon Legislature created the State Water Resources Board.(185) The primary purposes of this legislation were threefold: 1) to create a state agency charged to establish and carry out state water policy according to the laws enacted by the legislature; 2) to create a state agency with the authority to decide conflicts regarding the use and management of state water resources; and 3) to establish an agency that could represent the unified voice of the state in developing programs for state water resources when working with local groups, the legislature, and federal agencies.(186) The legislative history regarding the creation of the Water Resource Board stressed the importance of centralization by placing state control over Oregon's water resources in the hands of one state agency.(187) The "Summary of the Bill" presented by the Water Resources Committee emphasized that it would be the duty of the State Water Resources Board to "formulate, promulgate, and enforce an integrated, coordinated policy for the use and control of all water resources of this state."(188)

Since 1955, the names have changed, but the overall role of the state in the management of state water resources has not. In 1975, the Oregon Legislature abolished the Water Resources Board and the Office of the State Engineer, and state administration control was delegated to the Water Policy Review Board was replaced by the Water Resources Commission.(190) Present-day administration of state water resources is shared between the State Water Resources Commission (Commission) and the Director of the Water Resources Department (Director).(191)

The Commission is a seven-person group whose members are appointed by the Governor, and approved by the State Senate, with the requirement that there be one member of the Commission representing the eastside of the Cascade Mountain Range, and one member representing the westside, with the remaining members taken from each of the five regional river basin management sections identified by statute.(192) The Oregon water code provisions dealing with water resources administration establish that "[i]t is the function of the Water Resources Commission to establish the policies for the operation of the Water Resources Department."(193) The Director is also appointed by the Governor, confirmed by the State Senate, and either she or a principal assistant must be an engineer.(194) The Director is bound by the overall policy direction established by the Commission, and is considered the administrative head of the Water Resources Department (Department) empowered to "administer and enforce the laws of the state concerning the water resources of [Oregon]."(195)

Besides the legislative history surrounding the original 1955 Act,(196) and the statutory language defining the roles of the Commission and Director,(197) Oregon's general policy statements regarding water resources administration under the water code are further evidence of the overarching control of the state over its waters. Much of the actual language in section 536.220 of the Oregon Revised Statute was part of the original 1955 Act,(198) and Section 536.220(a) declares "[i]t is in the interest of the public welfare that a coordinated, integrated state water resources policy be formulated and means provided for its enforcement . . . ."(199) In addition, when formulating the state water resources program, the Commission is specifically directed to consider a broad range of public interests and considerations including, but not limited to 1) the importance of state fishery resources as an economic and recreational asset, 2) the maintenance of minimum streamflows sufficient to support aquatic life, minimize pollution, and contribute to recreational activities, and 3) watershed development to maintain multiple-uses whenever possible.(200)

Mono Lake held that recent statutory enactments had enhanced the power of California's Water Board to "oversee the reasonable use of water and, in the process, made clear its authority to weigh and protect public trust values."(201) Oregon's water code has incorporated a similar emphasis since 1955. Since that time, there is no doubt that the Oregon Legislature, through the workings of the Commission, Director, and Department, has exercised complete control over the state's waters. Therefore, the ability to weigh and protect trust values is clearly within the power of the state in managing and allocating its water resources.

Finally, Mono Lake determined that state judicial decisions had consistently recognized the broad powers of the California Water Board.(202) State Attorney General Opinions and case law have likewise supported an expansive view of state power and control over water resources administration in Oregon. In 1962, the Oregon Attorney General commented on the 1955 legislative enactments which created a comprehensive state water resources administration, observing that the legislature had "created the State Water Resources Board as the single state agency to carry out [water resource management] policy," and that it was "clear that the expressed legislative intention was to coordinate the water policy of this state and to eliminate the many and various piecemeal declarations of policy by previous legislatures."(203) The Oregon Attorney General had similar observations in 1980 regarding the Water Policy Revie