There are some legal doctrines and studies that are just dull.  No amount of high-flown rhetoric can make them interesting.  This is a hard fact.  But, in the wrong hands, a dull doctrine, like a dull knife, can be a dangerous thing.  Some property owners in Oregon may be about to find out the hard way.

Oswego Lake:  A nice place for a legal debate.

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.  The doctrine and the arguments about it do not make for exciting reading.

Over the past several decades, however, 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 cabal of progressive law school professors -- are asking the Oregon Court of Appeals to change that time-honored rule in the case Kramer v. City of Lake Oswego.  The activists and law professors are not only arguing that the public trust requires the government to provide the public with recreational rights in 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.

By Ethan W. Blevins, College of Public Interest LawFellow, Pacific Northwest Center 

Not these wolverines.

When Charlie Brown decided to make a few "shrewd trades" to improve the Peanuts baseball team, Lucy said, "That's a great idea, Charlie Brown, why don't you trade yourself?"  We all need someone to point out uncomfortable truths.  That's why PLF plans to intervene to defend the Fish & Wildlife Service's decision not to list the wolverine as a threatened species.  But like Lucy, we support the government for a reason it may not like.

In early 2013, the Fish & Wildlife Service proposed to list the wolverines in the lower forty-eight as a threatened species.  After an extended period for peer review and public comments, the Service decided not to list the wolverine last August.  A coalition of environmental groups recently sued to force the listing.  They claim that the Service failed to follow the best available science.  Because the wolverine needs lots of snow, they say, climate change poses a threat to the species' survival in the continental United States. 

But we need not debate the science, because the Service lacks authority to list the wolverines of the continental U.S. anyway.  The government may list "any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife."  The Service can list a subspecies.  And it can list a distinct population segment of a species.  But it cannot list a distinct population segment of a subspecies. The North American wolverine is one of at least two subspecies.  The environmental groups seek to force the listing of only a segment of this subspecies' population.  The Service lacks the power to do so.

PLF will intervene to point out this important constraint on the Service's power.  The government will probably appreciate our position about as much as Charlie Brown welcomed Lucy's proposal.  No government agency likes to hear that it can't do something.  But a court should welcome the only party willing to point out that the Fish & Wildlife Service has to stick to the law.

The wolverine cases will be tried in the U.S. District Court for Montana.  Read PLF's comments on the proposed wolverine listing. 

He spent his entire 41-year career in construction with the Kiewit Pacific Company in Vancouver, Washington, retiring in 1999.  Dick and his wife, Janet, were among the early supporters of the Northwest Center when it opened in the early 1990s, and over the years, he emboldened many others to follow his lead. 

"As a PLF trustee, Dick brought business acumen as well as devotion to free enterprise and property rights," noted PLF President Rob Rivett.  "His dedication helped expand our mission throughout the Pacific Northwest and nationwide.  We will miss his counsel, and we offer our condolences to his wife, Janet, and his family."