The doctrine of public trust can lessen the impact of private property on the public

I recently attended one of those slightly posh, slightly hip, slightly drunken fundraising parties that Eugene nonprofits pay the bills through. Before the auction, but after several drinks, I listened to members of the board and staff tell a brief environmental history of Western Oregon.

Activists in Oregon have come a long way, our speakers concluded, from protecting the federal public forest to protecting state public forests – especially the Elliot State Forest – to finally defeating the Jordan Cove pipeline, which, among other things, threatened public lands and private landowners. look alike.

What was, I wondered, the next step? Wouldn’t it be protect the public interest against private property itself, not only against journaling/development on public land?

The private property most at issue would be the state’s 10.2 million acres of private forest land. What impact does private land use on approximately one-third of all state forests have on the public interest, particularly municipal watersheds, air and water quality, and community fire resistance?

Oregon is uniquely qualified to answer this question by applying what legal scholars call the “public trust doctrine.”

It was the legal doctrine that underpinned Governor Tom McCall’s famous “Oregon Beach Bill” in 1967. His primary principle is that the “sovereign”, or the state, holds resources in trust for public use, independent of private ownership. Public Trust Doctrine has an ancient antecedents, first appearing in Roman law under the Emperor Justinian, who held that “the sea, the shores of the sea, the air and running water were common to all”.

Private forest land – and remember, it’s 10.2 million acres – is often sprayed with herbicides and generally clear-cut. Common sense and knowledge of gravity dictate that any hillside soil that is no longer anchored by trees and vegetation will flow downhill in the rainy season and end up in streams and rivers, while like herbicide. Heavy equipment and road construction also aggravate this erosion. If all that mess migrates down far enough, it will end up in “everybody’s common running water,” like the McKenzie River, Eugene’s only water source.

There is nothing hypothetical about that. Water purity problems have already been experienced by several small river basin districts along the coast, where often close to 100% of the land in the catchment area is privately owned and heavily farmed. Yet a few years ago, when the DEQ attempted to establish what seemed like obvious links between water purity issues and private logging in these watersheds, industry pressure on the ODF canceled the report and it was never published. This is how private property dominates the public interest: by controlling the “sovereign,” or state agencies, who should hold resources in trust for public use.

Water for public use, however, is protected by the doctrine of public trust all over the world. Private ownership notwithstanding, there is ample precedent for applying the public trust doctrine to protect against private logging runoff into Oregon’s municipal watersheds.

“The air… common to all” is also affected by private forest lands… by smoke and fire. Historian Stephen Pyne calls our present time the Pyrocene, an era of fire triggered by human-caused climate change. We know too much about fire and smoke here. About 75% of 2020’s horrific fast-spreading holiday farm fire has burned down on previously cleared private lots. Considerable research suggests that it was no coincidence that young forest plantations managed by industrial owners burn hotter and faster than neighboring public forests.

With 10.2 million acres of private plantations in Oregon in the Age of Fire, that’s potentially a lot of heat. Defenders of Oregon’s forest should make the state government feel part of it.

Citizen activist lawyers should compel the “sovereign,” especially the ODF and DEQ, to embrace the doctrine of public trust and protect vital public resources – air, water, land – independent of private property.

Will Watson, a retired college professor and longtime conservationist, lives in Eugene

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