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In the Supreme Court of the State of Oregon ______ October 2, 2019 03:19 PM IN THE SUPREME COURT OF THE STATE OF OREGON _______________ CHERNAIK, a minor and Lane County Circuit resident of Lane County, Oregon; Court No. 161109273 LISA CHERNAIK, guardian of Chernaik; a minor and CA A159826 resident of Lane County, Oregon; and CATIA guardian of SC S066564 Plaintiffs-Appellants, Petitioners on Review, v. KATE BROWN, in her official capacity as Governor of the State of Oregon; and STATE OF OREGON, Defendants-Respondents, Respondents on Review. _______________ BRIEF ON THE MERITS OF RESPONDENTS ON REVIEW, KATE BROWN AND STATE OF OREGON _______________ Review of the Decision of the Court of Appeals on Appeal from a Judgment of the Circuit Court for Lane County Honorable KARSTEN H. RASMUSSEN, Judge _______________ Opinion Filed: January 9, 2019 Author of Opinion: Armstrong, P. J. Before: Armstrong, Presiding Judge, and Shorr, Judge, and Garrett Judge pro tempore _______________ Continued… 10/19 WILLIAM H. SHERLOCK #903816 ELLEN F. ROSENBLUM #753239 Hutchinson Cox Coons, et al Attorney General P.O. Box 10886 BENJAMIN GUTMAN #160599 940 Willamette St., Ste. 400 Solicitor General Eugene, Oregon 97440 CARSON L. WHITEHEAD #105404 Telephone: (541) 686-9160 Assistant Attorney General Email: [email protected] 1162 Court St. NE Salem, Oregon 97301-4096 COURTNEY B. JOHNSON #077221 Telephone: (503) 378-4402 Crag Law Center Email: 3141 E Burnside St. [email protected] Portland, OR 97214 Telephone: (503) 525-2728 Attorneys for Respondents on Review Email: [email protected] ELISABETH A. HOLMES #120254 Attorneys for Petitioners on Review Blue River Law PC P.O. Box 293 COURTNEY LORDS #101249 Eugene, OR 97440 Multnomah County Attorney's Office Telephone: (541) 870-7722 501 SE Hawthorne Blvd., Ste. 500 Email: [email protected] Portland, OR 97214 Telephone: (503) 988-3138 Attorney for Amicus Curiae Email: [email protected] STEPHEN E. DINGLE #842077 Attorney for Amicus Curiae Lane County Office of Legal Counsel Lane County Courthouse KENNETH KAUFMANN #982672 125 E 8th Ave. Kenneth Kaufmann Attorney at Law Eugene, OR 97401 1785 Willamette Falls Dr., #5 Telephone: (541) 682-6561 West Linn, OR 97068 Email: [email protected] Telephone: (503) 230-7715 Email: [email protected] Attorney for Amicus Curiae Attorney for Amicus Curiae Continued… 10/19 TRAVIS EIVA #052440 CHARLES M. TEBBUTT #965790 Zemper Eiva Law LLC Law Offices of Charles M. Tebbutt 101 E Broadway, Ste. 303 941 Lawrence Eugene, OR 97401 Eugene, OR 97401 Telephone: (541) 636-7480 Telephone: (541) 344-3505 Email: [email protected] Email: [email protected] Attorney for Amicus Curiae Attorney for Amicus Curiae 10/19 TABLE OF CONTENTS INTRODUCTION ............................................................................................... 1 FIRST QUESTION PRESENTED ............................................................2 FIRST PROPOSED RULE OF LAW........................................................2 SECOND QUESTION PRESENTED .......................................................3 SECOND PROPOSED RULE OF LAW...................................................3 BACKGROUND ................................................................................................. 3 A. The state recognizes the threat posed by climate change and is taking steps to combat it, but needs to do more. ..........................3 B. The trial court and Court of Appeals hold that plaintiffs are not entitled to a judicial declaration that the state must do more to combat climate change. ......................................................6 SUMMARY OF ARGUMENT........................................................................... 9 ARGUMENT..................................................................................................... 10 A. The state’s obligation to take action against climate change does not arise from the public trust doctrine..................................10 1. The public trust doctrine imposes narrow limits on state action and serves as a source of authority for state action. ......................................................................... 10 2. The public trust doctrine applies to navigable waters, not other state resources...................................................... 15 a. Kramer rejects plaintiffs’ argument that the public trust doctrine applies to all waters................. 16 b. The cases do not incorporate fish and wildlife into an overarching trust doctrine and do not suggest that the state has affirmative duties regarding fish and wildlife. ...................................... 17 c. The state’s obligation to protect the atmosphere does not derive from the public trust doctrine.......... 18 B. The constitutional separation of powers forbids creating a judicially enforceable obligation to take affirmative action in this context. ....................................................................................21 1. Under Oregon’s Constitution, climate policy choices must be made by the legislative and executive i branches, and by the people through their initiative powers................................................................................. 22 2. The public trust doctrine does not provide a judicially manageable standard for reviewing the policy choices of the legislative and executive branches on climate change. ................................................................................ 26 3. If the executive and legislative branches fail to fulfill their responsibilities to act on climate change, the proper remedy is political rather than judicial.................... 29 CONCLUSION.................................................................................................. 32 TABLE OF AUTHORITIES Cases Cited Anthony v. Veatch, 189 Or 462, 220 P2d 493 (1950)..............................................................18 Aronow v. Minnesota, No. A12-0585, 2012 WL 4476642 (Minn Ct App Oct. 1, 2012).............19 Chernaik v. Brown, 295 Or App 584, 436 P3d 26 (2019)............................................... 8, 9, 15 Chernaik v. Kitzhaber, 263 Or App 463, 328 P3d 799 (2014)........................................................7 Cook v. Dabney, 70 Or 529, 139 P 721 (1914)....................................................................12 Corvallis & Eastern R. Co. v. Benson, 61 Or 359, 121 P 418 (1912)....................................................................12 Filippone v. Iowa Department of Natural Resources, No. 12-0444, 2013 WL 988627 (Iowa Ct App Mar 13, 2013) ................19 Haugen v. Kitzhaber, 353 Or 715, 306 P3d 592 (2013)..............................................................23 Illinois Central Railroad v. Illinois, 146 US 387, 13 S Ct 110, 36 L Ed 1018 (1892) ................... 12, 13, 14, 18 Juliana v. United States, 217 F Supp 3d 1224 (D Or 2016).............................................................11 ii Kramer v. City of Lake Oswego, 365 Or 422, 446 P3d 1 (2019)................. 10, 11, 12, 13, 15, 16, 17, 20, 26 MacPherson v. Dept. of Admin. Servs., 340 Or 117, 130 P3d 308, (2006).............................................................23 Morse v. Oregon Division of State Lands, 31 Or App 1309, 572 P2d 1075 (1977), affirmed on other grounds, 285 Or 197, 590 P2d 709 (1979)..............................................................20 Morse v. Oregon Division of State Lands, 285 Or 197, 590 P2d 709 (1979)................................................. 12, 18, 28 Putnam v. Norblad, 134 Or 433, 293 P 940 (1930)........................................................... 23, 28 Rowe v. Rowe et al., 219 Or 599, 347 P2d 968 (1959)..............................................................13 Sanders-Reed v. Martinez, 350 P3d 1221 (NM Ct App 2015)............................................................19 State ex rel. Nilsen v. Whited, 239 Or 149, 396 P2d 758 (1964)..............................................................28 State of Oregon v. Monsanto Co., et al., Multnomah Co. Circuit Court No. 18-cv-00540......................................21 State v. Dickerson, 356 Or 822, 345 P3d 447 (2015)....................................................... 17, 18 State v. Rogers, 330 Or 282, 4 P3d 1261 (2000)................................................................27 Winston Bros. Co. v. State Tax Com., 156 Or 505, 62 P2d 7 (1936)....................................................................11 Yancy v. Shatzer, 337 Or 345, 97 P3d 1161 (2004), abrogated on other grounds by Couey v. Atkins, 357 Or 460, 355 P3d 866 (2015)...................................22 Constitutional & Statutory Provisions Or Const, Art III, § 1.................................................................................... 22, 25 ORS 340-223-0030(1)(e)......................................................................................4 ORS 455.511.........................................................................................................4 iii ORS 468A.200(1) .................................................................................................3 ORS 468A.200(3) .................................................................................................4 ORS 468A.205............................................................................................. 24, 25 ORS 468A.205(1) .............................................................................................4, 5 ORS 468A.215......................................................................................................4
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