Chernaik v. Brown

• Decision Date: 09 January 2019
• Docket Number: A159826
• Citation: 436 P.3d 26,295 Or.App. 584
• Parties: Olivia CHERNAIK, a Minor and Resident of Lane County, Oregon; Lisa Chernaik, Guardian of Olivia Chernaik; Kelsey Cascadia Rose Juliana, a Minor and Resident of Lane County, Oregon; and Catia Juliana, Guardian of Kelsey Juliana, Plaintiffs-Appellants, v. Kate BROWN, in Her Official Capacity as Governor of the State of Oregon; and State of Oregon, Defendants-Respondents.
• Court: Oregon Court of Appeals

295 Or.App. 584

436 P.3d 26

Olivia CHERNAIK, a Minor and Resident of Lane County, Oregon; Lisa Chernaik, Guardian of Olivia Chernaik; Kelsey Cascadia Rose Juliana, a Minor and Resident of Lane County, Oregon; and Catia Juliana, Guardian of Kelsey Juliana, Plaintiffs-Appellants,

v.Kate BROWN, in Her Official Capacity as Governor of the State of Oregon; and State of Oregon, Defendants-Respondents.

A159826

Court of Appeals of Oregon.

Argued and submitted December 9, 2016.

January 9, 2019

Courtney B. Johnson argued the cause for appellants. On the briefs were William H. Sherlock and Hutchinson Cox.

Carson L. Whitehead, Assistant Attorney General, argued the cause for respondents. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Steven M. Thiel filed the brief amici curiae for Law Professors.

Elisabeth A. Holmes and Blue River Law, P. C., filed the brief amici curiae for Mayor Kitty Piercy, Representative Peter Buckley, Councilor Peter Cornelison, Oregon Physicians for Social Responsibility, Oregon Environmental Council, Climate Solutions, Policy Interactive, Tom Bowerman, Earth Guardians 350 Club, 350 PDX, 350 Eugene, Rogue Climate, Columbia Gorge Climate Action Network, Southern Oregon Climate Action Now, Hair on Fire, Douglas County Global Warming Coalition, Indow Windows, Eric Strid, Oregon Unitarian Universalist Voices for Justice, Interfaith Earthkeepers, Climate Justice Committee of the Unitarian Universalist Fellowship of Corvallis, League of Women Voters of Oregon, and Coalition of Communities of Color.

Before Armstrong, Presiding Judge, and Shorr, Judge, and Garrett, Judge pro tempore.

ARMSTRONG, P. J.

Plaintiffs¹ sued defendants the State of Oregon and Governor Kate Brown² (collectively, the state) for declaratory and equitable relief related to the state’s alleged failure to take sufficient steps to protect the state’s public-trust resources from the effects of climate change. This case is before us for a second time. In the first appeal, we reversed the trial court’s dismissal of the case on justiciability grounds and remanded for the trial court to determine whether plaintiffs were entitled to declarations that the atmosphere and other natural resources are trust resources that the state has a fiduciary obligation to protect. Chernaik v. Kitzhaber , 263 Or. App. 463, 481, 328 P.3d 799 (2014) ( Chernaik I ). On remand, the trial court denied plaintiffs' motion for partial summary judgment and granted the state’s motion for summary judgment, concluding that (1) only state submerged and submersible lands are resources encompassed by the common-law public-trust doctrine and (2) the state does not have a fiduciary obligation to protect public-trust resources from the effects of climate change. Based on those conclusions, the trial court entered a judgment dismissing plaintiffs' case. Plaintiffs appeal, arguing that they are entitled to the declarations that they sought in their motion. On appeal, we conclude that the public-trust doctrine does not impose a fiduciary obligation on the state to take affirmative action to protect public-trust resources from the effects of climate change. Because that conclusion resolves the controversy between the parties, we do not address the other declarations sought by plaintiffs. Accordingly, the trial court did not err in its rulings on the parties' summary judgment motions. However, because the trial court dismissed the case rather than entering a judgment declaring the parties' rights, we vacate and remand for the trial court to enter the requisite declaratory judgment.

We begin by discussing plaintiffs' amended complaint and our opinion in Chernaik I because the remand order in that case set up the parties' motions for summary judgment that are now on review. Plaintiffs sued the state in 2011 for declaratory and injunctive relief based on plaintiffs' conception of "the public-trust doctrine." In their amended complaint, plaintiffs assert that the state holds "vital natural resources" of the state in trust for the benefit of its citizens, including the waters of the state, submerged and submersible lands, islands, shorelands, coastal areas, wildlife, fish, and the atmosphere. Plaintiffs further allege that the state has a fiduciary obligation to protect and preserve those resources for purposes of "conservation, pollution abatement, maintenance and enhancement of aquatic and fish life, habitat for fish and wildlife, ecological values, in-stream flows, commerce, navigation, fishing, recreation, energy production, and the transport of natural resources."

Plaintiffs also set forth allegations related to the effects from climate change worldwide and, more specifically, effects from climate change on Oregon’s natural resources, citizens, and economy, and allege that "[a] failure to take appropriate action will result in the severe alteration and potentially the collapse of the earth’s natural systems leaving a planet that is largely unfit for human life." Plaintiffs further allege that "Oregon has the ability to curtail greenhouse gas emissions, increase carbon sequestration, and take the steps necessary to protect the public trust assets of the State from the adverse [effects] of climate change." Plaintiffs recognize that the state has taken some steps meant to combat the effects of climate change; however, plaintiffs allege that the goals that the state has set are inadequate and, "[d]espite having a concrete greenhouse gas reduction and mitigation plan in place, Oregon is falling significantly behind the targets set by that plan."

Plaintiffs allege a single claim for declaratory relief based on the public-trust doctrine. For that claim, plaintiffs assert that the state has failed "to uphold [its] public trust obligations" with respect to the resources that plaintiffs allege are part of the public trust, and that failure "threatens the health, safety, and welfare of Plaintiffs, as well as present and future generations of Oregon citizens." In their prayer for relief, plaintiffs request both declaratory and injunctive relief:

"[1.] A declaration that the atmosphere is a trust resource, and that the State of Oregon, as a trustee, has a fiduciary obligation to protect the atmosphere as a commonly shared public trust resource from the [effects] of climate change for Plaintiffs and for present and future generations of Oregonians.

"[2.] A declaration that water resources, navigable waters, submerged and submersible lands, islands, shorelands, coastal areas, wildlife, and fish are trust resources, and that the State of Oregon, as a trustee, has a fiduciary obligation to protect these assets as commonly shared public trust resources from the [effects] of climate change for Plaintiffs and for present and future generations of Oregonians.

"[3.] A declaration that Defendants have failed to uphold their fiduciary obligations to protect these trust assets for the benefits of Plaintiffs as well as current and future generations of Oregonians by failing adequately to regulate and reduce carbon dioxide emissions in the State of Oregon.

"[4.] An order requiring Defendants to prepare, or cause to be prepared, a full and accurate accounting of Oregon’s current carbon dioxide emissions and to do so annually thereafter.

"[5.] An order requiring Defendants to develop and implement a carbon reduction plan that will protect trust assets by abiding by the best available science.

"[6.] A declaration that the best available science requires carbon dioxide emissions to peak in 2012 and to be reduced by at least six per cent each year until at least 2050."

In response to plaintiffs' amended complaint, the state filed a motion to dismiss based on a lack of subject matter jurisdiction, arguing that the trial court lacked the authority to grant the relief that plaintiffs sought. The trial court granted that motion, and plaintiffs appealed.

On appeal, we reversed the trial court’s dismissal of plaintiffs' amended complaint. Chernaik I , 263 Or. App. at 481, 328 P.3d 799. We concluded that plaintiffs' first two requests for declaratory relief, on which plaintiffs focused in that appeal, were cognizable under the Uniform Declaratory Judgments Act, and that those requests presented a justiciable controversy under the act. Id. at 475, 479, 328 P.3d 799. Thus, we concluded that

"the trial court erred by not entering declarations regarding whether , as plaintiffs allege, under the public trust doctrine:

"• ‘the atmosphere is a trust resource, and * * * the State of Oregon, as a trustee, has a fiduciary obligation to protect the atmosphere as a commonly shared public trust resource from the impacts of climate change for Plaintiffs and for present and future generations of Oregonians’; and

"• ‘water resources, navigable waters, submerged and submersible lands, islands, shorelands, coastal areas, wildlife, and fish are trust resources, and * * * the State of Oregon, as a trustee, has a fiduciary obligation to protect these assets as commonly shared public trust resources from the impacts of climate change for Plaintiffs and for present and future generations of Oregonians.’ "

Id. at 479, 328 P.3d 799 (emphasis and ellipses in original). We then declined "to address whether plaintiffs' remaining requests for declaratory and injunctive relief are nonjusticiable because a court would violate separation-of-powers or political-question principles if it granted the requests" because "[t]hat question cannot be answered until a court declares the scope of the public trust doctrine and defendants' obligations, if any, under it." Id. at 480, 328 P.3d 799.

On remand, the state answered plaintiffs' amended complaint. The trial court then entered a scheduling order for the parties to file simultaneous motions for summary judgment or partial summary judgment that addressed the merits of plaintiffs' requested relief.

Plaintiffs moved for partial summary judgment, requesting that the trial court...