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Morse v. Oregon Div. of State Lands

Citation: 9 ELR 20459
No. No. SC 25912, 590 P.2d 709/285 Or. 197, (Or., 02/13/1979) Aff'd

The Supreme Court of Oregon, holding that the public trustdoctrine does not prohibit all non-water related estuarine landfills and thus does not bar issuance of a permit to fill 32 acres of an estuary for a municipal airport runway extension, nevertheless affirms the lower court's reversal of the permit in question. Without deciding whether the legislature has the authority to impinge upon the public trust doctrine, the court notes that in this case there is no grant to a private party which results in such substantial impairment of the public interest as would be beyond the power of the legislature under traditional public trust case law. The court further finds that under Oregon's fill-and-removal law, ORE. REV. STAT. § 541.605 et seq., the Director of the Division of State Lands is authorized to weigh the extent of the public need for the fill against the strong public interest in the preservation of water for navigation, fishing, and public recreation. Despite its holding that issuance of the permit is not precluded either by state law or the public trust doctrine, the court rules that in the absence of a finding by the Director of State Lands that the public need for the fill predominates over water-related uses of the estuary, there is no basis for issuance of a fill permit. Since there was no such finding made in this case, the decision of the court of appeals setting aside the permit is affirmed.

In separate concurrig opinions, four judges argued that the legislature intended that water resources be used only to provide water-related public benefits. Therefore, the public trust doctrine would bar issuance of a fill permit for an airport runway extension.

Counsel for Petitioner Oregon Division of State Lands
Peter S. Herman, Senior Counsel; James A. Redden, Attorney General; Walter L. Barrie, Solicitor General; James C. Rhodes, Deputy Attorney General
Department of Justice, State Office Bldg., Salem OR 97310
(503) 378-4400

Counsel for Petitioner City of North Bend
Donald J. Morgan
Wood, Tatum, Moser, Brook & Holden
15th Floor, Standard Plaza, Portland OR 97204
(503) 224-5430

Counsel for Amicus Curiae Port of Coos Bay
George T. Gant, Ronald L. Gould
McNutt, Gant & Ormsbee
P.O. Box 1136, Coos Bay OR 97420
(503) 269-5821

Counsel for Respondents
Bruce H. Anderson
Coons & Anderson
Suite 303, 101 E. Broadway, Eugene OR 97401
(503) 485-0203

BRYSON, J., concurred and filed opinion.

HOWELL, J., concurred in the result and filed opinion in which LENT and LINDE, JJ., joined.