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Morse v. Oregon Div. of State Lands

Citation: 8 ELR 20606
No. No. CA-10946, 581 P.2d 520/34 Or. App. 853, (Or. Ct. App., 06/14/1978)

The court rules that the public trust doctrine renders defendant state agency powerless to permit landfilling of estuarine waters unless the proposed fill is for a water-related activity. This challenge to defendant's issuance of a permit to extend an airport runway into a state-owned estuary follows an earlier invalidation by the court of a similar permit for violation of the agency's regulations. Those regulations having since been amended and the permit reissued, the court now finds that defendant is similarly barred from issuing such a permit by the statute conferring upon it landfill regulatory jurisdiction. The legislative history of that statute reveals that it was intended to codify the doctrine of jus publicum, which prohibits landfilling for any use inimical to the public's trust interest in the state's submerged lands, such as, in this case, airport development. This statutory interpretation is consistent with opinions expressed by members of the state legislature, the Attorney General, and the defendant agency itself, through past regulations. The permit is therefore rescinded.

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

Counsel for Respondents
James C. Rhodes, Deputy Attorney General; James A. Redden, Attorney General; Walter L. Barrie, Solicitor General; Clarence R. Kruger, Ass't Attorney General; Peter S. Herman, Senior Counsel
Department of Justice, State Office Bldg., Salem OR 97310
(503) 378-4400

Donald J. Morgan
Wood, Wood, Tatum, Mosser & Brooke
15th Fl., Standard Plaza, Portland OR 97204
(503) 224-5430

G. Jefferson Campbell, Jr.
Newhouse, Foss, Whitty & Roess
444 N. Fourth St., P.O. Box 119, Coos Bay OR 97420
(503) 267-2156