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Chernaik v. Kitzhaber

Court of Appeals of Oregon

June 11, 2014

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, Petitioners-Appellants,
v.
JOHN KITZHABER, in his official capacity as Governor of the State of Oregon; and STATE OF OREGON, Respondents-Respondents

Argued and Submitted January 16, 2014 University of Oregon, Eugene

Lane County Circuit Court 161109273. Karsten H. Rasmussen, Judge.

Tanya M. Sanerib argued the cause for appellants. With her on the opening brief were Christopher Winter and Crag Law Center, and William H. Sherlock and Hutchinson, Cox, Coons, Orr & Sherlock, P.C. With her on the reply brief were Center for Biological Diversity, and John Mellgren and Western Environmental Law Center.

Denise Fjordbeck, Senior Assistant Attorney General, argued the cause for respondents. On the brief were Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, Stephanie L. Striffler, Senior Assistant Attorney General, and Inge D. Wells, Assistant Attorney General.

Elisabeth A. Holmes and Center for Food Safety filed the brief amici curiae for Kitty Piercy, Mayor of Eugene; Pete Sorenson, Rob Handy, Shawn Boles, Sasha Luftig, Jessica Bloomfield, Howard Bonnett, Dawn Lesley, Dave Funk, Kathi Jaworski, Sue Wolling, Artemio Paz Jr., Martin Donohoe, and Harper Keeler, Individually; Willamette Farm and Food Coalition; Northwest Center for Alternatives to Pesticides; Center for Food Safety; Eugene Local Foods; Kid Food Matters; Climate Solutions; Native American Student Union at the University of Oregon; Partners for Sustainable Schools; Sustainable Oregon Schools Initiative; Sundance Natural Foods; Falling Sky Brewery; Sequential Biofuels; Mount Pisgah Arboretum; Native American Law Students Association-University of Oregon Chapter; and Witness.

Before Hadlock, Presiding Judge, and DeVore, Judge, and Schuman, Senior Judge.

OPINION

Page 800

[263 Or.App. 466] HADLOCK, J.

Plaintiffs are children who, through their guardians ad litem, sued the State of Oregon and Governor John Kitzhaber, M.D., for declaratory and equitable relief. In their amended complaint, plaintiffs seek, in addition to other relief, a declaration that defendants " have violated their duties to uphold the public trust and protect the State's atmosphere as well as the water, land, fishery, and wildlife resources from the impacts of climate change." Defendants moved to dismiss the amended complaint on the ground that the trial court lacked subject matter jurisdiction. The trial court granted that motion. On plaintiffs' appeal, we reverse and remand.

On appeal from dismissal of a Uniform Declaratory Judgments Act complaint for a purported lack of subject matter jurisdiction, our task is to determine whether the complaint states a justiciable claim for relief under that Act, that is, one that the trial court had jurisdiction to adjudicate. See Hale v. State of Oregon, 259 Or.App. 379, 383, 314 P.3d 345 (2013), rev den, 354 Or. 840, 326 P.3d 77 (2014) (" Courts cannot exercise jurisdiction over nonjusticiable controversies because a court cannot render advisory opinions." ); Beck v. City of Portland, 202 Or.App. 360, 367-68, 122 P.3d 131 (2005) (" [w]here a defendant brings a motion to dismiss a claim for declaratory relief * * * on the ground that the claim is not justiciable, the defendant is, in fact, asserting that the trial court lacks subject matter jurisdiction[.]" ). In doing so, " we assume the truth of all well-pleaded facts alleged in the complaint," and review the trial court's ruling on the jurisdictional question for errors of law. Hale, 259 Or.App. at 382.

Page 801

Accordingly, we begin by reviewing the allegations in plaintiffs' amended complaint. Those allegations are based on plaintiffs' conception of " the public trust doctrine," which, they assert, obligates defendants " to hold vital natural resources in trust for the benefit of their citizens." Plaintiffs allege that the public trust doctrine " stems from the common law and Constitutional and statutory provisions" and finds its origin in " the law of nature" that " these things are common to mankind -- the air, running water, the sea, and the shores of the sea." They identify specific [263 Or.App. 467] natural resources as assets of that trust, including certain " water resources," " State owned lands," and " the air or atmosphere." Plaintiffs claim that defendants have a " fiduciary duty under the public trust doctrine * * * to protect common uses" of the resources.

Following that broad description of the public trust doctrine as they conceive it, plaintiffs allege that the state has failed to meet its fiduciary obligations to protect the natural resources that plaintiffs identify as assets of the public trust. Plaintiffs assert that increases in greenhouse gas emissions are causing climate changes with potentially " catastrophic consequences" to the state's natural resources and the health of its citizens. Nonetheless, plaintiffs contend, " [t]here is still time to curb and reduce carbon dioxide emissions to avoid irrevocable changes to the atmosphere," and they specifically allege that, " to protect Oregon's public trust assets, the best available science concludes that concentrations of atmospheric carbon dioxide cannot exceed 350 parts per million." To reduce atmospheric carbon dioxide concentrations to that level by the end of the century, plaintiffs claim, emissions " must begin to decline at a global average of at least 6 percent each year, beginning in 2013, through 2050," and should decline at five percent per year after that.

Plaintiffs acknowledge in the amended complaint that Oregon officials have taken steps meant to combat climate change, including through the 2004 establishment of the Governor's Advisory Group on Global Warming, which has developed a plan to reduce Oregon's greenhouse-gas emissions, the subsequent passage of HB 3543 (2007), which set goals for decreasing greenhouse-gas emissions and levels in Oregon through 2050, and establishment of the Oregon Climate Change Research Institute (OCCRI) in 2007. Plaintiffs allege, however, that those steps " are inadequate to meet the State's greenhouse gas reductions that will be required in order to protect Oregon's trust assets and attain carbon dioxide concentrations of 350 ppm" and that Oregon already is failing to meet its goals.

Plaintiffs' amended complaint includes a single claim for relief, in which plaintiffs reiterate their allegation that defendants have a fiduciary obligation " to hold vital [263 Or.App. 468] natural resources in trust for the benefit of their citizens," including the atmosphere. Plaintiffs contend that defendants' alleged " failure to regulate and reduce carbon dioxide emissions" and their alleged " failure to preserve and protect carbon sinks such as forests, soils and agricultural land" amount to a breach of that fiduciary duty. Plaintiffs request the following 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 impacts 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 impacts 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

Page 802

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 a least six per cent each year until at least 2050."

Defendants did not file an answer to the amended complaint. Instead, they moved to dismiss the complaint for lack of subject matter jurisdiction, arguing that the trial [263 Or.App. 469] court lacked authority to grant the declaratory and injunctive relief that plaintiffs sought. In doing so, defendants emphasized that their dismissal motion was not directed to the merits of ...


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