Trust Issues

THE LATEST PROPOSAL for safeguarding Portland’s water supply was born on a Friday, on the rim of an enormous empty reservoir in Mount Tabor Park.

The origin story is not what you might have heard: that a clutch of Occupy Portland and anti-fluoride types had grown increasingly disaffected with another, business-backed push to grab control of the city’s water system. Instead, this new effort—dubbed the Cascadian Public Trust Initiative—is made up of young activists who decided they didn’t trust the other reform push from the start.

It’s also more interesting than that. The plan the group is pushing for in November 2014 might be a national first, experts say. But it’s also symptomatic of a newly vital direction in environmental activism nationwide. The idea is this: The city of Portland has a well-established duty to take care of resources like water. If the city does a bad job, then a so-called public trust would finally give citizens the right to sue.

The notion has roots in a centuries-old idea called the “public trust doctrine.” But it’s also a tack that’s found fresh energy in recent years, and has seen success in state and federal courts. One Oregon legal scholar says that’s only the beginning.

“I expect many more [initiatives], but this one is really on the leading edge,” says Mary Wood, a University of Oregon law professor whose work on public trust law helped inspire the new group. “This is coming on very fast.”

It’s too early to tell how politically viable the new proposal is. And even if it does make the ballot, the vote is a year off. But the measure could put Portland at the forefront of a new discussion over how cities protect their natural resources.

“Even if it doesn’t pass, it might be picked up elsewhere,” says Lewis and Clark law professor Michael Blumm, who recently wrote a textbook on public trust law with Wood. “I’m not aware of any other municipal initiatives like this.”

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FRESH OFF the Camp Cascadia protests this summer that drew a police crackdown—but little real conflict and no policy concessions from city hall—some of Portland’s water activists wanted to plot their next moves. As they had in previous weeks, the group held a July 19 meeting near Tabor’s reservoir No. 6, a long-empty concrete bowl at the park’s west end.

The activists were curious. A new, potentially promising proposal had been unveiled only the day before—a supposed coalition of respected activists and moneyed Portland business interests bent on snatching water and environmental services away from the city by creating a new elected board, the Portland Public Water District.

There was hope surrounding the new campaign, but questions, too. So the Tabor activists invited Bob Sallinger, conservation director for the Audubon Society of Portland, for a chat.

“That day was particularly significant, because Bob was there,” says Nicholas Caleb, a primary author of the public trust initiative and an instructor on law and other subjects at Concordia University. “He had all of these concerns with the project, including who was funding it.”

According to several activists in attendance, more than a dozen people sat in a semi-circle as Sallinger laid out his beef with the proposed water district. It centers on his suspicion that big business is trying to stack the deck against the environmental strides Portland has taken in the past decade. Floy Jones, a chief backer of the proposed district, interjected frequently. The discussion went on for hours.

When it was over, a group of attendees decided the new water district wasn’t for them. There were too many questions.

“By no means was it only Bob Sallinger,” notes Jonah Majure, a 22-year-old farmer who volunteered to act as chief petitioner behind the group’s initiative. “A lot of people were concerned about this other initiative pretty much right off the bat.”

But there’s no doubt Sallinger’s pitch held sway.

“Bob pretty much made a convincing case,” says Seth Woolley, a group member and Green Party activist who’s launched several campaigns for Oregon’s secretary of state. “Everybody was like, ‘What are the alternatives, then?’ People continued to meet every Friday and got to talking about what people would want in a petition.”

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THE MEASURE they came up with, formally revealed in late October, is something of a wish list.

It would require a citywide vote before chemicals like fluoride can be added to the water supply. (Portland City Council last year voted to fluoridate the water before activists forced an election and crushed the proposal this spring.)

The initiative would force officials to keep fighting federal rules that have the city building costly new covered reservoirs on Kelly and Powell buttes, and preparing to close open-air reservoirs on Mount Tabor and in Washington Park.

A conflict-of-interest provision also would require commissioners to abstain from water-related votes if they’ve received more than $50 from interested parties. And tough new guidelines for public records requests aim to ensure queries are answered quickly and cheaply.

But in some ways, all that’s just window-dressing for the main product of the initiative: A mechanism that would explicitly allow residents to sue the city for any breach of its duties around water.

Citizens “must possess the ability to oversee the actions of public officials…” the measure reads. It refers to the right of any resident to “bring an action to enforce the rights of the residents, natural communities, and ecosystems of the city of Portland…”

That right, the thinking goes, lies in the “public trust doctrine,” a legal notion that’s existed since the Roman Empire. The legalese can get fairly technical, but the essential idea is this: It’s government’s job to protect our vital ecological resources.

The doctrine has a long history in American law. One of the better known US cases occurred in the late 19th century, when Chicago sold a sizable portion of its harbor to a railroad company. The US Supreme Court eventually ruled officials didn’t have the authority to sell off the lakebed—it belonged to the people.

But the idea eventually fell into disuse in the late 20th century, Wood says. At that time, a host of new concerns about environmental stewardship gave way to hundreds of statutes and regulations.

“The statutes took over the field almost like invasive ivy,” says Wood, who just published a book on the subject. “They almost obscured these notions of trust, but they didn’t eliminate them.”

According to Wood, laws have proven weak, susceptible to manipulation by industry. She says the only way to get robust protections is through trusts like the one proposed in Portland.

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IN FACT, the public trust doctrine has seen a flurry of new activity recently—largely thanks to a theory, spearheaded by Wood, that the idea extends to air quality. In 2011, young people around the country filed a host of lawsuits demanding individual states and the federal government take action to stem climate change.

“People have been playing with the notion of public trusts for some time,” says Caleb, one of Wood’s former students, “but as far as I know this is a novel attempt.”

Whether the attempt is more trouble than it’s worth might be the ultimate question for voters. Caleb concedes the measure’s passage would almost certainly inspire one lawsuit immediately—as activists try to force the city to continue the fight to keep its open-air reservoirs.

And it’s not terribly hard, in water-obsessed Portland, to envision a future filled with spurious, tiresome legal action if the measure succeeds.

“Some people will think that it’s a ‘lawyers full-employment act,'” says Blumm, the Lewis and Clark professor. “I don’t think it would be.”

On Monday, November 4, the public trust announced it had passed an initial test by city elections officials. But it still may face legal challenges, and organizers have to scare up almost 30,000 valid signatures.

“We expect the worst,” says Majure. “We’re just trying to be prepared for everything.”

Blumm says “everything” could involve some big-money opposition if the proposal builds momentum. But no one’s come out explicitly against the measure yet—including Portland elected officials who were quick to criticize the business-backed measure.

“Anything that gets people involved in and concerned about public resources, that’s a good thing,” Blumm says. “The public has rights. People oughta know that.”