author: COMBS, C.J.:

text:
    Kelli BRAITSCH, Petitioner, v. CITY OF TULSA, Own Risk #10435 and The Workers' Compensation Commission, Respondents.
    Case Number: 116510
    Supreme Court of Oklahoma.
    Decided: December 18, 2018 As Corrected December 19, 2018 Rehearing Denied February 4, 2019
    Bob Burke, Oklahoma City, Oklahoma and Michael R. Green, Tulsa, Oklahoma, for Petitioner.
    Brandy L. Inman, Latham, Wagner, Steele & Lehman, P.C., Tulsa, Oklahoma for Respondents.
   COMBS, C.J.:

¶ 1 The Petitioner, Kelli Braitsch, injured her right arm while employed by the City of Tulsa and after the effective date of the Administrative Workers' Compensation Act (AWCA), 85A O.S. §§ 1 - 125. Through her collective bargaining agreement, Braitsch was paid her full salary in lieu of temporary total disability (TTD) payments. She was later awarded permanent partial disability (PPD) benefits which were reduced by the amount her full salary payments were in excess of TTD benefits pursuant to 85A O.S. § 89. This section provides:

If the employer has made advance payments for compensation, the employer shall be entitled to be reimbursed out of any unpaid installment or installments of compensation due. If the injured employee receives full wages during disability, he or she shall not be entitled to compensation during the period. Any wages paid by the employer, over the statutory temporary disability maximum, shall be deducted from the permanent partial disability award. Such deduction shall be made after any such applicable attorney fee and any such assessment made pursuant to Sections 45 and 46 of this act have been paid.
85A O.S. § 89

Braitsch argued 85A O.S. § 89 denied her due process of the law and is an unconstitutional special law. The Administrative Law Judge denied the constitutional challenges and the Workers' Compensation Commission en banc affirmed the ALJ's decision. This appeal concerns only the asserted constitutional challenges.

STANDARD OF REVIEW

¶ 2 An injured worker's right to workers' compensation benefits is determined by the law in effect on the date of the injury. Corbeil v. Emricks Van & Storage , 2017 OK 71, ¶ 9, 404 P.3d 856 ; Williams Companies, Inc. v. Dunkelgod, 2012 OK 96, ¶¶ 14-18, 295 P.3d 1107. Braitsch's injury occurred after the effective date of the AWCA and therefore the AWCA controls her right to receive workers' compensation benefits. The issues raised on appeal concern the constitutional validity of 85A O.S. § 89. Issues of a statute's constitutional validity, construction, and application are questions of law subject to this Court's de novo review. Lee v. Bueno , 2016 OK 97, ¶ 16, 381 P.3d 736. A heavy burden is cast on those challenging a legislative enactment to show its unconstitutionality and every presumption is to be indulged in favor of the constitutionality of a statute. Fent v. Oklahoma Capitol Improvement Authority, 1999 OK 64, ¶ 3, 984 P.2d 200. If two possible interpretations of a statute are possible, only one of which would render it unconstitutional, a court is bound to give the statute an interpretation that will render it constitutional, unless constitutional infirmity is shown beyond a reasonable doubt. Fent, 1999 OK 64 at ¶ 3, 984 P.2d 200 ; Gilbert Central Corp. v. State, 1986 OK 6, 716 P.2d 654. A court is bound to accept an interpretation that avoids constitutional doubt as to the legality of a legislative enactment. Id.

ANALYSIS

A. Braitsch Fails To Show 85A O.S. § 89And Its Application Violated Her Constitutional Right To Due Process.

¶ 3 Braitsch claims the provisions of 85A O.S. § 89 deny due process of law because it shifts the economic burden to the injured worker without a legitimate state interest and is an unconstitutional taking of property. The arguments found in Braitsch's brief in chief appear to claim she was denied both procedural due process and substantive due process rights.

1. Procedural Due Process:

¶ 4 The guaranty of due process of law can be found in both the State and Federal Constitutions. Article 2, Section 7 of the Oklahoma Constitution provides:

No person shall be deprived of life, liberty, or property, without due process of law.

Okla. Const. art. 2, § 7.

The Due Process Clause of the Fourteenth Amendment to the U.S. Constitution provides:

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

U.S. Const. amend. XIV, § 1.

This Court utilizes a two prong test to determine whether an individual was denied procedural due process: 1) whether the individual possessed a protected interest to which due process protection applies; and 2) whether the individual was afforded an appropriate level of process. Hill v. American Medical Response , 2018 OK 57, ¶ 43, 423 P.3d 1119 ; In re Adoption of K.P.M.A., 2014 OK 85, ¶ 17, 341 P.3d 38 ; Thompson v. State ex rel. Bd. of Trustees of Okla. Pub. Employees Ret. Sys., 2011 OK 89, ¶ 16, 264 P.3d 1251.

¶ 5 Braitsch claims she has a protected interest in her collective bargaining agreement to receive full wages during the TTD period and she has a protected interest in her PPD award. She asserts the deduction to her PPD award for amounts paid above the TTD maximum, as required by 85A O.S. § 89, was an unconstitutional taking of property and violated her right to due process. This Court has previously ruled a PPD award is a property right worthy of due process protection. Maxwell v. Sprint PCS , 2016 OK 41, ¶ 18, 369 P.3d 1079. The record reflects Braitsch was paid her full wages during the TTD period therefore we find there was no taking of property promised under her collective bargaining agreement. Tr. July 19, 2017, p. 16, l. 24-25 through p. 17, l. 1.

¶ 6 The PPD award vested Braitsch with a property interest worthy of the protections of due process. The first prong of the test is satisfied. The ALJ's Order granting PPD was entered on August 15, 2017. This Order provided a PPD award that was reduced by $5,228.61, the amount paid to Braitsch above the TTD maximum. This PPD award was calculated by the statutes in place at the time of Braitsch's injury which included the above mentioned deduction pursuant to 85A O.S. § 89. This is not a case where PPD was awarded and then later reduced or taken away without a hearing. The core elements of procedural due process are notice and an opportunity to be heard. Baby F. v. Okla. County Dist. Court , 2015 OK 24, ¶ 15, 348 P.3d 1080. The Order reflects a hearing before the Administrative Law Judge was held on July 19, 2017, and Braitsch was represented by her attorney Michael R. Green. An administrative deprivation of a constitutionally protected property or liberty interest must be accomplished by an impartial and disinterested tribunal in an adjudicative process where the procedures employed are appropriate for the constitutional interest at stake. State ex rel. Bd. of Regents of University of Oklahoma v. Lucas, 2013 OK 14, ¶ 43, 297 P.3d 378. Braitsch has not argued she received an unfair hearing or that the ALJ was partial. The record is clear that several hearings took place and Braitsch was represented by counsel. We hold Braitsch was afforded an appropriate level of process and find no evidence to support Braitsch's claim she incurred an unconstitutional taking of property without procedural due process.

2. Substantive Due Process:

¶ 7 Braitsch also appears to make a substantive due process argument in challenging the constitutionality of 85A O.S. § 89. Braitsch claims she was denied due process because this section of law shifts the economic burden upon an injured worker without a legitimate state interest. The substantive component of the due process clause bars certain governmental action despite the adequacy of procedural protections provided. Baby F. v. Okla. County Dist. Court , 2015 OK 24, ¶ 16, 348 P.3d 1080. In determining whether an action violates substantive rights, a balance must be struck between the right protected and the demands of society. In the Matter of the Adoption of J.R.M., 1995 OK 79, ¶ 13, 899 P.2d 1155. Substantive due process of law is the general requirement that all governmental actions have a fair and reasonable impact on the life, liberty, or property of the person affected. Arbitrary action is thus proscribed. City of Edmond v. Wakefield, 1975 OK 96, ¶ 5, 537 P.2d 1211, citing Griswold v. Connecticut, 381 U.S. 479, 511-12, 85 S.Ct. 1678, 1696-97, 14 L.Ed.2d 510, 513-32 n.4 (1965). In Torres v. Seaboard Foods, LLC, this Court noted that the analysis requires an adjudication of whether the legislation is rationally related to a legitimate government interest and if the challenged legislation reasonably advances that interest. 2016 OK 20, ¶ 27, 373 P.3d 1057. We explained:

There is little doubt that a state legislature may alter private contractual rights of employers and employees when it properly exercises its police power in creating a particular workers' compensation law, or that workers' compensation laws, by themselves, have been considered by courts as a legitimate State interest since the compensation laws were first created. In our case today, we do not repeat Lochner's error of improperly rejecting an articulated economic interest of the State. We accept for the purpose of the arguments made herein, respondent's articulated State interest as legitimate in this case, i.e., the prevention of workers' compensation fraud and the decrease in an employer's costs as a result of legislative effort to prevent fraud.

Torres, 2016 OK 20 at ¶ 30, 373 P.3d 1057.

¶ 8 Respondent's brief explains the purpose of 85A O.S. § 89. The deduction from PPD of excess TTD benefits ensures fairness and predictability in the award of PPD benefits. By receiving her full wages during her temporary total disability period, Braitsch received more than what other employees would receive who are only awarded TTD benefits. The deduction brings parity to workers' compensation awards by providing, in the end, relatively the same amount of benefits to all injured workers. Respondent notes previous versions of the workers' compensation code provided a specific prohibition on deducting overpayments or receiving credits. However, under the AWCA no such prohibition exists. As mentioned, the AWCA was effective upon the date of Braitsch's injury and therefore it is the applicable law for determining her workers' compensation benefits. We hold the state interest articulated in support of 85A O.S. § 89 is legitimate: ensuring fairness, efficiency, objectivity, predictability, and uniformity in the awarding of PPD benefits. Braitsch has not established her right to substantive due process was violated by the provisions of 85A O.S. § 89.

B. Title 85A O.S. § 89Is Not A Special Law In Violation Of The Oklahoma Constitution.

¶ 9 Braitsch next claims 85A O.S. § 89 is an unconstitutional special law in violation of Okla. Const. art. 5, § 46. A special law is one that relates to a part of an entire class of similarly affected persons and separates that part for different treatment. See Grant v. Goodyear Tire & Rubber Co., 2000 OK 41, ¶ 5, 5 P.3d 594. Article 5, Section 46 of the Oklahoma Constitution prohibits the passage of certain local and special laws if they affect one or more of twenty-eight enumerated subjects. Section 46 does not prohibit all local and special laws it merely prohibits the passing of such laws which concern these enumerated subjects. Braitsch does not identify any of these subjects in her brief. She merely claims 85A O.S. § 89 is a special law pursuant to Okla. Const. art. 5, § 46. Without such identification it is impossible for this Court to determine whether a prohibited special law was passed in violation of this section. However, determining what enumerated subject was violated is immaterial because Braitsch cannot establish 85A O.S. § 89 is a special law.

¶ 10 In order to have a special law you need to first establish a class of similarly situated subjects and then prove less than all the subjects are being affected differently by the law. Statutes facing a special law challenge are considered pursuant to a three-part test. First, is the law special or general? Second, if the law is special in nature, does a general apply? And, third, if a general law is not applicable, is the statute a permissible special law. See Vasquez v. Dillard's, Inc., 2016 OK 89, ¶ 11, 381 P.3d 768 ; Reynolds v. Porter , 1988 OK 88, ¶¶ 14-16, 760 P.2d 816.

¶ 11 Under the first prong of the test our duty is to identify the class of people or things affected by the statute. A statute relating to all persons or things of a class is a general law. Reynolds v. Porter, 1988 OK 88 at ¶ 14, 760 P.2d 816. The number of persons or things upon which the law has a direct effect may be very few, but it must operate uniformly upon all brought within the class by common circumstances. Id. at ¶ 14.

¶ 12 The classes affected by 85A O.S. § 89 are similar to those identified in Grant v. Goodyear Tire & Rubber Co., 2000 OK 41, 5 P.3d 594. In Grant , 85 O.S. § 41.1 (repealed by 2011 Okla. Sess. Laws c. 318, § 87) was challenged as being an impermissible special law. Subsection A of § 41.1 provided that if salary or any other remuneration was paid in lieu of temporary total compensation during the period of temporary total disability no respondent or insurance carrier could deduct from the amount of a permanent or partial permanent disability award any amounts paid for temporary total disability nor could any credit be given for such additional payments against any benefits provided under the workers' compensation laws. This Court determined that the classes involved under this subsection were: 1) employers who chose to pay salary or other remuneration in lieu of temporary total disability compensation, and 2) the employees who were paid such amounts. Grant , 2000 OK 41 at ¶ 6, 5 P.3d 594. We held, "[f]or the purposes of the constitution, the employers and their employees comprise two classes of similarly affected persons, because § 41.1 affects both." Id. at ¶ 6. In addition, this Court held "[s]ubsection A of § 41.1 sets out a general law that prohibits credit against subsequent awards." Id. at ¶ 8. Subsection B of § 41.1, however, provided a limited exception to the general law found in subsection A. It carved out a subclass of qualified individual self-insured employers who could receive credits for amounts paid in excess of temporary total disability benefits against any permanent partial disability owed. We held the provisions of subsection B created an impermissible special law that violated Okla. Const. art. 5, § 59. Id. at ¶ 12.

¶ 13 Title 85A O.S. § 89 provides "[a]ny wages paid by the employer, over the statutory temporary disability maximum, shall be deducted from the permanent partial disability award." Similar to the classes identified in Grant, the classes affected under § 89 are: 1) employers who choose to pay wages over the statutory temporary disability maximum, and 2) the employees who receive such wages. Both of these classes are affected by the provisions of § 89. Unlike Grant, however, there is no similar provision to § 41.1 (B). No subclass has been carved out for special treatment. Section 89 allows all similarly situated employers to deduct the amounts paid in excess of the temporary disability maximum from any permanent partial disability award. Employees who received amounts in excess of the TTD maximum will also be treated alike and receive a reduction in their permanent partial disability awards. The law in Grant, 85 O.S. § 41.1 (A), prohibited deductions and the law in the present case, 85A O.S. § 89, allows deductions. The difference is immaterial to our analysis and only reflects a legislative policy change. What matters for our determination in this matter, is how the classes are treated under the individual statutes. The manifest intent of our Constitution's framers was for all persons under the same conditions and in the same circumstances to be treated alike. Reynolds, 1988 OK 88 at ¶ 19, 760 P.2d 816. The vice of special acts is that they create preferences and establish inequality. Id. at ¶ 19. Here no subclass is created and members of the affected classes are treated the same. We hold, 85A O.S. § 89 is a general law and not an impermissible special law and therefore it is unnecessary to determine whether it affects a prohibited subject found in Okla. Const. art. 5, § 46.

CONCLUSION

¶ 14 Every presumption is to be indulged in favor of the constitutionality of a statute and here Braitsch has failed to bear the heavy burden of establishing 85A O.S. § 89 is unconstitutional. The provisions of 85A O.S. § 89 neither violate Braitsch's right to due process of law nor is the statute a special law. The October 23, 2017, Order Affirming Decision of Administrative Law Judge is affirmed.

ORDER OF THE WORKERS' COMPENSATION COMMISSION SITTING EN BANC IS AFFIRMED

¶ 15 Combs, C.J., Kauger, Winchester, Wyrick, Darby, JJ., concur.

¶ 16 Gurich, V.C.J., dissents (writing separately), Edmondson, Colbert, Reif, JJ., dissent.

GURICH, V.C.J., with whom EDMONDSON, REIF, JJ., join dissenting:

¶ 1 The majority concludes that Petitioner Kelli Braitsch loses the benefit of her bargained for contractual protections as well as her statutory workers' compensation benefits. In my view, she is entitled to both. Therefore, I dissent.

¶ 2 On October 15, 2015, Braitsch, a Tulsa Police Officer, suffered an injury to her right arm (elbow) while in the line of duty working for her employer, the City of Tulsa. The City of Tulsa is a self-insured, own risk employer. She promptly notified her employer and timely filed a CC-Form-3 with the Workers' Compensation Commission. Braitsch was diagnosed with damage to her ulnar nerve. She received treatment to her back, neck and the elbow of her right arm. She was off work from October 16, 2015, to November 1, 2015, and then again from March 1 through April 7, 2016, as a result of surgery. She was paid injury leave in the amount of her full wages during those periods. A hearing was held on July 19, 2017, to determine the amount of PPD to her right arm, and the parties stipulated to the temporary total disability rate of $571.55 and the PPD rate $323.00. The parties also stipulated that the accrual date for PPD was June 16, 2016. Respondent City of Tulsa requested a credit for overpayment of TTD pursuant to 85A O.S.Supp. 2014 § 89, which reads:

If the employer has made advance payments for compensation, the employer shall be entitled to be reimbursed out of any unpaid installment or installments of compensation due. If the injured employee receives full wages during disability, he or she shall not be entitled to compensation during the period. Any wages paid by the employer, over the statutory temporary disability maximum, shall be deducted from the permanent partial disability award. Such deduction shall be made after any such applicable attorney fee and any such assessment made pursuant to Sections 45 and 46 of this act have been paid.

¶ 3 In the order filed on August 16, 2017, the ALJ awarded Braitsch 20% PPD benefits to her right arm in the amount of $17,765.00 and found that it had all accrued and was payable immediately. The ALJ overruled Braitsch's constitutional challenges to § 89 and granted employer's request for a credit of $5,228.62, thereby reducing her PPD award due to the payment of annual leave.

Braitsch appealed the order, and the Workers' Compensation Commission sitting en banc affirmed the decision of the ALJ on October 20, 2017. An order memorializing the Commissions' affirmation was filed on October 31, 2017.

¶ 4 Braitsch never received any TTD benefits. Instead, Braitsch received annual leave benefits in the amount of $9,915.32 pursuant to the Collective Bargaining Agreement between the City of Tulsa and Lodge #93 of the Fraternal Order of Police. The CBA was admitted as an exhibit at the PPD hearing. At the time of her injury, Braitsch had been an officer with the Tulsa Police Department for 11 years and her employment was protected by the CBA. This is the exclusive agreement wherein the parties negotiated for wages, hours and other terms and conditions of employment. This agreement was in effect at the time of her injury. Article 16-Injury Leave includes only the following three provisions:

Section 16.1 The Lodge and the City of Tulsa recognize the necessity of maintaining a policy and procedure for administering Injury Leave with the City of Tulsa. The guidelines provided in the Tulsa Police Department Policy and Procedure Manual shall be used for administering injury leave under this agreement. It is the policy of the Employer to provide compensation and leave time for Employees who incur disabilities in accordance with State Statute Title 11 Section 50-116 et. seq. and/or Workers' Compensation Title 85.
Section 16.2 While on Injury Leave, an Employee shall be entitled to all vacation, sick, and other leave benefit accruals. The employee's credit for computing time in grade for pay increases and promotional seniority considerations shall not be affected.
Section 16.3 The parties agree that for purposes of administering Injury Leave as it applies to members of this bargaining unit, Employees awaiting a final claim decision of the Claims Administrator may elect to use Injury leave as stated in this Article 16. Upon notification from the Claims Administrator that the claim is denied, the City is authorized to deduct any Injury Leave used from the Employee's accruals of sick leave, vacation leave, or compensatory time, in that order, to reimburse the Injury Leave used. If the Employee lacks sufficient accruals of leave to reimburse the Injury Leave then the reimbursements shall come from accruals of sick leave, vacation leave, and compensatory time as they are earned by the Employee. Should the claim be denied and Injury Leave reimbursed, this will not prejudice any later action by the Employee in a Workers Compensation claim or other proceeding to contest said denial and to recover the personal leave that reimbursed said Injury Leave.

There is nothing in the agreement that provides for an elective or mandatory reduction in payment of any benefits provided under the CBA related to Title 85 (now 85A). Employer argues that the CBA does not prohibit the requested salary deduction, but any modification of the CBA can only be changed by the specific terms of the CBA. Employer was required to make injury leave payments pursuant to this contract. If the Employer is permitted to reduce the amount of money which Braitsch received while off work, then the Employer has unilaterally changed the terms of the CBA. Further, Title 85A O.S. Supp. 2013 § 8(A) provides: "No agreement by an employee to waive his or her right to compensation shall be valid. No contract, regulation, or device shall operate to relieve the employer or carrier, in whole or in part, from any liability created by this act, except as specifically provided in this act."

¶ 5 Article 16 providing for salary continuation is a bargained for condition of employment. Braitsch's only remedy for permanent loss of function due to her on the job injury is found in the AWCA, a right specifically reserved in the CBA. From a plain reading, it is clear that the intent of Article 16 of the CBA is to provide police officers with the benefits of both the CBA and statutory workers' compensation benefits. Indeed, Section 16.3 allows a Tulsa police officer to receive injury leave pay whether or not the claim is denied by the Tulsa Claims Administrator. The CBA also specifically enumerates the situations in which the employee may be required to reimburse the City of Tulsa, while reserving the right of the employee to pursue remedies in Workers' compensation. To take away the employee's workers' compensation benefits in order to reduce the cost to the employer for benefits guaranteed in the CBA destroys the purpose of collective bargaining and punishes a police officer for being part of a bargaining unit, which is prohibited by 11 O.S. 2011 § 51-101. Braitsch had vested rights to the lawful benefits provided in the CBA and pursuant to Article 2 § 15 of the Oklahoma Constitution, it would be unconstitutional to construe Section 89 as modifying the contract. Neither Title 11, the AWCA nor the CBA permit a reduction in Braitsch's PPD benefits.

¶ 6 I also agree with Braitsch that § 89 offends Art. 5 § 59 of the Oklahoma Constitution because it is a special law. A similar version of this statute was found to be unconstitutional in Grant v. Goodyear Tire & Rubber Co. , 2000 OK 41, 5 P.3d 594. Just like Braitsch, Grant was injured while working for her self-insured employer. Just like Braitsch, Grant received no TTD but was paid her regular higher wages. Her self-insured employer was given a credit for the overpayment of temporary total disability pursuant to 85 O.S. Supp. 1999 § 41.1(B). This Court determined that subsection (B) of § 41.1 was an impermissible special law that violated Art. 5, § 59 of the Oklahoma Constitution. Id. ¶ 12, 5 P.3d at 598. In doing so, we said: "For a special law to be permissible, there must be some distinctive characteristic warranting different treatment and that furnishes a practical and reasonable basis for discrimination . If there is neither a distinctive characteristic upon which a different treatment may reasonably be founded nor one which furnishes a practical and real basis for discrimination between the two groups within the class, the distinction becomes arbitrary and without relation to the subject matter." This Court found there was no valid reason to differentiate between employers who were self-insured and were allowed to receive credit for overpayment against any permanent disability owed and those employers or insurance carriers who were not allowed to receive the credit. Id. ¶ 11, 5 P.3d at 598. Although the current version of this statute appears to have corrected the prior special law constitutional infirmities by making it applicable to all employers and insurers, in truth, it will still only benefit self-insured employers who are contractually bound to pay higher wages. There is no practical or reasonable basis for any employer to voluntarily pay TTD at a rate higher than statutorily required, only to recoup the payment from the award of PPD years later.

¶ 7 I would vacate the award of the Commission, and remand the case to the ALJ with directions to enter an award reinstating the full amount of PPD awarded to Petitioner Braitsch.

      The Petitioner's Brief in Chief and Respondent's Answer Brief refer to Officer Braitsch as a male, however, it is clear from the transcripts Officer Braitsch is female.

      85 O.S. Supp. 1992, § 41.1 (repealed by 2011 Okla. Sess. Laws c. 318, § 87) provided:
      A. In the event salary or any other remuneration is paid in lieu of temporary total compensation during the period of temporary total disability or for any other period of time, no respondent or insurance carrier shall be allowed to deduct from the amount of the award for permanent or partial permanent disability any amounts paid for temporary total disability, nor shall he be given credit for such additional payments on future temporary total disability, permanent partial disability, disfigurement, or any other compensation provided by the workers' compensation law.
      B. Notwithstanding the provisions of subsection A of this section, a qualified individual self-insured employer that pays temporary total disability benefits at a higher weekly rate than required by statute, without diminishing the employee's accrued leave on such payments, shall be given credit for such overpayment against any permanent partial disability owed, after payment of attorney fees and taxes. This provision shall not apply where salary continuation was made by the self-insured employer pursuant to an applicable collective bargaining agreement.

      Article 5, Section 46 of the Oklahoma Constitution provides:
      The Legislature shall not, except as otherwise provided in this Constitution, pass any local or special law authorizing:
      The creation, extension, or impairing of liens;
      Regulating the affairs of counties, cities, towns, wards, or school districts;
      Changing the names of persons or places;
      Authorizing the laying out, opening, altering, or maintaining of roads, highways, streets, or alleys;
      Relating to ferries or bridges, or incorporating ferry or bridge companies, except for the erection of bridges crossing streams which form boundaries between this and any other state;
      Vacating roads, town plats, streets, or alleys;
      Relating to cemeteries, graveyards, or public grounds not owned by the State;
      Authorizing the adoption or legitimation of children;
      Locating or changing county seats;
      Incorporating cities, towns, or villages, or changing their charters;
      For the opening and conducting of elections, or fixing or changing the places of voting;
      Granting divorces;
      Creating offices, or prescribing the powers and duties of officers, in counties, cities, towns, election or school districts;
      Changing the law of descent or succession;
      Regulating the practice or jurisdiction of, or changing the rules of evidence in judicial proceedings or inquiry before the courts, justices of the peace, sheriffs, commissioners, arbitrators, or other tribunals, or providing or changing the methods for the collection of debts, or the enforcement of judgments or prescribing the effect of judicial sales of real estate;
      Regulating the fees, or extending the powers and duties of aldermen, justices of the peace, or constables;
      Regulating the management of public schools, the building or repairing of school houses, and the raising of money for such purposes;
      Fixing the rate of interest;
      Affecting the estates of minors, or persons under disability;
      Remitting fines, penalties and forfeitures, and refunding moneys legally paid into the treasury;
      Exempting property from taxation;
      Declaring any named person of age;
      Extending the time for the assessment or collection of taxes, or otherwise relieving any assessor or collector of taxes from due performance of his official duties, or his securities from liability;
      Giving effect to informal or invalid wills or deeds;
      Summoning or impaneling grand or petit juries;
      For limitation of civil or criminal actions;
      For incorporating railroads or other works of internal improvements;
      Providing for change of venue in civil and criminal cases.

      Article 5 Section 59 of the Oklahoma Constitution provides, "[l]aws of a general nature shall have uniform operation throughout the State, and where a general law can be made applicable, no special law shall be enacted."

      The dissent addresses a constitutional issue not briefed in the present appeal. The dissent asserts the application of 85A O.S. § 89, which provides a credit against permanent partial disability (PPD) awards, unconstitutionally impaired the Petitioner's collective bargaining agreement (CBA) in violation of Art. 2, § 15 of the Oklahoma Constitution. This is not so. The effective date of the CBA is for the period of July 1, 2015, through June 30, 2016. O.R. at 22. Title 85A O.S. § 89 is part of the Administrative Workers' Compensation Act (AWCA) which repealed and replaced the provisions of the Workers' Compensation Code effective February 1, 2014 and prior to this CBA. 2013 Okla. Sess. Laws c. 208; SB 1062. Title 85A O.S. § 89 was the law in place at the time of the Petitioner's injury, October 15, 2015. Nowhere in the CBA does it mention any specific amount for PPD benefits or injury leave benefits. Section 16.1 of the CBA, which concerns "Injury Leave," does, however, cite repealed law. It provides in pertinent part:
      It is the policy of the Employer to provide compensation and leave time for Employees who incur disabilities in accordance with State Statute 11 Section 50-116 et. seq. and/or Workers' Compensation Title 85.
      Title 11 O.S. § 50-116 was repealed in 1988 by House Bill 1588. 1988 Okla. Sess. Laws c. 267, § 38. This same bill also created 11 O.S. § 50-116.1 which concerns benefits paid by a municipality when a member of a police department is injured on the job (injury leave). 1988 Okla. Sess. Laws c. 267, § 13. It requires the municipality to pay the salary of the member for up to 6 months with the possibility of an additional 6 month period. This section was enacted in Article 50 of Title 11 which concerns the Oklahoma Police Pension and Retirement System. It is not a workers' compensation law. The municipality paid the Petitioner's salary following her accident pursuant to 11 O.S. § 51-116.1 and arguably in compliance with Section 16.1 of the CBA. There are no provisions in the CBA concerning PPD benefits that would conflict with § 89. Therefore, the provisions of § 89, which were in effect prior to this CBA, in no way impaired any obligation of contract found in the CBA and its application did not violate Art. 2, § 15 of the Oklahoma Constitution.

      Petitioner appealed to this Court on November 6, 2017, and we retained the case.

      O.R. at 24; 11 O.S.Supp. 2011 § 51-103(A) and § 51-111 grant to state firefighters and police officers the ability to enter into collective bargaining agreements.

      O.R. at 22; (CBA pages 1-57, Effective 7-1-2015 through 6-30-2016).

      11 O.S. 2011 § 51-101(A).

      Article 1 of the CBA incorporates the following language of 11 O.S. Supp. 2011 § 51-111 : "All rules, regulations, fiscal procedures, working conditions, departmental practices and manner of conducting the operation and administration of fire departments and police departments currently in effect on the effective date of any negotiated agreement shall be deemed a part of said agreement unless and except as modified or changed by the specific terms of such agreement."

      Braitsch does not have any right to arbitrate the application of 85A O.S.Supp. 2014 § 89 to Article 16 of the CBA. Article 7 § 7.9 of the CBA provides in part: "The arbitrator's authority shall be limited to the interpretation and application of the terms of this Agreement and/or any supplement thereto and shall not extend to those extra-contractual (i.e., Worker's Compensation, Unemployment Compensation issues, etc.) matters for which a forum and remedy is available pursuant to statute."

      11 O.S. Supp. 2011 § 51-102(6a)(1) & (2).

      Art. 2 § 15 : No bill of attainder, ex post facto law, nor any law impairing the obligation of contracts, shall ever be passed.

      Section 41.1(B) excluded only self-insured employers who were required to pay higher wages under a CBA. The Grant opinion does not contain an explanation of why Grant's employer paid higher wages.

      Section 41.1 provided: "A. In the event salary or any other remuneration is paid in lieu of temporary total compensation during the period of temporary total disability or for any other period of time, no respondent or insurance carrier shall be allowed to deduct from the amount of the award for permanent or partial permanent disability any amounts paid for temporary total disability, nor shall he be given credit for such additional payments on future temporary total disability, permanent partial disability, disfigurement, or any other compensation provided by the workers' compensation law.
      B. Notwithstanding the provisions of subsection A of this section, a qualified individual self-insured employer that pays temporary total disability benefits at a higher weekly rate than required by statute, without diminishing the employee's accrued leave on such payments, shall be given credit for such overpayment against any permanent partial disability owed, after payment of attorney fees and taxes. This provision shall not apply where salary continuation was made by the self-insured employer pursuant to an applicable collective bargaining agreement."

      Grant , id. , ¶ 10, 5 P.3d at 598 (emphasis added) (internal citations omitted).

      Insurers provide coverage to employers for statutory TTD benefits, not wages, under the AWCA. 85A O.S. Supp. 2013 ¶ 42(C) provides: "A split coverage plan is expressly prohibited without special circumstances. No policy or contract of insurance shall be issued against liability under this act unless the policy or contract covers the entire liability of the employer. Split coverage whereby some employees of an employer are insured by one carrier and other employees are insured by another carrier, or a plan of self-insurance, is expressly prohibited except for a policy issued covering the liability of an employer or of multiple employers as to specific jobs, ventures, contracts, or undertakings, but only if the policy meets with the reasonable satisfaction and approval of the Insurance Commissioner that the policy is in the best interest of the employers and the employees concerned and does not unduly or improperly affect the continuity of workers' compensation coverage by seriously and negatively affecting other carriers and agents with outstanding policies issued to any of the employers in issue". Also see 85A O.S. Supp. 2013 §§ 88, 95.

      This is especially true since both the rate for and the percentage of PPD were reduced significantly by the adoption of the AWCA in 2013, which includes the mandatory use of the AMA Guides 6th Edition for rating PPD, upheld in Hill v. American Medical Response , 2018 OK 57, ¶¶ 61, 62, 423 P.3d 1119.


source: Caselaw Access Project

author: ARMSTRONG, P. J.

license: Public Domain

text:
    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.

Plaintiffs sued defendants the State of Oregon and Governor Kate Brown (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 issue the following declarations:

"1. A declaration of law that the State of Oregon, as a trustee and sovereign entity, has a fiduciary obligation to manage the atmosphere, water resources, navigable waters, submerged and submersible lands, shorelands and coastal areas, wildlife and fish as public trust assets, and to protect them from substantial impairment caused by the emissions of greenhouse gases in, or within the control of, the State of Oregon and the resulting adverse effects of climate change and ocean acidification;
"2. A declaration that atmospheric concentrations of carbon dioxide (CO2) exceeding 350 parts per million (ppm) constitutes substantial impairment to the atmosphere and thereby the other public trust assets;
"3. A declaration that to protect these public trust assets from substantial impairment, Oregon must contribute to global reduction in emissions of CO2 necessary to return atmospheric concentrations of carbon dioxide to 350 ppm by the year 2100; and
"4. A declaration that Defendants have failed, and are failing, to uphold their fiduciary obligations to protect these trust assets from substantial impairment by not adequately reducing and limiting emissions of carbon dioxide and other greenhouse gases in, or within the control of, the State of Oregon."

Plaintiffs specifically did not seek a ruling on summary judgment with respect to their requests for injunctive relief set out in the amended complaint.

The state moved for summary judgment on all of plaintiffs' requests for relief in the amended complaint. The state specifically requested that the trial court make the following rulings, and dismiss plaintiffs' amended complaint:

"1) The common law public trust doctrine does not extend to the atmosphere.
"2) The common law public trust doctrine does not impose the particular affirmative actions associated with traditional legal trusts (i.e ., fiduciary obligations or duties).
Instead, Oregon courts have applied it only as a restraint on alienation.
"3) Because there are no fiduciary duties associated with the common law public trust doctrine, any declaratory or injunctive relief based on an alleged violation of such duties must be denied.
"4) Even if this Court recognizes new fiduciary duties under the public trust doctrine, injunctive relief is not warranted, because the Court must presume that the State will comply with the new law as announced, and therefore, that no future violation of law is likely.
"5) This Court is without authority to grant injunctive or further relief, because doing so would violate the principle of separation of powers.
"6) Finally, this Court lacks authority to grant injunctive relief, because such relief would cause the Court to decide a political question that our constitutional system entrusts to the other branches of government."

The trial court granted the state's motion for summary judgment, denied plaintiffs' motion for partial summary judgment, and entered a general judgment dismissing the action. In a letter opinion, the trial court set out its reasoning. The court first concluded that only submerged and submersible lands are resources that are encompassed by the public-trust doctrine. In doing so, the court determined that the following resources are not public-trust resources: navigable waters of the state, beaches, shorelands, islands, fish and wildlife, and the atmosphere.

The court then turned to the duties that the state has under the public-trust doctrine. The court reviewed relevant case law and concluded that, historically, "courts applying the public trust doctrine have merely prevented the State from entirely alienating submerged and submersible lands under navigable waters," and noted that no such alienation is at issue in this case. Based on that history, the court concluded that "the State does not have a fiduciary obligation to protect submerged and submersible lands from the [effects] of climate change."

On appeal from that judgment, plaintiffs assign error to the trial court's denial of their motion for partial summary judgment and its grant of the state's motion for summary judgment. Both rulings are reviewable on appeal "to determine whether either party is entitled to judgment as a matter of law." Busch v. Farmington Centers Beaverton , 203 Or. App. 349, 352, 124 P.3d 1282 (2005), rev. den. , 341 Or. 216, 140 P.3d 1133 (2006). Here, the issues presented on appeal reduce to purely legal questions.

Plaintiffs argue that the trial court erred (1) in concluding that the public-trust doctrine applied only to submerged and submersible lands, (2) in concluding that the public-trust doctrine does not impose affirmative obligations on the state to protect trust resources from the effects of climate change, and (3) in not reaching the question of whether the state has upheld its public-trust duty to protect public-trust resources from substantial impairment resulting from climate change. Because our conclusion on the issue is dispositive, we address only whether the state has fiduciary obligations under the public-trust doctrine to affirmatively protect public-trust resources from the effects of climate change. We conclude that it does not.

We start with a brief discussion of the historical underpinnings of Oregon's public-trust doctrine. Under the "equal-footing doctrine," upon admission to the union, Oregon obtained title to the submerged and submersible land underlying "title-navigable" water by virtue of the state's sovereignty.

Kramer v. City of Lake Oswego , 285 Or. App. 181, 201, 395 P.3d 592, rev. allowed , 362 Or. 38, 403 P.3d 776 (2017). The state's ownership of those lands "is comprised of an interrelationship of two distinct aspects, each possessing its own characteristics." Brusco Towboat v. State Land Bd. , 30 Or. App. 509, 516, 567 P.2d 1037 (1977), rev'd in part on other grounds , 284 Or. 627, 589 P.2d 712 (1978). First, the state holds full fee title in the property, called the jus privatum , which includes the power of alienation, viz ., the power to convey private interests in and use of that property for any purpose. Id. at 516-17, 567 P.2d 1037 ; see also Corvallis & Eastern R. Co. v. Benson , 61 Or. 359, 370, 121 P. 418 (1912) ("This private property in tidelands, the State by its legislative assembly, may grant to any one in any manner, or for any purpose, not forbidden by the constitution[.]").

"Th[e] second aspect of the state's ownership is called the jus publicum ," Brusco Towboat , 30 Or. App. at 516, 567 P.2d 1037, and is rooted in the principle that "[n]avigable waterways are a valuable and essential resource and as such all people have an interest in maintaining them for commerce, fishing, and recreation," id. at 517, 567 P.2d 1037. That aspect of the state's ownership is the common-law public-trust doctrine per se -viz. , the state "takes title to the submerged and submersible lands underlying navigable waters in trust for the public for purposes of navigation, fishing, and recreation." Kramer , 285 Or. App. at 201, 395 P.3d 592 (emphasis in original); see also Illinois Cent. R. Co. v. State of Illinois , 146 U.S. 387, 436, 13 S.Ct. 110, 36 L.Ed. 1018 (1892) ("The doctrine is founded upon the necessity of preserving to the public the use of navigable waters from private interruption and encroachment[.]").

Unlike the jus privatum , the jus publicum cannot be alienated by the state.

Brusco Towboat , 30 Or. App. at 517, 567 P.2d 1037. Thus, "[r]egardless of how the state may choose to convey its private title to submerged and submersible lands, such title, even in the hands of a private party, remains subject to the paramount power of the state to intervene on behalf of the public interest." Id. at 518, 567 P.2d 1037 ; see also Illinois Cent. R. Co. , 146 U.S. at 435, 13 S.Ct. 110 (The states own the land underlying navigable waters "with the consequent right to use or dispose of any portion thereof, when that can be done without substantial impairment of the interest of the public."); Corvallis Sand & Gravel v. Land Board , 250 Or. 319, 334, 439 P.2d 575 (1968) ("These 'public rights' are the rights of navigation and fishery and the state has no authority to dispose of the submerged lands in such a manner as to interfere with these rights."). The public-trust doctrine is a common-law doctrine that is a matter of state law. See, e.g. , PPL Montana, LLC v. Montana , 565 U.S. 576, 603, 132 S.Ct. 1215, 182 L.Ed.2d 77 (2012) (affirming that the doctrine is a matter of state law); Shively v. Bowlby , 152 U.S. 1, 57-58, 14 S.Ct. 548, 38 L.Ed. 331 (1894) (describing the nature and origin of the public-trust doctrine).

In deciding cases based on the public-trust doctrine, Oregon courts have "focused on the extent to which the state can alienate the lands held in trust, or on the power of the state to regulate activity with respect to title-navigable waterways." Kramer , 285 Or. App. at 203, 203-04, 395 P.3d 592 (discussing cases). Thus, historically, the public-trust doctrine has served to place restraints on state action with respect to the lands it holds underlying navigable waterways to protect the recognized public uses in those waterways. That is, the state may not convey interests in those lands or allow uses of those lands or the waters over them in a manner that causes a substantial impairment to the public's right to navigation, commerce, fishing, or recreation in those waters.

With that background in place, we turn to the arguments presented in this appeal. Plaintiffs' first argument, which we ultimately do not reach, is that the public-trust doctrine applies to more than just the submerged and submersible lands to which Oregon obtained title upon statehood by virtue of its sovereignty. Plaintiffs assert that the doctrine also encompasses all "essential natural resources," including, among other things, the waters of the state, fish and wildlife, and the atmosphere. Because we do not reach the merits of that argument as unnecessary to our disposition, we proceed in this opinion to refer to "public-trust resources" in the abstract, without identifying the resources that the term necessarily encompasses.

Plaintiffs' second argument, which we do address, asserts that the public-trust doctrine does more than restrain state action. Plaintiffs argue that the doctrine imposes fiduciary obligations on the state to take affirmative action to prevent substantial impairment to public-trust resources and, in particular, substantial impairment from the effects of climate change. Essentially, plaintiffs argue that inherent in the public-trust doctrine is a state obligation to protect public-trust resources from substantial impairment-whatever the source of that impairment-and that we should not be constrained from applying the public-trust doctrine in a manner that upholds that principle simply because our prior case law was based on fact patterns that are not readily translatable to the issue now before the court. Plaintiffs assert that adhering to the trial court's narrow view of the public-trust doctrine renders it meaningless in the face of the existential threats to our state's resources from climate change.

Many law professors also have appeared in support of plaintiffs as amici curiae (amici law professors). On this issue they argue that "[t]he sovereign fiduciary duty to protect the public's crucial assets from irrevocable damage remains the sine qua non of the public trust." They assert that we should apply the trust-law concept that requires that a trustee not sit idle and allow damage to trust property to occur. They argue that, by not taking proper action in the face of climate change, the state is "abdicat[ing] [its] sovereign public trust responsibility to protect the climate system for today's citizens and for future generations."

The state responds that the public-trust doctrine does not impose affirmative, fiduciary-like trust duties upon the state. Rather, the state asserts, the public-trust doctrine is a means by which to guide state action-viz. , it imposes a restraint on state action so that its actions do not substantially impair the public's interest in the title-navigable waters of the state-but the doctrine does not compel any particular state action in the first instance. The state points out that the "trust" in the public-trust doctrine is not the same as a "trust" over property or money covered by a trust instrument, and, thus, ordinary trust law with its attendant fiduciary duties that are imposed on trustees does not apply.

Before we address the parties' arguments, we first return to what plaintiffs are asking for in this case. As set out above, plaintiffs bring a single claim for relief under the common-law public-trust doctrine. In connection with that claim, plaintiffs seek declarations that the state has a "fiduciary obligation" to protect public-trust resources "from the [effects] of climate change for Plaintiffs and for present and future generations of Oregonians." Thus, we must answer whether, under the common-law public-trust doctrine, the state has a fiduciary obligation to affirmatively protect public-trust resources from the effects of climate change.

As a starting point, we reject plaintiffs' and amici law professors' reliance on other state's case law and on other sources of Oregon law, such as the Oregon Constitution, statutes, and regulations, to support their understanding of Oregon's common-law public-trust doctrine. As discussed above, the public-trust doctrine is a matter of state common law. As such, it is the common law of this state that deter-mines the contours of that doctrine. That the state may have other obligations under the Oregon Constitution, statutes, or regulations does not inform what obligations the public-trust doctrine itself requires of the state, which is the question that plaintiffs have put at issue. Plaintiffs chose to sue the state based solely on the common-law public-trust doctrine; as such, we must base our analysis on that doctrine. In rejecting reliance on other sources of Oregon law, we note that plaintiffs do not provide any supporting argument that those sources represent a legislative intention to codify, expand, or modify the common-law public-trust doctrine.

We thus turn to the main argument raised by plaintiff-that the public-trust doctrine imposes an inherent fiduciary obligation on the state to take affirmative action to prevent substantial impairment to public-trust resources from the effects of climate change. To support that argument, plaintiffs primarily rely on statements made in Geer v. Connecticut , 161 U.S. 519, 16 S.Ct. 600, 40 L.Ed. 793 (1896), overruled by Hughes v. Oklahoma , 441 U.S. 322, 99 S.Ct. 1727, 60 L.Ed.2d 250 (1979), and State v. Dickerson , 356 Or. 822, 345 P.3d 447 (2015). We consider those cases in turn.

In Geer , Connecticut had convicted the defendant of a violation of the state's game law that prohibited the possession of certain game for the purpose of transporting it outside of the state. The defendant argued that the law under which he was convicted violated the Commerce Clause of the United States Constitution. Geer , 161 U.S. at 522, 16 S.Ct. 600. In addressing that question, the United States Supreme Court examined "the nature of the property in game and the authority which the state had a right lawfully to exercise in relation thereto." Id . The Court explained that property in game is based on the principle of common ownership, which the state has a right to control and regulate. Id. at 528, 16 S.Ct. 600. That power to control, however, "is to be exercised, like all other powers of government, as a trust for the benefit of the people, and not as a prerogative for the advantage of the government as distinct from the people, or for the benefit of private individuals as distinguished from the public good." Id. at 529, 16 S.Ct. 600. With regard to the statute at issue, the Court determined that it was a lawful exercise of that authority because it "confine[d] the use of such game to those who own it-the people of that state"-an exercise over internal commerce and not interstate commerce. Id. at 529, 532, 16 S.Ct. 600.

Plaintiffs rely on Geer for one statement in it. In the course of describing the state's ownership of game, the Court quoted from an Illinois Supreme Court case that stated:

" 'It is, perhaps, accurate to say that the ownership of the sovereign authority is in trust for all the people of the state; and hence, by implication, it is the duty of the legislature to enact such laws as will best preserve the subject of the trust, and secure its beneficial use in the future to the people of the state . But, in any view, the question of individual enjoyment is one of public policy, and not of private right.' "

Id. at 534, 16 S.Ct. 600 (quoting Magner v. People , 97 Ill. 320 (1881) (emphasis to indicate portion on which plaintiffs rely) ). Plaintiffs' reliance is misplaced for at least two reasons. First, the statement was not made by the Court as a comment on the nature of the public trust; the Court was quoting a much larger section from an Illinois Supreme Court case to support its point that state courts had also concluded that the states have authority "to qualify and restrict the ownership in game killed within its limits." Id. at 532-33, 16 S.Ct. 600. Second, the Court held only that the nature of property in game gives the state the authority to regulate the taking of game and to prohibit its shipment out of state; it did not make any holding regarding affirmative duties of the states with respect to game or the public trust. See, e.g. , id. at 534, 16 S.Ct. 600.

Plaintiffs also rely on the Oregon Supreme Court case of Dickerson for the proposition that the state has "powers and duties" over trust resources. In Dickerson , the defendant challenged his conviction for criminal mischief, ORS 164.354, which prohibits a person from intentionally damaging "property of another." The defendant had aided and abetted his son in shooting two state-owned deer decoys that they believed were wild deer. The issue in the case was whether wild deer are "property of another" for purposes of the criminal mischief statute. Dickerson , 356 Or. at 823, 345 P.3d 447. To answer that question, the Supreme Court examined the nature of the state's sovereign interest in wild deer and concluded that "the state's sovereign interest in wild animals is in the nature of a 'legal * * * interest' within the meaning of ORS 164.305(2)." Id . at 834, 345 P.3d 447 (quoting ORS 164.305(2) (ellipsis in original) ). To reach that conclusion, the court relied in part on "the trust metaphor-sometimes referred to as the 'wildlife trust doctrine'-wildlife is the corpus of the trust, the state is the trustee, and the public is the beneficiary." Id. The court went on to say that

"[a]lthough the trust metaphor is an imperfect one * * *, the state's powers and duties with respect to wildlife have many of the traditional attributes of a trustee's duties . Acting as a trustee, the state has the authority to manage and preserve wildlife resources and may seek compensation for damages to the trust corpus."

Id. at 835, 345 P.3d 447 (emphasis to indicate portion on which plaintiffs rely).

Plaintiffs' reliance on an excerpted statement is once again misplaced. In making that statement about the "powers and duties" of the state, the Supreme Court relied on earlier cases that had held that the state, as trustee, has authority to enact laws to protect wildlife. See State v. Pulos , 64 Or. 92, 95, 129 P. 128 (1913) ("[It is a] well-known principle that title to wild game is in the state, * * *; that the taking of them is not a right, but is a privilege, which may be restricted, prohibited, or conditioned, as the law-making power may see fit."); Portland Fish Co. v. Benson , 56 Or. 147, 154, 108 P. 122 (1910) ("The title to the bed of all navigable rivers being in the state, the right to fish therein is subject to its control and supervision. * * * The title to the fish, before they are captured, is in the state in its sovereign capacity, in trust for all its citizens, and the right to fish is subject to such laws as the legislature may enact tending to protect them from extinction by exhaustive methods of capture."); State v. Hume , 52 Or. 1, 5-6, 95 P. 808 (1908) (stating generally recognized principle that, "as an incident of the assumed [sovereign] ownership, the legislative assembly may enact such laws as tend to protect the species from injury by human means and from extinction by exhaustive methods of capture"). Those cases, however, did not hold that the state has a duty to enact such laws. And, in Dickerson , the Supreme Court was not asked to determine if such a duty exists, and it did not do that.

There is nothing in our examination of Oregon's common-law public-trust doctrine that suggests that the doctrine imposes "fiduciary obligations" analogous to a legal "trust" to which trust law would apply, such as advocated by plaintiffs and amici law professors. Rather, the public-trust doctrine uses the word "trust" as an imperfect metaphor to capture the idea that the state is restrained from substantially impairing the common-law public right to use public-trust resources for certain purposes. Brusco Towboat , 30 Or. App. at 517, 567 P.2d 1037 ("The right of the public to use the waterways for these purposes has always been recognized at common law. As representative of the people, the sovereign bears the responsibility to preserve these rights." (Citation omitted.) ).

As discussed above, the Oregon public-trust doctrine is rooted in the idea that the state is restrained from disposing or allowing uses of public-trust resources that substantially impair the recognized public use of those resources. We can find no source under the Oregon conception of the public-trust doctrine for imposing fiduciary duties on the state to affirmatively act to protect public-trust resources from the effects of climate change. Accordingly, we conclude that the trial court correctly granted the state's motion for summary judgment and denied plaintiffs' motion for partial summary judgment based on the above conclusion. Because that conclusion resolves the controversy between the parties, we do not address the other declarations sought by plaintiffs. See ORS 28.060 ("The court may refuse to render or enter a declaratory judgment where such judgment, if rendered or entered, would not terminate the uncertainty or controversy giving rise to the proceeding."); Kramer , 285 Or. App. at 196, 395 P.3d 592 (holding that plaintiffs were not entitled to a declaration as to the public nature of the lake where the declaration of the scope of the public-trust doctrine resolved the controversy).

Finally, because this case was for declaratory relief, dismissal of the case was not the correct disposition of it. The trial court should have entered a judgment declaring the parties' respective rights. See Doe v. Medford School Dist. 549C , 232 Or. App. 38, 46, 221 P.3d 787 (2009) ("When the dismissal of a declaratory judgment action was clearly based on a determination of the merits of the claim, however, our practice has been to review that determination as a matter of law and then remand for the issuance of a judgment that declares the rights of the parties in accordance with our review of the merits."). Accordingly, we vacate and remand for the trial court to enter a judgment consistent with this opinion that declares the parties' rights.

Vacated and remanded.

      Plaintiffs were minor children who, through their guardians ad litem , sued defendants in 2011. However, we note that, since that time, plaintiffs have attained the age of majority.

      The trial court substituted Governor Brown, in her official capacity as Governor of the State of Oregon, as a party for former Governor John Kitzhaber, M.D., after Governor Brown took office.

      We recognize that the declarations plaintiffs requested in their motion differ in substantive ways from the declarations sought in their amended complaint. Because we conclude that the trial court correctly denied plaintiffs' motion for partial summary judgment, we do not address the import of those differences.

      "The phrase 'submersible lands' generally refers to the land lying between the high-water mark and the low-water mark of a navigable body of water, whether tidal or nontidal; the term 'submerged lands' is used to describe the land lying below the low-water mark." Kramer v. City of Lake Oswego , 285 Or. App. 181, 201, 395 P.3d 592, rev. allowed , 362 Or. 38, 403 P.3d 776 (2017).

      In an effort to make a complete record for appeal, the trial court also concluded that the separation-of-powers doctrine prevented it from granting the relief that plaintiffs requested. Plaintiffs argue on appeal that the trial court erred in reaching that issue. Because we affirm the trial court on other grounds, we do not address plaintiffs' argument.

      We reject without discussion plaintiffs' assertion that the trial court applied an incorrect legal standard in considering the parties' summary judgment motions based on a footnote discussion by the court about legislative findings the Oregon legislature had made with regard to climate change.

      "Title-navigable" waters are "waterways to which the state was granted ownership of the underlying land as an incident of sovereignty under the equal-footing doctrine." Kramer , 285 Or. App. at 198, 395 P.3d 592. What constitutes a "title-navigable" waterway is a matter of federal law. PPL Montana, LLC v. Montana , 565 U.S. 576, 591, 132 S.Ct. 1215, 182 L.Ed.2d 77 (2012).

      See Morse v. Oregon Division of State Lands , 285 Or. 197, 203, 590 P.2d 709 (1979) (state not prohibited by the public-trust doctrine from granting permit for estuary fill for nonwater-related uses; "[t]here is no grant here to a private party which results in such substantial impairment to the public's interest as would be beyond the power of the legislature to authorize"); Cook v. Dabney , 70 Or. 529, 532, 139 P. 721 (1914) (state had no right to convey property "in a manner and for a purpose which would act as a direct and permanent impediment to navigation"); Corvallis & Eastern R. Co. , 61 Or. at 372, 121 P. 418 (rejecting argument that the state could convey title to tidelands only for a public benefit); Bowlby v. Shively , 22 Or. 410, 427, 30 P. 154 (1892), aff'd , 152 U.S. 1, 14 S.Ct. 548, 38 L.Ed. 331 (1894) (state may dispose of tidelands in whatever manner it deems best, "subject only to the paramount right of navigation and the uses of commerce").

      Several individuals and citizen organizations also filed an amicus curiae brief in support of plaintiffs. In that brief, they describe the dire effects of climate change on Oregon's resources, citizens, and economy; assert, based on the best available science, that the state is failing to take action to prevent substantial impairment to Oregon's public-trust resources from the effects of climate change; and outline the practical solutions that currently exist and could be employed by the state to address those problems.

      We note that, on appeal, the state concedes that "title-navigable" waterways themselves, in addition to submerged and submersible lands, are covered by the public-trust doctrine, and that the trial court erred in that respect. However, because our disposition obviates the need to address precisely what resources are covered by the public-trust doctrine, we decline to address whether that concession is well-taken. See Kramer , 285 Or. App. at 199-200, 200 n. 20, 395 P.3d 592 (declining to address whether the public-trust doctrine applies to all navigable-in-fact waterways because it was not necessary to the disposition of the case).

      In discussing Geer and Dickerson , which are cases based on the state's sovereign interest in wildlife, we express no opinion whether those cases are based on the public-trust doctrine, rather than on a separate "wildlife trust doctrine," as asserted by the state. Rather, we examine those cases to determine if they stand for the more general proposition advocated by plaintiffs that state sovereign interest in a resource comes with an affirmative fiduciary obligation to protect that resource.