National Audubon Society v. Superior Court
Encyclopedia
The case of National Audubon Society v. Superior Court (Supreme Court of California, 1983) was a key case in California highlighting the conflict between the public trust doctrine
and appropriative water rights. The Public Trust Doctrine is based on the principle that certain resources (such as navigable waters) are too valuable to be privately owned and must remain available for public use. In National Audubon Society v. Superior Court, the court held that the public trust doctrine restricts the amount of water that can be withdrawn from navigable waterways. The basis for the Public Trust Doctrine goes back to Roman law. Under Roman law, the air, the rivers, the sea and the seashore were incapable of private ownership; they were dedicated to the use of the public. In essence, the public trust doctrine establishes the role of the state as having trustee environmental duties owed to the public that are subsequently enforceable by the public. There is judicial recognition of this, dictating that certain rights of the public are key to individual common law rights (such as state recognition of the public right or trust for waterways and coastal zones). Judicial recognition of the public trust doctrine has been established for tidelands and non-navigable waterways, submerged land (such as lake beds) and the waters above them, and preservation of a public interest (such as recreation, swimming, access, and sport fishing).
In National Audubon Society v. Superior Court, it was alleged by the plaintiffs that the public trust doctrine was being violated due to environmental damages to Mono Lake
in the form of significant water level declines as a result of water diversions by the City of Los Angeles Department of Water and Power
(DWP). DWP based their defense on the fact that they held permits, issued by the state for the diversions, and so the diversions were allowable. The central issue in the case was whether appropriative water rights (granted in the past) must consider the public trust doctrine, requiring protection of natural resources by the state. More specifically, the issue being addressed by the court was whether Mono Lake was subject to a public trust, which would invalidate Los Angeles’ use of the streams feeding the lake. The California Supreme Court held that the state, under the public trust doctrine, had continuing responsibility for the states navigable waters and that the public trust doctrine, therefore, prevented any party from appropriating water in a manner that harmed the public trust interests. However, the court also recognized that LA depended on these diversions as a critical water source, and this in turn mitigated the rule of law as the court held that water transfers were permissible even though some damage to the environment would occur as long as this was kept to minimal harm to the extent feasible. This ruling established that the public trust doctrine and appropriative water rights are "part of an integrated system of water law" and so both must be considered when determining appropriate use of water in California.
and others (Audubon) filed a suit against City of Los Angeles Department of Water and Power
DWP to suppress their diversion of the four tributaries that originally supplied Mono Lake
with water from Sierra snowmelt. The public trust doctrine
is the cornerstone and crux of this court case; the doctrine originates from Roman law
and has persisted throughout European and English Common law
. The Institutes of Justinian from the Sixth Century A.D. stated: by the law of nature these things are common to mankind -the air, running water, the sea and consequently the shores of the sea. Spanish and Mexican law also recognizes the public trust doctrine
; the Treaty of Guadalupe Hidalgo
guarantees these rights in California
.
Thus, the public trust doctrine
is a philosophical and realized extension of the concept of communal property, which belongs to the people and is to be held in a trust by the government. The public trust doctrine
holds that our water, fish, and wildlife are shared resources to be held in an exalted position, above that of any industrial, commercial, or private uses in any administrative or judicial review of water allocation, and establishes that the government must uphold and protect this trusteeship as a moral obligation.
Audubon’s original complaint, filed with the Superior Court
of Mono County
, asserted the diversions were a violation of the public trust doctrine
, were both a public and private nuisance, and a violation of California State Constitution
Article X, Section 4 & Article XVI, Section 6, which respectively prohibit obstruction of navigable waters and gifts by the state of a state asset. The suit attempted to establish Public Trust rights in Mono Basin
, and sought declaratory and injunctive relief. This case eventually reached the Supreme Court of California
, where a landmark ruling was handed down in favor of Audubon, which held that the public trust doctrine
applied to the Los Angeles
Mono Basin
diversions and that the state must exercise continuous supervision to ensure that trust values are continuously considered.
in the U.S.
is the 1892 Supreme Court
case Illinois Central Railroad v. Illinois
. The Court held that public trust submerged lands belong to the respective States within which they are found, 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 in the waters…. setting a precedent for strict scrutiny of any private taking
of public trust land
. The Court in Illinois voided the deed because under public trust law it did not promote a primary public purpose.
This meaning has been supported by Federal
and California Court decisions in Woodruff v. North Bloomfield, People v. Gold Run Ditch Mining Co., People ex rel Ricks Water Co. v. Elk River Mill and Lumber Co and People v. Truckee Lumber Co. These cases make it clear as a matter of law one must exercise rights or use property so as not to infringe on the rights, interests or properties of others.
Article X, Section 2 states that all waters of the state must be put to reasonable and beneficial use. Any waters in excess of the "reasonable and beneficial uses" are considered surplus waters available for use by others, as stipulated under the appropriative water rights administered by California State Water Resources Control Board
(SWRCB) Water rights are granted by the SWRBC after an application to appropriate water is approved and a permit is issued. The permit allows construction of a project needed to divert the water according to the terms and conditions of the permit, which includes submission of periodic progress reports by the applicant with SWRCB to ensure the application of the water is for beneficial use. If the conditional terms of the permit are met, SWRCB may issue a license to confirm the appropriative rights to the water.
1940: the City of Los Angeles Department of Water and Power
(DWP) was granted permits allowing appropriation for the entire flows of four out of five of Mono Lake's tributaries (Lee Vining, Walker, Parker, and Rush Creeks) for municipal use and hydropower generation. Mono Lake's tributaries contain glacial fed snowmelt from the Sierra Nevada's and thus convey potable water, whereas the water in Mono Lake
itself was and is not potable due to its salinity. Despite being granted permits, DWP lacked the appropriate conveyance facilities to physically appropriate and transport the volume of water that was granted at the time.
1963: The City of Los Angeles
authorized the construction of a new aqueduct, the Second Los Angeles Aqueduct
to transport surface water from Mono Basin
and both surface and groundwater from Owens Basin
.
1974: SWRCB issued licenses confirming DWP's right to divert water from Mono Lake tributaries, resulting in annual diversions of approximately 83000 acre.ft of water from Mono Basin
since the aqueduct was completed in 1970. The diversions from the second aqueduct caused the surface area of the lake to decrease by one-third and the lake level to drop 43 feet (13.1 m), exposing 18000 acres (72.8 km²) of lakebed.
1977: A Stanford biologist named David Gaines published a study on Mono Lake’s ecosystem
highlighting the dangers of water diversion that garnered national attention to the potentially catastrophic ecological impacts to Mono Lake
from the DWP diversions. This led to the formation of the Mono Lake Committee and a grassroots movement spanning over 30 years to stop the diversions and restore the basin California Water Wars
.
1979: The California Department of Water Resources
(CDWR) and the United States Department of the Interior
(USDI) undertook a joint study of Mono Basin
. The study concluded that the level of Mono Lake
should be stabilized at 6388 feet (1,947.1 m). To achieve this goal, drastic reductions of water exports from Mono Basin were recommended from the present annual average of 100000 acre.ft to a limit of 15000 acre.ft. Legislation was introduced to implement this recommendation, but was never enacted.
1979: The National Audubon Society
(Audubon), Mono Lake Committee
, Friends of the Earth
, the Los Angeles Audubon Society, and Mono Basin landowners initiated the original lawsuit with the Superior Court
of Mono County
in 1979 against Los Angeles Department of Water and Power
(DWP), asserting that the diversions were a violation of the public trust doctrine
, were both a public and private nuisance
, and a violation of California State Constitution
Article X, Section 4 & Article XVI, Section 6, which respectively prohibit obstruction of navigable waters and gifts by the state of a state asset. The suit attempted to establish Public Trust rights in Mono Basin
, and sought declaratory and injunctive relief.
The Public Trust Case was originally argued as: National Audubon Society v. Los Angeles. Superior Court of Alpine County No. 6429.
The case was transferred to Alpine
Superior Court
; DWP filed a cross-complaint seeking adjudication of Basin water rights to all appropriators, naming 117 cross-defendants, including the plaintiffs, the State, United States Forest Service
, U.S Bureau of Land Management
, and other private water users.
DWP also sought a Congressional declaration stating they consented to the impairment of navigable waters of Mono Lake
. Finally, DWP asserted that any nuisance at Mono Lake
was attributable to the newly exposed lakebed and sought a declaration that conditions resulted from a valid exercise of the police power by the State of California
. Simultaneously, Audubon sought permission to include a cause of action based on the federal common law of nuisance, asserting that Mono Lake
is an “interstate or navigable” water in which there is an overriding federal interest, and DWP's diversions were causing water and air pollution.
Due to the inclusion of federal agencies, the suit was transferred to Federal District Court
, where they decided abstention was appropriate and remanded. Accordingly, Audubon was instructed to file an action in state court to resolve two key issues: 1.) The interrelationship between the California water rights system and the public trust doctrine
: Is the public trust doctrine
in this context subsumed in the California water rights system, or does it function independently of that system? Could the plaintiffs challenge the DWP’s permits by asserting the public trust doctrine
limits their permits and licenses, or argue that the water diversions are not “reasonable or beneficial,” as required under the California water rights system? And 2.) Whether exhaustion of administrative remedies was pursued or is applicable in this context.
This case eventually reached the Supreme Court of California
, carrying this title: National Audubon Society v. Superior Court. 33 Cal. 3d 419 (1983).
, which lies south of Mono Lake
, began to undergo huge growth. As a result of this growth, the city needed additional sources of water. Around 1905, former Los Angeles Mayor, Fred Eaton
, and his colleague William Mulholland
, began to buy land in the Sierra region to secure water supply. The Owens River
was utilized as a water source until 1919, and when the Owens River Valley began to dry up, Los Angeles investigated the Mono Basin area. In the 1930s, Los Angeles purchased 30000 acres (121.4 km²) of land in the Mono Basin. Over the next decade, Los Angeles took water from creeks and streams in the area. In 1919, Mono Lake had a water surface elevation of 6428 feet (1,959.3 m) above mean sea level. In 1955, the elevation of the lake was reduced to 6,405 and still dropping. The decrease in water volume of the lake subsequently increased lake salinity, adversely affecting the local food chain. In 1980, there was a documented fifty percent reduction in the resident shrimp population, and by the spring of 1981, this reduction reached ninety five percent. Also, as the water level of Mono Lake dropped, an island within the lake that was key nesting habitat for bird species became accessible from shore (effectively becoming a peninsula), allowing coyote
s access to the nesting habitat. The subsequent predation on nesting birds significantly reduced population numbers. As the level of the lake continued to drop, shoreline area increased, resulting in airborn dust and sediment transport that covered the lake with very fine silt and impacted water quality.
In 1976, a group of students from the University of California
began to study the Mono Lake environment. Their research concluded that the lake’s reduction in water level caused environmental damage, including the loss of the lake’s brine shrimp
, loss of migrating and nesting birds, and the destruction of the Mono Lake’s natural beauty. In 1979, the National Audubon Society, Mono Lake Committee
, Friends of the Earth
, and four Mono Lake landowners filed suit against the DWP. Plaintiffs claimed that the waters of Mono Lake were protected from the DWP diversions by the public trust doctrine. The Supreme Court held that the state has an obligation to protect Mono Lake once the diversions begin to harm public trust interests. The court also held that California water law permitted the State Water Resources Control Board (SWRCB) to objectively study Mono Lake water rights after the agency granted the rights. Audubon claimed that air pollution in the form of alkali dust storms were caused by Mono Lake’s dropping water level. On October 6, 1988, the United States Court of Appeals, Ninth Circuit, held that Audubon could not claim a federal common law nuisance based on air pollution. In 1984, when DWP threatened to once again dry the creek, a trout fisherman, Dick Dahlgren, joined by California Trout
, filed suit against the DWP. Plaintiffs argued that not only did DWP violate the Public Trust Doctrine, it also violated the California Department of Fish and Game
Code § 5937. From this case, the court required the DWP to release 19 cuft/s into lower Rush Creek. In 1986, the Mono Lake Committee brought a similar lawsuit to protect Lee Vining Creek
. The court ordered the DWP to maintain a flow of 10 cuft/s to the creek. In 1989, the court halted the case for four years to allow the State Water Resources Control Board (SWRCB) to produce an Environmental Impact Report in order to recondition DWP’s water right licenses, and to prove compliance with the Public Trust Doctrine and the Fish and Game codes. On September 28, 1994, the court ordered that the lake must be restored to a height of 6392 feet (1,948.3 m) above sea level within the next 20 years. The DWP can continue to divert water during these 20 years, but only an average of 31000 acre.ft per year and the DWP must restore waterfowl and stream damage that resulted from past diversions.
. The public trust doctrine defines its purpose as maintaining, “All of its navigable, commerce, fishing, swimming, and other recreational purposes as trustee of a public trust for the benefit of the people.” Therefore, the waterways cannot belong to just one person as private property; they must be available to all people.
The Public Trust Doctrine has also been expanded to protect lands in their natural state to serve as ecological units for scientific study. Mono Lake is a navigable waterway, and it harvests brine shrimp
for sale as fish food. Under the traditional public trust cases, the lake is identified as a fishery. Plaintiffs sought to protect the lake's exceptional recreational and ecological value of the lake and its shore, the purity of the air, and the use of the lake for nesting and feeding by birds. Quoting Marks v. Whitney, the court said, “There is a growing public recognition that one of the most important public uses of the tidelands and use encompassed within the tidelands trust is the preservation of those lands in their natural state, so that they may serve as ecological units for scientific study, as open space, and as environments which provide food and habitat for birds and marine life, and which favorably affect the scenery and climate of the area.” As a result, Mono Lake is a navigable water, and the beds, shores, and waters of the lake are protected by the public trust.
During the trial the court brought up two cases that dealt with non-navigable waterways. In 1884, the court considered impairment of navigability in the American and Sacramento rivers due to mining on their non-navigable tributaries. Gold Run Ditching and Mining Company used water cannons to wash gold bearing gravel from the hillsides. As a result, 600,000 cubic yards of sand and gravel went into the American River
and washed downstream into the beds of the both the American and Sacramento
rivers. The court said “The State holds the absolute right to all navigable waters and the soils under them. The soil she holds as trustee of a public trust for the benefit of the people; and she may, by her legislature, grant it to an individual; but she cannot grant the rights of the people to the use of the navigable waters flowing over it…” In the second case, in 1901, the defendant in People v. Russ had built dams on sloughs, which flowed from the Salt River. The dams had been built to prevent water from flowing on to the defendant’s land, but the state said they were a public nuisance. In the National Audubon case, DWP argued that when the Water Board approved a permit, the water right became a vested right. The California Supreme Court held that the public trust is “an affirmation of the duty of the state to protect the people’s common heritage of streams, lakes, marshlands and tidelands, surrendering that right only in rare cases when the abandonment of that right is consistent with the purposes of the trust.”
The second issue in this case was whether plaintiffs must exhaust their remedies before the Water Board prior to bringing action in court. The California Supreme Court determined that remedy can be pursued from the Water Board by challenging the unreasonable or unbeneficial use of appropriated water or by bringing an independent public trust claim. Therefore, the plaintiffs could claim that DWP’s use of the water was unreasonable. Plaintiffs also could bring the public trust claim pursuant to section 2501 of the Water Code, which said, “The board may determine, in the proceedings provided for in this chapter, all rights to water of a stream system whether based upon appropriation, riparian right, or other basis of right.” Section 2501 refers to water rights as bringing the proceedings before the Water Board.
with Justices Bird
, Mosk
, Kaus
and Reynoso
, concurring. A separate concurring opinion by was entered by Kaus. Justice Richardson issued an opinion concurring in part and dissenting in part. While the public trust doctrine
protects navigable waterways like Mono Lake, the question remained whether diversions of non-navigable waters like the Mono Lake tributaries might also fall under the doctrine's scope. The majority concluded that when diversions of non-navigable tributaries impair the public interest in navigable waterways
, the scope of the public trust doctrine
is sufficiently broad to proscribe such actions. The applicability of the public trust doctrine to the case was described by the court as follows:
“The principal values plaintiffs seek to protect . . . are recreational and ecological . . . the scenic views of the lake and its shore, the purity of the air and the use of the lake for nesting and feeding by birds. Under Marks v. Whitney, supra, 6 Cal.3d 251, 98 Cal. Rptr. 790, 491 P.2d 374, it is clear that protection of these values is among the purposes of the public trust.”’’
In examining the relationship between the public trust doctrine and appropriative water rights in California, the court determined that, in some cases, the public interest served by water diversions may outweigh considerations of harm to public trust sources. The population and economy of California depend on the appropriation of vast quantities of water for uses unrelated to trust values. However, the court held that harm to public trust resources should be avoided or minimized if feasible. The court stated that, under Article X, section 2 of the California Constitution
“all uses of water, including public trust uses, must conform to the standard of reasonable use.”’’
In concluding, the court stated that the water rights held by Los Angeles were granted in absence of consideration of the effects of the diversions on the public trust resources of the Mono Basin and that the allocation of water from the basin streams should be reconsidered. The state has a "duty" to protect the public's "common heritage of streams, lakes, marshlands, and tidelands." The court also ruled that the State Water Resource Control Board (SWRCB) and the courts have concurrent jurisdiction to consider the effect of water diversions on public trust resources. The court ordered a study to be prepared to determine the impact of DWP’s diversion upon the public trust of Mono Lake. In subsequent proceedings following this decision, DWP has been ordered to reduce diversions by approximately two thirds until the water levels in Mono Lake recover to an acceptable level (expected to take decades).
Public trust doctrine
The public trust doctrine is the principle that certain resources are preserved for public use, and that the government is required to maintain them for the public's reasonable use.-Origins:...
and appropriative water rights. The Public Trust Doctrine is based on the principle that certain resources (such as navigable waters) are too valuable to be privately owned and must remain available for public use. In National Audubon Society v. Superior Court, the court held that the public trust doctrine restricts the amount of water that can be withdrawn from navigable waterways. The basis for the Public Trust Doctrine goes back to Roman law. Under Roman law, the air, the rivers, the sea and the seashore were incapable of private ownership; they were dedicated to the use of the public. In essence, the public trust doctrine establishes the role of the state as having trustee environmental duties owed to the public that are subsequently enforceable by the public. There is judicial recognition of this, dictating that certain rights of the public are key to individual common law rights (such as state recognition of the public right or trust for waterways and coastal zones). Judicial recognition of the public trust doctrine has been established for tidelands and non-navigable waterways, submerged land (such as lake beds) and the waters above them, and preservation of a public interest (such as recreation, swimming, access, and sport fishing).
In National Audubon Society v. Superior Court, it was alleged by the plaintiffs that the public trust doctrine was being violated due to environmental damages to Mono Lake
Mono Lake
Mono Lake is a large, shallow saline lake in Mono County, California, formed at least 760,000 years ago as a terminal lake in a basin that has no outlet to the ocean...
in the form of significant water level declines as a result of water diversions by the City of Los Angeles Department of Water and Power
Los Angeles Department of Water and Power
The Los Angeles Department of Water and Power is the largest municipal utility in the United States, serving over four million residents. It was founded in 1902 to supply water and electricity to residents and businesses in Los Angeles and surrounding communities...
(DWP). DWP based their defense on the fact that they held permits, issued by the state for the diversions, and so the diversions were allowable. The central issue in the case was whether appropriative water rights (granted in the past) must consider the public trust doctrine, requiring protection of natural resources by the state. More specifically, the issue being addressed by the court was whether Mono Lake was subject to a public trust, which would invalidate Los Angeles’ use of the streams feeding the lake. The California Supreme Court held that the state, under the public trust doctrine, had continuing responsibility for the states navigable waters and that the public trust doctrine, therefore, prevented any party from appropriating water in a manner that harmed the public trust interests. However, the court also recognized that LA depended on these diversions as a critical water source, and this in turn mitigated the rule of law as the court held that water transfers were permissible even though some damage to the environment would occur as long as this was kept to minimal harm to the extent feasible. This ruling established that the public trust doctrine and appropriative water rights are "part of an integrated system of water law" and so both must be considered when determining appropriate use of water in California.
Case Summary
In 1979, the National Audubon SocietyNational Audubon Society
The National Audubon Society is an American non-profit environmental organization dedicated to conservation. Incorporated in 1905, Audubon is one of the oldest of such organizations in the world and uses science, education and grassroots advocacy to advance its conservation mission...
and others (Audubon) filed a suit against City of Los Angeles Department of Water and Power
Los Angeles Department of Water and Power
The Los Angeles Department of Water and Power is the largest municipal utility in the United States, serving over four million residents. It was founded in 1902 to supply water and electricity to residents and businesses in Los Angeles and surrounding communities...
DWP to suppress their diversion of the four tributaries that originally supplied Mono Lake
Mono Lake
Mono Lake is a large, shallow saline lake in Mono County, California, formed at least 760,000 years ago as a terminal lake in a basin that has no outlet to the ocean...
with water from Sierra snowmelt. The public trust doctrine
Public trust doctrine
The public trust doctrine is the principle that certain resources are preserved for public use, and that the government is required to maintain them for the public's reasonable use.-Origins:...
is the cornerstone and crux of this court case; the doctrine originates from Roman law
Roman law
Roman law is the legal system of ancient Rome, and the legal developments which occurred before the 7th century AD — when the Roman–Byzantine state adopted Greek as the language of government. The development of Roman law comprises more than a thousand years of jurisprudence — from the Twelve...
and has persisted throughout European and English Common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
. The Institutes of Justinian from the Sixth Century A.D. stated: by the law of nature these things are common to mankind -the air, running water, the sea and consequently the shores of the sea. Spanish and Mexican law also recognizes the public trust doctrine
Public trust doctrine
The public trust doctrine is the principle that certain resources are preserved for public use, and that the government is required to maintain them for the public's reasonable use.-Origins:...
; the Treaty of Guadalupe Hidalgo
Treaty of Guadalupe Hidalgo
The Treaty of Guadalupe Hidalgo is the peace treaty, largely dictated by the United States to the interim government of a militarily occupied Mexico City, that ended the Mexican-American War on February 2, 1848...
guarantees these rights in California
California
California is a state located on the West Coast of the United States. It is by far the most populous U.S. state, and the third-largest by land area...
.
Thus, the public trust doctrine
Public trust doctrine
The public trust doctrine is the principle that certain resources are preserved for public use, and that the government is required to maintain them for the public's reasonable use.-Origins:...
is a philosophical and realized extension of the concept of communal property, which belongs to the people and is to be held in a trust by the government. The public trust doctrine
Public trust doctrine
The public trust doctrine is the principle that certain resources are preserved for public use, and that the government is required to maintain them for the public's reasonable use.-Origins:...
holds that our water, fish, and wildlife are shared resources to be held in an exalted position, above that of any industrial, commercial, or private uses in any administrative or judicial review of water allocation, and establishes that the government must uphold and protect this trusteeship as a moral obligation.
Audubon’s original complaint, filed with the Superior Court
Superior court
In common law systems, a superior court is a court of general competence which typically has unlimited jurisdiction with regard to civil and criminal legal cases...
of Mono County
Mono County, California
Mono County is a county located in the east central portion of the U.S. state of California, to the east of the Sierra Nevada between Yosemite National Park and Nevada. As of the 2010 census, the population was 14,202, up from 12,853 at the 2000 census...
, asserted the diversions were a violation of the public trust doctrine
Public trust doctrine
The public trust doctrine is the principle that certain resources are preserved for public use, and that the government is required to maintain them for the public's reasonable use.-Origins:...
, were both a public and private nuisance, and a violation of California State Constitution
California Constitution
The document that establishes and describes the duties, powers, structure and function of the government of the U.S. state of California. The original constitution, adopted in November 1849 in advance of California attaining U.S. statehood in 1850, was superseded by the current constitution, which...
Article X, Section 4 & Article XVI, Section 6, which respectively prohibit obstruction of navigable waters and gifts by the state of a state asset. The suit attempted to establish Public Trust rights in Mono Basin
Mono Basin
The Mono Basin is an endorheic drainage basin located east of Yosemite National Park in California and Nevada. It is bordered to the west by the Sierra Nevada, to the east by the Cowtrack Mountains, to the north by the Bodie Hills, and to the south by the north ridge of the Long Valley...
, and sought declaratory and injunctive relief. This case eventually reached the Supreme Court of California
Supreme Court of California
The Supreme Court of California is the highest state court in California. It is headquartered in San Francisco and regularly holds sessions in Los Angeles and Sacramento. Its decisions are binding on all other California state courts.-Composition:...
, where a landmark ruling was handed down in favor of Audubon, which held that the public trust doctrine
Public trust doctrine
The public trust doctrine is the principle that certain resources are preserved for public use, and that the government is required to maintain them for the public's reasonable use.-Origins:...
applied to the Los Angeles
Los Ángeles
Los Ángeles is the capital of the province of Biobío, in the commune of the same name, in Region VIII , in the center-south of Chile. It is located between the Laja and Biobío rivers. The population is 123,445 inhabitants...
Mono Basin
Mono Basin
The Mono Basin is an endorheic drainage basin located east of Yosemite National Park in California and Nevada. It is bordered to the west by the Sierra Nevada, to the east by the Cowtrack Mountains, to the north by the Bodie Hills, and to the south by the north ridge of the Long Valley...
diversions and that the state must exercise continuous supervision to ensure that trust values are continuously considered.
Background
The leading case that established the public trust doctrinePublic trust doctrine
The public trust doctrine is the principle that certain resources are preserved for public use, and that the government is required to maintain them for the public's reasonable use.-Origins:...
in the U.S.
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
is the 1892 Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
case Illinois Central Railroad v. Illinois
Illinois Central Railroad v. Illinois
The Supreme Court decision in Illinois Central Railroad v. Illinois, 146 U.S. 387 , reaffirmed that each state in its sovereign capacity holds permanent title to all submerged lands within its borders and holds these lands in public trust. This is a foundational case for the Public Trust Doctrine...
. The Court held that public trust submerged lands belong to the respective States within which they are found, 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 in the waters…. setting a precedent for strict scrutiny of any private taking
Regulatory taking
Regulatory taking refers to a situation in which a government regulates a property to such a degree that the regulation effectively amounts to an exercise of the government's eminent domain power without actually divesting the property's owner of title to the property.-United States law:In common...
of public trust land
Public land
In all modern states, some land is held by central or local governments. This is called public land. The system of tenure of public land, and the terminology used, varies between countries...
. The Court in Illinois voided the deed because under public trust law it did not promote a primary public purpose.
This meaning has been supported by Federal
United States federal courts
The United States federal courts make up the judiciary branch of federal government of the United States organized under the United States Constitution and laws of the federal government.-Categories:...
and California Court decisions in Woodruff v. North Bloomfield, People v. Gold Run Ditch Mining Co., People ex rel Ricks Water Co. v. Elk River Mill and Lumber Co and People v. Truckee Lumber Co. These cases make it clear as a matter of law one must exercise rights or use property so as not to infringe on the rights, interests or properties of others.
Procedural History
1928: California State ConstitutionCalifornia Constitution
The document that establishes and describes the duties, powers, structure and function of the government of the U.S. state of California. The original constitution, adopted in November 1849 in advance of California attaining U.S. statehood in 1850, was superseded by the current constitution, which...
Article X, Section 2 states that all waters of the state must be put to reasonable and beneficial use. Any waters in excess of the "reasonable and beneficial uses" are considered surplus waters available for use by others, as stipulated under the appropriative water rights administered by California State Water Resources Control Board
California State Water Resources Control Board
The California State Water Resources Control Board is one of five branches of the California Environmental Protection Agency.-History:...
(SWRCB) Water rights are granted by the SWRBC after an application to appropriate water is approved and a permit is issued. The permit allows construction of a project needed to divert the water according to the terms and conditions of the permit, which includes submission of periodic progress reports by the applicant with SWRCB to ensure the application of the water is for beneficial use. If the conditional terms of the permit are met, SWRCB may issue a license to confirm the appropriative rights to the water.
1940: the City of Los Angeles Department of Water and Power
Los Angeles Department of Water and Power
The Los Angeles Department of Water and Power is the largest municipal utility in the United States, serving over four million residents. It was founded in 1902 to supply water and electricity to residents and businesses in Los Angeles and surrounding communities...
(DWP) was granted permits allowing appropriation for the entire flows of four out of five of Mono Lake's tributaries (Lee Vining, Walker, Parker, and Rush Creeks) for municipal use and hydropower generation. Mono Lake's tributaries contain glacial fed snowmelt from the Sierra Nevada's and thus convey potable water, whereas the water in Mono Lake
Mono Lake
Mono Lake is a large, shallow saline lake in Mono County, California, formed at least 760,000 years ago as a terminal lake in a basin that has no outlet to the ocean...
itself was and is not potable due to its salinity. Despite being granted permits, DWP lacked the appropriate conveyance facilities to physically appropriate and transport the volume of water that was granted at the time.
1963: The City of Los Angeles
Los Ángeles
Los Ángeles is the capital of the province of Biobío, in the commune of the same name, in Region VIII , in the center-south of Chile. It is located between the Laja and Biobío rivers. The population is 123,445 inhabitants...
authorized the construction of a new aqueduct, the Second Los Angeles Aqueduct
Los Angeles Aqueduct
The Los Angeles Aqueduct system comprising the Los Angeles Aqueduct and the Second Los Angeles Aqueduct, is a water conveyance system operated by the Los Angeles Department of Water and Power...
to transport surface water from Mono Basin
Mono Basin
The Mono Basin is an endorheic drainage basin located east of Yosemite National Park in California and Nevada. It is bordered to the west by the Sierra Nevada, to the east by the Cowtrack Mountains, to the north by the Bodie Hills, and to the south by the north ridge of the Long Valley...
and both surface and groundwater from Owens Basin
Owens Valley
Owens Valley is the arid valley of the Owens River in eastern California in the United States, to the east of the Sierra Nevada and west of the White Mountains and Inyo Mountains on the west edge of the Great Basin section...
.
1974: SWRCB issued licenses confirming DWP's right to divert water from Mono Lake tributaries, resulting in annual diversions of approximately 83000 acre.ft of water from Mono Basin
Mono Basin
The Mono Basin is an endorheic drainage basin located east of Yosemite National Park in California and Nevada. It is bordered to the west by the Sierra Nevada, to the east by the Cowtrack Mountains, to the north by the Bodie Hills, and to the south by the north ridge of the Long Valley...
since the aqueduct was completed in 1970. The diversions from the second aqueduct caused the surface area of the lake to decrease by one-third and the lake level to drop 43 feet (13.1 m), exposing 18000 acres (72.8 km²) of lakebed.
1977: A Stanford biologist named David Gaines published a study on Mono Lake’s ecosystem
Ecosystem
An ecosystem is a biological environment consisting of all the organisms living in a particular area, as well as all the nonliving , physical components of the environment with which the organisms interact, such as air, soil, water and sunlight....
highlighting the dangers of water diversion that garnered national attention to the potentially catastrophic ecological impacts to Mono Lake
Mono Lake
Mono Lake is a large, shallow saline lake in Mono County, California, formed at least 760,000 years ago as a terminal lake in a basin that has no outlet to the ocean...
from the DWP diversions. This led to the formation of the Mono Lake Committee and a grassroots movement spanning over 30 years to stop the diversions and restore the basin California Water Wars
California Water Wars
The California Water Wars were a series of conflicts between the city of Los Angeles, farmers and ranchers in the Owens Valley of Eastern California, and environmentalists. As Los Angeles grew in the late 1800s, it started to outgrow its water supply. Fred Eaton, mayor of Los Angeles, realized that...
.
1979: The California Department of Water Resources
California Department of Water Resources
The California Department of Water Resources , is a department within the California Natural Resources Agency. The Department of Water Resources is responsible for the State of California's management and regulation of water usage...
(CDWR) and the United States Department of the Interior
United States Department of the Interior
The United States Department of the Interior is the United States federal executive department of the U.S. government responsible for the management and conservation of most federal land and natural resources, and the administration of programs relating to Native Americans, Alaska Natives, Native...
(USDI) undertook a joint study of Mono Basin
Mono Basin
The Mono Basin is an endorheic drainage basin located east of Yosemite National Park in California and Nevada. It is bordered to the west by the Sierra Nevada, to the east by the Cowtrack Mountains, to the north by the Bodie Hills, and to the south by the north ridge of the Long Valley...
. The study concluded that the level of Mono Lake
Mono Lake
Mono Lake is a large, shallow saline lake in Mono County, California, formed at least 760,000 years ago as a terminal lake in a basin that has no outlet to the ocean...
should be stabilized at 6388 feet (1,947.1 m). To achieve this goal, drastic reductions of water exports from Mono Basin were recommended from the present annual average of 100000 acre.ft to a limit of 15000 acre.ft. Legislation was introduced to implement this recommendation, but was never enacted.
1979: The National Audubon Society
National Audubon Society
The National Audubon Society is an American non-profit environmental organization dedicated to conservation. Incorporated in 1905, Audubon is one of the oldest of such organizations in the world and uses science, education and grassroots advocacy to advance its conservation mission...
(Audubon), Mono Lake Committee
Mono Lake Committee
The Mono Lake Committee is an environmental organization based in Lee Vining, California in the United States. Its mission is to preserve Mono Lake, by reducing diversions of water from the Eastern Sierra watersheds by the Los Angeles Department of Water and Power .The Committee was founded in...
, Friends of the Earth
Friends of the Earth
Friends of the Earth International is an international network of environmental organizations in 76 countries.FOEI is assisted by a small secretariat which provides support for the network and its agreed major campaigns...
, the Los Angeles Audubon Society, and Mono Basin landowners initiated the original lawsuit with the Superior Court
Superior court
In common law systems, a superior court is a court of general competence which typically has unlimited jurisdiction with regard to civil and criminal legal cases...
of Mono County
Mono County, California
Mono County is a county located in the east central portion of the U.S. state of California, to the east of the Sierra Nevada between Yosemite National Park and Nevada. As of the 2010 census, the population was 14,202, up from 12,853 at the 2000 census...
in 1979 against Los Angeles Department of Water and Power
Los Angeles Department of Water and Power
The Los Angeles Department of Water and Power is the largest municipal utility in the United States, serving over four million residents. It was founded in 1902 to supply water and electricity to residents and businesses in Los Angeles and surrounding communities...
(DWP), asserting that the diversions were a violation of the public trust doctrine
Public trust doctrine
The public trust doctrine is the principle that certain resources are preserved for public use, and that the government is required to maintain them for the public's reasonable use.-Origins:...
, were both a public and private nuisance
Nuisance
Nuisance is a common law tort. It means that which causes offence, annoyance, trouble or injury. A nuisance can be either public or private. A public nuisance was defined by English scholar Sir J. F...
, and a violation of California State Constitution
California Constitution
The document that establishes and describes the duties, powers, structure and function of the government of the U.S. state of California. The original constitution, adopted in November 1849 in advance of California attaining U.S. statehood in 1850, was superseded by the current constitution, which...
Article X, Section 4 & Article XVI, Section 6, which respectively prohibit obstruction of navigable waters and gifts by the state of a state asset. The suit attempted to establish Public Trust rights in Mono Basin
Mono Basin
The Mono Basin is an endorheic drainage basin located east of Yosemite National Park in California and Nevada. It is bordered to the west by the Sierra Nevada, to the east by the Cowtrack Mountains, to the north by the Bodie Hills, and to the south by the north ridge of the Long Valley...
, and sought declaratory and injunctive relief.
The Public Trust Case was originally argued as: National Audubon Society v. Los Angeles. Superior Court of Alpine County No. 6429.
The case was transferred to Alpine
Alpine County, California
Alpine County is the smallest county, by population, in the U.S. state of California. As of 2010, it had a population of 1,175, all rural. There are no incorporated cities in the county. The county seat is Markleeville...
Superior Court
Superior Courts of California
The Superior Courts of California are the superior courts in the U.S. state of California with general jurisdiction to hear and decide any civil or criminal action which is not specially designated to be heard in some other court or before a government agency...
; DWP filed a cross-complaint seeking adjudication of Basin water rights to all appropriators, naming 117 cross-defendants, including the plaintiffs, the State, United States Forest Service
United States Forest Service
The United States Forest Service is an agency of the United States Department of Agriculture that administers the nation's 155 national forests and 20 national grasslands, which encompass...
, U.S Bureau of Land Management
Bureau of Land Management
The Bureau of Land Management is an agency within the United States Department of the Interior which administers America's public lands, totaling approximately , or one-eighth of the landmass of the country. The BLM also manages of subsurface mineral estate underlying federal, state and private...
, and other private water users.
DWP also sought a Congressional declaration stating they consented to the impairment of navigable waters of Mono Lake
Mono Lake
Mono Lake is a large, shallow saline lake in Mono County, California, formed at least 760,000 years ago as a terminal lake in a basin that has no outlet to the ocean...
. Finally, DWP asserted that any nuisance at Mono Lake
Mono Lake
Mono Lake is a large, shallow saline lake in Mono County, California, formed at least 760,000 years ago as a terminal lake in a basin that has no outlet to the ocean...
was attributable to the newly exposed lakebed and sought a declaration that conditions resulted from a valid exercise of the police power by the State of California
California
California is a state located on the West Coast of the United States. It is by far the most populous U.S. state, and the third-largest by land area...
. Simultaneously, Audubon sought permission to include a cause of action based on the federal common law of nuisance, asserting that Mono Lake
Mono Lake
Mono Lake is a large, shallow saline lake in Mono County, California, formed at least 760,000 years ago as a terminal lake in a basin that has no outlet to the ocean...
is an “interstate or navigable” water in which there is an overriding federal interest, and DWP's diversions were causing water and air pollution.
Due to the inclusion of federal agencies, the suit was transferred to Federal District Court
United States district court
The United States district courts are the general trial courts of the United States federal court system. Both civil and criminal cases are filed in the district court, which is a court of law, equity, and admiralty. There is a United States bankruptcy court associated with each United States...
, where they decided abstention was appropriate and remanded. Accordingly, Audubon was instructed to file an action in state court to resolve two key issues: 1.) The interrelationship between the California water rights system and the public trust doctrine
Public trust doctrine
The public trust doctrine is the principle that certain resources are preserved for public use, and that the government is required to maintain them for the public's reasonable use.-Origins:...
: Is the public trust doctrine
Public trust doctrine
The public trust doctrine is the principle that certain resources are preserved for public use, and that the government is required to maintain them for the public's reasonable use.-Origins:...
in this context subsumed in the California water rights system, or does it function independently of that system? Could the plaintiffs challenge the DWP’s permits by asserting the public trust doctrine
Public trust doctrine
The public trust doctrine is the principle that certain resources are preserved for public use, and that the government is required to maintain them for the public's reasonable use.-Origins:...
limits their permits and licenses, or argue that the water diversions are not “reasonable or beneficial,” as required under the California water rights system? And 2.) Whether exhaustion of administrative remedies was pursued or is applicable in this context.
This case eventually reached the Supreme Court of California
Supreme Court of California
The Supreme Court of California is the highest state court in California. It is headquartered in San Francisco and regularly holds sessions in Los Angeles and Sacramento. Its decisions are binding on all other California state courts.-Composition:...
, carrying this title: National Audubon Society v. Superior Court. 33 Cal. 3d 419 (1983).
Case
At the beginning of the 20th century, the city of Los AngelesLos Ángeles
Los Ángeles is the capital of the province of Biobío, in the commune of the same name, in Region VIII , in the center-south of Chile. It is located between the Laja and Biobío rivers. The population is 123,445 inhabitants...
, which lies south of Mono Lake
Mono Lake
Mono Lake is a large, shallow saline lake in Mono County, California, formed at least 760,000 years ago as a terminal lake in a basin that has no outlet to the ocean...
, began to undergo huge growth. As a result of this growth, the city needed additional sources of water. Around 1905, former Los Angeles Mayor, Fred Eaton
Fred Eaton
Frederick Eaton , known as Fred Eaton, was a major individual in the transformation and expansion of Los Angeles in the latter 19th century through early 20th century, in California, United States...
, and his colleague William Mulholland
William Mulholland
William Mulholland was the head of Los Angeles Department of Water and Power, in Los Angeles. He was responsible for building the water aqueducts and dams that allowed the city to grow into one of the largest in the world. His methods of obtaining water for the city led to disputes collectively...
, began to buy land in the Sierra region to secure water supply. The Owens River
Owens River
The Owens River is a river in southeastern California in the United States, approximately long. It drains into and through the Owens Valley, an arid basin between the eastern slope of the Sierra Nevada and the western faces of the Inyo and White Mountains. The river terminates at Owens Lake, but...
was utilized as a water source until 1919, and when the Owens River Valley began to dry up, Los Angeles investigated the Mono Basin area. In the 1930s, Los Angeles purchased 30000 acres (121.4 km²) of land in the Mono Basin. Over the next decade, Los Angeles took water from creeks and streams in the area. In 1919, Mono Lake had a water surface elevation of 6428 feet (1,959.3 m) above mean sea level. In 1955, the elevation of the lake was reduced to 6,405 and still dropping. The decrease in water volume of the lake subsequently increased lake salinity, adversely affecting the local food chain. In 1980, there was a documented fifty percent reduction in the resident shrimp population, and by the spring of 1981, this reduction reached ninety five percent. Also, as the water level of Mono Lake dropped, an island within the lake that was key nesting habitat for bird species became accessible from shore (effectively becoming a peninsula), allowing coyote
Coyote
The coyote , also known as the American jackal or the prairie wolf, is a species of canine found throughout North and Central America, ranging from Panama in the south, north through Mexico, the United States and Canada...
s access to the nesting habitat. The subsequent predation on nesting birds significantly reduced population numbers. As the level of the lake continued to drop, shoreline area increased, resulting in airborn dust and sediment transport that covered the lake with very fine silt and impacted water quality.
In 1976, a group of students from the University of California
University of California
The University of California is a public university system in the U.S. state of California. Under the California Master Plan for Higher Education, the University of California is a part of the state's three-tier public higher education system, which also includes the California State University...
began to study the Mono Lake environment. Their research concluded that the lake’s reduction in water level caused environmental damage, including the loss of the lake’s brine shrimp
Brine shrimp
Artemia is a genus of aquatic crustaceans known as brine shrimp. Artemia, the only genus in the family Artemiidae, has changed little externally since the Triassic period...
, loss of migrating and nesting birds, and the destruction of the Mono Lake’s natural beauty. In 1979, the National Audubon Society, Mono Lake Committee
Mono Lake Committee
The Mono Lake Committee is an environmental organization based in Lee Vining, California in the United States. Its mission is to preserve Mono Lake, by reducing diversions of water from the Eastern Sierra watersheds by the Los Angeles Department of Water and Power .The Committee was founded in...
, Friends of the Earth
Friends of the Earth
Friends of the Earth International is an international network of environmental organizations in 76 countries.FOEI is assisted by a small secretariat which provides support for the network and its agreed major campaigns...
, and four Mono Lake landowners filed suit against the DWP. Plaintiffs claimed that the waters of Mono Lake were protected from the DWP diversions by the public trust doctrine. The Supreme Court held that the state has an obligation to protect Mono Lake once the diversions begin to harm public trust interests. The court also held that California water law permitted the State Water Resources Control Board (SWRCB) to objectively study Mono Lake water rights after the agency granted the rights. Audubon claimed that air pollution in the form of alkali dust storms were caused by Mono Lake’s dropping water level. On October 6, 1988, the United States Court of Appeals, Ninth Circuit, held that Audubon could not claim a federal common law nuisance based on air pollution. In 1984, when DWP threatened to once again dry the creek, a trout fisherman, Dick Dahlgren, joined by California Trout
California Trout
California Trout is a San Francisco-based 501 conservation group dedicated to “protecting and restoring wild trout and steelhead waters throughout California”....
, filed suit against the DWP. Plaintiffs argued that not only did DWP violate the Public Trust Doctrine, it also violated the California Department of Fish and Game
California Department of Fish and Game
The California Department of Fish and Game is a department within the government of California, falling under its parent California Natural Resources Agency. The Department of Fish and Game manages and protects the state's diverse fish, wildlife, plant resources, and native habitats...
Code § 5937. From this case, the court required the DWP to release 19 cuft/s into lower Rush Creek. In 1986, the Mono Lake Committee brought a similar lawsuit to protect Lee Vining Creek
Lee Vining Creek
Lee Vining Creek is a stream in Mono County, California, flowing into the endorheic basin of Mono Lake. It is the second largest stream flowing into the lake, after Rush Creek....
. The court ordered the DWP to maintain a flow of 10 cuft/s to the creek. In 1989, the court halted the case for four years to allow the State Water Resources Control Board (SWRCB) to produce an Environmental Impact Report in order to recondition DWP’s water right licenses, and to prove compliance with the Public Trust Doctrine and the Fish and Game codes. On September 28, 1994, the court ordered that the lake must be restored to a height of 6392 feet (1,948.3 m) above sea level within the next 20 years. The DWP can continue to divert water during these 20 years, but only an average of 31000 acre.ft per year and the DWP must restore waterfowl and stream damage that resulted from past diversions.
Issues
In this case, the California courts resolved two issues: The first issue was, whether the Public Trust Doctrine functions independently of the California Water Rights SystemWater in California
California’s interconnected water system serves over 30 million people and irrigates over of farmland. As the world’s largest, most productive, and most controversial water system, it manages over of water per year.- Sources of water :...
. The public trust doctrine defines its purpose as maintaining, “All of its navigable, commerce, fishing, swimming, and other recreational purposes as trustee of a public trust for the benefit of the people.” Therefore, the waterways cannot belong to just one person as private property; they must be available to all people.
The Public Trust Doctrine has also been expanded to protect lands in their natural state to serve as ecological units for scientific study. Mono Lake is a navigable waterway, and it harvests brine shrimp
Brine shrimp
Artemia is a genus of aquatic crustaceans known as brine shrimp. Artemia, the only genus in the family Artemiidae, has changed little externally since the Triassic period...
for sale as fish food. Under the traditional public trust cases, the lake is identified as a fishery. Plaintiffs sought to protect the lake's exceptional recreational and ecological value of the lake and its shore, the purity of the air, and the use of the lake for nesting and feeding by birds. Quoting Marks v. Whitney, the court said, “There is a growing public recognition that one of the most important public uses of the tidelands and use encompassed within the tidelands trust is the preservation of those lands in their natural state, so that they may serve as ecological units for scientific study, as open space, and as environments which provide food and habitat for birds and marine life, and which favorably affect the scenery and climate of the area.” As a result, Mono Lake is a navigable water, and the beds, shores, and waters of the lake are protected by the public trust.
During the trial the court brought up two cases that dealt with non-navigable waterways. In 1884, the court considered impairment of navigability in the American and Sacramento rivers due to mining on their non-navigable tributaries. Gold Run Ditching and Mining Company used water cannons to wash gold bearing gravel from the hillsides. As a result, 600,000 cubic yards of sand and gravel went into the American River
American River
The American River is a California watercourse noted as the site of Sutter's Mill, northwest of Placerville, California, where gold was found in 1848, leading to the California Gold Rush...
and washed downstream into the beds of the both the American and Sacramento
Sacramento River
The Sacramento River is an important watercourse of Northern and Central California in the United States. The largest river in California, it rises on the eastern slopes of the Klamath Mountains, and after a journey south of over , empties into Suisun Bay, an arm of the San Francisco Bay, and...
rivers. The court said “The State holds the absolute right to all navigable waters and the soils under them. The soil she holds as trustee of a public trust for the benefit of the people; and she may, by her legislature, grant it to an individual; but she cannot grant the rights of the people to the use of the navigable waters flowing over it…” In the second case, in 1901, the defendant in People v. Russ had built dams on sloughs, which flowed from the Salt River. The dams had been built to prevent water from flowing on to the defendant’s land, but the state said they were a public nuisance. In the National Audubon case, DWP argued that when the Water Board approved a permit, the water right became a vested right. The California Supreme Court held that the public trust is “an affirmation of the duty of the state to protect the people’s common heritage of streams, lakes, marshlands and tidelands, surrendering that right only in rare cases when the abandonment of that right is consistent with the purposes of the trust.”
The second issue in this case was whether plaintiffs must exhaust their remedies before the Water Board prior to bringing action in court. The California Supreme Court determined that remedy can be pursued from the Water Board by challenging the unreasonable or unbeneficial use of appropriated water or by bringing an independent public trust claim. Therefore, the plaintiffs could claim that DWP’s use of the water was unreasonable. Plaintiffs also could bring the public trust claim pursuant to section 2501 of the Water Code, which said, “The board may determine, in the proceedings provided for in this chapter, all rights to water of a stream system whether based upon appropriation, riparian right, or other basis of right.” Section 2501 refers to water rights as bringing the proceedings before the Water Board.
Decision
The California Supreme Court entered its decision in 1983 with the majority opinion written by Justice BroussardAllen Broussard
Allen Broussard was an African-American judge who rose to become a justice of the California Supreme Court.He was born in Lake Charles, Louisiana on April 13, 1929, the son of Clemire and Eugenia Broussard. At the age of 16, he moved with his family to California...
with Justices Bird
Rose Bird
Rose Elizabeth Bird served for 10 years as the 25th Chief Justice of California. She was the first female Justice, and first female Chief Justice, on that court, appointed by then Governor Jerry Brown...
, Mosk
Stanley Mosk
Stanley Mosk was an Associate Justice of the California Supreme Court for 37 years , and holds the record for the longest-serving justice on that court. Before sitting on the Supreme Court, he served as Attorney General of California and as a trial court judge, among other governmental positions...
, Kaus
Otto Kaus
Otto M. Kaus was a former judge from the State of California. He was born in Vienna, Austria. He was already attending school in Great Britain when the rest of his family fled the Nazis in the 1930s. Immigrating to the United States, his family settled in Los Angeles, California...
and Reynoso
Cruz Reynoso
Cruz Reynoso is a civil rights lawyer, professor emeritus of law, and the first Chicano Associate Justice of the California Supreme Court . He also served on the California Third District Court of Appeal...
, concurring. A separate concurring opinion by was entered by Kaus. Justice Richardson issued an opinion concurring in part and dissenting in part. While the public trust doctrine
Public trust doctrine
The public trust doctrine is the principle that certain resources are preserved for public use, and that the government is required to maintain them for the public's reasonable use.-Origins:...
protects navigable waterways like Mono Lake, the question remained whether diversions of non-navigable waters like the Mono Lake tributaries might also fall under the doctrine's scope. The majority concluded that when diversions of non-navigable tributaries impair the public interest in navigable waterways
Navigability
A body of water, such as a river, canal or lake, is navigable if it is deep, wide and slow enough for a vessel to pass. Preferably there are few obstructions such as rocks or trees to avoid. Bridges must have sufficient clearance. High water speed may make a channel unnavigable. Waters may be...
, the scope of the public trust doctrine
Public trust doctrine
The public trust doctrine is the principle that certain resources are preserved for public use, and that the government is required to maintain them for the public's reasonable use.-Origins:...
is sufficiently broad to proscribe such actions. The applicability of the public trust doctrine to the case was described by the court as follows:
“The principal values plaintiffs seek to protect . . . are recreational and ecological . . . the scenic views of the lake and its shore, the purity of the air and the use of the lake for nesting and feeding by birds. Under Marks v. Whitney, supra, 6 Cal.3d 251, 98 Cal. Rptr. 790, 491 P.2d 374, it is clear that protection of these values is among the purposes of the public trust.”’’
In examining the relationship between the public trust doctrine and appropriative water rights in California, the court determined that, in some cases, the public interest served by water diversions may outweigh considerations of harm to public trust sources. The population and economy of California depend on the appropriation of vast quantities of water for uses unrelated to trust values. However, the court held that harm to public trust resources should be avoided or minimized if feasible. The court stated that, under Article X, section 2 of the California Constitution
California Constitution
The document that establishes and describes the duties, powers, structure and function of the government of the U.S. state of California. The original constitution, adopted in November 1849 in advance of California attaining U.S. statehood in 1850, was superseded by the current constitution, which...
“all uses of water, including public trust uses, must conform to the standard of reasonable use.”’’
In concluding, the court stated that the water rights held by Los Angeles were granted in absence of consideration of the effects of the diversions on the public trust resources of the Mono Basin and that the allocation of water from the basin streams should be reconsidered. The state has a "duty" to protect the public's "common heritage of streams, lakes, marshlands, and tidelands." The court also ruled that the State Water Resource Control Board (SWRCB) and the courts have concurrent jurisdiction to consider the effect of water diversions on public trust resources. The court ordered a study to be prepared to determine the impact of DWP’s diversion upon the public trust of Mono Lake. In subsequent proceedings following this decision, DWP has been ordered to reduce diversions by approximately two thirds until the water levels in Mono Lake recover to an acceptable level (expected to take decades).