Targeting Public Trust Suits

• Publication year: 2020
• Author: By Karrigan Bork

TARGETING PUBLIC TRUST SUITS

By Karrigan Bork^*

I. INTRODUCTION

The California public trust doctrine empowers private individuals and interest groups to protect the public trust and to enforce state laws that protect the public trust. California has long led the development of the doctrine in the United States, becoming the first state to allow citizen suits to protect the public trust in 1971.¹ A number of other states have followed California's lead, resulting in a significant expansion in environmental standing. This broadened standing seems to be settled law. In contrast, two California Court of Appeal decisions create some uncertainty about appropriate defendants in public trust lawsuits.² These decisions counsel some caution as private parties pick their targets for public trust litigation.

First, in Center for Biological Diversity v. FPL Group ("FPL Group"), California's First District Court of Appeal held that suits alleging private parties have violated the public trust doctrine "must be directed to the agencies that have authorized the conduct," not against the private parties themselves.³ This seems to be a significant departure from traditional approaches to enforcing the public trust. Second, in Environmental Law Foundation v. State Water Resources Control Board ("ELF"), California's Third District Court of Appeal held a "county, as a subdivision of the state, shares responsibility for administering the public trust."⁴ This holding seems to broaden the number of entities that bear public trust responsibilities. Together, these cases raise questions about the appropriate targets in public trust lawsuits.

The ELF court's analysis on this question is very brief; the court identifies precedent holding that counties are subdivisions of the state in a scant paragraph,⁵ without considering the broader implications.⁶ Professor Harder's cogent analysis of the case starts to unpack the implications of this holding, considering whether such an approach could or should extend to other state subdivisions, like irrigation districts, city water departments, public housing authorities, or groundwater sustainability agencies.⁷ Professor Harder surveys the pros and cons of such an approach. On the "con" side, she highlights several concerns: whether local entities will adequately consider statewide (rather than local) public interest in public trust resources; whether local entities are likely to have institutional competence and resources to make complex trust decisions; and whether such an approach might lead to conflicting "multiple levels of public trust determinations."⁸ To that list, I would add the risk of self-dealing by entities who are both subdivisions of the state and public trust resource users. If FPL Group literally means what it says about appropriate targets for public trust lawsuits, these questions take on added urgency.

This article reconsiders FPL Group in light of ELF and attempts to reconcile FPL Group with the long line of cases addressing public trust lawsuits in California.

II. THE ROLE OF PRIVATE PUBLIC TRUST SUITS

Under the public trust doctrine, "certain natural resources are held by the government in a special status - in 'trust' - for current and future generations."⁹ This special status largely prevents the government from alienating these resources and limits the government's ability to permit their injury or destruction, instead placing an affirmative and ongoing duty on the government to protect these resources for the benefit of the public.¹⁰ Under California law, this trust obligation extends to tidelands, tidally influenced waters, inland navigable waters, tributaries to navigable or tidally-influenced waters, and even to groundwater that acts as a tributary to navigable or tidally-influenced waters.¹¹ The California public trust protects diverse values associated with these resources, ranging from the traditional public trust interests of commerce, navigation, and fishing, to broader values of environmental protection, habitat preservation, scientific study, and ecosystem services.¹² The doctrine plays a key role in protecting these values by giving private parties a cause of action to challenge decision makers and other parties who act in ways that fail to adequately protect the public's interests in trust resources.

Beyond this well-recognized role, the public trust doctrine plays an underappreciated role in creating standing for private parties to enforce state statutes. The approach is straightforward: private citizens have standing to enforce the public trust;¹³ the California Fish and Game Code (among other codes) is a legislative embodiment of the public trust;¹⁴ so private parties have standing to enforce code sections. California courts have embraced this approach with Section 5937 of the Fish and Game Code, which requires damn owners to release enough water to keep fish down stream in good condition.¹⁵

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These code sections become the state legislature's expression of the public trust on a particular issue. This expression by the legislature removes the court from much of its traditional, if uncomfortable, role balancing public trust interests against competing priorities, and requires the court to protect the trust as dictated by the statute.¹⁶ The courts cannot entirely abdicate this role; if the state legislature were inadequately protective of the public trust, the courts would likely have a role in reining it in.¹⁷ The codes provide a floor, not a ceiling, for public trust obligations. Conceptually, this is akin to negligence per se, where negligence can be shown merely by the defendant's violation of a law,¹⁸ or nuisance per se, where a state legislature determines what conditions constitute a nuisance and a plaintiff need only show that those conditions exist.¹⁹ These statutes create a per se public trust violation—proving a violation of the statute proves a violation of the public trust—which can be corrected through suit by any party that could otherwise invoke public trust standing.

Recognition of private standing to enforce California Fish and Game Code Section 5937 invigorated a series of successful lawsuits and administrative actions.²⁰ Although the law had been on the books since 1915, California for the most part failed—or actively refused—to enforce the statute until private litigation forced the state's hand. The first decision applied the statute to fish populations near Mono Lake, ultimately resulting in restoration of flows to four streams in an amount sufficient to support the "pre-diversion carrying capacity" of the streams.²¹ A second decision applied to the statute to action by the U.S. Bureau of Reclamation, ultimately resulting in re-watering sixty miles of dry riverbed, the largest river restoration effort yet attempted.²² Other private suits followed,²³ and subsequently the California State Water Resource Control Board ("Water Board") began enforcing the statute for the benefit of fish.²⁴

These cases illustrate how private standing to enforce Section 5937 revolutionized the way flows are managed downstream of dams, and thus significantly improved conditions for native fish.²⁵ They are also indicative of the role that private enforcement of the public trust can play. Allowing citizens suits to enforce state environmental statutes is not unusual; at least seven states explicitly allow citizens to sue to enforce any state environmental law, and eighteen states allow some form of enforcement of state law by private parties against other private parties.²⁶ The practice of allowing private enforcement of environmental laws dates back at least 600 years.²⁷

Although private enforcement of Section 5937 represents a success story, there are many other examples where the state has failed to enforce environmental codes that could benefit from private enforcement. Key examples include fish passage over dams,²⁸ removal of barriers to fish migration,²⁹ minimum instream flows,³⁰ lake or streambed alteration permit requirements,³¹ and the state Wild and Scenic Rivers Act.³² Several factors suggest a trend toward increased private enforcement of these laws.

First, these statutes apply broadly, to state, private, and some federal actors, but they remain un- or under-enforced by the state and underutilized by private litigants looking to improve river conditions for fish. Even in California, a state that prides itself on environmental protection, many environmental problems result from an enforcement vacuum. As other commentators have noted, the federal government has deprioritized enforcement of environmental laws,³³ and much of the enforcement burden has fallen to states and private parties.³⁴ California's enforcement efforts lag in many of these areas. Private enforcement of state law will play likely an increasingly important role in protecting wildlife.³⁵

Second, a couple of takings opinions originating in the U.S. Court of Federal Claims also suggest an increasing role for state litigation.³⁶ In the first case, Tulare Lake Basin Water Storage Dist. v. United States, the federal government attempted to raise the public trust doctrine as a defense to a federal Endangered Species Act takings claim brought by a water user, arguing that the public trust constituted a background principle of state law under Lucas.³⁷ Recall that, in Lucas, the U.S. Supreme Court determined that even a government action taking all value from property is not an unconstitutional taking if the government action merely enforces limitations that already "inhere in the title itself, in the restrictions that background principles of the State's law of property and nuisance already place upon land ownership."³⁸ Laws or regulations that bring background principles into the explicit foreground do not constitute a taking.³⁹

In Tulare Lake, the federal government argued that if it could show that the restrictions enforced under the Endangered Species Act were the same as those required under the...