The public trust doctrine, private water allocation, and Mono Lake: the historic saga of National Audubon Society v. Superior Court.

• Author: Ryan, Erin
• Position: I. Introduction through III. The Early History of the Los Angeles Aqueduct, p. 561-602 - Developments in the Public Trust

1. INTRODUCTION II. THE LEGAL BACKDROP: THE PUBLIC TRUST AND PRIOR APPROPRIATIONS A. The Public Trust Doctrine 1. The Common Law Public Trust: Illinois Central 2. Constitutionalization of the Public Trust: Robinson Township 3. Federalization of the Public Trust? B. The Prior Appropriations Doctrine III. THE EARLY HISTORY OF THE LOS ANGELES AQUEDUCT A. Water as Wet Gold in Los Angeles B. The Early 1900s: Tapping the Owens River Valley 1. A Self-Powering Design. 2. Prospecting in the San Fernando Valley 3. The Miracle of Modern Engineering 4. Acquiring the Owens Valley Water Rights 5. The Local Consequences of Withdrawals 6. The St. Francis Dam C. The 1940s: The Mono Basin Extension 1. The Mono Lake Ecosystem 2. Cultural History and the Modern Economy 3. Acquiring the Mono Basin Water Rights 4. 1970: The Second Barrel. 5. The Coalition of Resistance. IV. THE MONO LAKE LITIGATION A. The Audubon Society (Mono Lake) Case 1. The Parties 2. Settlement Negotiations 3. The California Supreme Court Decision 4. Legal Innovations a. Application to Environmental Values b. Application to Non-Navigable Tributaries c. Application over Time B. The Aftermath of the Court's Decision 1. The California Trout Litigation 2. Implementation by the Water Board: Decision 1631 3. Los Angeles Turns a New Page 4. Public Trust and Distrust: The Critiques a. The Property Rights Critique b. The Environmental Critique c. The Legal Process Critique C. Future Doctrinal Developments 1. Application to Oil and Gas Extraction 2. Potential Extension to Groundwater Resources 3. The Atmospheric Trust Project V. CONCLUSION A. Who Is the Public Trust Doctrine's "Public"? B. What Interests Does the Public Trust Doctrine Protect? C. Does the Public Trust Doctrine Create Substantive or Procedural Obligations? D. How Does the Public Trust Doctrine Intersect with the Separation of Powers? The visitors collect at the parking lot, breathlessly absorbing the magnificent escarpment of the Yosemite-Inyo Sierra before them, admiring the defiant cones of the Mono Crater volcanoes behind them, and settling their gazes over the crystalline edges of the body of water between, a vast inland sea twice the size of San Francisco--the mythical Mono Lake of newspaper headline and bumper-sticker fame. As they gradually descend the volcanic ash trail a few hundred yards out to shore, the ranger explains that the parking lot had been submerged twice their standing height in lakewater only a few decades ago, before the lake's tributaries were first diverted into the Los Angeles Aqueduct for the 350-mile journey south to the City.... And then, just a few yards from the foaming water's edge, the ranger stops them and explains that thanks to important legal decisions between 1983 and 1994, the water level is now rising again--the salinity falling, the birds returning, the shrimp safe from extinction, and the people breathing clean air again--all because of an ancient article of common law, the public trust doctrine, according to which the California Supreme Court finally decided that to allow the death of Mono Lake for the benefit of one city [c]ould violate the State's duty to protect it as an ecological resource belonging to all. Parents' eyes grow as wide as their children's in sudden wonder of the power of ideas, and in awe of the devastation of near loss and the grace of last-minute salvation. And as they stand in the midst of such unparalleled natural splendor, rejoicing in a happy ending so rare in like stories of environmental crisis, the visitors experience ... genuine gratitude for [law]. (1) I. INTRODUCTION

   In this Article, based on an interactive lecture I have given countless times, (2) have the great pleasure of sharing the epic tale of the fall and rise of Mono Lake--the strange and beautiful Dead Sea of California--which fostered some of the most important environmental law developments of the last century, (3) and which has become a platform for some of the most potentially important developments in the new century. (4) The Mono Lake saga is one of my very favorite stories in the world, and one that I have enjoyed sharing all over the world in the years since I left the Mono Basin for academia. It includes the backstory and the legacy of the California Supreme Court's famous decision in National Audubon Society v Superior Court (Mono Lake), (5) which began a quiet legal revolution in public trust ideals that has redounded to other states and even nations as far distant as India. (6)

   The Mono Lake dispute pitted advocates for the Mono Basin ecosystem and its local community against proponents of the continued export of Mono Basin water to millions of thirsty Californians hundreds of miles to the south. (7) The controversy itself spanned decades, but the story leading up to the litigation stretches back more than a hundred years, adding depth and dimension to the tale that is easily missed on a casual reading of the Audubon Society decision itself. It is a case study on the challenges of, and possibilities for, balancing legitimate needs for public infrastructure and economic development with competing environmental values, all within systems of law that are still evolving to manage these conflicts. And at this particular moment in time--commemorating the hundredth anniversary of the Los Angeles Aqueduct that would threaten the lake, and the twentieth anniversary of the State Water Board's ultimate decision to save it--the Mono Lake story is especially worth revisiting. (8)

   It is also a story that is very dear to me personally, because I came to it mostly through my own experiences living and working at Mono Lake as a grunt-level ranger with the U.S. Forest Service. Before later becoming a lawyer and then law professor, I spent a few years working on the Mono Lake District of the Inyo National Forest, just east of Yosemite National Park. (9) Indeed, my decision to leave the Mono Basin for law, though wrenching, was the direct result of my experiences there bearing witness to the ability of ordinary people to wield the power of ideas to resolve critical social and environmental crises through legal process. Especially in the aftermath and implementation of the Mono Lake decision, I was inspired by efforts of citizens, lawyers, scientists, and governments working together to make progress in the best possible way, even when no perfect way was available. (10)

   For that reason, this is an Article that I have been wanting to write for the better part of the last twenty years. It takes a somewhat unconventional voice at times, alternating between the academic analysis of a law professor and the personal narrative of a local storyteller. But throughout, my objective is to share a classic story of American environmental law that continues to awe and inspire advocates worldwide. In the telling, I'll explore the public trust doctrine, its relationship with competing areas of law, especially the law of private water allocation, and its potential scope and limits in application to other public commons that are also subject to private appropriation.

   Part II begins by introducing the main cast of characters in the Mono Lake story, starting with the public trust and prior appropriations doctrines around which the legal controversy unfolds. Part III introduces the three places at the center of the drama--Los Angeles, the Owens Valley, and the Mono Lake Basin--in recounting the history of the Californian water struggles leading up to the Mono Lake case. Part IV discusses the Mono Lake litigation itself and its aftermath, reviewing the arguments that made it to the California Supreme Court, the court's disposition of them, and the subsequent decision by the California Water Resources Control Board implementing the court's directive. (11) After analyzing the most important doctrinal developments in the judicial opinion, it reviews the scholarly criticisms that have followed alongside the praise, as well as important new developments in public trust law.

   I'll conclude in Part V with parting reflections about some of the open questions that the Mono Lake story leaves us to ponder. Like all public trust tales, it prompts us to consider exactly whose interests count when we talk about the public interest protected by the doctrine, and in what resources. How does the "public interest" differ from aggregated private interests? Which interests should we take into account when balancing the economic, cultural, and environmental considerations in public trust conflicts, and how should they be balanced? Indeed, we might ask what the Mono Lake story tells us about the ultimate content of the public trust doctrine itself. Which resources are subject to its protection? Does it create substantive obligations to protect trust values, or mere procedural obligations to consider them? Finally, what are the responsibilities of the operative legal institutions--including the legislature, the courts, administrative agencies, and individual citizens--in making these difficult calls? I'll suggest that the answers to these questions are what make the public trust doctrine so fascinating, so powerful, and so critical as we continue to confront the inevitable crises between competing natural resource values.

2. THE LEGAL BACKDROP: THE PUBLIC TRUST AND PRIOR APPROPRIATIONS

   Before delving into the full narrative, we should introduce the cast of characters. And one unusual aspect of this story is that two of the most important characters in that cast are legal doctrines: the common law public trust doctrine, and the prior appropriations doctrine of private water allocation. This Part introduces the public trust doctrine as a feature of state common law and constitutional law, and perhaps as an underlying feature of sovereign authority more generally. It then reviews the broad mechanics of private water law, focusing on the western doctrines of prior appropriations and beneficial use.

   1. The Public...