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

Author:Ryan, Erin
Position:IV. The Mono Lake Litigation through V. Conclusion, with footnotes, p. 603-640 - Developments in the Public Trust

    The emerging coalition marshalled its resources to forestall further environmental devastation in the Mono Basin, culminating in the California Supreme Court's epic Mono Lake decision. This Part reviews the path to litigation, the arguments that reached the high court, the justices' landmark ruling, and the aftermath of its decision--including the Water Board's resulting plans for implementation of the court's decision and Los Angeles's embrace of a new strategy for compliance. After exploring the most important doctrinal features of the court's decision, it touches on some important scholarly criticisms of the resulting doctrine, as well as potential future public trust developments, including the Atmospheric Trust Project.

    1. The Audubon Society (Mono Lake) Case

      In 1979, the National Audubon Society and Mono Lake Committee filed a lawsuit in Mono County court, arguing that Los Angeles's diversions violated the public trust doctrine, constituted a common law nuisance, and violated portions of the California constitution protecting navigable waterways. (301) Los Angeles defended the legality of the diversions under California water law and moved for an adjudication of all water rights in the Mono Basin--effectively joining all private, state, and federal landholders in a suit that would ultimately proceed all the way to the California Supreme Court. (302)

      1. The Parties

        The parties to the resulting litigation included local residents, state landowners, environmental nongovernmental organizations (NGOs) at various levels of geographical scale, government agencies responsible for impacted land, water, wildlife, and air resources, and DWP. The Mono Lake Committee coordinated efforts on behalf of the plaintiffs from Lee Vining, where they remain a Mono Basin watchdog and advocacy group. (303) In addition to local and national chapters of the Audubon Society, they were joined by several other environmental NGOs, including Friends of the Earth, the Sierra Club Legal Defense Fund, and CalTrout. (304)

        A host of state and federal government agencies were also involved, (305) including the U.S. Forest Service (responsible for managing the Mono Basin National Forest Scenic Area), the U.S. Fish and Wildlife Service (with interests in the Mono Basin creeks and fisheries), the California Department of Fish and Game (concerned with wildlife impacts), the California Department of Parks and Recreation (responsible for the Mono Lake Tufa State Reserve), the State Lands Commission (responsible for state land resources), and the California Great Basin Unified Air Pollution Control District (charged with managing compliance with the Clean Air Act and other air quality controls). (306) And of course, DWP defended the city's exports. (307)

      2. Settlement Negotiations

        Extensive negotiations preceded the California Supreme Court's disposition of the case, in which lawmakers and others tried and failed to persuade the disputants to reach a compromise. (308) Sizeable state and federal grants were offered to help Los Angeles adopt water conservation technologies that might reduce its need for water imports, (309) but the city was loathe to give any ground on its claims for imported water. Los Angeles commanded one of the largest metropolitan areas in the country, but its continued existence hinged on access to imported water. City leaders likely worried that conceding any water in the Mono Basin might redound negatively to other claims. (310) Moreover, under the "use it or lose it" principle of appropriative water law, any sustained failure by Los Angeles to exercise those water rights could result in their legal forfeiture forever. (311)

        Meanwhile, the Interagency Task Force had determined that 6,388 feet above sea level was the minimum water level required in Mono Lake to forestall ecological collapse and prevent further degradation of air resources. (312) Although they did not insist that Mono Lake be returned to its pre-diversion level of 6,417 feet, the Mono Lake advocates refused to consider any proposal that would not protect the lake at the 6,388-foot level. (313) Indeed, Mono Lake Committee leaders once explained to me that they had been counseled by negotiation experts to open with a more extreme demand that would enable them bargaining room to concede downward during negotiations with the city. However, they rejected the conventional approach in favor of one they felt was grounded in the authority of scientific evidence. (314) "Why play games?" they explained: "We weren't going to bluff; we were just going to start with what the science said was necessary, and then stay there forever." (315)

      3. The California Supreme Court Decision

        As negotiations failed to resolve the dispute, Mono Lake continued to decline, and the case proceeded through all levels of the judicial system to the California Supreme Court. (316) In the case before the California high court, the plaintiffs made a simple claim that threatened to undermine a century's worth of seemingly settled California water law. Channeling the insights of Professor Sax and the U.C. Davis conference scholars, the plaintiffs argued that allowing the destruction of Mono Lake through continued water diversions was impermissible, notwithstanding that these diversions were pursuant to state-approved appropriations, because it violated state obligations under the public trust doctrine. (317) The importance of the public trust doctrine had been progressively recognized in several prior California Supreme Court cases, (318) and the plaintiffs argued that the state's obligations as trustee must accordingly take precedence over its previous decisions to allow Los Angeles's diversions.

        Specifically, the plaintiffs argued that the state had failed its trust obligations back in 1940, when the Water Board had first granted Los Angeles permission to divert water from the Mono Basin creeks. (319) The Water Board had granted these licenses in violation of the public trust doctrine, the plaintiffs explained, because its decision failed to account for the foreseeable harms to Mono Lake's ecologic, scenic, and recreational values. (320) At the time, the agency had openly worried about these very problems, reflecting on the earlier destruction of Owens Lake. (321) The plaintiffs contended that the Water Board had violated the state's trust obligations when it wrongly concluded that it had no alternative but to permit the exports, notwithstanding these anticipated harms. (322)

        In fact, the plaintiffs argued, the public trust doctrine both empowered and obligated the Water Board to prevent these exports. Mono Lake was held by the state in trust for the public, and no organ of the state could give away its water if that would result in the destruction of the resource. (323) The argument, in essence, was that it was no more permissible for California to give away Mono Lake's waters than it was for Illinois to give away Chicago Harbor in the famous Illinois Central case. (324) The plaintiffs also argued that Los Angeles's harmful diversions should be considered an unreasonable use. (325)

        DWP defended Los Angeles's rights to export Mono Basin water on grounds that the licenses were fully consistent with the clearly articulated California water law principles of prior appropriations and beneficial use. (326) The California constitution affirms that water should be put to beneficial use, (327) and much of this water was going to the highest recognized form of beneficial use--domestic use by the citizens of Los Angeles. (This, they would have argued, was hardly comparable to giving away the bed of Chicago Harbor.)

        DWP also pointed to the vast legal and physical infrastructure by which water is moved all over the state of California, from watersheds with more to watersheds with less. (328) This elaborate network of water transfers is formalized by the system of licenses that confer the appropriative rights on which cities like Los Angeles have long relied. (329)

        Finally, DWP argued that the well-developed body of statutory water law in California had subsumed and displaced the common law public trust doctrine. (330) After all, this is normally what happens when statutory law conflicts with the common law--as it has in vast areas of tort, contract, and criminal law. (331) Legislative pronouncements to the contrary abrogate the precedents of judge-made common law. (332) DWP also argued that the plaintiffs were not entitled to judicial relief because they had not exhausted administrative remedies. (333)

        The plaintiffs thus argued that the public trust doctrine trumps the prior appropriations doctrine, while the defendants maintained that the statutorily codified principles of prior appropriation trump the common law public trust doctrine. (334) Indeed, reviewing the two doctrines in isolation reveals a set of legal principles that seem hard to reconcile; neither so much as acknowledges the other. The court openly acknowledged that "the two systems of legal thought have been on a collision course," and that it was time to resolve the issue. (335) This, then, was the critical question of first impression that the Mono Lake case presented to the justices of the California Supreme Court: What is the relationship between the public trust doctrine and the law of appropriative water rights? When they point in opposite directions, which do we follow? Which trumps the other?

        In its ultimate decision, the high state court famously declined to choose. Instead, it affirmed that both doctrines remain bedrock principles within California law, and that neither displaces the other. (336) It is the obligation of the state, said the court, to navigate the requirements of both. (337) The state must act to protect the interests in navigable waters that are protected by the trust, but it must also have the power to enable appropriative rights in water for other public purposes, even if...

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