RECONCILING THE PUBLIC TRUST AND APPROPRIATIVE WATER RIGHTS IN CALIFORNIA: National Audubon Society v. Superior Court, 33 Cal. 3d 419, 658 P.2d 709, 189 Cal. Rptr. 346 (1983), modified, 33 Cal. 3d 726a, 658 P.2d 709, 189 Cal. Rptr. 346 (1983).
The right to use and divert water in California has traditionally been governed by a dual system of water rights: the riparian system and the appropriative system.1 The common law riparian system of water allocation provides that an owner of land contiguous to a watercourse has the right to use that water on the land.2 The statutory appropriative system gives the right to use and divert water to the first person who does so for reasonable and beneficial purposes.3 The latter was developed during the California gold rush when water was needed for use on land not adjacent to water sources. Because of the great agricultural and domestic demands for water, the appropriative system has dominated California water rights and is now regulated by a statutorily created administrative board: the California Water Resources Control Board (Water Board).
The public trust doctrine, in contrast, has applied only sporadically to California water rights. The doctrine, developed from Roman and English laws, has traditionally protected the public’s right to use navigable waters for certain activities. This doctrine holds that the public’s right to water is held in trust by the state and is superior to all private claims of right.4;
The California water rights system and the common law public trust doctrine developed independently and mete for the first time in a recent California Supreme Court decision, National Audubon Society v. Superior Court.5 The Court balanced increasing demands for water against increasing environmental concerns and held that neither doctrine could stand alone, and that an integration of the two was required to make California water law more responsible to the state’s diverse needs.6
The court’s decision has been crucial in the sixty-year old war raging over the waters of Mono Lake, the second largest lake in California, located at the base of the Sierra Nevadas.7; Mono Lake is naturally saline and, while it supports no fish, brine shrimp and brine flies thrive in its habitat. Migratory birds feed on the shrimp and flies and ninety percent of California’s gull population breed at the lake.8 In 1940, the predecessor to the California State Water Resources Board9 granted the City of Los Angeles Department of Water and Power (DWP) a permit to divert the freshwater streams that filled Mono Lake.10 In 1941, the city completed its aqueduct which, with a 1970 addition, currently diverts almost the entire source of freshwater from the lake.11
As a result of these diversions, the level of the lake has fallen forty-six feet. The resulting decrease in volume has increased the salinity level of the remaining water to three times that of the ocean. The increased salinity may destroy the brine shrimp and flies which inhabit the lake, thus cutting off a food supply for migratory birds.12
In addition, the reduced lake level has turned one of the lake’s islands into a peninsula, thus allowing predators to invade gull nesting areas.13
Environmental groups, led by the National Audubon Society, filed suit in Mono County Superior Court on May 21, 1979, against the State of California and DWP to enjoin the diversions.14 DWP moved to change venue, and the case was removed to Alpine County Superior Court.15 In January, 1980, the DWP named the federal government as a cross-complainant, and the government removed the case to the United States District Court for Eastern California.16
The DWP subsequently filed a motion to stay the proceedings under the federal abstention doctrine, asserting that the case involved fundamental principles of state law which had never been addressed by the state courts.17 The federal court judge, without relinquishing jurisdiction over the suit, declined to rule on the case until the state courts had determined: (1) the relationship between the public trust doctrine and the California water rights system and (2) whether plaintiffs were required to exhaust their administrative remedies before the water board.18
Subsequently, plaintiffs filed a new complaint in the Superior Court of Alpine County, where the court entered summary judgment against them.19 The Superior Court held that the public trust doctrine provided no grounds to attack DWP’s board-granted water rights. The court further ruled that the California water rights system was comprehensive, and that any attempt to challenge the city’s water rights had to be made first to the Water Board.20
Plaintiffs then petitioned for a writ of mandamus with the California Supreme Court. The court issued the alternative writ because of the importance of the issues presented.21 Justice Broussard, writing for the majority in this five-one opinion,22 held that plaintiffs could rely on the public trust doctrine in challenging the allocations of the waters of Mono Lake. Concluding that the California water rights system could not operate independently from the public trust doctrine, the court held that the state must take the public trust into account when allocating its water resources. The court emphasized that this duty is continuous one and includes the reconsideration of past allocation decisions, even if environmental concerns were considered in the initial hearing process.23
In acknowledging the relationship between the public trust and the California water rights system, the court rejected plaintiff’s argument that the public trust supercedes statutory water rights, and that state-granted water rights which impair public trust uses are invalid.24Similarly, the court rejected defendant’s contention that the water rights systems has preempted the common law public trust doctrine, and that water rights granted under that system may not be reconsidered.25 Justice Broussard explained that favoring one doctrine to the exclusion of the other would create an unbalanced structure, one which would treat appropriations essential to the economic development of the state as violative of the public trust, or alternatively preclude any consideration of the public’s environmental concerns.26
The court first determined that Mono Lake is protected by the public trust doctrine by examining the purpose and scope of the doctrine. The court recognized that the original purpose of the doctrine was to protect the public’s use of waterways for navigation, commerce and fishing.27 However, the court acknowledged that the uses protected by the public trust have been expanded as the public’s uses of California’s waterways have changed. The court held that the public’s uses of Mono Lake are protected under the expanded view of public trust uses set forth in Marks v. Whitney28. In Marks, the California Supreme Court concluded that changing public need demanded a broader definition of the uses protected by the public trust.29 Building upon Marks, the court in National Audubon Society emphasized that the trust protected recreational uses of navigable waterways, and that the preservation of waterways in their present environmental state is one of the most important uses protected by the trust.
The court acknowledged that because the lakes, beds, and shores of Mono Lake are navigable waterways, they are protected by the traditional scope of the common law public trust doctrine.30 The court then considered whether the nonnavigable tributaries of Mono Lake diverted by Los Angeles are also within the scope of the doctrine. The court relied on prior California decisions31 which prohibited the use of nonnavigable tributaries in ways that affect the public trust uses of navigable waterways, and held that:
Therefore, the court concluded that the public trust also “protects navigable waters from harm caused by diversion of nonnavigable tributaries.”33
The court then considered the state’s duties and powers over lands protected by the public trust. Following the precedent of Illinois Central Railroad Company v. Illinois,34 the court in National Audubon Society concluded that the state has a continuing duty to protect the public interest in its navigable waters. In Illinois, which the California Supreme Court recognized as the primary authority on this issue,35 the United States Supreme Court affirmed the right of the Illinois Legislature to revoke its previous grant of one thousand acres of submerged lands to a private party. The United States Supreme Court held that the state could not abdicate its power over lands held in trust for the public, just as it cannot abdicate its police powers in the administration of government.36 In National Audubon Society, the California Supreme Court extended the state’s public trust duty to the distribution of appropriative water rights, and concluded that the state’s duty necessarily includes the ability to re-allocate or revoke rights previously granted under the water rights system.37 Thus, the court rejected defendant’s argument that DWP had a vested interest in the state-granted water rights which, once granted, could not be disturbed. The California Supreme Court stressed that the public trust doctrine bars the DWP from asserting a vested right to the waters of Mono Lake when such diversions harm the interests protected by the public trust.38
Also rejected were the defendant’s contentions that since the state has the right to choose between competing trust uses,39 it also has the right to prefer consumptive uses over the instream uses.40 The court clarified that the “trust uses” protected are the public’s actual uses of the navigable waterway at issue.41 Thus, in the Mono Lake litigation, the trust uses protected are the public’s recreational uses and environmental enjoyment of the Mono Lake environment; DWP could not claim to be promoting public trust uses by providing water to Los Angeles for domestic use. In limiting the scope of trust uses in this way, the court made it clear that the state’s duty to protect the public trust cannot be satisfied merely by allowing the use of public property for public purposes;42 rather, the state must protect the public’s right to stable streams, lakes and tidelands.43
Finally, the court addressed the second question raised by the federal district court: did plaintiffs have to exhaust all administrative remedies? While acknowledging that plaintiffs possessed a remedy before the Water Board,44 the court concluded that plaintiffs were not required to pursue this remedy prior to filing suit. Noting that the legislature had provided a statutory method for “reconciling board expertise and judicial precedent,”45 the court upheld its prior decision46 granting the courts concurrent jurisdiction with the water board for the determination of water rights issues.47
Justice Richardson dissented only from that part of the majority’s opinion which granted concurrent jurisdiction to the Water Board and the California courts.48 Justice Richardson would have granted exclusive jurisdiction to the Water Board in this instance because the complex issues required the high level of expertise which only the Water Board possessed.49
National Audubon Society is a novel case in its extension of the public trust doctrine. Never before has the public trust doctrine been used to prevent diversions of water that interfere with instream public trust uses. In the past state water rights laws have provided the exclusive basis for allocation of water rights. Traditionally, it was assumed that once granted, these rights were virtually unadjustable and irrevocable, regardless of their environmental consequences. The public trust has been expanding in recent years to include the protection of “in-place” water uses such as recreation, wildlife preservation and ecological quality.50 Yet, until National Audubon Society, it was uncertain whether the doctrine was strong enough to provide an independent challenge to diversionary water uses found reasonable by the state’s Water Board. As recognized by the California Supreme Court in National Audubon Society,since the expansion of the public trust’s protection asserted in Marks, the “two systems of legal thought have been on a collision course.”51
The Supreme Court recognized that the two legal doctrines had developed independently. The public trust was advanced from common law to protect the interests of the general public in its use of navigable waters against interference by the private sector.52 In contrast, the water rights system has promoted private consumptive use, with its major criteria that water use be “reasonable and beneficial.”53 By holding that the public trust must be considered when granting appropriate water rights, the California Supreme Court clearly dictated that the California water rights system would now depend upon both legal doctrines. Thus, regardless of their reasonableness, water rights are still subject to challenge under public trust principles.
The court was concerned that no decision-making body had ever balanced the benefit of Los Angeles in its use of the diverted water against the environmental harm inflicted upon Mono Lake.54 The court indicated that DWP had acquired its diversionary rights from a water board which erroneously believed it lacked the power and the duty to protect the Mono Lake environment.55 As clarification, the court stated that the state not only has the duty to take the public trust into account when allocating water rights, but also has the power to reconsider decisions which may be incorrect in light of changing facts or public needs. Consequently, a party cannot claim a vested right to water which precludes recognition of the public trust.56
National Audubon Society suggests that water rights related to navigable waters in California, previously thought immutable, can now be challenged by persons claiming violation of the public trust. But, while the California Supreme Court provided environmentalists with a tool to challenge board-granted water rights, the court did not necessarily give environmentalists the strength to defeat those existing rights. While the court emphasized the state’s duty to consider public trust values in its water resources planning and to protect the public trust whenever feasible,57 the justices cushioned the potentially disrupting impact of this duty on California water rights by reaffirming the state’s power to grant diversionary water rights even if the diversion “does not promote, and may unavoidably harm, the trust uses at the source stream.”58 Thus, while the court ensured that the public trust would be considered, it clarified that diversions which harm the environment may be valid despite the public trust in times of water scarcity.59 To support its conclusion, the court noted that since industry, agriculture, and cities have developed in reliance upon appropriated water, “it would be disingenuous to hold that such appropriations are and have always been improper to the extent that they harm public trust uses.”60 Consequently, the stability of present California water rights is uncertain.61
On remand, the federal district court will have to reach a compromise between the competing demands of Los Angeles and Mono Lake for water. The California Supreme Court in National Audubon Society suggested that those interests could be balanced, perhaps by reducing the amount of water allocated to Los Angeles. Yet, while the court may have indicated a desirable compromise, it did not set a clear judicial precedent for future court decisions. By attempting to reconcile the public trust with appropriative water rights, the court protected neither interest at the expense of the other. Lower courts in the future faced with judicial review of appropriative water rights must balance developmental needs against environmental interests. Yet, while it is clear that the trial judge must ensure that the pubic trust is considered, he/she is given no guidance as to how much weight to give public trust values over reasonable and beneficial uses of water.62 With no a priori weight given to public trust protections, a balancing test may realistically prove nothing more than a procedural check that the Water Board has made a good faith consideration of the effects of the appropriative water right on the public trust use being protected.
Nevertheless, the California Supreme Court in National Audubon Society made a fundamental change in the state’s water law by ruling that the public trust may be used to challenge licenses and permits granted under the state’s water rights system. Its mandate to the water board is clear: a determination of the reasonableness of water use must include a consideration of its interference with public trust uses.63 Thus, California has ensured that no matter how the statutory water rights system is altered, the public trust will continue to be an independent source of protection for the public’s environmental concerns.
Jeanne Zolezzi
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1 See Comment, The Public Trust Doctrine and California Water Law: National Audubon Society v. Department of Water and Power, 33 Hastings L.J. 653 (1982).
2Id.
3All water rights in California are subject to “reasonable and beneficial” use requirements. Thus, riparian owners must put water to reasonable or beneficial use before they can use it to the exclusion of appropriators. This additional requirement that the state’s water resources be fully and beneficially used promotes the development and use of water resources. CAL. CONST. art. X, § 2 (formerly CAL CONST. art. XIV § 3) provides in part:
[B]ecause of the conditions prevailing in this State the general welfare requires that the water resources of the State be put to beneficial use to the fullest extent of which they are capable, and that the waste or unreasonable use or unreasonable method of use of water be prevented, and that the conservation of such waters is to be exercised with a view to the reasonable and beneficial use thereof in the interest of the people and for the public welfare. The right to water or to the use or flow of water in or from any natural stream or water course in this State…shall be limited to such water as shall be reasonably required for the beneficial use to be served, and such right…shall not extend to the waste or unreasonable use or unreasonable method of use or unreasonable method of diversion of water. Riparian rights in a stream or water course attach to, but to no more than so much of the flow thereof as may be required or used consistently with this section, for the purposes for which such lands are, or may be made adaptable, in view of such reasonable and beneficial uses; provided, however, that nothing herein contained shall be construed as depriving any riparian owner of the reasonable use of water of the stream to which his land is riparian under reasonable methods of diversion and use, or of depriving any appropriator of water to which he is lawfully entitled.
4 See infra text accompanying notes 27-37
5 33 Cal. 3d 419, 658 P.2d. 709, 189 Cal. Rptr. 346 (1983), modified, 33 Cal. 3d 726a, 658 P.2d 709, 189 Cal. Rptr. 346 (1983).
6 Id.
7 Id. at 424, 658 P.2d at 711, 198 Cal. Rptr. at 348.
8 Id.
9 The Division of Water Resources was the predecessor to the California State Water Resources Control Board.
10 33 Cal. 3d at 424, 658 P.2d at 711, 189 Cal. Rptr. at 348.
11 Id.
12 Id. at 430, 658 P.2d at 715, 189 Cal. Rptr. at 352.
13 Id. See general Hoff, The legal Battle Over Mono Lake, Cal. Law., Jan. 1982, at 28.
14 33 Cal. 3d at 431, 658 P.2d at 716, 189 Cal. Rptr. at 353.
15 Id.
16 Id.
17 Id.
18 Id. at 431-32, 658 P.2d at 717, 189 Cal. Rptr. at 353-54.
19 Id. at 432-33, 658 P.2d at 717-18, 189 Cal. Rptr. at 354.
20 Id. at 433, 658 P.2d at 718, 189 Cal. Rptr. at 354-55.
21 Id. at 433, 658 P.2d at 718, 189 Cal. Rptr. at 354-55.
22 Chief Justice Bird and Justices Mosk, Kaus, and Reynoso concurred in Justice Broussard’s opinion; a separate concurring opinion was written by Justice Kaus. A separate concurring and dissenting opinion was written by Justice Richardson.
23 33 Cal. 3d at 445-47, 658 P.2d at 727-29, 189 Cal. Rptr. at 363-65.
24 Id. at 445, 658 P.2d at 727, 189 Cal. Rptr. at 363-64.
25 Id.
26 Id.
27 Id. at 434, 658 P.2d at 719, 189 Cal. Rptr. at 356.
28 6 Cal. 3d 251, 491 P.2d 374, 98 Cal. Rptr. 790 (1971).
29 The court said: “[t]he public uses to which tidelands are subject are sufficiently flexible to encompass changing public needs. In administering the trust the state is not burdened with an outmoded classification favoring one mode of utilization over another.” 33 Cal. 3d at 434, 658 P.2d at 719, 189 Cal. Rptr. At 356 (quoting Marks v. Whitney, 6 Cal. 3d at 259, 491 P.2d at 380, 98 Cal. Rptr. At 796).
30 33 Cal. 3d at 435, 658 P.2d at 720, 189 Cal. Rptr. at 356.
31 People v. Gold Run D. & M. Co., 66 Cal. 138, 4 P. 1152 (1884) (defendants were enjoined from discharging debris into a nonnavigable stream because it resulted in the debris being deposited into and impeding the navigability of a navigable stream). People v. Russ, 132 Cal. 102, 64 P. 111 (1901) (holding that if a tributary to a navigable stream is necessary to its navigability, the owner of such land upon which the tributary is situated has no right to dam it in order to reclaim his land).
32 33 Cal. 3d at 436-37, 658 P.2d at 720, 189 Cal. Rptr. at 357 (quoting Johnson, Public Trust Protection for Stream Flows and Lake Levels, 14 U.C.D. L. Rev. 233, 257-58 (1980) (emphasis in original)).
33 Id. at 437, 658 P.2d at 721, 189 Cal. Rptr. at 357.
34 146 U.S. 387 (1892).
35 See City of Berkeley v. Superior Court, 26 Cal. 3d 515, 606 P.2d 362, 162 Cal. Rptr. 327, cert. Denied, 101 S. Ct. 119 (1980).
36 146 U.S. at 453.
37 33 Cal. 3d at 447, 658 P.2d at 728, 189 Cal. Rptr. at 365.
38 Id. at 426, 658 P.2d at 712, 189 Cal. Rptr. at 349.
39 See, e.g., Colberg, Inc. v. California ex. Rel. Dept. of Public Works, 67 Cal. 2d 408, 432 P.2d 3, 62 Cal. Rptr. 401 (1967); County of Orange v. Heim, 30 Cal. App. 3d 694, 106 Cal. Rptr. 825 (1973).
40 33 Cal. 3d at 440, 658 P.2d at 728, 189 Cal. Rptr. at 360, modified, 33 Cal. 3d at 726b, 658 P2d at 723, 189 Cal. Rptr. 360.
41 Id.
42 Id. at 441, 658 P.2d at 724, 189 Cal. Rptr. at 360.
43 Id.
44 We therefore construe Water Code section 2501 to permit a person claiming that a use of water is harmful to interests protected by the public trust to seek a board determination of the allocation of water in a stream system, a determination which may include reconsideration of rights previously granted in that system. Under this interpretation of section 25401, plaintiffs have a remedy before the Water Board.
33 Cal. 3d at 449, 658 P.2d at 730, 189 Cal. Rptr. at 366.
45 The court said:
Water Code section 2000 provides that “[i]n any suit brought in any court of competent jurisdiction in this State for determination of rights to water, the court may order a reference to the board, as referee, of any or all issues involved in the suit.” Section 2001 provides alternatively “the court may refer the suit to the board for investigation of and report upon any or all of the physical facts involved.” Finally, recognizing that some water cases will be filed in or transferred to federal courts, section 2075 provides that “[i]n case suit is brought in a federal court for determination of the rights to water within, or partially within, this State, the board may accept a reference of such suit as master or referee for the court.”
Id. At 451, 658 P.2d at 731, 189 Cal. Rptr. At 368 (quoting Cal. Water Code §§ 2000, 2001, 2075 (West 1971)).
46 Environmental Defense Fund Inc., v. East Bay Municipal Utility Dist., 26 Cal. 3d 183, 605 P.2d 1, 161 Cal. Rptr. 466 (1980).
47 The court said: “[a]part from overriding consideration such as are presented by health and safety dangers…we are satisfied that the courts have concurrent jurisdiction with…administrative agencies….” 33 Cal. 3d at 450, 658 P.2d at 731, 189 Cal. Rptr. at 368 (quoting Environmental Defense Fund Inc., 26 Cal. 3d at 200, 605 P.2d at 10, 161 Cal. Rptr. at 475).
48 33 Cal. 3d at 453, 658 P.2d at 733, 189 Cal. Rptr. at 370 (Richardson, J. dissenting).
49 Id. at 454, 658 P.2d at 735, 189 Cal. Rptr. at 372.
50 See supra notes 28, 29.
51 33 Cal. 3d at 425, 658 P.2d at 712, 189 Cal. Rptr. at 349.
52 People v. Truckee Lumber Co., 116 Cal. 397, 48 P.374 (1897) (depositing debris in river that obstructs public instream use violates public rights); People v. Gold Run Ditch & Mining Co., 66 Cal. 138, 4 P. 1152 (1884) (defendant’s deposits of mining debris were unauthorized impairment of public right of navigation); People ex rel. Baker v. Mack, 19 Cal. App. 3d 1040, 97 Cal. Rptr. 448 (1971) (fencing off a stream from the public inconsistent with public trust protection).
53 See supra note 3.
54 33 Cal. 3d at 447, 658 P.2d at 728, 189 Cal. Rptr. at 365.
55 Id.
56 Id. at 440, 658 P.2d 723, 189 Cal. Rptr. at 360, modified, 33 Cal. 3d at 726a, 658 P.2d at 723, 189 Cal. Rptr. 360.
57 Id. at 446, 658 P.2d at 728, 189 Cal. Rptr. at 364.
58 Id. at 446, 658 P.2d at 727, 189 Cal. Rptr. at 364.
59 Id.
60 Id.
61 A representative of the California Water Resources Control Board has stated that, at the present time, the board has no intention of re-evaluating presently appropriated water rights. Thus, any re-evaluation will have to come from challenges to those present appropriative rights from the public. Address by Roger Johnson, Santa Clara University Water Law Class (Sept. 13, 1983).
62 A request for rehearing made by the State of California was denied by the California Supreme Court. The state argued that the court’s opinion does not sufficiently explain the relationship between the two doctrines, nor does it give adequate guidance to the federal district court. Fulton, State Asks Justices to Clarify Ruling in Mono Lake Dispute: Water Rights Dispute, L.A. Daily J., March 7, 1983, at 1, col. 2.
63 See Comment, The Public Trust Doctrine and California Water Law: National Audubon Society v. Department of Water and Power, 33 Hastings L.J. 653 (1982).
