Public trust doctrine requires that natural resources like water be shared equitably. That means there must be diverse use of the water by the various interests that comprise the public. -- Jody Hallstrom, Modesto Bee, Nov. 25, 2016
Ms. Hallstrom's mention of the centrality of the Public Trust Doctrine is most timely, considering the recent federal water bill, which favors agribusiness over vital environmental interests.
In Roman law, the public trust doctrine was codified in the 6th-century Institutes of (Roman Emperor) Justinian: “By the law of nature these things are common to mankind –the air, running water, the sea and consequently the shores of the sea”
In the 13th century public trust doctrine was established first in the English Magna Carta, and later in that century in the Siete Partidas, a monument of medieval law composed by the direction of Alfonso X, called "The Wise," king of Castile and Leon. Las Siete Partidas influenced law in the entire Spanish Empire. Meanwhile, through the Magna Carta, the doctrine found its way into English Common Law. The two streams of law met in the Constitution of the State of California concerning the common right to navigate waterways.
The California Supreme Court Mono Lake decision in 1983 (Audubon Society v. Superior Court. 33 Cal.3d 419), invoked the public trust doctrine to prevent Los Angeles from diverting water from creeks emptying into Mono Lake.
Perhaps what confuses some about the public trust doctrine is that it underlies numerous statutes in different legal codes but is not itself a statute but is found in judge-made common law. For example, the California Supreme Court in the Mono Lake decision defined it: “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….”
Tuolumne River is sick, and only higher flows can cure it
The Stanislaus Audubon Society fully appreciates the economic value of water to our region and especially the value of our priceless farmland. However, we have found it increasingly difficult to ignore the effects when water is diverted beyond amounts sustainable for native wildlife.
Some of our longtime members remember when bald eagles gathered near the town of La Grange to feast on expired salmon during the fall salmon runs. Today, those salmon runs are gone and perhaps lost forever.
While there is plenty of controversy about the causes of disappearing salmon runs, there is agreement that 80 percent of the water from the Tuolumne River is diverted for urban and agricultural use. Imagine suffering an 80 percent loss to agriculture, or cities, or business. We are stunned that so many people have argued that 20 percent flows are enough to sustain living rivers, including salmon runs.
We’re also dismayed that so many people have decided that natural flows are wasted because “They just flow out to sea.” The San Joaquin Delta is one of the most productive ecosystems on Earth. It sustains farms, fisheries and recreational uses, and is critically important to the health of the San Francisco Bay.
Living rivers are also important to wetlands, and we have already lost over 90 percent of our wetlands to agricultural and urban development. Those who argue increased flows will mean pumping more groundwater ignore the recharge effects of increased flows and healthy wetlands on groundwater reserves.
Today’s Tuolumne is a sick river. It’s clogged with nonnative water hyacinths that thrive only in warm, slow-moving water. Sustainable flows are necessary so that native species aren’t crowded out by nonnative intruders.
Public trust doctrine requires that natural resources like water be shared equitably. That means there must be diverse use of the water by the various interests that comprise the public.
We also believe strongly our rivers must promote sustainable use. Those of us who visit foothills have been alarmed for years at the exponential expansion of almond orchards solely dependent on groundwater. The orchards have replaced rangeland that provided habitat for a wide range of native wildlife and especially for foraging raptors, including bald and golden eagles, prairie falcons and numerous hawk species.
Many of these orchards are planted next to reservoirs and rivers and pull water from those sources with deep wells and powerful pumps. Pumping groundwater also affects small lakes, ponds, streams and vernal pools that are necessary for native wildlife.
We don’t believe these almond orchards, despite their short-term boost to the Valley economy, represent sustainable use of our public resources.
Living rivers are necessary for sustainable ecosystems, and sustainable ecosystems are necessary for a sustainable economy. We ruin our rivers at the expense of our future quality of life.
Audubon members have learned from over a century of firsthand observation that our mission to protect birds and nature necessarily involves an understanding of the web of life. Rivers and fish are vitally necessary strands in that intricate web.
Jody Hallstrom of Oakdale, conservation chair of the Stanislaus Audubon Society, was the lead writer of this column; other members of the society’s board also contributed.
Felix Smith: The Doctrine of the Public Trust, Managing Natural Resources and other Assets
Dr. Felix Smith's latest essay on the history of the Doctrine of Public Trust, recent case law and the Doctrine's bearing on current and long-standing California natural resources, habitat, wildlife and fish conservation issues. -- blj
The Doctrine of the Public Trust, Managing Natural Resources and other Assets
by Felix Smith
California has many unique natural resources, ecological settings and assets under its stewardship. Protecting the sustainability of the People’s common heritage resources, associated uses, ecological values and other assets for the benefit of society is a duty and moral obligation at all levels of government. Under the Public Trust Doctrine the people are the clear beneficiaries of properties held as a public trust.
The Doctrine of the Public Trust, or as most people know it, the Public Trust Doctrine, has persisted in European, English and American law but has its roots in Roman times. The Institutes of Justinian of 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.” California has an affirmative duty – a fiduciary obligation - to protect the resources, associated uses and ecological values and other assets held in trust for the people.
The Public Trust Doctrine is a background principle of property law. As such it pre-dates this Nation’s and State's water rights, waste discharge permits, land use laws and regulations. In using and managing common heritage resources the corpus of the trust must protect. Any action should not make matters worse than they are. To help assure resource restoration and sustainability we must error on the side of caution and resource protection.
The Public Trust Doctrine speaks to one of the most essential purposes of government: protect crucial natural resource assets for the survival, welfare and benefit of society. The more unique, the more valuable, the wide spread the resource or impacts, the more irreplaceable the resource or object of the trust, the more likely courts will enforce protection provided by the Public Trust Doctrine. An action or situation that impacts a use of water, land, air, a State or National Park, a coastal area, forestland, historic sites can be considered unreasonable if it pollutes habitats, harms species; if it offends our sense of aesthetics or natural beauty; or if it interferes with the right of the public to enjoy a natural resource of state or national significance; or threatens in a harmful way to upset the ecological balance of nature, or to allow such use confers a valuable privilege which is inconsistent with public trust protection.
Under the Public Trust Doctrine the State has the implied power to do everything necessary to protect the viability of trust assets and can usually do so without becoming
derailed by the taking issue. The best guarantee of a reliable water supply is a system that provides reliable protection of public trust resources, uses and associated values.
The Doctrine of the Public Trust,
Managing Natural Resources and other Assets.
Felix E. Smith
The Doctrine of the Public Trust
Public trust protection has persisted in European, English and American law throughout history. Its roots trace back to Roman times. The Institutes of Justinian in 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”. These resources belonging to all the people are held in trust by governments (Sax - 1970, Althaus – 1978, Dunning-1989, Wood -2014).
The Doctrine of the Public Trust, passed through English common law to the colonies, is now known as the Public Trust Doctrine. All States entered the Union with the same ownership of the air, navigable waters, tidelands, shore lands, fish and wildlife resources as was owned by the original 13 States. These resources were held as a public trust for the benefit of all citizens regarding commerce, navigation, fish and the fishery. All lawful land grants by a state to individuals, cities, corporations, were made subject to the public trust and the state's fiduciary obligation to protect the trust from any use or activity that would substantially impair the trust.
Thomas Jefferson one of this Nation's founding fathers in a September 6, 1789 letter to James Madison wrote “I suppose it is self evident that the earth belongs in usufruct to the living.” This “usufruct” refers to the right to make use of and benefit from something without injuring the substance of the thing itself. Usufruct described rights and responsibilities of tenants, trustees or other parties entrusted with the use of land. Today in “usufruct” should involve resources, uses and values important to society.
Thomas Jefferson was a critic of, and had a distrust for, the concentrated power of corporations. He saw the powerful British East India Company as bad for the republic and bad for democracy. While Jefferson might not have wanted a lot of government, he wanted enough government to assert the sovereignty of citizens over corporations. Jefferson, in 1816 wrote, “I hope we shall crush in its birth the aristocracy our moneyed corporations which dare already to challenge our government and bid defiance of the laws of our country” (Nichols-2010, Wood-2014). President Abraham Lincoln was also concerned about corporations. As the Civil War was winding down, he wrote in a letter of November 21, 1864, to Col. William Elkins, “I see in the near future a crisis approaching that unnerves me and causes me to tremble for the safety of my country. As a result of the war, corporations have been enthroned and an era of corruption in high places will follow, and the money power of the country will endeavor to prolong its reign by working upon the prejudices of the people until all wealth is aggregated in a few hands and the Republic is destroyed” (Wood - 2014). Today, some people have the same concerns as corporations drive natural resource and water politics.
Professor Joseph L. Sax in his classic article “The Public Trust Doctrine in Natural Resources Law: Effective Judicial Intervention”, 68 Mich. L. Rev. 471 (1970), indicated that the Public Trust Doctrine, of all concepts known to American law, constitutes the best practical and philosophical premise and legal tool for protecting public rights and for managing public trust resources and associated assets. The Public Trust Doctrine makes the government the public guardian / trustee of common heritage resources, uses, ecological values and other assets of significant public value. This trusteeship is a property right held by the people. Trust assets should be devoted to fulfilling the purposes of the trust, i.e. in the service of the people and generations yet born (Sax -1970, Wood -2014). The Public Trust Doctrine as a resource management tool predates the State’s water rights, waste discharge permits (air, water, land), land use laws and regulations. The public trust applies to every water right allocation and prescription that impacts trust resources and may define or limit the very nature of the right to put water to a beneficial use (Sax - 1992, Klass & Huang- 2009).
Professor Sax lists three conceptual principles that justify the Public Trust Doctrine. First, “certain interests are so intrinsically important to every citizen that their free availability tends to mark the society as one of citizens rather than serfs”. Second, “certain interests are so particularly the gifts of nature's bounty that they ought to be reserved for the whole of the population”. Third, “certain uses have a peculiarly public nature that makes their adaption to private use inappropriate.” The bottom line is that no small subset of individuals, groups, or corporations should ever be allowed to control such important aspects of our society. The Public Trust is a fiduciary obligation with property interests held by the people. It is a recognized background principle of property law dating back to colonial times (Sax-1970, Lin -2012).
Professor Wood (2014) supports Professor Sax, stating that under the Public Trust Doctrine, the people hold a clear property interest in natural resources and other trust assets. They are more than just political constituents desiring a place at the negotiation table. The Public Trust Doctrine has a time frame; present and future generations. It also gives people access to the courts and therefore a voice in the management and use of lands, waters, resources and other trust assets. Enforcement of the public trust should prevent any one interest or group from dominating or monopolizing a trust resource, it use or development. (Also see Sax -1970.)
Given Professor Sax's basic context of nature, one can reasonably extend the Public Trust Doctrine to the quality of our air, surface water, ground water; to dry sand beaches and shorelands of lakes, rivers and streams, and the ocean; wildlife, fish and fisheries and support ecosystems; marshlands, wetlands, soils, minerals, energy sources, forests, grasslands, park lands, the public domain, other public lands or places of outstanding beauty, cultural, and economic value.
Sax (1970) and Wood (2014) describe several factors of the Public Trust Doctrine that are important expectations of today's society. They are:
<!--[if !supportLists]-->· <!--[endif]-->Public need. Public need is the crux of the Illinois Central RR v. State of Illinois (146 U.S 384-1892) decision recognized navigation, commerce, and fishing as paramount requirements of society at the time. The Marks v. Whitney (6 Cal 3d 251- 1970) Court emphasized that the Public Trust Doctrine is flexible enough to encompass changing public awareness and understanding of natural systems that are essential to society and culture itself.
Scarcity. The natural resource, water, land or other assets are scarce (rare and endangered species, unique habitats, ecological values) in relation to the ecological need and public demand for the resource / ecosystems or assets.
Customary use, enjoyment and reasonable expectations. The public customarily uses or enjoys the natural resource or asset to the extent that they have a reasonable expectation of continued existence and abundance for the people. For example dry sand beaches; migration routes and wetlands for migratory birds, river ecosystems for migratory fishes like Chinook salmon and steelhead trout, and migration routes important to deer herds.
Unique and irreplaceable common heritage. The particular land, water, resource, ecological setting has unique or irreplaceable characteristics which fall within the “People's common heritage.” Professor Dunning refers to stream, lakes, marshlands and tidelands as being an integral part of the State's common heritage. Common heritage assets become admired by a community over a period of time, whether purely for aesthetics, for resources, or for multiple values. The American River and Parkway, Yosemite National Park, Lake Tahoe, and California's many ocean beaches are just a few examples.
Suitability for common use. This includes the air, a water body (lake, stream), the ocean; the fish and wildlife; the beaches and shore lands of lakes, rivers streams. The water, air and atmosphere are suitable common use resources because all living things require them. Common use resources could be National and State Parks and Forests, Public Domain lands and associated resources.
Ancillary function. Serves a function already recognized as a public trust asset. Marshlands for migratory waterfowl. Riverine ecosystems as migration routes for salmon and steelhead trout. Migration routes between winter and summer ranges for elk and deer herds. The sandy beaches and rocky shore lands bathed by the rise and fall of the tide; and those washed by winter and spring flows to our lakes, rivers and streams and adjacent vegetation covered shorelands.
The Public Trust Doctrine fixes the responsibility for the day-to-day, as well as the long-term management of trust assets. This trusteeship is in the hands of governments. Each level has a high fiduciary duty and responsibility to manage such assets for the long-term public interest (Cohen -1970). What this entails can be best understood by examining a trustee’s obligations in the most classic of situations -- a trustee of financial resources. A financial trustee has two basic obligations. The first is to safeguard trust assets from decline, and the second, is to increase trust assets. The duties of a public trustee extends beyond custodial activities. It requires prudent management. The trustee must be aware of potential adverse impacts; should seek out improvement opportunities and act upon them appropriately consistent with stewardship duties and responsibilities in mind. Under the Public Trust Doctrine trust assets are to be used for the public good rather than to serve private ends.
The California Scene
In California the ownership of all water resides with the people (Water Code Section 102). The California Supreme Court in Eddy v. Simpson (3 Cal 249 - 1853) clarified that "It is laid down by our law writers that the right of property in water is a usufruct which consists not so much of the fluid itself as the advantage of its use.” A holder of a water right or user of water must respect the rights and interests of others and to protect the integrity of that water as a supply and a ecosystem. To say it another way, the holder of a water right has the obligation to secure for the rest of us, the right to use that same water down stream or down slope now and in to the future.
The State Water Resources Control Board (Water Board) is responsible for allocating water rights, for reviewing complaints and appeals. Its authority extends to appropriative water rights acquired since 1914 (junior rights) affecting 62 percent of the currently held water rights. The remaining 38 percent issued prior to 1914 are beyond the Water Board's permit and license authority. Senior and riparian right holders hold more than half of the claims to State waterways (AP-2014). The Water Board, however, has the duty to prevent waste, unreasonable use, unreasonable diversion of water, and unreasonable method of use of State's waters and to protect the public trust (Robie-2012). Surface water rights are over subscribed by several times the average annual runoff. This doesn't include pre-1914 water rights. On the American River the allocation is 128 percent of the average annual unimpaired runoff, while on the San Joaquin River it is 861 percent of average annual impaired runoff (Grantham and Viers -2014).
Groundwater is an important component of California's overall water supply. About 16 to 17 MAF is pumped annually, meeting 38-40 percent of the State's agricultural, municipal and industrial water needs. In dry years this percentage is much higher and in some areas groundwater provides 100 percent of the supply. With a few exceptions, groundwater is not comprehensively managed. The remaining water supply comes from surface supplies, water reuse, a minor amount from desalination and recycle (Cal Water Plan-Bulletin 160-98). Groundwater and surface water are closely linked in the hydrological cycle. Surface water (snow melt, rainfall, stream seepage, leaking ditches, agricultural seepage and return water) helps recharge groundwater. At times groundwater can become surface water from a small spring to a place like Burney Falls / Burney Creek tributary to the Pit River. A use of one resource will often affect the other. Pumping groundwater in the Carmel River Valley affected Carmel River flows. This was most noticeable when the stream flow was low (Trust for Public Lands-2001).
The quality of one resource (surface or groundwater) can affect the quality of the other, its trust resources, uses and values. The selenium linkage between groundwater and the San Joaquin River is hydraulic pressure that forces shallow groundwater into the San Joaquin River, where this commingled water, flows down stream to the Delta, impacting habitats, and associated fish and wildlife resources (Presser & Luoma- 2006).
The U.S. Geological Survey calls groundwater and surface water a single resource (USGS Circular 1139). The Hawaii Supreme Court's Waiahole Ditch decision held the state's public trust doctrine applies to all water resources of the state, ground- water and surface water without exception or distinction (Waiahole Ditch – 9 P.3d 409, Hawaii -2000). Overdrafting groundwater in the San Joaquin Valley was a justification for building the Federal Central Valley Project. The new supply would help offset the groundwater mining and reduce ground subsidence. Overdrafting groundwater is an on going (pumping prehistoric water) activity with land subsidence a continuing concern.
West side San Joaquin Valley agricultural interests look at Northern California water as free for the taking and hope that their political clout will help them get the water they want. The Hawaii Supreme Court's Waiahole Ditch decision would help clarify some issues surrounding the Kern Water Bank.
The key case regarding the allocation of trust resources is Illinois Central R.R. v. State of Illinois, (146 U.S. 387 - 1892). The U.S. Supreme Court said that while it may be reasonable for the State of Illinois to grant some of the Chicago waterfront and lands underlying Lake Michigan to the Illinois Central Railroad for purposes allied with the public trust, the “wholesale granting” of the Chicago's waterfront and submerged lands (more than 1000 acres) to a private corporation for seemingly private purposes was unreasonable and illegal. Therefore the grant was revocable (at p. 453). The Illinois Court used the Public Trust Doctrine to limit the action of the Illinois State legislature.
The Illinois Court further held “The state can no more abdicate its trust over property in which the whole people are interested, like navigable waters and soils under them, so as to leave them entirely under the use and control of private parties, except in the instances of parcels mentioned for improvement of the navigation and use of the waters and when parcels can be disposed of without impairment of the public interest in what remains, than it can abdicate its police power in the administration of government and preservation of peace” (at p. 453).
The Illinois Court held the State of Illinois did not have the authority to make wholesale grants of public resources held in trust, because to do so would violated the trust under which such resources are held. As a result, the Chicago waterfront did not pass to the Illinois Central Railroad, but was preserved for diverse public uses that included commerce, navigation, fishing, water contact recreation and other public interests and values. This ruling would impact railroads and other interests who had acquired San Francisco Bay shorelands and tidelands for development.
The heart of the Public Trust Doctrine is that it imposes limits and obligations upon government administrators, on behalf of all the people. The obligation being, the State as trustee, is not to impair the resources, uses or ecological values even if private interests are involved was made clear by the Illinois Court in 1892. To destroy public trust resources and ecological values to benefit one aspect of society at the expense of the larger society penalizes future generations and the long-term public interest.
A logical extension of the Illinois case is that the State can only issue permits to appropriate an amount of water from a lake, river or stream and that does not abrogate the State’s public trust responsibilities to protect that water, aquatic resources and support habitats. If the State does and there are impacts to trust resources, uses and ecological values, then the action violates the trust under which such assets are held.
Mr. Ronald Robie, then Director of California Department of Water Resources, in his 1977 article “The Public Interest in Water Right Administration” asserted that under the Public Trust Doctrine, the state lacks the power to transfer water in an amount greater than that necessary to protect the public trust for that would violate the trust under which such resources are held (Robie -1977). Mr. Robie's 1977 reasoning followed the meaning of the Supreme Court's Illinois decision of 1892.
In People ex rel Ricks Water Co. v. Elk River Mill and Lumber Co. (40 Pac. Rpt 486 –1895) the Court stated that if the conformation of the defendant land is such that the owner cannot carry out a dairy and milling activity without putting debris and filth into Elk River, then the owner must find some other use for the land. In People v. Truckee Lumber Co. (116 Cal 397 –1897) the Court made it clear that the fish and aquatic life that sustains a fishery are unique properties belonging to the people with management vested in the State. The Truckee Court made it clear that as a matter of law, one must exercise his or her rights or use his or her property so as not to infringe on the rights, interests or properties of others.
The California Supreme Court in Marks v. Whitney, (6 Cal. 3D 251- 1970), helped define the contemporary scope of the State’s public trust interests in navigable waters, tidelands and tidal marshes. The Marks Court recognized and clarified that uses encompassed within the tidelands trust, in addition to traditional purposes of navigation, fishery and commerce, also includes the preservation of those tidelands in their natural state as open space, as environments that provide food and habitat for preservation and protection of birds and marine life, preservation for ecological study, open space, scenery and the climate of the area. The Marks Court recognized that tidelands, with their plant and invertebrate life, the water over them and in the sand, gravel or mud substrate, all interact and are valuable ecosystems in themselves supporting a variety of public trust interests. This is a much broader understanding of the classical tidelands trust. This would apply to the state’s rivers, streams and lakes. Under the right set of circumstances trust responsibility might apply to the vast forest and range lands, open space lands and prime agricultural lands.
Marks clarified that any member of the general public has standing in a court because it involves a right to which any member of the public is entitled. Members of the public have done so in Gion v. City of Santa Cruz ( 214 2 Cal.3d 29 -1970), Morse v. E.A. Robey & Co. (214 Cal. App 2d 464 -1963) and National Audubon Society v. Superior Court of Alpine County (33 Cal 3d 419, 658 P 2d 709, 189 Cal. Rpt. 346, Hearing Denied 464 U.S. 977, April 14, 1983).
A very important point made by the Audubon Court was, “the public trust is more than the affirmation of State powers to use public property for public purposes. It is an affirmation of duty – an obligation of the State to protect the people’s common heritage of streams, lakes, marshlands and tidelands, surrendering that right of protection only in rare cases when abandonment of that right is consistent with the purposes of the trust”. The State has an affirmative duty to take the public trust into account in planning and allocating water resources and to protect such resources, uses and values whenever feasible (emphasis added). (Audubon at 441 and 446-7.)
The Water Board's Mono Lake Basin Water Right Decision D-1631 had a two-fold purpose. The protection of fisheries in the streams tributary to Mono Lake through enforcement of Fish and Game Code Sections 5937 & 5946 per Cal Trout 1 and 2; and to protect public trust values at Mono Lake through enforcement of the Public Trust Doctrine ordered by the California Supreme Court in 1983. The Audubon and Water Board decisions tied public trust protection to the maintenance of natural resources for their innate value and not to private beneficial uses of water (Koehler – 1995).
Under the Public Trust Doctrine there are rights and limitations on the diversion and use of water. There are rights and limitations on the use of shore and submerged lands. Public trust protection has moved from coastal waters, bays, and estuaries, to tidelands and marshlands, to inland marshlands, rivers, streams and lakes in the same manner that maturing salmon and steelhead trout, after spending two to four years on their Pacific Ocean pasture, migrate inland to their ancestral spawning rivers, streams and nursery grounds. Public trust protection is now imposed on inland waters, Clear Lake (Lyons) and Lake Tahoe (Fogerty) and streams flowing to such waters. Mono Lake and tributary streams are now classic examples of public trust protection under Audubon and Mono Lake tributaries under Cal Trout 1 & 2.
Ownership / trusteeship fixes responsibility for how a water right is used, or how land is used, how a resource is used, or how a person uses his watch or work boots. A water right holder must respect the rights and interests of others who have rights to the same water source. Water right holders are to exercise their rights so as not to harm trust interests like the people's steelhead trout and Chinook salmon. Land ownership and putting the land to beneficial use can be challenging. The of us the right to use that same land some time in the future. A person or a corporation does not own land in the same sense they own their boots or watch. A corporation or a farmer can destroy their watch or boots without impacting others. However a farmer or corporation that destroys its land with salt build-up, selenium, well drilling and fracking fluid wastes, or soil erosion can have far reaching impacts to resources, uses and values belonging to present and future generations.
For the owner of a small piece of land, its uses / impacts may be of minor concern. For an agency or corporation that owns or controls tens of thousands of acres of land, the use and property rights become blurred, especially when viewed at the watershed level. At that level one must consider the unique characteristics of the area, its many resources, uses and values to society. The area may be habitat for a multitude of wildlife species including threatened and endangered birds, mammals, fish, and plants. The area may be spawning and nursery grounds for unique species like steelhead trout, Chinook and coho salmon. The area may contain unique environmental values such as critical winter grounds for deer or feeding area for migratory waterfowl.
Impacts to natural resources, associated uses and values can be tied to poor logging practices; poor road building that results in accelerated runoff causing erosion and down stream flooding; to impacts from oil and gas exploration like road building, well pad construction, disposal of well drilling and fracking fluids (wastewater sumps); to water quality degradation by agricultural chemicals and runoff / drainage (selenium and other trace minerals) that can impact down slope wetlands and riverine ecosystems.
The following is an example and discussion of impacts to public trust resources, uses and values. Forest and wild land fires can have multiple impacts to trust resources as fish and wildlife, associated terrestrial and aquatic ecosystems; impacts to scenic areas; to unique ecosystems, to water quality, recreation and other societal values frequently not captured in our market place economy. For example; in 2000, the Storrie Fire devastated over 52,000 acres of forest land, including a major portion of the Plumas and Lassen National Forests and the scenic Feather River Canyon Highway. The Union Pacific Railroad was found responsible for the fire. Government expert witnesses estimated that the fire burned more than 1,600 acres of spotted owl habitat, 12,000 acres of carnivore habitat, 9,000 acres of old growth forest affecting bald eagles, goshawks and pine marten, impacted amphibians and fish with silt being deposited in streams; lost scenic grandeur and a portion of the Bucks Lake Wilderness Area, in addition to lost timber. Add to that was the cost of fighting the fire. Judge Frank Damrell ruled that Union Pacific must pay for the loss of public values in addition to the cost of fighting the fire. The Union Pacific settlement was a $102 million fine for trust resources, uses and values lost. Most of the fine monies are going to rehabilitate the Plumas and Lassen National Forests. (U.S. v. Union Pacific RR- Feb.13, 2008)
Another example of lost public trust resources, uses and values is the oil spill of November 7, 2007 when the MV Cosoc Busan struck a San Francisco - Oakland Bay Bridge tower fender spilling about 53,569 US gallons of bunker fuel oil into the Bay. Estimated damages, over 6,849 birds killed, 50 public beaches soiled or closed by the spill; 200 miles of coastline and about 3,367 acres soiled by oil including lands of the Golden Gate National Recreational Area, the Marin Headlands and Pacifica Beach. Herring spawn (eggs) were killed by the oil plume, with between 14 and 29 percent of the 2007-008 herring spawn lost. Several fish species were contaminated and fishing was closed for several weeks. The commercial Dungeness crab fishery was delayed several weeks until the crabs were no longer contaminated. An estimated 1,079,900 recreation use days (fishing, boating and beach use, etc.) were lost.
Damage to the ship was estimated at $2.1 million. To replace the tower fender $1.5 million and $70 million for clean-up. The Federal criminal settlement was a fine of $10 million, with $8 million to the victims / witness fund and $2 million to the National Fish and Wildlife Foundation for environmental projects in the Bay Area. The Bay pilot was sentenced to 10 months in prison. The civil settlement, a fine of $44.4 million with $32.2 million for natural resources damages was to be spent on restoration projects; $1.2 million state penalties and $10.9 Million for unpaid government response and assessment costs for lost trust resources, uses and values. (Wikipedia, other on line and newspaper sources January 2015.)
Professor Ralph Johnson (1980) points out that thousands of rivers, streams, lakes, ponds and wetlands in the west are dried up or nearly so each year by appropriators with disastrous consequences to recreational activities, to fish and wildlife that depend on such habitats for survival. Over the years regulators looked the other way or just ignored such happenings. Today actions that destroy valuable in place trust resources, uses and values are being challenged. Professor Johnson points out that since the public trust doctrine applies to constrain fills in navigable water which destroys navigation, impact fisheries, and other trust uses and values, it should equally apply to constrain the extraction of water that destroys navigation and fisheries, other public trust resources, uses and values. Both actions result in similar damages to the public trust. This analogy was incorporated into the Audubon decision (at 357).
In Northern California there are locations where unregulated water diversions and groundwater extractions have caused excessively low stream flow impacting steelhead trout and Chinook salmon, or have dewatered a stream stranding young salmon and steelhead trout. According to a California Department of Fish and Wildlife scientist, 24 north coast salmon-bearing tributaries (Russian and Eel Rivers) were reported to have gone dry in 2013 as a result of unregulated diversions or pumping (Santa Rosa Press Democrat, April 13, 2014). A multi-agency team recently completed a review of unregulated diversions from Sproul Creek, tributary to South Fork Eel River associated with marijuana cultivation (SWRCB Media Release, Jan. 23, 2015). As potential water right applicants, each must demonstrate their need and the appropriateness of draining or dewatering a stream, a public trust resource, to satisfy their needs.
An activity at the watershed level can have far reaching impacts, extending hundreds of miles, impacting many resources, uses and environmental values from area of origin to place of use. One can follow water from California's Trinity River watershed (Trinity Dam and Clair Engle Lake) and the upper Sacramento River watershed (Shasta Dam and Lake Shasta) down the Sacramento River to the Sacramento / San Joaquin Delta Estuary. This water is then pumped out of the Delta and after traveling many miles in canals, is delivered to lands of the San Luis Unit, Central Valley Project on the west side of the San Joaquin Valley. This water transfer is about 400 miles. A portion of the irrigation water applied to the land became agricultural runoff and drainage contaminated with selenium, other trace elements and salts leached from the soil. This selenium-laced drainage manifested itself in a contaminated aquatic ecosystem and a food chain toxic to fish and wildlife at Kesterson NWR (Reservoir). The first deformed migratory bird, an American coot, was found at Kesterson Reservoir in early June 1983. This was about 2 months after the April 1983 National Audubon Society decision regarding Mono Lake indicating that the Public Trust Doctrine was alive and well and that the State has “an affirmative duty to protect the public trust” and “to do so whenever feasible.” The selenium / deformed bird issue was covered widely by nightly TV news. Selenium could be traced to aquatic life in the San Joaquin River and Delta and to groundwater (Presser and Luoma –2006.) Tens of thousands of dead and deformed migratory birds and numerous other ecological impacts occurred from Kesterson NWR downstream into the Delta (San Joaquin Drainage Program, 1990, pg. 5-40.)
The Water Board in 1984 warned water purveyors that “Failure to take appropriate measures to minimize excess application, excess incidental losses, or degradation of water quality constitutes an unreasonable use of water” (CSWRCB - 1984). In March 1987, the Water Board issued Order No. WQ 87-3 for the Bureau to proceed with clean-up of the Reservoir portion of Kesterson NWR. The Bureau spent $6.5 million to fill 710 acres of selenium impacted habitats with 1,050,437 cubic yards of material. In addition $14 million was spent to purchase land and $8 million spent for habitat development. In 1990 the State Wildlife Conservation Board voted to spend $6.3 million of 1988 voter approved wildlife bond money to help replace selenium contaminated habitats of Kesterson Reservoir. While Kesterson Reservoir was buried, it was not dead. Capillary action carried selenium to the surface to impact terrestrial habitats, small mammals, to small avian species to the northern harrier and red-tailed hawk (Garone - 2011). Monitoring the effectiveness of the Kesterson clean up costs about $800,000 annually. Total habitat replacement and clean up costs about $55 - $60 million. (USBR Kesterson Reservoir Repayment Rpts). Such expenditures were deemed reasonable.
It took years of litigation to return water to the Trinity River to help restore its steelhead trout, Chinook and coho salmon runs. It took years to get a temperature control devise at Shasta Dam to provide water temperature needed for Winter-run Chinook salmon (FESA and CESA listed endangered). Estimated cost $80 million (Somerset Eng-1986). The Central Valley Project Improvement Act was signed in 1992. Thermal pollution released from Folsom Reservoir continues to impact coldwater habitat of the American River. The Bureau has failed to provide the facilities and an operations plan for how it will manage Folsom Reservoir to meet the temperature and flow needs to protect and restore steelhead trout (FESA listed threatened) and Chinook salmon runs of the American River. There has been 23 years of lost trust restoration opportunities and 23 years of impacted or lost coldwater habitat (a beneficial use).
Water, Water Quality and Resource Protection
California’s Porter Cologne Water Quality Control Act and the Public Trust Doctrine embrace affirmatively and positively that the people are to be protected against all unwise and unreasonable uses of the State's waters. The Regional Water Quality Control Boards (Regional Boards) are responsible for protecting water quality via discharge permits and an enforcement program.
Managing water quality is critical to protecting beneficial uses and ecological values. The Central Valley Regional Board recently discovered there are 933 waste fluid sumps associated with oil production in Kern County. About 578 sumps were active with one-third not permitted. Kern County accounts for at least 80 percent of California's oil production while producing 80 billion gallons of waste fluids, an amount, if clean, could supply about half million households for a year (L.A. Times, Feb. 26, 2105).
The Regional Board and Department of Conservation have failed their public trust duties. Disposing waste (chemical-laden fluids) to sumps, lined or unlined, that can contaminate groundwater is not a beneficial use of water because to satisfy that use would be detrimental to several beneficial uses protected by the public trust doctrine. Disposing of spent fracking fluids to isolated sumps can be a problem because such sumps can be toxic to avian and terrestrial wildlife and livestock. Such chemically laden production fluids should be disposed in a closed system, not in the environment. Kern County is heavily dependent on pumping groundwater to meet its agricultural and urban needs. This over-pumping or groundwater mining has gone on for years.
A use of water can be considered unreasonable if it pollutes, or because it offends our sense of aesthetics or natural beauty, or because it interferes with the right of the public to enjoy a natural resource of state or national significance, or because it threatens in a harmful way to impact fish and wildlife, or upset the ecological balance of nature, or because to allow this unreasonable use confers a valuable privilege which is inconsistent with protecting the public trust and beneficial uses. (See Gold Run, Elk River Mill and Lumber Co. and Truckee Lumber Co.)
One of the largest grants of the People's water occurred when elected and appointed officials gave away the San Joaquin River at Friant. After years of being accused of stealing the San Joaquin River, the Bureau of Reclamation filed for a water right in 1958. This was more than a decade after it began diverting San Joaquin River water. The average annual runoff of the San Joaquin River at Friant for years 1907-1955 was about 1,670,000 acre feet. In 1959 newly elected Governor Edmund Brown appointed Henry Holsinger as Chairman of the Water Board. It soon issued Decision D-935 granting water rights of 2,210,00 acre-feet for storage and diversion. This total is 540,000 acre-feet more than the average annual runoff. Fish protection flows were not incorporated into the project, although the purpose of Fish and Game Code Section 5937 (then Sec. 525) was known to those involved. The Water Board reasoned there was no urgency to provide flows because the southern most Chinook salmon run (and gene pool) no longer existed, it was already extirpated,--- extinct. The Water Board also concluded reestablishing a Chinook salmon run and fishery was not in the public interest (pg 40-41 of D-935). Upon the issuance of D-935, Wilmer Morse, attorney for the Department of Fish and Game began preparing a Petition for Writ of Mandate alleging the Water Board exceeded its jurisdiction and violated State law Fish and Game Code Sections 2014 and 5937. The Petition was signed by William E. Warne for the Department of Fish and Game and by Wilmer Morse on June 30, 1959. Governor Brown, having made his political decision, specifically ordered the Department of Fish and Game not to file the Petition to enforce Code Section 5937. Department managers followed Governor Brown's order. Following the Illinois reasoning this give away of the San Joaquin River is both unreasonable and violated the State's public trust duties.
In 1998 the U.S. Court of Appeals based on Section 8 of the 1902 Reclamation Act, stated the Bureau of Reclamation has the duty to comply with state law in the operation of Friant Dam. This includes the duty to comply with Fish and Game Code Section 5937 to keep fish in “good condition“ below the dam. Code Section 5937 applies independently of any contractual arrangements with Federal or non-Federal water users (Natural Resources Defense Council v Houston, D.C No. CV 88-1658 LKK, June 24, 1998). To keep fish and other aquatic life “in good condition” was again imposed on the Bureau of Reclamation’s operation of Friant Dam by a Federal Court (NRDC, et al. v. Roger Patterson, et al. No. CIV S-88-1658 LKK – Aug 27, 2004). This court action set the stage for private parties to apply Fish and Game Code Section 5937 at Bureau of Reclamation Dams (Borg et al - 2012). This would include Folsom and Nimbus Dams on the American River.
The heart of the Public Trust Doctrine is that it imposes limits and obligations upon government agencies and their administrators, on behalf of the people. For example, resources, uses and ecological values or objects in which the people have a special interest are held subject to the duty of the State as trustee, not to impair the resources, associated uses and ecological values even if private interests are involved.
Case law and findings provide some guidance for managing common heritage resources, uses and ecological values.
Today, people recognize that rivers (their water, bed and shore lands) are an integral system from their headwaters to the ocean or terminal waters, and that once destroyed or greatly diminished in a biological and ecological sense may never be restored. Therefore such waters, waterways and aquatic systems deserve the highest degree of protection from the State as the trustee for the benefit of the people.
The Public Trust Doctrine serves as a legal mechanism for requiring active protection and management of resources, uses, and interests or objects of the trust that serve many different segments of the public. It can strengthen our ability to share trust resources (land, air, water, fish, etc.) so long as the corpus of the trust is protected against loss or degradation. All levels of government have a roll in protecting the trust.
The public trust is multi-faceted involving many resources, uses and ecological values held in trust and should hold an exalted position in any judicial and administrative determination in the allocation of water. Judge Richard Hodge in his decision in Environmental Defense Fund (EDF) v. East Bay Municipal Utility District (EBMUD), (Case No. 425955, Superior Court, Alameda County, CA. Jan 2, 1990), followed the Audubon decision model. Judge Hodge developed his own physical solution to protect the American River, its many public trust resources, uses and values. His priority was to protect the People’s trust interests first (priority was Chinook salmon)before allowing the parties to take water under reasonable and feasible constraints and conditions.
Integrating Public Trust Doctrine protection with instream flows, water quality, associated resources, uses and values could force constraints on existing water right allocations and waste discharges could probably force prioritizing off stream uses of water as well as changes in reservoir operations. Effective implementation of the public trust doctrine regarding water diversion and use will force constraints on project operations, the release of water for downstream uses and for export from the Delta for use on west side San Joaquin valley soils. We already know when a water use is deemed unreasonable or wasteful, it is beyond allocation. The priority is to protect the public trust, the people’s interests, beneficial uses and values whenever feasible.
In California most water policy decisions have been made or fortified by Court decisions. Since 1970, courts using the Public Trust Doctrine have provided the State with some very good management guidelines. Following the Illinois Central decision, the Truckee Lumber, Marks, Audubon, Racanelli, Cal Trout 1 and 2 decisions provide the foundation for the Water Board or a court to establish water use priorities, set water quality (temperature and chemical parameters) and stream flow standards. Audubon harmonized the public trust with water rights and water quality concerns consistent with prior opinions (Stevens - 1989). Audubon provided some new insight for administering the public trust as well as expanded the Public Trust Doctrine to protect natural resources and ecosystems when competing against off stream demands.
The Audubon decision coupled with the Public Trust Doctrine suggests that legitimate resource needs that only a river or water body can provide (habitat for migratory birds, or habitat for native anadromous fishes such as Winter, Spring, Fall and Late Fall-runs of Chinook salmon, steelhead trout and those species listed under the Federal ESA and the California ESA to name a few) should take precedence over out of the area needs, which may be served by other means. When two uses conflict, the conflicting use could be deemed unreasonable. Audubon tied the protection of public trust interests of Mono Lake, its inflows, natural resources, and ecological setting for their innate values, not to private off-site and distant users of water (Koehler - 1995).
Audubon demonstrated that if water rights are taken for public trust purposes there should be no taking and compensation issue. In early court cases, the priority was to protect the paramount public interest against a nuisance conflicting with navigation. (See Woodruff v. North Bloomfield, People v. Gold Run Ditch and Mining Co.) In People v. Elk River Mill and Lumber Co. it was pollution of a water supply. In People v. Truckee Lumber Co. it was pollution killing fish and destroying a fishery. In recent court decisions the paramount interest was to protect the public trust. Marks v. Whitney broadened the understanding of public trust resources, uses and values. In Audubon public trust protection is an obligation - an affirmative duty.
Based on the Illinois court, “the wholesale granting” or allocating of stream flow that results in degraded aquatic resources or environments is unreasonable, and therefore illegal and contrary to the trust these resources, uses or values are held. A logical extension of Illinois and confirmed by Audubon is that California lacked authority to convey vested water rights that were harmful to the trust. Meaning the State can only issue permits to appropriate an amount of water that does not abrogate the State’s public trust responsibilities for assets like anadromous fish (Chinook salmon and steelhead trout migrate from their ocean pasture to return to their natal waters and spawn. Chinook salmon spawn just once and then die). The State's review duties also include discharges to state waters since water quality protection is a public trust issue.
The Cal Trout 1 (Cal Trout v. SWRCB, 207 Cal. App. 3D 585-1989) decision required the City of Los Angeles license to divert water from the Mono Lake Basin be amended to comply with Fish and Game Code Section 5937 & 5946. This action put determining / providing instream flows and aquatic conditions first before water is appropriated for diversion. The condition “that sufficient water first be released“ is important aspect of any water allocation process (pg 599-603). The Cal Trout 2 (Cal Trout v. Superior Court, 218 Cal.App.3d 187 -1990) required the stream flow requirements be added to Los Angeles' licenses immediately. It also laid the ground work for years of stream restoration activities. The restoration flows and stream conditions were to be monitored to determine if the various measures were doing what they were designed to do. If not. Why? What should be done to correct the situation?
The Water Board's Mono Lake Basin Water Rights Decision 1631 determined Mono Basin's trust requirements to fulfill its public trust mandate. Decision 1631 prohibits the export of water from Mono Basin until Mono Lake reaches elevation 6,377 feet above sea level and restricts exports until Mono Lake reaches 6,391 feet above sea level. Decision 1631 supports Cal Trout 1 and Cal Trout 2 regarding the establishment and protection of fisheries in the streams tributary to Mono Lake through enforcement of Fish and Game Code Section 5946 is in full compliance with Code Section 5937 and incorporates fish protection to the City of Los Angeles amended license. The Water Board Decision 1631 found that remedies to protect the public trust interests could cost millions and require decades to realize “are reasonable”. The replacement water supply estimated at $27 million and the replacement electric power at $8.5 million annually. Modifying the outlet of Grant Dam is estimated to cost $15 million (Mono Lake Comm. Newsletter -Fall 2013). The Water Board actions stand for the principle that extra- ordinary efforts are entirely appropriate to protect trust resources. The Public Trust Doctrine was used to protect or limit ecological and resource damages. It was not used to accomplish or meet the diversion needs of the City of Los Angeles (Koehler-1995).
The Racanelli decision in US v. State Water Resources Control Board (227 Cal Rpt 161 – 1986), re-enforced many of the Audubon findings. The Audubon finding that public trust protects navigable waters from harm caused by diversions of non-navigable tributaries, ties to Racanelli Court's view that the Water Board should take a global perspective in its water quality and planning efforts. Racanelli's global view includes all pre-1914 and post-1914 water right holders and diverters of the Delta watershed, because upstream reservoirs alter the timing and movement of water down stream impacts trust resources and ecosystems. Therefore, the Water Board should consider all water right holders and uses of water and put protecting beneficial uses (including fish and wildlife) and trust assets a priority. Providing Chinook salmon and steelhead trout life history / biological needs in the American River should be a priority, i.e first, before water is provided to other areas. The Water Board can do this because it has an affirmative duty to take the public trust into account in planning and allocating water resources and to protect such resources, uses and values whenever feasible.
Racanelli also stated the Water Board should set water quality standards to protect all beneficial uses, even if the resulting level of water quality exceeds that provided by a water right. It would logically follow that the meaning of Fish and Game Code Section 5937 would require the flow and ecological conditions necessary to keep fish and aquatic life “in good condition” in the river downstream of any watershed dam be determined first. This would include downstream areas to the Sacramento / San Joaquin Delta as discussed in Audubon, Racanelli and Cal Trout 1 and 2.
Protecting the public trust, the fish and fisheries is the key. The question is not: “What is an acceptable risk for the People's Chinook salmon and steelhead trout to suffer so an applicant can take water?” The question must be: “How can the stress, harm and mortality to Chinook salmon and steelhead trout from elevated water temperature, fluctuating or inadequate flows be prevented to assure their renewability?” Such conditions should meet the whenever feasible criteria of Audubon and should be determined first before water diversion is even considered. According to well- established tenets of conservation biology, species near extinction face increasing risks of continuing decline or actually becoming extinct the longer they remain at depressed population levels (Wood-2004). Marginal habitat conditions do not help listed species recovery. Think Delta smelt, Winter-run Chinook salmon, or steelhead trout.
Racanelli advised setting water quality standards to protect beneficial uses. This would force dam owners, diverters and dischargers to meet those standards. A water quality problem could be traced to a release from an upstream reservoir, to a discharge, to runoff or drainage from a land use activity. Water quality standards include meeting temperature criteria that is protective of Chinook salmon and steelhead trout life stages and biological needs in rivers of the Central Valley downstream through the Delta.
Federal Judge Oliver Wanger's decision in Case 1:06-CV-00245-OWW-GSA - of April 16, 2008 (U.S. District Court for the Eastern District of California), discussed temperature control at Shasta Reservoir. Judge Wanger allowed little leeway for Reclamation to meet temperature criteria. He followed Racanelli's “set water quality to protect beneficial uses including fish protection”. Judge Wanger, based on his ruling on his reading of the Temperature Criteria in the National Marine Fisheries Service’s Biological Opinion which ordered that Reclamation “shall manage” the coldwater pool supply of Shasta Reservoir and to make coldwater releases to provide suitable habitat for Chinook salmon and Steelhead trout in the Sacramento River between Keswick Dam and the Bend Bridge.
Two lawsuits regarding diversion and / or pumping groundwater have recently been decided in the courts. They are Light v. State Water Resources Control Board (173 Cal Rptr 3d 200, July 2014), and Environmental Law Foundation, et al. v. State Water Resources Control Board, et al. (Superior Court of California, County of Sacramento, Case No. 34-2010 – 80000583, Filed July 15, 2014).
In Light, the action was the stranding and killing an estimated 25,000 young salmon and Steelhead trout (FESA listed) in the Russian River system. NOAA fish scientists in 2008 determined stranding to be caused by abrupt decline in stream flow and reduced water level occasioned by the diversion of water used for spraying on vineyards to prevent frost damage. The Light Court determined the stranding of young salmon and steelhead trout resulted from an unreasonable use of water. Also it could be unreasonable diversion of water. The Light Court determined that the Water Board has broad authority to determine what is reasonableness at any time. The Light decision pointed out that the Public Trust Doctrine can be used to limit or restrict private uses of water to protect trust resources. This action followed the Audubon decision - that the Water Board must take the public trust into account in the planning and allocation of water resources and to protect trust resources whenever feasible so as not to violate the trust under which these resources are held.
The Light decision upheld the Water Board regulation mandating the protection of juvenile salmon and steelhead trout whenever feasible. The Light Court relied on the Public Trust Doctrine to protection the public's fish trust (young salmon and steelhead trout) over the private use of water for frost protection at vineyards. A possible solution to the dewatering problem is utilizing small off stream winter storage reservoirs. In this way direct pumping from a stream is avoided and the stream not blocked allowing the free passage of adult fish up stream and the young fish downstream.
The other case, Environmental Law Foundation, et al. v. State Water Resources Control Board, et al.. At issue was the need to regulate groundwater that is hydraulically connected to Scott River, Siskiyou County. This pumping was impacting resources (Chinook salmon, coho salmon and steelhead trout) and boating, rafting and other trust uses of the Scott River. This issue has been around for a very long time.
The upper Scott River watershed is devoted to timber and livestock grazing. About one third is in the Klamath National Forest. The valley portion is mostly in private holdings devoted to livestock grazing and irrigated pasture. The irrigated pasture is supported by stream diversions and pumping groundwater. These activities have resulted in serious habitat problems for fish, other aquatic life of Scott River.
Scott River, is still a major, although reduced, fish producing tributary of the Klamath River supporting spawning runs of Chinook salmon, coho salmon and steelhead trout. The salmonid nursery areas are frequently impacted by diversion and groundwater pumping, sometimes leaving young fish trapped in isolated pools. The pools hold young salmon and steelhead trout until their temperature tolerance is reached and they perish or the pool goes dry. This situation occurs during low water from mid summer to the early fall or until the rains come (Trust for Public Lands - 2001).
The question before the Superior Court; does the Public Trust Doctrine apply to groundwater hydraulically connected to surface water of Scott River? The Superior Court relied heavily upon Audubon and the State's fiduciary obligation, to supervise and administer trust assets so the public may continue to use these water for trust purposes into the future. To the question Judge Allen Summer said Yes – when extractions cause harm to the public's rights and interests in such waters. Judge Summers said from the facts alleged in this case; the public trust protects Scott River and the public's right to use it for trust purposes, including fishing, rafting and boating. It also protects the public's right to use, enjoy and preserve the Scott River in its natural state as habitat for fish resources like Chinook salmon, coho salmon and steelhead trout and wildlife resources closely associated with the Scott River.
The Light and Scott River decisions involve diverting water from a non-navigable tributary which impairs navigation and harms downstream trust interests. The Audubon holding that the Public Trust Doctrine applies to constrain fills that destroy navigation, impact fisheries and other trust uses and values of navigable waters, should equally apply to constrain the extraction of water that destroys navigation and fisheries, other public trust resources, uses and values since both actions result in similar damages to the public trust. These decisions recognize that the Public Trust Doctrine protects navigable water from harm caused by diversion of non-navigable tributaries. This reasoning judicially applied, coupled with the Water Board's continuous duty to review past water allocation can help restore flows and protect trust interests whenever feasible to many of the State's rivers and streams. However, it may take more than voluntary compliance to help protect Chinook and coho salmon and steelhead trout resources.
In the Sacramento River an estimated 20 million Fall-run Chinook salmon eggs were stranded below Keswick Dam in 2011 and 2012 when Reclamation implemented flow reductions (Golden Gate Salmon Assoc.- 2014). In the American River Chinook salmon pre-spawning mortality ranged from 4 to 67 percent of the female adults in the 2001-2012 runs because of poor temperature / water quality conditions on the spawning grounds. In numbers of fish, 50 female adults died in 2009 and 66,000 female adults died in 2001 without spawning (CDFW, LAR Chinook Salmon Escapement reports).
The Audubon and Racanelli decisions make it clear that the State Board has the power and the duty to re-examine, and if necessary, modify existing water rights to achieve water quality and flow objectives to restore and protect trust resources, uses and values. Public trust protection under Fish and Game Code Section 5937 means protecting the public trust (fish) comes first (as in Cal Trout 1) before exploitation or export. In an Amicus Curiae Brief dated October 21, 2013, in the Reynolds v. City of Calistoga (Napa County Superior Court Case No 36-46826), the State Attorney General stated, the City of Calistoga in diverting water from the Napa River (by Kimball Creek Dam) may adversely affect public trust uses (steelhead trout). The City of Calistoga's obligation is to protect the public trust from harm caused by its own actions.
Enforcement of Audubon, Racanelli, Cal Trout 1 & 2 decisions, Fish & Game Code Section 5937, and Water Code Article 3, Section 275 “Proceedings to Prevent Waste or Unreasonable Uses”, strengthens the Public Trust Doctrine to protect instream resources and associated trust interests. Reexamining water rights and taking all appropriate actions to control unauthorized diversions, prevent waste, unreasonable use, unreasonable method of diversion could help free up water to restore stream flows, protect or improve water quality in the State's streams and rivers and in the Delta.
General Guideline for Managing Public Trust Assets
Managing public trust assets under the Public Trust Doctrine does not mean that there will be no more water development, or coastal zone development, or that logging will not occur on our national forests, or that grazing will not occur on the public domain. The “coequal goals” outlined in California Water Code Section 85054 (State Law) providing for a more reliable water supply includes protecting and restoring natural resources and aquatic ecosystems. However extraordinary efforts must be made to protect the uniqueness of the trust involved, its scarcity; threatened and endangered species and associated gene pools; one of a kind objects or settings; riverine, estuarine and terrestrial ecosystems and unique natural settings (Koehler 1995, Wood -2014).
Water Resources Planning and Resource Protection
The watershed of origin protection doctrine as described in “County of Origin” (Water Code Section 10500), ”Watershed Protection Act” (Water Code Section 11460) and the “Delta Protection Act” (Water Code Section 12201), should be apply to all tributaries to protect them against excessive water appropriations to another watershed (Rossman- 2008). The purpose of this protection is to reserve for areas where the water originates a sort of senior water right to meet future societal needs as preferential or paramount to that of a distant watershed. In essence the watershed of origin gets all the water it reasonably requires to adequately meet present and future economic and societal needs and to protect the area's trust resources, uses and values.
The above water planning effort can be accomplished by applying Racanelli's global perspective to all the state's tributaries. The objective: to identify and quantify the extent and capability of each tributary's water right holders and associated reservoirs to meet beneficial uses and water supply needs while meeting and protecting trust resources, uses and values. For example, in the Upper American River watershed, reservoirs (built after Folsom Reservoir), store and release water to meet specific needs of project operators. Under Racanelli's global perspective such water right holders / reservoirs would contribute water to assist the Bureau of Reclamation via Folsom Reservoir re-operations to meet instream water quality needs of trust resources like Chinook salmon and steelhead trout of the American River while meeting the Basin's water supply needs. The automated temperature control devise at Folsom Dam would be a Bureau and Corps of Engineers responsibility. The “coequal goals” of Water Code Section 85054 (State law) would apply and that trust interests would be protected whenever feasible as discussed in Audubon and Water Board Decision D-1631.
The Water Board has the power under its continuing authority to set up such a water planning activities. In time each basin or sub-basin could have its own integrated basin operations plan under a Water Board appointed watermaster.
California's natural water supply, already in short supply in many years will be severely tested under anticipated climate change, especially when the surface water allocations are over subscribed by several times the average annual runoff (Grantham and Viers -2014). The Racanelli decision recognized that water rights are really limited and uncertain, with the water supply available in any given year, greatly determined by natural forces, i.e. by the amount of rain and snow of the previous winter. Yet farming corporations, with locked in irrigation demand (permanent crops), continue to demand a guaranteed annual water supply although it is realized to be both unreasonable and unsustainable based on extensive impacts to beneficial uses and trust resources, uses and values throughout Central and Northern California. To a large degree we must change our thinking and live within our annual water supply. A way to do this is with acreage variable irrigated agriculture. This will require a mix of annual and permanent crops on a farming unit. With present forecasting technology, one can expand irrigated acreage in good water supply years and reduce irrigated acreage or modify crops during poor water years without the cry of regulatory drought. Crops could be matched to the soil, the timing and the available water supply to attain the best mix of crop, water and soil productivity. The alternative, mining groundwater has its own set of problems.
At any proposed water development project every efforts must be made to minimize impacts to trust resources by incorporating means and measures to fully protect aquatic and terrestrial ecosystems to assure ecosystem renewability and resource sustainability are in place, before development and use activities are allowed to commence. At operating projects every effort must be made to minimize adverse impacts and to provide full mitigation (in kind habitats), to restore biological resources, their support systems, uses and values. Protecting water quality must be an integral part of any water management activity to protect beneficial uses and public trust values.
Land management and use activities and water resource development and use activities should not produce significant:
Impacts that cannot be mitigated or offset to a very high degree.
Negative impacts to resources, terrestrial and aquatic systems (freshwater and estuarine), plant communities, wildlife and fish resources and other trust interests.
(Road building can cause problems in logging, oil and gas exploration activities).
Loss or degradation of natural resources (our air, fish, wildlife, aquatic ecosystems, plant communities or soils), scenic, recreational, open space, micro-climates of an area. The more unique the area, the resource, the scenic area, open space or other asset, the greater should be the protection.
Negative impacts to sensitive ecosystems (wetlands, marshlands and riparian habitats) and to water quality that impacts the productivity or sustainability of renewable resources, recreational, domestic or industrial uses of water.
Cumulative impacts to resources, aquatic systems, plant communities, wildlife and fish resources, that result or contribute to the domino effect of numerous like project or activities that espouse “no significant impacts”. Trust resources and support systems must be protected against death by 1,000 cuts.
In managing ecosystems, associated resources uses and values (our air, water, fish, wildlife, land / soil) the state should use precaution and restrictive measures to all activities that can endanger or threatened species with extinction, destroy of parts or all of an ecosystem, or the permanent alteration of natural cycles.
Mitigation and restoration efforts are long term obligations and a continuing project cost. When such efforts are half-hardheartedly undertaken, incomplete, or fail to accomplish the desired objective, the public trust values not mitigated are lost to society. The result is the public trust values lost subsidize the project or activity --- forever.
The public's access to clean water does not necessarily mean the water has to be as fresh and clean as that of a high Sierra or Trinity Alps stream. It means the people have a constitutional right to expect that their rivers and streams will be as clean as they can be to protect the public health. It means that rivers, streams and lakes will support healthy and sustainable populations of fish and wildlife and that the fish will be fit to eat. It means that the purposes and intent of the Federal Clean Water Act (also the Safe Drinking Water Act) will be realized and that State waters will be fishable, fit for swimming and other water contact recreational uses and a drinking water supply. It means that demands of other beneficial uses may have to consider alternatives or restrictions. The user must consider existing and potential technology and the possibility of less harmful methods of use, location of use or development. Or whether there should be development or use at all, in light of the resources, uses and ecological values that are at stake and could be lost with inappropriate development or use.
A development or activity in a watershed or air shed that impacts trust resources and degrades or greatly diminishes ecosystem sustainability or renewability is wrong. Allocating a watershed’s only water supply to support out-of-area uses at the expense of area-of-origin needs, trust resources, uses and ecological values is wrong. If a land use, water development or water use or an activity makes an environment unsuitable for sustaining viable agriculture, grazing resources, wildlife, fish and other aquatic life, if it makes fish unsuitable for human consumption; if it is a hazard to other fish and wildlife, if it degrades ecological, aesthetic, recreation uses, small craft navigation, and scenic values; or if disposal of waste water and other liquids (injection wells) renders drinking water unsuitable, that use or activity is wrong and a nuisance. Such uses are then inconsistent with the Public Trust Doctrine, are inconsistent with reasonable use and therefore a nuisance. When chemicals / trace elements enter our blood, the bodies of our children, or enter the domestic or wildlife water and food supply to toxic levels or disrupts the immune, nervous, endocrine or reproductive systems without our consent, is a toxic trespass that is wrong and violates the public trust under which such assets are held (Colborn – 1995, Steingraper –1998, Wood -2014.)
One can conclude from the preceding discussion that:
* The focus of public trust doctrine protection is changing from the narrow aspects of water to that of an integrated aquatic ecosystem, the beds of the estuaries, bays, lakes, rivers, streams; associated groundwater, tidelands and marshlands and the interaction of soil and applied water to resultant drainage and tail water.
* Implementing public trust management principles will probably force prioritizing
out-of- stream water uses; add constraints on the timing of diversion, method of use or diversion; the amount of water to be used, and the water use itself.
* Government agencies, special districts and private interests receiving grants or permission to use trust assets have an obligation to protect public rights, resources and interests from injury or damage into the future.
* Agencies empowered to protect and manage trust resources, uses, and other trust interests must take a pro-active role to protect such assets from injury or loss.
<!--[if !supportLists]-->· <!--[endif]-->* The public trustee must assume the posture that in place water, i.e., lake, river,
<!--[if !supportLists]-->· <!--[endif]--> estuary, embayment, is a biological, ecological and physical resource of
<!--[if !supportLists]-->· <!--[endif]--> irreplaceable natural value which requires the highest degree of protection.
Potable ground water supplies should receive the highest degree of protection.
* An applicant for a water right permit or a discharge permit has the responsibility to
justify and document the need, as well as how the public interest will be served, how public rights and resources will be protected or improved by such an activity.
<!--[if !supportLists]-->· <!--[endif]-->
* The Water Board has the authority to review and issue permits and licenses for using a water resource. This same authority also carries with it the responsibility to deny requests and to revoke permits or licenses when public trust resources, uses and ecological values are being unreasonably harmed. In addition the State Board has the power and the affirmative duty to reconsider water allocation decisions, water use and discharge permits at any time.
* By definition a use of water that destroys it for other beneficial uses constitutes a waste or unreasonable use of water and a nuisance. Such a situation should automatically trigger the Water State’s trustee duties, enforcement powers and aggressive litigation to protect the public trust and beneficial uses and values.
* There are many resources, beneficial uses and ecological values protected by the
Public Trust Doctrine that have significant value. The burden of proof that trust resources and other trust values will be protected falls to the entity, corporation, and government agency seeking to use, exploit or despoil trust asset. They must assure to the rest of us that the trust will not be damaged (Paul -1996.)
<!--[if !supportLists]-->· <!--[endif]-->* Federal, State and local government's public land statutes (Forest Service, Bureau of
<!--[if !supportLists]-->· <!--[endif]--> Land Management, National Park Service, Fish and Wildlife Service, State Parks,
<!--[if !supportLists]-->· <!--[endif]--> Regional and local parks); the Clean Air Act, the Clean Water Acts, the Safe Drinking Water Act; Federal and State Endangered Species Acts, the Migratory Bird Treaty Acts, the Magnuson-Stevens Fishery Conservation and Management Act should be read in light of trustee obligations. The intent of Congress and the people is to protect trust resources, uses and ecological values for their innate values to society and the long-term public interest (Wood - 2014).
<!--[if !supportLists]-->· <!--[endif]-->
* The public trust interests in our resources, wetlands, rivers and streams of the
Central Valley, in the wetlands, waters and lands of the Delta and of San Francisco Bay Estuary are multi-faceted. To a significant degree such interests
are inter-twined (as Chinook salmon and steelhead trout and riverine habitats)
and migratory birds (wetland habitats) with many trust resources, uses and values to millions of people in the Pacific Flyway and of the Salmon Nation.
* The nature of the State's property interest in fish, water, aquatic ecosystems is such that one may not oust the state's property or trust interest by a statute of limitation. A person can file a lawsuit or complaint regarding public trust interests
at any time for one is not time barred. (Cal Trout 1 – at 207 Cal. App. 3d 585 at 630-631-1989, and People v. Kerber 152 Cal 731/ 732 -736 -1908.)
* The powers of the state as trustee are not expressed. They are commensurate with the duties of a trustee. Every trustee has the implied power to do everythingnecessary for the execution and administration of the trust (underlining added for
emphasis.) (People v. California Fish Co. 166 Cal 576 – 1913.)
There are many resources, beneficial uses and ecological values protected by the Public Trust Doctrine that have significant value. Under the Public Trust Doctrine the people are the beneficiaries, and as such clearly hold a property interest in natural resources and other trust assets. They are not just political constituents crying for a place at the negotiation table.
Trust assets, under the administration of State agencies, are for the benefit of all the people. The commitment to protect, conserve and improve the status of fish and wildlife resources, the quality of our inland and coastal waters is a fiduciary like duty / obligation to the people, who actually own such resources.
Agency administrators carrying out their trustee duties require professional ethics and management for the long-term, so such assets will continue to benefit future generations. It demands political will, not political favoritism. It demands openness of action and not being a shill for those who want to exploit public trust resources or other public trust assets for private gain. If the Water Board exercises its duties and withdraws water rights under its public trust responsibilities there should be no taking issue.
The people must be forever on guard against the piecemeal and incremental loss of public trusts rights, the loss of cultural, natural resources, associated uses and ecological values. The people must insist that monitoring be undertaken. They must also monitor actions of regulatory and natural resource administrators for their adherence to trustee / stewardship principles. If the administrator fail to carry out his or her trustee duties, individuals or conservation groups should meet them with a lawsuit holding them personally accountable.
The best guarantee of a reliable water supply is a system that provides reliable protection of associated public trust resources, uses and values. Only the lack of imagination stymies incorporating trust principles and good science into practical management actions to protect interests covered by the Public Trust Doctrine.
“The law locks up both man and woman
Who steals the goose from off the common,
But lets the greater felon loose
Who steals the common from the goose.”
A Medieval English Quatrain
The Doctrine of the Public Trust, Managing Natural Resources and other Assets.
SELECTED REFERENCES OF READER INTEREST
Associated Press -2014 Senior water rights data – California, Prepared by Garance Burke, Jason Dearen and Serdar Tumgoren, July 2014
Borg, Karrigan S., Joseph F. Krovoza, Jacob V. Katz and Peter B. Moyle. 2012. The Rebirth of California
Fish and Game Code Section 5937: Water For Fish. University of California, Davis Law Review, Vol. 45:809. 2012
California Department of Fish and Game (Wildlife). Lower American River Chinook Salmon Escapement Surveys for 2001, 2003, 2003, 2004, 2005, 2006, 2007, 2008, 2009, 2010, 2011 and 2012.
California State Lands Commission. 1993. California’s Rivers, A Public Trust Report. State Lands Commission. 334p.
California Trout v. State Water Resources Control Board, et al. 207 Cal. App. 3d 585 – 1989 (Cal Trout 1)
->California Trout v. Superior Court, 218 Cal. App.3d 187 –1990. (Cal Trout 2)
->California State Water Resources Control Board. 1984. Agricultural Water management for Water Purveyors., Division of Water Rights. September 1984
California Water Plan update. Bulletin 160-98
California Water Code Section 85054. “Coequal goals” mean the two goals of providing a more reliable water supply for California and protecting, restoring and enhancing the Delta ecosystem. The coequal goals shall be achieved in a manner that protects and enhances the unique cultural, recreational, natural resources and agricultural values of the Delta as an evolving place.
Cohn, Bernard S., 1970. The Constitution, the Public Trust Doctrine, and the Environment.
Utah Law Review, Vol. 1970, Number 3, Pg. 388-394.
Colborn, Theo, 1994. Pesticides – How Research has Succeeded and Failed to Translate
Science into Policy: Endocrinological Effects on Wildlife. Paper presented at the
Symposium on preventing Child Exposure to Environmental Hazards: Research and
Policy Issues. March 1994. National Wildlife Fund, Washington D.C.
Dunning, Harrison, 1989. The Public Trust: A Fundamental Doctrine of American Property Law.
19 Environmental Law, Northwest School of Law, Lewis and Clark College. 1989. Pg 515-533.
Eddy v. Simpson - 3 Cal. 249 - 1853
Final Report. 1978. Governor’s Commission to Review California Water Rights Law. State of
California, December 1978, pg 264
Garone, Philip. 2011. The fall and rise of the wetlands of California's Great Central Valley. University of California Press. 2011. Berkeley and Los Angeles, CA. 422 p.
Gion v. City of Santa Cruz - 214, 2 Cal 3d 29 – (1970)
Golden Gate Salmon Association, 2014. Welcome to the Golden Gate Salmon Rebuilding Plan.
Hart, John, 1996. Storm Over Mono: The Mono Lake Battle and the California Water Future. University of California Press, Berkeley and Los Angeles, CA. 1996. 211p.
Illinois Central R.R. Co. v State of Illinois, 146 U.S. 387 (1892)
Johnson, Ralph W. 1980. Public Trust Protection for Streams and Lake levels. U.C. Davis Law Review, University of California, Davis, CA. Vol. 14, Winter, No. 2 pg 233-267
Klass, Alexandra B. and Huang, Ling-Yee. Restoring the Trust: Water Resources and the
Public Trust Doctrine, A Manual for Advocates. Center for Progressive Reform,
Washington, D.C. White Paper #908 September 2009.
Koehler, Cynthia L. 1995. Water Rights and the Public Trust Doctrine: Resolution of the Mono Lake Controversy. Ecology Law Quarterly, Boalt Hall School of Law, University of California, Berkeley, Vol. 22, No. 3. Pg 541-589
Lin, Albert C. 2012. Public Trust and Public Nuisance: Common Law Peas in a Pod. U.C. Davis
Law Review, Vol. 45: 1075 – 1097. University of California, Davis.
Marks v. Whitney - 6 Cal 3d 251, 491 p 2D 376, 98 Cal. Rpt. 790 (1970)
Morse v. E.A. Robey & Co. 214 Cal. App, 2d 464 (1963)
National Audubon Society v. Superior Court of Alpine County (Department of Water and Power, City of Los Angeles real party of interest..(Also called Audubon) 33 Cal. 3D 419 (1983), 658 P 2d 709, 189 Cal. Rpt. 346, Rehearing Denied 464 U.S. 977, (April 14, 1983).
Natural Resources Defense Council, et al v. Roger Patterson, et al No CIV S-88-1658 LKK –Aug. 27,
Nichols, John – 2010. Thomas Jefferson Feared an Aristocracy of Corporations. The Nation, July 4,2010.
Paul, James T. 1996. The Public Trust Doctrine: Who has the Burden of Proof. Presentation at the July, 1996, Meeting of the Western Association of Wildlife and Fisheries Administrators, Honolulu, Hawaii
People ex rel Ricks Water Co. v. Elk River Mill and Lumber Co. 40 Pac Rpt 486 (1895).
People v. Gold Run Ditch and Mining Co. 66 Cal. 138 (1884)
People v. Truckee Lumber Co. - 116 Cal. 397, 48 Pac. Rpt. 374 (1897)
People v. California Fish Co. 166 Cal. 576, 138 Pac. 79, 87 (1913)
People v. Kerber 152 Cal. 731, 736. 93 Pac. 878 (1908)
Presser, Theresa S. and Samuel N. Luoma. –2006. Forecasting Selenium Discharges to the
San Francisco Bay-Delta Estuary; Ecological Effects of a Proposed San Luis Drain
Extension”. U.S. Geological Survey, Professional Paper 1646.
Robie, Ronald B. 1977. The Public Interest in Water Rights Administration. Twenty-third Annual Rocky Mountain Mineral Law Institute. Copyright by Matthew Bender & Company, Inc. New York, New York, pgs 917-940.
______________ 2012.Effective Implementation of the Public Trust Doctrine In California Water Resources Decision-Making: A View From the Bench. U.C. Davis Law Review, Vol 45 1155-1176, University of California, Davis.
Rossman, Antonio, 2008. Bring Us Law to Match Our Rivers. In California Water Law and Policy Reporter. January 2008, pg 99-102
Sax, Joseph L., 1970. The Public Trust Doctrine in Natural Resources Law: Effective Judicial Intervention – 68 Michigan Law Review, p. 471
______________, 1980. Liberating the Public Trust Doctrine from Its Historical Shackles. UC Davis Law Review, Volume 14, Number 2, Winter 1980, at 185
______________, 1992. Bringing an Ecological Perspective to Natural Resources Law: Fulfilling the Promise of the Public Trust. In Natural Resources Policy and Law: Trends and Directions. Edited by Lawrence J. MacDonnell and Sarah F. Bates. Natural Resources Law Center, University of Colorado School of Law. 1992. Pg. 148-161
State v. Superior Court (Lyon) 29 Cal. 3d. 210 (1981) - Clear Lake
State v. Superior Court (Fogerty) 29 Cal. 3d. 240 (1981) - Lake Tahoe
Stevens, Jan S. 1989. The Public Trust and In-stream Uses. In Environmental Law Vol. 19 No.
3, Northwestern School of Law of Lewis and Clark College. Pg 605-622
____________ 2004. Applying the Public Trust Doctrine to River Protection. Presented as Protecting California’s Rivers: Confluence of Science, Policy and Law. At UCD, June 2004
State of California Water Plan Update - 2005. California Department of Water Resources, pg. 394-400
Trust for Public Lands. 2001. The State of California Rivers. By Elise Holland. Western Rivers Program. The Trust for Public Land, California. September 2001.
U.S. v. State Water Resources Control Board 227 Cal. Rpt. at 161 –1986 (called Racanelli)
U. S. Geological Survey. 1998. Ground Water and Surface Water: A Single Resource. By Thomas C. Winter, Judson W. Harvey, O.Lehn Franke and William M. Ally. USGS Circular 1139 -Pg 79.
United States v. Union Pacific Railroad Company, 2008. Memorandum and Order by U.S. District Judge Frank C. Damrell, Eastern District of California, April 30, 2008. No. CIV S-06-1740 FCD/KJM
Wanger, Oliver W. 2008. Memorandum Decision and Order Granting in Part and Denying in Part
Plaintiff’s Motion for Summary Judgment (Doc. 145) and Granting in Part and Denying in Part
Federal Defendants’ Cross-motion of Summary Judgment (Doc. 160) Case 1:06-cv-00245-OWW- GSA, Document 227 Filed April 16, 2008, U.S. District Court Eastern District of California.
Wilkinson, Charles F. 1980. The Public Trust Doctrine in Public Land Law. 14 U.C. Davis Law
Review. Vol. 14, Number 2, Winter 1980.
Wood, Mary Christina. 2004. Protecting the Wildlife Trust: A Reinterpretation of Section 7 of the
Endangered Species Act. 34 Environmental Law at 605. Spring 2004.
_________________. 2014. Nature’s Trust: Environmental Law for a New Ecological Age.
University of Oregon, School of Law. Cambridge University Press. 2014. Pg. 436.
Woodruff v. North Bloomfield Mining Co. 18 F. 753 (1884)
This information is to help broaden the understanding of the Public Trust Doctrine as interpreted by several courts. Felix E. Smith is a professional fish and wildlife biologist, with 34+ years of experience with the U.S. Fish and Wildlife Service in supervisory, staff and field positions. He has over 55 years experience working on water management issues. He was one of the biologists on the study team that found the first deformed American Coot at Kesterson National Wildlife Refuge. He is a member of the Board of Directors of Save the American River Association. The comments and suggestions by Patricia Nelson and Lloyd Carter were greatly appreciated. The author can be contacted at <firstname.lastname@example.org>,