Time to remember Public Trust Doctrine

Facing fierce lobbying from well-financed water districts, the bill’s author, Senate President Toni Atkins, D-San Diego, acknowledged Tuesday that the bill might bet pulled from consideration until next year.

Democratic members of Congress, led by Sen. Dianne Feinstein, a powerful voice on California water issues, have demanded changes to the bill to allow for more flexibility.

And influential farm and urban water groups say SB1 would derail a series of carefully negotiated but still tentative water-sharing agreements supported by Gov. Gavin Newsom’s administration, which are designed to usher in an Era of cooperation between farmers and environmentalists. –Kasler and Sabalow, Merced Sun-Star, Sept. 12, 2019.


As we now know, state Sen. Atkins did bring the bill to a vote on Sept. 14, it passed and was enrolled awaiting the governor’s signature on Sept. 17, whereupon Gov. Newsom promised to veto it. Newsom’s promise showed a combination of cowardice and ignorance, which will be richly rewarded by both Westlands Water District and Metropolitan Water District of Southern California. The overriding lie in this deal is that the water districts will ever reach an agreement with environmentalists unless the others have been completely bought and sold. This is the same lie that governors of the state have been using for years in public relations stunts like “fixing” the Delta and all the constant palaver about “balance” on water issues. There was not fix and there is no balance: the water districts and the agribusiness corporations and residential development corporations behind them just keep on taking by means of constant threats and bribery – the old-fashioned way of bending governments to the wills of special interests.

In other words, the above story is about an on-going act of corruption that will apparently frustrate the will and decision of the state Legislature to maintain environmental law in California at pre-Trump standards. If the governor had dwelled on the problem of enforcement, he might have made sense, but clearly he is intending to protect the empty promise of water-sharing agreements so that – he imagines -- one day he will be able to hold a press conference and declare an “end to the California water wars” just like former Gov. Gray Davis once declared that “peace has broken out along the Colorado River,” which “peace” resulted in the immense increase in pressure on the San Joaquin-Sacramento Delta now threatening to turn it into stagnant, brackish slough, if only these same “agreeable” water districts would agree to pay to pipe water from above the Delta around it and into the canals flowing south to these water districts.

We appreciate the reporting on water issues of the team of Kasler and Sabalow at the Sacramento Bee. But the problem with it is that political corruption has permeated the narrative so completely that the natural resources and habitat for any creature unable to get a farm loan or a home mortgage becomes an empty abstraction. It wouldn’t do, after all, to remind the readers of the family newspaper that whole species are constantly being bargained into extinction by these “agreements” between urban lawyers and the environmental and water interests they represent. Top elected officials bless these agreements and the environment and the species crash unheard in the din of political and special-interest self-congratulatory public relations flak.

The amount of wildlife habitat is being constantly revised by well-paid scientists in the resource agencies and universities. For example, officially, after decades of remorseless growth and conversion to agland, California has still lost only 95 percent of its wetlands. But, in the law we have a moral and legal baseline called Public Trust Doctrine and although judges and the special interests they represent loathe and fear it, the doctrine surfaces at critical times, as it did in the 1983 Mono Lake Decision. The governor should look at the state’s Lands Commission website to become familiar with it. -- blj


California State Lands Commission


What is the Public Trust?

The public’s right to use California’s waterways for navigation, fishing, boating, natural habitat protection and other water oriented activities is protected by the Common Law doctrine of the Public Trust. Historically, the Public Trust has referred to the basic right of the public to use its waterways to engage in “commerce, navigation, and fisheries.” More recently, the doctrine has been broadened by various landmark court decisions to include the right to swim, boat, and engage in other forms of water recreation, and even to preserve lands in their natural state in order to protect scenic and wildlife habitat values. The Public Trust provides that tide and submerged lands and the beds of lakes, streams and other navigable waterways are to be held in trust by the State for the benefit of the people of California. The Public Trust, as a common law doctrine, is not static but is continuously evolving to protect the public’s use and needs in California’s waterways.


History of the Public Trust

Historic public rights in Great Britain’s waterways are important in California today because California adopted English Common Law in 1850. Under Common Law, the King was the trustee for public rights in waterways. In this tradition, California’s navigable beds of waterways are called Sovereign Lands. They became state property when California joined the Union on September 9, 1850 and are held by the State in trust for the people. Since 1938, the Commission has been the administrator and guardian of these valuable public lands. The Commission has administrative jurisdiction over the State’s Public Trust lands and has oversight authority over sovereign lands granted in trust by the Legislature to local governments. The Commission acts pursuant to the California Constitution, legislation, and the Public Trust Doctrine to protect the public’s interest in trust lands.



Natural Audubon Society vs. Superior Court of Alpine County (1983)

Supreme Court of California




University of Michigan School of Law

The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention, 68 Mich. L. Rev. 473 (1970)                                                                                                    

Joseph L. Sax, Berkeley Law

Recommended Citation