Professor Errol MeidingerIntroduction to U.S. Environmental Law
Albert-Ludwigs-Universität Freiburg
Prior Appropriation and the "Public Trust" Doctrine.
In 1874, the United States Supreme Court upheld a customary "prior appropriation" system for defining water rights. Developed largely by miners seeking to use water for obtaining minerals, the system provided a "first in time, first in right" or "capture" model of water ownership. With a variety of idiosyncratic qualifications, this system applies in all of the western states today. In practice it requires a claimant to put water to "beneficial use" (traditionally defined as use for human production or consumption). The states grant permits for such uses, and generally must approve the transfer of water rights from one user to another. The problem, of course, is how to protect all of the other functions that water performs. The primary approach in the U.S. has been the "public trust" doctrine, deriving originally from Roman law.
Roman law provided that "these things are common to mankind: the air, running water, the sea, and consequently the shores of the sea," (Institutes of Justinian, 2.1.1, 529 A.D.). They presumably could not be subjected to a form of ownership excluding the public. This idea was taken up in English law. While its implications remained hazy, it meant at least that citizens had a right to use waters and shorelines for navigation and fishing where the waters were subject to the ebb and flow of tides . In American law, the principle surfaced periodically, but also unpredictably. Perhaps its most important expression came from the U.S. Supreme Court in an 1892 involving questionable transfers of submerged land on the Chicago shoreline of Lake Michigan. The State of Illinois had started out to transfer the land to the City of Chicago, but the bill that eventually passed conveyed it to the Illinois Central Railroad. The case arose when the State passed a statute repealing the original transfer, and then filed an action to quiet title to the land. The Court held that the State retained title because the public trust doctrine made the initial transfer invalid.
That the State holds the title to the lands under the navigable waters of Lake Michigan . . . we have already shown, and that title necessarily carries with it control over the waters above them whenever the lands are subjected to use . . . . But it is a title different in character from that which the State holds in lands intended for sale. . . . It is a title held in trust for the people of the State that they may enjoy the navigation of the waters, carry on commerce over them, and have liberty of fishing therein freed from the obstruction or interference of private parties. . . . The trust devolving upon the State for the public, and which can only be discharged by the management and control of property in which the public has an interest, cannot be relinquished by a transfer of the property. The control of the State for the purposes of the trust can never be lost, except as to such parcels as are used in promoting the interests of the public therein, or can be disposed of without any substantial impairment of the public interest in the lands and waters remaining. . . . 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 . . . than it can abdicate its police powers in the administration of government and the preservation of the peace. In the administration of government the use of such powers may for a limited period be delegated to a municipality or other body, but there always remains with the State the right to revoke those powers and exercise them in a more direct manner, and one more conformable to its wishes. So with trusts connected with public property, or property of a special character, like lands under navigable waters, they cannot be placed entirely beyond the direction and control of the State. Illinois Central Railroad Co. v. Illinois, 146 U.S. 387, 1892.
The opinion was written by Justice Field, also the author of the 1874 Atchison decision upholding the prior appropriation system in Montana Territory. Perhaps it was inevitable that the relationship between the public trust and prior appropriation doctrines would come to a head, but it has taken a century to do so, and the process remains far from complete. In reading the Mono Lake opinion below, keep in mind several questions. First, what is the substantive content of the public trust duty? Does it have any enduring meaning, and if so, what is it? Second, are the institutional mechanisms through which the doctrine is to be implemented up to the task? How will they work?
Before reading the decision, you may want to view the place its about. There are many websites with photos, but the following is a good place to start http://www.monolake.org/photogallery/photo.htm.
NATIONAL AUDOBON SOCIETY v. SUPERIOR COURT
("Mono Lake")
Supreme Court of California, 1983
33 Cal.3d 419, 658 P.2d 709, 189 Cal.Rptr. 346
BROUSSARD, J. Mono Lake, the second largest lake in California, sits at the base of the Sierra Nevada escarpment near the eastern entrance to Yosemite National Park. The lake is saline; it contains no fish but supports a large population of brine shrimp which feed vast numbers of nesting and migratory birds. Islands in the lake protect a large breeding colony of California gulls, and the lake itself serves as a haven on the migration route for thousands of Northern Phalarope, Wilson's Phalarope, and Eared Grebe. Towers and spires of tufa on the north and south shores are matters of geological interest and a tourist attraction.
Although Mono Lake receives some water from rain and snow on the lake surface, historically most of its supply came from snowmelt in the Sierra Nevada. Five freshwater streams -- Mill, Lee Vining, Walker, Parker and Rush Creeks -- arise near the crest of the range and carry the annual runoff to the west shore of the lake. In 1940, however, the Division of Water Resources, the predecessor to the present California Water Resources Board, granted the Department of Water and Power of the City of Los Angeles (hereafter DWP) a permit to appropriate virtually the entire flow of four of the five streams flowing into the lake. DWP promptly constructed facilities to divert about half the flow of these streams into DWP's Owens Valley aqueduct. In 1970 DWP completed a second diversion tunnel, and since that time has taken virtually the entire flow of these streams.
As a result of these diversions, the level of the lake has dropped; the surface area has diminished by one-third; one of the two principal islands in the lake has become a peninsula, exposing the gull rookery there to coyotes and other predators and causing the gulls to abandon the former island. The ultimate effect of continued diversions is a matter of intense dispute, but there seems little doubt that both the scenic beauty and the ecological values of Mono Lake are imperiled.
Plaintiffs filed suit in superior court to enjoin the DWP diversions on the theory that the shores, bed and waters of Mono Lake are protected by a public trust. Plaintiffs' suit was transferred to the federal district court, which requested that the state courts determine the relationship between the public trust doctrine and the water rights system, and decide whether plaintiffs must exhaust administrative remedies before the Water Board prior to filing suit. The superior court then entered summary judgments against plaintiffs on both matters, ruling that the public trust doctrine offered no independent basis for challenging the DWP diversions, and that plaintiffs had failed to exhaust administrative remedies. Plaintiffs petitioned us directly for writ of mandate to review that decision; in view of the importance of the issues presented, we issued an alternative writ. (See County of Sacramento v. Hickman (1967) 66 Cal.2d 841, 845 [59 Cal.Rptr. 609, 428 P.2d 593].)
This case brings together for the first time two systems of legal thought: the appropriative water rights system which since the days of the gold rush has dominated California water law, and the public trust doctrine which, after evolving as a shield for the protection of tidelands, now extends its protective scope to navigable lakes. Ever since we first recognized that the public trust protects environmental and recreational values (Marks v. Whitney (1971) 6 Cal.3d 251 [98 Cal.Rptr. 790, 491 P.2d 374]), the two systems of legal thought have been on a collision course. (Johnson, Public Trust Protection for Stream Flows and Lake Levels (1980) 14 U.C. Davis L.Rev. 233.) They meet in a unique and dramatic setting which highlights the clash of values. Mono Lake is a scenic and ecological treasure of national significance, imperiled by continued diversions of water; yet, the need of Los Angeles for water is apparent, its reliance on rights granted by the board evident, the cost of curtailing diversions substantial.
Attempting to integrate the teachings and values of both the public trust and the appropriative water rights system, we have arrived at certain conclusions which we briefly summarize here. In our opinion, the core of the public trust doctrine is the state's authority as sovereign to exercise a continuous supervision and control over the navigable waters of the state and the lands underlying those waters. This authority applies to the waters tributary to Mono Lake and bars DWP or any other party from claiming a vested right to divert waters once it becomes clear that such diversions harm the interests protected by the public trust. The corollary rule which evolved in tideland and lakeshore cases barring conveyance of rights free of the trust except to serve trust purposes cannot, however, apply without modification to flowing waters. The prosperity and habitability of much of this state requires the diversion of great quantities of water from its streams for purposes unconnected to any navigation, commerce, fishing, recreation, or ecological use relating to the source stream. The state must have the power to grant nonvested usufructuary rights to appropriate water even if diversions harm public trust uses. Approval of such diversion without considering public trust values, however, may result in needless destruction of those values. Accordingly, we believe that before state courts and agencies approve water diversions they should consider the effect of such diversions upon interests protected by the public trust, and attempt, so far as feasible, to avoid or minimize any harm to those interests.
The water rights enjoyed by DWP were granted, the diversion was commenced, and has continued to the present without any consideration of the impact upon the public trust. An objective study and reconsideration of the water rights in the Mono Basin is long overdue. The water law of California -- which we conceive to be an integration including both the public trust doctrine and the board-administered appropriative rights system -- permits such a reconsideration; the values underlying that integration require it. ...
DWP expects that its future diversions of about 100,000 acre-feet per year will lower the lake's surface level another 43 feet and reduce its surface area by about 22 square miles over the next 80 to 100 years, at which point the lake will gradually approach environmental equilibrium (the point at which inflow from precipitation, groundwater and nondiverted tributaries equals outflow by evaporation and other means). At this point, according to DWP, the lake will stabilize at a level 6,330 feet above the sea's, with a surface area of approximately 38 square miles. Thus, by DWP's own estimates, unabated diversions will ultimately produce a lake that is about 56 percent smaller on the surface and 42 percent shallower than its natural size.
Plaintiffs consider these projections unrealistically optimistic. They allege that, 50 years hence, the lake will be at least 50 feet shallower than it now is, and hold less than 20 percent of its natural volume. Further, plaintiffs fear that "the lake will not stabilize at this level," but "may continue to reduce in size until it is dried up." Moreover, unlike DWP, plaintiffs believe that the lake's gradual recession indirectly causes a host of adverse environmental impacts. Many of these alleged impacts are related to an increase in the lake's salinity, caused by the decrease in its water volume.
As noted above, Mono Lake has no outlets. The lake loses water only by evaporation and seepage. Natural salts do not evaporate with water, but are left behind. Prior to commencement of the DWP diversions, this naturally rising salinity was balanced by a constant and substantial supply of fresh water from the tributaries. Now, however, DWP diverts most of the fresh water inflow. The resultant imbalance between inflow and outflow not only diminishes the lake's size, but also drastically increases its salinity.
Plaintiffs predict that the lake's steadily increasing salinity, if unchecked, will wreck havoc throughout the local food chain. They contend that the lake's algae, and the brine shrimp and brine flies that feed on it, cannot survive the projected salinity increase. To support this assertion, plaintiffs point to a 50 percent reduction in the shrimp hatch for the spring of 1980 and a startling 95 percent reduction for the spring of 1981. These reductions affirm experimental evidence indicating that brine shrimp populations diminish as the salinity of the water surrounding them increases. (See Task Force Report at pp. 20-21.) DWP admits these substantial reductions, but blames them on factors other than salinity.
DWP's diversions also present several threats to the millions of local and migratory birds using the lake. First, since many species of birds feed on the lake's brine shrimp, any reduction in shrimp population allegedly caused by rising salinity endangers a major avian food source. The Task Force Report considered it "unlikely that any of Mono Lake's major bird species . . . will persist at the lake if populations of invertebrates disappear." (Task Force Report at p. 20.) Second, the increasing salinity makes it more difficult for the birds to maintain osmotic equilibrium with their environment.
The California gull is especially endangered, both by the increase in salinity and by loss of nesting sites. Ninety-five percent of this state's gull population and 25 percent of the total species population nests at the lake. (Task Force Report at p. 21.) Most of the gulls nest on islands in the lake. As the lake recedes, land between the shore and some of the islands has been exposed, offering such predators as the coyote easy access to the gull nests and chicks. In 1979, coyotes reached Negrit Island, once the most popular nesting site, and the number of gull nests at the lake declined sharply. In 1981, 95 percent of the hatched chicks did not survive to maturity. Plaintiffs blame this decline and alarming mortality rate on the predator access created by the land bridges; DWP suggests numerous other causes, such as increased ambient temperatures and human activities, and claims that the joining of some islands with the mainland is offset by the emergence of new islands due to the lake's recession.
Plaintiffs allege that DWP's diversions adversely affect the human species and its activities as well. First, as the lake recedes, it has exposed more than 18,000 acres of lake bed composed of very fine silt which, once dry, easily becomes airborne in winds. This silt contains a high concentration of alkali and other minerals that irritate the mucous membranes and respiratory systems of humans and other animals. (See Task Force Report at p. 22.) While the precise extent of this threat to the public health has yet to be determined, such threat as exists can be expected to increase with the exposure of additional lake bed. DWP, however, claims that its diversions neither affect the air quality in Mono Basin nor present a hazard to human health.
Furthermore, the lake's recession obviously diminishes its value as an economic, recreational, and scenic resource. Of course, there will be less lake to use and enjoy. The declining shrimp hatch depresses a local shrimping industry. The rings of dry lake bed are difficult to traverse on foot, and thus impair human access to the lake, and reduce the lake's substantial scenic value. Mono Lake has long been treasured as a unique scenic, recreational and scientific resource (see, e.g., City of Los Angeles v. Aitken, supra, 10 Cal.App.2d 460, 462-463; Task Force Report at pp. 22-24), but continued diversions threaten to turn it into a desert wasteland like the dry bed of Owens Lake.
... On DWP's motion, the district court stayed its proceedings under the federal abstention doctrine n12 to allow resolution by California courts of .. important issues of California law: What is the interrelationship of the public trust doctrine and the California water rights system, in the context of the right of the Los Angeles Department of Water and Power ('Department') to divert water from Mono Lake pursuant to permits and licenses issued under the California water rights system? In other words, is the public trust doctrine in this context subsumed in the California water rights system, or does it function independently of that system? Stated differently, can the plaintiffs challenge the Department's permits and licenses by arguing that those permits and licenses are limited by the public trust doctrine, or must the plaintiffs challenge the permits and licenses by arguing that the water diversions and uses authorized thereunder are not 'reasonable or beneficial' as required under the California water rights system? ...
[The State Suprior] court entered summary judgment against plaintiffs. Its notice of intended ruling stated that "[the] California water rights system is a comprehensive and exclusive system for determining the legality of the diversions of the City of Los Angeles in the Mono Basin . . . . The Public Trust Doctrine does not function independently of that system. This Court concludes that as regards the right of the City of Los Angeles to divert waters in the Mono Basin that the Public Trust Doctrine is subsumed in the water rights system of the state." ...
2. The Public Trust Doctrine in California.
"By the law of nature these things are common to mankind -- the air, running water, the sea and consequently the shores of the sea." (Institutes of Justinian 2.1.1.) From this origin in Roman law, the English common law evolved the concept of the public trust, under which the sovereign owns "all of its navigable waterways and the lands lying beneath them 'as trustee of a public trust for the benefit of the people.'" (Colberg, Inc. v. State of California ex rel. Dept. Pub. Wks. (1967) 67 Cal.2d 408, 416 [62 Cal.Rptr. 401, 432 P.2d 3].) n15 The State of California acquired title as trustee to such lands and waterways upon its admission to the union (City of Berkeley v. Superior Court (1980) 26 Cal.3d 515, 521 [162 Cal.Rptr. 327, 606 P.2d 362] and cases there cited); from the earliest days (see Eldridge v. Cowell (1854) 4 Cal. 80, 87) its judicial decisions have recognized and enforced the trust obligation.
Three aspects of the public trust doctrine require consideration in this opinion: the purpose of the trust; the scope of the trust, particularly as it applies to the nonnavigable tributaries of a navigable lake; and the powers and duties of the state as trustee of the public trust. We discuss these questions in the order listed.
(a) The purpose of the public trust.
The objective of the public trust has evolved in tandem with the changing public perception of the values and uses of waterways. As we observed in Marks v. Whitney, supra, 6 Cal.3d 251, "[public] trust easements [were] traditionally defined in terms of navigation, commerce and fisheries. They have been held to include the right to fish, hunt, bathe, swim, to use for boating and general recreation purposes the navigable waters of the state, and to use the bottom of the navigable waters for anchoring, standing, or other purposes." (P. 259.) We went on, however, to hold that the traditional triad of uses -- navigation, commerce and fishing -- did not limit the public interest in the trust res. In language of special importance to the present setting, we stated that "[the] public uses to which tidelands are subject are sufficiently flexible to encompass changing public needs. In administering the trust the state is not burdened with an outmoded classification favoring one mode of utilization over another. [Citation.] There is a growing public recognition that one of the most important public uses of the tidelands -- a use encompassed within the tidelands trust -- is the preservation of those lands in their natural state, so that they may serve as ecological units for scientific study, as open space, and as environments which provide food and habitat for birds and marine life, and which favorably affect the scenery and climate of the area." (Pp. 259-260.)
Mono Lake is a navigable waterway. (City of Los Angeles v. Aitken, supra, 10 Cal.App.2d 460, 466.) It supports a small local industry which harvests brine shrimp for sale as fish food, which endeavor probably qualifies the lake as a "fishery" under the traditional public trust cases. The principal values plaintiffs seek to protect, however, are recreational and ecological -- the scenic views of the lake and its shore, the purity of the air, and the use of the lake for nesting and feeding by birds. Under Marks v. Whitney, supra, 6 Cal.3d 251, it is clear that protection of these values is among the purposes of the public trust.
(b) The scope of the public trust.
Early English decisions generally assumed the public trust was limited to tidal waters and the lands exposed and covered by the daily tides (see Stevens, op. cit. supra, 14 U.C. Davis L.Rev. 195, 201 and authorities there cited); many American decisions, including the leading California cases, also concern tidelands. (See, e.g., City of Berkeley v. Superior Court (1980) 26 Cal.3d 515 [162 Cal.Rptr. 327, 606 P.2d 362]; Marks v. Whitney, supra, 6 Cal.3d 251; People v. California Fish Co. (1913) 166 Cal. 576 [138 P. 79].) It is, however, well settled in the United States generally and in California that the public trust is not limited by the reach of the tides, but encompasses all navigable lakes and streams. (See Illinois Central Railroad Co. v. Illinois (1892) 146 U.S. 387 [36 L.Ed. 1018, 13 S.Ct. 110] (Lake Michigan); State of California v. Superior Court (Lyon) (1981) 29 Cal.3d 210 [172 Cal.Rptr. 696, 625 P.2d 239] (Clear Lake); State of California v. Superior Court (Fogerty) (1981) 29 Cal.3d 240 [172 Cal.Rptr. 713, 625 P.2d 256] (Lake Tahoe); People v. Gold Run D. & M. Co. (1884) 66 Cal. 138 [4 P. 1152] (Sacramento River); Hitchings v. Del Rio Woods Recreation & Park Dist. (1976) 55 Cal.App.3d 560 [127 Cal.Rptr. 830] (Russian River).)
County of El Dorado (1979) 96 Cal.App.3d 403 [157 Cal.Rptr. 815] (South Fork of American River); People ex rel. Baker v. Mack (1971) 19 Cal.App.3d 1040 [97 Cal.Rptr. 448] (Fall River).)
Mono Lake is, as we have said, a navigable waterway. The beds, shores and waters of the lake are without question protected by the public trust. The streams diverted by DWP, however, are not themselves navigable. Accordingly, we must address in this case a question not discussed in any recent public trust case -- whether the public trust limits conduct affecting nonnavigable tributaries to navigable waterways.
This question was considered in two venerable California decisions. The first, People v. Gold Run D. & M. Co., supra, 66 Cal. 138 [4 P. 1152], is one of the epochal decisions of California history, a signpost which marked the transition from a mining economy to one predominately commercial and agricultural. The Gold Run Ditch and Mining Company and other mining operators used huge water cannon to wash gold-bearing gravel from hillsides; in the process they dumped 600,000 cubic yards of sand and gravel annually into the north fork of the American River. The debris, washed downstream, raised the beds of the American and Sacramento Rivers, impairing navigation, polluting the waters, and creating the danger that in time of flood the rivers would turn from their channels and inundate nearby lands.
Although recognizing that its decision might destroy the remains of the state's gold mining industry, the court affirmed an injunction barring the dumping. The opinion stressed the harm to the navigability of the Sacramento River, "a great public highway, in which the people of the State have paramount and controlling rights." (P. 146.) Defendant's dumping, the court said, was "an unauthorized invasion of the rights of the public to its navigation." (P. 147.) Rejecting the argument that dumping was sanctioned by custom and legislative acquiescence, the opinion asserted that "the rights of the people in the navigable rivers of the State are paramount and controlling. The State holds the absolute right to all navigable waters and the soils under them . . . . The soil she holds as trustee of a public trust for the benefit of the people; and she may, by her legislature, grant it to an individual; but she cannot grant the rights of the people to the use of the navigable waters flowing over it . . . ." (Pp. 151-152.)
In the second decision, People v. Russ (1901) 132 Cal. 102 [64 P. 111], the defendant erected dams on sloughs which adjoined a navigable river. Finding the sloughs nonnavigable, the trial court gave judgment for defendant. We reversed, directing the trial court to make a finding as to the effect of the dams on the navigability of the river. "Directly diverting waters in material quantities from a navigable stream may be enjoined as a public nuisance. Neither may the waters of a navigable stream be diverted in substantial quantities by drawing from its tributaries . . . . If the dams upon these sloughs result in the obstruction of Salt River as a navigable stream, they constitute a public nuisance." (P. 106.)
DWP points out that the Gold Run decision did not involve diversion of water, and that in Russ there had been no finding of impairment to navigation. But the principles recognized by those decisions apply fully to a case in which diversions from a nonnavigable tributary impair the public trust in a downstream river or lake. "If the public trust doctrine applies to constrain fills which destroy navigation and other public trust uses in navigable waters, it should equally apply to constrain the extraction of water that destroys navigation and other public interests. Both actions result in the same damage to the public interest." (Johnson, Public Trust Protection for Stream Flows and Lake Levels (1980) 14 U.C. Davis L.Rev. 233, 257-258; see Dunning, The Significance of California's Public Trust Easement for California Water Rights Law (1980) 14 U.C. Davis L.Rev. 357, 359-360.)
We conclude that the public trust doctrine, as recognized and developed in California decisions, protects navigable waters n18 from harm caused by diversion of nonnavigable tributaries.
(c) Duties and powers of the state as trustee.
In the following review of the authority and obligations of the state as administrator of the public trust, the dominant theme is the state's sovereign power and duty to exercise continued supervision over the trust. One consequence, of importance to this and many other cases, is that parties acquiring rights in trust property generally hold those rights subject to the trust, and can assert no vested right to use those rights in a manner harmful to the trust.
As we noted recently in City of Berkeley v. Superior Court, supra, 26 Cal.3d 515, the decision of the United States Supreme Court in Illinois Central Railroad Company v. Illinois, supra, 146 U.S. 387, "remains the primary authority even today, almost nine decades after it was decided." (P. 521.) The Illinois Legislature in 1886 had granted the railroad in fee simple 1,000 acres of submerged lands, virtually the entire Chicago waterfront. Four years later it sought to revoke that grant. The Supreme Court upheld the revocatory legislation. Its opinion explained that lands under navigable waters conveyed to private parties for wharves, docks, and other structures in furtherance of trust purposes could be granted free of the trust because the conveyance is consistent with the purpose of the trust. But the legislature, it held, did not have the power to convey the entire city waterfront free of trust, thus barring all future legislatures from protecting the public interest. The opinion declares that: "A grant of all the lands under the navigable waters of a State has never been adjudged to be within the legislative power; and any attempted grant of the kind would be held, if not absolutely void on its face, as subject to revocation. The State can no more abdicate its trust over property in which the whole people are interested, like navigable waters and soils under them, . . . than it can abdicate its police powers in the administration of government and the preservation of the peace. In the administration of government the use of such powers may for a limited period be delegated to a municipality or other body, but there always remains with the State the right to revoke those powers and exercise them in a more direct manner, and one more conformable to its wishes. So with trusts connected with public property, or property of a special character, like lands under navigable waterways, they cannot be placed entirely beyond the direction and control of the State." (Pp. 453-454 [36 L.Ed. pp. 1042-1043].) ...
In summary, the foregoing cases amply demonstrate the continuing power of the state as administrator of the public trust, a power which extends to the revocation of previously granted rights or to the enforcement of the trust against lands long thought free of the trust (see City of Berkeley v. Superior Court, supra, 26 Cal.3d 515). Except for those rare instances in which a grantee may acquire a right to use former trust property free of trust restrictions, the grantee holds subject to the trust, and while he may assert a vested right to the servient estate (the right of use subject to the trust) and to any improvements he erects, he can claim no vested right to bar recognition of the trust or state action to carry out its purposes.
Since the public trust doctrine does not prevent the state from choosing between trust uses (Colberg, Inc. v. State of California, supra, 67 Cal.2d 408, 419; County of Orange v. Heim (1973) 30 Cal.App.3d 694, 707 [106 Cal.Rptr. 825]), the Attorney General of California, seeking to maximize state power under the trust, argues for a broad concept of trust uses. In his view, "trust uses" encompass all public uses, so that in practical effect the doctrine would impose no restrictions on the state's ability to allocate trust property. We know of no authority which supports this view of the public trust, except perhaps the dissenting opinion in Illinois Central Railroad Co. v. Illinois, supra, 146 U.S. 387. Most decisions and commentators assume that "trust uses" relate to uses and activities in the vicinity of the lake, stream, or tidal reach at issue (see e.g., City of Los Angeles v. Aitken, supra, 10 Cal.App.2d 460, 468-469; State of Cal. ex rel. State Lands Com. v. County of Orange, supra, 134 Cal.App.3d 20; Sax, op. cit. supra, 68 Mich.L.Rev. 471, 542). The tideland cases make this point clear; after City of Berkeley v. Superior Court, supra, 26 Cal.3d 515, no one could contend that the state could grant tidelands free of the trust merely because the grant served some public purpose, such as increasing tax revenues, or because the grantee might put the property to a commercial use.
Thus, the public trust is more than an affirmation of state power to use public property for public purposes. It is an affirmation of the duty 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 the abandonment of that right is consistent with the purposes of the trust.
3. The California Water Rights System.
"It is laid down by our law writers, that the right of property in water is usufructuary, and consists not so much of the fluid itself as the advantage of its use." (Eddy v. Simpson (1853) 3 Cal. 249, 252.) Hence, the cases do not speak of the ownership of water, but only of the right to its use. (Rancho Santa Margarita v. Vail (1938) 11 Cal.2d 501, 554-555 [81 P.2d 533]; see generally Hutchins, The Cal. Law of Water Rights (1956) pp. 36-38; 1 Rogers & Nichols, Water for Cal. (1967) p. 191.) Accordingly, Water Code section 102 provides that "[all] water within the State is the property of the people of the State, but the right to the use of water may be acquired by appropriation in the manner provided by law." ...
In 1926 ... a decision of this court led to a constitutional amendment which radically altered water law in California and led to an expansion of the powers of the board. In Herminghaus v. South. California Edison Co. (1926) 200 Cal. 81 [252 P. 607], we held not only that riparian rights took priority over appropriations authorized by the Water Board, a point which had always been clear, but that as between the riparian and the appropriator, the former's use of water was not limited by the doctrine of reasonable use. (Pp. 100-101.) That decision led to a constitutional amendment which abolished the right of a riparian to devote water to unreasonable uses, and established the doctrine of reasonable use as an overriding feature of California water law. ...
The 1928 amendment did not declare whether the in-stream uses protected by the public trust could be considered reasonable and beneficial uses. In a 1936 case involving Mono Lake, however, the court squarely rejected DWP's argument that use of stream water to maintain the lake's scenic and recreational values violated the constitutional provision barring unreasonable uses. (County of Los Angeles v. Aitken, supra, 10 Cal.App.2d 460.) The point is now settled by statute, Water Code section 1243 providing that "[the] use of water for recreation and preservation and enhancement of fish and wildlife resources is a beneficial use of water." (See also California Trout, Inc. v. State Water Resources Control Bd. (1979) 90 Cal.App.3d 816, 821 [153 Cal.Rptr. 672].)
The 1928 amendment itself did not expand the authority of the Water Board. The board remained, under controlling judicial decisions, a ministerial body with the limited task of determining priorities between claimants seeking to appropriate unclaimed water. More recent statutory and judicial developments, however, have greatly enhanced the power of the Water Board to oversee the reasonable use of water and, in the process, made clear its authority to weigh and protect public trust values.
In 1955, the Legislature declared that in acting on appropriative applications, "the board shall consider the relative benefit to be derived from (1) all beneficial uses of the water concerned including, but not limited to, use for domestic, irrigation, municipal, industrial, preservation and enhancement of fish and wildlife, recreational, mining and power purposes . . . . The board may subject such appropriations to such terms and conditions as in its judgment will best develop, conserve, and utilize in the public interest, the water sought to be appropriated." (Wat. Code, @ 1257.) In 1959 it stated that "[the] use of water for recreation and preservation and enhancement of fish and wildlife resources is a beneficial use of water." (Wat. Code, @ 1243.) Finally in 1969 the Legislature instructed that "[in] determining the amount of water available for appropriation, the board shall take into account, whenever it is in the public interest, the amounts of water needed to remain in the source for protection of beneficial uses." (Wat. Code, @ 1243.5.)
Judicial decisions have also expanded the powers of the Water Board. ...
Thus, the function of the Water Board has steadily evolved from the narrow role of deciding priorities between competing appropriators to the charge of comprehensive planning and allocation of waters. This change necessarily affects the board's responsibility with respect to the public trust. The board of limited powers of 1913 had neither the power nor duty to consider interests protected by the public trust; the present board, in undertaking planning and allocation of water resources, is required by statute to take those interests into account.
4. The relationship between the Public Trust Doctrine and the California Water Rights System.
As we have seen, the public trust doctrine and the appropriative water rights system administered by the Water Board developed independently of each other. Each developed comprehensive rules and principles which, if applied to the full extent of their scope, would occupy the field of allocation of stream waters to the exclusion of any competing system of legal thought. Plaintiffs, for example, argue that the public trust is antecedent to and thus limits all appropriative water rights, an argument which implies that most appropriative water rights in California were acquired and are presently being used unlawfully. Defendant DWP, on the other hand, argues that the public trust doctrine as to stream waters has been "subsumed" into the appropriative water rights system and, absorbed by that body of law, quietly disappeared; according to DWP, the recipient of a board license enjoys a vested right in perpetuity to take water without concern for the consequences to the trust.
We are unable to accept either position. In our opinion, both the public trust doctrine and the water rights system embody important precepts which make the law more responsive to the diverse needs and interests involved in the planning and allocation of water resources. To embrace one system of thought and reject the other would lead to an unbalanced structure, one which would either decry as a breach of trust appropriations essential to the economic development of this state, or deny any duty to protect or even consider the values promoted by the public trust. Therefore, seeking an accommodation which will make use of the pertinent principles of both the public trust doctrine and the appropriative water rights system, and drawing upon the history of the public trust and the water rights system, the body of judicial precedent, and the views of expert commentators, we reach the following conclusions:
a. The state as sovereign retains continuing supervisory control over its navigable waters and the lands beneath those waters. This principle, fundamental to the concept of the public trust, applies to rights in flowing waters as well as to rights in tidelands and lakeshores; it prevents any party from acquiring a vested right to appropriate water in a manner harmful to the interests protected by the public trust.
b. As a matter of current and historical necessity, the Legislature, acting directly or through an authorized agency such as the Water Board, has the power to grant usufructuary licenses that will permit an appropriator to take water from flowing streams and use that water in a distant part of the state, even though this taking does not promote, and may unavoidably harm, the trust uses at the source stream. The population and economy of this state depend upon the appropriation of vast quantities of water for uses unrelated to in-stream trust values. California's Constitution (see art. X, @ 2), its statutes (see Wat. Code, @@ 100, 104), decisions (see, e.g., Waterford I. Dist. v. Turlock I. Dist. (1920) 50 Cal.App. 213, 220 [194 P. 757]), and commentators (e.g., Hutchins, The Cal. Law of Water Rights, op. cit. supra, p. 11) all emphasize the need to make efficient use of California's limited water resources: all recognize, at least implicitly, that efficient use requires diverting water from in-stream uses. Now that the economy and population centers of this state have developed in reliance upon appropriated water, it would be disingenuous to hold that such appropriations are and have always been improper to the extent that they harm public trust uses, and can be justified only upon theories of reliance or estoppel.
c. The state has an affirmative duty to take the public trust into account in the planning and allocation of water resources, and to protect public trust uses whenever feasible. Just as the history of this state shows that appropriation may be necessary for efficient use of water despite unavoidable harm to public trust values, it demonstrates that an appropriative water rights system administered without consideration of the public trust may cause unnecessary and unjustified harm to trust interests. (See Johnson, op. cit. supra, 14 U.C. Davis L.Rev. 233, 256-257; Robie, Some Reflections on Environmental Considerations in Water Rights Administration (1972) 2 Ecology L.Q. 695, 710-711; Comment, op. cit. supra, 33 Hastings L.J. 653, 654.) As a matter of practical necessity the state may have to approve appropriations despite foreseeable harm to public trust uses. In so doing, however, the state must bear in mind its duty as trustee to consider the effect of the taking on the public trust (see United Plainsmen v. N.D. State Water Cons. Commission (N.D. 1976) 247 N.W.2d 457, 462-463), and to preserve, so far as consistent with the public interest, the uses protected by the trust.
Once the state has approved an appropriation, the public trust imposes a duty of continuing supervision over the taking and use of the appropriated water. In exercising its sovereign power to allocate water resources in the public interest, the state is not confined by past allocation decisions which may be incorrect in light of current knowledge or inconsistent with current needs.
The state accordingly has the power to reconsider allocation decisions even though those decisions were made after due consideration of their effect on the public trust. The case for reconsidering a particular decision, however, is even stronger when that decision failed to weigh and consider public trust uses. In the case before us, the salient fact is that no responsible body has ever determined the impact of diverting the entire flow of the Mono Lake tributaries into the Los Angeles Aqueduct. This is not a case in which the Legislature, the Water Board, or any judicial body has determined that the needs of Los Angeles outweigh the needs of the Mono Basin, that the benefit gained is worth the price. Neither has any responsible body determined whether some lesser taking would better balance the diverse interests. Instead, DWP acquired rights to the entire flow in 1940 from a water board which believed it lacked both the power and the duty to protect the Mono Lake environment, and continues to exercise those rights in apparent disregard for the resulting damage to the scenery, ecology, and human uses of Mono Lake.
It is clear that some responsible body ought to reconsider the allocation of the waters of the Mono Basin. No vested rights bar such reconsideration. We recognize the substantial concerns voiced by Los Angeles -- the city's need for water, its reliance upon the 1940 board decision, the cost both in terms of money and environmental impact of obtaining water elsewhere. Such concerns must enter into any allocation decision. We hold only that they do not preclude a reconsideration and reallocation which also takes into account the impact of water diversion on the Mono Lake environment. . . .
6. Conclusion.
This has been a long and involved answer to the two questions posed by the federal district court. In summarizing our opinion, we will essay a shorter version of our response.
The federal court inquired first of the interrelationship between the public trust doctrine and the California water rights system, asking whether the "public trust doctrine in this context [is] subsumed in the California water rights system, or . . . [functions] independently of that system?" Our answer is "neither." The public trust doctrine and the appropriative water rights system are parts of an integrated system of water law. The public trust doctrine serves the function in that integrated system of preserving the continuing sovereign power of the state to protect public trust uses, a power which precludes anyone from acquiring a vested right to harm the public trust, and imposes a continuing duty on the state to take such uses into account in allocating water resources.
Restating its question, the federal court asked: "[Can] the plaintiffs challenge the Department's permits and licenses by arguing that those permits and licenses are limited by the public trust doctrine, or must the plaintiffs . . . [argue] that the water diversions and uses authorized thereunder are not 'reasonable or beneficial' as required under the California water rights system?" We reply that plaintiffs can rely on the public trust doctrine in seeking reconsideration of the allocation of the waters of the Mono Basin. ...
This opinion is but one step in the eventual resolution of the Mono Lake controversy. We do not dictate any particular allocation of water. Our objective is to resolve a legal conundrum in which two competing systems of thought -- the public trust doctrine and the appropriative water rights system -- existed independently of each other, espousing principles which seemingly suggested opposite results. We hope by integrating these two doctrines to clear away the legal barriers which have so far prevented either the Water Board or the courts from taking a new and objective look at the water resources of the Mono Basin. The human and environmental uses of Mono Lake -- uses protected by the public trust doctrine -- deserve to be taken into account. Such uses should not be destroyed because the state mistakenly thought itself powerless to protect them.
Let a peremptory writ of mandate issue commanding the Superior Court of Alpine County to vacate its judgment in this action and to enter a new judgment consistent with the views stated in this opinion.
. . . [concurring and dissenting opinions omitted]
NOTES AND QUESTIONS: