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National Audubon Soc'y v. Superior Court of Alpine County

ELR Citation: 13 ELR 20272
Nos. No. S.F. 24368, 658 P.2d 709/33 Cal. 3d 419, (Cal., 02/17/1983)

The California Supreme Court rules that the public trust doctrine is an independent source of water law and that the state Water Resources Board has both the power and the duty to reconsider Los Angeles' appropriation of water from streams feeding Mono Lake, California, taking into account both appropriative water rights and the public trust. The court first traces the development of the public trust doctrine in California and finds that it is applicable to the instant case. The court rules that the recreational and ecological values plaintiffs seek to protect are among the purposes of the public trust. Next, it holds that the public trust, which grows out of the public interest in navigable waters, protects such waters from harm caused by diversion of water from nonnavigable tributaries. The court concludes that the public trust is an affirmation of the ongoing duty of the state to protect the people's common heritage of streams, lakes, marshlands, and tidelands. Parties acquiring rights in trust property generally hold those rights subject to the trust. The state may revoke previously granted rights in trust property and only in rare circumstances may one acquire a right to use trust property free of trust restrictions. The public trust doctrine allows the state to choose between competing trust uses, but not to use resources subject to the trust for public purposes unrelated to the trust purpose.

The court also traces the development of the California water rights system and the powers of the state Water Resources Board. The state's water law has evolved into an appropriative rights system governed by the doctrine of reasonable use. The court rules that in carrying out its broad duties in allocating the state's waters, the Board has the power and obligation to consider public trust interests.

The court rules that the public trust doctrine and the water rights system are independent bodies of law, neither of which controls completely, but which must be reconciled in water resource matters. The state as sovereign retains continuing supervisory control over its navigable waters in furtherance of its public trust responsibilities. Although the state may authorize the diversion of water to remote areas of the state even though that may harm trust uses, the court rules that the state also has an affirmative duty to take such uses into account and to protect them whenever feasible. The state has a continuing duty to oversee the impact of its allocation decisions and may revise allocations.

The court concludes that since the impact of the Mono Lake diversions on public trust uses has never been considered, California law requires the Board to reconsider and reallocate the waters, after taking into account both the environmental interests protected by the public trust and the economic interests served by the diversion to Los Angeles.

The court also rules that petitioner was not required to exhaust administrative remedies at the Board before seeking relief from the superior court. It rules that CAL. WATER CODE §2501 gives a person claiming that an allocation of water violates the public trust a remedy before the Water Resources Board. Nevertheless, precedent gives the courts concurrent jurisdiction over such claims, and the expansion of the powers of the Board does not warrant reversal. The court notes that this decision is supported by provisions in the CAL. WATER CODE allowing courts hearing water cases to refer them to the Board to bring its expertise to bear as a referee or master.

A concurring opinion would expand the exclusive jurisdiction of the Water Resources Board to include this case were there a majority in favor of reconsideration of the relevant precedent.

A third opinion concurs with the majority on the relationship between the public trust doctrine and the water rights system, but dissents from the holding on exhaustion of remedies. It would give the Water Resources Board exclusive jurisdiction because of the complexity of the issues raised and the relevant expertise of the Board.

Counsel for Petitioners
F. Bruce Dodge
Morrison & Foerster
One Market Plaza, San Francisco CA94105
(415) 777-6000

Palmer Brown Madden
Van Voorhis & Skaggs
1855 Olympic Blvd. Suite 111, Walnut Creek CA 94596
(415) 937-8000

Counsel for Real Parties in Interest
Roderick E. Walston, Deputy Attorney General
Department of Justice
350 McAllister St., San Francisco CA 94102
(415) 557-3900

Adolph Moskovitz
Kronick, Moskovitz, Tiedemann & Girard
Suite 900, 555 Capitol Mall, Sacramento CA 95814
(916) 444-8920

Counsel for Amicus Curiae
Antonio Rossmann
McCutchen, Doyle, Brown & Enersen
28th Floor, 3 Embarcadero Center, San Francisco CA 94111
(415) 393-2066

Martha Guy
Hastings College of Law
198 McAllister St., San Francisco CA 94102
(415) 557-1950

Joined by Bird, Mosk, Kaus, Reynoso, and Richardson, JJ.