The Mono Lake Decision: Protecting a Common Heritage Resource from Death by Diversion

Harrison C. Dunning

Editors' Summary: In the landmark Mono Lake case, National Audubon Society v. Superior Court, 13 ELR 20272, the California Supreme Court ruled that long-established water rights are subject to limitations protecting the public trust in navigable waters. The decision is introduced in Rossmann, The Public Trust in Appropriated Waters: California High Court Decides Mono Lake Case, 13 ELR 10109 (1983). In this article, Harrison C. Dunning analyzes the implications of the decision. Professor Dunning explains that the ruling is a logical extension of the application of public trust protection in land law. It also is a significant change in California water law because it establishes that the state water board has the duty both to consider public trust values in approving and reviewing water allocations and to minimize harm to those values to the maximum extent feasible. In addition, the case is significant because the court seemed to treat the public trust as an expression of the authority of the sovereign over "common heritage" resources. Professor Dunning assesses the accommodation of the Mono Lake decision with existing California water law and analyzes its likely application to groundwater management and federal water rights. He also suggests that the court's reluctant affirmation of dual court and water board jurisdiction over water resource public trust cases was intended to allow judicial usurpation of water board jurisdiction only to the extent necessary to ensure that the board properly exercised its newly articulated responsibility to protect public trust values. He concludes by noting that the decision should be viewed not as a disruption of a stable body of law, but simply as the most recent in a series of adaptations of California water law to keep it in step with contemporary needs for water resources.

Mr. Dunning is a Professor of Law at the University of California at Davis. The research assistance of Lynn Hutchins, a law student at Davis, is gratefully acknowledged.

[13 ELR 10144]

In a landmark decision the Supreme Court of California has ruled that water rights are subject to limitations protecting the public trust in navigable waters. This is so, according to the court, because the state as a sovereign has the authority and the duty "to protect the people's common heritage of streams, lakes, marshlands and tidelands."¹

Public trust protection has long been provided for tidelands in California, through an accommodation between the protective principles of the public trust doctrine and conventional principles of land law.² But the court in the Mono Lake case has now mandated similar protection for a lake in a situation that requires an accommodation between the public trust doctrine and conventional principles of water law.

Although the court uses dramatic language, saying that two systems of legal thought have been on a "collision course"³ and that the court is called upon to resolve a "legal conundrum,"⁴ in fact the conclusion reached reflects an obvious logic. Mono Lake is a navigable body of water.⁵ Historically, the trust doctrine has functioned to protect certain public values in navigable bodies of water — traditionally navigation, commerce, and fishing values; more recently, recreational and environmental values as well⁶ — against the unchecked exercise of ordinary [13 ELR 10145] property rights. And several of those values are now seriously threatened at Mono Lake by the exercise of water rights.

The Common Heritage Resource at Stake

Mono Lake is the second largest lake in California. Situated to the east of Yosemite National Park at the base of the steep eastern escarpment of the Sierra Nevada, the lake is home for large numbers of brine shrimp that serve as food for local and migratory birds. Islands in the lake serve as a rookery for a large breeding colony of California gulls, and, in the words of the court, "the lake itself serves as a haven on the migration route for thousands of Northern Phalarope, Wilson's Phalarope, and Earned Grebe."⁷ Hence the interest of the plaintiff, National Audubon Society. The lake also has provided boating, commercial brine shrimp harvesting,⁸ and an attraction for tourists.

The threat to public trust values at Mono Lake⁹ arises because in most years four of the lake's five freshwater tributaries are entirely diverted to meet the municipal and industrial needs of the City of Los Angeles.¹⁰ Early in this century the city was about to outgrow its local sources of water supply and consequently secured water rights to most of the water in the Owens Valley, which lies to the south of Mono Lake.¹¹ Subsequently, the city's water supply system was expanded northward after the state in 1940 granted the Los Angeles Department of Water and Power a permit to appropriate from the Mono Lake tributaries.¹²

When Los Angeles first began planning for its Mono Basin diversions, it apparently was anticipated that diversion of the lake's tributaries ultimately would dry up the lake almost entirely.¹³ Thus, it would suffer a fate similar to that of the Owens Lake in the Owens Valley, which has been completely dried up by the Los Angeles water project.

Today, the surface of Mono Lake has diminished by about 30 percent and the surface level has dropped approximately 40 feet.¹⁴ Los Angeles predicts that future diversions under present operating procedures will lead to a point of equilibrium within 100 years at which the lake will have about 44 percent of its original surface.¹⁵ The National Audubon Society is more pessimistic: it predicts much more rapid and extensive diminution in surface area, the possibility that no equilibrium point will be reached, and dire indirect consequences from continuing to deprive the lake of so much of its freshwater supply.¹⁶ Despite the technical controversy over the magnitude of the impacts of continuation of the status quo, the Supreme Court of California was persuaded that there is "little doubt that both the scenic beauty and the ecological values of Mono Lake are imperiled."¹⁷ In fact, the court went so far as to suggest that continued diversions "threaten to turn [Mono Lake] into a desert wasteland like the dry bed of Owens Lake."¹⁸

The Public Trust Doctrine

The roots of the public trust doctrine are found in Roman law concepts of common property — the Audubon opinion quotes the Institutes of Justinian for the proposition that by the law of nature, air, running water, the sea, and the shores of the sea "are common to mankind."¹⁹ This is the "common heritage"²⁰ of which the California court speaks, and it is the "property of a special character" spoken of by the United States Supreme Court in the [13 ELR 10146] leading public trust case of Illinois Central Railroad Co. v. Illinois.²¹

That a natural resource such as a navigable waterway partakes of a special public character does not, however, mean that private rights are necessarily excluded.²² Until prohibitions were placed in the California Constitution of 1879,²³ for example, the state's tidelands were frequently granted to private persons. After some initial hesitation,²⁴ the California courts concluded that such alienations could be sustained so long as the special character of the resource was reflected by treating the resource as burdened in the hands of the grantee.²⁵ Often described as a public trust "easement,"²⁶ this burden on privately owned parcels potentially limits the prerogatives of owners to those generally compatible with the public values the doctrine protects.²⁷ For example, fill in a navigable bay to allow port development compatible with the enhancement of navigation is permitted by the public trust doctrine.²⁸ Fill in that same bay to provide housing is subject to restriction.²⁹

As thus stated, the public trust doctrine places important limits upon the development of tidelands property. These limits often have been honored in the breach, however, for there are numerous places in California where one can find extensive bay fill devoted to uses apparently incompatible with public trust values.³⁰ The courts, when faced with an assertion of the trust after the fill has taken place, have used doctrines of compensation,³¹ estoppel,³² and reliance³³ to rationalize their refusal to disturb the status quo.³⁴

The opinion in the Mono Lake case restates three fundamental propositions regarding the public trust doctrine: it is both substantive and procedural; it imposes a duty on the state as well as providing the state with authority; and it expresses an inherent aspect of sovereignty and thus is in some ways beyond modification by the legislature. Each of these propositions will be briefly examined.

Substance and Procedure

Perhaps the most important fact in the Mono Lake case is that the responsible state agency knew in 1940 that environmental damage would occur from granting water rights to Los Angeles, but the agency believed it had no authority to prevent or minimize that damage. In its water rights decision the agency said it "is indeed unfortunate that the City's proposed development will result in decreasing the aesthetic advantages of Mono Basin but there is apparently nothing that this office can do to prevent it."³⁵ The agency acted as it did because the legislation providing it with permitting authority made dometic use the highest use of water,³⁶ and Los Angeles was applying to appropriate water for domestic use.

Repeatedly in its analysis the Mono Lake court notes that the public trust doctrine should not be ignored in water allocation decisions. Thus, "before state courts and agencies approve water diversions they should consider the effect of such diversions upon interests protected by the public trust …."³⁷ But this procedural requirement [13 ELR 10147] was to some extent satisfied in 1940: the agency was aware of the effect of the diversions, which it considered "unfortunate," but it believed it lacked the authority to do anything about the adverse effect. The part of the Mono Lake decision that is most significant for what the agency did in 1940 is that dealing with substance: courts and agencies before approving water diversions should "attempt, so far as feasible, to avoid or minimize any harm"³⁸ to interests protected by the public trust.

Duty and Authority

To note that in 1940 the state "mistakenly thought itself powerless"³⁹ to protect the public trust uses of Mono Lake, however, is to reflect only part of the import of the court's decision. The state agency might well have taken the position that it had the authority to protect Mono Lake but did not choose to exercise that authority. That position would not have been in keeping with public trust law, however, for the state as trustee has "an affirmative duty … to protect public trust uses whenever feasible."⁴⁰

The court's decision contains very little on what protection is now feasible for public trust uses at Mono Lake. This is hardly surprising, since the decision is merely a declaratory judgment on a general question⁴¹ posed by a federal court⁴² in the course of invoking the abstention doctrine.⁴³

One point of major importance is made, however, about feasibility and the balance to be struck between the interests of Mono Lake and those of Los Angeles. The court rejects as contrary to practical necessity in California the rule of the tidelands cases that bars conveyance of rights free of the trust except in rare circumstances.⁴⁴ In an important qualification, it states that 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 usufructary rights to appropriate water even if diversions harm public trusts uses.⁴⁵

Sovereignty and the Public Trust

Conceptually, there has been some uncertainty as to the basis of the public trust doctrine.⁴⁶ Is it a public property right perhaps — as is suggested by the term "easement" — but one subject to special rules constraining alienation?⁴⁷ Is it a version of the police power, perhaps one owing its unique status to early development historically?⁴⁸ Is it part of the common law, so that it is subject to modification or revocation by statutory or constitutional provisions?

None of the answers suggested by these questions quite fit what is articulated in the Mono Lake decision. Rather, the public trust doctrine appears to be an expression of the inherent prerogative of the sovereign to restrict or reallocate property rights to protect the integrity of the "special" or "common heritage" natural resources. Although occasionally treated semantically⁴⁹ or procedurally⁵⁰ as if it were a property right, the sovereign's prerogative exists because of the common property nature of the resource — a nature that dictates the recognition of unusually limited conventional property rights. And although somewhat similar to the police power, which permits the sovereign to protect public health, safety, and welfare from harm stemming from the exercise of property rights in any natural resource, the sovereign's public trust prerogative derives from the nature of the resource rather [13 ELR 10148] than from the need to protect public health, safety, and welfare.

The difference between the police power and the public trust is important, for an exercise of the police power that bears too heavily on the exercise of property rights can constitute a "taking" that requires the payment of just compensation.⁵¹ A proper assertion of the public trust, however, simply serves to define the boundaries of common property in the resource and thus is not vulnerable to characterization as a "taking" and the concomitant constitutional need to pay compensation.⁵² This result is a just one, for it simply expresses the fact that the legitimate expectations for protection of those with conventional property rights are less where the rights pertain to common heritage resources.⁵³

As thus conceived, the public trust doctrine is part of the common law insofar as the principles are most typically expressed judicially.⁵⁴ Insofar, however, as these principles involve an inherent sovereign prerogative, they are not subject to abolition by statutory or constitutional provisions. Doubtless the people in their constitution or by initiative or the people's representatives by statute may do a good deal to establish the standards of feasibility that are relevant in defining the affirmative duty of the state as trustee of a particular common heritage resource.⁵⁵ But the analysis of the California Supreme Court in the Mono Lake case suggests that neither a statute nor a constitutional provision can authorize the granting of property rights "vested" so as to protect them from reexamination.⁵⁶

Accommodation with Water Rights Law

California, like other western states, has a well-developed water rights law organized primarily in terms of appropriative water rights. An appropriative water right permits the diversion of water for beneficial use by a claimant, whether riparian to the source or not.⁵⁷ Since 1913, the appropriation in California of unappropriated surface waters or waters from the rare subterranean stream has required administrative approval through a permit and license process.⁵⁸

In the early days of California's permit system the administrative agency was treated as having only a ministerial function: if unappropriated water was available in a particular source, an applicant was allowed a appropriate it to the extent beneficial use could be demonstrated.⁵⁹ Later, however, statutory and judicial changes occurred,⁶⁰ so that it is now established in principle that the state agency reviewing applications to appropriate water can deny or condition them in appropriate circumstances. In practice, denial of applications where unappropriated water is available is very rare,⁶¹ and the role of the public trust doctrine in protecting navigable sources was never considered by the agency prior to the Audubon opinion.⁶²

Thus, it is hardly surprising that in 1940 the state agency considering the Mono Basin applications of Los Angeles concluded it had no authority to deny the applications in the name of protecting Mono Lake. By that time the significance of the public trust doctrine for tidelands and the navigable waters above them was well understood,⁶³ and it was known that Mono Lake was a navigable waterway.⁶⁴ But the logic of using the public trust in the water rights context had never been explored, and the policy of protecting sources of water from excessive diversion had not been developed.⁶⁵

In 1940 the principal tenet of California water policy was to put the state's water resources to beneficial use to the fullest extent of which they were capable,⁶⁶ generally for irrigation or municipal and industrial supply. The objective was to avoid waste or unreasonable use, for example, by allowing riparians with rights paramount to appropriators to claim water for wasteful use patterns.⁶⁷ [13 ELR 10149] The central concern was a fair balance between competing diverters, rather than a fair balance between allocation to diverters and source protection for the benefit of instream uses.

The Development of Source Protection

Beginning in 1957, concern with the impact of diversions on the integrity of California's rivers and lakes was reflected with increasing intensity.⁶⁸ Recreational and fish and wildlife uses of water were identified as "beneficial,"⁶⁹ and subsequently the legislature directed that the agency reviewing applications to appropriate unappropriated water "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."⁷⁰ A demanding water quality law was enacted,⁷¹ and provisions were made to integrate water quality control and water rights law.⁷² An environmental protection act was passed.⁷³ And some rivers were placed "off-limits" for state or local water projects by enactment of a Wild and Scenic Rivers Act.⁷⁴

Each of these relatively recent provisions seems to have been of some value in requiring balancing of instream and appropriate uses of California's limited water resources,⁷⁵ but none of the new statutes applies to the older water rights. The public trust doctrine is thus unique in its ability to provide strong source protection against damage from the exercise of water rights that were acquired long ago. It is for these older water rights that the California Supreme Court's reference to a "collision course"⁷⁶ between the appropriative rights systems and the public trust doctrine seems most accurate, and for which a reasonable accommodation will be most difficult. Hopefully, in working out this accommodation, courts will pay close attention to the tidelands and lakeshore cases that integrate the public trust doctrine and conventional land law.

With regard to new water rights, the needed integration presumably will come in the first instance from the state Water Resources Control Board. The board exercises discretion that is limited by norms from many sources, including the Water Code, the California Constitution, the California Environmental Quality Act, and the public trust doctrine. Hopefully, the board will integrate into its own decisionmaking processes ways of responding to the resource protection mandate of the Mono Lake court. To the extent it is successful in doing so, it can protect against subsequent judicial intervention on behalf of common property interests of the people, for the Supreme Court clearly stated an expansive view of both the responsibilities and the prerogatives of the board.⁷⁷ It follows that where the board acts in a responsible manner the court will afford its views considerable deference.⁷⁸

The Questions for the Future

The Mono Lake litigation deals with the diversion of surface water in a situation where the federal government is not a diverter. Now that the importance of the public trust doctrine in a water rights context has been recognized, however, many questions will arise. Two of the most important will be the significance of the doctrine for groundwater resources and for diversions by federal agencies.

[13 ELR 10150]

* The Public Trust and Groundwater. At first blush, it might appear that the public trust doctrine has no significance for groundwater resources. Aquifers are not navigable waterways, so if the point of the public trust doctrine is to protect navigable waterways is could easily be concluded the doctrine is irrelevant for aquifers.

This conclusion might be attacked from two different angles. First, the Mono Lake court stated that the public trust doctrine applies not only to diversions of navigable waters themselves but also to diversions of nonnavigable waters where there is an adverse impact on the navigable waterway. "We conclude that the public trust doctrine … protects navigable waters from harm caused by diversion of nonnavigable tributaries."⁷⁹

In some situations, the pumping of groundwater may adversely affect navigable waterways. Where this happens, it would appear easy enough to use the Mono Lake rationale to attack the pumping. This would occur, however, because public trust protection was being given to the navigable waterway, not to the aquifer.

A second angle would be to explore the criteria for determining whether a natural resource is a "common heritage" resource and to examine whether by those criteria the water in an aquifer or the aquifer itself might properly be classified as such a resource. The Mono Lake court speaks only of "streams, lakes, marshlands and tidelands."⁸⁰ But it is important that in early years the court spoke only of public trust values of navigation, commerce, and fishing. Yet beginning in 1971 it made clear that other values also are trust values, for development of the law should not be "burdened with an out-moded classification."⁸¹ Natural resources become "common heritage" resources in the first place, it seems, because of the special stake the community has in their preservation.⁸² As the adverse community impacts of groundwater over-draft become more fully understood,⁸³ it is quite possible that aquifers and the groundwater they contain will come to be seen as protected by the public trust doctrine.⁸⁴ If so, the "out-moded" classification limited to streams, lakes, marshlands, and tidelands will be abandoned.

* Application to Federal Diverters. In considering the applicability of the public trust doctrine to federal diverters, at least two perspectives ought to be taken. One treats the doctrine as a creature of state law and asks to what extent relevant constitutional and statutory provisions allow the state norm to bind a federal agency. The other treats the doctrine as an aspect of federal law, thus avoiding problems of federal supremacy.

If the public trust doctrine is viewed as part of state law, there is no question it must generally yield to federal law.⁸⁵ In important situations, however, federal statutes provide some role for state law in controlling federal diverters.

In recent years the most celebrated of these situations has been the federal Reclamation Act of 1902. Section 8 of that statute provides that the Secretary of the Interior in carrying out the provisions of the Act "shall proceed in conformity with" state law "relating to the control, appropriation, use, or distribution of water."⁸⁶ After years of an increasingly narrow construction of this language,⁸⁷ the U.S. Supreme Court in 1978 held in California v. United States that § 8 allows state law to control diversions by the Bureau of Reclamation unless "inconsistent with clear congressional directives."⁸⁸ Presumably the public trust doctrine as articulated by the Mono Lake court is state law on water use within the meaning of § 8, and thus the doctrine would bind a federal diverter to the extent permitted by California v. United States.⁸⁹

State law also to some extent binds diverters who operate under federal license, for example pursuant to the Federal Power Act (FPA). Section 27 of the FPA contains language very similar⁹⁰ to § 8 of the Reclamation Act, although at the moment the controlling decisions on § 27 read it narrowly.⁹¹

Even with broad readings of § 8 of the Reclamation Act and § 27 of the FPA, it would remain true that state law public trust protection would be subordinate to inconsistent "clear congressional directives." It is therefore important to consider the extent to which public trust protection is available under federal law itself.

Most examinations of the public trust in federal law have focused on its meaning for dry land resources.⁹² The leading U.S. Supreme Court decision on the public trust [13 ELR 10151] dealt with a lakeshore area,⁹³ the Chicago waterfront, but in a subsequent decision it was made clear that this decision was an interpretation of state law.⁹⁴ Yet in recognizing the powers of a sovereign regarding natural resources "of a special character"⁹⁵ and in recognizing that navigable waters and the beds beneath them have that special character, the Supreme Court may have provided a foundation for recognition that a federal law public trust doctrine protects common heritage resources from the unchecked exercise of conventional property rights held by federal agencies or licensees.

As was the case under state law, the logic supporting federal law public trust protection is straightforward: It is the inherent authority and duty of a sovereign to protect common heritage resources; the federal government is a sovereign; therefore, the federal government has the authority and duty to protect a common heritage resource threatened by the exercise of conventional property rights.

The Mono Lake decision, of course, represents far more than appealing logic. It represents a step in the evolving policy of source protection so as to achieve fairness between out-of-stream and instream uses of water. But federal policy, like state policy, has been moving toward better source protection,⁹⁶ so a holding that the federal public trust doctrine protects navigable bodies of water from destruction by federal diverters seems eventually a reasonable prospect.

Administrative Remedies

Although the Supreme Court of California was unanimous in its public trust holding, the court divided on a jurisdictional point. The trial court had held that the National Audubon Society had not exhausted its administrative remedies before the state Water Resources Control Board, a position that seemed to elicit considerable sympathy from the Supreme Court. Although the four-person majority opinion concluded that statutory provisions and judicial precedents mandate concurrent jurisdiction, it stated that "[w]e have seriously considered whether … we should overrule [the leading precedent] and declare that henceforth the board has exclusive primary jurisdiction in matters falling within its purview."⁹⁷

The Mono Lake court was troubled on this point by tension between two policy objectives. On the one hand is the policy of granting the state Water Resources Control Board expansive authority "to undertake comprehensive planning and allocation of water resources."⁹⁸ This policy suggests granting the agency primary jurisdiction, particularly since in the court's view the "scope and technical complexity of issues concerning water resource management are unequalled by virtually any other type of activity presented to the courts."⁹⁹

The stated countervailing policy is that of stare decisis: the "established line of authority declaring the concurrent jurisdiction of the courts, and reliance upon that authority by the plaintiffs."¹⁰⁰ Although a concurring justice suggested resolution of this problem by making a ruling on primary jurisdiction prospective only,¹⁰¹ the court chose instead to reaffirm for public trust cases its concurrent jurisdiction ruling in reasonable use cases.¹⁰² It did, however, encourage trial courts to take advantage of administrative expertise through established reference procedures.¹⁰³ Indeed, it used the existence of these procedures to support its holding on concurrent jurisdiction, for it stated they "necessarily imply" original jurisdiction since reference "would rarely if ever be appropriate in a case filed originally with the board."¹⁰⁴

Aside from questions of stare decisis, the Mono Lake court might also have had doubts as to the present willingness of the state Water Resources Control Board to assume the affirmative duty to protect common heritage resources from the impact of the water rights system it administers. This is, after all, the same agency whose predecessor in 1940 took an unduly cramped view of its authority.Throughout the Mono Lake case, the Attorney General, on behalf of the board, has consistently tried to move the focus of the dispute from the public trust doctrine to the constitutional provisions on reasonable use.¹⁰⁵ Perhaps future modification of the court's views [13 ELR 10152] on concurrent jurisdiction will await an appropriate exercise by the agency of its public trust responsibility.

Conclusion

The representatives of California interests with established water rights will doubtless raise many cries of alarm over the Mono Lake ruling. The water rights system will be presented as a model of stability being greatly disrupted by the public trust doctrine. In fact, however, the state and federal laws governing the allocation of California's waters are a complex mosaic, which has for long provided for change as well as for stability. Cries of alarm have been heard before: when it was held that the federal "reserved right" doctrine, which provides for water for federal reservations, applies to non-Indian reservations, such as national forests, as well as to Indian reservations;¹⁰⁶ or that Congress had provided a method for apportioning the waters of the lower Colorado River, which worked to the advantage of Arizona and the disadvantage of California,¹⁰⁷ or that riparians who have not used their water rights may have to go to the end of the line.¹⁰⁸ In each case, courts were shaping doctrine to meet contemporary needs in what they perceived to be a balanced way — they were providing for needed change at the same time in many other instances they provided for stability.Such change is essential if the people's "common heritage" of lakes and streams is to be protected.

1. National Audubon Society v. Superior Court, 33 Cal. 3d 419, 441, 658 P.2d 709, 724, 189 Cal. Rptr. 346, 361, 13 ELR 20272, 20278 (Feb. 17, 1983), modified Apr. 14, 1983, reh'g denied [hereinafter cited as Audubon].

2. Stevens, The Public Trust: A Sovereign's Ancient Prerogative Becomes the People's Environmental Right, 14 U.C.D.L. REV. 195, 214-20 (1980); Dunning, The Significance of California's Public Trust Easement for California Water Rights Law, 14 U.C.D. L. REV. 357, 368-78 (1980). Recently, public trust protection was provided in "lakeshore" cases as well, in which the land in question is that between the high-water and low-water marks of lakes. State v. Superior Court (Lyon), 29 Cal. 3d 210, 625 P.2d 239, 172 Cal. Rptr. 696, 11 ELR 20476 (1981); State v. Superior Court (Fogerty), 29 Cal. 3d 240, 625 P.2d 256, 172 Cal. Rptr. 713, 11 ELR 20483 (1981). "Tidelands" will be used hereafter in reference to both the strict tidelands cases and the lakeshore cases.

3. Audubon, 33 Cal. 3d at 425, 658 P.2d at 712, 189 Cal. Rptr. at 349, 13 ELR at 20273. The phrase is taken from Johnson, Public Trust Protection for Stream Flows and Lake Levels, 14 U.C.D. L. REV. 233, 233 (1980). The two systems are the appropriative water rights system and the public trust doctrine.

4. Audubon, 33 Cal. 3d at 452, 658 P.2d at 732, 189 Cal. Rptr. at 369, 13 ELR at 20282.

5. Id. 33 Cal. 3d at 435, 658 P.2d at 719, 189 Cal. Rptr. at 356, 13 ELR at 20276; City of Los Angeles v. Aitken, 10 Cal. App. 2d 460, 466, 52 P.2d 585, 588 (1935).

6. Expansion in the values protected is generally dated from Marks v. Whitney, 6 Cal. 3d 251, 259-60, 491 P.2d 374, 380, 98 Cal. Rptr. 790, 796, 2 ELR 20049, 20050 (1971). Since 1971 the broader concept of public trust values has been repeated regularly. City of Berkeley v. Superior Court, 26 Cal. 3d 515, 521, 606 P.2d 362, 365, 162 Cal. Rptr. 327, 330, 10 ELR 20394, 20395, cert. denied, 449 U.S. 840 (1980); State v. Superior Court (Lyon), 29 Cal. 3d at 230, 625 P.2d at 250, 172 Cal. Rptr. at 708, 11 ELR at 20481; State v. Superior Court (Fogerty), 29 Cal. 3d at 245-46, 625 P.2d at 259, 172 Cal. Rptr. at 716, 11 ELR at 20484.

7. Audubon, 33 Cal. 3d at 424, 658 P.2d at 711, 189 Cal. Rptr. at 348, 13 ELR at 20273.

8. These shrimp are sold as fish food. Id. at 435, 658 P.2d at 719, 189 Cal. Rptr. at 356, 13 ELR at 20276. Because of the lake's high salinity, no fish are found there. Id. at 424, 658 P.2d at 711, 189 Cal. Rptr. at 348, 13 ELR at 20273.

9. Although the court notes that the brine shrimp harvesting "probably" qualifies Mono Lake as a "fishery" under traditional public trust cases, it acknowledges the principal values at stake are the recreational and ecological values mentioned in the recent cases cited above in note 6. Id. at 435, 658 P.2d at 719, 189 Cal. Rptr. at 356, 13 ELR at 20276.

10. Considerable water from these tributaries does reach the lake in very wet years. Indeed, during the record wet water year 1982-83, Los Angeles has temporarily ceased diversions from the Mono Basin.

11. A recent definitive treatment of this history is found in W. L. KAHRL, WATER AND POWER: THE CONFLICT OVER LOS ANGELES' WATER SUPPLY IN THE OWENS VALLEY (1982). Controversy between Los Angeles and residents of the Owens Valley continues to this day. See, for example, the latest in a series of reported opinions regarding the environmental impact reporting requirements for increased groundwater pumping in the valley. County of Inyo v. City of Los Angeles, 124 Cal. App. 3d 1, 177 Cal. Rptr. 479, 11 ELR 21093 (1981).

12. For years, Los Angeles took only about half the flow it had been granted. Since 1970, however, when additional diversion facilities were completed, the city has fully exercised its water rights in most years. Between 1970 and 1980 the city exported an averge of 99,580 acre-feet per year from the Mono Basin. Audubon, 33 Cal. 3d at 428-29, 658 P.2d at 714, 189 Cal. Rptr. at 351, 13 ELR at 20274. Unhappily, completion of the additional diversion facilities was motivated at least in part by the frontier doctrine of "use it or lose it" — still an important principle of western water law.

13. City of Los Angeles v. Aitken, 10 Cal. App. 2d 460, 464-65, 52 P.2d 585, 587 (1935).

14. The court draws on a 1979 report, which states that by 1979 the lake's level had dropped about 43 feet below the prediversion level and was dropping at a rate of 1.6 feet per year. Audubon, 33 Cal. 3d at 428-29, 658 P.2d at 714, 189 Cal. Rptr. at 351, 13 ELR at 20274. The report is by the Interagency Task Force on Mono Lake. However, in the last two years of extraordinary precipitation in California, the lake's level has risen several feet.

15. Id. at 429, 658 P.2d at 715, 189 Cal. Rptr. at 352, 13 ELR at 20274. "Equilibrium" is the point at which inflow from precipitation, groundwater, and nondiverted tributaries equals outflow by evaporation and other means.

16. Id. at 429-30, 658 P.2d at 715, 189 Cal. Rptr. at 352, 13 ELR at 20274-75. The most important indirect consequence occurs from the possible impact of increasing salinity on the food chain at the lake. Audubon contends that the lake's algae, upon which the brine shrimp feed, cannot survive the projected salinity increase from continued massive diversions. Id. at 430, 658 P.2d at 715, 189 Cal. Rptr. at 352, 13 ELR at 20275.

17. Id. at 424-25, 658 P.2d at 711, 189 Cal. Rptr. at 348, 13 ELR at 20273.

18. Id. at 431, 658 P.2d at 716, 189 Cal. Rptr. at 353, 13 ELR at 20275.

19. Id. at 433, 658 P.2d at 718, 189 Cal. Rptr. at 355, 13 ELR at 20276. Although virtually all commentators acknowledge the Roman Law roots of the public trust doctrine, a leading author on the doctrine suggests that the tradition of the commons in medieval Europe is "the historical experience that most clearly reveals the proper sources for the legal public trust doctrine today." Sax, Liberating the Public Trust Doctrine from Its Historical Shackles, 14 U.C.D. L. REV. 185, 189 (1980).

20. Audubon, 33 Cal. 3d at 441, 658 P.2d at 724, 189 Cal. Rptr. at 361, 13 ELR at 20278.

21. 146 U.S. 387, 454 (1982), Audubon, 33 Cal. 3d at 438, 658 P.2d at 721, 189 Cal. Rptr. at 358, 13 ELR at 20277.

22. Even in Roman times, it appears extensive private rights were permitted with regard to common property resources. MacGrady, The Navigability Concept in the Civil and Common Law: Historical Development, Current Importance, and Some Doctrines that Don't Hold Water, 3 FLA. ST. U.L. REV. 511, 522-23 (1975).

23. CAL. CONST. art. X, § 3. The constitutional prohibitions extend to tidelands within two miles of an incorporated area.

24. People v. Cowell, 60 Cal. 400 (1882); Kimball v. MacPherson, 46 Cal. 103 (1873); People ex rel. Pierce v. Morrill, 26 Cal. 336 (1864).

25. People v. California Fish Co., 166 Cal. 576, 138 P. 79 (1913). In some circumstances property once subject to the public trust may be freed of the trust burden, but the Audubon opinion terms this "rare." Audubon, 33 Cal. 3d at 440, 658 P.2d at 723, 189 Cal. Rptr. at 360, 13 ELR at 20278. The original opinion stated the test for extinction of the trust as a legislative intent to grant a right free of the trust where "either the grant serves the purpose of the trust or the grantee, in reasonable reliance on the grant, has rendered the property unsuitable for trust purposes." Id. The California State Lands Commission, ina petition for rehearing and/or modification, objected to this language as subject to an interpretation inconsistent with allegedly more stringent existing law. In a modification of opinion issued April 14, 1983, the language was deleted.

26. People v. California Fish Co., 166 Cal. at 599, 138 P. at 88; City of Long Beach v. Mansell, 3 Cal. 3d 462, 482, 476 P.2d 423, 437, 91 Cal. Rptr. 23, 37 (1970); Marks v. Whitney, 6 Cal. 3d at 259, 491 P.2d at 380, 98 Cal. Rptr. at 796, 2 ELR at 20050; City of Berkeley v. Superior Court, 26 Cal. 3d at 537, 606 P.2d at 375, 162 Cal. Rptr. at 340, 10 ELR at 20398, cert. denied, 449 U.S. 840 (1980).

27. See supra text accompanying note 6 for a listing of "public trust values."

28. People v. California Fish Co., 166 Cal. at 586, 138 P. at 83; City of Berkeley v. Superior Court, 26 Cal. 3d at 524, 606 P.2d at 366-67, 162 Cal. Rptr. at 331-32, 10 ELR at 20396, cert. denied, 449 U.S. 840 (1980).

29. City of Long Beach v. Mansell, 3 Cal. 3d 462, 476 P.2d 423, 91 Cal. Rptr. 23 (1970).

30. Technically, one might say that such fill does not violate the trust because the latter merely allows the sovereign to assert public trust values if it wishes to do so. This appears to be the possible of the California State Lands Commission, which has a procedure by which a landowner may discover whether the commission deems proposed development to be consistent with public trust needs. Even where the commission deems a use consistent with the trust, however, a private person may bring a public trust action to test that determination. See Marks v. Whitney, 6 Cal. 3d at 261, 491 P.2d at 381, 98 Cal. Rptr. at 797, 2 ELR at 20050.

31. Compensation is required either where the "absolute" title is taken, Audubon, 33 Cal. 3d at 439, 658 P.2d at 722, 189 Cal. Rptr. at 359, 13 ELR at 20277, quoting People v. California Fish Co., 166 Cal. at 599, 138 WP. at 88, or where an assertion of the public trust requires the removal of improvements or their use by the public. Oakland v. Oakland Water Front Co., 188 Cal. 160, 183, 50 P. 277, 285 (1897); City of Berkeley v. Superior Court, 26 Cal. 3d at 533-34, 606 P.2d at 373, 162 Cal. Rptr. at 338, 10 ELR at 20397, cert. denied, 449 U.S. 840 (1980); State v. Superior Court (Fogerty), 29 Cal. 3d at 249, 625 P.2d at 261, 172 Cal. Rptr. at 718-19, 11 ELR at 20485; CAL. PUB. RES. CODE § 6312 (West 1977).

32. City of Long Beach v. Mansell, 3 Cal. 3d at 501, 476 P.2d at 451, 91 Cal. Rptr. at 51.

33. City of Berkeley v. Superior Court, 26 Cal. 3d at 534-35, 606 P.2d at 373-74, 162 Cal. Rptr. at 338-39, 10 ELR at 20397, cert. denied, 449 U.S. 840 (1980).

34. In recent years, of course, coastal protection legislation has introduced permit requirements that must be satisfied before certain kinds of development may take place. See CAL. PUB. RES. CODE §§ 30600-31405 (West Supp. 1983) (Coastal Commission) and CAL. GOV'T CODE §§ 66600-66661 (West 1966 & West. Supp. 1966-1982) (San Francisco Bay Conservation and Development Commission). CAL. PUB. RES. CODE § 30613 (West. Supp. 1983) makes special provision for public trust lands.

35. Audubon, 33 Cal. 3d at 428, 658 P.2d at 714, 189 Cal. Rptr. at 351, 13 ELR at 20274.

36. Id. at 427, 658 P.2d at 713-14, 189 Cal. Rptr. at 350, 13 ELR at 20274, See CAL. WATER CODE §§ 106, 1254 (West 1971).

37. Audubon, 33 Cal. 3d at 426, 658 P.2d at 712, 189 Cal. Rptr. at 349, 13 ELR at 20273.

38. Id.

39. Id. at 452, 658 P.2d at 732, 189 Cal. Rptr. at 369, 13 ELR at 20282.

40. Id. at 446, 658 P.2d at 728, 189 Cal. Rptr. at 365, 13 ELR at 20280.

41. The question came to the California courts in several forms:

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?

Id. at 432, 658 P.2d at 717, 189 Cal. Rptr. at 354, 13 ELR at 20275. The Supreme Court's answer was that the public trust doctrine is neither subsumed in nor independent of the California water rights system, for both the doctrine and appropriative water rights "are parts of an integrated system of water law." Id. at 452, 658 P.2d at 732, 189 Cal. Rptr. at 369, 13 ELR at 20282.

42. Although the National Audubon Society sued the Department of Water and Power of the City of Los Angeles in state court, the department cross-complained against 117 claimants of Mono Basin water rights, including the United States, and the U.S. removed the case to federal court. Id. at 431, 658 P.2d at 716-17, 189 Cal. Rptr. at 353-54, 13 ELR at 20275.

43. The abstention is of the "Pullman-type" in which the federal court retains jurisdiction "so that it may either apply the resolved state law, or resolve the state question itself if the state courts refuse to do so for any reason." Id. at 431-32 n.12, 658 P.2d at 717 n.12, 189 Cal. Rptr. at 354 n.12, 13 ELR at 20275-76 n.12.

44. See supra note 25.

45. Audubon, 33 Cal. 3d at 426, 658 P.2d at 712, 189 Cal. Rptr. at 349, 13 ELR at 20273.

46. See generally, The Public Trust Doctrine in Natural Resources Law and Management, 14 U.C.D. L. REV. 181 (1980).

47. See Dunning, The Significance of California's Public Trust Easement for California's Water Rights Law, 14 U.C.D. L. REV. 357, 364-65 (1980).

48. See Sax, The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention, 68 MICH. L. REV. 473, 484-85 (1970).

49. See supra note 26 for cases referring to the public trust interest as an "easement."

50. Although the Audubon opinion states that it is unclear whether a claim based on the public trust is technically a water right and uncertain whether a person asserting the public trust is a claimant for purposes of initiating a statutory adjudication, Audubon, 33 Cal. 3d at 448, 658 P.2d at 729, 189 Cal. Rptr. at 366, 13 ELR at 20281, it also states that Water Code language on these comprehensive administrative stream settlements should be read "to permit a person claiming that a use of water is harmful to interests protected by the public trust to seek a board determination of the allocation of water in a stream system." Id. at 449, 658 P.2d at 730, 189 Cal. Rptr. at 367, 13 ELR at 20281. This unprecedented conclusion that an organization like Audubon could seek to initiate a statutory adjudication is a curious one, since the issue was neither briefed nor argued and, in any event, the opinion concludes that those asserting the public trust need not exhaust administrative remedies as courts have concurrent jurisdiction in these cases.See infra notes 97-105 and accompanying text.

51. U.S. CONST. art. V.

52. The public trust interest of state law is in this respect similar to the established rule of federal law that no compensation is owed where private property is damaged by a proper exercise of the federal "navigation servitude." Although in a recent case the U.S. Supreme Court refused to apply the no compensation rule in the context of man-made navigable waters, Kaiser Aetna v. United States, 444 U.S. 164, 10 ELR 20042 (1979), there was no suggestion that the no compensation rule would not apply to waters long considered to be navigable.

53. See generally Sax, Liberating the Public Trust Doctrine from Its Historical Shackles, 14 U.C.D. L. REV. 185 (1980).

54. In California, public trust principles for some situations have received constitutional expression. CAL. CONST. art. X, § 3.

55. The Audubon opinion notes in particular that public trust uses of water, like other uses in California, must conform to the constitutional standard of reasonable use. Audubon, 33 Cal. 3d at 443, 658 P.2d at 725, 189 Cal. Rptr. at 362, 13 ELR at 20279. Although the origin of the constitutional standard suggests a desire to avoid the "wasting" of freshwater to the sea, DUNNING, WATER ALLOCATION IN CALIFORNIA: LEGAL RIGHTS AND REFORM NEEDS 27 (UC Berkeley Institute of Governmental Studies, 1982), instream uses protected by the public trust today are recognized in principle as reasonable. Audubon, 33 Cal. 3d at 443, 658 P.2d at 726, 189 Cal. Rptr. at 362-63, 13 ELR at 20279. Thus, there is no direct conflict between public trust protection and the constitutional standard. In effect, the Audubon opinion provides simply that the state's affirmative trust duty does not extend to protecting unreasonable public trust uses. While the use of water to protect a food chain necessary for important avian resources may be reasonable, for example, excessive amounts for that purpose may be unreasonable. Birds may not waste water any more than humans.

56. This statement is subject, of course, to the rare exception noted supra note 25.

57. ARCHIBALD, APPROPRIATIVE WATER RIGHTS IN CALIFORNIA 1 (Governor's Commission to Review California Water Rights Law, Staff Paper No. 1, 1977).

58. Id. at 10.

59. Tulare Water Co. v. State Water Comm'n, 187 Cal. 533, 537, 202 P. 874, 876 (1921).

60. Audubon, 33 Cal. 3d at 443-44, 658 P.2d at 726, 189 Cal. Rptr. at 363, 13 ELR at 20279.

61. Conditions, on the other hand, are commonplace. ARCHIBALD, supra note 57, at 24-25.

62. The potential of the doctrine in the water rights context was, however, pointed out at SCHNEIDER, LEGAL ASPECTS OF INSTREAM WATER USES IN CALIFORNIA 27 (Governor's Commission to Review California Water Rights Law, Staff Paper No. 6, 1978).

63. For the key cases prior to 1940, see the articles cited supra note 2.

64. City of Los Angeles v. Aitken, 10 Cal. App. 2d at 466, 52 P.2d at 588 (1935).

65. Although in the early years of this century a famous controversy occurred over the plans of San Francisco to dam the Tuolumne River, the unsuccessful opposition led by John Muir centered more on protecting the Hetch Hetchy Valley from flooding than on protecting the Tuolumne River from diversion. See THE CALIFORNIA WATER ATLAS 29 (W. Kahrl ed. 1978).

66. CAL. CONST. art. X, § 2.

67. The constitutional amendment establishing the beneficial use principle was triggered by a decision that a riparian, unlimited by any standard of reasonableness vis-a-vis an appropriator, was entitled to the full spring flood flow of a river in order to raise the water to the point where it would flood the riparian's grazing land. Herminghaus v. Southern California Edison Co., 200 Cal. 81, 252 P. 607 (1926), cert. dismissed, 275 U.S. 486 (1927). Less than one percent of the quantity claimed was actually used for irrigation. Id. at 123, 252 P. at 264 (Shenk, J., dissenting).

68. In 1957 the newly created Department of Water Resources, about to initiate the first phases of construction of the State Water Project, published the California Water Plan. This plan signaled the statutory changes to come in stating the goal of providing "sufficient" water in streams for fish and wildlife and for the enhancement of the recreational aspects of a stream, in part by protecting instream flows "against appropriations of water for other purposes." CALIFORNIA DEPARTMENT OF WATER RESOURCES, BULLETIN NO. 3, THE CALIFORNIA WATER PLAN 21, 31 (1957).

69. CAL. WATER CODE § 1257, as amended in 1959, and § 1243, added in 1959 (West 1971).

70. CAL. WATER CODE § 1243.5, added in 1969 (West 1971) (emphasis added). Unappropriate water needed in the source is not available for appropriation. SCHNEIDER, supra note 62, at 32-33.

71. Porter-Cologne Water Quality Control Act, CAL. WATER CODE §§ 13000-141000 (West 1971).

72. The agencies dealing with water rights and water quality were merged in 1967, CAL. WATER CODE § 174 (West 1971), and in 1969, when the Porter-Cologne Water Quality Control Act was enacted, provisions designed to integrate quality considerations into the water rights process were added to the Water Code. CAL. WATER CODE §§ 1242.5, 1243.5, 1257, 1258 (West 1971).

73. California Environmental Quality Act of 1970, CAL. PUB. RES. CODE §§ 21000-21176 (West 1977).

74. California Wild and Scenic Rivers Act of 1972, CAL. PUB. RES. CODE §§ 5093.50-5093.69 (West Supp. 1978).

75. By way of contrast, a series of statutes dating back to 1852 and designed to protect fish from the adverse impacts of dams seems to have had little impact. Baiocchi, Use It or Lose It: California Fish and Game Code Section 5937 and Instream Fishery Resources, 14 U.C.D.L. REV. 431 (1980).

76. Audubon, 33 Cal. 3d at 425, 658 P.2d at 712, 189 Cal. Rptr. at 349, 13 ELR at 20273.

77. The opinion notes that the board's function "has steadily evolved from the narrow role of deciding priorities between competing appropriators to the charge of comprehensive planning and allocation of waters." Id. at 444, 658 P.2d at 726, 189 Cal. Rptr. at 363, 13 ELR at 20279.

78. Ironically, the first post-Audubon matter to come before the board involved the New Melones Dam on the Stanislaus River — one of the most bitter instream and state-federal relations controversies in California history. In 1973 the state board imposed conditions on the permit granted to the Bureau of Reclamation for the appropriation of water at New Melones. These conditions were designed to defer complete filling of the reservoir and to prolong instream uses of the river stretch to be inundated until the Bureau had firm commitments for water deliveries that would require the additional storage. Although the federal courts held the state conditions to be lawful in the face of challenge by the bureau.California v. United States, 438 U.S. 645, 8 ELR 20593 (1978); United States v. California, 694 F.2d 1171 (9th Cir. 1982), the two recent very wet water years led to filling of the reservoir far beyond the level specified by the state conditions. Recently, under intense political pressure from the legislature and from the fact that the reservoir is nearly full so "instream preservation" would require it to be emptied, the board amended its conditions to remove the previous limitations. STATE WATER RESOURCES CONTROL BOARD, ORDER AMENDING WATER RIGHT DECISION 1422 AUTHORIZING STORAGE IN NEW MELONES RESERVOIR FOR GENERATION OF HYDROELECTRIC POWER AND FOR CONSUMPTIVE USES (Mar. 8, 1983). In this order the board makes certain findings provoked by the Audubon decision. It states that the earlier storage level restrictions "were an attempt to avoid or minimize, to the extent feasible and for so long as possible" harm to public trust values in the Stanislaus River Canyon upstream from New Melones Dam; that the order is a reconsideration of the allocation decisions represented by the water right permits; that public trust interests have been balanced with power and consumptive use needs for diversion of water at New Melones, as well as flood control needs of the United States; and that as a result "nonvested … rights to appropriate at New Melones, to the full capacity of the project, should now be granted to permittee." Id. at 25-26.

79. Audubon, 33 Cal. 3d at 437, 658 P.2d at 721, 189 Cal. Rptr. at 358, 13 ELR at 20277.

80. Id. at 441, 658 P.2d at 724, 189 Cal. Rptr. at 361, 13 ELR at 20278.

81. Marks v. Whitney, 6 Cal. 3d at 259, 491 P.2d at 380, at 380, 98 Cal. Rptr. at 796, 2 ELR at 20050.

82. See Sax, The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention, 68 MICH. L. REV. 473, 475 (1970).

83. GOVERNOR'S COMMISSION TO REVIEW CALIFORNIA WATER RIGHTS LAW, FINAL REPORT 140-41 (1978).

84. See Walston, The Public Trust Doctrine in the Water Rights Context: The Wrong Environmental Remedy, 22 SANTA CLARA L. REV. 63 (1982) (public trust doctrine protects water allocation and fisheries interests "in all waters, whether navigable or not," id. at 85, although the doctrine is simply a basis for the retention of state jurisdiction over water and as such is "substantively neutral," id. at 93; the latter point was explicitly rejected in the Audubon opinion, which states that the public trust "is more than an affirmation of state power to use public property for public purposes." Audubon, 33 Cal. 3d at 441, 658 P.2d at 724, 189 Cal. Rptr. at 361, 13 ELR at 20278); Robie, The Public Interest in Water Rights Administration, 23 ROCKY MTN. MIN. L. INST. 917 (1977) (public trust doctrine applies to "all waters of the state," id. at 928).

85. U.S. CONST. art. VI, cl. 2.

86. 43 U.S.C. § 383 (1976).

87. The narrowest reading of § 8 left to state law only "the definition of the property interests, if any, for which compensation must be made." City of Fresno v. California, 372 U.S. 627, 630 (1963).

88. California v. United States, 438 U.S. at 672, 8 ELR at 20600.

89. Clearly this is the assumption of the state Water Resources Control Board reflected in the order discussed supra note 78.

90. 16 U.S.C. § 821 (1976).

91. In one instance the language was said to have a "purely proprietary sense," First Iowa Hydro-Electric Coop. v. Federal Power Comm'n, 328 U.S. 152, 177 n.20 (1946), and other language in the FPA requiring an applicant for a federal license to submit evidence of compliance with state water law was read as not making the securing of a state permit "in any sense a condition procedent or an administrative procedure that must be exhausted before securing a federal license." Id. at 170. See also City of Tacoma v. Taxpayers of Tacoma, 357 U.S. 320 (1958); Washington Dep't of Game v. Federal Power Comm'n, 207 F.2d 391 (9th Cir. 1953), cert. denied, 347 U.S. 936 (1954); City of Tacoma v. Taxpayers of Tacoma, 60 Wash. 2d 66, 371 P.2d 938 (1962).

92. See, for example, Jawetz, The Public Trust Totem in Public Land Law: Ineffective — And Undesirable — Judicial Intervention, 10 ECOLOGY L.Q. 455 (1982); Wilkinson, The Public Trust Doctrine in Public Land Law, 14 U.C.D.L. REV. 269 (1980).

93. Illinois Central Railroad Co. v. Illinois, 146 U.S. 387 (1892). Currently, the U.S. Supreme Court has before it an important case on the applicability of the public trust doctrine to tidelands in Southern California. City of Los Angeles v. Venice Peninsula Properties, 31 Cal. 3d 288, 644 P.2d 792, 182 Cal. Rptr. 599 (1982), cert. granted sub nom. Summa Corp. v. California ex rel. Lands Comm'n, 51 U.S.L.W. 3684 (U.S. Mar 21, 1983) (No. 82-708). The tidelands were originally acquired by private persons from the Mexican government when California was a part of Mexico, and later private ownership was confirmed by a patent from the United States government. The issues in this case include whether the matter should be resolved pursuant to federal law and, if so, the meaning of federal law in this situation. Id. at 316, 644 P.2d at 809, 182 Cal. Rptr. at 616 (Kaus, J., dissenting).

94. Appleby v. City of New York, 271 U.S. 364, 395 (1926).

95. Illinois Central Railroad Co. v. Illinois, 146 U.S. at 454.

96. 16 U.S.C. §§ 1271-1287 (1976 & Supp. 1981) (Federal Wild and Scenic Rivers Act); NATIONAL WATER COMMISSION, WATER POLICIES FOR THE FUTURE 200-203 (1973) (recommends improved protection of fish and wildlife in federal water programs, particularly through more rigorous application of the Fish and Wildlife Coordination Act); Tarlock, Appropriation for Instream Flow Maintenance: A Progress Report on "New" Public Western Water Rights, 1978 UTAH L. REV. 211, 218 (1978) (work of the Cooperative Instream Flow Group established by the U.S. Fish and Wildlife Service to develop instream flow preservation methodologies); but see United States v. New Mexico, 438 U.S. 696, 8 ELR 20564 (1978) (instream flows in national forests not protected by federal reserved water rights).

97. Audubon, 33 Cal. 3d at 451, 658 P.2d at 731, 189 Cal. Rptr. at 368, 13 ELR at 20281.

98. Id. at 449, 658 P.2d at 730, 189 Cal. Rptr. at 367, 13 ELR at 20281.

99. Id. at 451 n.32, 658 P.2d at 731 n.32, 189 Cal. Rptr. at 368 n.32, 13 ELR at 20281 n.32.

100. Id. at 451, 658 P.2d at 731, 189 Cal. Rptr. at 368, 13 ELR at 20281.

101. Id. at 453, 658 P.2d at 733, 189 Cal. Rptr. at 370, 13 ELR at 20282 (Kaus, J., concurring).

102. Id. at 452, 658 P.2d at 732, 189 Cal. Rptr. at 369, 13 ELR at 20282.

103. These procedures allow for courts to refer to the state Water Resources Control Board either "any or all of the issues" or "any or all of the physical facts" involved in water rights litigation. CAL. WATER CODE §§ 2000, 2001 (West. 1971).

104. Audubon, 33 Cal. 3d at 451, 658 P.2d at 731, 189 Cal. Rptr. at 368, 13 ELR at 20282. This reasoning seems to ignore the possibility that the legislature intended the reference procedures to be used in situations where the board generally lacks original jurisdiction, for example, where groundwater rights are being adjudicated.

105. The reasoning in support of this effect can be found at Walston, supra note 84, at 88-92.

106. Arizona v. California, 373 U.S. 546, 601 (1963).

107. Id. at 567-68.

108. In re Waters of Long Valley Creek Stream System, 25 Cal. 3d 339, 599 P.2d 656, 158 Cqal. Rptr. 350 (1979) (treatment of unexercised riparian rights in a statutory adjudication).