The Public Trust makes a comeback in California
When the Mono Lake Decision was issued by the California Supreme Court in 1983, environmental spokespersons claimed that it would revolutionize the way water is managed in California. Citing both the ancient Public Trust Doctrine (which dates to Roman Times) and a modern California Fish & Game Code, the state’s highest court stated unequivocally that those diverting water from streams must leave enough water in those streams to maintain aquatic ecosystems below the point of diversion. Environmentalists celebrated. Not only was Mono Lake saved, they crowed, but irrigated agriculture and municipalities would no longer be able to dry up living streams and rivers.
In the 27 years since the Mono Lake Decision, however, the dewatering of California streams has proceeded. Many streams which once provided valuable fisheries, recreation and other amenities are now bone dry much of the year. Salmon and steelhead fisheries and swimming holes used by generations of Californians are among the resources which have been sacrificed to water California’s agribusiness and its thirst for development.
Recently, however, Public Trust claims appear to be making a comeback. In June the Environmental Law Foundation and commercial salmon fishing interests filed a Public Trust lawsuit aimed at ending the dewatering of Northern California’s Scott River – a major Klamath River tributary.
And this month, the California Water Impact Network filed a Public Trust lawsuit aimed at restoring the Sacramento-San Joaquin Delta. The lawsuit claims that pumping from California’s largest delta to supply Southern California’s corporate agribusiness and cities violates the ancient law and therefore must be curtailed.
In spite of both Water and Fish and Game Codes that should protect stream flows, California officials have looked the other way as legal stream diverters have increased water use beyond their legal rights and as others have diverted stream flow illegally. In the five counties North of San Francisco Bay (Marin, Napa, Sonoma, Mendocino and Lake), for example, there are 1,777 known illegal water diversion. Since these are mostly ponds identified from aerial photographs, the actual number of illegal diversions is believed to be much greater. There are also numerous new water right applications and protests on those applications. This has created a tremendous backlog and enforcement problem for the State Water Resources Control Board – the state agency charged with enforcing California water law.
Complicating the situation is the fact that most groundwater is unregulated in California. The exception is groundwater which is known to be closely interconnected with surface flow. The burden, however, has been on those opposing pumping to prove that groundwater extraction diminishes surface flow. Providing the proof is expensive and such claims typically end up in court. In fact, it appears that irrigated agriculture is fighting a long rear guard action aimed at preventing utilization of the Mono Lake Decision to reallocate California’s water. Agriculture currently consumes 80 to 90 percent of the water diverted from California’s principal river basins; most river flow studies find that roughly half of the water must be left in-stream in order to maintain aquatic ecosystem functions.
Why has the Mono Lake Decision and the Public Trust Doctrine which backs it up not been utilized more often to block stream dewatering? The answer lies in the time and cost involved in pursuing a Public Trust claim. The Mono Lake case was filed in 1979 and the final Supreme Court decision came down in 1983; that is considered fast for a water case. Lawyers routinely discourage Public Trust lawsuits; they claim getting a final ruling could take 30 years. Grassroots environmental groups have rarely possessed the legal and financial resources to pursue Public Trust cases; many national river and fishing groups which possess the necessary resources appear to have been more interested in “collaborative” talk fests than in hard nosed advocacy. Finally, water law is specialized, each state has its own laws and there have been few water law specialists working at environmental law firms. Environmental lawyers often prefer to practice in federal court; some discourage clients from making claims in state court.
Why are lawsuits based on the Public Trust Doctrine making a comeback now? I believe the answer is desperation. Many long-time river advocates (I’m an example) regret not having filed Public Trust claims decades ago. Now these advocates are desperate as the rivers and streams they’ve worked to save disappear into the ditches and ponds of wineries and other corporate agricultural interests.
River advocates have also come to recognize the limitations of other laws they have employed in efforts to end the dewatering of rivers. The Endangered Species Act, for example, can be effective in preventing extinction but it has proven an ineffective tool for restoring rivers. For example, ESA listings for Pacific salmon and steelhead trout and the designation of critical habitat for them have not stopped the dewatering of salmon streams. The Scott River and the Sacramento-San Joaquin Delta are two examples of water bodies where ESA salmon listings have not been able to stop excessive water diversion.
It is hard to know whether the trickle of new California Public Trust petitions and lawsuits will grow into a raging river. But one thing is certain, California river advocates believe the situation is dire and the time is late. Expect them to use every tool at their disposal to prevent the destruction of California’s rivers and the magnificent salmon and steelhead fisheries they once supported.
Felice Pace has lived in the Klamath River Basin since 1975. For 15 years, he worked for and led the Klamath Forest Alliance as Program Coordinator, Executive Director and Program Director. He remains part of the Alliance’s Core Group, and now consults with environmental and indigenous organizations on fund raising and development. He currently resides at Klamath Glen, near the mouth of the Klamath River.