INTRODUCTION: WELCOME TO BUFFALO COUNTRY

With the Waiahole Ditch opinion, Hawaii joined the western water world, in which the "water buffaloes"historically rampaged over lakes, rivers and groundwater basins, fiercely defending what they perceive to be their rights against a motley but increasingly menacing crowd of fishermen, bird-watchers, wildlife biologists and environmentalists. For many years, the water buffaloes had things pretty much their way. Water agencies believed they had no alternatives but to approve appropriative permits if the water were being put to economic use. Riparians could draw their share of water subject to little control, and the owners of underlying groundwater could pump to their hearts’ content.

But even then, to paraphrase a great American poet, the times they were a’changin. Beneath the murky navigable waters, there stirred an ancient doctrinal beast capable of giving the water buffalo a good fight. The public trust doctrine–a concept going back to Roman law–reflected the concept that of necessity some things–the air, the waters, and their beds and banks–cannot be reduced to that exclusive dominion and control recognized by Locke and Blackstone as private property. Even in those days, the tidelands and the water overlying them were held in trust for the people. In 1821, a New Jersey court stated that reducing them to private possession was a concept that violated "the law of nature and the constitution of a well ordered society." Such a disposition, said New Jersey’s Chief Justice, would be a grievance "which never could be long borne by a free people."

The principle that inspired this vehement declaration was the public trust: an ancient doctrine that, in the words of the Mono Lake decision, is "an affirmation of the duty of the state to protect the people’s common heritage of streams, lakes, marshlands and tidelands.

The virtue of the public trust as a common law doctrine, albeit rooted in constitutional principles, is that the courts have construed it consistently with changing societal needs. In the 19^th century it was applied to protect uses required by the stern economic demands of the times–commerce, navigation and fisheries. As times changed, courts recognized that public trust values protected more than commercial uses. The trust does not preserve any outmoded classification favoring one mode of utilization of resources over another. Today, as the Wisconsin court put it, "The active public trust duty of the state...requires the state not only to promote navigation but also to protect and preserve those waters for fishing, recreation and scenic beauty."

At the same time, logic compelled the conclusion that a rule of law protecting the waters of the state necessarily extends beyond the beds and banks of commercially navigable rivers and lakes. As far back as 1884, the California Supreme Court upheld the prohibition of upstream hydraulic mining that was polluting the American and Sacramento rivers hundreds of miles downstream.

That rationale led inevitably to the National Audubon opinion, which so eloquently explained why the public trust protected the waters of Mono Lake from destruction by diversions for domestic uses many miles away. The facts of this opinion have been widely published. Briefly stated, before 1941, when the City of Los Angeles extended its 200 mile long aqueduct to the Mono Basin, Mono Lake was the largest body of water entirely within the state. Its large population of brine shrimp and flies made it a virtual avian travelodge, frequented by vast numbers of California gulls, eared grebes, Wilson’s phalaropes, snowy plovers and other birds that annually migrated there. The Los Angeles aqueduct initially took water from the Owens Valley.

By the time National Audubon was filed in 1979, the City had largely drained Owens Lake and begun diverting water from the Mono Lake basin in greatly increased amounts through a second aqueduct. Since 1941 when the diversions began, the lake had dropped over 40 feet. Its volume was reduced nearly 50 per cent, and salinity had nearly doubled. Nearly 15,000 acres of dry lake bed were exposed, giving rise to toxic dust storms and creating a land bridge to Negit Island, then the principal nesting place for the California gulls. Continued diversions could have brought the lake below a nick point at which tributary stream channels would have become severely degraded.

After lengthy journeys through state and federal courts, a federal court abstained, and posed the question of application of the public trust to the state courts. The California Supreme Court then issued its opinion, holding that appropriative water rights and the public trust doctrine were "parts of an integrated system of water law," permitting Audubon to pursue its public trust cause against the City.

This court recognized that the public trust doctrine and the appropriative water rights system were in "collision course," and must be reconciled. In its opinion, the court stressed three basic principles, all of them rooted in trust law:

The court took pains to observe that the state’s public trust duties with respect to water diversions are not necessarily the same duties as it has as the steward of the tidelands and beds of navigable lakes and rivers. "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..."

In the Mono Lake dispute the State water board had essentially thrown up its hands. When asked, in 1940, to impose limits on the diversions of Los Angeles from the Mono Basin, it had declared itself powerless to do so. Thus, as the California Supreme Court observed 40 years later, neither 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 will better balance the diverse interests." Invoking both California’s constitutional reasonable use standards and the public trust, the court held that "all uses of water, including public trust uses, must now conform to the standard of reasonable use" as well as public trust considerations.
 

PUBLIC TRUST IN WATER: OLD LAW OR NEWFANGLED NONSENSE?

The concept of public trust protection for state waters is not a new one. It was anticipated in North Dakota where, in 1976, its supreme court held that the state must consider the statewide impacts on water of major energy projects: "[T]he discretionary authority of state officials to allocate vital state resources is not without limit but is circumscribed by what has been called the Public Trust Doctrine." United Plainsmen Ass’n v. North Dakota State Water Conservation Commission, 247 N.W.2d 457 (N.D. 1976).

After all, water is not blackacre. Title to the corpus of water cannot be appropriated for private use. Fish and fishermen, ducks and developers, farmers and forests all have an interest in the lakes and streams of a state. Almost a hundred years ago, the California court stated:

Since National Audubon, the public trust creature, liberated from its "historical shackles," has appeared in varying forms and guises. A California statute expressed one of it purposes by providing that the use of water for recreation and preservation and enhancement of fish and wildlife is a beneficial use. A California appellate court characterized a statute requiring that fish be kept in good condition below dams as a legislative implementation of the public trust doctrine. The Idaho Supreme court has recognized the doctrine, although that state’s legislature has attempted to limit its application in the water context. The Montana court recognized the trust as one rooted in state constitutional provisions making water the property of the state for the use of the people.

Now that the Supreme Court of Hawaii has recognized its application, and that State faces the duty of implementing its principles in water allocations, the experiences of California in the past 18 years may be instructive. The similarities between National Audubon and Waiahole Ditch go beyond their agreement on the legal principles at issue. Both cases involve the reallocation of water from large and costly ditches, built around the turn of the century to accommodate growing urban needs. In both cases, the court expressed a far broader view of the powers of the state, under the public trust doctrine, than did the administrative agency charged with administering water rights. In both cases, the number of parties and amici reflected a sort of who’s who of the economic, political and environmental powers of the state.

THE WORLD AFTER NATIONAL AUDUBON

What consequences flow from application of the public trust doctrine to water cases? In California, dire predictions were made as to the future of the economy and our civilization itself in light of the alleged instability brought to an established water rights system. The City of Los Angeles, in the Mono Lake litigation, initially published pamphlets suggesting that the inner city children would go without affordable power and potable water if the Mono Lake Committee prevailed.

In California, a number of cases have arisen since National Audubon in which public trust as well as constitutional and statutory principles have been at issue. They cope with issues left unresolved by the California Supreme Court’s Mono Lake opinion, and they reflect varying approaches by different adjudicative bodies. The Mono Lake court agonized over the issue of concurrent jurisdiction. Ultimately, the majority rejected the view that the state administrative agency charged with administering water rights should make the initial decision on allocations. Since then, cases have been decided both by courts, and by the State Water Resources Control Board. National Audubon itself was the subject of a state court preliminary injunction. The court then stayed its proceedings to permit extensive State Water Board hearings resulting in the amendment of the City’s water permits. This procedure shows how courts and administrative bodies can work effectively to prevent irreparable harm by interim relief, while at the same time affording an opportunity for an expert body to engage in the long-term studies needed for permanent solutions.

Of the cases discussed below, one was decided by the court after the Board failed to reach a satisfactory solution. Another was decided by a judge and subsequently settled. And the third involves the Water Board’s efforts to implement the trust initially.
 

1. Environmental Defense Fund v. East Bay Municipal Utility District: The Lower American River

EDF v. EBMUD dealt with a 20 year effort by a major water supplier in the San Francisco Bay Area to exercise its federal contract rights to water from the Lower American River. This dispute was initially filed in state court, referred to the State Water Board for determination of a number of questions, then decided by a trial court judge who disregarded most of the Board’s recommendations.

When the case was filed, Folsom Dam had been constructed, and developmental expectations were high. Folsom Dam, and Nimbus Dam below it, were intended to hold one million acre feet of the 2.7 annually discharged into the American River watershed. Although by 1989 only 221,000 acre feet were being taken from the river, overall entitlements amounted to nearly one million, and by 2020 could have risen to 1.2 million acre feet. Accordingly, the East Bay Municipal Utility District (EBMUD) contracted with the Bureau of Reclamation for 150,000 acre feet annually. The East Bay District would take its water from Nimbus Dam, just below Folsom, through a proposed canal to Contra Costa County, where it would be distributed to its customers.

However the expectations of EBMUD conflicted with growing environmental concerns, and the establishment of a 30-mile long parkway along the American River which provided recreational benefits to millions of people annually. The parkway passes through a densely populated urban area. It contains vestiges of a dense riparian forest. Steelhead, bass, sturgeon and other game fish provide fishing opportunities. A bike path extends the length of the parkway, and rafting, canoeing, and kayaking are widely practiced. All of these amenities depend in large part on the establishment of minimum flows in the river.

Implementation of the contract was initially challenged in 1972 by the Environmental Defense Fund, Save the American River Association and other environmental organizations and individuals. They alleged that the diversion would diminish flows on the Lower American River, injure recreational opportunities, increase salinity and pollute San Francisco Bay. Furthermore, they alleged that the water could be diverted just as economically from a point farther down river, at a point where the American River would not be threatened.

After many years of jockeying, the case ended back in trial court with the state Department of Fish and Game and Lands Commission and the County of Sacramento as interveners. By then National Audubon had come down, and the court was faced with the Supreme Court’s ruling that, in the context of water allocation, the public trust requires courts and agencies alike to protect trust values "so far as feasible."

Did a complex case like this belong in before a generalist trial court judge? Mindful of the Supreme Court’s advice: "[w]hen the case raises issues that should be considered by the board, the court may refer the case to the board.," The trial court referred the following question to the State Water Resources Control Board, the state agency responsible for determination of water rights in California.

The Board characterized its decision as a "close call." It conceded that a diversion downstream on the Sacramento River would provide "grater assurance of water deliveries and possibly lower cost." Furthermore, by making recreational and ecological uses available before the diversion, it would provide the most beneficial use of the water that would pass through the Lower American. Nevertheless, the Board recommended that the district be allowed to divert from the higher point, suggesting that the court retain jurisdiction pending a Board study of all water rights on the lower American River.

The trial court essentially rejected the Board’s recommendations. Finding the evidence "overwhelming" that the cumulative impact of EBMUD’s diversion along with other projected consumptive demands would cause irreparable damage to the river, it s fisheries, and its riparian habitat, it held, consistent with National Audubon, that both the state’s reasonable use doctrine, imposed by the State Constitution, and the public trust required the imposition of a specific physical solution to protect sensitive trust values.

However the court also rejected the plaintiffs’ arguments that inasmuch as Audubon requires that the state "protect public uses whenever feasible," and "to attempt, as far as feasible, to avoid or minimize any harm to those interests," it must divert downstream on the Sacramento River because it is feasible to do so. If protection of trust values can be accomplished consistently with the American River diversion, the court held, then EBMUD should be allowed to make such a diversion. It then imposed a balancing analysis, weighing EBMUD’s valid contract rights, its acts in reliance on those rights and its interest in the highest quality water against cumulative threats to the river. The court concluded that public trust values could be protected by a physical solution which would satisfy EBMUD’s contract rights and give it the pure water it wanted, by imposing a minium flow regime. The court’s order prohibited EBMUD from making any diversions when the river levels were at a minimum the court deemed essential for the health of the fishery and related trust values. Furthermore, it prohibited EBMUD from using any of the water outside of the district’s boundaries. Any transfer or sale of the water, "particularly to agricultural interests" was prohibited. These requirements were expressly held to be minimum ones, required by the state Constitution and the public trust. The court reserved jurisdiction, and a special master was appointed to oversee implementation of the order.

In passing, the court also resolved a number of other significant issues raised in the case and not answered in the Supreme Court’s Mono Lake decision:

1. It held, consistent with established trust law, that neither Congress nor the California Legislature had modified the public trust in the American River when it approved the Folsom South Canal Project, through which the water would have been taken by EBMUD. First it noted that the federal Reclamation Act expressly disavowed any intent to affect the laws of the State relating to the control, appropriation, use or distribution of water.

Further, the court noted that there had been no showing that any congressional purpose would be frustrated by the trust limitations set forth in the opinion.

Nor had the Legislature intended to abrogate the public trust or to make an express disposition of trust assets by approving the Folsom Dam and the Folsom-South Canal. Nothing in the state legislation, the court noted, showed an intent to allocate the water at issue. Furthermore, there was no showing of an intent to revoke or limit the sate’s continuing supervisory powers over the water under the public trust. Consistent with established trust law, the court noted that an intent to abandon the trust will not be implied "if any other reasonable interpretation is possible.".

2. The public trust can be imposed on artificially created flow regimes, made available solely by a federal reclamation project. Echoing United Plainsmen, the court observed that EBMUD’s position that the state may not regulate water subjected to artificial damming "runs counter to strong administrative and judicial trends favoring comprehensive planning in the allocation of those resources." Presumably this rationale applies to state and local, as well as federal projects. A contrary holding would have severely limited the application of the trust, inasmuch as virtually every river in California has been dammed and its flows subject to artificial regulation.

3. The public trust may be imposed against a water contractor, as well as a holder of the underlying water right. It made little sense, the court observed, to hold that the safeguards mandated by the trust could not be imposed against the entity actually using water protected by it.

The avowed purpose of the court in imposing a physical solution was " accommodate the diverse and conflicting interests" addressed in the litigation, providing for the fullest beneficial uses of the water while protecting the sensitive public trust interests of the river.

No appeal was taken from the decision. Ultimately, after more years of wrangling, EBMUD decided to take its Bureau water from the Sacramento River, thus avoiding the concerns still raised by the Sacramento parties. The larger Sacramento River, fed by Shasta Dam and many tributaries, was easier to manage than the Lower American. Cumulative impacts could be minimized. Once this seemingly perfect solution was reached, however, a whole new band of plaintiffs emerged and challenged the amendatory contract made between EBMUD and the Bureau. These were contractors for federal and state water drawn from the Bay Delta region downstream and several Bay Area water districts, who felt that their priority in receiving Central Valley Project and State Water Project water from the Sacramento River and Delta would be jeopardized by putting EBMUD ahead in line. Accordingly, they challenged the proposed diversion on a number of grounds, including the environmental evaluation water quality and reliability issues and impacts on threatened and endangered species.
 

2. The Putah Creek litigation: fish, schoolchildren and irrigators.

The second post-Audubon case discussed today is another trial court decision made in litigation over consumptive withdrawals from Putah Creek. Putah Creek, in northern California, is the principal domestic water supply to the residents of four cities in the Sacramento Valley. It provides water to farmers served by a local irrigation district, and allegedly was an attraction for several business concerns such as Anheuser Busch and Genentech, looking for cheap, reliable water. At the same time it is what the trial court described as "a treasure," home for birds, wildlife waterfowl, fishes, trees and vegetation. "It’s a place for people to watch birds, fish, to canoe, to kick back and enjoy the sights, sounds and the smells." A branch of the creek runs through the University of California at Davis. Professors and students engaged in teaching and research activities in the creek, and schoolchildren were brought there for nature studies.

The plaintiffs, a coalition of environmentalists joined by the City of Davis and the University, alleged that Putah Creek was suffering badly from diversions, to the extent that 22 miles of stream habitat had been destroyed. The court basically agreed. It found that the existing release schedule essentially confined native fish to a short reach of habitat below a diversion dam, jeopardizing spawning and favoring exotics over the natives. Furthermore, it resulted in a loss of trees and vegetation and hampered the dispersal and germination of seeds,. Overall the court found a negative effect on "the educational resources of the creek and on the birds and animals that call it home." This, it was contended, violated the public trust, in its common law form and as implemented in Fish and Game Code section 5937, a statute requiring that fish below dams be kept in good condition. The court agreed, stating that "the present release schedule is insufficient to satisfy the public resources associated with this creek or to keep the fish in good condition."

Defendants had argued that Putah Creek failed to meet one requisite on which traditional trust and National Audubon were both premised: the creek was not in fact commercially navigable. It is doubtful that the requirement of title navigability–one used to determine whether the State owns the beds and banks of a body of water–is applicable to public trust water determinations. The Supreme Court in Audubon strongly implied that any body of water fit for recreational use was subject to the trust, and the trial court in Putah Creek strongly agreed, stating" In my view present day issues ought not to be driven by such an archaic, if not arcane, principle having nothing whatsoever to do with the proper allocation of water."

Once again, this was a case in which public trust issues had not been considered when the release schedule was established 40 years ago. The judge expressed sympathy for the long-established diverters: "In a sense I think the Solano parties feel that this water belongs to them. They do call it project water. But I think the law says it belongs to all of us."

The court did not give plaintiffs a blank check. It declined to set flows for anadromous fish, observing that Putah Creek was "never much, if any, of a serious spawning area for chinook or any other kind of salmon," and that the salmon who went there were "opportunistic." Flushing flows were also rejected as a concept of "questionable value" in light of scientific testimony. This left "rearing flows and spawning flows," both of which were ordered, based on evidence received in the hearings.

Putah Creek, like EBMUD, was settled before an appellate hearing could take place. As a result, defendants never received a published opinion on another novel issue they raised: reimbursement for reductions in water. Illinois Central suggests compensation for the costs of lawful improvements made on trust land if the state should decide to exercise the trust and retake lands subject to existing uses. However application of this argument to water rights is questionable.

It suggests at once that exercises of state police power over uses of water is a taking, and that the state’s public trust interests in water and in fish and wildlife are not preexisting interests in property that never belonged to an appropriator at all. Both propositions are inconsistent with applicable case law.

In addition, it ran afoul of existing precedent to the effect that requirements imposed by the state on its political subdivisions cannot constitute compensable takings. California’s "reasonable use" doctrine was expressly upheld against a taking challenge shortly after its incorporation into the State constitution. It appears that the power and duty of the state to restrict water diversions so as to protect wildlife is supported by both the nuisance and public trust doctrines.
 

3. Fish and the Yuba River: State Water Resources Control Board Decision 1644

In the last, and latest, of this trilogy of cases the State Water Board exercised public trust jurisdiction itself. The case began in 1988 with a complaint filed by a coalition of fishery groups, contending that water flows in the Yuba River were insufficient to keep fish in good

condition, thus violating both common law and statutory public trust strictures. By the time the Board’s deliberations were winding up, the electrical energy crisis was underway and the Board took official notice of both the problem and various gubernatorial executive orders dealing with it. Accordingly, a proposed interim flow schedule was scaled down to accommodate hydroelectric production needs, and full reductions of diversions delayed to the year 2006.

The Board rejected arguments that it had not taken all necessary measures to protect several threatened species under the state and federal endangered species acts. Although several state statutes provided it was the state’s policy to conserve threatened and endangered species and directed state agencies to utilize their authority in furtherance of this purpose, and defined "conserve" as meaning the use of all methods and procedures necessary to restore the health of any endangered or threatened species, the Board characterized these provisions as policy statements rather than statutory mandates. The policy expressed therein should be taken into consideration as part of the public trust balancing process, the Board stated, but did not "compel that the balance be struck in favor of the endangered or threatened species whenever additional flows or other requirements would benefit those species."

In addition, the Board rejected complaints that its decision failed to evaluate flow requirements necessary for protecting other trust resources in the river. These uses included small craft navigation, swimming and warm water fish uses. However the petitioners did not explain how these other uses would be adversely affected by the diversions authorized, nor did they specify what specific changes were requested.

In its deliberations, the Board considered the following statutory and common law directives:

1. Fish and Game Code section 5937. This provision noted earlier in this paper, requires that dams be operated so as to keep fish in good condition. It has been described by the appellate court as both an implementation of the public trust and a legislative determination of water right priority.

2. The Streamflow Protection Standards Act. Public Resources Code sec. 10000 et seq. This act directs the Department of Fish and Game to identify streams for which minimum flow levels are needed to assure the continued viability of stream-related fish and wildlife. The Department t is directed to transmit its proposed requirements to the Water Board.

3. The Salmon, Steelhead Trout and Anadromous Fisheries Program Act. This act sets legislative policy respecting the protection of anadromous fisheries. Its goal is to "significantly increase the natural production of salmon and steelhead trout by the end of this century." Fish and Game Code sec. 6902(c). The Board acknowledged it duty to consider this policy in establishing fishery flows in the Yuba River.

4. The California Endangered Species Act. Fish and Game Code secs. 2050 et seq. This act sets forth legislative policy that "all state agencies, boards and commissions shall seek to conserve endangered species and threatened species and shall utilize their authority in furtherance of the purposes of (the Act)." Sacramento spring-run chinook salmon in the Yuba River were listed as threatened under this Act.

5. The Federal Endangered Species Act. The National Marine Fisheries Service had concluded that both the spring-run chinook salmon and the Central Valley steelhead were threatened, thus invoking protective regulations.

6. The Public Trust Doctrine. The Board noted that under National Audubon, it had an affirmative duty to protect public trust uses whenever feasible, and could exercise the state’s ongoing supervisory control over water allocations, and reevaluate fishery protection based on more recent evidence and changed conditions.

Based on these considerations it concluded that reevaluation of the water right permits at issue was in order to establish Instream flow requirements involving release of water from storage at certain times to protect fish and fish habitat and partially mitigate for the ongoing adverse effects of dams and ongoing diversions of water taking place.

Minimum flows must be increased, it concluded, although not to the extent recommended by the Fish and Game Department. It found that implementation of expanded water conservation programs and management efforts could help minimize future increase in water demand, and adopted a "deficiency clause" allowing for temporary changes in years in which the surface water supply could not supply 80 percent of projected demand.

No one was entirely happy with this decision, and the water agencies affected have challenged it in court. However it represents one of the most comprehensive efforts by the Board to implement public trust principles through a network of balancing decisions guided by statutory directions. And perhaps that is where the future lies. An amorphous common law doctrine, while powerful and effective, hardly matches focused directives setting forth both goals and procedures for protection of public trust values.

The Water Board’s 190 page opinion is lengthy, detailed and not conducive to bedtime reading. Its summary and discussion of the 27 days of hearings would never compete with a Hitchcock thriller. But its solomonic decision successfully weaves its way through the myriad statutory guidelines, following public trust directions and ultimately creating a record that will relieve a reviewing court of the job of reinventing the wheel, something the court had to do in the Lower American case.
 

CONCLUSION

What are the lessons to be learned from California’s encounters of the public trust kind? The public trust doctrine is not a kind of cure-all for the resolution of competing water uses. Nevertheless, it provides a number of highly salutary guidelines and protections for resources that have been sadly neglected in past water allocations. It requires consideration of trust values in determining the uses of water, and requires avoidance of harm to those values whenever feasible. It reminds state agencies and property rights advocates alike that the state’s power and duty to protect public trust values is a continuing one, and that the issuance of a water rights permit does not place water beyond the reach of these protections.

What it does not do is repeal Mark Twain’s admonition that while whiskey is for drinking, water is for fighting over. The long, fierce battles between water buffaloes and tree-huggers will go on. Cases will last for generations, as water rights matters so often do. Hearings will go on for weeks and months, and the spirit of Bleak House will survive in 21^st century battles before courts and agencies.

But two good results clearly have emerged: First, legislative and administrative agencies have been encouraged (or prodded) to consider the impacts of these actions on public trust values. Legislative guidelines have emerged, and the water rights agencies have slowly begun to consider values beyond the ones they have traditionally followed.

The public trust, that ancient behemoth hidden for so long beneath the waters, has emerged to confront the water buffalo. His appearance on the field should do much to even up what was such an uneven battle in past decades.