National Audubon Society v. Superior Court

Supreme Court of California · 1983 · Property

PropertyWater rightsPublic trust doctrinepublic trustwater rightsappropriationnavigable waterstributaries

Facts

Mono Lake is a navigable lake whose scenic, ecological, and recreational values depend largely on inflow from five Sierra streams. In 1940 the state water authority granted DWP permits to appropriate virtually the entire flow of four tributaries, and DWP eventually diverted nearly all of that water into the Los Angeles aqueduct system. The lake level fell substantially, one island became a peninsula exposing gull nesting areas to predators, and the lake's scenic and ecological values were endangered. The 1940 board approved the permits without considering public trust impacts because it believed it lacked power to protect those interests against domestic-use appropriations.

Issue

Does the public trust doctrine operate independently enough to permit reconsideration of DWP's state-issued water rights when diversion of nonnavigable tributaries harms a navigable lake, or is it entirely subsumed within the statutory water-rights system? Also, must plaintiffs first exhaust an administrative remedy before the Water Board before proceeding in court?

Rule

California water law integrates the public trust doctrine and the appropriative water-rights system. The state retains continuing supervisory authority over navigable waters and the lands beneath them, and that authority protects navigable waters from harm caused by diversion of nonnavigable tributaries; no one acquires a vested right to appropriate water in a manner harmful to public trust interests. The state may grant usufructuary rights to divert water even when trust uses may be harmed, but courts and agencies must consider public trust impacts and, so far as feasible, avoid or minimize harm; courts and the Water Board have concurrent jurisdiction, with courts able to refer matters to the board.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

A municipal water utility in Reno holds state permits issued decades ago to divert nearly the entire flow of two small, nonnavigable creeks into a pipeline serving suburban growth. New studies show the diversions are causing a downstream navigable lake in Nevada to shrink, exposing nesting grounds and reducing boating and bird habitat.

If conservation groups sue in state court seeking reconsideration of the diversion regime under the public trust doctrine, what is the strongest argument in their favor?

Explanation. The majority held that the public trust extends beyond the bed and shore of a navigable waterway to protect it from harm caused by diversion of nonnavigable tributaries. The doctrine is not limited to direct physical invasions of the navigable water itself. At the same time, the case does not say all harmful diversions are automatically void, and trust purposes include ecological and recreational values as well as traditional uses.