8093

• UCREFRP Catalog Number: 8093
• Author: Natural Resources Law Center.
• Title: Instream Flow Protection In The West - Revised Edition - 1993.
• USFW Year: 1993.
• USFW - Doc Type: \
• Copyright Material: NO

Where none of these cooperative strategies suffice to adequately protect instream
resources, free-flowing water advocates have been assessing and in some cases asserting
their ultimate tool-the Public Trust Doctrine.

Asserting the Public Trust

The Public Trust Doctrine is perceived by many westerners as the vehicle through
which the public interest in fully appropriated streams can be reestablished without costly
expenditures. Others view it as an underhanded means of sidestepping constitutional
protections and taking the vested property rights of farmers and other senior water users.
Each attitude reflects the understanding that the doctrine indeed wields the potential for
greatly enhancing instream flows in the western states.

The roots of the Public Trust Doctrine reach into English common law where the
sovereign could not prevent the people from using tidelands and coastal waters for
fishing and navigation needed for the public good. This concept was carried into
American jurisprudence, and constrained state governments from turning over coastal
lands to private enterprises to the detriment of the public needs in these areas. Then in
1983, the California Supreme Court applied this public trust concept to inland waters,
setting off both considerable hope and consternation in various westerners who wondered
if the doctrine would be applied in their states as well.

The California Supreme Court in its 1983 decision ruled that Los Angeles'
diversions from tributaries of Mono Lake were subordinate to the public values
supported by the lake.27 To the extent that the diversions were lowering the lake level
and destroying important public values (e.g. bird habitat, scenic beauty), the diversions
had to be curtailed. Under the Public Trust Doctrine, California as the sovereign had no
right to issue permits for water diversions that undermine the public values entrusted to
the state on behalf of its citizens. The court remanded the case for a determination of
what level of flow was needed in the tributaries to ensure maintenance of the public trust
values in Mono Lake.

The Mono Lake decision threw open the door to the reallocation of water
resources from historic uses to instream flows in the West. In most western states,
however, the courts have not ruled on whether the Public Trust Doctrine applies to the
protection of local inland waters. Only in Idaho has the state supreme court followed the
lead of California in explicitly recognizing the strength of the doctrine.28

Protections Under Federal Law

The preceding sections have demonstrated the various strategies invoked by states,
Indian tribes, and private interests to promote free-flowing waters. A description of in-

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