7368

• UCREFRP Catalog Number: 7368
• Author: Meyer, C. H.
• Title: Western Water and Wildlife
• USFW Year: 1989.
• USFW - Doc Type: The New Frontier\
• Copyright Material: NO

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improperly conveys away the trust property to another person, the court has the power
to take the trust property back and restore its benefits to the beneficiary.
In the case of Mono Lake, the trust property is the water of the state. The
trustee is the state (and the state agencies which allocate the water). The beneficiaries
are the people. If the water board abused its responsibility to the people of the state
by transferring the state's water--the water of Mono Lake--to Los Angeles, the court has
the authority to correct the error.
Although the applicability of the public trust doctrine was firmly established by
the Audubon case, the doctrine's practical effects are not yet known. The California
Supreme Court did not simply declare Los Angeles' water rights invalid. Instead it
announced that the state water agency (now known as the California Water Resources
Control Board) should weigh the relative harm of diversion from Mono Lake against the
water needs of the city.
The public trust doctrine is not an automatic bar to water development. As the
court said:
This opinion is but one step in the eventual resolution of
the Mono Lake controversy. We do sot dictate any
particular allocalaon of water. Our objective is to resolve
a legal conundrum in which two competing systems of
thought--the public trust doctrine and the appropriative
water rights system--existed independently of each other,
espousing principles which seemingly suggested opposite
results.
The decision makes clear that it is ultimate responsibility of the courts to ensure
that this cosmic balanang takes place. No longer can state agencies dole out water
resources blind to the environmental implications of their actions. This does not
guarantee that Mono Lake will be saved. It does guarantee that the resource will have
its day (or decade) in court.
Presently, the public trust doctrine is being used by conservationists and others
in states all across the Weat to protect habitat and to obtain human access to streams.
In every western state in which the issue has arisen-save Colorado'--the courts have
recognized the public trust doctrine.
Those concerned that the courts have no business changing the traditional rules
of water allocation--rules that ignore public value consideration--should be reminded
that it was western state courts themselves which overturned hundreds of years of
tradition in eastern riparian water law in adopting the prior appropriation doctrine in
the first instance's It has always been the job of the courts to interpret and apply the
common law in the context of contemporary experience. If anything, the public trust
"The California Supreme Court deasion did not end the litigation over Mono Lake. That court
merely responded to a request from the federal court (where the case is still pending) to explain the
relationship between the public trust doctrine and the state water system. Sig years later, the case is
still working its way through the courts. National Audubon Society v. Dept of Water & Power of the
City of Los Aneeles, 858 F.2d 1409 (9th Cir. 1988).
"National Audubon Society. 658 P.2d at ?32.
"Colorado is the only western state to reject the public trust doctrine. People v. Emmert. 198 Colo.
137, b97 P.2d 1025 (1979). That decision is now being challenged by a group of five conservation
organizations led by the National Wildlife Federation. Concernine the Application for Water Riehts of
the City of Aurora. Colorado, et el.. Nos. 86-CW-37, 86-CW-202, 86-CW-203, and 86-CW-226 (filed Apr.
29, 1986).
"E.g., Irwin v. Phillips. 5 Cal. 140 (1855); Coffin v. Left Hand Ditch Co., 6 Colo. 443 (1882).