The Public Trust Doctrine, Private Water Allocation, and Mono Lake: The Historic Saga of National Audubon Society v.
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1 The Public Trust Doctrine, Private Water Allocation, and Mono Lake: The Historic Saga of National Audubon Society v. Superior Court --Professor Erin Ryan, FSU Law School 1
2 The Public Trust Doctrine, Private Water Allocation, and Mono Lake: The National Audubon Society Saga Objectives Introduce PTD & classic tale of E/P law Raise Qs re: role and scope of the PTD Re: public v. private rts in W resources Consider future doctrinal developments 2
3 The Common Law Public Trust Doctrine Byzantine law: jus publicum (Institutes of Justinian) By natural law, these things are common property of all: air, running water, the sea, and with it the shores of the sea. U.S., re: navigable waterways - state holds in trust for public The state holds the title to the lands under navigable waters in trust for the people of the State that they may enjoy the navigation of the waters, carry on commerce over them, and have liberty of fishing therein freed from the obstruction or interference of private parties. (-IL Cntrl RR) Acts as limit on gov t power, enforceable by citizens in court 3
4 PTD vs. Private Water Allocation E: Riparian Rights W: Prior Appropriation & Beneficial Use Everyone shares First in time, first in right 4
5 Prior Appropriations, the Public Trust, and Mono Lake 5
6 Water as Wet Gold in the City of Los Angeles Los Angeles LA River (channelized) 6
7 Moving Water to Los Angeles: A CA state priority since 1906, when LA s groundwater had been all but pumped dry 7
8 The Owens River & Valley, Owens (Toxic) Dry Lake 8
9 Mono Lake & the Yosemite-Inyo Sierra Crest 2x size of San Francisco 3 million years old 3x saltier than Pacific Unique ecosystem Scientific research Stunning natural beauty Culture & community 9
10 Artemia Monica: Unique Mono Lake Brine Shrimp (photos of a related Great Salt Lake species) 10
11 Mono Lake & The Pacific Flyway Over 300 species, including millions of Eared Grebes, Wilson s & Red-Necked Phalaropes, Snowy Plovers, Sandpipers, Avocets, Ibises 11
12 Critical regional fisheries Riparian habitat Local cultural values The Freshwater Mono Basin creeks that feed Mono Lake 12
13 Lee Vining (elev. 6400, pop. 315) 13
14 Local Industry, Part I: The Mono Craters Pumice Mine 14
15 Local Industry, Part II: The Brine Shrimp Plant 15
16 Part III: National & State Park Public Lands The Hard Working Rangers of the Eastern Sierra Public Lands 16
17 Mono Basin National Forest Scenic Area USFS Mono Lake District Ranger Station 17
18 Across the Street from the Mono Lake Ranger Station City of Los Angeles Private Property No Trespassing! 18
19 1940: Acquiring the Mono Basin Water Rights Less notorious than Owens Valley State Water Board still worries But concludes: Hands Are Tied! Beneficial use claim trumps all. 19
20 1972: The Second Barrel LA 12 % of its water supply from Mono Basin. 20
21 Mono Lake Loses Half its Volume, 45 Vertical Feet Benchmark Tufa In (had already lost 25 feet) (by now lost 40 feet) 21
22 Mono Lake & the Mono
23 The Fall of Mono Lake Impacts to Ecosystem Salinity Doubles Impacts to Shrimp Impacts to Birds Land Bridge to Negit Creeks Dessicated (Fish) Air Quality Problems Local Economic Impacts 23
24 Local NGO plaintiffs: The Mono Lake Committee Others: Nat l Audubon Society, Cal Trout Sierra Club Legal Defense Fund US Forest Service (MBNFSA) US Fish & Wildlife Service CA Dept. Fish & Game CA Dept. Parks & Recr. State Lands Commission Great Basin Un. Air Polltn. Ctrl. D. Concerned Landowners Also: Prof. Joe Sax s Michigan L. Rev. article... 24
25 Audubon Society v. Alpine County Superior Court 33 Cal. 3d 419 (1983) ( The Mono Lake Case ) Πs Claim: PTD trumps all other considerations LA s diversion license was granted in violation of PTD, b/c state failed to even consider harmed values L.A. Defense: Prior appropriation trumps all Statutory prior appropriations and beneficial use doctrine preempt, and ours is highest beneficial use! CA SCT: CA law merges both; PA does not displace PTD. State cannot neglect trust duties; must reconsider licensing to weigh development needs vs. environmental protection values. Water Board: 10 yrs of research later, strikes stabilizing balance 25
26 10 Years of Research Later, Water Board Strikes a Balance Designated Recovery Level (dotted line) 6392 elevation (up from 6372, down from 6417 ) Stabilizes salinity, (ecosystem values); covers salt flats (health); protects scenic and recreational values 26
27 Los Angeles Citizens Force a Change: New City Leadership, & A New Approach Conservation (12% Mono loss recovered) 27
28 Public Trust and Distrust? The Property Rights Critiqe Private vs. public rights Limiting Principle? The Environmental Critique Property vs. stewardship model? Wrong tools? Wrong vocabulary? The Legal Process Critique Separation of powers? CL evolution vs. stability? 28
29 Future Developments? After Mono, PTD use surges--but mostly limited to waterways Application to groundwater? Hydraulic fracturing (fracking)? But why not apply PTD to other critical commons resources also susceptible to private appropriation and/or monopoly? Fisheries? Biodiversity? Atmosphere? Prof. Mary Woods Atmospheric Trust Project State & federal violations for failure to regulate GHGs? Our Childrens Trust: Juliana v. U.S. (US D. OR 2016) 2016: Mass. EO #569 - Integrated Climate Change Strategy 29
Erin Ryan Elizabeth C. & Clyde W. Atkinson Professor Florida State University, College of Law
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