I just wanted to share an excellent essay on the public trust doctrine which I came across recently. It is by Dotty LeMieux – a Marin lawyer who does tree litigation and other excellent things in her practice and who has not one but three blogs!
Thanks, Felice….. LeMieux’s article is a good over-view. And the law is still very much evolving. In particular, Mary notes:
“An even trickier question is how to treat ground water, that water lying under ground, hidden from the public eye, but often feeding local water wells essential to human and agricultural consumption?
Traditionally, the public trust relates to navigable waterways only. In Mono Lake, the doctrine was found to extend to instances when diversion from a tributary to a navigable waterway damages that water, in that case, Mono Lake.
Ground water, that body of water lying under the ground, in springs for instance, is not so protected. Although ground and surface water are interconnected, there is no permit process for the use of ground water the way there is for surface water.”
This is precisely the question we raised and are seeking to resolve in favor of the Public Trust Doctrine vis-a-vis groundwater in recent litigation,Environmental Law Foundation, PCFFA, et al., vs. SWRCB, Sacramento County Superior Court Case No. 34-2010-80000583) filed 6/23/10, which is a Petition for Writ of Mandamus and a Complaint for Declaratory Relief. In that case we are specifically seeking to extend the Mono Lake CasePublic Trust Doctrine to groundwater in California that is hydrologically connected to surface water flows, and thus overuse of that groundwater can deplete those surface flows. Specifically we are citing the Scott River as a place where this routinely occurs, but the case would have state-wide precedent value and thus is being closely watched. The case is in the preliminary stages of what is likely to be a very long drawn out litigation track, with an appeal now pending on a prior ruling against Siskiyou County that the case should not be transferred to Siskiyou County, but remain in Sacramento. It will take us a while to get past these purely jurisdictional questions on appeal, also including denial of a request by the California Farm Bureau to intervene in the case to raise a lot of spurious property rights issues over water rights.
Again, the Public Trust Doctrine is still alive and well in California, but hard to use and so rarely used in the face of specific statutes (including laws protection water rights) that are far easier to apply. But since California is now the ONLY state in the Union that does not control its own groundwater by state permit, leaving that only to the Counties which are (literally) in a race to the bottom of multi-county aquifers, cases like the ELF v. SWRCBare unfortunately the only way, without specific Legislation, to extend that Public Trust Doctrine to groundwater — and then only assuming we ultimately win this case after several more years of likely litigation and appeals.
Obviously, the NCSFC also needs to get involved in and support renewed Legislative efforts to get state control over groundwater uses as well. This comes up nearly every Legislative session but is side-railed each time by Big Agriculture from various regions who do not want to be regulated in their massive groundwater pumping. This is also an issue in the North Coast wherever irrigated agriculture occurs near fish bearing streams…. and that is in many place.
Glen H. Spain, Northwest Regional Director