National Audubon Society v. Superior Court

Brief Fact Summary. The litigation in this case stems from the diversion of streams previously flowing into Mono Lake by the Department of Water and Power for the City of Los Angeles. Four of the five streams, which flow into Mono Lake were diverted and the lake is diminished in size and has been impacted ecologically.

Synopsis of Rule of Law. The state has an affirmative duty to take into account the public trust in the planning and allocation of water resources, and to protect the public trust use whenever feasible.

Facts. Mono Lake is a saline lake that contains no fish but supports a large number of brine shrimp that feed vast numbers of nesting and migrating birds. The lake receives some of its water from rain and snow on the lake surface, but is mostly fed by water flowing from five streams: Mill, Lee Vining, Walker, Parker, and Rush creeks. These creeks are fed by snowmelt from the Sierra Nevada mountains. In 1940, the Division of Water Resources, predecessor to the California Water Resources Board, granted to the Department of Water and Power for the City of Los Angeles (DWP) a permit to appropriate the entire flow of four out of the five streams flowing into the lake. DWP constructed the facilities to divert the flow of the streams into the Owens Valley aqueduct. In 1970, DWP constructed another diversion tunnel, which handled nearly the entire flow of the streams. As the result of the diversions the level of the lake has dropped and the surface area has diminished by one-third. One of th
e two principal islands of the lake has been turned into a peninsula, which allows predators to get access to the birds. The scenic and ecological value of the lake has been impaired. Plaintiffs filed suit to enjoin the DWP diversions on the theory that the lake is protected by a public trust.

Issue. Is the lake subject to a public trust which invalidates Los Angeles’ use of the streams feeding the lake?

Held. The court ordered a study to be prepared to determine the impact of DWP’s diversion upon the public trust of Mono Lake.
The public trust doctrine holds that the sovereign (the state) owns all of the navigable waterways and the lands lying beneath them as trustee of a public trust for the benefit of the people. The court notes that the concept of public trust has been extended from applying to the shores of the ocean to the navigable waters and thus has been in conflict with the principle of right by priority of appropriation. The court herein attempts to integrate the two concepts.
The state retains continuing supervisory control over its navigable waters and the lands beneath those waters. The principle applies to rights in flowing waters as well as to rights in tidelands and lakeshores. The principle of public trust prevents any party from acquiring a vested right to appropriate water in a manner harmful to the interests protected by the public trust.
The legislature, acting through such agencies as the California Water Resources Board, has the power to grant usufructuary (usage) licenses that permit appropriation of water from streams and the usage of such water in another part of the state, even though this may unavoidably harm the trust uses at the source stream. The population and economy of California depend on the appropriation of vast quantities of water for uses unrelated to trust values.
The state has an affirmative duty to take into account the public trust in the planning and allocation of water resources, and to protect the public trust uses whenever feasible. The court ordered a study to be prepared to determine the impact of DWP’s diversion upon the public trust of Mono Lake.

Discussion. The court here was faced with a difficult position: how to properly reconcile the right by prior appropriation with the public trust doctrine. The court found that the public trust was not negated by a prior appropriation (even by the “public” or the state). However, the public trust could not automatically foreclose the right of DWP’s diversions.