The Public Trust Decision

On February 17, 1983, the California Supreme Court broke its silence. The plaintiffs found it had been worth the wait. In a six-to-one decision written by Justice Alan Broussard, the court declared that the public trust existed at Mono Lake; that it had not been properly considered in the past; that it should be considered now; and that Los Angeles's water rights were subject to revision.

It was not quite a total victory for Audubon. The court rejected the plaintiffs' view that the public trust values at the lake were paramount and must be protected, no matter what. The court directed, rather, that the authorities "consider" those values and "attempt, so far as feasible, to avoid or minimize any harm" to them.

The justices saw the needs of the lake and the needs of the city as competing interests, both legitimate. "Mono Lake is a scenic and ecological treasure of national significance imperiled by continued diversions of water; yet, the need of Los Angeles for water is apparent, its reliance on rights granted by the [state water] board evident, the cost of curtailing diversions substantial."

The Supreme Court laid great weight on two recent sources. One was the report of Huey Johnson's Interagency Task Force on Mono Lake in 1979. The second was the record of Harrison Dunning's public trust conference at Davis in 1980. On questions of law, the court often cited the conference papers; on questions of fact, it deferred to the task force, calling it "objective." Two exercises that had seemed academic—a term that can mean either "scholarly" or "futile"—turned out to have a tremendous influence after all.

The court went on, "It is clear that some responsible body ought to reconsider the allocation of the waters of the Mono Basin." As to what body that should be, the court refused to shut out either the lower courts or the State Water Resources Control Board; they had "concurrent jurisdiction." (This was the point on which one judge disagreed.)

Not many court decisions break as much new ground as the Supreme Court's public trust opinion of 1983. The typical court looks at the specifics of one case and generalizes only so far as it must to support the verdict. But this decision, written in response to general theoretical questions from federal Judge Karlton, did just the opposite: it started with broad principles and moved to the Mono Lake specifics. Thus it established a broad new doctrine overnight. The public trust must be taken into account and preserved "so far as feasible," not just at Mono but in all water allocations. And any water rights that affect public trust waters might have to be reconsidered in the light of changing conceptions of the trust.

It was a judicial earthquake. The court put life into the traditional teaching that water really belongs to the people and that diverters enjoy only use rights or "usufruct." Before 1983, this notion was a nearly meaningless formality; water users and their lawyers had succeeded in establishing water rights as the functional equivalent of property. But in 1983 the provisional nature of such rights, at least in certain circumstances, was reasserted. The decision "poses a serious threat to Los Angeles' water supply, and could have far-reaching implications for all state water rights," said Intake , the department's in-house magazine.

There was only one place to go to challenge the new doctrine: the U.S. Supreme Court. The Los Angeles Department of Water and Power went there, charging that the public trust decision threatened to confiscate its property. Without prejudging that issue, the highest court in the land refused to hear the case.

It was now established for all time that, in taking Los Angeles to court, Audubon and the Mono Lake Committee had had a very muscular leg to stand on. What the decision did not do was to dictate any outcome or put any specific limit on the city's diversions.

The Mono Lake advocates now tried to take the next step. Returning in July 1983 to Judge Karlton's federal court, they asked him for an injunction ordering Water and Power to release enough water into the lake to keep it at a level of 6,378 feet through August 1, 1984. Depending on runoff, this might cost the department as much as 2,000 acre-feet of export water, or none at all.

But Water and Power had its own ideas, and it had some new allies. As a result of the November 1982 election, Governor Jerry Brown had been replaced by George Deukmejian. In 1983 new people were sitting behind the biggest desks in Sacramento. New Resources Agency chief Gordon Van Vleck remarked that he knew nothing about Mono but understood that Los Angeles had ironclad rights there. The state of California now joined the department in asking once more that the case be sent back to state court.

Image not available.

When the California Supreme Court
ruled that diversions from the Mono
Basin could be limited by the public
trust doctrine, Ken Alexander drew
this cartoon for the San Francisco
Examiner.
(Courtesy Grace A. de Laet)

Audubon successfully resisted this shift, still thinking that Karlton, with his record of sympathy with environmental causes, would give them a better deal. The Mono advocates had no wish to find themselves again before Superior Court Judge Hilary Cook or a water board appointed by George Deukmejian.

Karlton, feeling that the wet winters had given him leeway, was in no hurry to rule. In fact, eighteen months after the public trust decision came down, the case had moved no further.