The Dahlgren Decision

On May 3, Judge Otis heard the arguments. Bruce Dodge spoke for invoking the public trust. McInerney talked about the Fish and Game Code. To the contention that the Department of Water and Power could not now be challenged on actions taken long ago, McInerney responded with the analogy of theft. "The fact it has been stealing successfully for 45 years, the fact that it has convinced several state agencies . . . to condone its violation of the law, or even the fact that the criminal conduct has been incredibly lucrative is quite irrelevant." Tony Rossmann presented the case for an Environmental Impact Report. To do an EIR, he argued, would merely be to begin the reconsideration required by the Supreme Court in the 1983 Mono Lake public trust decision. Until an acceptable report was completed, the department should be required to release enough water to keep Mono Lake from declining below 6,380 feet.

Water and Power countered that the Fish and Game Code could not be interpreted "to require the maintenance of current fish population in every reach of every major or minor stream in this state," but only required "that total fishery resources in an area or region be reasonably maintained." The Hot Creek hatchery accomplished that for the Mono region. If any further public-trust balancing was required, the water board should do it. As for the law that required environmental reports, it was far too recent to be applicable.

The state attorney general's office filed an amicus brief staking out a position of its own. It agreed that the duty to release water through dams was not absolute, but it demanded for Rush Creek the same kind of "study and reconsideration" under the public trust that the Supreme Court had mandated for Mono Lake itself.

On August 23, 1985, Judge Otis made his decisions. He postponed consideration of the Fish and Game Code argument. He turned down Rossmann's request for an EIR. He declined to hand the matter over to the water board. But he agreed with the Mono Lake Committee and the state that the public trust did in fact apply to the fish in Rush Creek, and he proposed to base the rest of the trial on public trust balancing. So Dahlgren , launched in literal reliance on the Fish and Game Code, came instead to center on the deeper but less definite ground of the public trust.

To do that expanded balancing, Otis needed information on what flows the fish in Rush Creek actually required. He suggested that the parties jointly select a consultant to carry out the necessary studies, but they could not agree. In the end, the Department of Fish and Game selected a primary consultant, and Water and Power hired a firm of its own choosing to provide a second opinion.

Such studies cannot be accomplished overnight; many months of data, under many

different stream flow conditions, must be gathered. Otis told the parties to come back in about one year. Nobody dreamed that the task would actually drag on for six.

The Rush Creek coalition appealed some of Judge Otis's decisions to higher courts. These moves were unsuccessful. To make a long story short, Dahlgren v. Los Angeles dozed off—but Rush Creek continued to flow.