Effective Implementation of the Public Trust Doctrine in California Water Resources Decision-Making: A View From the Bench

Of course, water is one of the natural resources to which the public trust doctrine is, and always has been, particularly applicable. And yet, it was not until ten years after Professor Sax published his article that Professor Ralph W. Johnson first predicted an impending “collision” between “[t]he public trust doctrine and the appropriative water rights system . . . in the West.” The imminence of that collision — in California at least — was due in no small part to the National Audubon Society’s then-pending suit against the Department of Water and Power of the City of Los Angeles (“L.A. Water and Power”) to limit diversions from the streams feeding Mono Lake.  That suit, which was a prime example of the sort of public interest litigation Professor Sax had advocated in his article, led to the California Supreme Court’s seminal decision in National Audubon, in which the court announced that “[t]he state has an affirmative duty to take the public trust into account in the planning and allocation of water resources, and to protect the public trust uses whenever feasible.”

Today, twenty-eight years after the decision in National Audubon and more than forty years after Professor Sax’s article, what have we learned about the use of the public trust doctrine in water resources decision-making in California? Has it been an effective tool for obtaining judicial intervention in the decision-making process, as Professor Sax suggested it could be? And, more importantly, is judicial intervention the best way to effectuate and protect public trust values in the state’s water resources?

Those are some of the questions I seek to answer in this Article.