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HYD+150+National+Audubon+case - 346 189 CALIFORNIA REPORTER...

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Unformatted text preview: 346 189 CALIFORNIA REPORTER 658 P.2d 709 33 Cal.3d 4l9 in JEATIONAL AUDUBON SOCIETY et al., Petitioners, V The SUPERIOR COURT OF ALPINE COUNTY. Respondent; DEPARTMENT OF WATER AND POW- ER 0F the CITY 0? LOS ANGELES et al.. Real Parties in Interest. SJ". 24368. Supreme Court of California, In Bank. Feb. 17, 1983. As Modified on Denial of Rehearing April 14, 1983. m Jpnoussmo, Justice. ‘ Mono Lake, the second largest lake in California, sits at the base of the Sierra Nevada escarpment near the eastern en- trance to Yosemite National Park. The lake is saline; it contains no fish but sup- ports a large population of brine shrimp which feed vast numbers of nesting and migratory birds. Islands in the lake protect a large breeding colony of California gulls, and the lake itself serves as a haven on the migration route for thousands of Northern I. For convenience we shall refer to the state agency with authority to grant appropriative rights as the Water Board or the board. without regard to the various names which this agency has home since it was first created in l9l3. 2. For discussion of the effect of diversions on the ecology of Mono Lake. see Young, The Troubled Waters of Mono Lake (Oct. 198I) 33 Cal.3d 4 I!) I I’lialarope, Wilson's Phalarope, and Eared Greve. Towers and spires of tufa on the north and south shores are matters of geo— logical interest and a tourist attraction. Although Mono Lake receives some water from rain and snow on the lake surface, historically most of its supply came from snowmelt in the Sierra Nevada. Five freshwater streams—Mill, Lee Vining, Walker, Parker and Rush Creeks—arise near the crest of the range and carry the annual runoff to the west shore of the lake. In 1940, however, the Division of Water Resources, the predecessor to the present California Water Resources Board,I granted the Department of Water and Power of the City of Los Angeles (hereafter DWP) a permit to appropriate virtually the entire flow of four of the five streams flowing into the lake. DWP promptly constructed facilities to divert about half the flow of these streams into DWP's Owens Valley aqueduct. In 1970 DWP completed a second diversion tunnel, and since that time has taken virtually the entire flow of these streams. As 'a result of these diversions, the level of the lake has dropped; the surface area has diminished by one-third; one of the two principal islands in the lake has become a peninsula, exposing the gull rookery there ' to coyotes and other predators and causing the gulls to abandon the former island. The ultimate effect of continued diversions is a matter of intense dispute. but there seems little Jgoubt that both the scenic #15 beauty and the ecological values of Mono Lake are imperiled.z Plaintiffs filed suit in superior court to enjoin the DWP diversions on the theory that the shores, bed and waters of Mono Lake are protected by a public trust. Plaintiffs'suit was transferred to the feder- National Geographic, at page 504; Jehl. Jr.. Mono Lake: A Vital Way Station for the Wil- son's Phalarope (Oct. l98l) National Geograph- ic, at page 520; "off. The Legal Battle Over Mono lake (Jan. 1982) Cal.Law., at page 28; (Cal. Dept. Water Resources. Rep. of the Inter- agency Task Force on Mono Lake (Dec. I969) (hereafter Task Force Report». 61 NAT. AUDUBON SOC. v. SUPER. CT. OF ALPINE CTY. 33 Cal-3d 426 cneas I89 CELRplLJ46 (Sup. less) al district court, which requested that the state courts determine the relationship be- tween the public trust doctrine and the water rights system, and decide whether plaintiffs must exhaust administrative rem- edies before the Water Board prior to filing suit. The superior court then entered sum- mary judgments against plaintiffs on both matters, ruling that the public trust doc- trine offered no independent basis for chal- lenging the DWP diversions, and that plain- tiffs had failed to exhaust administrative remedies. Plaintiffs petitioned us directly for writ of mandate to review that decision; in View of the importance of the issues presented, we issued an alternative writ. (See County of Sacramento v. Hickman (1967) 66 Cal.2d 841, 845, 59 Cal.Rptr. 609, 423 P.2d 593.) This case brings together for the first time two systems of legal thought: the appropriative water rights system which since the days of the gold rush has dominat- ed California water law, and the public trust doctrine which, after evolving as a shield for the protection of tidelands, now extends its protective scope to navigable lakes. Ever since we first recognized that the public trust protects environmental and recreational values (Marks v. Whitney (1971) 6 Cal.3d 251, 98 Cal.Rptr. 790, 491 P.2d 374), the two systems of legal thought have been on a collision course. (Johnson, Public Trust Protection for Stream Flows and Lake Levels (1980) 14 U.C. Davis L.Rev. 233.) They meet in a unique and dramatic setting which highlights the clash of values. Mono Lake is a scenic and eco- logical treasure of national significance, im- periled by continued diversions of water; yet, the need of Los Angeles for water is apparent, its reliance on rights granted by the board evident, the cost of curtailing diversions substantial. [1] Attempting to integrate the teach- ings and values of both the public trust and the appropriative water rights system, we have arrived at certain conclusions which we briefly summarize here. In our opinion, the core of the public trust doctrine is the state's authority as sovereign to exercise a continuous supervision and control over the navigable waters of the state and the lands underlying those waters. This authority applies to the waters tributary to Mono Lake and _|bars DWP or any other party J36 from claiming a vested right to divert waters once it becomes clear that such di- versions harm the interests protected by the public trust. The comllary rule which evolved in tideland and lakeshore cases bar- ring conveyance of rights free of the trust except to serve trust purposes cannot, how- ever, apply without modification to flowing waters. The prosperity and habitability of much of this state requires the diversion of great quantities of water from its streams for purposes unconnected to any navigation, commerce, fishing, recreation, or ecological use misting to the source stream. The state must have the power to grant non- vested usufructuary rights to appropriate water even if diversions harm public trust uses. Approval of such diversion without considering public trust values, however, may result in needless destruction of those values. Accordingly, we believe that before state courts and agencies approve water diversions they should consider the effect of such diversions upon interests protected by the public trust, and attempt, so far as feasible, to avoid or minimize any harm to those interests. The water rights enjoyed by DWP were grantedg‘the diversion was commenced, and has continued to the present without any consideration of the impact upon the public trust. An objective study and reconsidera- tion of the water rights in the Mono Basin is long overdue. The water law of Califor- nia—which we conceive to be an integration including both the public trust doctrine and the board-administered appropriative rights system—permits such a reconsideration; the values underlying that integration re- quire it. {2] With regard to the secondary issue of exhaustion of administrative remedies, the powers, experience, and expertise of the Water Board all argue in favor of granting that agency primary jurisdiction. Long-es— tablished precedent, however, declares that 350 courts have concurrent jurisdiction in water right controversies. The Legislature, in- stead of overturning that precedent, has implicitly acknowledged its vitality by pro- viding a procedure under which the courts can refer water rights disputes to the water board as referee. We therefore conclude that the courts may continue to exercise concurrent jurisdiction, but note that in cases where the board's experience or ex. pert knowledge may be useful the courts should not hesitate to seek such aid. 1. Background and history of the Mono Lake litigation. DWP supplies water to the City of Los Angeles. Early in this century, it became clear that the city's anticipated needs would exceed the water available from local sources, and so in 1913 the city constructed an aqueduct to carry water from the Owens River 233 miles over the Antelope-Mojave plateau into the coastal plain and thirsty city. JLI‘he city’s attempt to acquire rights to water needed by local farmers met with fierce, and at times violent, opposition. (See generally County of Inyo v. Public Utilities Com. (I980) 26 Cal.3d 154, 156—157, 161 Cal.Rptr. 172, 604 P.2d 566-~ Kahrl. Water and Power: The Conflict ‘ver Los Angeles' Water Supply in the Owens Valley (1982).) But when the “Owens Valley War" was over, virtually all the waters of the Owens River and its tributaries flowed south to Los Angeles. Owens Lake was transformed into an alkali flat.’ 3. Ironically, among the decisions reviewed in preparing this opinion was one in which Los Angeles was held liable for permitting water to flow into Owens lake, damaging mineral ex- traction t’acilities constructed in reliance on the city taking the entire flow of the Owens River. (Natural Soda Prod. Co. v. City of Los Angeles (1943) 23 Cal.2d l93, I43 P.2d 12.) 4. Between 1920 and [934, the city purchased lands riparian to creeks feeding Mono Lake and riparian rights incident to such lands. In 1934, the city brought an eminent domain proceeding for condemnation of the lights of Mono Lake landowners. (City of Los Angeles v. Aitken. (1935) 10 Cal.App.2d 460. 52 P.2d 585.) '64 189 CALIFORNIA REPORTER 33 Cal.3d 426 The city's rapid expansion soon strained this new supply, too, and prompted a search for water from other regions. The Mono Basin was a predictable object of this ex- tension, since it lay within 50 miles of the natural origin of Owens River, and thus could easily be integrated into the existing aqueduct system. After purchasing the riparian rights inci- dent to Lee Vining, Walker, Parker and Rush Creeks, as well as the riparian rights pertaining to Mono Lake,‘ the city applied to the Water Board in 1940 for permits to appropriate the waters of the four tributar- ies. At hearings before the board, various interested individuals protested that the city’s proposed appropriations would lower the surface level of Mono Lake and thereby impair its commercial, recreational and see- nic uses. The board's primary authority to reject that application lay in a 1921 amendment to the Water Commission Act of 1913, which authorized the board to reject an applica- tion “when in its judgment the proposed appropriation would not best conserve the public interest." (Stats. 1921, ch. 32), § 1, p. 443,‘ now codified as WatCode, § 1255.)5 The 1921 enactment, however, also “de- clared to be the established policy of this state that the use of water for domestic purposes is the highest use of water" (id., 'now codified as Wat.Code, § 1254), and di- rected the Water Board to be guided by this declaration of policy. Since DWP sought water for domestic use, the board concluded that it had to grant the application notwith- standing the harm to public trust uses of Mono Lake.‘ 5. In theory. the board could have rejected the city's application on the ground that the waters of the streams were already being put to bene- ficial use or that the DWP proposed an unrea- sonable use of water in violation of article X, section 2 of the California Constitution. It does not appear that the board considered ei- ther proposition. 6. DWP calls our attention to a 1940 decision of the Water Board involving Rock Creek. a tribu- tary of the Owens River, in which the board stated that “the Water Commission Act re- quires it to protect streams in recreational ar- eas by guarding against depletion below some minimum amount consonant with the general 33 Cal.“ 429 indeed unfortunate that the City's proposed development will result in decreasing the aesthetic advantages of Mono Basin but' there is apparently nothing that this office can do to prevent it The use to which the City proposes to put the water under its Applications is defined by the Water Commission Act as the highest to which water may be applied and to make available unappropriated water for this use the City has, by the condemnation proceedings de- scribed above, acquircd the littoral and ri- parian rights on Mono Lake and its tribu- taries south of Mill Creek. This office therefore has no alternative but to dismiss all protests based upon the possible lower- ing of the water level in Mono Lake and the effect that the diversion of water from these streams may have upon the awthetic and recreational value of the Basin." (Div. Wat. Resources Dec. 7053. 7055. 8042 & 8043 (Apr. 11, 1940), at p. 26. italics added)" By April of 1941. the city had completed the extension of its aqueduct system into the Mono Basin by construction of certain conduits, reservoirs at Grant and Crowley recreational conditions and the character of the stream." (Div. Wat. Resources Dec. 3850 (Apr. ll. l940). at p. 24.) The decision concluded that the board had insufficient information to decide what conditions. if any. to place upon DWP‘s application to divert water from Rock Creek for hydroelectric generation. We do not know why the board was seeming- ly more willing to limit diversions to protect recreational values for Rock Creek than for the creeks flowing into Mono Lake. (Neither do we know the eventual outcome of the Rock Creek application.) The language of the board's opinions suggests that the crucial dis- tinction was that the application for the Mono Lake streams was for domestic use. the highest use under the Water Code. while the Rock Creek application was for power generation 7. Plaintiffs submitted an interrogatory to the present Water Board. inquiring: "Do you con- tend that the predecessor of the Water Board, at the time it issued the DWP appropriation permit. held the view that. notwithstanding the protests based on environmental concerns. it had no alternative but to issue DWP the per- mits DWP sought to export water from the Mono Basin?" The Water Board replied: "The [Water] Board believes that its predecessor did hold the view that. notwithstanding protests based upon 65 NAT. AUDUBON soc. v. SUPER. CT. or ALPINE CTY. 351 Cite as I” CaLRptr.346 (Sup. ISBJ) ‘11“ J'_l‘he board's decision states that “[i]t is Lakes. and the Mono Craters Tunnel from the Mono Basin to the Owens River. In the 1950's, the city constructed hydroelectric power plants along the system to generate electricity from the energy of the appropri- ated water as it flowed downhill into the Owens Valley. Between 1940 and 1970, the city diverted an average of 57.067 acre-feet of water per year from the Mono Basin. The impact of these diversions on Mono Lake was clear and immediate: the lake's surface level receded at an average of 1.1 feet per year. In June of 1970. the city completed a second aqueduct designed to increase the total flow into the aqueduct by 50 percent.8 Between 1970 and 1980, the city ngiverted J39 an average of 99.580 acre—feet per year from the Mono Basin. By October of 1979, the lake had shrunk from its predivcrsion area of 85 square miles to an area of 60.3 square miles. its surface level had dropped to 6,373 feet above sea level. 43 feet below the prediversion level.’ No party seriously disputes the facts set forth above. However, the parties hotly loss of land values resulting from diminished recreational opportunity. if unappropriated water is available. it had no alternative but to issue DWi’ the permits DWP sought in order to export water from the Mono Basin . . . 8. ln l974 the Water Board confirmed that DWP had perfected its appropriativc right by the actual taking and beneficial use of water. and issued two permanent licenses (board licenses Nos. l019l and [0192) authorizing DWP to divert up to 167.000 ace-feet annually (far more than the average annual flow) from Lee Vining, Walker. Parker and Rush Creeks. The Water Board viewed this action as a ministerial action. based on the 19-10 decision. and held no hearings on the matter. 9. In |979 the California Department of Water Resources and the United States Department of the interior undertook a joint study of the Mono Basin. The study recommends that the level of Mono Lake be stabilized at 6.388 feet. To achieve this end it recommended that ex- ports of water from the Mono Basin be reduced from the present average of [00.000 acre-feet annually to a limit of 15.000 acre-feet. (Task Force Report at pp. 36—55.) legislation was introduced to implement this recommendation. but was not enacted. v.-_, ,...... . ._——-—~—.....——....._.......... 352 dispute the projected effects of future di- versions on the lake itself, as well as the indirect effects of past, present and future diversions on the Mono Basin environment DWP expects that. its future diversions of about 100,000 acre-feet per year will lower the lake's surface level another 43 feet and reduce its surface area by about 22 square miles over the next 80 to 100 years, at which point the lake will gradually ap- proach environmental equilibrium (the point. at which inflow from precipitation, groundwater and nondiverted tributaries equals outflow by evaporation and other means). At this point, according to DWP, the lake will stabilize at a level 6,330 feet above the sea’s, with a surface area of approximame 38 square miles. Thus, by DWP's own estimates, unabated diversions will ultimately produce a lake that is about 56 percent smaller on the surface and 42 percent shallower than its natural size. Plaintiffs consider these projections un- realistically optimistic. They allege that, 50 years hence, the lake will be at least 50 feet shallower than it now is, and hold less than 20 percent of its natural volume. Further, plaintiffs fear that “the lake will not stabi- lize at this level," but “may continue to reduce in size until it is dried up." More- over, unlike DWP, plaintiffs believe that the lake's gradual recession indirequ caus- es a host of adverse environmental impacts. Many of these alleged impacts are related to an increase in the lake's salinity, caused by the decrease in its water volume. As noted above, Mono Lake has no out- lets. The lake loses water only by evap0< ration and seepage. Natural salts do not evaporate with water, but are left behind. Prior to commencement of the DWP diver- sions, this naturally rising salinity was bal- anced by a constant and substantial supply of fresh water from the tributaries. Now, I0. In the face of rising salinity. birds can main- tain such equilibrium only by increasing either their secretion of salts or their intake of fresh water. The former option is foreclosed, how- ever. because Mono Lake is already so salty that the birds have reached their limit of salt secretion. Thus, the birds must drink more fresh water to maintain the osmotic equilibri. urn necessary to their survival. As the Task 66 [89 CALIFORNIA REPORTER 33 Cal.3d 429 however, DWP diverts most of the fresh water inflow. The resultant imbalance be- tween inflow and outflow not only dimin- ishes the lake's size, but also drastically increases its salinity. _|_Plaintiffs predict that the lake's steadily 4110 increasing salinity, if unchecked, will wreck havoc throughout the local food chain. They contend that the lake’s algae, and the brine shrimp and brine flies that. feed on it, cannot survive the projected salinity in- crease. To support this assertion, plaintiffs point to a 50 percent reduction in the shrimp hatch for the spring of 1980 and a startling 95 percent reduction for the spring of 1981. These reductions affirm experi- mental evidence indicating that brine shrimp populations diminish as the salinity of the water surrounding them increases. (See Task Force Report at pp. 20—21.) DWP admits these substantial reductions, but blames them on factors other than sa- linity. DWP's diversions also present several threats to the millions of local and migrato- ry birds using the lake. First, since many species of birds feed on the lake's brine shrimp, any reduction in shrimp population allegedly caused by rising salinity endan- gers a major avian food source. The Task Force Report considered it “unlikely that any of Mono Lake’s major bird species . . . will persist at the lake if populations of invertebrates disappear." (Task Force Re- port at p. 20.) Second, the increasing salini- ty makes it more diffiCult for the birds to maintain osmotic equilibrium with their en- vironment.“ The California gull is especially endan- gered, both by the increase in salinity and by loss of nesting sites. Ninety-five per- cent of this state’s gull population and 25 percent of the total species population nests at the lake. (Take Force Report at p. 21.) Most of the gulls nest on islands in the lake. Force predicts. “[tlhc need for more time and energy to obtain fresh water will mean reduced energy and time for other vital activities such as feeding. nesting, etc. Birds attempting to breed at Mono Lake . . . are likely to suffer the most from direct salinity effects. since the adult birds must devote so much time to obtain fresh water that they may not be able to raise young successfully." ('l‘ask Force Report. at p. l9.) NAT. AUDUBON SOC. v. SUPER. CT. 0? ALPINE CTY. Cite as Iss cusp". :46 (Sup. 1983) 33 Cal.3d 432 As the lake recedes, land between the shore and some of the islands has been exposed, offering such predators as the coyote easy access to the gull nests and chicks. In 1979, coyotes reached Negrit Island, once the most popular nesting site, and the number of gull nests at the lake declined sharply. [n 1981, 95 percent of the hatched chicks did not survive to maturity. Plaintiffs blame this decline and alarming mortality rate on the predator access created by the land bridges; DWP suggests numerous oth- er causes, such as increased ambient temp- eratures and human activities, and claims that the joining of some islands with the mainland is offset by the emergence of new islands due to the lake's recession. Plaintiffs allege that DWP's diversions adversely affect the human species and its activities as well. First, as the lake recedes, it has exposed more than 418,000 acres of lake bed composed of very fine silt which, once dry, easily becomes airborne in winds. This silt contains a high concentration of alkali and other minerals that irritate the mucous membranes and respiratory systems of humans and other animals. (See Task Force Report at p. 22.) While the precise extent of this threat to the public health has yet to be determined, such threat as exists can be expected to increase with the exposure of additional lake bed. DWP, however, claims that its diversions neither affect the air quality in Mono Basin nor present a hazard to human health. Furthermore, the lake's recession obvi- ously diminishes its value as an economic, ll. DWP contended that plaintiffs lack standing to sue to enjoin violations of the public trust, citing Antioch v. Williams lrr. Dist. ([922) 188 Cal. 451. 205 P. 688 and Miller 6’: Lux v. Enter- prise Canal and Land Co. (I904) I42 Cal. 208. 75 P. 770, both of which held that only the state or the United States could sue to enjoin diver- sions which might impetil downstream naviga- bility. Judicial decisions since those cases, however, have greatly expanded the right of a member of the public to sue as a taxpayer or private attorney general. (See Van Atta v. Scott (1980) 27 Cal.3d 424, 447-450, [66 Cal. Rptr. I49, 613 P.2d 210. and cases there cited.) Consistently with these decisions. Marks v. Whitney. supra, 6 Cal.3d 25l, 98 Cal.Rptr. 790. 491 P.2d 374. expressly held that any member of the general public (p. 26!, 98 Cal.Rptr. 790. 67 353 recreational, and scenic resource. Of course, there will be less lake to use and enjoy. The declining shrimp hatch depress- es a local shrimping industry. The rings of dry lake bed are difficult to traverse on foot, and thus impair human access to the lake, and reduce the lake's substantial sce- nic value. Mono Lake has long been treas‘ ured as a unique scenic, recreational and scientific resource (see, e.g., City of Los Angeles v. Aitken, supra, 10 Cal.App.2d 460, 462-463, 52 P.2d 585; Task Force Report at pp. 22—24), but continued diversions threat- en to turn it into a desert wasteland like the dry bed of Owens Lake. To abate this destruction, plaintiffs filed suit for injunctive and declaratory relief in the Superior Court for Mono County on May 21, 1979.u DWP moved to change venue. When the court granted the motion and transferred the case to Alpine County, DWP sought an extraordinary writ to bar this transfer. The writ was denied, and the Superior Court for Alpine County set a tentative trial date for March of 1980. In January of that year, DWP cross-com~ plained against 117 individuals and entities claiming water rights in the Mono Basin. On February 20, 1980, one cross-defendant, the United States, removed the ease to the District Court for the Eastern District of California. 0n DWP’s motion, the district court stayed its proceedings under the fed- eral abstention doctrine'2 to allow resolu- tion by JQalifornia courts of two important 491 What is the 49! P.2d 37-1) has standing to raise a claim of harm to the public trust. (Pp. 26l-262. 98 CaI.Rptr. 790. 49l P.2d 374; see also Bwimw marital Defense Fund. Inc. v. East Bay Mun. Utility Dist. (I980) 26 Cal.3d 183, [6| Cal.Rptr. 466, 605 P.2d 1. in which we permitted a public interest organization to sue to enjoin allegedly unreasonable uses of water.) We conclude that plaintiffs have standing to sue to protect the public trust. issues of California law: “1. 12. The federal practice of abstention sprang from the decision in Railroad Comm. of Texas v. Pullman Co. (1941) 312 U.S. 496. 5| S.Ct. 643, 85 LEd. 971. (See generally, Wright et al., Federal Practice and Procedure, 5 4241 et seq.) ln Pullman. the Supreme Court held that, where resolution of an open state question 354 interrelationship of the public trust doctrine and the California water rights system, in the context of the right of the Los Angeles Department of Water and Power (‘Departo ment') to divert water from Mono Lake pursuant to permits and licenses issued un- der the California water rights system? In other words, is the public trust doctrine in this context subsumed in the California water rights system, or does it function independently of that system? Stated dif- ferently, can the plaintiffs challenge the Department's permits and licenses by argu- ing that those permits and licenses‘are lim- ited by the public trust doctrine, or must the plaintiffs challenge the permits and li- presented in a federal action might prevent the federal court from reaching a constitutional question in that action. the court should stay its proceedings and order the parties to seek resolution of the state question in state courts. In Pullman -type cases. the federal court retains jurisdiction so that it may either apply the resolved state law. or resolve the state question itself if the state courts refuse to do so for any reason. Though federal abstention was originally lim- ited to Pullman -type cases, the grounds for abstention were later expanded in accordance with the policies of federalism. Abstention is new "appropriate where there have been presented difficult questions of state law hear- ing on policy problems of substantial public import whose importance transcends the result in the case then at bar." (Colorado River Water Conservation Dist. v. Unicd States (I976) 424 us. 800. 8”. 96 S.Ct. I236. l2“. 47 L.Ed2d 483 citing Louisiana Power 3: Light Co. v. City of Thibodaux (I959) 360 US. 25, 79 S.Ct. I070. 3 L.Ed.2d l058 and Kaiser Steel Corp. v. W5. Ranch Co. (1968) 39l us. 593. 88 S.Ct. 1753. 20 LEd.2d 835.) Kaiser Steel is similar to the case at bar. In that diversity case. W.S. Ranch 00. sued Kaiser Steel for trespass. Kaiser claimed that a New Mexico statute authorized it to trespass as nec- essary for use of its water rights granted by New Mexico. The ranch replied that if the statute so authorized Kaiser. the statute would violate the state constitution. which allowed the taking of private property only for “public use." Both the district court and the court of appeals reached the merits of the case after denying Kaiser's motion to stay the determina- tion until conclusion of a declaratory relief ac- tion then pending in New Mexico courts. The United States Supreme Court reversed, reason- ing in a per curiam opinion that “[t]he Court of Appeal erred in refusing to stay its hand. The state law issue which is crucial in this case is one of vital concern in the arid State of New 68 I89 CALIFORNIA REPORTER 38 Cal.3d 432 censes by arguing that the water diversions and uses authorized thereunder are not ‘reasonable or beneficial' as required under the California water rights system? [1] 2 Do the exhaustion principles applied in the water rights context apply to plaintiffs' ac- tion pending in the United States District Court for the Eastern District of Califor- nia?" '3 [3,4] In response to this order, plain- tiffs filed a new complaint for declaratory relief in the Alpine County Superior Court.“ On November 9h|_l98l, that court entered summary judgment against plain- tiffs. Its notice of intended ruling stated that “[t]he California water rights system is Mexico. where water is one of the most valua- ble natural resources. The issue. moreover. is tme a novel one [. and] will eventually have to be resolved by the New Mexico courts . . . . Sound judicial administration requires that the parties in this case be given the benefit of the same rule of law which will apply to all other businesses and landowners concerned with the use of this vital state resource." (Kai- ser Steel Corp. v. W.S. Ranch Co.. supra. 39I US. at p. 594. 88 S.Ct. at p. 1754.) [3. DWP objected to the form of the abstention order, and petitioned the United States Court of Appeals for the Ninth Circuit for leave to file an interlocutory appeal. The Ninth Circuit de- nied this petition. l4. DWP argues that the second superior court « action, filed after the federal court's abstention order. constitutes a request for an advisory opinion and thus seeks relief beyond the juris- diction of the California courts. (See Younger V. Superior Court (I978) 2| Cal.3d 102. ll9« 120. I45 Cal.Rptr. 674. 577 P.2d 10”. and cases there cited.) No California case has dis- cussed the propriety of a declaratory relief ac- tion filed to resolve an unsettled issue of Cali- fornia law following a federal court abstention. A holding that such a suit is an improper at- tempt to obtain an advisory opinion. however. would constitute a decision by the California courts to refuse to cooperate in the federal abstention procedure. It would thus compel federal courts to decide unsettled questions of California law which under principltx of sound judicial administration (see Kaiser Steel Corp. v. “’5. Ranch Ca. supra. 391 U.S. 593. 594. 88 S.Ct. 1753. [754) should be resolved by the state courts. The usual objections to advisory opinions do not apply to the present case. This is not a collusive suit (compare People v. Pratt (1866) 30 Cal. 223). nor an attempt to get the courts to NAT. AUDUBON SOC. v. SUPER. CT. Oi" ALPINE CTY. Cite as l89 Calleter (Sup. [983) 33 Cal.“ 434 a comprehensive and exclusive system for determining the legality of the diversions of the City of Los Angeles in the Mono Basin . . . . The Public Trust Doctrine does not function independently of that system. This Court concludes that as regards the right of the City of Los Angelcs to divert waters in the Mono Basin that the Public Trust Doctrine is subsumed in the water rights system of the state." With respect to exhaustion of administrative remedies. the superior court concluded that plaintiffs would be required to exhaust their remedy before the Water Board either under a chal- lenge based on an independent public trust claim or one based on asserted unreasonable or nonbeneficial use of appropriated water. Plaintiffs filed a petition for mandate directly with this court to review the sum- mary judgment of the Alpine County Supe- rior Court We issued an alternative writ and set the case for argument. 2 The Public Trust Doctrine in Califor- nia. “By the law of nature these things are common to mankind—the air, running resolve a hypothetical future disagreement (compare Younger v. Superior Court. supra. 2| Cal.3d I02. I45 Cal.Rptr. 674. 577 P.2d l0”). it is. rather. one phase of a hotly contested current controversy. The only conceivable ba- sis for refusing to decide the present case is that our decision will not finally resolve that controversy. but will serve only as an interim resolution of some issues necessary to the final decision. That fact. however. is insufficient to render the issue nonjusticia'ble. As the Court of Appeal stated in response to a similar con- tention. it is in the interest of the parties and the public that a determination be made; “even it' that determination be,but one step in the process. it is a useful one." (Regents of Uni- versity of California v. State Bd. of Equaliza- tion (1977) 73 Cal.App.3d 660. 664. I40'Cal. Rptr. 857.) If the issue of justiciability is in doubt. it should be resolved in favor of justiciability in cases of great public interest. (See, e.g.. Cali- fornia Physicians' Service v. Garrison (1946) 28 Cal.2d 790, 80L I72 P.2d 4 [trial court's deter- mination of justiciability will not be overturned on appeal absent clear showing of abuse of discretion]; Golden Gate Bridge etc. Dist. v. Felt (1931) 214 Cal. 308. 315-319, 5 P.2d 585 [jurisdiction retained over admittedly friendly suit of public importance, where dismissal would have delayed construction of Golden 69 355 water, the sea and consequently the shores of the sea." (Institutes of JustinianJgJJ.) From this origin in Roman law, the English common law evolved the concept of the public trust, under which the sovereign owns “all of its navigable waterways and the lands lying beneath them ‘as trustee of a public trust for the benefit of the peo- ple.’ " (Co/berg, Inc. v. State of California ex rel. Dept. Pub. Works (1967) 67 Cal.2d 408, 416, 62 Ca|.Rpt.r. 401, 432 RM 3.) '5 The State of California acquired title as trustee to such lands and waterways upon its admission to the union (City of Berkeley v. Superior Court (1980) 26 Cal.3d 515, 521, 162 Cal.Rptr. 327, 606 P.2d 362 and cases there cited); from the earliest days (see Eldridge v. Cowell (1854) 4 Cal. 80, 87) its judicial decisions have recognized and en- forced the trust obligation." Three aspects of the public trust doctrine require consideration in this opinion: the purpose of the trust; the scope of the trust, particularly as it applies to the nonnaviga- ble tributaries of a navigable lake; and the powers and duties of the state as trustee of Gate Bridge]; California Water & Telephone Co. V. County of Los Angeles (19”) 253 Cal. App.2d 16. 26, 6| Cal.Rptr. 6l8 [doubts about the justiciability of a dispute should be resolved in favor of immediate adjudication. where "the public is interested in the settlement of the dispute.“].) l5. Spanish law and subsequently Mexican law also recognized the public trust doctrine. (Sec City of Los Angeles v. Venice Peninsula Prop erties (1982) 31 Cal.3d 288. 297. 182 Cal.Rptr. 599. 644 P.2d 792.) Commentators have sug- gested that the public trust rights under llis- panic law. guaranteed by the Treaty of Guadal- upe Hidalgo, serve as an independent basis for the public trust doctrine in California. (See Stevens, The Public Trust: A Sovereign '5 An- cient Prerogative Becomes the People's Envi- ronmental Right (I980) 14 U.C.Davis l..Rev. [95. 197; Dyer. California Beach Accss: The Mexican Law and the Public Trust (I972) 2 Ecology LQ. 57L) I6. For the history of the public trust doctrine. see generally Sax. The Public Trust Doctrine In Natural Resource law: Effective Judicial Inter- vention ([970) 68 Mich.l-Rcv. 471; Stevens. op. cit. supra, l4 U.C.Davis LRev. l95. 356 the public trust. We discuss these ques- tions in the order listed. (a) The purpose of the public trust The objective of the public trust has evolved in tandem with the changing public perception of the values and uses of water- ways. As we observed in Marks v. Whit- ney, supra, 6 Cal3d 251, 98 Cal.ltptr. 790, 491 P.2d 374, “(plublic trust easements [were] traditionally defined in terms of nav- igation, commerce and fisheries. They have been held to include the right to fish, hunt, bathe, swim, to use for boating and general recreation purpose; the navigable waters of the state, and to use the bottom of the navigable waters for anchoring, standing, or other purposes." (P. 259, 98 Cal.Rptr. 790, 491 P.2d 374.) We went on, however, to hold that the traditional triad of uses— navigation, commerce and fishing—did not limit the public interest in the trust res. ln language of special importance to the present setting, we stated that “[t]he public uses to which tidelands are subject are suf- ficiently flexible to encompass changing public needs. In administering the trust the state is not burdened with an outmoded classification favoring one mode of utiliza- tion over another. [Citation] There is a growing public recognition that one of the most important public uses ofgthe tide- lands—a use encompassed within the tide- lands trust—is the preservation of those lands in their natural state, so that they Jys may £01110 as ecological units for scientific study, as open space, and as environments which provide food and habitat for birds and marine life, and which favorably affect the scenery and climate of the area." (Pp. 259—260, 98 Cal.Rptr. 790, 491 P.2d 374.) Mono Lake is a navigable waterway. (City of Los Angeles v. Aitken, supra, 10 Cal.App.2d 460, 466, 52 P.2d 585.) It sup- ports a small local industry which harvests brine shrimp for sale as fish food, which endeavor probably qualifies the lake as a “fishery” under the traditional public trust [7. A waterway usable only for pleasure boat- ing is nevertheless a navigable waterway and protected by the public trust. (See People ex rel. Younger v. County a! El Dorado ([979) 96 70 189 CALIFORNIA REPORTER 83 Cal.3d 434 cases. The principal values plaintiffs seek to protect, however, are recreational and ecological—the scenic views of the lake and its shore, the purity of the air, and the use of the lake for nesting and feeding by birds. Under Marks v. Whitney, supra, 6 Cal.3d 251, 98 Cal.Rptr. 790, 491 P.2d 374, it is clear that protection of thwe values is among the purposes of the public trust. (b) The scope of the public trust. [5, 6] Early English decisions generally assumed the public trust was limited to tidal waters and the lands exposed and cov- ered by the daily tides (see Stevens, op. cit supra, 14 U.C.Davis L.Rev. 195, 201 and authorities there cited); many American decisions, including the leading California cases, also concern tidelands. (See, e.g., City of Berkeley v. Superior Court (1980) 26 Cal.3d 515, 162 Cal.Rptr. 327, 606 P.2d 362; Marks v. Whitney, supra, 6 Cal.3d 251, 98 Calltptr. 790, 491 P.2d 374; People v. Cali- fornia Fish Co. (1913) 166 Cal. 576, 138 P. 79.) It is, however, well settled in the United States generally and in California that the public trust is not limited by the reach of the tides, but encompasses all navi- gable lakes and streams. (See Illinois Cen- tral Railroad Co. v. Illinois (1892) 146 US. 387, 13 S.Ct.. 110, 36 L.Ed. 1018 (Lake Michio ' gan); State of California v. Superior Court (Lyon) (1981) 29 Cal.3d 210, 172 Cal.Rptr. 696, 625 P.2d 239 (Clear Lake); State of California v. Superior Court (Fogerty) (1981) 29 Cal.3d 240, 172 Cal.Rptr. 713, 625 P.2d 256 (Lake Tahoe); People v. Gold Run 0. & M. Co. (1834) 66 Cal. 138, 4 P. 1152 (Sacramento River); Hitchings V. Del Rio Woods Recreation & Park Dist. (1976) 55 Cal.App.3d 560, 127 Cal.Rptr. 830 (Russian River).) ‘7 Mono Lake is, as we have said, a naviga- ble waterway. The beds, shores and waters of the lake are without question protected by the public trust. The streams diverted by DWP, however, are not themselvm navi- Cal.App.3d 403, 157 CatRptr. 815, (South Fork of American River); People ex rel. Baker v. Mack (I971) 19 Cal.App.3d 1040, 97 Cal.Rptr. 448 (Fall River).) .196 NAT. AUDUBON SOC. v. SUPER. CT. OF ALPINE CTY. enemas Campinas (Sup. was) 33 Cal.3d 437 gable. Accordingly, we must address in this case a question not discussed in any recent public trust case—whether the public trust. limits conduct affecting nonnavigable tributarim to navigable waterways. JThis question was considered in two ven- erable California decisions. The first, Peo- ple v. Gold Run D. & M. Co. (1884) 66 Cal. 138, 4 P. 1152, is one of the epochal deci- sions of California history, a signpost which marked the transition from a mining econo- my to one predominame commercial and agricultural. The Gold Run Ditch and Min~ ing Company and other mining operators used huge water cannon to wash gold-bear- ing gravel from hillsides; in the process they dumped 600,000 cubic yards of sand and gravel annually into the north fork of the American River. The debris, washed downstream, raised the beds of the Ameri- can and Sacramento Rivers, impairing navi- gation, polluting the waters, and creating the danger that in time of flood the rivers would turn from their channels and inun- date nearby lands. Although recognizing that its decision might destroy the remains of the state’s gold mining industry, the court affirmed an injunction barring the dumping. The opin- ion stressed the harm to the navigability of the Sacramento River, “a great public high- way, in which the people of the State have paramount and controlling rights." (P. 146, 4 P. 1152) Defendant's dumping, the court said, was “an unauthorized invasion of the rights of the public to its navigation." (P. 147, 4 P. 1152.) Rejecting the argument that dumping was sanctioned by custom and legislative acquiescence, the opinion as- serted that “the rights of the people in the navigable rivers of the State are paramount and controlling. The State holds the abso- lute right to all navigable waters and the soils under them . . . . The soil she holds as trustee of a public trust for the benefit of the people; and she may, by her legislature, grant it to an individual; but she cannot grant the rights of the people to the use of 18. For review of California decisions on naviga~ bility, see Dunning. op. cit. supra. l4 U.C.Davis LRev. 357. 384—386. 357 the navigable waters flowing over it . . . ." (Pp. 151—152, 4 P. 1152.) [n the second decision, People v. Russ (1901) 132 Cal. 102, 64 P. 111, the defendant erected dams on sloughs which adjoined a navigable river. Finding the sloughs non- navigable, the trial court gave judgment for defendant. We reversed, directing the trial court to make a finding as to the effect of the dams on the navigability of the river. “Directly diverting waters in material quantities from a navigable stream may be enjoined as a public nui- sance. Neither may the waters of a navi- gable stream be diverted in substantial quantities by drawing from its tributaries [f the dams upon these sloughs result in the obstruction of Salt River as a naviga- ble stream, they constitute a public nui- sance." (P. 106, 64 P. 111.) DWP points out that the COM Run deci- sion did not involve diversion of water, and that in Russ there had been no finding of impairment to navigation. But the princi- ples recognized by those decisions apply ful- ly to a case in which diversions from a nonnavigable tributary impair the public trust in a downstream river or lake. “if the public trust doctrine applies to constrain fills which destroy navigation and other public trust uses in navigable waters, it should equally apply to constrain the cx~ traction of water that destroys navigation and Jgther public interests. Both actions result in the same damage to the public interest.” (Johnson, Public Trust Protec- tion for Stream Flows and Lake Levels (1980) 14 U.C.Davis L.Rev. 233, 257—258; see Dunning, The Significance of Califor- nia's Public Trust Easement [or California Water Rights Law (1980) 14 U.C.Davis L.Rev. 357, 359-360.) [7] We conclude that the public trust doctrine, as recognized and developed in California decisions, protects navigable waters ‘3 from harm caused by diversion of nonnavigable tributaries." 19. In view of the conclusion stated in the text~ we need not consider the question whether the public trust extends for some purposes—sud! ‘7/ an 358 (c) Duties and powers of the state as trustee. In the following review of the authority and obligations of the state as administra- tor of the public trust, the dominant theme is the state's sovereign power and duty to exercise continued supervision Over the trust. One consequence, of importance to this and many other cases, is that parties acquiring rights in trust property generally hold those rights subject to the trust, and can assert no vested right to use those rights in a manner harmful to the trust. As we noted recently in City of Berkeley v. Superior Court, supra, 26 Cal.3d 515, 162 Cal.Rptr. 327, 606 P.2d 362, the decision of the United States Supreme Court in Illinois Central Railroad Company v. Illinois, supra, 146 US. 387, 13 S.Ct. 110, 36 L.Ed. 1018, “remains the primary authority even today, almost nine decades after it was decided." (26 Cal.3d 521, 162 Cal.Rptr. 327, 606 P.2d 362.) The Illinois Legislature in 1886 had granted the railroad in fee simple 1,000 acres of submerged lands, virtually the en- tire Chicago waterfront. Four years later it sought to revoke that grant. The Su- preme Court upheld the revocatory legisla- tion. Its opinion explained that lands un- der navigable waters conveyed to'private parties for wharves, docks, and other struc- tures in furtherance of trust purposes could be granted free of the trust because the conveyance is consistent with the purpose of the trust. But the legislature, it held, did not have the power to convey the entire city waterfront free of trust, thus barring all future legislatures from protecting the public interest. The opinion declares that: “A grant of all the lands under the naviga- ble waters of a State has never been ad- judged to be within the legislative power; and any attempted grant of the kind would be held, if not absoluwa void on its face, as subject to revocation. The State can no more abdicate its trust over property in as protection of fishing, environmental values, and recreation interests—to nonnavigable streams. For discussion of this subject. see Walston, The Public Trust Doctrine in the [89 CALIFORNIA REPORTER 33 Cnl.3d 437 which the whole people are interested, like navigable waters and soils under them, . . . than it can abdicate its police powers in the administration of government and the pres- ervation of _Lthe peace. In the administra- in tion of government the use of such powers may for a limited period be delegated to a municipality or other body, but there al- ways remains with the State the right to revoke those powers and exercise them in a more direct manner, and one more conform- able to its wishes. So with trusts connected with public property, or property of a spe- cial character, like lands under navigable waterways, they cannot be placed entirely beyond the direction and control of the State." (146 US pp. 453—454, 13 S.Ct. p. 118.) Turning to the Illinois Central grant, the court stated that: “Any grant of the kind is necessarily revocable, and the exercise of the trust by which the property was held by the State can be resumed at any time. Un- doubtedly there may be expenses incurred in improvements made under such a grant which.the State ought to pay; but, be that as it may, the power to resume the trust whenever the State judges best is, we think, incontrovertible. . . . The ownership of the navigable waters of the harbor and -of the lands under them is a subject of public concern to the whole people of the State. The trust with which they are held, therefore, is governmental and cannot be alienated, except in those instances men- tioned of parcels used in the improvement of the interest thus held, or when parcels can be disposed of without detriment to the public interest in the lands and waters re- maining." (Pp. 455456, 13 S.Ct. p. 119.) The California Supreme Court indorsed the illinois Central principles in People v. California Fish Co. (1913) 166 Cal. 576, 138 P. 79. California Fish concerned title to about 80,000 acres of tidelands conveyed by Water Rights Context: The Wrong Environ- mental Remedy (1982) 22 Santa Clara l..Rcv. 63, 85. 72 33 Cal.3d 439 state commissioners pursuant to statutory authorization. The court f inst set out prin- ciples to govern the interpretation of stat- utes conveying that property: “[S]tatutes purporting to authorize an abandonment of . . . public use will be carefully scanned to ascertain whether or not such was the legis- lative intention, and that intent must be clearly expressed or necessarily implied. It will not be implied if any other inference is reasonably possible. And if any interpreta- tion of the statute is reasonably possible which would not involve a destruction of the public use or an intention to terminate it in violation of the trust, the courts will give the statute such interpretation." (Id, at p. 597, 138 P. 79.) Applying these princi. ples, the court held that because the statute in question and the grants pursuant thereto were not made for trust purposes. the grantees did not acquire absolute title; in- stead, the grantees “own the soil, subject to the easement of the public for the public uses of navigation and commerce. and to the right. of .the state, as administrator and controller of these public uses and the pub- lic trust therefor, to enter upon and possess the same for the preservation and advance- ment of the public uses and to make such changes and improvements as may be 20. in Mallon v. City of 'Long Beach (1955) 44 Cal.2d 199. 282 P.2d 481, the court held that revenues derived from the use of trust property ordinarily must be used for trust purposes. (Pp. 205—206, 282 P.2d 481.) (See also City of Long Beach v. Morse (1947) 3| Cal.2d 254. 188 P.2d 17; State of California ex rel. State Lands Com. v. County of Orange (l982) 134 Cal. App.3d 20. 184 Cal.Rptr. 423.) The Legislature could abandon the trust over the proceeds. the court said, absent evidence that the abandon- ment would impair the power of future legisla. tures to protect and promote trust uses. (44 Cal.2d p. 207. 282 P.2d 481.) So long as the tidclands themselves remained subject to the trust. however, future legislatures would have the power to revoke the abandonment and re- establish a trust on the revenues. (lbid) (See City of Coronado v. San Diego Unified Port District ([964) 227 Cal.App.2d 455. 473474, 38 Cal.Rptr. 834.) 21. In Colberg. Inc. v. State of California. supra, 67 Cal.“ 408. 62 Cal.Rptr. 40l. 432 P.2d 3, the state constructed a freeway bridge which par- tially impaired navigation in the Stockton Deep Water Ship Channel. Upstream shipyard own- ers. disclaiming any reliance on the public NAT. AUDUBON SOC. v. SUPER. CT. OF ALlllNE CTY. Cite-s tss Campinas (Sup. uses) 359 deemed advisable for those purposes." (Id, at. pp. 598—599, 138 P. 79.) FinallyI rejecting the claim of the tide- land purchasers for compensation, the court stated they did not lose title, but retained it subject to the public trust. (Scc_[pp. 599— 601.) While the state may not “retake the absolute title without compensation" (p. 599, 138 P. 79), it may without such pay- ment erect improvements to further navi- gation and take other actions to promote the public trust“ Boone v. Kingsbury (1928) 206 Cal. 148, 273 P. 797, presents another aspect of this matter. The Legislature authorized the Surveyor-General to lease trust lands for oil drilling. Applying the principles of Illinois Central, the court upheld that statute on the ground that the derricks would not sub- stantially interfere with the trust. Any licenses granted by the statute, moreover, remained subject to the trust: “The state may at any time remove [the] structures .., even though they have been erected with its license or consent, if it subsequent. ly determines them to be purprestures or finds that they substantially interfere with navigation or commerce." (Pp. 192493, 273 P. 797.) 1' trust, filed suit for damages on a theory of inverse condemnation. The opinion stated that “the state. as trustee for the benefit of the people, has power to deal with its navigable waters in any manner consistent with the im- provement of commercial intercourse. whether navigational or otherwise." (P. 419. 62 Cal. Rptr. 401, 432 P.2d 3.) It then concluded that lands littoral to navigable waters are burdened by a navigational servitude in favor of the state and. absent an actual taking of those lands, the owners cannot claim damages when the state acts within its powers. We agree with DWP and the state that Col- berg demonstrates the power of the state. as administrator of the public trust, to prefer one trust use over another. We cannot agree, how- ever. with DWP’s further contention that Col- berg proves the power of a state agency to ahrogate the public trust merely by authorizing a use inconsistent with the trust. Not only did plaintiffs in Colberg deliberately decline to as- sert public trust rights. but the decision rests on the power of the state to promote one trust purpose (commerce) over another (navigation). 73 .. ~.___.._.-_. —.—.~.. .. >«-M--I. _li_t o 360 Finally, in our recent decision in City of Berkeley v. Superior Court, supra, 26 Cal.3d 515, 162 Cal.Rptr. 327, 606 P.2d 362, we considered whether deeds executed by the Board of Tidelands Commissioners pursuant to an 1870 act conferred title free of the trust. Applying the principles of earlier decisions, we held that the grantees' title was subject to the trust, both because the Legislature had not made clear its intention to authorize a conveyance free of the trust and because the 1870 act and the convey- ances under it were not intended to further trust purposes. _|_Once again we rejected the claim that establishment of the public trust constitut- ed a taking of property for which compen- sation was required: “We do not divest anyone of title to property; the conse- quence of our decision will be only that some landowners whose predecessors in in~ terest acquired property under the 1870 act will, like the grantees in California Fish, hold it subject to the public trust." (P. 532, 162 Cal.Rptr. 327, 606 P.2d 362.) 2’ [8,9] In summary, the foregoing cases amply demonstrate the continuing power of the state as administrator of the public trust, a power which extends to the revoca- tion of previously granted rights or to the enforcement of the trust against lands long thought free of the trust (see City of Berke- ley v. Superior Court, supra, 26 Cal.3d 515, 162 Cal.Rptr. 327, 606 P.2d 362). Except for those rare instances in which a grantee may acquire a right to use former trust property free of trust restrictions, the grantee holds subject to the trust, and while he may assert a vested right to the servient estate (the right of use subject to the trust) and to any improvements he erects, he can claim no vested right to bar not on any powor to grant rights free of the trust. (See Dunning, op. cit. supra, 14 U.C.Da- vis LRev. 357. 382—388.) 22. We noted, however, that "any improve- ments made on such lands could not be appro- priated by the state without compensation." (Pp. 533—534, 162 Cal.Rptr. 327, 606 P.2d 362, citing Illinois Central R. Co. v. Illinois, supra, I46 U.S. 387, 455, IS 5.0. HO, “9. 36 LEd. [018.) 74 189 CALIFORNIA REPORTER 33 Cal.3d 439 recognition of the trust or state action to carry out its purposes. Since the public trust doctrine does not prevent the state from choosing between trust uses (Collier-g, Inc. v. State of Califor- nia, supra, 67 Cal.2d 408, 419, 62 Cal.Rptr. 401, 432 P.2d 3; County of Orange v. Heim (1973) 30 Cal.App.3d 694, 707, 106 Cal.Rptr. 825), the Attorney General of California, seeking to maximize state power under the trust, argues for a broad concept of trust uses. In his View, “trust uses" encompass all public uses, so that in practical effect the doctrine would impose no restrictions on the state's ability to allocate trust property. We know of no authority which supports this view of the public trust, except perhaps the dissenting opinion in Illinois Central R. Co. v. Illinois, supra, 146 U.S. 387, 13 S.Ct. 110, 36 L.Ed. 1018. Most decisions and com- mentators assume that “trust uses" relate to uses and activities in the vicinity of the lake, stream, or tidal reach at issue (see, e.g., City of Los Angeles v. Aitken, supra, 10 Cal.App.2d 460, 468469; State of Cal. ex rel. State Lands Com. v. County of Dr. ange, supra, 134 Cal.App.3d 20, 184 Cal. Rptr. 423; Sax, op. cit. supra, 68 Mich.L. Rev. 471, 542.) The tideland cases make this point clear; after City of Berkeley v. Superior Court, supra, 26 Cal.3d 515, 162 Catllptr. 327, 606 P.2d 362, no one could contend that Lthe state could grant tide- _uu lands free of the trust meme because the grant served some public purpose, such as increasing tax revenuts, or because the grantee might put the property to a com~ mercial use. [10] Thus, the public trust is more than an affirmation of state power to use public property for public purposes. It is an affir- In State of California v. Superior Court (Fog- arty). supra, 29 Cal.3d 240, 249, 172 Cal.Rptr. 713, 625 P.2d 256, we stated that owners of shoreline property in Lake Tahoe would be entitled to compensation if enforcement of the public trust required them to remove improve- ments. By implication, however, the determi- nation that the property was subject to the trust, dispite its implication as to future uses and improvements. was not considered a tak- ing requiring compensation. NAT. AUDUBON SOC. v. SUPER. CT. 0F ALPINE CTY. 33 Cal.3d 442 361 Cite as I” CaLRptr. :46 (Sup. lass) mation of the duty of the state to protect the people’s common heritage of streams, lakes, marshlands and tidelands, surrender— ing that right of protection only in rare cases when the abandonment of that right is consistent with the purposes of the trust. 3. The California Water Rights System. “It is laid down by our law writers, that the right of property in water is usufructu- ary, and consists not so much of the fluid itself as the advantage of its use." (Eddy v. Simpson (1853) 3 Cal. ?A9, 252.) Hence, the cases do not speak of the ownership of water, but only of the right to its use. (Rancho Santa Margarita v. Vail (1938) 11 Cal.2d 501, 554-555, 81 P.2d 533; see gener- ally Hutehins, The Cal.Law of Water Rights (1956) pp. 36-38; 1 Rogers & Nichols, Water for Cal. (1967) p. 191.) Accordingly, Water Code section 102 provides that “[a]|l water within the State is the property of the people of the State, but the right to the use of water may be acquired by appropria- tion in the manner provided by law." Our recent decision in People v. Shimkow (1980) 26 Cal.3d 301, 162 Cal.Rptr. 30, 605 P.2d 859, described the early history of the appropriative water rights system in Cali- fornia. We explained that “California op- erates under the so-called dual system of water rights which recognizes both the ap- propriation and the riparian doctrines. (Hutehins, The California Law of Water Rights, supra, at pp. 40, 55—67.) The ripari- an doctrine confers upon the owner of land contiguous to a watercourse the right to the reasonable and beneficial use of water on his land. The appropriation doctrine con- templates the diversion of water and ap- plies to ‘any taking of water for other than riparian or overlying uses.’ (City of Pasa- dena v. City of Alhambra (1949) 33 Cal.2d 908, 925 [207 P.2d 17], and cases there cit— ed.) . . . 1 “Common law appropriation originated in the gold rush days when miners diverted water necessary to work their placer mining claims. The miners adopted among them- selves the priority rule of ‘first in time, first 75 in right,’ and California courts looked to principles of equity and of real property law to adjudicate conflicting claims. [Cita— tions] Thus it was initially the law in this state that a person could appropriate water merely by diverting it and putting it to use. _|;‘The first appropriation statute was en- acted in 1872 and provided for initiation of the appropriative right by the posting and recordation of notice. (Civ.Code, §§ 141077 1422.) The nonstatutory method retained its vitality and appropriative rights were acquired by following either procedure. [Citation] “Both methods were superseded by the 1913 enactment of the Water Commission Act, which created a Water Commission and provided a procedure for the appropria- tion of water‘t'or useful and beneficial pur- poses. The main purpose of the act was ‘to provide an orderly method for the appropri- ation of [unappropriated] waters.’ (Tomes- cal Water Co. v. Dept. Public Works (1955) 44 Cal.2d 90, 95 [230 P.2d 1]; Bloss v. Rahil- ly (I940) 16 Cal.2d 70, 75 [104 P.2d 1049].) By amendment in 1923, the statutory proce- dure became the exclusive means of acquir- ing appropriative rights. (§ 1225, Stats. 1923, ch. 87.) The provisions of the Water Commission Act, as amended from time to time, have been codified in Water Code, divisions 1 and 2 (Stats.1943, ch. 368.)" (Pp. 3074308, 162 Cal.Rptr. 30, 605 P.2d 859, fns. omitted.) The role of the Water Board under the 1913 act. as Shimkow indicated, was a very limited one. The only water subject to appropriation under the act was water which was not then being applied to useful and beneficial purposes, and was not other- wise appropriated. (See Wat.Code, § 1201, based upon Stats.1913, ch. 586, p. 1017, § 11.) Thus, appropriative rights acquired under the act were inferior to pie-existing rights such as riparian rights, pueblo rights, and prior prescriptive appropriations. (See City of San Diego v. Cuyamaca Water Co. (1913) 209 Cal. 105, %7 P. 475.) Judicial decisions confirmed this limited role. According to the courts, the function of the Water Board was restricted to deter- J14: 362 mining if unappropriated water was availa- ble; if it was, and no competing appropria- tor submitted a claim, the grant of an ap- propriation was a ministerial act. (Tulare Water Co. v. State Water Com. (1921) 187 Cal. 533, 202 P. 874.) In 1926, however, a decision of this court led to a constitutional amendment which radically altered water law in California and led to an expansion of the powers of the board. in Herminghaus v. South Cali- fornia Edison Co. (1926) 200 Cal. 81, 252 P. 607, we held not only that riparian rights took priority over appropriations authorized by the Water Board, a point which had always been clear, but that as between the riparian and the appropriator, the farmer's use of water was not limited by the doc- trine of reasonable use. (Pp. 100—101, 252 P. 607.) That decision led to a constitution- al amendment which abolished the right of a riparian to devote water to unreasonable uses, and established the doctrine of reason- able use as an overriding feature of Califor- nia water law. (See Fullerton v. State Water Resources Control 8d. (1979) 90 Cal. App.3d 590, 596, 153 Cal.Rptr. 518, and cases there cited.) Article X, section 2 (enacted in 1928 as art. XIV, § 3) reads in pertinent part as follows: “It is hereby declared that bewuse of the conditions prevailing in this State the general welfare requires that the water re- sources of the State be put to beneficial use to the fullest extent of which they are capable, and that the waste or unreasonable use or unreasonable method of use of water be prevented, and that the conservation of such waters is to be exercised with a view to the reasonable and beneficial use thereof in the interest of the people and for the public welfare. The right to water or to the use or flow of water in or from any natural stream or water course in this State is and shall be limited to such water as shall be reasonably required. for the beneficial use to be served, and such right does not and shall not extend to the waste or unrea- 23. After the effective date of the 1928 amend- ment. no one can acquire a vested right to the unreasonable use of water. (See .10an v. Ma- rin Mun. Water Dist. ([967) 67 Cal.2d I32, I45, 76 189 CALIFORNIA REPORTER 33 Cal.3d 442 sonable use or unreasonable method of use or unreasonable method of diversion of water. . . . This section shall be self-execu- ting, and the Legislature may also enact laws in the furtherance of the policy in this section contained." [11] This amendment does more than merely overturn Herminghaus—it estab- lishes state water policy. All uses of water, including public trust uses, must now con- form te the standard of reasonable use. (See Peabody v. City of Vallejo (1935) 2 Cal.2d 351, 367, 40 P.2d 486; People ex rel. State Water Resources Control Bd. v. Forni (1976) 54 Cal.App.3d 743, 749-750, 126 Cal. Rptr. 851.) n The 1928 amendment did not declare whether the in-stream uses protected by the public trust could be considered reasonable and beneficial uses. In a 1936 case involv- ing Mono Lake, however, the court squarely rejected DWP's argument that use of stream water to maintain the lake's scenic and recreational values violated the consti- tutional provision barring unreasonable uses. (County of Los Angeles v. Aitken, supra, 10 Cal.App.2d 460, 52 P.2d 585.) The point is now settled by statute, Water Code section 1243 providing that “[t]he use of water for recreation and preservation and enhancement of fish and wildlife resources is a beneficial use of water." (See also Cal. Trout, Inc. v. State Water Raoul-cent Con— trol Rd. (1979) 90 Ca1.App.3d 816, 821, 153 Cal.Rptr. 672.) The 1928 amendment itself did not ex- pand the authority of the Water Board. The board remained, under controlling judi- cial decisions, a ministerial body with the limited task of determining priorities be- tween claimants seeking to appropriate un- claimed water. More recent statutory and judicial developments, however, have great- ly enhanced the power of the Water Board to oversee the Jgeasonable use of water and, in the process, made clear its authority to weigh and protect public trust values. 60 Cal.Rptr. 377. 429 P.2d 889; 1 Rogers 8: Nichols, op. cit. supra. p. 413 and cases there 'cited.) 33CaL3d445 NAT. AUDUBON SOC. v. SUPER. CT. 01" ALPINE CTY. 363 Cite as IBB CaLRptr. 348 (Sup. l9!!!) [n 1955, the Legislature declared that in acting on appropriative applications, “the board shall consider the relative benefit to be derived from (1) all beneficial uses of the water concerned including, but not limited to, use for domestic, irrigation, municipal, industrial, preservation and enhancement of fish and wildlife, recreational, mining and power purposes . The board may sub- ject such appropriations to such terms and conditions as in its judgment will best de- velop, conserve, and utilize in the public interest, the water sought to be appropriat- ed." (WatCodc, § 1257.) In 1959 it stated that “[t]he use of water for recreation and preservation and enhancement of fish and wildlife resources is a beneficial use of water." (WaLCode, § 1243.) Finally in 1969 the Legislature instructed that “[i]n determining the amount of water available for appropriation, the board shall take into account, whenever it is in the public inter- est, the amounts of water needed to remain in the source for protection of beneficial uses." (WatCode, § 1243.5.) Judicial decisions have also expanded the powers of the Water Board. In Temescal Water Co. v. Dept Public Works (1955) 44 Cal.2d 90, 280 P.2d 1, we rejected the hold- ing of Tulare Water Co. v. State Water Com, supra, 187 Cal. 533, 202 P. 874, and held that the decision of the board to grant an application to appropriate water was a quasi-judicial decision, not a ministerial act. In People v. Shimlrow, supra, 26 Cal.3d 301, 162 Cal.Rptr. 30, 605 P.2d 859, we held that the board could enjoin diversion of water by the owner of a prescriptive right who refus- ed to comply with water conservation pro- grams, even though his right was not based on a board license. Our decision rested on the legislative intent “to vest in the board expansive powers to safeguard the scarce water resources of the state." (P. 309, 162 Cal.Rptr. 30, 605 P.2d 859; see also Envi- ronmental Defense Fund, Inc. v. East Bay Mun. Utility Dist, supra, 26 Cal.3d 183, 194-195, 161 Cal.Rptr. 466, 605 P.2d 1; In 24. Plaintiffs suggest that appropriative rights expresst conferred by the legislature would not be limited by the public trust doctrine. The Attorney General informs us, however. that the re Waters of Long Valley Creek Stream System (1979) 25 Cal.3d 339, 158 Cal.Rptr. 350, 599 P.2d 656.) Although the courts have refused to allow the board to appropri- ate water for in-stream uses, even those decisions have declared that the board has the power and duty to protect such uses by withholding water from appropriation. (Fullerton v. State Water Resources Control Bd., supra, 90 Cal.App.3d 590, Mil-604, 153 Cal.Rptr. 518; Cal. Trout, Inc. v. State Water Resources Control Bd., supra, 90 Cal. App.3d 816, 821, 153 Cal.Rptr. 672) [12] Thus, the function of the Water Board has steadily evolved from the narrow role of deciding priorities between compet- ing appropriators to the charge of compre- hensive planning and allocation of waters. This change necessarily affects the board's responsibility with respect to the public trust. The board of limited powers of 1913 had neither the power nor duty to consider interests protected by the public trust; the present board, in undertaking planning and allocation of water resources, is required by statute to take those intensts into account. _|;t. The relationship between the Public J1,” Trust Doctrine and the California Water Rights System. As we have seen, the public trust doctrine and the appropriative water rights system administered by the Water Board developed independently of each other. Each devel- oped comprehensive rules and principles which, if applied to the full extent of their scope, would occupy the field of allocation of stream waters to the exclusion of any competing system of legal thought. Plain- tiffs, for example, argues that the public trust is antecedent to and thus limits all appropriative water rights. an argument which implies that most appropriative water rights in California were acquired and are presently being used unlawfully.“ Defendant DWP, on the other hand, argues that the public trust doctrine as to stream legislature has rarely created water rights by express legislation, but instead has delegated that task to the Water Board. 364 waters has been “subsumed” into the appro- priative water rights system and, absorbed by that body of law, quietly disappeared; according to DWP, the recipient of a board license enjoys a vested right in perpetuity to take water without concern for the con- sequences to the trust. We are unable to accept either position. in our opinion, both the public trust doc- trine and the water rights system embody important precepts which make the law more responsive to the diverse needs and interests involved in the planning and allo- cation of water resources. To embrace one system of thought and reject the other would lead to an unbalanced structure, one which would either decry as a breach of trust appropriations essential to the eco. nomic development of this state, or deny any duty to protect or even consider the values pmmoted by the public trust. Therefore, seeking an accommodation which will make use of the pertinent princi- ples of both the public trust doctrine and the appropriative water rights system, and drawing upon the history of the public trust and the water rights system, the body of judicial precedent, and the views of expert commentators, we reach the following con- clusions: [13] a. The state as sovereign retains continuing supervisory control over its navi- gable waters and the lands beneatlf'those waters. This principle, fundamental to the concept of the public trust, applies to rights in flowing waters as well as to rights in tidelands and lakeshores; it prevents any party from acquiring a vested right to ap- propriate water in a manner harmful to the interests protected by the public trust.‘5 25. As we discussed earlier (ante. p. 360 of 189 Cal.Rptr.. p. 723 of 658 P.2d), there are rare exceptions to the rule stated in the text. It is unlikely that these exceptions will often apply to usufructuary water rights. (See discussion in Johnson, op. cit. supra, 14 U.C. Davis LRev. 233. 265—264.) 26. In contrast. the population and economy of this state does not depend on the conveyance of vast expanses of tidelands or other property undertying navigable waters. (Sec Comment. The Public Trust Doctrine and California Water Law: National Audubon Society v. Dept. of Water and Power (I982) 33 Hastings LJ. 653. 78 189 CALIFORNIA REPORTER 33 Cal.3d 445 JIM] b. As a matter of current and his- torical necessity, the Legislature, acting di- rectly or through an authorized agency such as the Water Board, has the power to grant usufructuary licenses that will permit an appropriator to take water from flowing streams and use that water in a distant part of the state, even though this taking dm not promote, and may unavoidably harm, the trust uses at the source stream. The population and economy of this state depend upon the appropriation of vast quantities of water for uses unrelated to in-stream trust values." California's Con- stitution (see art. X, § 2), its statutes (see WaLCode, §§ 100, 104), decisions (see, e.g., Waterford I. Dist. v. Turlock I. Dist. ([920) 50 Cal.App. 213, 220, 194 P. 757), and com- mentators (e.g., Hutchins, The Cal.Law of Water Rights, op. cit. supra, p. 11) all em- phasize the need to make efficient use of California's limited water resources: all recognize, at least implicitly, that efficient use requires diverting water from in-stream uses. Now that the economy and popula- tion centers of this state have developed in reliance upon appropriated water, it would be disingenuous to hold that such appropri- ations are and have always been improper to the extent that they harm public trust uses, and can be justified only upon theories of‘reliance or csboppel. [15] c. The state has an affirmative duty to take the public trust into account in the planning and allocation of water re- sources, and to protect public trust uses whenever feasible.” Just as the history of 668.) Our opinion does not affect the restric- tions imposed by the public trust doctrine upon transfer of such properties free of the trust. 27. Amendments to the Water Code enacted in [955 and subsoquent years codify in part the duty of the Water Board to consider public trust uScs of stream water. (See, ante, p. 363 of I89 Cal.Rptr., p. 726 of 658 P.2d).) The requirements of the California [Environmental Quality Act (Pub. Resources Code, § 21000 et seq.) impose a similar obligation. (See Robie. op. cit. supra, 2 Ecology LQ. 695.) These enactments do not render the judicially fashioned public trust doctrine superfluous. Jy s “and “8 NAT. AUDUBON SOC. v. SUPER. CT. 0F ALPINE CTY. 365 Cite as l89 CnLRptr. 348 (Sup. Is“) this state shows that appropriation may be necessary for efficient use of water despite unavoidable harm to public trust values, it demonstrates that an appropriative water rights system administered without consid- eration of the public trust may cause unnec- essary and unjustified harm to trust inter- ests. (See Johnson, op. cit. supra, 14 U.C. Davis L.Rev. 233, 256457; Robie, Some Reflections on Environmental Considera- tions in Water Rights Administration (1972), 2 Ecology L.Q. 695, 710—711; Com- ment, op. cit. supra, 38 Hastings LJ. 653, 654.) As a matter of practical necessity the state may have to approve appropriations despite foreseeable harm to public trust uses. In so doing, however, the state must bear in mind its duty as trustee to consider the effect of the taking on the public trust (see United Plainsmen v. NJ). State Water Con. Commission (N.D.1976)__|_247 N.W.2d 457, 462—463), and to preserve, so far as consistent with the public interest, the uses protected by the trust. [16,17] Once the state has approved an appropriation, the public trust imposes a duty of continuing supervision over the tak- ing and use of the appropriated water. In exercising its sovereign power to allocate water resources in the public interest, the state is not confined by past allocation deci- sions which may be incorrect in light of current knowledge or inconsistent with cur- rent needs. Aside from the possibility that statutory pro< tections can be repealed. the noncodified public trust doctrine remains important both to con- firm the state's sovereign supervision and to require consideration of public trust uses in cases filed directly in the courts without prior proceedings before the board. 28. me state Attorney General asserts that the Water Board could also reconsider the DWP water rights under the doctrine of unreasonable use under article X. section 2. DWP maintains, however. that its use of the water for domestic consumption is prima facie reasonable. The dispute centers on the test of unreasonable use—does it refer only to inordinate and waste- ful use of water. as in Peabody v. City of Vallejo, supra, 2 Cal.2d 35]. 40 P.2d 486, or to any use less than the optimum allocation of water? (On this question, see generally Joslin 1/. Martin Mun. Water Dist. supra. 67 Cal.2d I32. l38—l4l, 60 Cal.Rptr. 377, 429 P.2d 889.) In view of our reliance on the public trust doctrine as a basis for reconsideration of 79 [[8] The state accordingly has the pow- er to reconsider allocation decisions even though those decisions were made after due consideration of their effect on the public trust.” The case for reconsidering a partic- ular decision, however, is even stronger when that decision failed to weigh and con- sider public trust uses. In the case before us, the salient fact is that no responsible body has ever determined the impact of diverting the entire flow of the Mono Lake tributaries into the Los Angeles Acqueduct. This is not a case in which the Legislature, the Water Board, or any judicial body has determined that the needs of Los Angeles outweigh the needs of the Mono Basin. that the benefit gained is worth the price. Nei- ther has any responsible body determined whether some lesser taking would better balance the diverse interests.” Instead, DWP acquired rights to the entire flow in 1940 from a water board which believed it lacked both the power and the duty to protect the Mono Lake environment, and continues to exercise those rights in appar- ent disregard for the resulting damage to the scenery, ecology, and human uses of Mono Lake. It is clear that some responsible body ought to reconsider the allocation of the waters of the Mono Basin.” No vested rights bar such reconsideration. We _Lrecog~ DWP’s usufructuary rights, we need not re- solve that conuoversy. 29. The one objective study which has been done to date, the Report of the lnteragency Task Force on Mono Lake recommended a sharp curtailment in the diversion of water by the DWP. (See Task Force Report at pp. 36~ 40.) The task force. however. had only the authority to make reconuncndations. and lacked power to adjudicate disputed issues of fact or law or to allocate water. 30. in approving the DWP appropriativc claim. the [940 Water Board relied on Water Code section 106 which states that “[ilt is hereby declared to be the established policy of this State that the use of water for domestic pur- poses is the highest use of water and that the next highest use is for irrigation." DWP points to this section. and to a 1945 enactment which declares a policy of protecting municipal water rights (WaLCodc. § 106.5). and inquires into NAT. AUDUBON SOC. v. SUPER. CT. 0F ALPINE CTY. Clte as. tsscuapuots (Sup. I983) nize the substantial concerns voiced by Los Angeles—the city's need for water, its re Iiance upon the 1940 board decision, the con. both in terms of money and environments. impact of obtaining water elsewhere. Such concerns must enter into any allocation de- cision. We hold only that they do not pre- clude a reconsideration and reallocation which also takes into account the impact of water diversion on the Mono Lake environ- ment. _1§. Conclusion. This has been along and involved answer to the two questions posed by the federal district court. In summarizing our opinion, we will essay a shorter version of our re- spouse. The federal court inquired first of the interrelationship between the public trust doctrine and the California water rights system, asking whether the "public trust doctrine in this context [is] subsumed in the California water rights system, or . . . funcv tion[s] independently of that system?" Our answer is "neither." The public trust doc- trine and the appropriative water rights system are parts of an integrated system of ‘ water law. .The public trust doctrine serves. the functioh in that integrated system of preserving the continuing severeign power of the state to protect public trust uses, a power which precludes anyone from acquir- ing a vested right to harm the public trust, and imposes a continuing duty on the state to take such uses into account in allocating water resources. [20] Restating its question, the federal court asked: “[C]an the plaintiffs challenge the Department's permits and licenses by arguing that those permits and licenses are limited by the public trust doctrine, or must the plaintiffs [argue] that the water diversions and uses authorized thereunder are not 'reasonable or beneficial' as re- quired under the California water rights system?" We reply that plaintiffs can rely on the public trust doctrine in seeking re- consideration of the allocation of the waters of the Mono Basin. This opinion is but one step in the eventu- al resolution of the Mono Lake controversy. We do not dictate any particular alloc. .ion of water. Our objective is to resolve a leg l conundrum in which two competing systems of thought—the public trust doctrine and the appropriative water rights system—e .— isted independently of each other, espousing principles which seemingly suggested 0:90. site results. We hope by integrating these two doctrines to clear away the legal hcrri- ers which have so far prevented eiti ‘ the Water Board or the courts from taking a new and objective look at the water re sources of the Mono Basin. The human and environmental uses of Mono Lake—uses protected by the public trust doctrine—de- serve to be taken into account Such uses should not be destroyed because the state mistakenly thought itself powerless to pro- tect them. _flet a peremptory writ of mandate issue commanding the Superior Court of Alpine County to vacate its judgment in this action and to enter a new judgment consistent with the views stated in this opinion.“ BIRD, CJ., and MOSK, KAUS and REY- NOSO, JJ., concur. ConcurriU J— a4 ssonfslnj ofmmnj awn) ...
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