November 8, 2018

PLF Files Amicus Letter Urging California Supreme Court to Clarify Public Trust Obligations

By David J. Deerson Legal Fellow

This morning, PLF filed an Amicus Letter urging the Supreme Court of California to grant review of the court of appeal’s decision in Environmental Law Foundation v. State Water Resources Control Board.

The court of appeal held that Siskiyou County, California is required to consider public trust interests before granting a permit to construct a groundwater well, even though no court in California has ever held that groundwater falls within the public trust. The court reasoned that, even though groundwater itself is not subject to the public trust doctrine, the extraction of groundwater in Siskiyou County may indirectly harm water levels in the Scott River, which is subject to public trust considerations.

Unfortunately, the court of appeal unmoored the public trust doctrine from any limiting principle. Siskiyou County grants well permits on a “ministerial” basis, meaning that as long as an applicant meets certain enumerated requirements, that applicant will receive a permit as of right. But now, the court of appeal decision requires counties like Siskiyou to make discretionary determinations based on public trust considerations any time an activity—presumably, any activity—might have some impact on a public trust resource. But many human activities (even non-water-related activities) can substantially alter rates of erosion, surface runoff, infiltration, overland flow, and evapotranspiration, all of which plausibly could affect levels of navigable streams. Thus, the court of appeal’s decision creates significant uncertainty about whether and where the usual ministerial review is adequate, and potentially requires local governments to create mechanisms for discretionary review where no such mechanism currently exists. In the absence of further clarification, cities and counties will be left uncertain as to exactly where their public trust obligations end. Undoubtedly, this will lead to a flood of litigation as various interest groups compete to define exactly which activities are sufficiently connected to observable impacts on public trust resources to warrant public trust consideration. But California’s courts are already overloaded with environmental challenges to land-use decisions.

The court of appeal’s decision creates an obligation but provides no guidance on where it arises and how it can be satisfied. That’s why we’ve asked the Supreme Court of California to take a closer look.

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