President's weekly report — September 5, 2014

September 05, 2014 | By ROB RIVETT

Water rights and the public trust doctrine going underground

We filed this amicus letter brief in Environmental Law Foundation v. State Water Resources Control Board asking the California Supreme Court to review a disturbing opinion from the Court of Appeal. Historically, the “public trust doctrine” referred to a common law rule that owners of land next to navigable waterways such as rivers and harbors could not block the public from accessing those waters for fishing and navigation — only the legislature could do so if there were an important public interest at stake. But in recent years, especially in California, that doctrine has morphed into an ecological protection rule — where riparian and shorelands are protected for recreational and ecological purposes.  Moreover, based on the theories of a law professor, the California Supreme Court in 1983 found that the doctrine had migrated upstream to cover nonnavigable tributaries to navigable waters. Now, in the present case, the court of appeal ruled that the doctrine applies to groundwater that might affect navigable waters. Thus we have seen this once obscure common law doctrine that promoted economic activity (fishing and boating) transmogrify into an ecological protection rule that could affect groundwater extraction throughout the state. We’re hoping the California Supreme Court will take up this case to put limits on this blob-like expansion of the doctrine.

Property Rights — Liability for flooding in Alaska

We filed this amicus brief this amicus brief in Beeson v. City of Palmer. Here, the municipality did road work that it knew, unless fixed, could cause flooding to the Beeson’s property.  The work wasn’t done and flooding followed. The City, however, is arguing that its inaction (the failure to fix the problem) cannot lead to liability. When the case reached the Alaska Supreme Court, the Court asked PLF to file an amicus brief. Our brief explains that when flooding from a government project is foreseeable the government can be liable — whether or not it intended the flooding to occur and even if inaction rather than action is the cause of the flooding.

Equality Under the Law Project — California’s redistricting commission quotas

We received this largely favorable decision this week from the Court of Appeal in Connerly v. State Personnel Board. Here we are challenging the quota system incorporated into California’s redistricting commission. As our blog notes, we don’t believe race should be a criterion for office. This decision essentially allows us to proceed with a federal Equal Protection Clause challenge in the trial court.