Should the public trust doctrine be expanded to the use of groundwater?

August 10, 2017 | By JEREMY TALCOTT

Thankfully, no party has claimed that groundwater is “navigable”

This morning PLF filed this amicus brief in the California Court of Appeal for the Third District in support of the County of Siskiyou. We asked the Court of Appeal to overturn this superior court decision, which expanded public trust considerations to permits issued for the use of groundwater.

Adopting the superior court’s rationale could mean that administrative agencies in California would have a “public trust duty” to consider whether any permit issued for a well might have an impact on the levels of a navigable river.

We reminded the court that the history of the public trust doctrine in California is one of court-created expansions of public rights without any basis in the common law. But even in California, courts have previously recognized that the public trust doctrine only applies to navigable waters, or the direct diversion of tributaries that supply navigable waters, where such a diversion would destroy public trust uses. No other California court has applied the doctrine to groundwater use.

We pointed out to the Court of Appeal that the holding removes any remaining limiting principle to the public trust doctrine. After all, all navigable water in California starts as precipitation, and activities such as grading, paving, agriculture, and the removal, addition, or alteration of plants to land can all divert rainwater from running into navigable streams or prevent the process of “infiltration” that recharges groundwater basins. If the superior court’s rationale is adopted more widely in California, there would be very few human activities that wouldn’t require public trust consideration of their impacts.

Finally, we raised the issue of whether such a unilateral expansion of the doctrine would be constitutional under the Fifth and Fourteenth Amendments to the U.S. Constitution. After all, citizens in California have a long-existing constitutional right to the reasonable use of water underlying their property, and neither the legislature nor the courts may “by ipse dixit . . . transform private property into public property without compensation.” Whether analyzed as a takings requiring compensation or as a deprivation of property without due process, the decision may not be constitutional. The avoidance canon dictates that courts should avoid interpreting a common law doctrine in a way that raises such thorny constitutional issues.

The Supreme Court of California has repeatedly held that fundamental questions of state policy must be decided by the Legislature. Indeed, only three years ago the Legislature enacted comprehensive groundwater reform–without any mention of extending public trust concerns to groundwater.

We hope that the California Court of Appeal will agree that such a fundamental balancing of important property rights with public concerns should not be discovered out of thin air by a single superior court judge and handed to a state agency without legislative authorization.