The Public Trust – What Local Decisionmakers Should KnowJune 18, 2021
Photo credit: Amy Vosters, Unsplash
The ancient public trust doctrine is as relevant as ever in today’s California, with implications for how local governments make decisions that could directly or indirectly affect water resources.
The public trust doctrine—under which the state owns navigable waterbodies, tidelands, and submerged lands in trust for the people—has its roots in Roman law that is more than sixteen centuries old. But it continues to have relevance to this day, and indeed, its importance in California appears only to be growing. As climate change, sea level rise, and drought inflict profound changes on our environment, the threat to inland fisheries, coastal beaches, and other trust resources—and the need to take steps to protect those resources—has never been greater. Local governments are increasingly being called upon to take action. Recent court decisions suggest that, when local governments make decisions that could adversely impact trust resources, ignoring the problem may no longer be a legal option.
The public trust is a common law doctrine historically designed to protect the use of trust lands for commerce, navigation, and fisheries, but it has evolved over time to embrace a wider range of public purposes, including open space, recreation, and environmental preservation. Public trust lands are generally owned by the state and managed by the California State Lands Commission. The state has considerable discretion over how trust lands will be used, but it holds those lands in trust for the people, and it must exercise that discretion in a manner consistent with the purposes of the trust. Even the legislature is limited in its ability to abrogate the trust, a unique feature that helps ensure that trust resources are forever preserved for the public benefit.
Many local governments are familiar with the public trust doctrine because the state has granted to them the tidelands lying within their boundaries. More than 50 cities, counties, and port districts are “trustees” responsible for directly managing granted trust lands. But the public trust does more than govern the power of trustees to use trust lands. It also places a duty on the government to protect the people’s “common heritage” of trust resources. And it is this duty that has implications for local decision making beyond the direct management of granted lands.
In 1983, the California Supreme Court issued the seminal public trust decision in National Audubon Society v. Superior Court, which established that the state has a duty to consider the public trust in allocating water resources. The case involved the diversion of non-navigable tributaries that fed Mono Lake, causing the lake levels to drop and imperiling its scenic and ecological value. The state agency that approved the diversion claimed that because the streams were non-navigable, and because it was simply implementing the state’s system of water rights, the public trust did not apply. The court rejected these arguments, holding that when the planning and allocation of water resources could impact navigable waterbodies, even indirectly, the state has a duty under the public trust to take those impacts into account and to protect trust uses “whenever feasible.”
Although National Audubon involved a state agency, its holding was recently applied to a county’s implementation of its groundwater well permitting program. In Environmental Law Foundation v. State Water Res. Control Board, groundwater pumping approved by Siskiyou County was indirectly causing dramatically reduced surface water flows in the Scott River, to which the groundwater basin was hydrologically connected. The County argued it need not consider the trust in implementing its well program because groundwater is not subject to the trust; because the county is not the state; and because the Sustainable Groundwater Management Act occupied the field of groundwater regulation. The court rejected all of these arguments, holding that the indirect impacts to navigable waters trigger a duty under the trust, that the duty applies to counties as “subdivisions of the state,” and that both the duty and the statutory program can coexist.
The application of the public trust to county well permitting decisions in Environmental Law Foundation raises the question of what other local decisions that indirectly impact the uses of navigable or tidal waters might also trigger a trust duty to protect those uses where feasible. For example, seawalls or other structures to protect development upland of sandy beaches may create barriers to the landward migration of those beaches as sea levels rise, potentially eliminating them in what has been called the “coastal squeeze.” Development near waters can also limit public access to trust lands for recreation, or destroy coastal habitats that provide a critical line of defense against rising seas. Although the potential trust impacts of such decisions might be indirect, after ELF local governments considering approval of such projects may have a fiduciary duty to protect the impacted trust resources.
Of course, the state has already made efforts to protect important trust resources through legislation such as the Coastal Act administered by the California Coastal Commission and the McAteer-Petris Act administered by the Bay Conservation and Development Commission. But
Environmental Law Foundation teaches that courts are reluctant to find that the trust duties of local decisionmakers are superseded by such statutes. In addition, while the environmental analysis required by the California Environmental Quality Act (CEQA) may provide a good framework through which local decisionmakers can consider trust matters, at least one court has recently made clear that CEQA compliance alone will not always be enough to satisfy an agency’s affirmative duties to take the trust into account and protect public trust uses whenever feasible.
There is also a question as to whether the duty to consider impacts to trust uses applies to cities as well as counties. While cities are not “subdivisions of the state,” some courts have broadly described the trust duty generally as belonging to “government.” Given the broad principles animating the public trust doctrine, and the fact that the state has already delegated to many cities “trustee” authority over granted lands within their limits, it is possible that courts would hold cities to the same standard as counties.
In light of the trajectory of the law in this area, public agencies whose decisions could impact the use of navigable or tidal waters would be well advised to take the public trust into account when making those decisions. A good place to start is to include a separate analysis of impacts to trust uses in CEQA documents for projects where the issue is likely to be raised. While such trust analysis may not be required by CEQA, it would help a decisionmaker “show its work” in furtherance of its trust responsibilities to a reviewing court. Such analysis should assess not only direct impacts to trust resources, but also indirect and cumulative impacts.
Where significant impacts to trust uses are identified, mitigation should be provided to protect those uses whenever feasible. While public trust cases use the concept of “feasibility” as a standard, courts are likely to subject public trust feasibility determinations to far greater scrutiny than the highly deferential feasibility determinations made for CEQA mitigation. Particularly where impacts threaten to severely harm or even eliminate a trust use—like the salmon fisheries in the Scott River threatened by groundwater pumping—failure to avoid or substantially mitigate such harm would have to be justified by an objectively compelling public interest.
Finally, because the trust imposes an ongoing duty, decisionmakers would be well advised to require that proponents of projects with the potential to impact trust waters monitor the projects’ effects on those waters. Project approvals should also be subject to re-evaluation, modification, further mitigation, and even revocation if significant future impacts to trust uses are later discovered.
As the effects of sea level rise become ever more evident in our communities, the need for local governments to be proactive is clear. The public trust provides not only an obligation but also an opportunity to protect the trust resources that benefit us all.