Editor’s Note: This piece is part of a four-part collaborative series between the University of Denver Water Law Review and the Stanford Environmental Law Journal that studies the public trust doctrine, the stark contrast of its history and development in Colorado and California, and the implications of its extension to groundwater.
This piece is the beginning of a two-part series discussing the recent application of the public trust doctrine to groundwater withdrawals in the July 2014 case, Environmental Law Foundation v. State Water Resources Control Board (“ELF”). The California public trust doctrine provides that the state, in its capacity as a sovereign, “owns all of its navigable waterways and the lands lying beneath them as a trustee of the public trust for the benefit of the people.” As a trustee, the state has a fiduciary duty to consider possible environmental impacts and, when feasible, preserve these natural resources for public use. The ELF case held for the first time that California’s public trust doctrine includes environmental impacts on navigable waters from pumping groundwater. The first part of this series describes the public trust doctrine as applied in California and the ELF case. Then, because ELF could potentially limit some groundwater withdrawals, the second part of this series discusses ways this case interacts with California’s recent groundwater legislation, the Sustainable Groundwater Management Act.
Development of the Public Trust Doctrine in California
Origins of the public trust doctrine trace to the Roman Code of Justinian and English common law, though the US Supreme Court first highlighted the doctrine in Illinois Central Railroad Co. v. Illinois. As a matter of state common law, each state applies the public trust doctrine differently. Hawaii, for example, has perhaps the most expansive public trust doctrine with regard to groundwater; all water in the state is protected by the public trust doctrine and this protection is reflected in the state’s constitution. California recognizes two distinct public trust doctrines: a public trust duty derived from statute and the common law doctrine discussed in this series.
Historically, the public trust doctrine only protected public rights to use waterways for navigation, commerce, and fishing. The uses protected by the public trust doctrine in California, however, have expanded. During the emergence of modern environmental law, Joseph Sax’s influential 1970 article, The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention, argued for an extended public trust doctrine that would encompass environmental protection. Shortly thereafter, the California Supreme Court in Marks v. Whitney, recognized “that one of the most important public trust uses . . . is the preservation of those lands in their natural state, so that they may serve 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.”
The seminal California case on the public trust doctrine’s application to environmental protection is National Audubon Society v. Superior Court, which held that the public trust doctrine bestows on the state the affirmative duty to consider the impacts of government action on public trust resources. This affirmative duty includes “protect[ing] the people’s common heritage of streams, lakes, marshlands and tidelands, surrendering the right of protection only in the rare cases when the abandonment of that right is consistent with the purposes of the trust.” In practice, this duty requires the trustee to “consider the effects of [its action] upon interests protected by the public trust, and attempt, so far as feasible, to avoid or minimize any harm to those interests.” This continuous duty led the California Supreme Court in National Audubon to require reconsideration of forty years of water diversions from Mono Lake because no responsible trustee had considered environmental impacts. At its core, the public trust duty requires the trustee to “exercise a continuous supervision . . . over the navigable waters of the state and the lands underlying those waters.”
Applying the Public Trust Doctrine to Groundwater: Environmental Law Foundation v. State Water Resources Control Board
In Environmental Law Foundation v. State Water Resources Control Board, the Superior Court of California applied National Audubon to hold that the public trust doctrine encompasses groundwater extraction that directly affects navigable waters. The court issued this holding in an order on the parties’ cross motions for judgment on the pleadings, meaning that this ruling came before the case proceeded to trial. In National Audubon, the California Supreme Court held that the public trust doctrine applied to diversions of water from non-navigable tributaries of Mono Lake—which itself is navigable—because those diversions affected Mono Lake’s water levels and harmed its public trust uses. Thus, the court concluded that the scope of the public trust doctrine includes activities in non-navigable waters that harm downstream, navigable waters.
The court in ELF v. SWRCB relied on this principle to apply the public trust doctrine to “groundwater so connected to a navigable river that its extraction harms trust uses of the river.” The ELF case deals with groundwater impacts on the Scott River, a navigable waterway in Siskiyou County, California, used for boating and fishing and thus protected by the public trust doctrine. The petitioners claimed that pumping of nearby groundwater decreased flows in the river. In fact, they alleged the groundwater is so hydrologically connected to the Scott River that pumping groundwater at times decreases the river’s flow by the amount pumped.
According to the facts alleged, decreased flows resulting from groundwater extraction harm the public trust uses of the Scott River. The river is an important coho salmon run, but groundwater pumping contributes to dewatering of the river in summer and fall, reducing it to a series of pools. This harms the river’s fish populations and also impacts its navigability and other recreational uses. Groundwater pumping in this case allegedly has the same result as diversion of Mono Lake’s tributaries did in National Audubon—decreased flows in a navigable waterway that harm its public trust uses. Thus, the court reasoned that under these facts the public trust doctrine applies to the extraction of groundwater near the Scott River.
After the ELF court issued this order, the litigants asked the California Supreme Court to accept an expedited review of the order’s primary legal holding—that the public trust doctrine applies to groundwater impacts on navigable waters. The California Supreme Court, however, declined to expedite review. The ELF court issued its order in the context of cross motions from both parties for judgment on the pleadings—in other words, the court made its legal decision assuming the truth of the facts alleged by the Environmental Law Foundation. Presumably, the case will now go to trial in Sacramento County Superior Court, where the Environmental Law Foundation will have to prove as a factual matter that the groundwater pumping permitted by Siskiyou County does in fact harm environmental uses, navigation, or recreation on the Scott River.
California has one of the most expansive public trust doctrines in the United States. If the Superior Court’s holding in ELF stands, then California’s public trust doctrine also applies to groundwater pumping that impacts navigable waters. Historically, California has had no comprehensive state-level limitations on groundwater use. The ELF holding would provide more opportunities for environmental litigants to contest unchecked groundwater pumping.
When the Environmental Law Foundation filed suit in ELF v. SWRCB in 2011, California had no comprehensive state restrictions on groundwater pumping. In 2014, however, California enacted the Sustainable Groundwater Management Act. This legislation institutes comprehensive state regulation of groundwater for the first time in California’s history. The practical effects of ELF should therefore be considered in tandem with the provisions of this new legislation. The second part of this series dissects possible interactions between the public trust doctrine and the new groundwater law.
This article can also be found on the Stanford Environmental Law Journal blog, here.
** J.D. Candidate, Stanford Law School, expected 2017; M.S. Candidate, Emmett Interdisciplinary Program in Environment and Resources, Stanford School of Earth Sciences, expected 2017.
 Envtl. Law Found. v. State Water Res. Control Bd., No. 34-2010-80000583 (Cal. Super. Ct July 15, 2014).
 Nat’l Audubon Soc’y v. Superior Court, 33 Cal. 3d 419, 434 (Cal. 1983) (internal quotation marks and citation omitted).
 See, e.g., J. Inst. 2.1.1 (“By the law of nature these things are common to all mankind-the air, running water, the sea, and consequently the shores of the sea. No one, therefore, is forbidden to approach the seashore, provided that he respects habitationes, monuments, and buildings, which are not, like the sea, subject only to the law of nations. . . . All rivers and ports are public; hence the right of fishing in a port, or in rivers, is common to all men. . . . The public use of the seashore, too, is part of the law of nations, as is that of the sea itself.”).
 Ill. Cent. R.R. Co. v. Ill., 146 U.S. 387 (1892).
 See PPL Mont. v. Mont., 132 S. Ct. 1215, 1235 (2012) (clarifying that “the public trust doctrine remains a matter of state law” and that “the States retain residual power to determine the scope of the public trust over waters within their borders”).
 See Haw. Const. art. 11, §§ 1, 7; In re Water Use Permit Applications (Wai’ Hole Ditch), 9 P.3d 409 (Haw. 2000).
 Joseph L. Sax, The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention, 68 Mich. L. Rev. 471, 539 (1970).
 See id.
 Marks v. Whitney, 6 Cal. 3d 251, 259 (Cal. 1971).
 Nat’l Audubon Soc’y, 33 Cal. 3d 419, 440 (Cal. 1983).
 Id. at 425.
 Envtl. Law Found., No. 34-2010-80000583, at 7-8 (Cal. Super. Ct July 15, 2014).
 Id. at 7.
 Id. at 3.
 Id. at 9. But see Santa Teresa Citizens Action Grp. v. City of San Jose, 114 Cal. App. 4th 689, 709 (Cal. Ct. App. 2003) (holding that the public trust doctrine does not apply to groundwater itself, only groundwater impacts on navigable waters).