National Audubon Society v. Superior Court
| Decision Date | 17 February 1983 |
| Docket Number | S.F. 24368 |
| Citation | 658 P.2d 709,33 Cal.3d 419,21 E.R.C. 1490,189 Cal.Rptr. 346 |
| Parties | , 658 P.2d 709, 21 ERC 1490, 13 Envtl. L. Rep. 20,272 NATIONAL AUDUBON SOCIETY et al., Petitioners, v. The SUPERIOR COURT OF ALPINE COUNTY, Respondent; DEPARTMENT OF WATER AND POWER OF the CITY OF LOS ANGELES et al., Real Parties in Interest. |
| Court | California Supreme Court |
F. Bruce Dodge, Morrison & Foerster, San Francisco, Sanford M. Skaggs, Palmer Brown Madden, Maria P. Rivera and Van Voorhis & Skaggs, Walnut Creek, for petitioners.
Antonio Rossmann, Muenzberg & Thomson, James S. Thomson, Sacramento, Robin G. Pulich, Greene, Kelley & Tobriner, E. Clement Shute, Jr., and Shute, Mihaly & Weinberger, San Francisco, Frank A. Lowe, Oakland, A. Love, Long Beach, as amici curiae on behalf of petitioners.
No appearance for respondent.
Adolph Moskovitz, Kronick, Moskovitz, Tiedemann & Girard, Sacramento, Ira Reiner, City Atty., Edward C. Farrell, Chief Asst. City Atty., Kenneth W. Downey, Asst. City Atty., George Deukmejian, Atty. Gen., R.H. Connett, Asst. Atty. Gen., Roderick E. Walston, Gregory K. Wilkinson, Jan S. Stevens, Bruce S. Flushman, Deputy Attys. Gen., San Francisco, John R. Bury, Tom P. Gilfoy, Philip Walsh, Jennifer Moran, Elizabeth J. Bigman, Rosemead, Carol E. Dinkins, Asst. Atty. Gen., Washington, D.C. (United States), Donald B. Ayer, and Francis M. Goldsherry II, U.S. Attys., Stuart L. Somach and Mary Beth Uitti, Asst. U.S. Attys., Sacramento, Jacques B. Gelin, Richard J. Lazarus, Washington, D.C., Arthur L. Littleworth, Richard T. Gill, Anderson and Best, Best & Krieger, Riverside, for real parties in interest.
Downey, Brand, Seymour & Rohwer, Anne J. Schneider, Sacramento, DeBlanc & Alexander, and Anthony E. Alexander, Los Angeles, as amici curiae on behalf of real parties in interest.
George P. Agnost, City Atty., McMorris M. Dow, Deputy City Atty., San Francisco, Jerome B. Falk, Jr., Brian E. Gray and Howard, Rice, Nemeravski, Canady & Pollak, San Francisco, as amici curiae.
Mono Lake, the second largest lake in California, sits at the base of the Sierra Nevada escarpment near the eastern entrance to Yosemite National Park. The lake is saline; it contains no fish but supports a large population of brine shrimp which feed vast numbers of nesting and migratory birds. Islands in the lake protect a large breeding colony of California gulls, and the lake itself serves as a haven on the migration route for thousands of Northern Phalarope, Wilson's Phalarope, and Eared Greve. Towers and spires of tufa on the north and south shores are matters of geological interest and a tourist attraction.
Although Mono Lake receives some water from rain and snow on the lake surface, historically most of its supply came from snowmelt in the Sierra Nevada. Five freshwater streams--Mill, Lee Vining, Walker, Parker and Rush Creeks--arise near the crest of the range and carry the annual runoff to the west shore of the lake. In 1940, however, the Division of Water Resources, the predecessor to the present California Water Resources Board, 1 granted the Department of Water and Power of the City of Los Angeles (hereafter DWP) a permit to appropriate virtually the entire flow of four of the five streams flowing into the lake. DWP promptly constructed facilities to divert about half the flow of these streams into DWP's Owens Valley aqueduct. In 1970 DWP completed a second diversion tunnel, and since that time has taken virtually the entire flow of these streams.
As a result of these diversions, the level of the lake has dropped; the surface area has diminished by one-third; one of the two principal islands in the lake has become a peninsula, exposing the gull rookery there to coyotes and other predators and causing the gulls to abandon the former island. The ultimate effect of continued diversions is a matter of intense dispute, but there seems little doubt that both the scenic beauty and the ecological values of Mono Lake are imperiled. 2
Plaintiffs filed suit in superior court to enjoin the DWP diversions on the theory that the shores, bed and waters of Mono Lake are protected by a public trust. Plaintiffs' suit was transferred to the federal district court, which requested that the state courts determine the relationship between the public trust doctrine and the water rights system, and decide whether plaintiffs must exhaust administrative remedies before the Water Board prior to filing suit. The superior court then entered summary judgments against plaintiffs on both matters, ruling that the public trust doctrine offered no independent basis for challenging the DWP diversions, and that plaintiffs had failed to exhaust administrative remedies. Plaintiffs petitioned us directly for writ of mandate to review that decision; in view of the importance of the issues presented, we issued an alternative writ. (See County of Sacramento v. Hickman (1967) 66 Cal.2d 841, 845, 59 Cal.Rptr. 609, 428 P.2d 593.)
This case brings together for the first time two systems of legal thought: the appropriative water rights system which since the days of the gold rush has dominated California water law, and the public trust doctrine which, after evolving as a shield for the protection of tidelands, now extends its protective scope to navigable lakes. Ever since we first recognized that the public trust protects environmental and recreational values (Marks v. Whitney (1971) 6 Cal.3d 251, 98 Cal.Rptr. 790, 491 P.2d 374), the two systems of legal thought have been on a collision course. (Johnson, Public Trust Protection for Stream Flows and Lake Levels (1980) 14 U.C. Davis L.Rev. 233.) They meet in a unique and dramatic setting which highlights the clash of values. Mono Lake is a scenic and ecological treasure of national significance, imperiled by continued diversions of water; yet, the need of Los Angeles for water is apparent, its reliance on rights granted by the board evident, the cost of curtailing diversions substantial.
Attempting to integrate the teachings and values of both the public trust and the appropriative water rights system, we have arrived at certain conclusions which we briefly summarize here. In our opinion, the core of the public trust doctrine is the state's authority as sovereign to exercise a continuous supervision and control over the navigable waters of the state and the lands underlying those waters. This authority applies to the waters tributary to Mono Lake and bars DWP or any other party from claiming a vested right to divert waters once it becomes clear that such diversions harm the interests protected by the public trust. The corollary rule which evolved in tideland and lakeshore cases barring conveyance of rights free of the trust except to serve trust purposes cannot, however, apply without modification to flowing waters. The prosperity and habitability of much of this state requires the diversion of great quantities of water from its streams for purposes unconnected to any navigation, commerce, fishing, recreation, or ecological use relating to the source stream. The state must have the power to grant nonvested usufructuary rights to appropriate water even if diversions harm public trust uses. Approval of such diversion without considering public trust values, however, may result in needless destruction of those values. Accordingly, we believe that before state courts and agencies approve water diversions they should consider the effect of such diversions upon interests protected by the public trust, and attempt, so far as feasible, to avoid or minimize any harm to those interests.
The water rights enjoyed by DWP were granted, the diversion was commenced, and has continued to the present without any consideration of the impact upon the public trust. An objective study and reconsideration of the water rights in the Mono Basin is long overdue. The water law of California--which we conceive to be an integration including both the public trust doctrine and the board-administered appropriative rights system--permits such a reconsideration; the values underlying that integration require it.
With regard to the secondary issue of exhaustion of administrative remedies, the powers, experience, and expertise of the Water Board all argue in favor of granting that agency primary jurisdiction. Long-established precedent, however, declares that courts have concurrent jurisdiction in water right controversies. The Legislature, instead of overturning that precedent, has implicitly acknowledged its vitality by providing a procedure under which the courts can refer water rights disputes to the water board as referee. We therefore conclude that the courts may continue to exercise concurrent jurisdiction, but note that in cases where the board's experience or expert knowledge may be useful the courts should not hesitate to seek such aid.
DWP supplies water to the City of Los Angeles. Early in this century, it became clear that the city's anticipated needs would exceed the water available from local sources, and so in 1913 the city constructed an aqueduct to carry water from the Owens River 233 miles over the Antelope-Mojave plateau into the coastal plain and thirsty city.
The city's attempt to acquire rights to water needed by local farmers met with fierce, and at times violent, opposition. (See generally County of Inyo v. Public Utilities Com. (1980) 26 Cal.3d 154, 156-157, 161 Cal.Rptr. 172, 604 P.2d 566; Kahrl, Water and Power: The Conflict Over Los Angeles' Water Supply in the Owens Valley (1982).) But when the "Owens Valley War" was over, virtually all the waters of the Owens River and its tributaries flowed south to Los Angeles. Owens Lake was transformed into an alkali flat. 3
The city's rapid expansion soon strained this new supply, too, and prompted a search for water from other regions. The...
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