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The Public Trust Doctrine and Western Water Law: Discord or Harmony?

Harrison C. Dunning, Proceedings of 30th Annual Rocky Mountain Mineral Law Institute (1984)

Early in 1983 the Supreme Court of California shocked many water rights lawyers and water management officials by its unanimous decision that both future and existing water rights in California are subject to limitations in the name of the public trust doctrine.1 In National Audubon Society v. Superior Court of Alpine County,2 the court held that Audubon may invoke this doctrine in its attempt to limit diversions by the City of Los Angeles from several streams which feed Mono Lake. Although the diversions are made pursuant to perfected appropriative water rights, the court concluded that these rights may be reconsidered where their exercise threatens certain public values in the lake.

Although prior to Audubon the public trust doctrine was unknown to most of those concerned with water rights in [17-3] California,3for over 150 years the doctrine has functioned in American law to provide some protection for the general public interest in the navigation, commerce, and fishing associated with navigable water resources. With the exception of one recent North Dakota case,4 however, litigation prior to Audubon involved application of the public trust doctrine to property rights in land rather than to property rights in water. Consequently, the topic was one of concern principally to land lawyers, title companies, and others dealing with land under or adjacent to navigable wa