24 October 2008

Public Trust Toss-up

I got this from Mr Cruzing:

"There is a very thought-provoking piece in this month's California Water Law & Policy Reporter entitled "Twenty-Five Years Later, What If The Public Trust Requires That We Kill Fish?" [PDF]. In it, the author explores the idea that the public trust, as defined by the California Supreme Court in the seminal National Audubon case, is informed critically (and flexibly) by "the public interest". As such, the Endangered Species Act, as recently applied by Judge Wanger in the delta smelt case to limit the operation of the Delta pumps to the direct detriment of 23 million Californians, may eventually face a day of reckoning.

It's an interesting thought. Heretofore, the public trust doctrine has been thought of as a holy grail for environmentalists: it protects the environment, at such a supreme level that even the takings clause cannot reach it. And lately, there has been much interest in an extension of the public trust doctrine to fix the Delta, and possibly re-allocate some of California's water resources - see, e.g., the Delta Vision report.

But in the context explored in this article, the public trust cuts the other way. And some have begun to argue that there is a public trust value in other public interests served by California water - for example, a locally-grown food supply. So now it gets interesting, and it does seem self-evident that some of the other public interests protected by the public trust can't be completely excluded by service of environmental interests - for example, water for people to consume, water for people to grow their food supply, and so forth. The posture of the Wanger litigation in the Delta certainly begs that question.

The argument hinges principally on the idea that the ESA must yield to the public trust, where there is a conflict. Some believe that the ESA's commands trump any notion of human costs, and there is support for that in the US Supreme Court's holding in TVA v. Hill. However, there is also a longstanding policy of the federal government's deference to state law in allocation of water, except where explicitly otherwise, and the federal government has not made explicit in the ESA that it is intended to displace the operation of state-law concepts in the allocation of water.

A related concept in California water law, also subject to federal deference, is the idea that all uses of water are constrained by the requirement of "reasonableness". That's found in Article X, section 2 of the California Constitution. Is the use of water to protect delta smelt - required by the ESA, as Judge Wanger has held - "reasonable" insofar as it goes to destroy other uses?

Expect the public trust doctrine, and the reasonable use doctrine, to be litigated in an unexpected direction as California's water picture gets worse and worse!"

[DZ's] Bottom Line: It's hard to predict what's in the public interest, but those who profess to defend it shouldn't expect that it will always match their individual opinions.

2 comments:

Willis A. (Bill) Frambach said...

You wrote:

"Heretofore, the public trust doctrine has been thought of as a holy grail for environmentalists: it protects the environment, at such a supreme level that even the takings clause cannot reach it."

My comment:

Please distinguish recognizing that land ownership is and always has been subject to the public trust from "taking." The Fifth Amendment "takings clause" does not apply to vindication of the public trust doctrine. As United States Supreme Court explained in Armstrong v. United States, 364 U.S. 40 (1960), the rationale for finding a taking without just compensation to be unconstitutional is that it is unfair to take from a private property owner the value of that which is his or hers, without
just compensation, and then to use it to benefit the public as a whole.
In Phillips Petroleum Co. v. Mississippi, 484 U.S. 469 (1988), the United States Supreme Court explained that the public trust doctrine describes a prior encumbrance to land, irrespective of whether or not it is mentioned anywhere in the chain of title.

The beneficiary of the public trust is mankind. When a sovereign takes action to vindicate the public trust, it is performing its duty as trustee
to marshal and to recapture value that belongs already to mankind. It is not taking from a landowner that which is his or hers. Therefore, the "takings clause" does not apply.

You wrote:

"And lately, there has been much interest in an extension of the public trust doctrine to fix the Delta, and possibly re-allocate some of California's water resources - see, e.g., the Delta Vision report."

My comment:

Please distinguish recognizing the true extent of the pre-existing public trust doctrine from extending it.

Mr Cruzing said...

Absolutely nothing to disagree with in either of those comments. The public trust is untouchable. That's why it's so wonderful, from a policy perspective, to find that the "values" you like are actually protected from alienation as "mankind's" values.

The point of the article and my posted summary of it is that, whether you call it "extension" or "revealing the true extent" of it, the public trust may also protect values like a locally-grown food supply. All it takes is some judges to agree. Stay tuned.

Or, more sunccinctly:

We all know that in the great policy game of rock, scissors and paper, the public trust doctrine is the atom bomb.

The only question is whose atom bomb is it?