Abstract

http://ssrn.com/abstract=1876039
 


 



The Mono Lake Decision, the Public Trust Doctrine, and the Administrative State


Dave Owen


University of Maine - School of Law

June 30, 2011

UC Davis Law Review, Forthcoming

Abstract:     
In 1983, the California Supreme Court decided National Audubon Society v. Superior Court, 658 P.2d 709, a decision now commonly referred to as “the Mono Lake decision.” Mono Lake is widely viewed as a seminal public trust doctrine case and as an environmental law classic. Commentators credit the case with transforming California water law and often cite it in support of arguments for expanded reliance on the public trust doctrine.

This article tests that conventional view by examining the actual influence of the Mono Lake decision upon subsequent California judicial and agency decision-making. It concludes that the case, though important, was less influential than conventional wisdom suggests. The public trust doctrine, as articulated in the Mono Lake case, has affected California water management. But outside of the Mono Lake basin, its effects are largely intertwined with, and often eclipsed by, the impacts of other environmental laws. Those effects also are concentrated on prospective new water uses rather than on existing practices, and they have occurred almost exclusively at the administrative level. The doctrine has exerted minimal influence in the courts, has done little to encourage re-examination of existing patterns of water use, even when those patterns were environmentally problematic, and has been significantly less important to California water management than statutory environmental laws.

These findings have important implications for understanding the actual and potential influence of the public trust doctrine. Much public trust doctrine scholarship emphasizes the judicial role in implementing the doctrine and argues that the doctrine should assume central importance to environmental protection, not just as a broad governance principle but also as binding, enforceable law. The post-Mono Lake record shows that California has not adopted that approach, and instead has treated the doctrine as a complementary and modestly important component of a primarily statutory, agency-driven environmental law system. The article concludes that such integration is desirable, not problematic, and it closes by proposing several reforms that would bolster the role of the public trust doctrine within that statutory and administrative regulatory system.

Number of Pages in PDF File: 47

Keywords: Mono Lake, public trust doctrine, California, water

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Date posted: July 7, 2011  

Suggested Citation

Owen, Dave, The Mono Lake Decision, the Public Trust Doctrine, and the Administrative State (June 30, 2011). UC Davis Law Review, Forthcoming. Available at SSRN: http://ssrn.com/abstract=1876039

Contact Information

Dave Owen (Contact Author)
University of Maine - School of Law ( email )
246 Deering Avenue
Portland, ME 04102
United States
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