Mono Lake and the Evolving Public Trust in Western Water

Abstract:     
The Mono Lake case is a lodestar in public trust jurisprudence. This article discusses that case and explains how it revolutionized California water law. The article identifies six principles established by the decision that place it in the vanguard of public trust case law. It also examines some of the progeny of the Mono Lake decision, both in California and in other western states. The article claims that in the wake of Mono Lake, a half dozen western states have recognized the application of the public trust doctrine to water rights, although no other state has embraced all six of the tenets of the Mono Lake doctrine. The article concludes that the the public trust doctrine's deep historical roots and conceptual coherence make it a promising vehicle by which to moderate the excesses of the prior appropriation doctrine of western water law and replace that doctrine's all or nothing approach with what the article refers to as the accommodation principle, under which both diversionary and instream uses of water will be accommodated wherever feasible.

Keywords: environmental law, water law, property law

JEL Classifications: K11, K32

Accepted Paper Series