15 Southeastern Envtl. L.J. 171
Southeastern Environmental Law Journal
Fall 2006
Articles
LESSONS FROM THE MONO LAKE CASES FOR EFFECTIVE MANAGEMENT OF PUBLIC TRUST RESOURCES
Richard Roos-Collinsa1
Copyright (c) 2006 Southeastern Environmental Law Journal; Richard Roos-Collins

I.
	History of Mono Lake Cases
	173
	
	A. Development of Mono Basin
	173
	
	B. Public Trust Complaint
	174
	
	C. Statutory Complaints
	177
	
	D. Interim Remedies
	178
	
	E. Permanent Remedies in Form of License Amendments
	178
	
II.
	Strategic Lessons
	179
	
	A. An Ounce of Prevention is Worth a Pound of Cure
	180
	
	B. Manage the Commons, Not Just the Individual Shepherds
	181
	
	C. Results Matter Most
	184
	
	D. Public Trust Management is a Joint Venture
	188
	
III.
	Conclusion
	189

South Carolina recently adopted regulations for the construction, use, and maintenance of bridges across coastal marshlands to privately owned islands.1 Under the common-law public trust doctrine, the state owns these marshlands, absent clear and convincing proof of grant by the King or Lord Proprietor before nationhood, or by the state thereafter.2 The regulations require permitting authorities to place conditions any bridge permit to minimize environmental damage of the affected marshlands.3 This article *172 was written for a symposium4 that asked the question: will this program achieve its intended purpose over the course of the next generation?
 
The resources at stake are significant. South Carolina has several thousand coastal islands, an unknown number of which are privately owned and, thus, potentially developable.5 “Expanses” of marshlands surround the islands.6 Tidal rivers and creeks sustain these marshlands, which provide critical habitat for shellfish and migratory waterfowl and attract tourism.7
 
The Office of Ocean and Coastal Resource Management (OCRM) is the permitting authority within the South Carolina Department of Health and Environmental Control (DHEC).8 The bridge regulations give OCRM substantial discretion to balance public and private interests in deciding whether to issue individual permits. For example, in issuing a permit for a bridge to an island, OCRM must consider the “impacts to the public trust lands, critical area, coastal tidelands, and coastal waters, weighed against the reasonable expectations of the owner of the coastal island.”9 These determinations necessarily require judgment and a balance of interests. Implementing the regulations will be a living experiment, possibly involving further litigation about individual applications10 as well as political challenges. The Mono Lake Cases,11 which concern navigable waters more than 2,600 miles west of South Carolina’s coast, provide useful guidance on how to effectively protect public trust resources in a manner that accommodates reasonable development.
 
*173 I. History of Mono Lake Cases
For the first time, the Mono Lake Cases applied the public trust doctrine to regulate water storage and diversion for water supply in California.12 Since California became a state in 1850, its courts had consistently held, under the doctrine, that the state owns navigable rivers and lakes, as well as the submerged lands of their channels, unless conveyed unconditionally by a valid grant.13 Until 1983, courts had applied the doctrine to regulate debris discharge into navigable waters,14 the conveyance of submerged lands for bridges, wharves, and other developments,15 and fish and wildlife takings16 - but not to regulate water rights.17
 
In California, the right to store or divert surface flow arises in one of two ways: as an incident of owning riparian uplands, but only for use there; or by appropriation for use on non-riparian lands, including municipal water supply.18 Since 1913, any appropriative rights have been in the form of a permit or license issued by the State Water Resources Control Board (SWRCB) or its predecessor board, pursuant to the statutory Water Code requirements and implementing regulations.19
 
A. Development of Mono Basin
By the early 1900s, the Los Angeles population’s demand had exceeded the reliable supply capacity of local surface and ground waters.20 Los Angeles Department of Water and Power (LADWP) turned to the Owens and Mono Basins, rural areas more than 250 miles away, for additional water supply. In 1923, LADWP applied to the SWRCB predecessor for permits to divert 147,000 acre-feet per year from freshwater tributaries to Mono Lake, located in the high Sierra mountains just east of Yosemite.21
 
*174 In 1940 the state board heard evidence that such diversion would lower the lake level, thereby impairing access for navigability, and dewater Rush and Lee Vining creeks, whose vibrant trout fisheries drew anglers from many states and even abroad.22 However, the board held it lacked “both the power and duty” to consider such impacts or condition the rights to minimize them.23 It relied on the California Water Code, which provides that municipal water supply is the most beneficial use of water.24 The board interpreted that priority to trump any adverse impact on other uses,25 and it issued permits that year for diverting the two creeks’ entire flows. By 1941 LADWP had constructed the aqueduct capacity to convey roughly half of that amount, and it immediately began diversion.26 The SWRCB issued licenses in 1974, upon LADWP’s completion of the aqueduct capacity to convey all such flows to its service area.27
 
Between 1970 and 1980, LADWP diverted an average of 99,580 acre-feet per year, or most of the flow of these creeks.28 It was the only significant diverter, LADWP having bought out or condemned the rights of local landowners who had previously diverted lesser amounts for irrigation.29 By 1983, the cumulative diversions had lowered the lake by 45 vertical feet (from 6,417 feet MSL to 6,372 feet MSL); reduced the creeks to dry washes except for intermittent floods; substantially impaired the ecological values of the waters for migratory waterfowl and other fish and wildlife; and impaired recreation and associated economic benefits for the town of Lee Vining and other rural communities.30 Continuing diversions would likely have lowered the lake by another 43 to 50 feet vertical feet, at which point the lake would have reached some form of equilibrium dependent on direct rainfall and inflow from smaller tributaries.31
 
B. Public Trust Complaint
In 1979, the National Audubon Society, Mono Lake Committee, Friends of the Earth, and local landowners filed a complaint in California Superior Court to enjoin continuing diversions, claiming the lands and waters of the *175 Mono Lake were protected by public trust.32 The Superior Court granted LADWP’s summary judgment motion, holding that the Water Code is a “comprehensive and exclusive” system for regulation of water rights, and that plaintiffs had not exhausted their administrative remedy to seek an amendment of the licenses.33 In 1983 the California Supreme Court reversed and remanded to Superior Court for further proceeding.34 Its holding consists of five fundamental parts, summarized below.
 
The public trust doctrine and the statutory program of water rights regulations must be administered as an “integrated system in a way that accommodates both uses.”35 The Water Code does not “subsume” the doctrine, and the doctrine does not invalidate rights granted without express acknowledgement of trust resources.36
 
The Water Code authorizes the SWRCB to grant rights harmful to the public trust. SWRCB may do this to sustain the state’s economy and population, which are largely distant from the sources of their water supplies.37 The state must condition rights as necessary to prevent unnecessary harm to public trust uses.38
As a matter of practical necessity the state may have to approve appropriations despite foreseeable harm to public trust uses. In so doing, however, the state must bear in mind its duty as trustee to consider the effect of the taking on the public trust, and to preserve, so far as is consistent with the public interest, the uses protected by the trust.39

No person may acquire a vested right to appropriate water in a manner harmful to the public trust uses of navigation, commerce, fishing, and ecological quality.40 The SWRCB has a duty of “continuing supervisory control” of water rights to comply with the public trust doctrine and related statutes.41
 
*176 A century before the Mono Lake Cases42 the U.S. Supreme Court held the doctrine “requires the government of the State to preserve such waters for the use of the public. The trust . . . can only be discharged by the management and control of the property in which the public has an interest . . . .”43 In the Mono Lake Cases, the California Supreme Court held: “The state has an affirmative duty to take the public trust into account in the planning and allocation of water resources, and to protect public trust uses whenever feasible.”44 The court reviewed the Water Code’s evolution since initial enactment in 1913.45 The evolution includes the 1928 Constitutional amendment prohibiting waste, unreasonable use, or unreasonable method of use of any water and the 1959 enactment of Water Code section 1243, which declares that use of water for recreation and preservation of fish and wildlife is beneficial.46 The court concluded:
[T]he function of the [SWRCB] has steadily evolved from the narrow role of deciding priorities between competing appropriators to the charge of comprehensive planning and allocation of waters. The charge necessarily affects the board’s responsibility with respect to the public trust.47

Thus, the Mono Lake Cases affirmed the SWRCB’s duty to review and reopen LADWP’s existing water rights in the circumstance where the rights had plainly caused substantial harm to public trust uses. In 1940, the predecessor to the SWRCB granted LADWP’s permits without considering objections about potential harm to the creeks and the downstream lake.48 In 1983, applying the public trust doctrine as well as other statutes, the court concluded:
The state accordingly has the power to reconsider allocation decisions even though those decisions were made after due consideration of their effect on the public trust. The case for reconsidering a particular decision, however, is even stronger when the decision failed to weigh and consider public trust uses. In the case before us, the salient fact is that no responsible body has ever determined the impact of diverting the entire flow of the Mono Lake tributaries into the Los Angeles Aqueduct . . . . It is clear that some *177 responsible body ought to reconsider the allocation of the waters of the Mono Basin.49

C. Statutory Complaints
In 1985, CalTrout, Mono Lake Committee and the National Audubon Society filed further complaints claiming that LADWP’s licenses violated California Fish and Game Code sections 594650 and 5937.51 Section 5937 provides:
The owner of any dam shall allow sufficient water at all times to pass through a fishway, or in the absence of a fishway, allow sufficient water to pass over, around or through the dam, to keep in good condition any fish that may be planted or exist below the dam.52

The State Superior Court dismissed the complaints on the ground that the statutes did not apply to any diversion constructed before September 9, 1953, the effective date of Section 5946.53 Reversing on various grounds of statutory interpretation, the Court of Appeals remanded to the Superior Court for issuance of a writ instructing the SWRCB to amend LADWP’s licenses to include the required conditions.54 It subsequently provided that the Superior Court would exercise concurrent jurisdiction and require “interim releases of water” pending the formal amendment of the licenses.55
 
D. Interim Remedies
In 1989, the Superior Court issued a preliminary injunction requiring LADWP to release flows as necessary to restore and maintain the lake level at 6,377 feet MSL,56 or 4 feet higher than when the 1979 complaint was filed.57 In 1990 it issued a further injunction establishing minimum flow releases for protection of the tributary creeks.58 The injunctions effectively *178 halted all diversions.59 The Superior Court further required certain physical measures, including modification of the washed-out channel forms, and planting of trees, to jumpstart restoration.60 These injunctions stayed in effect until the SWRCB amended LADWP’s licenses in 1994.61
 
E. Permanent Remedies in Form of License Amendments
In 1990 the SWRCB amended LADWP’s licenses to include LADWP’s obligations under Sections 5937 and 5946 as “general conditions.”62 In 1993-1994, it undertook an evidentiary hearing to establish permanent remedies to these licenses in the form of amendments.63 Its final decision, Decision 1631,64 as amended by Order WR 98-07,65 includes several fundamental parts.
 
Mono Lake was to be restored to a level of 6,391 feet MSL, or nearly 20 feet above its low point.66 Diversion was prohibited until the lake rises to 6,377 feet MSL.67 Diversion thereafter was limited and calibrated, per hydrologic calculation, to achieve and maintain 6,391 feet MSL net of evaporation.68
 
LADWP was to release minimum flows, varying by month and year, for the protection of the tributary creeks.69 Such flows, once released, were not be rediverted and were to reach Mono Lake.70 In effect, the stricter of the first or second limitation on diversion applied at any given time.71
 
LADWP was to implement a Stream Restoration Plan and Waterfowl Restoration Plan,72 as approved by the SWRCB in Order WR 98-07.73 The *179 Stream Restoration Plan, for example, was to include physical measures to restore the channel form, planting of riparian vegetation, modifications of the diversion dams to bypass spawning gravels, exclusion of livestock from grazing in the riparian areas, and a plan for operations of the diversions.74 It also was to include performance standards for the impacts of these measures, including length, gradient, sinuosity of the channel form; size and age structure of trout fisheries; and acreage of riparian vegetation.75 Independent scientists, paid by LADWP but reporting to SWRCB, were to monitor progress towards these performance objectives and may recommend modifications in the restoration measures.76
 
Pursuant to the Water Code and public trust doctrine, the SWRCB has “continuing authority” to modify the license, including the requirements for restoration of Mono Lake and its tributary creeks.77
 
II. Strategic Lessons
The Mono Lake Cases are rightly known as a revolutionary development in water law.78 Subsequent cases, law review articles, treatises, and other symposia have exhaustively analyzed their history and fundamental holding that the State, as trustee to the people, has the authority to condition individual water rights to comply with the doctrine.79 This article asks the simple question: what lessons do the cases teach about effective exercise of that authority to restore and protect public trust waters?80
 
*180 A. An Ounce of Prevention is Worth a Pound of Cure
In the Mono Lake Cases, plaintiffs sought judicial remedies to modify LADWP’s existing licenses because they did not believe that the SWRCB would revisit its 1940 decision permitting LADWP to divert the entire flows of these tributary creeks. Indeed, the cases hold that a plaintiff may choose the forum, the State Superior Court or SWRCB, to seek to enforce the public trust doctrine and its statutory counterparts against existing water rights.81 However, the Mono Lake Cases teach a different practical lesson. The protection of public trust resources depends on the effectiveness of regulatory programs, subject to judicial intervention as a fail-safe mechanism. This is so for several reasons.
 
Enforcement of the public trust doctrine against an existing water right depends on the initiative and resources of the individual complainant, who has the burden of making a prima facie case that the right does not comply with the doctrine or other law.82 Evidence is subject to strict requirements of civil procedure. In the Mono Lake Cases, the plaintiffs spent several million dollars in fees and expenses for their attorneys and witnesses,83 and the evidentiary record exceeds twenty-five linear feet in a filing cabinet. Due to such expense, relatively few judicial cases have been brought under the public trust doctrine against existing water rights since 1983, notwithstanding the extraordinary precedent of the Mono Lake Cases.84
 
Any case enforcing the doctrine against an existing regulatory right may defeat the reasonable expectation and investment of the permittee, as LADWP’s vigorous defense and defeat against the public trust and statutory complaints in this matter shows. LADWP had made substantial capital investments for construction of diversion dams in the Mono Basin aqueducts.85 The complaints effectively requested it incur additional expense to secure a replacement supply either through conservation or other sources. LADWP was unwilling to volunteer to rescind or limit rights that it *181 had obtained properly from the SWRCB and then exercised in compliance with the specific permit and license terms.86
 
Finally, restoration of an aquatic resource, once degraded, is expensive. In the remedy phase of the Mono Lake Cases, including implementation of the SWRCB’s decision in City of Los Angeles,87 LADWP has spent many millions of dollars to redig the channels of the tributary creeks (where the form had been entirely lost during the period of unregulated diversion), replace gravel for trout spawning, replant riparian trees for shade and channel structure, and retrofit its diversions to comply with the minimum flow schedules and obligations to pass-through channel bedload.88
 
For all of these reasons, an ounce of prevention is worth a pound of cure in the protection of public trust resources. It is better to condition (or deny) a permit to protect public trust resources during the original proceeding on the application, than to seek a judicial remedy against the permit once the permittee has built a facility or otherwise acted in reliance. Consistent with that principle, since 1983 the SWRCB has adopted standard terms that are included in any new or amended water right.89 These require minimum release of flow below the point of diversion, and expressly reserve authority to reopen as necessary to protect the public trust.90
 
B. Manage the Commons, Not Just the Individual Shepherds
Waters are subject to the natural law known as the “tragedy of the commons.”91 This natural law involves a pasture used by multiple shepherds in the absence of effective regulation.92 Each shepherd has an incentive to maximize grazing until the commons is depleted, then move on.93 A case brought against one shepherd (say, a newcomer) may succeed but will not prevent the tragedy of the commons if the other shepherds continue to *182 overgraze. Accordingly, under the natural law all uses of a commons must be regulated in a fair and effective manner to assure the beneficial uses are sustainable.94
 
Plaintiffs brought the Mono Lake Case only against LADWP, which held rights permitting diversion of all flows from the two largest tributaries to Mono Lake, Rush and Lee Vining creeks. As an early defense LADWP interpleaded 117 other parties who held rights to divert from Mill Creek or at other locations tributary to Mono Lake.95 However, because LADWP’s diversions far exceeded the total of all other diversions as the primary cause for the decline in lake level, the cases proceeded without resolution as to the responsibilities of the other diverters. A single dominant diverter is a highly unusual circumstance. In a typical California watershed, different owners hold a large multitude of water rights for different uses. The rights vary in basis and priority but all directly affect the condition of public trust resources.
 
The effective application of the public trust doctrine in that typical circumstance should follow the lead of the 1884 Gold Run Ditch and Mining case, where the remedy extended to all miners whose discharge of mining spoils had impaired the navigability of the Sacramento River.96
As a navigable river, the Sacramento is a great public highway, in which the people of the State have paramount and controlling rights. These rights consist chiefly of a right of property in the soil, and a right to the use of the water flowing over it, for the purposes of transportation and commercial intercourse . . . . To make use of the banks of a river for dumping places . . . is an encroachment upon the soil of the latter, and an unauthorized invasion of the rights of the public to its navigation; and when such acts not only impair the navigation of a river, but at the same time affect the rights of an entire community or neighborhood, or any considerable number of persons, to the free use and enjoyment of their property, they constitute, however long continued, a public nuisance.97 While the miners had acted independently and separately, and while their individual actions may have been “slight” or “scarcely appreciable” or even remote from the river itself, the “common result” was impairment of *183 navigation.98 Accordingly, the miners were jointly and severally liable for the public nuisance, and subject to a “coordinate remedy . . . .”99

This lesson is easier to teach than to practice because administrative regulation of a public trust resource typically arises after many existing uses have occurred and the resource has been degraded. The resulting regulation usually applies to newcomers to prevent further degradation. Indeed, since the Mono Lake decisions, the SWRCB has applied the public trust doctrine in a localized manner. The board applies it when it receives new water right applications or when proceedings are necessary to comply with the federal Clean Water Act,100 Endangered Species Act,101 or other statutes.102 The SWRCB has not applied the doctrine to the vast majority of the 13,000 appropriative rights103 that it issued or perfected before 1983,104 or the more than 8,000 pre-1914 appropriative, riparian, and pueblo rights.105 The California Water Code Division 2,106 which implements the water rights system, includes no rule or procedure requiring periodic review of these rights for compliance with the public trust doctrine.107 As a result, the uses *184 continue to substantially impair the trust uses of thousands of public trust waters. Today, only 5% of appropriative water rights require minimum flow releases.108 With a handful of possible exceptions, pre-1914 appropriative, riparian, or pueblo rights do not expressly require such releases.109 Mostly due to such diversions and related blockages of fish passage, the State has lost more than 95% of its historic habitat for salmon and steelhead in the Central Valley.110
 
C. Results Matter Most
Most environmental permits are based on a paradigm established by the National Environmental Policy Act (NEPA).111 The paradigm requires the issuing authority to study a proposed project’s environmental impacts and consider alternatives.112 The authority then must pick the alternative that will achieve the project’s purpose while minimizing environmental impacts, and it must require implementation of mitigation measures and reporting thereof.113 This paradigm is not an effective strategy for sustainable public trust protection.
 
The NEPA regulatory paradigm assumes the pre-permitting study accurately predicts the actual impacts of the permit. It ignores the natural law of unintended consequences,114 which includes the reality that what we don’t know about cause and effect in the natural world far exceeds what we do know.115 The paradigm also tends to underestimate the cumulative impact *185 of multiple permits for a given resource. Indeed, a cumulative impact may exceed the predicted sum of the individual impacts if it crosses a critical threshold for the sustainability of a given commons.116
 
Furthermore, this conventional paradigm assumes the regulatory agency will adequately study a permit application’s foreseeable impacts and, if granted, proactively supervise its implementation. This assumption runs counter to the almost universal reality that the responsibilities of a regulatory agency exceed its budget, staff, and capacity. The SWRCB’s Division of Water Rights has fewer engineers and scientists than a generation ago, when its planning responsibilities were far more modest117 and the State’s population was roughly half the size it is today. Similarly, the State Lands Commission (which regulates public trust lands) has not mapped most of the submerged or tide lands, notwithstanding its obligation to do so pursuant to a 1970 statute.118 As a result, the commission does not have the record necessary to effectively regulate encroachments or other uses. The California Department of Fish and Game (CDFG), which also has fewer staff members than it did a generation ago, has brought only a handful of enforcement actions under the Fish and Game Code section 5937,119 the statutory counterpart to the public trust doctrine, nearly two decades after  *186 the Mono Lake Cases recognized that the statute applies to existing water rights to require releases of flows.120
 
Under the conventional regulatory paradigm, it is rare for a permit for public trust resource use to require actual achievement of a specified condition in the target resource, or adaptive management of the mitigation measures if a specified condition is not achieved. Monitoring is limited to the performance of required mitigation measures, such as the release of a minimum flow, rather than the actual results. A regulatory program for public trust resources may fail to achieve its stated intent as a result of the permits’ unanticipated direct and cumulative impacts.
 
The Mono Lake Cases teach a different paradigm of accountability for actual results.
 
In response to judicial holdings generally requiring lake restoration “so far as consistent with the public interest”121 and restoration of the “fisheries which existed” before LADWP began diversions,122 the SWRCB amended the licenses to specify the results of the restoration measures, such as the flow release schedules: a lake level of 6,391 feet MSL, and a trout fishery in good condition (expressed as an age-structure at the population level, abundance of large fish, and the quality and quantity of aquatic and riparian habitat.)123 LADWP monitors and semi-annually reports on progress toward these specific objectives.124 The licenses may be modified if the restoration measures do not timely achieve these actual conditions.125
 
These assurances will contribute to the effective management of public trust resources. The licenses require more than performance of restoration measures: they specify the actual results in terms of enhanced conditions of *187 the lake and tributary creeks.126 If the flow release schedule and related restoration measures prove to be inadequate to achieve these results, the measures will be modified, following a further hearing.127 This manages the risk that the environmental study and other evidence in the record of decision by the SWRCB in City of Los Angeles128 may have misestimated the habitat benefit of a given flow schedule. Further, the plaintiffs were willing to support LADWP’s resumption of diversions, and otherwise settle the cases, in exchange for the assurances of actual results in restoration.129 By contrast, under the conventional regulatory paradigm, the permitting agency and environmental stakeholders may rationally seek to overregulate a use, given the uncertainty of whether less restrictive measures will actually work.
 
Finally, this new paradigm relies on actual monitoring, not just predecisional predictions, to drive the protection of public trust resources. This reflects wisdom hard-won in the course of the cases. During the remedy phase, the parties were challenged to develop the record adequately enough to answer CalTrout II’s question: since LADWP must restore the pre-diversion fisheries, what was the condition of that resource more than 50 years ago? Very few official records, including CDFG’s records of planting trout in the 1930’s, still existed.130 The parties instead located contemporaneous eyewitness records.131 For example, CDFG’s warden in the Mono Basin at that time, Elden Vestal, had compiled daily records of the trout catches on these creeks.132 Entirely on his own initiative, Vestal kept carbon-copy records in his garage.133 More than 50 years later, he offered them to plaintiffs, who introduced them in response to LADWP’s evidence which purported to show that early irrigation diversions had substantially degraded the fisheries even before LADWP obtained its permits.134 Other local residents from that time had kept snapshots, letters, and business records related to the seasonal festivals and other events (including the annual migration of waterfowl), which drew anglers, boaters, hunters, and *188 many other tourists to Mono Lake.135 These surviving eyewitnesses’ oral testimony and contemporaneous records proved to be the best description of the historic conditions of these creeks, even though modern-day experts disagreed in their inferences.136
 
A regulatory program for public trust resources should anticipate that our successors will be faced with the same uncertainty. In 2057, they will ask: how has a given trust resource changed since 2007? Systematic monitoring and reporting, by permit and region, are essential to enable our successors to evaluate the actual impacts of development and correct errors in our understanding and management of individual permits.
 
D. Public Trust Management is a Joint Venture
The Mono Lake Cases are famous as a knock-down-drag-out fight to amend LADWP’s licenses to comply with the public trust doctrine.137 They were that, but they were also something much better. LADWP and the other parties, over time, came to view the cases as a joint venture to restore the public trust in Mono Lake while protecting an essential water supply for the Los Angeles Basin. For example, the Mono Lake Committee helped secure State funding to construct a wastewater reclamation facility and undertake conservation measures to substitute for the lost diversions.138 Beginning in 1991, the parties formed a Restoration Technical Committee to design and undertake early restoration of the creeks.139 In 1994 the parties did not appeal the SWRCB’s decision in City of Los Angeles,140 even though each had sought a somewhat different result in the remedy phase. In 1998 the parties reached a formal settlement141 which, as approved in the SWRCB’s Order 98-07, established accountability for actual restoration as discussed in Section II.C.142 Over the course of several decades, a community of federal, *189 state, and local politicians, non-party citizen groups, and individuals contributed in countless ways to the eventual resolution of these cases.143 Going forward, the parties will continue to cooperate with the independent scientists to track and evaluate the results of implementation of the restoration measures. While the details are book-length in color and complexity,144 the cases teach a simple lesson: any public trust is a commons best managed by consent and cooperation of the affected community, not just by regulation. Such cooperation depends on mutual interests in the resource, shared governance, and a fail-safe mechanism, just as a judicial remedy, in the event of a fatal dispute.145
 
III. CONCLUSION
The Mono Lake Cases offer hope that an affected community can achieve a sustainable balance between public and private benefits in the management of a commons. The cases teach that such hope depends on a regulatory program whose scope includes both new and existing uses, accountability of each permit to achieve desired results, and cooperation between permittees and other affected stakeholders. “If not us, who? If not now, when?”
 
Footnotes
	
a1
	Richard Roos-Collins is Director of Legal Services for the Natural Heritage Institute. Reach him at rrcollins@n-h-i.org. From 1991 through 1998, Mr. Roos-Collins was lead trial counsel for plaintiff California Trout (“CalTrout”) in the Mono Lake Cases. The author expresses appreciation for the comments received from participants at The University of South Carolina School of Law’s September 2006 symposium on “Bridging the Divide: Public and Private Interest in Coastal Marshes and Marsh Islands,” available at http:// www.law.sc.edu/elj/2006symposium/ (last visited Jan. 8, 2007).
	
1
	S.C. Code Ann. Regs. 30-12(N) (2006).
	
2
	Op. S.C. Att’y Gen., 2003 S.C. AG LEXIS 231 at *12 (Dec. 5, 2003).
	
3
	S.C. Code Ann. Regs. 30-12(N)(3)(b)-(e).
	
4
	Symposium, Bridging the Divide: Public and Private Interest in Coastal Marshes and Marsh Islands, 15 Southeastern Envtl. L.J. 1 (2006), available at http://www.law.sc.edu/elj/2006symposium/ (last visited Jan. 8, 2007).
	
5
	S.C. Code Ann. Regs. 30-12(N)(1)(a); Nancy Vinson, Evolution of Regulations for Bridges to Marsh Islands in South Carolina, 15 Southeastern Envtl. L.J. 19 (2006).
	
6
	Vinson, supra note 5.
	
7
	Id.
	
8
	Office of Ocean and Coastal Res. Mgmt., available at http:// www.scdhec.net/environment/ocrm/ (last visited Nov. 3, 2006).
	
9
	S.C. Code Ann. Regs. 30-12(N)(2)(a) (2006).
	
10
	See S.C. Coastal Conservation League v. Dep’t of Health and Envtl. Control, 610 S.E.2d 482 (S.C. 2005) (invalidating a prior form of small islands regulation by holding that the jurisdictional threshold, namely, a small island, was undefined).
	
11
	The cases consist of three judicial decisions: Nat’l Audubon Soc’y v. Superior Court, 658 P.2d 709 (Cal. 1983); Cal. Trout, Inc. v. State Water Res. Control Bd. (CalTrout I), 207 Cal. App. 3d 585 (Cal. Ct. App. 1989); and Cal. Trout, Inc. v. Superior Court (CalTrout II), 218 Cal. App. 3d 187 (Cal. Ct. App. 1990). The State Water Resources Control Board (SWRCB) decided two cases implementing these judicial mandates: City of Los Angeles, Cal. St. Wat. Res. Bd., 1994 WL 758358 (Sept. 28, 1994) and Los Angeles Dep’t. of Water and Power, Cal. St. Wat. Res. Bd. 1998 WL 832570 (Nov. 19, 1998).
	
12
	See Nat’l Audubon Soc’y, 658 P.2d 711.
	
13
	Id. at 719.
	
14
	See People v. Gold Run Ditch and Mining Co., 4 P. 1152 (Cal. 1884).
	
15
	See City of Berkeley v. Superior Court of Alameda County, 606 P.2d 362 (Cal. 1980).
	
16
	See People v. Monterey Fish Products Co., 234 P. 398 (Cal. 1925).
	
17
	In People of California v. Russ, 64 P. 111 (Cal. 1901), the California Supreme Court held diversion that impairs navigability may cause a public nuisance. There is no record that the water rights at issue were amended in response. See Nat’l Audubon Soc’y, 658 P.2d at 720-24.
	
18
	See Nat’l Audubon Soc’y, 658 P.2d at 724.
	
19
	Id. at 724-26.
	
20
	Id. at 712-13.
	
21
	CalTrout I, 207 Cal. App. 3d at 593.
	
22
	Nat’l Audubon Soc’y, 658 P.2d at 713.
	
23
	Id. at 729 n.30.
	
24
	Id.; Cal. Water Code §106 (Deering 2006).
	
25
	Nat’l Audubon Soc’y, 658 P.2d at 729 n.30.
	
26
	Id. at 714.
	
27
	City of Los Angeles, 1994 WL 758358 at *6-7.
	
28
	Nat’l Audubon Soc’y, 658 P.2d at 714.
	
29
	See City of Los Angeles v. Aitken, 52 P.2d 585 (Cal. Ct. App. 1935).
	
30
	Nat’l Audubon Soc’y, 658 P.2d at 714-17; City of Los Angeles, 1994 WL 758358, passim.
	
31
	Nat’l Audubon Soc’y, 658 P.2d at 715.
	
32
	Id. at 716.
	
33
	Id. at 717-18.
	
34
	Id. at 732-33.
	
35
	Id. at 732.
	
36
	Nat’l Audubon Soc’y, 658 P.2d at 727.
	
37
	Id.
	
38
	See id. at 727-28.
	
39
	Id. at 728 (internal citations omitted).
	
40
	Id. at 727.
	
41
	Id.
	
42
	Ill. Cent. R.R. Co. v. Illinois, 146 U.S. 387 (1892).
	
43
	Id. at 453 (emphasis added).
	
44
	Nat’l Audubon Soc’y, 658 P.2d at 728 (emphasis added).
	
45
	Id. at 724.
	
46
	Id. at 726.
	
47
	Id.
	
48
	Id. at 713-14.
	
49
	Id. at 728-29.
	
50
	This section requires “full compliance with Section 5937” for any water right in the district, which includes the Mono Basin. Cal. Fish & Game Code Ann. § 5946 (West 2006).
	
51
	CalTrout I, 207 Cal. App. 3d at 585.
	
52
	Cal. Fish & Game Code. Ann. § 5937 (West 2006).
	
53
	See Cal. Fish & Game Code Ann. § 5946 (West 2006) (stating the effective date of the statute).
	
54
	CalTrout I, 207 Cal. App. 3d at 632-33 n.10.
	
55
	CalTrout II, 218 Cal. App. 3d at 212.
	
56
	City of Los Angeles, 1994 WL 758358, at *5.
	
57
	Nat’l Audubon Soc’y, 658 P.2d at 714.
	
58
	City of Los Angeles, 1994 WL 758358, at *5.
	
59
	“In order to comply with the preliminary injunctions, the city has not exported any water from the Mono Basin since 1989 except for a small amount needed to conduct a fishery study on the upper Owens River.” Id.
	
60
	CalTrout II, 218 Cal. App. 3d at 204-05.
	
61
	See generally City of Los Angeles, 1994 WL 758358, at *9-10.
	
62
	“In accordance with the requirements of Fish and Game Code section 5946, this license is conditioned upon full compliance with section 5937 of the Fish and Game Code.” Id. at *5.
	
63
	Id. at *8-9.
	
64
	Id.
	
65
	Los Angeles Dep’t of Water and Power, 1998 WL 832570.
	
66
	City of Los Angeles, 1994 WL 758358.
	
67
	Id.
	
68
	Id.
	
69
	Id. at *120-21.
	
70
	Id. at *120.
	
71
	See id. at *120-21.
	
72
	Los Angeles Dep’t of Water and Power, 1998 WL 832570, at *1.
	
73
	Id. at *2-5.
	
74
	City of Los Angeles, 1994 WL 758358, at *124.
	
75
	Id.
	
76
	Id. at *126.
	
77
	Id.
	
78
	See, e.g . Craig A. Arnold, Working out an Environmental Ethic, 4 Wyo. L. Rev. 1 (2004).
	
79
	See id. at 3 (reporting that, as of 2004, the Mono Lake Cases have been cited in more than 100 cases throughout Western States, 20 treatises, and 400 law review articles). See generally Thomas J. Schoenbaum, Ronald H. Rosenberg, & Holly D. Doremus, Environmental Policy Law Problems, Cases, and Readings 289-98 (Foundation Press 4th ed. 2002), Michael C. Blumm & Thea Schwartz, Mono Lake and the Evolving Public Trust in Western Water, 37 Ariz. L. Rev. 701 (1995); Allan Kanner, The Public Trust Doctrine, Parens Patriae, and the Attorney General as the Guardian of the State’s Natural Resources, 16 Duke Envtl. L. & Pol’y F. 57 (2005); James Salzman, Valuing Ecosystem Services, 24 Ecology L.Q. 887 (1997).
	
80
	This article uses the term “public trust waters” to include not only navigable waters, but also non-navigable tributaries where diversions affect the trust uses of downstream navigable waters. The Mono Lake Cases hold that the doctrine applies fully to such diversions. See Nat’l Audubon Soc’y, 658 P.2d at 720.
	
81
	Id. at 431 n.11. See also CalTrout I, 207 Cal. App. 3d at 626-628 n.19.
	
82
	See generally Nat’l Audubon Soc’y, 658 P.2d 709.
	
83
	Interview with Jim Edmondson, Conservation Director, California Trout, and Geoff McQuilken, Co-Executive Director, Mono Lake Committee (Mar. 23, 2005) (applying the estimate to the private plaintiffs, Mono Lake Committee, and California Trout. The estimate does not include the litigation costs of public agencies which, over time, allied with these plaintiffs. These fees and expenses are eventually recovered from LADWP through awards).
	
84
	Id.
	
85
	Id.
	
86
	See Nat’l Audubon Soc’y, 658 P.2d 709. See also CalTrout I, 207 Cal. App. 3d 585; CalTrout II, 218 Cal. App. 3d 187.
	
87
	City of Los Angeles, 1994 WL 758358.
	
88
	TED Case Studies, The Los Angeles Aqueduct and the Owens and Mono Lakes (Mono Case), available at http://www.american.edu/ted/mono.htm (last visited Nov. 3, 2006).
	
89
	Cal. State Water Res. Control Bd., Standard Permit Term 12, available at http://www.waterboards.ca.gov/waterrights/WRInfo/permit-terms/MandatoryTerms.pdf (last visited Nov. 3, 2006).
	
90
	The SWRCB now includes in any permit or license a Standard Term reserving its authority to amend as necessary to protect the public trust. Id.
	
91
	Garrett Hardin, The Tragedy of the Commons, 162 Sci. 1243 (1968).
	
92
	Id.
	
93
	Id.
	
94
	See generally id.
	
95
	Nat’l Audubon Soc’y, 658 P.2d at 716.
	
96
	People v. Gold Run Ditch and Mining Co., 4 P. 1152 (Cal. 1884).
	
97
	Id. at 146-47.
	
98
	Id. at 150.
	
99
	Id.
	
100
	33 U.S.C. §§ 1251-1387 (2000).
	
101
	16 U.S.C. §§ 1531-1544 (2000).
	
102
	See, e.g., Greg Weber, Articulating the Public Trust: Text, Near-Text, and Context, 27 Ariz. St. L. J. 1155, 1211-12 (1995). The most significant application is the ongoing proceeding to adjust rights to comply with the 1995 San Francisco Bay-Delta Water Quality Control Plan. See id. at 1211-16.
	
103
	Interview with Andrew Sawyer, Assistant Legal Counsel, SWRCB (Feb. 16, 2005).
	
104
	No firm estimate of such reopener proceedings exists. The SWRCB does not directly track application of the public trust doctrine to existing appropriative rights that predate 1983. However, see Weber, supra note 102 for tracking based on LEXIS and Westlaw of such application since 1983.
	
105
	E-mail from John O’Hagan, Division of Water Rights, SWRCB, (Feb. 18, 2005) (on file with author) (estimating the appropriative rights). Pre-1914 appropriative rights exist under common law that predates the Water Code, as enacted in 1914; riparian rights exist by common law for uses adjacent to the stream which is the course of water. Pueblo rights arose before Statehood and continue pursuant to the Treaty of Guadalupe Hidalgo (Feb. 2, 1848), 9 Stat. 922. See William R. Atwater & James Markel, Overview of California Water Rights and Water Quality Law, 19 Pac. L.J. 957 (1988). The SWRCB does not have authority to amend or terminate pre-1914, riparian, and pueblo rights (which it did not issue). However, it may regulate their use for reasonable and beneficial use. See Cal. Water Code §§ 100, 275 (Deering 2006); see also SWRCB Order W 84-12 (1984), “Imperial Irrigation District Alleged Waste and Unreasonable Use of Water,” available at http:// www.waterrights.ca.gov/hearings/WaterRightOrders/WRO84-12.pdf (last visited Nov. 3, 2006).
	
106
	Cal. Water Code §§ 100-5976.
	
107
	Id.
	
108
	California Advisory Committee on Salmon and Steelhead Trout, Restoring the Balance 25 (1988), available at http:// www.fishlib.org/Documents/Subbasins/CACSST.pdf (last visited Nov. 11, 2006).
	
109
	Each pre-1914 appropriative right arose incident to local notice of the intended use, including amount to be diverted. Riparian and pueblo rights, which arise by operation of law (the former, incident to ownership of riparian lands; and the latter, as recognized in the 1848 Treaty of Guadalupe Hidalgo) permit diversions for reasonable and beneficial uses. None of these rights exists by regulatory permit. With the exception of the few rights confirmed by court decrees that address protection of environmental quality, riparian and pueblo rights do not expressly include conditions for such protection.
	
110
	California State Lands Commission, California’s Rivers: A Public Trust Report 27-28 (1993).
	
111
	42 U.S.C. §§ 4321-4347 (2006).
	
112
	Id. at § 4332.
	
113
	See id. at § 4332(C).
	
114
	Robert K. Merton, The Unanticipated Consequences of Purposive Social Action, 1 Am. Soc. Rev. 894, 895 (1936).
	
115
	“Determining the cumulative environmental consequences of an action requires delineating the cause-and-effect relationship between the multiple actions and the resources, ecosystems, and human communities of concern.” Council on Environmental Quality, Considering Cumulative Effects Under the National Environmental Policy Act at vi (1997), available at http:// www.nepa.gov/nepa/ccenepa/ccenepa.htm (last visited Nov. 11, 2006). What happens if we cannot delineate those relationships, or mistakenly think we can?
	
116
	Indeed, the plaintiffs in the Mono Lake Cases were motivated by their belief that Mono Lake was approaching a point of no return - a point where its degradation was irreversible.Plaintiffs predict that the lake’s steadily increasing salinity, if unchecked, will wreck havoc throughout the local food chain. They contend that the lake’s algae, and the brine shrimp and brine flies that feed on it, cannot survive the projected salinity increase. To support this assertion, plaintiffs point to a 50 percent reduction in the shrimp hatch for the spring of 1980 and a startling 95 percent reduction for the spring of 1981. These reductions affirm experimental evidence indicating that brine shrimp populations diminish as the salinity of the water surrounding them increases.Nat’l Audubon Soc’y, 658 P.2d at 715.
	
117
	Interview with Victoria Whitney, Chief, Division of Water Rights, SWRCB (Oct. 3, 2006).
	
118
	Cal. Pub. Res. Code § 6370 (Deering 2006).
	
119
	Trout Unlimited and the Peregrine Chapter of the National Audubon Society’s Petition for Timely and Effective Regulation of New Water Diversion in Central Coast Streams at PP 118-120, In the Matter of: (1) Application for Water Rights and Related Regulatory Approvals and (2) Unauthorized Diversions Affecting Steelhead and Coho Salmon Fisheries in Central Coast Streams in Marin, Sonoma, Napa, Mendocino, and Humbold Counties, Cal. St. Wat. Res. Bd. (Oct. 27, 2004).
	
120
	Twenty-eight years ago, the California Legislature found:
[T]he [Department of Fish and Game] has in the past not been properly funded. The principal cause has been the fixed nature of the department’s revenues in contrast to rising costs resulting from inflation. This lack of funding has prevented proper planning and manpower allocation. The lack of funding has required the department to restrict warden enforcement and to defer essential repairs to fish hatcheries and other facilities. The lack of secure funding for fish and wildlife activities other than sport and commercial fishing and hunting activities has resulted in inadequate nongame fish and wildlife protection programs.
Cal. Fish & Game Code § 710 (Deering 2006). Time has not changed that finding.
	
121
	Nat’l Audubon Soc’y, 658 P.2d at 728.
	
122
	CalTrout II, 218 Cal. App. 3d at 213.
	
123
	See City of Los Angeles, 1994 WL 758358, at *122-126.
	
124
	CalTrout II, 218 Cal. App. 3d at 126.
	
125
	City of Los Angeles, 1994 WL 758358, at *126.
	
126
	Id. at *119, 120, 123-4.
	
127
	Id. at *128.
	
128
	City of Los Angeles, 1994 WL 758358.
	
129
	CalTrout II, 218 Cal. App. 3d at 211-212.
	
130
	See, e.g., City of Los Angeles, 1994 WL 758358, at *12-13.
	
131
	See id.
	
132
	A Tribute to Elden Vestal 1914-1998, Mono Lake Newsletter, (Mono Lake Committee, Lee Vining, Cal.), 1999, available at http:// www.monolake.org/newsletter/99winter/tribute.htm (last visited Jan. 9, 2007).
	
133
	Id.
	
134
	Id.
	
135
	See, e.g., City of Los Angeles, 1994 WL 758358, at *12-13.
	
136
	For example, City of Los Angeles extensively quoted Mr. Vestal to describe the population structure of the fishery and the size of individual fish in the pre-diversion period. See id.
	
137
	Seth Mydans, City of Angels Makes Peace in Water Wars, N.Y. Times, Oct. 3, 1994, at A10 (describing the case as a “story of decades of water wars in which California’s thirsty south has sucked dry some of the lakes and rivers of the north”); see supra notes 78-79.
	
138
	Arnold, supra note 78, at 32-33.
	
139
	“Agreement on Rush and Lee Vining Creeks’ Restoration Programs,” approved by El Dorado Superior Court (1990) in Mono Lake Water Rights Cases (Coordinated Proceedings Nos. 2284 and 2288).
	
140
	City of Los Angeles,1994 WL 758358.
	
141
	Submitted in letter form (May 15, 1997 and Nov. 9 and 13, 1998), cited in Los Angeles Dep’t of Water and Power, 1998 WL 832570.
	
142
	Id.
	
143
	Arnold, supra note 78, at 39-44.
	
144
	See John Hart, Storm over Mono: The Mono Lake Battle and the California Water Future (Univ. of Cal. 1996).
	
145
	See Hydropower Reform Coalition, Citizens’ Guide to Effective Participation in Hydropower Regulation at 111-14 (2004), available at http:// www.hydroreform.org/hydroguide/citizen-toolkit-for-effective-participation (last visited Nov. 3, 2006) (discussing how to structure such a collaborative effort in the management of an aquatic resource, to survive and succeed over the course of a generation).

15 SEENVLJ 171
End of Document
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