Wednesday, April 25, 2012

After Mono Lake

Like almost all environmental law students, my legal education included reading National Audubon Society v. Superior Court of Alpine County, 658 P.2d 709 (1983), better known as the Mono Lake Case.  The decision seemed iconic, and not just because I was taking trips to the Sierra Nevada as often as I could.  It reads like an epic, and for years environmental lawyers and activists have treated the decision as a turning point in the history of western water law.

Then I went into practice.  For four years, I wor Hudson's mono lake photoked on some of California’s biggest water controversies, and the Mono Lake decision and the public trust doctrine were almost nowhere to be found.  Though I worked with environmental groups committed to increasing environmental protection of California’s water resources, we almost always grounded our arguments in statutory environmental law.  I can only think of one time that I even tried to use the Mono Lake case in a brief.  We lost, 7-0.  I did see a few other attorneys raise public trust claims in freshwater cases, but usually as a sort of add-on hail mary claim, almost like the boilerplate laches and statute of limitations defenses that defendants often include in their answers.  Those claims never prevailed.

So two years ago, when I was invited to participate in UC Davis Law Review’s symposium on the public trust doctrine, I decided to research questions that had bugged me ever since I began practicing.  Was my experience anamolous?  And how much, outside of the Mono Lake basin, did the Mono Lake Case really matter?  The results of that inquiry are available here, and the full symposium issue is here.  My conclusion, in a nutshell, is that in California (and outside of the Mono Lake basin, where the decision did matter quite a lot), there’s little documentary evidence supporting the Mono Lake case's reputation as a transformative event.

That conclusion comes with a whole host of caveats.  First, it shouldn’t diminish the importance of what the Mono Lake plaintiffs achieved.  To restore even one waterway can be a lifetime’s work, at least if you’re remarkably resourceful, persistent, and perhaps a little lucky.  Otherwise it can take much longer, or not happen at all.  Second, there’s an intriguing contrast between my research, which suggests that California’s public trust doctrine holds relatively minor importance for California water law, and Michael Blumm and Rachel Guthrie’s contribution to the same symposium issue.  They found that courts across the world have cited the Mono Lake decision, often in support bold decisions restraining environmentally destructive practices.  I’m not sure exactly what to make of that contrast, but maybe the Mono Lake decision offers an inspiring precedent where an environmentally progressive judiciary finds itself at odds with weak or corrupt legislative and executive branch institutions, but exerts less force where legislative and administrative systems are relatively mature.  Third, I did not explore whether the Mono Lake decision might have broadly changed perceptions or environmental outcomes in ways that escaped documentation.  Though this seems implausible to me, perhaps the decision shifted the paradigms of California water law while generating relatively little written evidence of that influence.

But even with those caveats, I think the research provides a cautionary tale for scholars and activists—and there are many—who would lean heavily on the public trust doctrine as a core instrument of environmental protection.  If there is slim evidence of such influence on California water resource management, why should we expect dramatic change somewhere else?

- Dave Owen

(photo courtesy of Hudson Henry (www.hudsonhenry.com))

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