Breana Inoshita and Austin Cho are attorneys at Downey Brand LLP. They can be reached at binoshita@downeybrand.com and acho@downeybrand.com respectively.

California courts have long recognized the state’s duty to protect its tidelands, navigable waterways, and submerged lands (i.e., the land below the high tideline) under the common law public trust doctrine. However, California’s public trust doctrine has operated more as a background principle, than an independent force of law for most of its history — even after the seminal National Audubon Society v. Superior Court.

That changed in 2018 after the Third District Court of Appeal ruled in Environmental Law Foundation v. State Water Resources Control Board (ELF). That court held for the first time that counties must consider the public trust doctrine when issuing permits for groundwater wells where pumping could indirectly affect hydrologically connected surface waters.

In the months that followed, Western City predicted the decision would open the door to new litigation and that the expanded doctrine would be used to challenge any number of local government decisions that have the potential to directly or indirectly affect public trust uses or values. Since then, a new crop of related lawsuits has arisen.

The expansion of the public trust doctrine

With roots dating back to sixth-century Roman law, the public trust doctrine provides that the state holds natural resources like submerged tidelands in trust. In other words, these lands are reserved for public use. When the state takes an action or decision that affects those lands, it must determine whether the proposed use is consistent with the public trust doctrine and make findings to that effect.

The state can approve uses for non-trust purposes if trust resources and uses are feasibly preserved. Cities and counties may have this duty as well, to the extent they are considered political subdivisions of the state or administer tide and submerged lands pursuant to legislative grants. 

In California, public trust purposes were traditionally confined to navigation, commerce, and fisheries. This was later extended to include recreation and preservation of trust lands in their natural state. The California Supreme Court held in National Audubon that the State Water Board’s affirmative duty to consider and protect the public trust goes beyond the direct management of its navigable waterways to include the administration of water rights to non-navigable tributaries that can affect trust resources.

The court also affirmed the public’s right to bring actions that enforce the public trust doctrine whenever public agencies fail to complete their duties. The ELF decision extended National Audubon to the administration of groundwater well permits by counties in cases where pumping indirectly reduces surface flows that are protected by public trust. This raised the question of what other local decisions might also be subject to challenge under an expanded public trust doctrine.  

Recent public trust cases

In the five years since ELF, the courts have seen a growing number of cases alleging that cities, counties, or other trustee agencies failed to consider the indirect impacts of their decisions on the public trust uses or values. These cases have included challenges to certain land developments, as well as administration of surface and ground waters. Thus far, no court has clearly delineated what indirect effects trigger an agency’s duty to consider and protect the public trust when administering non-trust resources.

In North Coast Rivers Alliance v. City of Richmond (Contra Costa Superior Court, Case No. MSN20-1528), plaintiffs alleged that the city’s approvals of a proposed shoreline development violated the public trust doctrine because the contemplated recreational, kayaking, and fishing uses could adversely affect trust resources. Plaintiffs also claimed that the development would impede natural sea level rise and the migration of eelgrass beds critical to the San Francisco Bay ecosystem.

The city contended no further trust analysis was required because the properties would not be used for non-trust purposes. The trial court ruled in the city’s favor, finding in part that plaintiffs had failed to exhaust key claims under the public trust. The case is now on appeal, though the public trust claims have been abandoned.

In Water Audit CA v. County of Napa (Napa Superior Court, Case No. 21CV000784), plaintiffs sued the county under the public trust doctrine, alleging negligent breach of duty because the county did not account for or mitigate the impacts of groundwater extraction on surface flows. The county opposed the action on the established grounds that the public trust doctrine does not require any particular outcome, even when an action may adversely affect a trust resource. The case was ultimately dismissed.

In California Coastkeeper v. County of Sonoma (Sonoma Superior Court, Case No. SCV-268718), the plaintiff tried to halt the issuance of groundwater well permits until the county adopted a program to consider and protect trust resources in the Russian River. In 2022, the county initiated changes to its permitting process and imposed a moratorium on well permitting, allowing the parties to settle and dismiss the case. The county later adopted an ordinance with new measures for administering groundwater wells that incorporated public trust considerations.

Finally, in 2023, an environmental organization in Bring Back the Kern v. City of Bakersfield (Kern Superior Court, Case No. BCV-22-103220) alleged the city violated its trust duties by assuming ownership of diversion rights and diversion structures that dewater certain parts of the Kern River. The city moved to dismiss the case via a demurrer, arguing the way it administers the public trust is not subject to intervention by the courts. As of the date of this article, the demurrer is still pending. 

What’s next for California’s public trust doctrine?

The public trust doctrine was once limited to the state’s management of its shores, navigable waterways, and submerged lands, but has since extended to other governmental decisions. The cases referenced here are but a handful of recently pending cases across California, suggesting that the ELF decision has indeed opened the door to new litigation based on the public trust doctrine.

The overall success of these lawsuits has yet to be determined, but as public agencies make decisions that might indirectly affect public trust uses and values, they should be aware of their concomitant trust duties. In the face of climate change and the threat of recurring drought, the public trust doctrine is certain to impact land use and natural resource decisions for years to come.