Ralph W. Johnson, Public Trust Protection for Stream Flows and Lake Levels, 14 U.C. Davis L. Rev. 233 (1980), https://digitalcommons.law.uw.edu/faculty-articles/470
U.C. Davis Law Review
public trust doctrine
The public trust doctrine and the appropriative water rights system are headed on a collision course in the West. Appropriators claim vested property rights to extract water for irrigation, mining, manufacturing and other uses. They further assert that under the appropriation doctrine such extractions can continue in perpetuity regardless of the consequences to navigation, fishery and other public values. The public, however, increasingly insists on more protection for environmental and ecological values, aesthetic quality and recreational opportunities, which on lakes and streams usually means leaving waters in place. As a result, the courts are being asked to apply legal doctrines that will place limits on these water extractions. One such doctrine, flexible enough to consider and draw a fair balance between these contending forces, is the public trust doctrine. This article explores the use of the public trust doctrine for this purpose. This article outlines the scope of the public trust and appropriation doctrines. It reviews the leading cases expressly and impliedly dealing with the points of contact and conflict between the two doctrines in order to construct a doctrinal framework within which to analyze cases such as Mono Lake. Finally, it uses this framework to predict how a court might approach such issues and cases in the future.