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Public Trust Doctrine
The public trust doctrine has emerged as another challenge to development and infrastructure projects that involve State of California lands, water, or resources (e.g. wildlife, coastal, and mineral resources). Agencies acting as trustees are imposing stricter review and public and private project proponents face more litigation challenging projects and activities that allegedly may cause harm to public trust uses or resources.
Downey Brand attorneys are at the forefront of public trust doctrine litigation. Our attorneys also regularly assist public agencies and private applicants as they seek to secure water rights, obtain leases, resolve title and boundary issues, or secure and administer granted trust lands. We also help clients address the risks associated with activities that may adversely affect trust lands, waters, or resources.
The common law public trust doctrine in California has long played an important role in protecting navigable waters and waterfronts for purposes consistent with the trust—commerce, navigation, fisheries, recreation, and conservation. The doctrine was extended substantially in 1983 by the California Supreme Court in National Audubon v. Superior Court, which for the first time limited the ability of the State to authorize surface water diversions without considering the public trust and protecting trust resources whenever “feasible.” In the land use context, the doctrine often arises when there are questions about the extent of public trust lands at a particular site, the allowable land uses for lands subject to the trust, or when the state has entered into a boundary line or exchange agreement to resolve trust land boundary issues.
Downey Brand attorneys work with clients in many different matters impacted by the public trust doctrine, including:
- Advising public agencies and private applicants on the risks and trust duties associated with possible adverse effects of those activities on public trust lands, waters, and resources.
- Assisting private companies, landowners, and public agencies with obtaining and renewing leases with the State Lands Commission for a variety of uses.
- Assisting cities and ports with the management of existing trust lands granted by the State Legislature and in obtaining grants of additional trust lands.
- Representing landowners in negotiations of trust termination or exchange agreements with the State Lands Commission to remove public trust easements from privately owned lands.
Selected Experience
- San Francisco Baykeeper, Inc. v. California State Lands Commission, 29 Cal.App.5th 562 (2018). Represented leaseholder in action under public trust doctrine challenging sand mining on tide and submerged lands within San Francisco Bay. Court upheld finding by State Lands Commission that mining leases will not impair trust uses or values.
- Monterey Coastkeeper v. Monterey County Water Resources Agency, 18 Cal.App.5th 1 (2017). Successfully defended against allegations that county agency had failed in its fiduciary duties under the public trust doctrine in management of flood control and stormwater facilities.
- Environmental Law Foundation v. State Water Resources Control Board, 26 Cal.App.5th 844 (2016). On behalf of amici curiae League of California Cities, California Station Association of Counties, and California Association of Sanitation Agencies, supported appeal of ruling that the public trust doctrine requires counties, as subdivisions of the State, to consider the trust before authorizing any activity that may allegedly affect trust resources in navigable waters.
Selected Litigation
- San Francisco Baykeeper, Inc. v. California State Lands Commission, 29 Cal.App.5th 562 (2018). Represented leaseholder in action under public trust doctrine challenging sand mining on tide and submerged lands within San Francisco Bay. Court upheld finding by State Lands Commission that mining leases will not impair trust uses or values.
- Environmental Law Foundation v. State Water Resources Control Board, 26 Cal.App.5th 844 (2016). On behalf of amici curiae League of California Cities, California Station Association of Counties, and California Association of Sanitation Agencies, supported appeal of ruling that the public trust doctrine requires counties, as subdivisions of the State, to consider the trust before authorizing any activity that may allegedly affect trust resources in navigable waters.
- Monterey Coastkeeper v. Monterey County Water Resources Agency, 18 Cal.App.5th 1 (2017). Successfully defended against allegations that county agency had failed in its fiduciary duties under the public trust doctrine in management of flood control and stormwater facilities.
- Atherton Cove Property Owners Association v. San Joaquin Area Flood Control Agency, San Joaquin Co. Sup. Ct. (2017). At trial, successfully defended challenge to multi-million dollar flood control facility brought under CEQA and grants of sovereign lands under the public trust doctrine.
- San Francisco Baykeeper, Inc. v. California State Lands Commission, 242 Cal.App.4th 202 (2015). Represented leaseholders in action challenging EIR for sand mining operations in San Francisco and Suisun Bays under CEQA and common law public trust doctrine.
- Santa Teresa Citizens Action Group v. City of San Jose, 114 Cal.App.4th 689 (2003). Defense against suit challenging construction of a pipeline for delivery of reclaimed water to a new energy facility brought by a private water company. Held that public trust doctrine has no direct application to groundwater.
Selected Experience
- San Francisco Bay Sand Mining, San Francisco, Solano, and Contra Costa Counties. Counseled clients on lease renewals for mining construction-grade sand from San Francisco and Suisun Bays. Advised on completion of EIR and helped negotiate and secure lease renewals from the California State Lands Commission and permits and regulatory approvals from a host of wildlife and regulatory agencies.
- Title Settlement and Trust Termination Agreement, Sonoma County. Assisting private developer with negotiation of Title Settlement and Trust Termination Agreement with California State Lands Commission to settle dispute regarding the extent, nature, and location of the State’s interests in the property.
- Water and Land Management, Inyo County. Advised water and power agency on amendments of leases to lands owned and administered by the California State Lands Commission.
- Management of Granted Trust Lands. Counseled trustee agency with respect to management of existing granted trust lands and process for obtaining additional grants of trust lands from the State Legislature.
- Base Closure and Reuse, Cities of Vallejo, Alameda, and San Diego. Represented the cities of Vallejo and San Diego and later the developer at Alameda in negotiations with California State Lands Commission on closure and reuse of former naval facilities and settlement of the state’s title claims.
David R. E. Aladjem
David R. E. Aladjem
Retired
David Aladjem helps clients throughout California manage and resolve water resources management problems, especially those at the intersection of water rights, endangered species, and CEQA/NEPA.
Sacramento 916.520.5361
Retired
Sacramento 916.520.5361
Nicole E. Granquist
Partner
Sacramento 916.520.5369
Christian L. Marsh
Christian L. Marsh
Partner / Executive Committee Member
Public agencies and private companies turn to Christian Marsh for advice on regulatory and land use entitlement issues governing real estate developments, ground and surface water supply projects, renewable and non-renewable energy facilities, mining operations and processing plants, and port and waterfront developments.
San Francisco 415.848.4830
Partner
San Francisco 415.848.4830
Announcements
1 related itemsIn the News
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May 2-3, 2019County Administration of Groundwater Under CEQA, the Public Trust Doctrine and SGMA – ELF v. SWRCB and POWER v. Stanislaus County
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November 27, 20182018 ACWA Legal Briefing & CLE Workshop Presented by Downey Brand LLP
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November 15, 2018The Future of the Public Trust Doctrine in California
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May 9-12, 2017Public Trust Implementation on Water Rights: Mono Lake and Beyond
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Legal Alerts
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September 7, 2018Third Appellate District Extends Public Trust Doctrine to Groundwater, Finding That Counties Have a Duty to Administer the Trust in Issuing Ministerial Well Permits
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July 21, 2014Sacramento Trial Court Extends the Public Trust Doctrine to Limit Groundwater Extraction
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Publications
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June 1, 2023Litigation is Taking California’s Public Trust Doctrine From the Waterfront to the Forefront
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February 1, 2019California’s Public Trust Doctrine Draws Attention in the Courts
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September 24, 2018Appellate Ruling Extends Public Trust Doctrine to Groundwater
The Daily Transcript -
April 2018There is No Free Lunch: The Endangered Species Act, The Public Trust Doctrine and The Takings Clause
Best Paper Award, ABA 36th Annual Water Law Conference -
Summer 2010The Public Trust Doctrine: New Frontiers for Sustainable Water Resources Management
ABA Natural Resources & Environment, Vol. 25, No. 1 -
July 2001Is Water Ripe for the Taking? The SWRCB’s Lower Yuba River Decision and the Public Trust Doctrine
California Water Law & Policy Reporter