1. The Public Trust Doctrine, Groundwater & the Scott River Litigation
Developments in the Public Trust
Lewis & Clark Law School
April 10, 2015
Richard Frank

2. National Audubon Society v. Superior Court, 33 Cal
National Audubon Society v. Superior Court, 33 Cal.3d 419 (California Supreme Court 1983)

3. The Public Trust & Groundwater
Judicial developments
Legislative developments

4. The Public Trust & Groundwater: Judicial Developments

5. In re Water Use Permit Applications (“Waiahole Ditch” Decision) 9 P
In re Water Use Permit Applications (“Waiahole Ditch” Decision) 9 P.3d 409 (Haw. 2000)

6. Robinson Township v. Commonwealth of Pennsylvania, 3 A. 3d 901 (Pa

7. City of Clifton v. Passaic Valley Water Commission 539 A. 2d 760 (N. J
City of Clifton v. Passaic Valley Water Commission 539 A.2d 760 (N.J. Super. 1987)
Passaic Falls, NJ

8. In re Omya Solid Waste Facility Final Certification (Vt
In re Omya Solid Waste Facility Final Certification (Vt. Superior Court) [2011 WL ]

9. Postema v. Pollution Control Hearings Bd. , 142 Wash. 2d 68 (Wash
Postema v. Pollution Control Hearings Bd., 142 Wash. 2d 68 (Wash. Supreme Ct. 2000)

10. The Public Trust & Groundwater: Legislative Developments
Vermont: Vermont Ann. Statutes, Title 10 §1390(5)
New Hampshire: N.H. Rev. State. § 481:1

11. The Scott River Litigation

12. Siskiyou County

13. Klamath & Scott Rivers

14. Scott River

15. Scott River, then…

16. …and now

17. Environmental Law Foundation v. State Water Resources Control Bd
Environmental Law Foundation v. State Water Resources Control Bd. (Sacramento County Superior Court)
Filed in June 2010
Petitioners: Environmental Law Foundation; Pacific Coast Federation of Fishermen’s Associations; Institute for Fisheries Resources
Respondents: Siskiyou County; State Water Resources Control Board

18. Key Factual Claims: Scott River is a navigable waterway
Established hydrologic connection exists between surface flow & groundwater in Scott River Valley
Scott River has experienced dramatically reduced flows in recent years due to expanded & unregulated groundwater pumping in Valley; resulting impacts include:
Harm/destruction of migratory salmon in Scott River
Harm/elimination of public recreational opportunities on Scott River

19. Key Legal Claims:
SWRCB & County have authority under public trust to protect trust resources of Scott River region
Both agencies have disclaimed authority or obligation to do so (re: groundwater pumping affecting Scott River surface flows)
Court should issue order requiring Scott Valley groundwater to be managed consistent w/public trust doctrine, given deleterious impacts of groundwater pumping on Scott River flows
County should be barred from issuing groundwater drilling permits in the meantime

20. Major Case Developments To Date
County sought to change case venue to Siskiyou County—unsuccessful, but took 2 years
SWRCB switched sides! (now agrees w/petitioners)
Sacramento Superior Court ruled for petitioners:
Public trust applies to hydrologically connected groundwater
Public trust doctrine applies to Scott River groundwater insofar as groundwater affects surface river flows
Trust protects fishing, boating, fish habitat, eco study
County has affirmative obligations under trust doctrine

21. Major Case Developments—cont.
Siskiyou County sought direct review by California Supreme Court; Court declined to take jurisdiction; case remains in trial court
County sought rehearing, based on California Legislature’s 2014 passage of Sustainable Groundwater Management Act; Court denied rehearing in March 2015

22. Cf. Lake Beulah Mgmt. Dist. v. Wis. Dep’t of Natural Res. , 799 N. W
Cf. Lake Beulah Mgmt. Dist. v. Wis. Dep’t of Natural Res., 799 N.W.2d 73 (Wis. 2011)
Held: State officials have public trust- based duty to consider environmental impact of groundwater well on navigable waters of state

23. California’s Unprecedented Drought, Its 2014 Groundwater Legislation

24. Questions? Richard Frank Professor of Environmental Practice
Director, California Environmental Law & Policy Center
(530)