The public trust in water rights
Part three of a three-part series
by Cat Urbigkit

On June 24, at its meeting in Lusk, the Wyoming Game and Fish Commission is slated to decide whether WG&F Department publications will continue to refer to and advocate the use of the public trust doctrine. The issue came about as a result of the commission's review of the department's instream flow five-year plan, which advocated a need to change "the legal component" of Wyoming's instream flow program through the use of the public trust doctrine.

The department's Instream Flow Program programmatic review and five-year plan, written by the fish division's Thomas Annear and Paul Dey, lays out the agency's intent, including expanding the instream flow program staff and funding.

"Neither the state constitution nor any statute formally acknowledges the State's responsibility to manage fisheries and wildlife as a public trust," the plan stated. "The Public Trust Doctrine (PTD) is in fact the legal basis for all States' stewardship role in managing water, fish and wildlife resources for the good of all the public."

The plan continued: "Although the PTD has seldom been acknowledged in Wyoming and many other states, it is the basis for the State's authority over public resources that cannot be abrogated or given away and is a potential tool for supplementing the state's natural resource management authority. While omission from state statute does not diminish the State's responsibility, its formal acknowledgement in statute or the constitution could help affirm the state's trustee role over fish and wildlife resources."

Management of instream flows under the public trust doctrine is the first component of an effective instream flow program, according to WG&F, and this involves two elements.

"First, it asserts a responsibility to actively manage all streams with the jurisdiction of the state or province (not just those with the best fisheries). Additionally, it establishes the goal for agencies to pursue water-management strategies and actions that move stream form and function toward their natural condition in any increment whenever possible - realizing that some streams will never be restored to a fully natural condition."

The plan continued, "The WG&F mission statement and strategic plan broadly establish the department's responsibility to manage wildlife resources, but stop short of acknowledging their obligation to manage all streams so they can maintain or achieve their natural ecological function."

According to the WG&F plan, the International Instream Flow Council "considers recognition of public trust principles in agency policies an important institutional need because it may help affirm the legitimacy of agencies for resource stewardship in some situations. ... Even though the department generally abides by its trust responsibilities and authority, recognition of these facts as formal policy could enhance our ability to assert and remain committed to our legitimate fishery and wildlife stewardship authority in some situations."

Some members of the public are concerned that the state wildlife agency would openly advocate advancing the public trust doctrine because of the threat it may pose to private property rights and to existing water rights.

The Washington State University's Center for Environmental Education predicted that PTD may become the most important citizen tool to protect rivers from water developments and users, especially in states with no established minimum instream flows. Environmentalists can use the doctrine to challenge agency decisions and force agencies to choose more environmentally benign alternatives or forego projects.

According to the center, "Its general premise is that a state's natural resources are held in the public trust and even senior, appropriated water users do not have the right to destroy the public's natural resources."

The most significant feature of PTD, according to the center, "is that it can override prior water rights. This means that harmful senior water users can be denied rights in the public trust."

In other words, the public trust doctrine can be used to force minimal instream flows, even where official instream flows have not been designated.

Former National Wildlife Federation attorney Susan Morath Horner had an article dealing with the PTD in the University of Wyoming's Land and Water Law Review in 2000. She noted that the doctrine recognizes state wildlife agencies have not just the right to manage wildlife, but also have affirmative duties for those resources.

"The standard of care owed by the trustee to the trust beneficiaries is the highest law," Horner wrote.

Horner called for a "statutory or constitutional refashioning of our system of wildlife management, and resource decision-making in general, so that when agency officials take action they are more apt to consider and fulfill their public trust obligations.

"The trust is an enormously flexible vehicle," Horner wrote. "It can be tailored to respond to virtually any given set of circumstances, yet always remains subject to prevailing themes of conduct that are at the heart of the trust relationship."

There is plenty of case law dealing with PTD and water to consider. As Deputy California Attorney General Jan Stevens stated: "Because water is such a central fact to our existence, it is no wonder that the public trust doctrine has been so closely associated with it. In the myths of our creation, water came first."

In what has become known as the Mono Lake decision, the California Supreme Court held that the PTD protects navigable waters from harm caused by diversions of nonnavigable tributaries, while acknowledging that ecological, recreational and conservation values were protected by the doctrine.

Arizona University Professor Joe Feller said the court held the PTD "is an inherent limitation on water rights." Feller said the Mono Lake case established that "the state has the power and duty to re-examine old water rights that were initially granted without consideration of the public trust, and to modify those rights if necessary, to protect trust values."

Also in California, the doctrine was used as justification to prohibit dams on private waters if the dams would obstruct navigable waters.

The North Dakota Supreme Court has interpreted the doctrine to require the application of public trust principles to the allocation of water permits.

In Wyoming, the Day v. Armstrong decision issued by the Wyoming Supreme Court in 1961 assessed a constitutional provision declaring water to be the property of the state, and the result was the interpretation that this provision creates a public right to navigate.

Even the U.S. Fish and Wildlife Service has a division that addresses water issues, called the Water Resources Division. According to the division's website, "It is the service's policy to comply with state laws, regulations and procedures in obtaining and protecting water rights, both for service facilities and for trust fish and wildlife resources on lands not owned by the United States, except where application of state statutes and regulations does not permit federal purposes to be achieved."

The website notes that the doctrine has been used in Montana to assure stream access to the public.

Stevens wrote in the Winter 1980 University of California Davis Law Review that "It appears that today we are in a roundabout way returning to the Roman concept of public rivers and lakes."

Stevens wrote that recognized public trust uses have been expanding, from recreational boating and ecological preservation. "And public trust concepts have begun to merge with uses of the police power for the preservation of the marshlands and wetlands adjacent to the tidelands themselves- areas just as important to the health and integrity of a water environment."

A California Supreme Court case noted: "The public uses to which tidelands are subject are sufficiently flexible to encompass changing public needs ... There is a growing public recognition that one of the most important uses of tidelands-a use encompassed within the tidelands trust- is preservation of these lands in their natural state, so that they may serve as ecological units for scientific study, for open space, and as environments which provide food and habitat for birds and marine life, and which favorably affect the scenery and climate of the area."

Stevens concluded, "Thus, the enumeration of public trust uses has expanded and contracted to meet modern necessities."

Stevens maintains that the public trust actually requires the balancing of competing interests. "Substantial controversy still exists over the reconciliation (or lack thereof) of appropriations of water for admittedly beneficial domestic uses with demands for that same water for the maintenance of lake levels necessary for the maintenance of wildlife and certain shoreline uses," Stevens wrote. "Balancing is required, since the trust doctrine cannot be expected to maintain the status quo forever."

Jonathan Adler of the Competitive Enterprise Institute notes that in some areas of the West, instream flows are at issue. The Oregon Water Trust purchases water rights from willing sellers to ensure water is left in the stream for salmon, but other groups are asserting that this isn't the tact to take, he said. Instead, some are asserting a public trust in this water on behalf of the salmon and that this should be a higher right. This argument is in effect destabilizing the water rights and the ability of the water trust to conduct its business.

Melissa Kwaterski Scanlan wrote in a 2000 Ecology Law Quarterly that with use of the PTD in Wisconsin, "What began as a duty to promote navigation and fishing has evolved into a duty to protect and preserve Wisconsin's waters for recreation and scenic beauty."

Scanlan also noted that the PTD "allows the state to revoke the use rights of riparian owners at any time. ... When these riparian rights conflict with public rights that are protected by the public trust, the riparian rights are secondary."

It's this ever-changing character of the PTD that causes so much concern. What began as an issue addressing navigable waters has been expanded over the years to protect entire waterways, ecosystems near rivers, private lands, historic battlefields, a downtown area, state lands and even wildlife. It's apparent this expansion of the doctrine hasn't met and end.

A California Law Review article by Professor Christopher Stone proposed that natural objects ought to be given legal standing: "In other words, we should recognize rivers, forests, and wildlife as having rights."

Yes, someday even trees may have legal standing to sue.

Former WG&F Commissioner Les Henderson sends a cautionary note to existing commissioners: "It is important to realize that the public trust doctrine is not some far out concept that stands no chance of being implemented into Wyoming law.

"Central to this doctrine is the concept that no one can really own land or other resources," Henderson said. "Individuals are only allowed to use them for a while. Since under this doctrine, no one can really own land or other resources, when the government decides it needs land or other resources it is not necessary to compensate the person using these resources, because under the public trust doctrine, he never owned them in the first place.

"Another approach to the implementation of the public trust doctrine is the concept that wildlife is held by the state in the capacity of trustee under the public trust," Henderson said. "Therefore, any ground occupied by wildlife must be managed for the benefit of the wildlife."