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National Audubon Society v. DWP Case At the beginning of the 20th century, the city of Los Angeles, which lies south of Mono Lake, began to undergo huge growth. As a result, the city needed some sources of water to ensure its stability. Around 1905, an officer of the Los Angeles Department of Water and Power (LADWP), Fred Eaton, began to buy land in the Sierra region. The first place tapped waters was the Owens’ Valley. The Owens’ River was used until 1919, and when the Owens’ River Valley began to dry up, Los Angeles was interested in the Mono Basin area. In the 1930s, Los Angeles went to court to buy land, and finally purchased 30,000 acres of land in the basin. Over the next decade, Los Angeles took water from creeks and streams in the area and damaged the environment. In 1919, Mono had a height of 6,428 feet above sea level. In 1955, the level of the lake was reduced to 6,405 and continued to fall. The decrease in volume of the lake increased its salinity which destroyed the local food chain. In 1980, there was a fifty percent reduction in the shrimp hatch. By the spring of 1981, this reduction reached ninety five percent. As the level of Mono Lake dropped, an island became a peninsula, and this gave coyotes access to the nesting places of birds, and reduced their numbers. The falling level of the lake also made the shorelines much larger, and covered the lake beds with very fine silt. In 1976, a group of students from the University of California began to study the Mono Lake environment. Their research concluded that the lake’s reduction in water level caused environmental damage, including the loss of the lake’s brine shrimp, loss of migrating and nesting birds, and the destruction of the Mono Lake’s natural beauty. In 1979, the National Audubon Society, Mono Lake Committee, Friends of the Earth, and four Mono Lake landowners filed suit against the DWP. Plaintiffs claimed that the waters of Mono Lake are protected from the DWP is diversion by a public trust doctrine. DWP brought the lawsuit to federal district court, but the district court remanded the issue of the public trust doctrine to the state court. In 1983, the case made its way to the California Supreme Court. The Supreme Court ruled that the state has an obligation to protect Mono Lake once the diversions begin to harm public trust interests. The court also ruled that the California water law permitted the State Water Resources Control Board (SWRCB) to objectively study Mono Lake water rights after the agency granted the rights. Audubon claimed that air pollution in the form of alkali dust storms was caused by Mono Lake’s dropping water level. On October 6, 1988, the United States Court of Appeals, Ninth Circuit decided that Audubon could not claim a federal common law nuisance based on air pollution. In 1984, when DWP threatened to once again dry the creek, an enterprising trout fisherman, Dick Dahlgren, joined by Cal Trout. Inc, filed suit against the DWP. Plaintiffs argued that not did only DWP violate the Public Trust Doctrine, it also violated the California Fish and Game code § 5937. From this case, the court required the DWP to release 19 cubic feet per second (cfs) into lower Rush Creek. In 1986, the Mono Lake Committee brought a similar lawsuit to protect Lee Vining Creek. The court ordered the DWP to maintain a flow of 10 cfs to the creek. In 1989, the court halted the case for four years to allow the State Water Resources Control Board (SWRCB) to manage an Environmental Impact Report in order to recondition DWP’s water right licenses, and to prove compliance with the Public Trust Doctrine and the Fish and Game codes. On September 28, 1994, the court ordered that the lake must be restored to a height of 6,392 ft. above sea level within the next 20 years. The DWP can continue to divert water during these 20 years, but only an average of 31,000 acre feet, and the DWP must restore waterfowl and stream damage that resulted from past diversions. Issues In this case, two issues were resolved by the California courts. The first issue was, whether the Public Trust Doctrine functions independently of the California Water Rights System. By the Roman law and English common law of nature, “the air, running water, the sea, and consequently the shores of the sea are common to mankind.” The public trust defines its purpose as maintaining, “All of its navigable, commerce, fishing, swimming, and other recreational purposes as trustee of a public trust for the benefit of the people.” Therefore, the waterways cannot belong to just one person as private property; they must be available to all people. The Public Trust Doctrine has also been expanded to protect lands in their natural state to serve as ecological units for scientific study. Mono Lake is a navigable waterway, and it harvests brine shrimp for sale as fish food. Under the traditional public trust cases, the lake identified as a fishery. Plaintiffs sought to protect the lakes exception recreational and ecological value of views of the lake and its shore, the purity of the air, and the use of the lake for nesting and feeding by birds. Quoting Marks v. Whitney, the court said “There is a growing public recognition that one of the most important public uses of the tidelands a use encompassed within the tidelands trust is the preservation of those lands in their natural state, so that they may serve as ecological units for scientific study, as 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.” As a result, Mono Lake is navigable, and the beds, shores, and waters of the lake are protected by the public trust. During the trial the court brought up two old cases that dealt with nonnavigable waterways. In 1884, the court was considered impairment of navigability in the American and Sacramento rivers due to mining near their nonnavigable tributaries. Gold Run Ditching and Mining Company used water cannons to wash gold bearing gravel from the hillsides. As a result, 600,000 cubic yards of sand and gravel went into the American River and washed downstream into the beds of the both the American and Sacramento rivers. The court said “The State holds the absolute right to all navigable waters and the soils under them… The soil she holds as trustee of a public trust for the benefit of the people; and she may, by her legislature, grant it to an individual; but she cannot grant the rights of the people to the use of the navigable waters flowing over it…” In the second case, in 1901, the defendant in People v. Russ had built dams on sloughs which flowed from the Salt River. The dams had been built to prevent water from flowing on to the defendant’s land, but the state said they were a public nuisance. In the National Audubon case, DWP argued that when the Water Board approved a permit, the water right became a vested right. The California Supreme Court said that the public trust is “an affirmation of the duty of the state to protect the people’s common heritage of streams, lakes, marshlands and tidelands, surrendering that right only in rare cases when the abandonment of that right is consistent with the purposes of the trust.” The second issue in this case was, whether plaintiffs must exhaust their remedies before the Water Board prior to bringing action in court. The California Supreme Court determined that remedy can be pursued from the Water Board by challenging the unreasonable or unbeneficial use of appropriated water or by bringing an independent public trust claim. Therefore, the plaintiffs could claim that DWP’s use of the water was unreasonable. Plaintiffs also could bring the public trust claim pursuant to section 2501 of the Water Code, which said, “The board may determine, in the proceedings provided for in this chapter, all rights to water of a stream system whether based upon appropriation, riparian right, or other basis of right.” Section 2501 refers to water rights as bringing the proceedings before the Water Board. Therefore, the court had found that the plaintiffs did have a remedy before the Water Board.