The public trust doctrine and critical legal geographies of water in California

Abstract

Legal processes shape how water resources are allocated, regulated, distributed, and governed. This paper examines the public trust doctrine, a legal principle that addresses the state’s role in governing natural resources by requiring states to manage certain bodies of water and their shorelines for the good of the public. The paper focuses on how the public trust doctrine has been used—with varying degrees of success—to protect water bodies by contesting the diversion and transfer of water in California. The paper compares how the doctrine was applied in two cases: Mono Lake and the Salton Sea, two California lakes that have been threatened by water diversions and transfers. Advocates at Mono Lake successfully used the public trust doctrine for environmental protection, while public trust was an unsuccessful strategy at the Salton Sea. The paper examines issues of nonequilibrium ecosystems, natural versus artificial ecosystems, and wasteful versus reasonable uses of water.By investigating why one case was deemed eligible for public trust protections while the other was not, this paper examines how discursive constructions of nature are embedded in and enacted by legal institutions and how these constructions of nature impact the implementation of legal protections of natural resources. In examining the use of the public trust doctrine in California, the paper examines both the potential and the limitations of the public trust in practice, showing how legal processes and institutions can be used to protect public interests in natural resources but also how particular environmental narratives are reinforced through these institutions.