Joseph Sax, emeritus professor at the University of California at Berkeley\u2019s Boalt Hall, is one of the nation\u2019s foremost experts in the public trust doctrine. This semester, he is also a visiting professor at the University of Hawai\u2018i William S. Richardson School of Law. In April, he spoke with the state Commission on Water Resource Management, which is itself wrestling with public trust issues in the aftermath of the state Supreme Court\u2019s decision on the Waiahole contested case.<\/p>\n
In the following exchange with commis sioner Lawrence Miike, Sax explained his view of the place of municipal water uses in the public trust hierarchy.<\/p>\n
Commissioner Lawrence Miike:<\/b> In the Mono Lake case, the public trust was found to be the effect [of with drawals] on Mono Lake itself and streams, etc. But in our state, the Su preme Court has started to enumerate specific public trust purposes. And if we apply the Hawai\u2018i situation to the Mono Lake case in retrospect, the potable domestic use of the river for Los Angeles \u2026 would have been a public trust purpose. \u2026
\nMunicipal use \u2026 is a mixed public trust purpose and what I would consider as a higher use than, say, probably commercial, because of the public interest. How would you approach a mix of uses?<\/p>\n
Sax:\u2026 <\/b>In California, the court specifically said municipal use is a very important use, and it\u2019s a reasonable and beneficial use, but it\u2019s not a public trust use. It stands next to public trust uses. And so \u2026 whether it\u2019s a municipal use or an industrial use or whatever, you have to first go back and do everything that\u2019s feasible to protect these interests that have no ordinary constituency.<\/p>\n
That\u2019s really probably the best way to think about it. That is, if you\u2019re talking about saving the fish, you have to go back and try to do everything feasible you know and do that first. And then these other important uses like municipal, industrial, or irrigation, they have to adapt\u2026<\/p>\n
What Los Angeles said, and this was from a public trust perspective, \u2026 was, \u2018What could be more important than what we\u2019re doing? We\u2019re providing potable water. You know, as long as we\u2019re within our legal rights \u2014 you know, we\u2019re not wasting water \u2014 nobody can challenge us.\u2019 Their position was, you know, this is a sort of collateral damage or something. It\u2019s like, if that\u2019s what happens, that\u2019s what happens.<\/p>\n
That\u2019s not the way we\u2019re going to do it. You\u2019re going to first see what adaptations you can feasibly make in order to make sure you do as little environmental damage to these public type uses as possible.<\/p>\n
Miike:<\/b> But they way I read our Supreme Court case, it says that there are no priorities among trust purposes. When I read this, with domestic use for the general public, which I read to mean drinking water for municipal systems, preservation of the resource has no absolute priority over potable water.<\/p>\n
Sax:\u2026<\/b>I\u2019ll tell you why I hope that\u2019s not the law here. I really think this is a central point. The problem in all these cases is that for however long you\u2019ve had European settle ment \u2014 200 years here, 300 years on the mainland, basically \u2014 we\u2019ve been making uses of water for things like housing, industry, agriculture and so forth with no consideration of modifying or mitigating those uses to take care of environmental protection. So if you start with the position that all these uses are equal, and you\u2019ve got, for example, a munici pality that\u2019s essentially already using all the water in the stream for their purposes, which is what places were perfectly entitled to do in the past \u2026 it\u2019s all over for public trust.<\/p>\n
Miike: I don\u2019t think so, because the status quo would then give a presumption, would give a priority, to the municipal use. And that\u2019s not the way I read the Supreme Court decision. We can take water away and restore.<\/p>\n
Sax: Oh, well if you can do that, and if you\u2019re duty bound to do that, to the extent feasible, or to whatever extent is reasonable, then you\u2019re essentially in the same position of Califonia. It\u2019s just that I think you don\u2019t want to be in the position where you let the prior uses which are in place just freeze everything that way. And one of the things the court said in the Mono Lake case that was very interesting \u2014 it actually goes back to an offshore drilling case from the 1920s in California \u2013 was that there was a duty of continuing supervision. That is, even for something that might be reasonable in 1940, you know, you have to look at it again in 1970, you have to look at it again in 2000. You have to have what sometimes we talk about now as adaptive use or continuous monitoring. You have to keep looking at the reasonableness of these uses and the adverse impacts they\u2019re having and that allows you to build new technological knowledge, for example.<\/p>\n
We\u2019ve learned some things. We may learn things like we don\u2019t have to let as much water bypass, or we may need more bypass, or whatever may be. So as long as you have that flexibility to make these adaptations, you\u2019ve got a workable doctrine that permits you to accommodate in some reasonable way. I think the nice thing about this doc trine is the way the courts have interpreted it; they recognize that we have both these traditional uses, developmental interests, and so forth. People have to live, we have to have houses, we have to have farmland and so forth. And at the same time we want to do as much as we can to restore the benefits of natural systems. As long as you have a legal framework that sort of mandates you to do that and you have some notion like reason ableness, you know, feasibility, and inter pret that along the lines I was describing, it seems you\u2019ve got a good system in place.<\/p>\n
I know this is a heavy burden on you. You\u2019re the people that actually have to do this. It\u2019s a wonderful opportunity, in a way, to sort of bring us into the values and understanding of your own time in light of the fact that there are a lot of things that we\u2019ve done in the context of the understand ing and values of a different time.<\/p>\n
When I went to law school, when we learned about water law, the first thing I was taught was that the only way to acquire a right to water is to make a beneficial use and take it out of the stream. You cannot have a legally recognized instream right. That was 50 years ago. Today, I think to myself, did I say something? Did I raise my hand in class and say this is a terrible idea. No. It just seemed perfectly normal to me.<\/p>\n
Really, nobody thinks that way today. Not even the most hard-line business people will say to you, \u201cYou shouldn\u2019t leave any water in the stream.\u201d Nobody says that today, and yet we build all these uses \u2026 on that idea. Nobody thought we were wiping out all the fish.<\/p>\n
— Teresa Dawson<\/p>\n
Volume 15, Number 12 June 2005<\/p>\n","protected":false},"excerpt":{"rendered":"
Joseph Sax, emeritus professor at the University of California at Berkeley’s Boalt Hall, is one of the nation’s foremost experts in the public trust doctrine. This semester, he is also a visiting professor at the University of Hawai‘i William S. … Continued<\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[130],"tags":[],"class_list":["post-1515","post","type-post","status-publish","format-standard","hentry","category-june-2005"],"_links":{"self":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/1515","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=1515"}],"version-history":[{"count":0,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/1515\/revisions"}],"wp:attachment":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=1515"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=1515"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=1515"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}