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Felix 'Public Trust' Smith Urges No Vote on Delta Bills
by Dan Bacher
Thursday Aug 27th, 2009 1:58 PM
"I held the first deformed migratory bird, an American coot hatchling, found at Kesterson National Wildlife Refuge in 1983. At that time I was a U.S. Fish and Wildlife Service biologist recently assigned to look into the emerging issues involving agricultural drainage and wastewater. That experience impacted my life," says Felix Smith, board member of the Save the American River Association (SARA).

Below is Smith's letter to the Legislature criticizing SB-1 (Simitian), AB-1 (Huffman) and SB-3 (Wolk) for weakening the Public Trust Doctrine. The bill package serves as a road map to the construction of the peripheral canal by creating a Delta Stewardship Council of which 4 out of 7 members would be appointed by the Governor. Schwarzenegger wants to build a peripheral canal, so he is expected to appoint panel members that support a canal.
A letter to the California Legislature from Felix Smith on the Public Trust and our loss in the Delta Bill Package:

August 24, 2009 -- To the California Legislature -- I am writing to express my concerns about the rush to judgment of several bills being discussed by the State Assembly and State Senate. The Bills are SB-1 (Simitan), AB –1 (Huffman) and SB-3 (Wolk). Some of the language will expressly change the meaning / interpretation of the Public Trust Doctrine and the duties of the State administrators under that Doctrine.

The Public Trust Doctrine and the protection of the Public Trust has persisted in European, English and American law throughout history. Its roots trace back to Roman times. The Institutes of Justinian in the Sixth Century A.D. stated: “by the law of nature these things are common to mankind —-the air, running water, the sea and consequently the shores of the sea”. These resources belonging to all the people are therefore held in trust by governments. As a resource management tool, the Public Trust Doctrine predates California’s water right, and waste discharge permits for air and water and land use laws and regulations since it goes back to the Sixth Century A.D.

The Public Trust Doctrine makes government agencies the trustee of our air, lakes, rivers, and streams and associated resources, uses, and ecological values and other assets of significant public use and value. This trusteeship is for the benefit of people. Public Trust assets are not held primarily for sale or conversion into money. In simple terms Public Trust assets, associated uses, and ecological values should be devoted to fulfilling the purposes of the trust, i.e., in the service of the people.

This trusteeship fixes the responsibility for the day-to-day, as well as long-term management of public trust assets. State agency administrators, as trustees, have a high fiduciary duty and responsibility to manage such assets for the long-term public interest. The obligations of a trustee are to protect trust assets from decline and to increase trust assets in numbers and value for use by the public. The duties of a trustee extend far beyond custodial activities. It requires prudent management. A trustee must be aware of potential adverse impacts; seek out opportunities for resource improvement, and act upon them appropriately consistent with its stewardship duties and responsibilities.

The heart of the Public Trust Doctrine is that it imposes limits and obligations upon government administrators, on behalf of all the people. That obligation is that the State as trustee, is not to impair the resources, uses, or ecological values even if private interests are involved. This strengthens the people’s hand to share trust assets so long as the corpus of the trust is protected. There may be times that the corpus of the trust maybe impaired. However the State must bear in mind its duty as trustee to consider the effect of the taking (in this instance water) on the public trust and to preserve so far as is consistent with the public interest, the uses, resources and values protect by the public trust. To destroy public trust assets to benefit of one aspect of society at the expense of the larger society is wrong, because it penalizes future users of such resources, uses, and values and is inconsistent with the long-term public interest.

The key case regarding the Public Trust Doctrine and the allocation of trust resources is Illinois Central R.R. v. State of Illinois, (146 U.S. 387 – 1892). In this case, the U. S. Supreme Court said that it may be reasonable for the State of Illinois to grant to the Illinois Central Railroad some of the Chicago waterfront and lands underlying Lake Michigan for public trust purposes. However, it was the “wholesale giveaway” of the Chicago - Lake Michigan waterfront and its submerged lands to a private corporation for seemingly private purposes that was unreasonable and illegal. A grant to use a resource held in trust is subject to revocation according to Illinois Central case.

The U.S. Supreme Court, in Illinois, held “The state can no more abdicate its trust over property in which the whole people are interested, like navigable waters and soils under them, so as to leave them entirely under the use and control of private parties, except in the instances of parcels mentioned for improvement of the navigation and use of the waters and when parcels can be disposed of without impairment of the public interest in what remains, than it can abdicate its police power in the administration of government and preservation of peace.”

The U.S. Supreme Court held that the State of Illinois did not have the authority to make wholesale grants of public resources held in trust, because to do so violated the trust under which such resources are held. The giveaway of the entire Chicago – Lake Michigan waterfront by the State was ruled illegal. The outcome was that the Chicago – Lake Michigan waterfront did not pass to the Illinois Central Railroad, but was preserved for diverse public uses that include commercial navigation, fishing, recreation, and other public interests.

The U.S. Supreme Court relied on the Public Trust Doctrine to limit the actions of the Illinois State legislature. From this case, one can conclude that the State cannot make wholesale grants of public trust assets to benefit one aspect of society at the expense of the larger society, because it penalizes future generations of such resources, associated uses and values. Such a give-away was deemed inconsistent with the long-term public interest.

A logical extension of the Illinois Central case and the Public Trust Doctrine is that the State can only issue permits to appropriate an amount of water from a lake, river or stream that does not abrogate the State’s public trust responsibilities to the stream, its resources, uses and values. It can be stated that the stream flow and water quality needed to protect fish, other aquatic resources, and the dependent ecosystem, were not and never were transferable by a water right allocation. If there are impacts to resources, uses, and ecological values, the permit to use that amount of water violates the trust under which such assets are held. Therefore the permit is revocable.

The National Audubon (National Audubon Society v. Superior Court, 33 Cal. 3d 419-1983) case verified findings of Illinois Central. A key point made by Audubon was “the public trust is more than the affirmation of State powers to use public property for public purposes. It is an affirmation of duty of the State to protect the people’s common heritage of streams, lakes, marshlands and tidelands, surrendering that right of protection only in rare cases when abandonment of that right is consistent with the purposes of the trust” (Audubon at 360-361, underlining added for emphasis).

The Audubon Court tied the protection of the public trust assets to the maintenance of natural resources for their innate value and not to private beneficial uses of water. The same can be said for the Illinois Central case. The Illinois Court protected the lands and waters of the Chicago / Lake Michigan waterfront for the benefit of all the people and future generations.

Adolph Moskovitz, an old time water lawyer and involved in the Audubon case, speaking to the Sacramento Area Water Forum described the Public Trust Doctrine as multi-faceted involving many resources, uses, and ecological values. Protecting the public trust is not just another use co-equal with irrigation, power production, an industrial use, or leaching salt from soils, etc. Protecting the public trust, including the preservation and enhancement of fish, wildlife, and other aquatic resources, occupies an exalted position in any judicial and administrative determination of water resource allocation (March 3, 1994).

I urge you to vote no on these bills. These are flawed bills. The State Board must review all its previously water right allocation because it has given away much more water than actually exists. The end result is that the long-term public interest and the State’s aquatic environments (rivers and wetlands) have gotten screwed over by water extractors and polluters in the name of economic gain for the extractors and the polluters. We do not need a rush to judgment for that will surely engender years of costly litigation. What we need is good science, and a clear and deliberate discussion of the merits of each bill in the sunshine, not behind closed doors. There is too much at stake for the future of California and the Sacramento-San Joaquin Delta –Estuary.

Felix E. Smith
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