California Public Trust

(Excerpted from California's Rivers, A Public Trust Report - Executive Summary, prepared for the California State Lands Commission in 1993):

(page vi.) "It is worth noting that the terms of the trust which govern the management of sovereign trust lands, whether in the Delta, riverbeds or elsewhere, are found in the statutes and the decisions of the judiciary and collectively comprise what is commonly referred to as the Public Trust Doctrine. This Doctrine originated in early Roman law and, as incorporated into English Common law, held that certain resources were available in common to all humankind by 'natural law.' Among those common resources were 'the air, running water, the sea and consequently the shores of the sea.' Navigable waterways were declared to be 'common highways, forever free,' and available to all the people for whatever public uses may be made of those waterways.

"In California, the Public Trust Doctrine historically has referred to the right of the public to use California's waterways to engage in 'commerce, navigation, and fisheries.' More recently, the doctrine has been defined by the courts as providing the public the right to use California's water resources for: navigation, fisheries, commerce, environmental preservation and recreation; as ecological units for scientific study; as open space; as environments which provide food and habitats for birds and marine life; and as environments which favorably affect the scenery and climate of the area." [In National Audubon Society v. Superior Court of Alpine County, (1983), the California Supreme Court held that the public trust doctrine protects not only navigation, commerce, wildlife and fishing, but also "changing public needs of ecological preservation, open space maintenance and scenic and wildlife preservation."]

(pg. 50-51.)"The State of California owns and administers several different types of interests in rivers and streams within the state's borders by virtue of being the sovereign representative of the people. These rights are the property of the state, and the state's powers with respect to these property rights are similar in certain ways to the rights of private property owners, but are governed by the law of public trust. These rights are grounded in English common law, as interpreted and applied by the federal and state court systems of the United States. The state is guardian of those rights which fall under the protection of the ancient 'Public Trust Doctrine,' which in England governed certain rights and responsibilities which were entrusted to the King. As a result these rights collectively are often referred to as 'sovereign' rights, or 'sovereign lands.'

"In California, sovereign rights and responsibilities of the state which are traditionally associated with real property ownership have been designated to the State Lands Commission (SLC). The Public Trust Doctrine, as it affects these rights, is designed to protect the rights of the public to use watercourses for commerce, navigation, fisheries, recreation, open space, preservation of ecological units in their natural state, and similar uses for which those lands are uniquely suited.

"The state owns, as trustee for the public, the beds of tidal navigable rivers and streams up to the Ordinary High Water Mark (under natural conditions, that elevation reached by the average of all tides over an 18.6 year period). The state similarly owns, in its sovereign capacity, the beds of all nontidal, navigable rivers and streams up to the Ordinary Low Water Mark. (The term 'ordinary' in each of the above statements is a legal term of art which refers to property boundaries, which may sometimes, but not necessarily always, visible from the ground). Where the state owns the fee interest in the underlying land, its ownership has some of the same characteristics as private property ownership, but is subject to the constraints of the public trust doctrine. For example, the state can and does require compensation to the public for any private use of its property, including both surface use and the extraction of resources from the land. However, the state does not have the unfettered right to alienate its trust property.

"Along navigable nontidal waterways, the state also owns a right often termed a 'public trust easement' in the area between the Ordinary Low Water Mark and High Water Mark. The state has both the right and the obligation to balance competing land uses in the easement area. In general, the title of the private owner of the fee underlying the state's easement is subservient to the easement, although the fee owner may use the lands in any way 'not inconsistent with public trust needs."


bckgrn.gif (4570 bytes) --------> State "Ownership" of Fish & Game