Water law

June 16, 2008

You probably read last week the the King County Superior Court struck down portions of the Washington State legislature’s 2003 water rights law. This was just a local reverberation of a pressing national issue, one that you will be hearing more and more about. There is a shrinking supply of water, as demand increases. The apportionment of water pits various private interests against each other and private interests andaginst public interest. It does not seem fair that we should have so little sun and still experience issues about the availability of water. But in King County homes on wells have had to be abandoned because the well runs dry. In Pierce County the there is a lot of talk about the contamination of wells by salt water.

Surprisingly (to me) this has become a partisan issue. Washington is a politically odd state in a number of different ways. Owing to the population imbalance between east and west, Washington is generally speaking progressive in political orientation. There is a wide cleft though between the sentiments of the citizens and the actions of their legislature. Perhaps because of citizen indifference, the legislature here is driven by special interests so that our laws on the whole are far from progressive.

Nonetheless it is interesting to see how water rights issues are being fought out in other states.  A number of states are attempting to expand the the public trust doctrine to include potable water from any source.  Historically this doctrine has been limited by the courts of navigable waterways, which are deemed to be held in trust for the public, giving a high degree of accountability to public officials who manage them.  Courts generally have been resistant to expanding the doctrine.  Most battles over the extension of this doctrine are now being waged in the various state legislatures.

Public Trust Doctrine

January 14, 2008

I don’t think that we’ve had time to assimilate the massive spasm of privatization that has seized the federal government. To my knowledge the consequences of this wholesale abdication of governmental function to private industry are yet to be understood. This climate of ardent preference for private over public seems to have infected the Washington State Supreme Court, causing it to turn the public trust doctrine on its head. This doctrine derives from the notion that navigable waterways are held in trust by the government for the people of the community. It has been applied to tidelands and access rights to waterways. For years people have speculated how the doctrine could be applied to public lands as well. The policy underlying the doctrine seemed to have broad application and might well be used as a curb of the use of public lands in a manner that promotes private interests over public interest.

In 1987 Orion Corp v. State was decided and seemed to many to signal that the court would take a more solicitous attitude toward the public interest when it came in conflict with private interests. This case involved tide lands that a developer proposed to backfill. The tidelands had been transferred by the State to the developer without restriction, but in an uncharacteristically bold decision the court held that the public trust doctrine was like a covenant running with the land and the private developer took title subject to the public trust doctrine, which would not permit the destruction of the tide lands. Prior to this decision the public trust doctrine had not played an important role in the Court’s decisions but public interest advocates hoped that this decision signaled a more active role by the court as the state’s population swelled and community groups squared off against developers. To many the decision seemed pregnant with possibility; perhaps the Court would be more willing to apply established doctrines (the public trust doctrine came to us from England as a part of our common law heritage and originated in ancient Roman law) to protect against environmental incursions from over-zealous developers and at times apathetic governmental action or inaction. This decision was attention grabbing because in this case the public trust doctrine was being applied to private property.

These hopes for the use of the public trust doctrine as tool for environmentalists were stillborn as in the seventeen appellate cases (both published and unpublished) that considered the public trust doctrine after Orion Corp., not one invoked the doctrine to support its decision. Attempts to utilize the doctrine were slapped down each time.

That is they were slapped down until the recent decision Biggers v. the City of Bainbridge Island, where the public trust doctrine was invoked by the Court to terminate Bainbridge Island’s moratorium on the development of tidelands while it studied the environmental effects of such development. Clearly the moratorium had lasted longer than the Court thought reasonable but the invocation of the public trust doctrine to allow building permits over the local government’s objection takes the Court about as far away from the purpose of that doctrine as it could possibly be. Justice Johnson wrote the opinion, which was joined in by Justices Alexander, Sanders and Bridge (now retired). This seems to be an unusually activist group of justices, using the public trust doctrine to allow private development over the environmental concerns of local government. For these jurists the public trust doctrine has died and been reborn to thwart the purposes for which it has been applied since roughly two thousand years ago.