Tuesday, September 30, 2008

Public trust doctrine dramatically expanded

The California First District Court of Appeals has ruled to greatly expand the reach of the public trust doctrine. On September 18, the Court held that the public trust doctrine applies to wildlife, rather than just tidelands and navigable waters. The Court also recognized for the first time that members of the public have standing to bring claims under the doctrine. Center for Biological Diversity Inc. v. FLP Group, Inc. 2008 WL 4255789 (Sept. 18, 2008).

In Center for Biological Diversity Inc., the Center for Biological Diversity (“Center”) filed an action against FLP Group, Inc. (“FLP”), for declaratory and injunctive relief against the continuing operation of wind turbines in the Alameda County portion of Altamont Pass.

The center claimed that FLP’s operation of the wind farm was causing the injury and death of raptors and other birds in violation of the public trust doctrine. The trial court granted judgment on the pleadings for FLP, finding that private parties are not entitled to bring an action for the violation of the public trust doctrine.

On appeal by the Center, FLP argued to affirm the lower court decision on basis that (a) the public trust doctrine applied only to tidelands and navigable waters, not to wildlife; and (b) only public agencies are authorized to bring a claim for violation of public trust.

The First District Court ruled that the public trust doctrine applies to claims related to wildlife. The court stated that there are no holdings, analysis, or dicta stating that bird life or other wildlife are not within the scope of the public trust doctrine. (Id. at 5) The court, citing Ex Parte Maier (1894) 103 Cal. 476, 483, stated that it has long been recognized that the public has a property interest in the preservation of wildlife and that the state is responsible for preserving the public interest through “preservation and wise use of natural resources.” (Center at 6) Thus, the First Appeals Court held that the public trust doctrine encompasses the protection of undomesticated birds and wildlife. (Pg. 6)

The court also held that members of the public have a standing to bring an action to enforce the public trust. The court stated that, the California Supreme Court has reiterated in the past that “any member of the general public… has standing to raise a claim of harm to the public trust.” (Pg. 7, citing National Audubon Society v. Superior Court (1983) 33 Cal.3d 419, 435).

The court mentioned that while it is true that the public trust over wildlife has so far only been enforced in actions brought by public entities, there is no reason in principle why members of the public should be denied standing to maintain an appropriate action. (Pg. 7) While public agencies, as trustees of the public, have the police power to defend the public trust, the First District Court recognized that public agencies do not always strike an appropriate balance between protecting trust resources and accommodating other legitimate public interests. (Pg. 8) Thus, the court concluded, the public still retains the right to bring actions to enforce the trust when the public agency fails to discharge its duty. (Pg. 8) As result, members of the public may file a claim to enforce the public trust.

Nonetheless, the First District Court refused to extend the reach of the public trust doctrine as to permit the public to sue private parties. The Court affirmed the decision of the lower court, stating that plaintiff failed to bring the claim against the responsible public agencies. The Court stated that defendant’s claim was improper because it named only FPL as defendants. (Center at 8) The court indicated that under traditional trust concepts, plaintiffs viewed as beneficiaries of the public trust are not entitled to bring an action against those whom they allege are harming trust property. Rather, where a trustee cannot or will not enforce a valid cause of action against a third person, the trust beneficiary may seek judicial compulsion against the trustee. (Id. at 8) Therefore, plaintiff was required to name the necessary government agencies known to have regulatory oversight over windmill operators, rather than the windmill operators themselves.

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