Opinion
Rehearing Granted April 6, 1988.
Previously published at 199 Cal.App.3d 402
Robert L. Hewitt, Oroville, for plaintiffs and appellants.
Minasian, Minasian, Minasian, Spruance, Baber, Meith & Soares and M. Anthony Soares, Oroville, for Table Mountain Irr. Dist.: Peters, Fuller, Rush, Schooling & Carter and John Jeffery Carter, Chico, for Thermalito Irr. Dist., defendants and respondents.
SPARKS, Associate Justice.
In this case we consider whether the public trust doctrine applies to a nonnavigable and artificial body of water. We hold that it does not.
Plaintiffs appeal from a judgment dismissing their action after the trial court sustained a demurrer to their fourth amended complaint. By their action plaintiffs sought to maintain the waters of Concow Reservoir in Butte County at a level "which will answer the concerns of the public concerning health, fishing, wild life, recreational, and aesthetic rights...." Plaintiffs assert that the public trust doctrine, as set forth in National Audubon Society v. Superior Court (1983) 33 Cal.3d 419, and Fish and Game Code section 5943, support their claim that they have stated a cause of action. We disagree and shall affirm the judgment.
FACTS
Since this appeal is from a judgment of dismissal following the sustaining of a demurrer, we must treat as true all the properly pleaded facts in the complaint. (Concerned Citizens of Costa Mesa, Inc. v. 32nd Dist. Agricultural Assn. (1986) 42 Cal.3d 929, 936, 231 Cal.Rptr. 748, 727 P.2d 1029.) The plaintiff Golden Feather Community Association is a nonprofit unincorporated association organized to represent and educate residents of the Golden Feather Union School District on matters coming before various public boards and agencies within its area of interest. The individual plaintiffs are owners and residents of property contiguous or in close proximity to the association's area of interest. The defendant irrigation districts are the owners of Concow Dam which impounds the waters of Concow Creek creating a reservoir known as Concow Lake.
Plaintiffs assert that between August 13, 1983, and October 25, 1983, the defendants released not less than 6,000 acre feet of water through the Concow Dam spillway and thereby caused the loss of use of the reservoir for fishing and recreational purposes. In 1984 the defendants again reduced the waters in the reservoir so as to prevent plaintiffs from having access to the reservoir waters for fishing during the open season. Plaintiffs are informed and believe the defendants intend to create a hydroelectric project below the Concow Dam on Concow Creek which will drawdown the waters of Concow Reservoir to the point where fishing, wildlife and recreational uses will be destroyed and the plaintiffs will be denied access to the waters of the reservoir for fishing purposes.
Plaintiffs sought to have the court declare that the acts of the defendants are illegal and void and that defendants are the holders of a public trust by which plaintiffs and the public at large have the right to free access to Concow Reservoir and to a minimum pool of water for health, fishing, wildlife, recreational and aesthetic purposes. In papers submitted by plaintiffs in opposition to a motion to strike their complaint it is shown that the impoundment of Concow Dam is actually known as Lake Wilenor. The Concow Dam was completed in 1924 and has a primary function of impoundment of water for irrigation purposes. The dam is now jointly owned and operated by the defendants with Table Mountain Irrigation District owning 55 percent and Thermalito Irrigation District the remaining 45 percent. The defendants in fact do plan a hydroelectric facility to be operated with water from the dam.
DISCUSSION
I. Public Trust Doctrine
Plaintiffs assert the waters impounded by Concow Dam are subject to a public trust and they have stated a cause of action to declare a public trust within the meaning of the decision in National Audubon Society v. Superior Court, supra, 33 Cal.3d 419, 189 Cal.Rptr. 346, 658 P.2d 709. In general, the public trust doctrine posits that "the sovereign owns 'all of its navigable waterways and the lands lying beneath them "as trustee of a public trust for the benefit of the people." ' The State of California acquired title as trustee to such lands and waterways upon its admission to the union...." ( Id., at p. 434, 189 Cal.Rptr. 346, 658 P.2d 709, citations omitted.) Plaintiffs have conceded that the waters of Concow Creek and the reservoir are not navigable waters. The trial court concluded that the public trust doctrine applies only to navigable waters and the complaint therefore failed to state a cause of action under the public trust doctrine.
The history of the public trust doctrine is traced in Stevens, The Public Trust: A Sovereign's Ancient Prerogative Becomes the People's Environmental Right (1980) 14 U.C. Davis L.Rev. 195; see also Walston, The Public Trust Doctrine in the Water Rights Context: The Wrong Environmental Remedy (1982) 22 Santa Clara L.Rev. 63.)
In National Audubon the high court considered the relationship between the public trust doctrine and the appropriative water rights system in California. Although each system has the potential of occupying the entire field to the exclusion of the other, the court held the systems must accommodate each other and operate simultaneously. (33 Cal.3d at p. 445, 189 Cal.Rptr. 346, 658 P.2d 709.) So construed, the state as sovereign retains continuing supervisory control over its navigable waters and the lands beneath those waters, and this precludes anyone from obtaining a vested right to appropriate water in a manner harmful to the interests protected by the trust. ( Id., at p. 445, 189 Cal.Rptr. 346, 658 P.2d 709.) The State Water Resources Control Board (referred to as the Water Board) has the authority to grant appropriative water rights and may do so even though the appropriation does not further or even harms the public trust uses. ( Id., at p. 446, 189 Cal.Rptr. 346, 658 P.2d 709.) However, in determining whether to grant an appropriative right the Water Board must consider and protect the public trust purposes whenever feasible. (Ibid.) And any appropriative right granted which affects the public trust purposes is not vested but is subject to modification or revocation where necessary to protect the public trust purposes. (Id., at pp. 446-447, 189 Cal.Rptr. 346, 658 P.2d 709.) Since the appropriative rights at issue in National Audubon had been granted by a Water Board that did not understand it should consider the public trust, and since in the intervening years substantial damage had been done to public trust purposes in Mono Lake, the court held that reconsideration of the appropriative rights in light of the public trust was necessary. (Ibid.)
The origins of the public trust doctrine are ancient. As the high court noted in National Audubon, the doctrine has been recognized in Roman law, the English common law, and Spanish and Mexican law. ( Id., at p. 434, and fn. 15, 189 Cal.Rptr. 346, 658 P.2d 709.) The United States Supreme Court has said: "For when the Revolution took place the people of each State became themselves sovereign; and in that character held the absolute right to all their navigable waters and The National Audubon court was concerned with Mono Lake, which clearly was a navigable water. However, the asserted damage to the public trust purposes was caused by the diversion of nonnavigable tributaries. (Ibid.) The court concluded that the doctrine applies to protect navigable waters from harm caused by the diversion of nonnavigable tributaries. (Ibid.) In view of this conclusion the court did not consider whether the public trust doctrine applies for some purposes to nonnavigable streams. (33 Cal.3d at p. 437, fn. 19, 189 Cal.Rptr. 346, 658 P.2d 709.) The parties to this litigation dispute whether the public trust doctrine can legitimately be extended to nonnavigable streams. Plaintiffs argue that the public trust doctrine extends to all waters within the state, whether navigable or not. Defendants counter by arguing that the public trust doctrine is limited to matters impacting navigable waters.
In fact, the public trust doctrine is not limited to navigable waters and streams which feed them. An alternative basis for finding a public trust is that the water is affected by tidal action. Waters which are subject to tidal influence are subject to the public trust regardless whether they are navigable. (See Phillips Petroleum Co. v. Mississippi (1988) --- U.S. ----, 108 S.Ct. 791, 98 L.Ed.2d 877; Wright v. Seymour (1886) 69 Cal. 122, 10 P. 323.) However, the tidal influence basis for finding a public trust is inapplicable here. We are here concerned with whether the public trust extends to nonnavigable waters which are not subject to tidal influence.
There is substantial reason to conclude that the public trust doctrine does not extend to nonnavigable streams to the extent they do not affect navigable waters. The public trust doctrine is based upon public access and usage of navigable waters and pursuant to that doctrine the public has an easement and servitude upon such waters. ( People v. California Fish Co., supra, 166 Cal. at p. 584, 138 P. 79.) But the public has never had common access and usage of nonnavigable streams, and therefore the decisional law has been concerned only with the public trust doctrine as it relates to navigable waterways. ( National Audubon Society v. Superior Court, supra, 33 Cal.3d at pp. 436-437, 189 Cal.Rptr. 346, 658 P.2d 709; Marks v. Whitney, supra, 6 Cal.3d at p. 258-259, 98 Cal.Rptr. 790, 491 P.2d 374; Colberg, Inc. v. State of California ex rel. Dept. Pub. Wks. (1967) 67 Cal.2d 408, 416, 62 Cal.Rptr. 401, 432 P.2d 3.) That navigability is the measure of the public trust doctrine is indicated in our Constitution, which provides: "No individual, partnership, or corporation, claiming or possessing the frontage or tidal lands of a harbor, bay, inlet, estuary, or other navigable water in this State, shall be permitted to exclude the right of way to such water whenever it is required for any public purpose, nor to destroy or obstruct the free navigation of such water; and the Legislature shall enact such laws as will give the most liberal construction to this provision, so that access to the navigable waters of this State shall be always attainable for the people thereof." (Cal. Const., art. X, § 4.)
Plaintiffs concede that no case has held that nonnavigable waters are subject to the public trust doctrine. Lacking direct authority to support their novel contention, plaintiffs seek to appropriate the principles announced in People v. Truckee Lumber Co. (1897) 116 Cal. 397, 48 P. 374. Their theory does not hold water. Truckee Lumber was a nuisance case. There the Attorney While we are constrained to hold that the public trust doctrine does not extend to nonnavigable waterways in the absence of some impact on navigable waters, there is another reason why plaintiffs cannot state a cause of action under the public trust doctrine in this case. We are concerned here with an artificial, man-made body of water. It is a reservoir created by the defendants' authorized diversion of water for specific purposes. As we have noted, the very essence of the public trust doctrine is that the State of California acquired title as trustee to all of its navigable waterways and the lands lying beneath them upon its admission to the union and cannot divest itself of the trust obligation. ( National Audubon Society v. Superior Court, supra, 33 Cal.3d at p. 434, 189 Cal.Rptr. 346, 658 P.2d 709.) The state has broad authority to regulate the diversion of water from natural watercourses ( id., at p. 441-444, 189 Cal.Rptr. 346, 658 P.2d 709; see Cal. Const., art. X, § 2), but there is no logical theory upon which we could hold that a public trust attaches to artificial waterways or reservoirs created to utilize an appropriative water right. In other words, the public trust doctrine empowers the state to forbid or limit diversions of water in order to protect the public trust in navigable waters. It does not, however, give the state the power to insist upon the diversion and yet at the same time empower it to preclude the usage of the appropriated waters in order to protect a previously nonexistent public right in artificial waterways. The plaintiffs here are not asserting that the public trust doctrine must be applied to protect a natural waterway; they are instead claiming a right to insist that an artificial body of water be maintained for their benefit. Such a claim is not cognizable under the public trust theory. II. Fish and Game Code Section 5943.
The state has ample constitutional and statutory power to control diversion from natural waterways and may impose conditions, including conditions assuring the interests plaintiffs assert, upon diversion. (Cal. Const. art. X, § 2; Wat. Code, § 1200 et seq., esp. § 1257.) Such interests may be secured through administrative procedures. (Fullerton v. State Water Resources Control Bd. (1979) 90 Cal.App.3d 590, 603-604, 153 Cal.Rptr. 518.) And the courts have concurrent jurisdiction with the Water Board to enforce proscriptions against unreasonable uses and unreasonable methods of diversion of waters. (Environmental Defense Fund, Inc. v. East Bay Mun. Utility Dist. (1980) 26 Cal.3d 183, 198-200, 161 Cal.Rptr. 466, 605 P.2d 1.) Nothing we have said here suggests otherwise. We hold only that the public trust doctrine does not give the public rights to the use of appropriated water superior to those of the authorized appropriator.
We turn to plaintiffs' statutory claim. Fish and Game Code section 5943 provides: "The owner of a dam shall accord to the public for the purpose of fishing, the right of access to the waters impounded by the dam during the open season for the taking of fish in such stream or river, subject to the regulations of the commission." Plaintiffs assert that pursuant to this section they have the right to insist defendants forego the use of the waters impounded by their dam in order to preserve the reservoir at a level plaintiffs regard as sufficient for fishing.
We cannot agree with plaintiffs' construction of Fish and Game Code section 5943. The right of access of the public to fish in the reservoir cannot be denied. (State of California v. San Luis Obispo Sportman's Assn. (1978) 22 Cal.3d 440, 446-449, 149 Cal.Rptr. 482, 584 P.2d 1088; see generally, Note, Public Recreation and Subdivisions on Lakes and Reservoirs in California (1971) 23 Pt. 2 Stan.L.Rev. 811.) But as the high court made clear in the cited case, the right of the public to fish does not take precedence over public purposes which are incompatible with fishing. (Id., at p. 447, 149 Cal.Rptr. 482, 584 P.2d 1088.) Fish and Game Code section 5943 does not exist in a vacuum. It is one of a number of statutory provisions imposing duties upon dam owners to preserve and protect the fish population and to secure public access for fishing. (See e.g., Fish and Game Code, §§ 5931, 5933, 5938, 5942.) These provisions, however, do not require dam owners to forego their own authorized uses of impounded water in order to enhance the fishing opportunities of the public. Had the Legislature intended such a result it could and would have specifically said so. We conclude that while Fish and Game Code section 5943 gives the public the right of access to impounded water for fishing purposes, it does not create a fishing priority for the use of impounded waters.
Members of the public have standing to complain of unauthorized and unreasonable uses or methods of diversion of water which interferes with the right to fish. (See Environmental Defense Fund, Inc. v. East Bay Mun. Utility Dist., supra, 26 Cal.3d at pp. 198-200, 161 Cal.Rptr. 466, 605 P.2d 1.) Plaintiffs have not alleged that defendants have engaged in unauthorized or unreasonable uses of the impounded waters. Instead, they assert that their desire to fish has priority over the defendants' use of the water for any purpose. We do not so read Fish and Game Code section 5943. ( State of California v. San Luis Obispo Sportman's Assn., supra, 22 Cal.3d at p. 447, 149 Cal.Rptr. 482, 584 P.2d 1088.)
For these reasons we agree with the trial court that plaintiffs have failed to state a cause of action in their fourth amended complaint. We also find the entry of a judgment of dismissal to have been proper. Not only did plaintiffs fail to state a cause of action after five attempts, upon sustaining of the demurrer to their fourth amended complaint they elected not to amend again. The judgment of dismissal was therefore correctly entered. (Gonzales v. State of California (1977) 68 Cal.App.3d 621, 635, 137 Cal.Rptr. 681.)
The judgment is affirmed.
PUGLIA, P.J., and CARR, J., concur.