Inventing the Public Trust Doctrine: California water law and the Mono Lake Controversy.

摘要

The Public Trust Doctrine (PTD) is a theory of sovereign responsibility that was used by the State Supreme Court (National Audubon Society v. Superior Court) in 1983 as a legal basis for revisiting existing water rights in California. This research reviews the history of the PTD, and examines the Audubon decision and the critical issues that an expanded use of the PTD poses for public policy, law, science, and natural resource management.; In general, the PTD stands for the idea that the Government cannot sever its responsibility to regulate water and littoral lands for the public good. This responsibility translates to a penultimate property right, vested in the sovereign, over water resources. However, this responsibility does not preclude an extremely broad spectrum of licensing systems for resources whose effective application requires some guarantee of use. The various branches of American government have not wielded the licensing authority of the PTD equally, either on a Federal or a State level. In California, the judiciary has been the primary sovereign agent, although there are clear indications that state administrative agencies favor the PTD and intend to use it.; The current status of the PTD in California, and the factors that led to it, highlight the increasingly important and potentially political role played by science and scientists in the management of natural resources. The public demands the appearance, if not the reality, of scientific surety in assessing the consequences of resource management decisions. Ultimately, a consideration of the PTD as a species of social contract suggests that this expectation is a term of legitimate sovereign authority. More than a legal doctrine, the PTD emerges in this research as a political doctrine that demands that government provide wise stewardship of the environment and its natural resources.