TARGETING PUBLIC TRUST SUITS

By Karrigan Bork^*

I. INTRODUCTION

The California public trust doctrine empowers private individuals and interest groups to protect the public trust and to enforce state laws that protect the public trust. California has long led the development of the doctrine in the United States, becoming the first state to allow citizen suits to protect the public trust in 1971.¹ A number of other states have followed California’s lead, resulting in a significant expansion in environmental standing. This broadened standing seems to be settled law. In contrast, two California Court of Appeal decisions create some uncertainty about appropriate defendants in public trust lawsuits.² These decisions counsel some caution as private parties pick their targets for public trust litigation.

First, in Center for Biological Diversity v. FPL Group ("FPL Group"), California’s First District Court of Appeal held that suits alleging private parties have violated the public trust doctrine "must be directed to the agencies that have authorized the conduct," not against the private parties themselves.³ This seems to be a significant departure from traditional approaches to enforcing the public trust. Second, in Environmental Law Foundation v. State Water Resources Control Board ("ELF"), California’s Third District Court of Appeal held a "county, as a subdivision of the state, shares responsibility for administering the public trust."⁴ This holding seems to broaden the number of entities that bear public trust responsibilities. Together, these cases raise questions about the appropriate targets in public trust lawsuits.