Tony Rossmann

The Public Trust Doctrine

Recorded: May 13, 2013

Land use attorney, Tony (Antonio) Rossmann, gives a clear and compelling interview about how the ancient Public Trust Doctrine applied to the Mono Lake decision as well as other important land use decisions in California.  In 1983, early in the battle to save Mono Lake, the Supreme Court of California ruled that Mono Lake had “public trust values” that must be considered in any decisions about the lake’s water. Tony was instrumental in the Mono Lake public trust litigation case, which allowed the lake to be restored as an important ecological area. Since the California Supreme Court’s decision in 1983, which is considered one of the top ten environmental law cases of the 20th century, the Public Trust Doctrine continues to be used to protect natural resources in the United States.  

Antonio (Tony) Rossmann has practiced land use and natural resources law in California for more than a third of a century, having established his San Francisco-based practice in 1976. He has served as counsel in some of California’s and the West’s leading water and land-use proceedings, including the Owens Valley groundwater war, the Mono Lake public trust litigation, South Pasadena’s resistance to the 710 freeway, Nevada’s opposition to the MX missile and the Yucca Mountain nuclear repository, the State Water Project Monterey Amendments challenge, the Imperial-to-San Diego Colorado River water transfer, and constitutional defense of California groundwater regulation.

In 2010 the Los Angeles Daily Journal named Mr. Rossmann as one of the Top 100 California Attorneys.  Mr. Rossmann, an honors graduate of Harvard College (1963) and Harvard Law School (1971) and former editor of the Harvard Law Review, teaches water resources and land use law at the University of California at Berkeley School of Law (Boalt Hall). He has taught courses in land use, water, and constitutional law at Stanford, Hastings, UCLA, and the University of Tokyo (the latter as a Fulbright Lecturer). Prior to establishing his practice, he served as a law clerk to the Honorable Mathew Tobriner, Justice of the California Supreme Court.

A former chair of the State Bar of California’s Committee on the Environment and the first executive director of the National Center for Preservation Law, Mr. Rossmann is the past president of the Harvard Law School Association of Northern California and founding chair of the Harvard Law School Association Environmental Law Section.

Huey Johnson:  The important thing was the impact of the Mono Lake decision and public trust that’s just rung with everybody since.

Tony Rossmann: Yes.

Huey Johnson:  That you are the companion to it, you’re seen as the person who won the case. And the public trust idea until then really had been dealt with…

Tony Rossmann:  In the academic literature.

Huey Johnson:  Yeah.

Tony Rossmann: I mean you and I were both there when Joe Sax gave a lecture in Sacramento. Joe was the real modern proponent of the public trust doctrine. It’s probably one of the 10 most influential law review articles ever written. The one that he wrote in 1970 that really took this Roman doctrine, that was an effort by Emperor Justinian’s legal scholars to re-state Roman law in the early centuries of the Christian era, that there were certain things that could not be owned by private parties. You could not alienate the public’s interest in waters for navigation or air or certain types of lands, and California has long embraced that doctrine going back to the Gold Rush.

Tony Rossmann:   The California Supreme Court put an end to gold mining in California in 1886 when it ruled that the hydraulic mining that was taking place along the American River and along the Yuba River, was a public nuisance, because it was destroying the navigability of the Sacramento River downstream. And so it was another significant leap for the court to say that the Public Trust Doctrine applied, not only to submerged lands to protect them but that it applied to the water itself.

Tony Rossmann: The court did so in a really well-reasoned opinion that was not absolute, but it made it clear that the State first of all had a duty to reconsider past decisions that had ignored the public trust. The [State of California] Water Board in 1940 actually recognized the ecological significance of its decision to issue the permits to Los Angeles, but it said “We’re powerless to do anything about it.” And the court’s most immediate holding was: You may have been powerless in 1940, but you no longer are powerless. And not only do you have the opportunity but you have the duty to reconsider that decision. In a sense, that’s even more radical than saying that they have a duty or the authority to do this, because it implies that when someone appropriates water out of a stream, they never acquire a permanent, unchallengeable right to continue doing that if as our knowledge and our observations show, that that was an ecological mistake.

Tony Rossmann:  Mono Lake case did not say that L.A. had to absolutely stop their diversions, in fact the state [Water] Board, to its credit, found a good middle ground of how they could moderate the diversions depending upon how much water nature put down from the Eastern Sierra each year. But the principle was established that you do not destroy public trust values in the navigation of Mono Lake, but more importantly just in the ecological quality of the Mono Basin, unless there are extraordinary circumstances that you have shown that you, the water appropriator, have shown can justify that damage.

Huey Johnson: Can you reflect on where you think the public trust is going to go?

Tony Rossmann:  The sad thing is that I think in recent years, our state has not profited from that decision. The State Board itself and the courts more recently are taking the point of view that the Public Trust Doctrine is basically what we — the State Board — say balancing things on an equal plane. And the courts of appeal have sadly, in at least two cases, come out and said that yeah, it’s a balancing and there is no inherent favoring of the environment in that balancing. That’s not in my view and the view of those who are involved in the case. That’s not what the court meant in the Audubon case, the Mono Lake case, and so that’s where we are today. And the question is: Is California either through a Supreme Court decision, which has not yet come, or a Constitutional Amendment kind of restore the public trust to the point where, yes, it’s not an absolute doctrine, but you start from a presumption that the environment must be protected.

Tony Rossmann:  As painful as it is, you’ve got to find the strength to confront ignorance from whatever quarter it comes, and trustfully with a degree of elegance and grace, convince those that are making the decisions that maybe you should take a second look at this. You haven’t really seen the whole picture and if you take a second look at it, you might see it differently. And of course, that’s what we were fortunate enough to do at a really precious moment in our history. I think we’ll come back there.