SandBar 8:1, April, 2009

California Court Defers to State Agencies on Public Trust Question

Center for Biological Diversity, Inc. v. FPL Group, Inc., 166 Cal App. 4th 1349 (2008).

Jonathan Proctor, 2L, University of Mississippi School of Law

A California appellate court rejected a suit brought by an environmental group alleging that wind turbines were killing thousands of birds of prey in violation of the public trust doctrine. Although the court agreed that the birds were within the scope of the public trust doctrine, it ruled that the group improperly challenged the violation of the doctrine and dismissed the action.

Background
According to the Center for Biological Diver­ sity (CBD), since the installation of wind-powered turbines in Alameda County, California in 1981, tens of thousands of raptors, including eagles, hawks, falcons, and owls, have been killed by these generators.1 The group claimed that the more than five thousand turbines in question were inefficient and obsolete; newer models would not only produce more energy, but would inflict significantly less damage on the bird population.

      CBD sought an injunction to stop the wind farm operators, FPL Group, from using its current turbines. The group claimed that by using the turbines, FPL was in violation of state and federal law, including the public trust doctrine. CBD argued that the destruction of wildlife falls under the public trust doctrine based on the general public’s loss of a protected resource: the raptors. The Superior Court of Alameda County dismissed the claim, holding that private parties were not permitted to bring an action for the violation of the public trust doctrine arising from the destruction of wildlife.

Expansion of the PTD
On appeal, the wind farm operators first argued that the public trust doctrine only applies to tidelands and navigable waters, excluding wildlife.2 Historically, FPL’s assertion is correct. Fundamentally, the public trust doctrine is a principle of common law declaring that the state holds title to submerged land under navigable waters in trust for the benefit of the public. However, public trust law has evolved. Recognizing that the public has an interest not only in coastal lands, but also in the wildlife contained therein, courts have expanded the public trust doctrine to include natural resources for various public purposes.

      Accordingly, the appellate court disagreed with the lower court’s conclusion that wildlife is not protected under the public trust doctrine. The court noted that it is well-settled in California that wildlife is within the scope of the public trust doctrine. California courts have held that the transient nature of wildlife dictates that they may not be “owned” in the traditional sense of property; logically, if wildlife belongs to no one, then it belongs to the public and the state has a duty to protect the public’s interest.3 California law explicitly states that “fish and wildlife resources are held in trust for the people of the state.”4

Standing
Although wildlife is protected by the public trust, the court questioned whether members of the public had standing to sue to protect wildlife under the public trust doctrine. Until this case, only actions brought by public entities have attempted to regulate governments’ actions regarding wildlife.5 However, the court stated that individual members of the public are entitled to bring such suits. “Wildlife, including birds, is considered to be a public trust resource of all the people of the state, and private parties have the right to bring an action to enforce the public trust.”6 Furthermore, the very nature of the public trust creates a burden upon the state to protect such resources, and the state cannot be solely responsible for overseeing its own actions. The general public must be free to file suit when the state has neglected its duties. The court noted that protection is meaningless without the opportunity for enforcement.7

      Though CBD had standing to bring this action, the court found that the group incorrectly sought relief from the wind farm operators, not against Alameda County. The government, in this case Alameda County, bears the responsibility of protecting the public trust. While FPL may be directly responsible for the turbines which continue to harm the raptor population, the county allows those turbines to operate via the issuance of permits. Even if some public trust action by CBD existed against FPL, the court stated that it would abstain from judgment in “deference to the regulatory oversight being provided by public alternatives.”8 The court also noted that once the trial court ruled in FPL’s favor, CBD could have requested that Alameda County be joined in the suit but did not.

Conclusion
The responsibility to enforce resources protected by the public trust resides solely with the government. Should the government fail, the beneficiaries of the trust may seek judicial intervention. However, such proceedings must include the government. By only seeking relief from the wind farm operators, CBD did not properly address their grievances. Had CBD first pursued relief from the appropriate regulatory body of Alameda County and then, assuming that action failed, filed suit against the county, the case would have been allowed to proceed. Most importantly, though the court affirmed the trial court’s ultimate decision, it did emphasize that private entities may file suit for such claims. In doing so, it strengthened the general public’s ability to enforce the government’s duty to protect resources in the public trust.

Endnotes
1.   Center for Biological Diversity, Inc. v. FPL Group, Inc., 166 Cal. App. 4th 1349, 1355 (Cal. Ct. App. 2008).
2.   Id. at 1350.
3.  Golden Feather Community Assn. v. Therma­ lito Irrigation Dist., 257 Cal. Rptr. 836 (Cal. Ct. App. 1989).
4.   Cal. Fish & Game Code A7 711.7 (2009).
5.   Center for Biological Diversity, 166 Cal. App. 4th at 1365.
6.   Id. at 1354.
7.   See Illinois Cent. R. Co. v. Illinois, 146 U.S. 387 (1982).
8.   Center for Biological Diversity, 166 Cal. App. 4th at 1371.