Center for Biological Diversity, Inc. v. FPL Group, Inc., 166 Cal. App. 4th 1349
While the public trust doctrine has evolved primarily around the rights of the public with respect to tidelands and navigable waters, the doctrine is not so limited. “[T]he public trust doctrine is not just a set of rules about tidelands, a restraint on alienation by the government or an historical inquiry into the circumstances of long-forgotten grants.” (Sax, Liberating the Public Trust Doctrine from Its Historical Shackles (1980) 14 U.C. Davis L.Rev. 185, 186.) “Whatever the doctrine may have meant in Roman law, in medieval continental Europe, or in English law, the courts in this country have treated the public trust largely as a public property right of access to certain public trust natural resources for various public purposes.” (Dunning, The Public Trust: A Fundamental Doctrine of American Property Law in Issues in Legal Scholarship: Sax and the Public Trust (Cooter et al. edits., 2003) p. 4, fns. omitted [as of Sept. 18, 2008].)
(2) The California Supreme Court has unequivocally embraced and expanded the scope of the public trust doctrine insofar as it relates to tidal and navigable bodies of water. (E.g., National Audubon Society v. Superior Court (1983) 33 Cal.3d 419, 435 [189 Cal.Rptr. 346, 658 P.2d 709] (National Audubon Society); City of Berkeley v. Superior Court (1980) 26 Cal.3d 515 [162 Cal.Rptr. 327, 606 P.2d 362] (City of Berkeley).) These relatively recent cases reflect the property rights rationale that historically underlies the doctrine, reiterating that the state holds tidelands and navigable waters “not in its proprietary capacity but as trustee for the public.” (City of Berkeley, supra, at p. 521; see National Audubon Society, supra, at p. 434.) Both National Audubon Society and City of Berkeley hold that the public trust ensures more expansive public use of trust property than was the case historically. “Although early cases expressed the scope of the public’s right in tidelands as encompassing navigation, commerce and fishing, the permissible range of public uses is far broader, including the right to hunt, bathe or swim, and the right to preserve the tidelands in their natural state as ecological units for scientific study.” (City of Berkeley, supra, at p. 521.) “`There is a growing public recognition that one of the most important public uses of the tidelands — a use encompassed within the tidelands trust — is the preservation of those lands in their natural state, so that they may serve as ecological units for scientific study, as open space, and as environments which provide food and habitat for birds and marine life, and which favorably affect the scenery and climate of the area.'” (National Audubon Society, supra, at pp. 434-435.)
While these cases recognize that an important purpose of the public trust over bodies of water is to protect the habitat for wildlife, neither was addressing whether a public trust protects the wildlife itself. In City of Berkeley the court held that tidelands in San Francisco Bay conveyed to private parties pursuant to authorizing legislation nonetheless remained subject to the public trust, except to the extent that intervening events had rendered the property substantially valueless for trust purposes. In National Audubon Society the court held that the public trust doctrine is one component of California’s integrated system of water law, imposing a continuing duty on the state to take trust uses into account in allocating water resources, and requiring a reconsideration of the allocation that had been made of the waters in the Mono Basin. Both cases spoke of the scope of the public trust in these contexts, but neither the holdings, analysis or dicta suggest that bird life or other wildlife are not within the scope of the public trust doctrine.[13]
(3) To the contrary, it has long been recognized that wildlife are protected by the public trust doctrine. “Because wildlife are generally transient and not easily confined, through the centuries and across societies they have been held to belong to no one and therefore to belong to everyone in common.” (Huffman, Speaking of Inconvenient Truths — A History of the Public Trust Doctrine, p. 63 [as of Sept. 1362*1362 18, 2008].) Older decisions articulate this concept in property terms, as did the court in Golden Feather Community Assn. v. Thermalito Irrigation Dist., supra, 209 Cal.App.3d 1276. In Ex parte Maier (1894) 103 Cal. 476, 483 [37 P. 402], in upholding a prosecution for the violation of a statute prohibiting the sale of deer meat in California, even though the deer had been killed lawfully in another state, the California Supreme Court observed, “The wild game within a state belongs to the people in their collective, sovereign capacity; it is not the subject of private ownership, except in so far as the people may elect to make it so; and they may, if they see fit, absolutely prohibit the taking of it, or any traffic or commerce in it, if deemed necessary for its protection or preservation, or the public good.” The United States Supreme Court subsequently cited this “well-considered opinion” in support of “[t]he common ownership, and its resulting responsibility in the State” over game (or, as described in the opinion, “animals ferae naturae”). (Geer v. Connecticut (1896) 161 U.S. 519, 527, 529 [40 L.Ed. 793, 16 S.Ct. 600], overruled in Hughes v. Oklahoma (1979) 441 U.S. 322 [60 L.Ed.2d 250, 99 S.Ct. 1727].)[14] After reviewing the history of laws controlling the taking of game, the court observed: “Whilst the fundamental principles upon which the common property in game rests have undergone no change, the development of free institutions has led to the recognition of the fact that the power or control lodged in the State, resulting from this common ownership, is to be exercised, like all other powers of government, as a trust for the benefit of the people, and not as a prerogative for the advantage of the government, as distinct from the people, or for the benefit of private individuals as distinguished from the public good. Therefore, for the purpose of exercising this power, the State … represents its people, and the ownership is that of the people in their united sovereignty.” (Geer v. Connecticut, supra, 161 U.S. at p. 529; see also, e.g., Lacoste v. Dept. of Conservation (1924) 263 U.S. 545, 549 [68 L.Ed. 437, 44 S.Ct. 186] [“The wild animals within its borders are, so far as capable of ownership, owned by the State in its sovereign capacity for the common benefit of all of its people.”]; People v. Truckee Lumber Co., supra, 116 Cal. at pp. 400-401 [“The dominion of the state for the purposes of protecting its sovereign rights in the fish within its waters, and their preservation for the common enjoyment of its citizens, is not confined within the narrow limits suggested by defendant’s argument. It is not restricted to their protection only when found within what may in strictness be held to be navigable or otherwise public waters.”]; People v. Stafford Packing Co. (1924) 193 Cal. 719, 725 [227 P. 485] [“the general right and ownership of fish is in the people of the state …”]; People v. Monterey Fish Products Co. (1925) 195 Cal. 548, 563 [234 P. 398]; California Trout, Inc. v. State Water Resources Control Bd. (1989) 207 Cal.App.3d 585, 629-630 [255 Cal.Rptr. 184]; Betchart v. Department of Fish & Game (1984) 158 Cal.App.3d 1104, 1106 [205 Cal.Rptr. 135]; People v. Harbor Hut Restaurant (1983) 147 Cal.App.3d 1151, 1154 [196 Cal.Rptr. 7].)
(4) The ownership rationale employed in earlier cases has come to be recognized as a legal fiction. “The whole ownership theory … is now generally regarded as but a fiction expressive in legal shorthand of the importance to its people that a State have power to preserve and regulate the exploitation of an important resource.” (Toomer v. Witsell (1948) 334 U.S. 385, 402 [92 L.Ed. 1460, 68 S.Ct. 1156].) “The `ownership’ language … must be understood as no more than a 19th-century legal fiction expressing `the importance to its people that a State have power to preserve and regulate the exploitation of an important resource.'” (Douglas v. Seacoast Products, Inc. (1977) 431 U.S. 265, 284 [52 L.Ed.2d 304, 97 S.Ct. 1740]; see Hughes v. Oklahoma, supra, 441 U.S. at pp. 334-335.) But, “while the fiction of state ownership of wildlife is consigned to history, the state’s responsibility to preserve the public’s interest through preservation and wise use of natural resources is a current imperative. In essence, the public trust doctrine commands that the state not abdicate its duty to preserve and protect the public’s interest in common natural resources.” (Meyers, supra, p. 10; see Matter of Steuart Transp. Co., supra, 495 F.Supp. at p. 40.)
Thus, whatever its historical derivation, it is clear that the public trust doctrine encompasses the protection of undomesticated birds and wildlife. They are natural resources of inestimable value to the community as a whole. Their protection and preservation is a public interest that is now recognized in numerous state and federal statutory provisions. (Fish & G. Code, § 711.7, subd. (a) [“The fish and wildlife resources are held in trust for the people of the state by and through the department [of Fish and Game].”]; id., § 1600 [“The Legislature finds and declares that the protection and conservation of the fish and wildlife resources of this state are of utmost public interest. Fish and wildlife are the property of the people and provide a major contribution to the economy of the state, as well as providing a significant part of the people’s food supply; therefore their conservation is a proper responsibility of the state.”]; id., § 1801 [“It is hereby declared to be the policy of the state to encourage the preservation, conservation, and maintenance of wildlife resources under the jurisdiction and influence of the state. This policy shall include the following objectives: [¶] … [¶] (b) To provide for the beneficial use and enjoyment of wildlife by all citizens of the state. [¶] (c) To perpetuate all species of wildlife for their intrinsic and ecological values, as well as for their direct benefits to all persons….”]; see also id., §§ 1802, 2000, 2052, 3503.5, 3511, 3513, 3800, 12000; Pen. Code, § 597; Cal. Code Regs., tit. 14, §§ 472, 509; 16 U.S.C. §§ 668, 703; 50 C.F.R. §§ 10.13, 21.11, 22.11 (2008).)
(5) In Environmental Protection & Information Center v. California Dept. of Forestry & Fire Protection (2008) 44 Cal.4th 459 [80 Cal.Rptr.3d 28, 187 P.3d 888] (EPIC), the California Supreme Court most recently referred to “two distinct public trust doctrines” — “the common law doctrine, which involves the government’s `affirmative duty to take the public trust into account in the planning and allocation of water resources'” and “a public trust duty derived from statute, specifically Fish and Game Code section 711.7, pertaining to fish and wildlife.” (Id. at p. 515.) The court observed that “[t]here is doubtless an overlap between the two public trust doctrines — the protection of water resources is intertwined with the protection of wildlife.” (Ibid.) The court also stated that “the duty of government agencies to protect wildlife is primarily statutory.” (Ibid.) For purposes of deciding the issues presented in this case, it matters not whether the obligations imposed by the public trust are considered to be derived from the common law or from statutory law, or from both. Either way, public agencies must consider the protection and preservation of wildlife although, as the Supreme Court indicates, the contours of that obligation are, “[g]enerally speaking” (ibid.), defined by statute. What must be determined here is whether members of the public have the right to enforce that obligation and, if so, whether they may do so in an action against private parties who are adversely affecting trust property.