Volume 3, Number 1February, 1979

ENVIRONS, a non-partisan environmentallaw/natural resources newsletter publish-ed by King Hall School of Law, and editedby the Environmental Law Society, Univer-sity of California, Davis.

Designation of the employer or otheraffiliation of the author(s) of any article isgiven for purposes of identification of theauthor(s) only. The views expressed hereinare those of the authors, and do notnecessarily reflect the position of theUniversity of California, School of Law,Environmental Law Society, or of anyemployer or organization with which anauthor is affiliated.

Submission of Comments, Letters to theEditor, and Articles is encouraged. Wereserve the right to edit and/or print thesematerials.

Editorial StaffKathi BeaumontChristy BlissWoody BrooksGinny CahillBill CunninghamBill DellerRobert DerhamSue DiamondstoneDiane DillonJudy DukeDanni DunnChris ElmsRobert FarrellScott FinleyBarb FitzmauriceMartha FoxAnne FrassettoJeff HolmesSam linperatiBruce KlafterMichael KramerBarb MalchickTim NeedhamShar RezabekDonald SegerstromWendy ThomsonDick TomodaBruce WaggonerGeorge WailesDebbie WebsterSandra WicksBarry ZiskinHarrison C. Dunning Faculty

AdviserCop~,igh: C

February 1979 UCE Environmental Law 5ociety

0

MANAGINGLAKE TAHOE:

A SecondEffort

The newly proposed California-Nevada compact governing the LakeTahoe Basin is a compromise, reflecting the concerns of environmen-talists as well as the construction and gaming industries. As written, thenew compact significantly restructures the Tahoe Regional PlanningAgency (TRPA), a bistate agency statutorily charged with the duty ofprotecting the environment of the Lake Tahoe Basin.

History and Current Status of the TRPAThe TRPA was originally formed in 1970, pursuant to a Congressionally

approved compact between California and Nevada. Through thedevelopment and administration of a regional plan and land useordinance, it was anticipated that TRPA could successfully balancehuman use of the basin with the fragile ecology of the alpine area.California and Nevada each provided five delegates to sit on the TRPAgoverning board; three members represented local governments withinthe Tahoe Basin and two members represented the state at large. Allmajor public and private construction projects within the basin wererequired to be reviewed and approved by the TRPA governing boardbefore actual development could take place.

In the past eight years, TRPA's efforts have received increasinglycritical attention. Representatives of county and city governments in thebasin claim that TRPA's land use ordinance imposes such severe land userestrictions that it threatens to harm the gaming, recreation andconstruction industries - the basin's economic base. TRPA is also viewedby local citizens as an intrusive governmental body which is unrespon-sive to concerns of the basin's year-round residents. Environmentalistsattack TRPA as an ineffective protector of Lake Tahoe, blaming thepredominance of local representatives on the agency's governing boardfor the approval of many large condominium and hotel-casino projects.

The interests of each state in Lake Tahoe often assumed conflictingpositions. Nevada seeks to protect the established gaming industry at thelake and to ensure Tahoe's future as a gambling resort. Alarmed at therapid spillover of casino support services and second home constructioninto its jurisdiction, California seeks to prevent overly rapid developmentfrom destroying the Lake's value as a scenic mountain area.

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LETTERFROM

THEEDITOR

ENVIRONS is published by the students of King Hall -the University of California, Davis, School of Law. It isedited by members of the Environmental Law Society.

ENVIRONS was founded during the 1976-77 schoolyear to act as a one-stop clearinghouse for thedissemination of all environmental information relevantto the Solano-Yolo-Sacramento area in particular, and tonorthern California in general. Our definition of theenvironmental/natural resources field includes zoning,land use planning, historical preservation, agriculture,water rights, air and water quality, resources develop-ment and conservation, and other related subjects. Ourcurrent circulation is one thousand copies, with mostsubscribers located in northern California and othersscattered across the nation.

ENVIRONS presents its analysis of all substantive issuesin an objective, non-partisan format. This editorialpolicy was adopted in hopes of reaching all segments ofthe population. The need to know is not limited to anypart of the political spectrum.

In this issue, we present our first professional!y writtenarticle, a piece on the development of the public trustdoctrine by Rick Frank, Deputy Attorney General ofCalifornia. We hope to include in future issues asubstantial number of articles written by attorneys,resource managers, and others involved in the develop-ment, implementation, and analysis of environmentaland resources law and policy. We encourage you tosubmit articles for publication in ENVIRONS on yourarea of expertise. Articles presenting the scientific ortechnical implications of environmental/naturalresources regulations and policies, or explaining thenature and significance of the ecological systems whichsuch policies will affect (in a manner understandable by alay audience) are also welcome. All articles submittedshould either conform to our non-partisan format, or beaccompanied by suggestions of possible authors whocould effectively present alternative views of the issues.

We are grateful for your past response to ENVIRONS,including both encouragement and financial support.Our financial situation, however, remains precarious. Toachieve any measure of permanence, ENVIRONS mustbe supported primarily by our readers. If you have notdone so already, please help ensure the continuedpublication of ENVIRONS by making use of thesubscription form in the back of this issue. Suggestionsfor improving ENVIRONS and for obtaining alternativesources of funding are also welcome.

Special thanks for financial support of this issue to theUCD Law Students Association and the American BarAssociation's Law Student Division.

Woody BrooksEditor

UNITED STATESV.

NEW MEXICO:

FederallyReserved

Water Rightsin the

NationalForests

An important United States Supreme Court decisionregarding federally reserved water rights was issued thissummer at the same time as California vs. United States.[ See the article analyzing this case in this issue. Ed.] Inthis case, United States v. New Mexico, - U.S. -, 98 S.Ct. 3012, 57 L. Ed. 2d 1052 (1978), a stream adjudicationwas begun by the State of New Mexico to determine theexact rights of each water user to the water of the RioMimbres. The Mimbres is a short stream originating inthe upper reaches of the Gila National Forest andwinding past more than 50 miles of privately owned landbefore disappearing in a desert sink.

The Federal Government, in setting aside tracts of landfor national parks and.forests, wildlife refuges, and otherfederal purposes, also impliedly reserves sufficient waterappurtenant to the reserved land to accomplish thepurpose of the land reservation. This water is federally"reserved" water.

In this adjudication, the United States claimed areserved water right for use in the Gila National Forest toprovide minimum instream water flows for aesthetic,recreational, fish-preservation and stockwatering pur-poses. Both the District Court of Luna County and theSupreme Court of New Mexico found that the UnitedStates could not establish a reserved right to minimuminstream flows under the circumstances.

In a five to four decision, the United States SupremeCourt, in an opinion by Justice Rehnquist, affirmed theruling of the state courts and held that the OrganicAdministration Act of 1897, which authorized establish-ment of national forests "to improve and protect theforest within the boundaries, or for the purpose ofsecuring favorable conditions of water flows, and tofurnish a continuous supply of timber ...

demonstrated Congress' intent, in setting aside the Gila

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CALIFORNIA V. UNITED STATES:The New Melones Decision

The last cubic yards of rock and earth will soon bepoured. Construction has produced a massive earth-filled dam which blocks the canyon and dwarfs thestructure, one mile upstream, that it will replace. Thephysical existence of New Melones Dam is now a fact.Moreover, the doubt which has plagued its futureoperations is now dispelled. With the United StatesSupreme Court decision in California v. UnitedSates,.U.S. -, 98 S. Ct. 2985, 57 L. Ed. 2d 1018, (1978), the issueof which rules govern the determination of whoultimately controls the dam's operations has beenresolved.

New Melones Dam is scheduled to be a part of theCentral Valley Project (CVP). It was built by the ArmyCorps of Engineers and will be operated by the Bureau ofReclamation (Bureau) as part of the federally funded andoperated CVP. The reservoir has a capacity of 2.4 million.acre feet (MAF), compared with the capacity of 112,000acre feet of the existing Melones Reservoir. TheStanislaus River, which the dam will back up, is animportant recreation and wildlife resource in centralCalifornia.

Background

The legal controversy over New Melones began in1972 when the Bureau applied to the California StateWater Resources Control Board (Board) for permits toappropriate unappropriated water in the StanislausRiver. Following a period of study and hearings, theBoard issued its Decision 1422 in April, 1973. The Boardfound that there was unappropriated water availableduring certain seasons. However, the Board found thatthe Bureau had "no specific plan for applying projectwater to beneficial use at any particular location." TheBoard approved the application, but made the permitssubject to twenty-four conditions. The major import ofthe conditions was to: 1) prohibit full impoundmentuntil the Bureau could show a specific plan for the water;

2) require preference for users in the Stanislaus Riverbasin; 3) require storage releases to control the level oftotal dissolved solids (salinity) in the Sacramento-SanJoaquin Delta, into which the Stanislaus flows, therebyprotecting fish and wildlife.

The Bureau responded by filing a complaint fordeclaratory relief in United States District Court for theEastern District of California. The Bureau alleged that itapplied for-the permits as a matter of comity, but was notrequired to do so as a matter of federal reclamation law.Thus the Bureau sought declaratory relief that: 1) Whenthe United States chooses to submit applications to theBoard, the State must grant the permit if unappropriatedwater is available; 2) The State cannot seek to control afederal reclamation project by placing conditions on thepermit; and 3) Decision 1422 was void in all respectswhere it contradicted federal law. In United States v.California (1975), Judge McBride granted summaryjudgment to the United States (a non-moving party) andentered the requested relief.

On appeal, this judgment was affirmed. The NinthCircuit Court of Appeals altered the judgment slightlyand ruled that the United States was required by federalreclamation law, rather than just comity, to apply to theBoard to determine if unappropriated water wasavailable. However, the judgment was upheld in allother respects.

Supreme Court Decision

The issue of whether a state can place conditions on apermit to a federal water project was resolved by theUnited States Supreme Court on July 3,1978. The Courtheld that a state could make a permit for appropriativewater rights to the federal government conditional solong as the conditions did not contradict a "clearcongressional directive."

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Wetlands preservation is the topic of the July, 1978issue of Environmental Comment. California's role inwetlands protection is analyzed and a special articleexamines the French government's successful manage-ment of the Camargue Reserve in Southern France.Strategies preserving and developing urban waterfrontareas are proposed in Environmental Comment's June,1978 issue, with special attention focused on the Port ofLos Angeles and the California Coastal ManagementProgram.

Nuclear power or "soft" energy sources: theOctober/November, 1978 Not Man Apart includes anarticle on the energy industry's alleged attempt toimprove nuclear power's public image through mediamanipulation. Additionally, there is a piece on how tomanage the transition from conventional to "soft"energy sources, such as geothermal and solar.

Can renewable energy sources provide five-sixths ofthe world's energy supply by the year 2025? Peter Hayes,the organizer of Sun Day, says yes, and explains how inthe July/August 1978 issue of Environment. The sameissue contains an article about the impact of land useplanning decisions on energy conservation.

The City of Davis' progressive growth management,energy and land use policies are featured in the summer1978 annual review issue of Cry California (Vol. 13, No. 3).Entitled "Where's California Going?," the annual

UNITED STATESV.NEW MEXICO(continued from page 2)

National Forest from other public land, to reserve the useof water only where necessary to preserve timber or tosecure favorable waier flows. The court rejected theUnited States' contention that forest protection andimprovement was a third purpose for the reservation,finding instead that this general purpose was limited tothe specified timber and water purposes.

No reserved right was established for aesthetic,recreational, wildlife preservation and stockwateringpurposes. The court did imply that, if the Gila NationalForest had been authorized under a more specific actthan the 1897 Organic Act, possibly some of the instreamflow reserved rights asserted by the United States wouldhave been recognized.

The dissenters, in an opinion by Justice Powell,disagreed with the Court's reading of the Organic Act.They read the above-quoted portion of the Act as settingforth three purposes. Further, they argued, citing the

roundup examines significant environmental trends ofthe past twelve months. Articles of interest include anevaluation of Governor Brown's proposed "UrbanStrategy for California," a commentary on the develop-ment pressures experienced by the foothill communitiesof the Sierra Nevada Mother Lode Country, and ananalysis of Lake Tahoe's political and environmentaltroubles. A special section, "California Futures,"suggests state policies for the coming year in the areas ofenergy sources, timber management, watershedmanagement, disaster planning, and the Los AngelesBasin.

Are you "using" controlled chemicals or are they"using" you? Volume 7, Number 2 of the Ecology LawQuarterly is a special issue titled, "Hazardous Substancesin Environment: Law and Policy." The seven-articleissue is dedicated to improving the quality of hazard-ous substances control.

Does your corporation have standing to sue underNEPA? Read 8 Environmental Law 47 (1977) and-find out.Courts have denied standing to economically injuredcorporations who lack.valid environmental injuries. Thisarticle provides a review of the major judicial decisionson point.

So your city plans to implement an energy conserva-tion program! An overview of the general legal powersand limitations on a city's ability to support energyconservation is found in 8 Environmental Law 131 (1977).The article examines the police power, taxing power,and Commerce Clause as well as the practical con-siderations which could influence a city's exercise of itslegal options.

Samuel J. Imperati

common law and modern works on forest ecology, that aforest could not be conceptually limited to excludeeverything except "useable timber and whatever otherflora is necessary to maintain the watershed," since thesoil, wildlife, fish, and other biota are all part of aninextricably interdependent community upon whichtimber and watershed-maintaining flora are dependent.

Of interest in this case is the trend continued fromCalifornia v. United States in which the court recognizesand grants deference to state water law. Now, applicablestate water rights laws are recognized by the court as aproper means of protecting the important environmen-tal, recreational and aesthetic interests in most nationalforests.

The New Mexico decision also casts substantialuncertainty upon the extent of federally reserved waterrights. Admittedly, this case does not directly affectother reserved rights-the basis of this decision is solelythe Organic Act's limited "purpose." The court,however, takes a restrictive reading of this "purpose"and may do so again when confronted with otherreserved rights cases.

Bill Cunningham

NATIONALFOREST

MANAGEMENT

The National Forests, comprising about 187 millionacres nationwide (about 20 million in California),contain nearly 20 percent of the nation's commercialtimber lands. During the last generation this resourcehas increasingly been exploited, with National Forestsnow yielding almost one-third of our commercial timberproduction. One frequently used method of harvestingtimber is "clearcutting," in which essentially all trees areremoved from a designated area. Clearcutting is oftenmore economical than cutting only individuallydesignated trees, and in certain situations it may be theonly economically feasible method. Selective cutting,however, causes less environmental damage to water-shed and wildlife and theoretically ensures the max-imum yield from each tree.

Two primary laws govern the management of theNational Forests. The Forest Service Organic Act of 1897formally established the National Forest system. TheMultiple Use-Sustained Yield Act of 1960 directed thatthe forests be managed to accomodate other uses, suchas watershed, grazing, wildlife, and recreation, alongwith lumbering, and further, that timber harvests belimited to the maximum rate that can be sustained inperpetuity.

In affirming the 1975 Monongahela decision, theUnited States Court of Appeals for the Fourth Circuitdeclared clearcutting of National Forests to be a violationof the Organic Act. In the Monongahela National Forest,428 acres were to be clearcut in units ranging in size fromfive to twenty-five acres. The court interpreted the act torequire that trees, not merely areas, be individuallymarked, and only large, dead, or physiologically maturetrees be cut. Thus clearcutting, and also such manage-ment practices as thinning (removal of some trees from astand to promote the growth of those remaining, or toimprove the forest for other uses), were not permitted.

This decision caused a panic in the timber industry.According to Department of Agriculture estimates,compliance with the court's interpretation would havecut timber production by 90 % in young eastern forestsand 50 % in the older western forests. Serious hardship

would be inflicted on the timber industry. Considerableunemployment and increased cost to the consumer ofpaper, pulp, and wood products would be a direct resultof the elimination of clearcutting.

Congress reacted quickly by passing the NationalForest Management Act of 1976 which amended theForest and Rangeland Renewable Resources PlanningAct of 1974 (RPA). The new section 6 of RPA directs theSecretary of Agriculture to prepare plans for themanagement of all National Forest lands by 1985. Itfurther orders the Secretary to develop regulationsgoverning the development and revision of the landmanagement plans. These regulations were recentlyreleased in draft form in the Federal Register.

The Proposed Rules

The rules provide detailed procedures for thepreparation of the management plans and establishguidelines and standards for resource management. Theprocedures for formulating plans involve extensivepublic participation at all levels. Each National Forest'ssupervisor is to appoint an interdisciplinary team ofresource managers to develop a proposed forest planand a correlative environmental impact statement (EIS).The forest supervisor will review the interdisciplinaryteam's evaluation of alternatives and recommend apreferred alternative for the final EIS.

The regulations establish Standards and Guidelines formanagement which must be followed in the plans.These Standards and Guidelines have not satisfied eitherthe timber industry or the environmental groups. Themost controversial issues, according to the Committee ofScientists who worked with the Forest Service in thedrafting of the regulations are: diversity of tree species,identification of lands not suitable for timber produc-tion, silvicultural guidelines, and timber harvestschedul-ing. On each of these issues the draft regulations aredisappointing to some environmentalists and on somethey are displeasing to the timber industry.

It would be useful to look at each of these issues andsee what the differences are.

Diversity: The regulations do provide for evaluation ofthe effect of proposed changes on diversity of fish andwildlife and for implementation of the silviculturalsystem which preserves diversity of tree species whereappropriate. However, the regulations specifically allowfor the removal of a particular species of tree afterconsideration has been given to the multiple uses of thearea being planned.

Environmental groups want the diversity of tre'especies in the forests to be maintained for the protectionof various types of wildlife. They do not wish to see theNational Forests become single-species tree farms,practical to harvest, but far from their natural state.

Identification of land not suitable for timber produc-tion: The regulations exclude from harvesting land onwhich timber production would cause irreversibledamage to soils, productivity, watershed conditions, orsignificant adverse impact on threatened or endangeredspecies. Also, land which could not be adequatelyrestocked within five years will not be harvested.Environmentalists would prefer more detailed and lesssubjective standards for protection of water and soil.

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PUBLICTRUSTDOCTRINE:CurrentTrends

..0.1

andFutureOpportunities

By RICHARD M. FRANKDeputy Attorney General

State of California

Not very long ago, "environmental law" consistedexclusively of a few loosely-related common lawdoctrines such as nuisance and trespass. More recentyears have seen the enactment of comprehensivelegislation to confront a broad spectrum of environmen-tal concerns ranging from air and water pollution to toxicsubstance control to land use planning. Nevertheless,environmental lawyers are finding that recourse tovarious long-standing common law concepts oftenremains worthwhile. A case in point is the public trustdoctrine, which is receiving renewed attention in theform of several recent and pending California decisions.

Origins of the Public Trust Doctrine

The public trust concept is founded in ancient Englishand Roman law. The doctrine, simply stated, is that thegovernment holds certain types of natural resources intrust for the benefit of the public at large. Theseresources are protected by the trust against unfairdealing and waste. Like any conventional trustee, thegovernment must observe standards of proceduralcorrectness and substantive care. Historically, the publictrust has been applied to ocean beds, beaches, lakes andother waterways. The foundations of contemporaryAmerican public trust law are set forth in an 1892 UnitedStates Supreme Court case, Illinois Central Railroad v.Illinois, in which the court voided a wholesale giveawayby the Illinois Legislature of the Chicago waterfrontalong Lake Michigan to a private railroad. Afterchronicling the rather questionable history of thetransaction, the court enunciated the principal holdingof the case: When government holds a resource that isavailable for general public use, a court will carefully

review any governmental attempt to alienate thoseresources to private parties or otherwise restrict publicrights.

The California Supreme Court embraced this conceptin a landmark but often overlooked 1913 decision,People v. California Fish Co., holding that the state couldnot sell sovereign lands along San Pedro Bay withoutnecessarily retaining a public easement for the publictrust. The Court did not comprehensively address theissue again until the 1970s, when in one case it appliedthe trust to the shoreline resources of Tomales Bay andexpanded the public trust beyond the traditional uses ofcommerce, navigation and fishing, to encompassenvironmental protection and other objectives. It wasthis 1971 decision, Marks v. Whitney, that gave en-vironmentalists an effective legal tool in their efforts tocontrol development of shorelines and other ecological-ly sensitive areas. Simultaneously, the case raisednumerous other questions that are just beginning to beaddressed by the courts.

The Berkeley Waterfront Litigation

Over the past 125 years, the character of San FranciscoBay has been altered dramatically. Large portions of thebay have been artificially filled for purposes ofdevelopment, with a concomitant loss of naturalwetlands and open space. (This was the primary impetusbehind the creation of the San Francisco Bay Conserva-tion and Development Commission in the 1960's.) Thesedredging and filling activities were fostered in large partby legislative grants of tidelands in the nineteenthcentury. The legitimacy and scope of some of these earlygrants in light of the state's public trust responsibilities

are currently being contested in an action involving 656acres of the tide and submerged lands along the Berkeleywaterfront.

In a pending lawsuit, individual and corporateclaimants recently attempted to quiet their title to theBerkeley waterfront as against the City of Berkeley andthe State of California in Alameda County SuperiorCourt. In doing so, the private parties relied upon earlydeeds issued in the 1870s by a special board created bythe Legislature. Some of the shoreline has been filled butis undeveloped. Other portions remain in their naturalstate. The state and city's position is that the state wasincapable of selling these lands to private parties or,alternatively, that the private sales are subject to areserved easement in favor of the public under thepublic trust doctrine.

In a 1977 order granting partial summary judgment,the trial court generally upheld the private landowners'position. The court ruled that the sales constituted valid,absolute grants of the waterfront and that any and allpublic rights to the property under the public trustdoctrine were thereby terminated.

The state and city sought appellate court review of thedecision, and last summer the First District Court ofAppeal, in City of Berkeley v. Superior Court, reversedthe trial court ruling. After describing in considerabledetail the history of the legislative land grant program,the Court of Appeal held that these lands were soldsubject to the public trust, and that they generally remainimpressed with an "easement for the trust purposes."

This controversial case remains unsettled. InSeptember, the California Supreme Court agreed toreview the appellate court decision. However theSupreme Court rules, its decision is likely to have aprofound effect on the future pattern of developmentand land use control not only along the Berkeleywaterfront, but throughout San Francisco Bay (whereover 15,000 acres of still unfilled land are located andsubject to private claims under similar deeds). Inrecognition of this fact, interest groups as diverse as theCalifornia Land Title Association and the Save SahFrancisco Bay Association have already filed friend of thecourt briefs. The fundamental issues to be resolved inthis and similar cases are (1) the extent to whichlegitimate trust purposes, such as public recreation andenvironmental preservation of increasingly preciousCalifornia waterways, are to be protected, and (2) therelationship that benefits derived under the public trustbear to the exercise of private property rights.

Tahoe, Donner, and Clear Lake Litigation

Somewhat related public trust issues are likely to beresolved in cases involving three of California's mostscenic mountain lakes: Lake Tahoe, Donner Lake andClear Lake. In all three cases, individuals owningproperty along the lakes have sued the State of Californiato determine the boundary between private uplands andthe publicly-owned lakebeds. The precise issue iswhether the state owns the lakes to their high waterlevels or only to low water-a question that bearssubstantially on the fate of beaches, marshes, and otherareas of ecological and recreational significance. As analternative argument, the state is asserting that even ifprivate parties own the lakefront to the low waterline,the areas between low and high waterlines are subject to

the state-held easement for public trust purposes. Thiseasement would presumably provide the state with ameans to ensure that the lands are managed in a mannerconsistent with public trust goals. The private parties tothe litigation contest not only the existence of the trust inthese factual circumstances, but also the generalapplicability of the doctrine to inland-as opposed tocoastal-waterways.

These cases are in various procedural stages beforeCalifornia trial and appellate courts, and it will be sometime before a definitive ruling is obtained on the legalprinciples involved.

The Public Trust in the Future

The Berkeley waterfront and mountain lake cases aremerely the first stages in a renewed judicial examinationof the public trust doctrine. As environmental lawyersexplore the potential uses of the concept, four basicthemes are likely to predominate:

I. What resources are impressed with the public trust?As indicated above, the courts traditionally have focusedon waterways in their efforts to establish and apply thepublic trust theory. Nevertheless, an aggressive andimaginative application of the concept could con-ceivably increase its scope to include virtually all air,water and land resources. To date, California courts havebeen none too clear on this point; last month theCalifornia Supreme Court reaffirmed that fish found inthe state's lakes and rivers are subject to the trust, whileearlier in the year the Court of Appeals in San Diegorefused to afford such status to archeological remains.

2. What uses of resources are consistent with the trust?It was only in the 1971 Marks v. Whitney decision thatCalifornia courts first acknowledged that environmentalconcerns formed a proper basis and rationale for theexercise of the publictrust. In earlier eras, the courts hadfound governmental activities ranging from oil drilling tohighway construction as being consistent with the trust.Reconciling and choosing among these often conflictinguses will be a recurring problem.

3. Who has ultimate responsibility for the administra-tion of the trust? As the agency vested with authorityover sovereign lands in California, the State LandsCommission has Identified Itself as holder and ad-ministrator of the public trust. However, language in theCoastal Act of 1976 reveals that the Legislature may haveintended the Coastal Commission to play a role in thisprocess with respect to the California coastline.Moreover, as the concept of the public trust expands toencompass more resources, other agencies at variouslevels of government may become involved.

4. What is the scope of governmental authority underthe public trust? This is an issue that has received littletreatment in California decisions to date. Ironically, it islikely to prove the most significant in the long run. Whatdoes appear clear is that public agencies, acting toenforce the public trust, have regulatory options beyondthose found under the police power. The constitutionaltaking and just compensation issues, for example, areinapplicable where the former concept is concerned.

The public trust doctrine is a fertile resource in thebattle for environmental protection. Its future utility isdependent largely on the imagination and vigor withwhich it is applied.

MANAGING LAKETAHOE:A Second Effort(continued from page 1)

As its popularity as a recreational site has increased inrecent years, the Lake Tahoe Basin has experiencedsignificant environmental deterioration. The area isformally classified as a "non-attainment area" under thefederal air quality standards, largely as a result of heavyautomobile use within the basin. This means that airpollution exceeds the acceptable levels established bythe Clean Air Act of 1972 and subsequent amendments.Increased soil erosion and siltation into the lake threatento destroy the purity and clarity of its water. Demand forsewage treatment and other essential services currentlyexceeds existing capacities. The new TRPA compactattempts to address the criticisms propounded by bothenvironmental and developmental concerns, and to haltfurther destruction of the basin's environmental quality.

Environmental Guidelines

One of the primary changes effected by the newcompact is a dilution of local government representationon TRPA's governing board. Each state's delegation willbe increased to seven members. Three members will beelected representatives from the major county and citygovernments in the basin, and three members, ap-pointed by the state legislature and the governor, willrepresent non-basin areas of the state. The six members,in turn, will appoint a seventh representative. Althoughlocal interests will be represented, local government willno longer control a clear majority of the governingboard.

The new compact significantly amends the governingboard's procedures for voting to approve or rejectconstruction projects reviewed by the agency. Underthe existing compact, a board decision to either approveor disapprove a proposed project must be agreed to by amajority of each state's delegation. A project which doesnot receive a majority vote from each state is "deemedapproved" if the governing board takes no further actionwithin sixty days of the original vote. In effect, no projectcould be rejected which was favored by three membersof either state's delegation. In the past, several largecasino projects, now the subject of litigation, wereapproved by the agency under this "dual majority" rule.As revised by the new compact, this is no longer possible.The compact specified that any project which fails toreceive at least four favorable votes from each state'sdelegation will be treated as denied if the agency doesnot act on the project within the subsequent sixty dayperiod.

The environmental criteria guiding the agency'sproject decisions will be more stringent under therevised compact. TRPA will be required to propose andadopt a regional plan consisting of several interdepen-dent plans for land use, transportation, conservation,recreation, and public services and facilities. Utilizingthe concepts of environmental quality thresholds and

carrying capacities, the land use plan will permitdevelopment in a given area only if construction will notbe unduly disruptive of the soil stability, vegetation, andother features of the area's ecology. Further, federal andstate air and water quality standards will be applied to theLake Tahoe Basin to protect environmental quality.

The new compact, like the existing agreement,provides that TRPA's ordinances, rules, and regulationsestablish a minimum environmental standardthroughout the basin. The TRPA, as well as the states,counties, and cities which have jurisdiction within thebasin are required to enforce all plans and ordinancesadopted by the agency. Any construction project whichwill have an effect on the natural resources of the LakeTahoe area must be approved by the agency prior toconstruction. To approve a project, the agency must findthat it conforms to the TRPA regional plan and land useordinance. The new compact specifically gives TRPAreview power over all proposed public works projectsfor the basin, and approval power over all state agencyproposals which would affect Lake Tahoe's environ-ment. The TRPA governing board will have an extendedtime limit-180 days-in which to review and vote oneach project submitted to it. A project approval grantedby the agency expires within three years from the date ofapproval, unless the project applicant has commencedcon truction in a diligent fashion.

TRPA's enforcement powers have been enhancedsubstantially by the new compact. In the past, a violationof the TRPA ordinance was punishable as a mis-demeanor. Under the new agreement, any person orgovernmental entity who violates the compactprovisions will be subject to a civil fine of up to $100,000per violation. Additional civil fines of up to $5,000 perday may be imposed for violations of TRPA's regionalplan, ordinances or specific conditions of projectapproval. Thus, in recognition of the need to forestallfuture degradation of Tahoe's environment, the newcompact authorizes the TRPA to adopt strict protectivemeasures and provides the means to actively enforcethem.

Regulations for Development

Perhaps the compact's most obvious concession toNevada interests is the recognition of gaming as aconforming use in certain specifically designatedportions of the Lake Tahoe Basin. Remodeling,relocation and expansion of gambling floorspace withinexisting casinos is permitted if approval is first obtainedfrom the Nevada Environmental Commission. AlthoughTRPA does not have approval power over such projects,the Nevada Environmental Commission staff are re-quired to consult with TRPA prior to taking final action.However, expansions and additions to the exterior ofexisting casinos do require TRPA approval. Under therevised compact, no new casinos may be built at LakeTahoe. Although the new compact curtails theexpansion of Lake Tahoe as a gambling resort, it doesplace the regulation of existing casinos primarily underNevada's control.

The potential for further construction and develop-ment of the Tahoe Basin under the proposed compact isuncertain at this point. A minimal amount of develop-ment will be permitted under the public services andfacilities element of the regional plan. Specifically, the

element will allow construction of public servicefacilities "which, by the nature of their function, size,extent and other characteristics, are necessary orappropriate for inclusion in the regional plan." Both theland use and transportation elements of the regionalplan will establish criteria for determining where andwhat types of residential, commercial and highwayconstruction will be allowed. No clear guidelines arearticulated in the compact. While some level ofconstruction activity is assured, the extent of such activitywill depend on the regional plan to be adopted byTRPA.

Although the TRPA compact appears to achieve aworkable compromise between California and Nevadainterests, it contains several flaws from the perspective oflocal government. Most apparent is the reduction in theInfluence of local government representatives sitting onTRPA's policy-making boards. In-basin county and cityrepresentatives are guaranteed only six seats on thefourteen-member governing board. Additionally, lessthan half of the fifteen-member advisory planningcommission, responsible for drafting the agency'sregional plan, will consist of local government delegates.

Perhaps the most unacceptable feature of the newcompact from a local viewpoint is the retention of theregional plan, ordinances, and regulations adopted bythe California Tahoe Regional Planning Agency (CTR-PA). Created by the California Legislature in 1967, theCTRPA exercises jurisdiction over the California portionof the Tahoe Basin and actively enforces more stringentland use controls than the TRPA. The dual layer of"outside government" resulting from the overlappingjurisdiction of CTRPA and TRPA has been vociferouslyresented by local citizens. Under the proposed compact,CTRPA regulations will be enforced by the TRPA only inthe California portion of the basin. The continuedexistence of CTRPA as a separate governmental body atLake Tahoe remains uncertain. A final objection to thecompact is that it will require counties within the basin tofoot a heavy financial bill to support TRPA's workingbudget. Some representatives feel that localgovernments will receive very little direct benefit inreturn from the new TRPA.

Federal Participation on TRPA

The federal government will play an important, butunobtrusive, role in assuring the smooth functioning ofthe new TRPA. The President will appoint a nonvotingfederal representative to sit on the TRPA governingboard. Similarly, a representative of the United StatesForest Service will participate as a member of TRPA'sadvisory planning commission. Federal air and waterquality standards will be used as a baseline for theregional plan, and TRPA will be required to oversee theattainment and maintenance of these standards in theyears ahead. The Council on Environmental Quality andthe U. S. Forest Service will participate in the develop-ment of an initial environmental impact statement (EIS)for the basin. This EIS will function as an initial inventoryof Lake Tahoe's environmental quality and will provide afoundation for drafting the new TRPA regional plan.Other federal agencies must be consulted for commentson the initial EIS, and on all subsequent project EIS'sprepared by TRPA. Finally, federal agencies within theTahoe Basin are specifically directed to cooperate withCIRPA until the new TRPA regional plan is drafted.

Ambiguities

The new compact fails to clarify two issues which arecrucial to the future of Lake Tahoe's environment: 1)The applicability of the National Environmental PolicyAct (NEPA) to the TRPA, and 2) the likelihood that severalcasino projects approved by TRPA in 1973 and 1974 willbe permitted to proceed with construction.

In order for the NEPA to apply, TRPA must be deemeda federal agency. Although an interstate compact iscreated pursuant to federal law, it is uncertain whether abistate agency whose formation is authorized by such acompact is an agency of the federal government forpurposes of NEPA. In the past, TRPA asserted that it didnot have to comply with NEPA or with state environmen-tal quality acts, The new compact adopts many of thepolicies, portions of the language, and the EIS require-ment of NEPA. Additionally, it provides for an initial EISto be prepared as a foundation for the new regional plan,and outlines substantial federal participation in TRPA'sday-to-day functions. Although the compact neverspecifically states that TRPA must comply with NEPA'sprovisions, the language suggests that TRPA willimplement NEPA-at least to a limited extent. In a suitcurrently pending before the federal district court inReno, CTRPA has alleged that TRPA's 1978 approval ofadditions to the North Shore Club casino violates NEPA'sprovisions. Absent clarification of the compact'slanguage, the issue may ultimately be resolved by thejudiciary.

The fate of several large casino projects approved bythe TRPA in 1973 and 1974 remains uncertain. CTRPAfiled suit against four of the casinos in 1977, allegingTRPA approved the projects in violation of provisions ofthe TRPA land use ordinance. In the past year the federalgovernment has indicated an interest in purchasing twoof the proposed casino sites which are the subject oflitigation. The revised compact will permit constructionof these casinos as originally approved by the TRPAunless a court ultimately determines: 1) that approval ordevelopment of the project violates an applicablefederal, state, or regional regulation, or 2) TRPA'sapproval of the pToject is void or invalid, or 3)development of the project would constitute a nuisanceor would be enjoinable. However, the compact alsostates that the intent is not to approve or prohibit anyproject whose validity is challenged in a lawsuitregardless of the outcome of the litigation.

Conclusion

Although the essential provisions of the compact havebeen accepted as satisfactory by negotiators from eachstate, the eventual success of the compact is far fromcertain. Initially, the compact must be ratified by theCalifornia and Nevada legislatures. Congressionalapproval is also necessary before the compact becomeseffective. If accepted by all parties, it is doubtful that thecompact could become operative before late 1979. Asproposed, the compact addresses and resolves many ofthe deficiencies in the existing TRPA legislation. Like anyplan, it is not perfect. However, it provides a workableframework for accomodating both public and privateinterests in the Lake Tahoe Basin.

Kathi Beaumont

10

The New MelonesDecision

(continued from page 3)

The focus of the issue was sec. 8 of the Reclamation Actof 1902. This section provides that, "nothing in this Actshall be construed as affecting ... the laws of any State...relating to the control, appropriation, use or distributionof water used in irrigation ... and the Secretary of theInterior, in carrying out the provisions of this Act, shallproceed in conformity with such laws . . . ." Ininterpreting this section, the Court reviewed thedevelopment of water rights and reclamation law in thewestern states. Note was made of the "SeveranceDoctrine" expounded in California Oregon Power Co. v.Beaver Portland Cement, (1935) to show that water onthe public domain was "subject to the plenary control ofthe States." After tracing the same concept through theMining Act of 1866, the Desert Lands Act of 1877, andlegislation in the 1890's which reserved reservoir sites forthe federal government, the Court looked extensively atthe legislative history of the 1902 Reclamation Act todetermine the legislative intent in sec. 8.

The Court concluded that the legislative intent wasunmistakably that of state control. Numerous quoteswere taken from the Congressional Record. Amongthem was a response by a sponsor of the reclamation billto the charge that under the bill the federal governmentcould condemn water in contravention of state law.Representative Mondell said that "the bill providesexplicitly that even an appropriation of water can not bemade except under state law." The Court also quotedfrom the House Committee Report on the bill which saidthat "sec. 8 recognized State control over waters of non-navigable streams."

After establishing the legislative history and intent ofthe 1902 Act, the Court addressed itself to prior casesrelied on by the lower courts. In Ivanhoe Irrigation Dist.v. McCra cken (1958) and City of Fresno v. California(1963), the Court had ruled that sec. 8 did not compel thefederal government to comply with a state law which wasinconsistent with a specific federal provision. The mosttroubling problem was a statement in Ivanhoe that "weread nothing in sec. 8 that compels the United States todeliver water on conditions imposed by the State." InUnited States v. California the Court found that thisstatement "went beyond the actual facts of that case,"disavowing it as "dictum." The Court's rationale focusedon the fact that in Ivanhoe a direct conflict betweenfederal and state law existed. Where no such conflictexists, as in United States v. California, the Court decidedthat sec. 8 does require the federal government to followstate law.

The majority concluded their argument by noting theBureau policy of complying with state law, and by citingtwo recent Acts, the Flood Control Act of 1944, whichauthorized New Melones, and the McCarren Amend-ment (subjecting the United States to state courtjurisdiction for general stream adjudications), to showthe general legislative intent to have states control thewater within their boundaries.

The dissent felt that the true rule should be thestatement from Ivanhoe, arguing primarily on the

grounds that federal law controls. The case, however,can be viewed as a blow for state's rights, especially whencompared with another case reported the same day,United States v. New Mexico. [A casenote on this casefollows this article. Ed.] That case construed the doctrineof federal reserved water rights very narrowly and inaccordance with the state position on the issue. Thus thetwo cases, both authored by Justice Rehnquist, supportthe view advanced by the Board that the states retainthe power to control their water resources, absentsuperceding federal directives.

The Future

The immediate future of the New Melones decisionwill be a further review of Decision 1422 by the federaldistrict court to determine if any of its conditions doconflict with a "clear congressional directive." The Statemay seek to strengthen its position by renewing itsarguments that the United States is equitably andcollaterally estopped from denying the validity ofDecision 1422. The equitable estoppel argument is thatthe federal government as in the past always initiatedand complied with the Board's decisions and should notnow be heard to deny the existence of the Board'sjurisdiction. The collateral estoppel argument is that theBureau failed to pursue its state court remedy, pursuantto California statute, and is therefore bound by theBoard's decision. The District Court previously held thatthere was no collateral estoppel because the Boardlacked jurisdiction over the Bureau. If California v.United States can be seen as recognizing this jurisdiction,the collateral estoppel argument may be revived.

Regardless of the outcome in this instance, the realimpact of the ruling will be to give the State a muchstronger hand in water management in California. Inaddition to delaying the inundation of the StanislausRiver until the Bureau can show a specific plan for thewater, the decision will have a tremendous impact on thedevelopment of a comprehensive plan for managementof the Sacramento-San Joaquin Delta. The Bureau hasconsistently maintained that it is not required to meetstate-mandated water quality standards in the operationof its Delta facilities. The decision in California v. UnitedStates may be the ammunition the State needs to make itsDelta water quality standards stick. This newly con-firmed element of state control will also be a major factorin the continuing controversy over the Peripheral Canal.[See "The Peripheral Canal: Moment of Decision,"ENVIRONS, Vol. 2, No. 2, and "The Peripheral Canal: ASetback in Round Two," ENVIRONS, Vol. 2, No. 4. Ed.]Moreover, it will provide a stronger state voice in thefuture development of reclamation projects in Califor-nia.

It is interesting to note that this re-emerging conceptof state control comes from amidst the most massivefederal reclamation project in the nation. It is also fittingthat the Court looked back to the early development ofreclamation law in the west to find this concept. TheCourt pointed out that the federal government'sintended role was that of assisting the state in developingits water resources rather than controlling it. FromCalifornia's point of view, the New Melones decision hasevened out a long-standing imbalance.

Donald Segerstrom

NATIONAL FORESTMANAGEMENT

(continued from page 5)

Silvicultural guidelines: The regulations allow, but donot require, that other objectives besides timberproduction be considered when choosing a method ofharvesting. The regulations provide that the systemshould, among other things, provide protection forstreams and other water and provide for steps topreserve diversity. Clearcutting is permitted when it isdetermined to be the "optimum method," defined asthat "most favorable and conducive to the achievementof multiple-use goals specified in the plan." Clearcuttingis the issue that initiated this entire problem in theMonongahela case and environmental groups wouldprefer a strict definition of when clearcutting may beused and a limit on the areas harvested by that system.

Timber Harvest Scheduling: The regulations requirethat, until the planned harvest rate reaches the long-term sustained yield capacity, the planned harvest foreach successive decade equal or surpass the planned saleand harvest for the preceding decade. That is, a largerharvest is required each decade as long as the futurepotential of the forest is not damaged. Departure fromthis standard will be allowed when it is not producingsufficient timber to meet the planned objectives or whenthe economy of the area would be injured by restrictingharvest to the base schedule.

Environmentalists do not approve of any departurefrom the "non-declining yield." Timber interests wouldlike to see departures whenever there would be "greaterpublic benefits." This would give them greater flexibilityin the amount of timber produced from a particularforest in a particular year.

Summary

This is an area in which there can be no real agreementbecause the opposing sides have completely differenttheories about the proper use of the National Forests.Environmentalists want to maintain the forests as nearlyas possible in their natural states. Logging interests wantto use the forests in the most efficient manner for theproduction of timber.

The Forest Service, as "Steward of the Land," attemptsto manage the forests in a manner that will, to thegreatest extent possible, satisfy both groups. It acts tobalance these interests as well as to attempt to managethe land in the best interests of all the people of thenation.

The regulations, because of their many subjectivestandards, leave practical decisions to the individualForest Service officials or to the planning process.

The public participation in the planning process maywell be the most significant part of these regulations.The forest plans, which will be drafted with as muchinput from environmentalists, the timber industry, andthe general public as they wish to contribute, will makethe real determinations as to what is to be done with andto the National Forests.

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EnvironsEnvironmental Law SocietyKing HallUniversity of CaliforniaDavis, California 95616

managing lake tahoe page 1

letter from the editor page 2

united states v.new mexico page 2

california v. united states:new melones decision page 3

literature review page 4

national forestmanagement page 5

public trust doctrine page 6