From Mono Lake to the Atmospheric Trust: Navigating the Public and Private Interests in Public Trust Resource Commons

This Article partners a summary of the Mono Lake story — one of the all-time great tales of environmental, property, and water law — with additional historical context, expanded legal analysis, and new reporting on contemporary public trust developments, especially Juliana vs. United States and the unfolding atmospheric trust climate litigation. The Mono Lake case and its progeny — in which the public trust doctrine has been applied in contexts ranging from takings litigation to groundwater management to fracking regulation and now to climate change — prompt reflection about the way the public trust doctrine navigates complex conflicts between public and private rights in natural resource commons. This treatment explores the origins of the public trust doctrine in Roman and British common law through its development in American law, including the U.S. Supreme Court’s 1892 affirmation of the doctrine as a background principle of state law in Illinois Central Railroad vs. Illinois. It then introduces the law of private water allocation in the eastern and western United States — riparian rights and prior appropriations, respectively. It considers how the public commons theory that underlies the public trust doctrine collides unapologetically with the privatization theory that undergirds the western doctrine of prior appropriations, enabling academic analysis of how this conflict so famously played out at Mono Lake. The Mono Lake case, National Audubon Society v. Superior Court, arose over water conflicts between Los Angeles and the Mono Lake Basin, the eastern watershed of Yosemite National Park, some 400 miles to the north. In 1983, the California Supreme Court took the first steps toward resolving that conflict by drawing on an ancient common law doctrine with roots in early Roman and British law — the public trust doctrine — which entrusts the state to manage certain natural resource commons for the benefit of the public. Since then, the Mono Lake case has remained the leading example of modern public trust litigation in the United States, inspiring a new age of public trust advocacy throughout the country and even the world. The article summarizes the historical and judicial elements of the Mono Lake story, including the implications of the court’s decision for understanding the public trust doctrine as a limit on sovereign authority. It summarizes the criticisms that followed from advocates for property rights, the constitutional separation of powers, and environmental concerns, and reviews the doctrinal progeny of the case, including the Scott River extension of Audubon Society to groundwater resources, the Pennsylvania’s Supreme Court’s application of public trust principles to fracking regulation, and now the atmospheric trust climate litigation emerging worldwide