Real Estate & Property Law

Cal. Court of Appeals: Public Trust Extends to Wildlife, Plaintiffs Must Sue Enforcement Agency for Breach

By Robert Thomas (inversecondemnation.com)

The California Court of Appeals, First District (San Francisco and other Northern California counties) in Center for Biological Diversity, Inc. v. FPL Group, Inc., No. A116362 (Sep. 18, 2008) held that

The plaintiffs brought suit against the owners and operators of electricity-generating wind turbines at Altamont Pass in Alameda county, asserting the windmills injured birds in violation of the public trust doctrine.  The trial court dismissed the action because the plaintiffs sued the wrong defendants on the wrong cause of action.  The court of appeals agreed, holding (1) birds and other wildlife are part of the "public trust," (2) that plaintiffs could enforce the trust, but (3) they could only sue the trustee of the trust (the government) and not parties alleged to be harming the trust.  

The court held "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." Slip op. at 8.  The court acknowledged that existing public trust decisions deal with bodies of water as habitat for wildlife, but no decision has dealt with whether the wildlife itself is subject to the trust.  Relying on older cases dealing with who owns wild animals, the court held the public trust because "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."  Slip op. at 13.

The court, however, concluded that although members of the public may sue to enforce the public trust, the proper defendant is not the party alleged to be causing harm to the trust corpus, but rather the governmental agency charged with protection of the trust:

We thus reject the conclusion of the trial court that private parties may not invoke the public trust doctrine ?beyond the traditional public trust interest in navigable and tidal waters and tidelands.? That is not to say, however, that plaintiffs are entitled to maintain this action in the manner they have framed it. The defect in the present complaint is not that it seeks to enforce the public trust, but that it is brought against the wrong parties.  Plaintiffs have brought this action against the windmill operators whose actions they allege are destroying natural resources protected by the public trust. Plaintiffs have not proceeded against the County of Alameda, which has authorized the use of the wind turbine generators, or against any agency such as the California Department of Fish and Game that has been given the statutory responsibility of protecting the affected natural resources. When the trial court indicated its intention to grant judgment on the pleadings and dismiss the action, no request was made for leave to amend to state a claim against any such party.

Under traditional trust concepts, plaintiffs, viewed as beneficiaries of the public trust, are not entitled to bring an action against those whom they allege are harming trust property. The trustee charged with the responsibility to implement and preserve the trust alone has the right to bring such an action....Thus, analogizing this action to the enforcement of a traditional trust agreement, the action must be brought against the appropriate representative of the state as the trustee of the public trust.

Slip op. at 16-17 (footnote omitted). The court held that government agencies must have input and the court pointedly reached no conclusion regarding whether there have been any harm to the public trust, or whether those agencies have appropriately balanced the interests. Full opinion here.

Full post as published by inversecondemnation on September 18, 2008 (boomark / email).