Political & Legal Chronology
1. The protection of Mono Lake through the enforcement of the Public Trust Doctrine. Dating from the time of Roman law, this ancient legal doctrine protects navigable bodies of water for the use and benefit of all the people. In a 1983 precedent-setting decision, the California Supreme Court ruled that the state has an obligation to protect places such as Mono Lake "as far as feasible," even if this means a reconsideration of past water allocation decisions.
2. The protection of fisheries in the streams tributary to Mono Lake through the enforcement of California Fish and Game codes. These codes, which can be described as a legislative expression of the Public Trust, were previously unenforced. Section 5937 states: "the owner of any dam shall allow sufficient water at all times to pass over, around, or through the dam, to keep in good condition any fish that may be planted or exist below the dam." Section 5946 states: "no...license to appropriate water (in portions of Mono and Inyo counties) shall be issued...unless conditioned upon full compliance with section 5937."
These legal principles are the basis of the landmark 1994 decision made by the State Water Resources Control Board, in which the Department of Water and Power's (DWP's) water licenses were amended. In the decision, the state had to comply with Fish and Game code requirements for Mono Lake's tributary streams, and, on top of the water needed to protect the fisheries, ensure that the lake's public trust values (such as air quality, scenic and wildlife values) were protected.
Summary of Mono Lake
The following is a brief history of the Mono Lake litigation. It also includes important legislation designations, including the landmark September 28, 1994 decision by the State Water Resources Control Board amending the Los Angeles Department of Water and Power (DWP) water diversion licenses in the Mono Basin.
1979 - Public Trust Suit: Initially brought before the Mono County Superior Court by the National Audubon Society (NAS), Mono Lake Committee (MLC), and others. The Public Trust Suit is the cornerstone of the legal efforts to protect Mono Lake. The suit charged that the Los Angeles Department of Water and Power's (DWP) water diversions violated the Public Trust Doctrine. The Public Trust case was originally argued as: National Audubon Society v. Los Angeles. Superior Court of Alpine County No. 6429. It carried this title when it reached the California Supreme Court: National Audubon Society v. Superior Court. 33 Cal. 3d 419 (1983).
1981 - Mono Lake Tufa State Reserve: As a result of the lobbying efforts of the MLC and others, the shorelands exposed due to the decline of Mono Lake were designated as the Mono Lake Tufa State Reserve.
1983 - Public Trust Suit: The California Supreme Court ruled that the state has an obligation to protect places such as Mono Lake "as far as feasible," even if this means reconsidering past water allocation decisions. The court also ruled that the courts and the State Water Resources Control Board (SWRCB) have concurrent jurisdiction in cases of this kind. Click here to read the decision.
1984 - Rush Creek Lawsuit: Initially brought before the Inyo County Superior Court against DWP by the Mammoth Fly Rodders and later joined by the MLC, NAS, and California Trout (CalTrout). The suit charged that DWP's diversions violated the Public Trust Doctrine, California Fish and Game codes, and the California Environmental Quality Act. The court issued a temporary restraining order requiring DWP to release 19 cubic feet per second (cfs) into lower Rush Creek.
1984 - Mono Basin National Forest Scenic Area: As a result of the lobbying efforts of the MLC and others, Congress established the Mono Basin National Forest Scenic Area.
1985 - Rush Creek Lawsuit: The Mono County Superior Court issued a preliminary injunction which required DWP to continue to release a flow of 19 cfs into Rush Creek to protect public trust resources.
1985 - Water License Challenge Lawsuit (CALTROUT I): Brought before the Third District Court of Appeals against the SWRCB by the MLC, NAS, and CalTrout. The plaintiffs argued that DWP's state-granted water diversion licenses on Rush, Lee Vining, Walker and Parker creeks violated the Fish and Game codes.
1986 - Lee Vining Creek Lawsuit: Brought before the Mono County Superior Court by the MLC on the same grounds as the Rush Creek Lawsuit. The court granted a temporary restraining order which required DWP to release a flow of up to 10 cfs down Lee Vining Creek.
1987 - Lee Vining Creek Lawsuit: The Mono County Superior Court issued a preliminary injunction which required DWP to continue to release flows of 4-5 cfs down Lee Vining Creek to protect public trust resources.
1989 - Water License Challenge Suit: The California Third District Court of Appeals ruled that the SWRCB must bring DWP's licenses into compliance with the Fish and Game codes.
1989 - Water License Challenge Suit: The California Supreme Court turned down DWP's motion to review the Appellate Court decision, letting it stand.
1989 - Coordinated Proceedings: The Public Trust Suit, Water License Challenge Suit, and the Lee Vining and Rush Creek Suits were coordinated into one proceeding and the coordinated proceedings moved to El Dorado County Superior Court, Judge Terrence Finney presiding.
1989 - Coordinated Proceedings: The El Dorado Superior Court agreed to rule on motions brought by MLC and NAS for interim relief for Mono Lake. The court granted a preliminary injunction for a period of one year to halt the lake's decline and stabilize the level of Mono Lake at 6,377 feet above sea level.
1989 - Coordinated Proceedings: At the request of the SWRCB, the court stayed the Mono Lake litigation for four years to allow the SWRCB to conduct an Environmental Impact Report and subsequent hearing to recondition DWP's water rights licenses to comply with the Public Trust Doctrine and the Fish and Game codes.
1990 - Water License Challenge Suit (CALTROUT II): Because the SWRCB did not act as ordered, the MLC, NAS, and CalTrout returned to the Third District Court of Appeals. The court ordered immediate compliance and mandated that the historic fisheries on all four streams be restored.
1990 - Coordinated Proceedings: Directed by the Third District Court of Appeals under CalTrout II, the El Dorado Superior Court set interim flows for Rush, Lee Vining, Parker, and Walker creeks and ordered DWP to "help re-establish the conditions that benefited the fisheries prior to 1941."
1991 - Coordinated Proceedings: After a 40-day evidentiary hearing, Judge Finney granted MLC's and NAS's motion renewing the preliminary injunction which required that Mono Lake be maintained at an elevation of 6,377 feet until the completion of the SWRCB process to amend the DWP licenses and until all legal appeals of that decision are exhausted.
1990-94 - Restoration Technical Committee (RTC): Throughout 1990-94, the MLC and NAS served on a court-ordered committee overseeing interim fishery habitat restoration programs on Walker, Parker, Rush, and Lee Vining creeks. The RTC was a result of the El Dorado Superior Court's 1990 interim flow order. Other groups serving on the committee were CalTrout, the California Department of Fish and Game, DWP, SWRCB, and the United States Forest Service. The RTC disbanded upon issuance of the Water Board decision.
Sept. 28, 1994 - State Water Resources Control Board Decision, D-1631: On this date, the SWRCB issued its landmark decision amending DWP's water diversion licenses in the Mono Basin. The purpose of the Water Board's decision is twofold: to comply with Fish and Game Codes 5937 & 5946, and to protect public trust values at Mono Lake as ordered by the California Supreme Court in 1983. D-1631 calls for a lake level of 6392 feet, which will take about 20 years to achieve. During this period, some diversions will be allowed to Los Angeles. Once the lake reaches 6392 feet, DWP will be able to divert, on average, 31,000 acre-feet of water, or about 1/3 of the City's historical diversion from the Mono Basin. The difference will be more than made up for by replacement water supplies. D-1631 orders DWP to develop plans to restore waterfowl and stream habitat damaged as a result of diversions, and to pay implementation costs associated with the restoration. More background on D1631.
1995 -- U.S. Fish and Wildlife Service: Announced in the Federal Register on September 7 that the Mono Lake Brine Shrimp did not require endangered status under the Federal Endangered Species Act. The USFWS credited the California State Water Resources Control Board's order to maintain the water level of Mono Lake.
1995-96 -- Mono Lake Water Rights Cases: Additional legal action occurred before Judge Finney over when the court's jurisdiction in the CalTrout II portion of the Coordinated Proceedings was to end. He ruled in April, 1996 that the court's jurisdiction ends when the SWRCB adopts a stream restoration plan.
1997 -- State Water Resources Control Board Proceedings: In early 1997 the SWRCB held hearings on DWP's proposed restoration plans. These hearings were halted when most of the parties announced that they had come to a conceptual agreement, and a month later a settlement agreement signed by most of the parties was presented to the Water Board. Hearings were then held on the settlement. Click here to read the transcripts of these hearings.
1998 -- State Water Resources Control Board Proceedings: On September 2, the SWRCB ordered the implementation of stream and waterfowl habitat restoration measures in the Mono Basin. These orders also effectively end court jurisdiction over the proceedings. Click here to read the orders.
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