Filed 8/29/18
                              CERTIFIED FOR PUBLICATION




                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                              THIRD APPELLATE DISTRICT
                                         (Sacramento)
                                                ----



 ENVIRONMENTAL LAW FOUNDATION et al.,                           C083239

                  Plaintiffs and Respondents,                (Super. Ct. No.
                                                            34201080000583)
          v.

 STATE WATER RESOURCES CONTROL
 BOARD,

                  Defendant, Cross-defendant and
 Respondent;

 COUNTY OF SISKIYOU,

                  Defendant, Cross-complainant and
 Appellant.




       APPEAL from a judgment of the Superior Court of Sacramento County,
Christopher E. Krueger, Judge. Affirmed.

      James M. Underwood, Interim County Counsel and Natalie E. Reed, Assistant
County Counsel; Best Best & Krieger and Roderick E. Walston for Defendant, Cross-
complainant and Appellant.




                                                 1
       Downey Brand, Christian L. Marsh, Arielle O. Harris and Austin C. Cho for
California State Association of Counties, California Association of Sanitation Agencies
and League of California Cities as Amici Curiae on behalf of Defendant, Cross-
complainant and Appellant.

      Damien M. Schiff and Jeremy Talcott for Pacific Legal Foundation and California
Farm Bureau Federation as Amici Curiae on behalf of Defendant, Cross-complainant and
Appellant.

       Briscoe Ivester & Bazel, John Briscoe and Lauren Bernadett for Association of
California Water Agencies as Amicus Curiae on behalf of Defendant, Cross-complainant
and Appellant.

      James Wheaton and Lowell Chow; Glen H. Spain; UC Davis School of Law and
Richard M. Frank for Plaintiffs and Respondents.

      Xavier Becerra, Attorney General, Robert W. Bryne, Assistant Attorney General,
Tracy L. Winsor, Daniel M. Fuchs, Allison E. Goldsmith and Mark W. Poole, Deputy
Attorneys General, for Defendant, Cross-defendant and Respondent.




       This appeal presents two important questions involving the application of the
public trust doctrine to groundwater extraction—whether the doctrine has ever applied to
groundwater and, if so, whether the 2014 Sustainable Groundwater Management Act
(SGMA) abrogated whatever application it might have had, replacing it with statutory
rules fashioned by the Legislature. We are invited to opine on these questions in the
absence of a specific and concrete allegation that any action or forbearance to act by the
State Water Resources Control Board (Board) or permit issued by County of Siskiyou
(County) to extract groundwater actually violated the public trust doctrine by damaging
the water resources held in trust for the public by the Board or the County. Rather, the
Environmental Law Foundation and associated fishery organizations Pacific Coast
Federation of Fishermen’s Association and Institute for Fisheries Resources (collectively
ELF), the Board, and the County amicably solicit our opinion as to whether the public
trust doctrine giveth the Board and the County a public trust duty to consider whether the


                                             2
extractions of groundwater adversely affect public trust uses of the Scott River and
whether SGMA taketh those duties away. (Wat. Code, § 10720 et seq.)1
        Concerned that the parties had merely solicited an advisory opinion, we asked
them to brief the threshold question whether the case is justiciable. In its tentative ruling,
the trial court too had found declaratory relief was not available because there was no real
controversy between the parties. The parties, including amici curiae, urge us as they did
the trial court, to address what they characterize as an issue of great public importance.
The trial court acquiesced because “[i]f the issue of justiciability is in doubt, it should be
resolved in favor of justiciability in cases of great public interest.” (National Audubon
Society v. Superior Court (1983) 33 Cal.3d 419, 432, fn. 14 (National Audubon).) We
agree with the trial court and will consider the case on the merits.
        But the supplemental briefing also illuminates the narrowness of the issues before
us. We are asked to determine whether the County and the Board have common law
fiduciary duties to consider the potential adverse impact of groundwater extraction on the
Scott River, a public trust resource, when issuing well permits and if so, whether SGMA
on its face obliterates that duty. There are no challenges to any specific action or failure
to act by the County or the Board in betrayal of their duties to protect the Scott River.
Thus, while the issue may have significant importance to the public and its fiduciaries,
any potential transgressions remain abstractions.2



1   Further undesignated statutory references are to the Water Code.
2 As the trial court pointed out, “The present motions concern only the existence, vel
non, of the Board’s authority and duty under the public trust doctrine to take some action
regarding groundwater extractions, where those extractions harm public trust uses in
public trust waters. Precisely what that action would be is an issue that is left for another
day.”

   In a similar vein, the County cites a new case assertedly in support of its argument that
it lacks discretion to administer the public trust. But California Water Impact Network v.

                                               3
       The scope of our ruling in this context, therefore, is extraordinarily narrow. We
eschew consideration of any hypothetical factual scenarios and will not attempt to define
the common law public trust duties of the Board or the County in light of how SGMA is
actually implemented. The parties insist this seeks only to determine whether the
enactment of SGMA, without more, abolishes or fulfills the common law duty to
consider the public trust interests before allowing groundwater extraction that potentially
harms a navigable waterway. We need not, and do not, opine on a host of arguments that
go beyond the limited scope of the two dispositive issues framed above.3




County of San Luis Obispo (2018) 25 Cal.App.5th 666, is a California Environmental
Quality Act (CEQA; Pub. Resources Code, § 21000 et seq.) case, not a case involving the
public trust doctrine. Whether approval of well permits are ministerial acts exempt from
CEQA bears no relevance to the important questions involving the public trust doctrine
and groundwater raised in this case.
3  Amici curiae Pacific Legal Foundation and the California Farm Bureau Federation
raise a host of issues, including unlawful takings that are not ripe for our consideration.
“ ‘Amicus curiae must accept the issues made and propositions urged by the appealing
parties, and any additional questions presented in a brief filed by an amicus curiae will
not be considered.’ ” (Pratt v. Coast Trucking, Inc. (1964) 228 Cal.App.2d 139, 143,
quoting Eggert v. Pacific States S. & L. Co. (1943) 57 Cal.App.2d 239, 251; see also,
Bialo v. Western Mutual Ins. Co. (2002) 95 Cal.App.4th 68, 73-74.)

   Echoing the need for a narrow ruling, amicus Association of California Water
Agencies points out the Scott River has received unique attention from the Legislature.
“The Legislature finds and declares that by reasons of the geology and hydrology of the
Scott River, it is necessary to include interconnected ground waters in any determination
of the rights to the water of the Scott River as a foundation for a fair and effective
judgment of such rights, and that it is necessary that the provisions of this section apply
to the Scott River only.” (§ 2500.5, subd. (d).) While we acknowledge the limited scope
of our review, dictated as it must be by only those issues that are ripe for review and
raised by the parties, we do not base our decision on the special legislation pertaining to
the Scott River. The fact that the Scott River stream system includes groundwater
interconnected with the Scott River may exacerbate the adverse impacts on the public
trust but the legal issue is whether the state has a fiduciary duty to consider any adverse
impacts when groundwater extraction harms a navigable waterway.

                                              4
                                           FACTS
       We need not recite the procedural journey since this case began in 2009 because
the parties ultimately stipulated to 11 undisputed material facts and ELF dismissed its
claim for injunctive relief. All that is left of the initial complaint is ELF’s request for
declaratory relief. The County’s second amended cross-complaint against the Board is
similarly confined to declaratory relief. The trial court resolved the questions of law at
issue here in three steps: (1) granting a partial judgment on the pleadings in July 2014;
(2) denying the County’s motion for reconsideration in April 2015; and (3) granting
ELF’s motion for summary judgment and denying the County’s cross-motion for
summary judgment in August 2016. We begin with the pertinent stipulated facts and end
with a summary of the trial court’s legal conclusions. Our review is de novo. (People ex
rel. Harris v. Pac Anchor Transportation, Inc. (2014) 59 Cal.4th 772, 777; Saelzler v.
Advanced Group 400 (2001) 25 Cal.4th 763, 767.)
       The subject of the public trust is the Scott River in Siskiyou County, a tributary of
the Klamath River and a navigable waterway for the purposes of the public trust doctrine.
This case does not involve any of the water or water rights previously adjudicated in the
Scott River Decree in 1980. The Scott River Decree does not adjudicate groundwater
extractions from wells outside the geographical area covered by the decree. Yet pumping
of interconnected groundwater in the Scott River system that has an effect on surface
flows is occurring outside of the geographical area covered by the decree. The County
established a permit program for the construction standards for new wells and a
groundwater management program that regulates the extraction of groundwater for use
outside the basin from which it is extracted.
       ELF and the County filed cross-motions for partial judgment on the pleadings as
to the four affirmative defenses raised by the County. In granting ELF’s partial judgment
on the pleadings, the court made important findings. “[T]he public trust doctrine protects
the Scott River and the public’s right to use the Scott River for trust purposes, including

                                                5
fishing, rafting and boating. It also protects the public’s right to use, enjoy and preserve
the Scott River in its natural state and as a habitat for fish. [Citation.] If the extraction of
groundwater near the Scott River adversely affects those rights, the public trust doctrine
applies.”
       The court also ruled on arguments “directed at [ELF’s] request for injunctive and
writ relief, and concern[ing] the County’s duty, if any, under the public trust doctrine.”
In this context, the court ruled: (1) section 10750 et seq. concerning groundwater
management plans “does not subsume the public trust doctrine, rendering it inapplicable
to groundwater;” (2) “[T]here is no conflict between authorizing the County to adopt a
groundwater management plan, and requiring it to comply with the public trust doctrine,”
and therefore “[i]f the County’s issuance of well permits will result in extraction of
groundwater adversely affecting the public’s right to use the Scott River for trust
purposes, the County must take the public trust into consideration and protect public trust
uses when feasible;” (3) “As a subdivision of the State, the County ‘shares responsibility’
for administering the public trust” and has a public trust duty to consider the impacts of
new wells on public trust uses in the Scott River, when it issues permits for construction
of the wells; (4) there is no violation of the separation of powers; and (5) the Scott River
Decree does not preclude the application of the public trust doctrine to Scott River
groundwater, because ELF alleges that the public trust doctrine applies only to
groundwater outside the area of adjudication.
       Initially, the trial court did not decide whether the Board had authority to regulate
the groundwater under the public trust doctrine because “neither motion for judgment on
the pleadings is brought by, or asserted against, the Board.” The County filed a cross-
complaint against the Board alleging that the Board is not authorized to regulate
groundwater under the public trust doctrine.
       After the proceedings on the motions for judgment on the pleadings, the
Legislature enacted SGMA, a system of groundwater regulation in California to take

                                               6
effect in varying stages over the next decade regarding designated groundwater basins.
(Stats. 2014, Ch. 346, § 3; see, e.g., §§ 10720.7, subd. (a), 10735.8, subd. (h).) The
County asked the trial court to reconsider its order in light of the new legislation. The
court denied the County’s motion, finding that the Legislature did not intend to supplant
the common law but to the contrary, “rather than stating SGMA supplants the common
law, the Legislature went out of its way to state that SGMA supplements and does not
alter the common law.” The court explained further that there is no sound reason why the
Supreme Court’s holding in National Audubon, supra, 33 Cal.3d at p. 445 “about the
relationship between the appropriative water rights system and the public trust doctrine
would not apply equally to the relationship between SGMA and the public trust doctrine
– they coexist and neither occupies the field to the exclusion of the other.”
       Anxious to avoid trial and expedite an appeal, the parties entered into an extensive
stipulation about further proceedings and withdrew all of their claims but for the request
for declaratory relief on the questions of law resolved in the motions for judgment on the
pleadings, the motion for reconsideration, and ultimately on the cross-motions for
summary judgment. As mentioned, the parties also filed a statement of undisputed
material facts and agreed “that any factual issues not included in the Stipulation of
Undisputed Facts are not raised in this litigation, and are not relevant to the issues raised
in this litigation.”
       The parties agreed the court had decided the following questions of law:
       “1. The public trust doctrine applies to extraction of groundwater from the Scott
River system, to the extent that such extraction of groundwater affects public trust
resources and uses in the Scott River.
       “2. The County, in issuing permits for wells that would result in extraction of
groundwater has a public trust duty to consider whether the wells will affect public trust
resources and uses in the Scott River.



                                              7
       “3. The Groundwater Management Act, Water Code sections 10750 et seq., does
not conflict with the County’s public trust duty as described in Paragraph V(A)(2) above.
       “4. The Sustainable Groundwater Management Act (“SGMA”), Water Code
sections 17320 [sic] et seq., which was enacted by the Legislature in 2014, does not
conflict with the County’s public trust duty as described in Paragraph V(A)(2) above.
       “5. The Scott River Decree of 1980 does not alter the County’s public trust duty
as described in Paragraph V(A)(2) above.”
       The cross-motions for summary judgment presented one legal issue: whether the
Board has the authority and duty under the public trust doctrine to regulate extractions of
groundwater that affect public trust uses in the Scott River. The trial court granted
summary judgment in favor of ELF and the Board and against the County. The court
explained: “The Water Code as a whole, as construed by the courts, ‘vest[s] in the Board
broad adjudicatory and regulatory power and suggest the Board’s regulatory authority is
coincident with that of the Legislature.’ [Citation.] Given the Board’s broad authority to
administer the State’s water resources, it is but a short step to the conclusion that the
Board has the authority to administer the public trust on behalf of the State. In other
words, assuming the public trust doctrine is applicable to the facts alleged in this case, the
Board is the logical entity to exercise the State’s authority and obligations thereunder.
Simply put, if not the Board, then who?”
       On appeal, the County contends the Board has neither the authority nor the duty to
consider how the use of groundwater affects the public trust in the Scott River; nor does
the County have a public trust duty to consider whether groundwater uses by new wells
affect public trust uses in the Scott River. Several amici add their voices to the merits of
the appeal.4



4The parties filing amicus curiae briefs are: California State Association of Counties,
California Association of Sanitation Agencies and League of California Cities; Pacific

                                              8
                                       DISCUSSION
                                               I

Does the public trust doctrine apply to the extraction of groundwater that adversely
impacts a navigable waterway?
       From ancient Roman roots, the English common law has developed a doctrine
enshrining humanity’s entitlement to air and water as a public trust.5 The public trust
doctrine rests on several related concepts. “First, that the public rights of commerce,
navigation, fishery, and recreation are so intrinsically important and vital to free citizens
that their unfettered availability to all is essential in a democratic society. [Citation.] ‘An
allied principle holds that certain interests are so particularly the gifts of nature’s bounty
that they ought to be reserved for the whole of the populace. . . . [¶] Finally, there is often
a recognition, albeit one that has been irregularly perceived in legal doctrine, that certain
uses have a peculiarly public nature that makes their adaptation to private use
inappropriate. The best known example is found in the rule of water law that one does
not own a property right in water in the same way he owns his watch or his shoes, but
that he owns only a usufruct—an interest that incorporates the needs of others. It is thus
thought to be incumbent upon the government to regulate water uses for the general
benefit of the community and to take account thereby of the public nature and the
interdependency which the physical quality of the resource implies.’ [Citation.]”
(Zack’s, Inc. v. City of Sausalito (2008) 165 Cal.App.4th 1163, 1175-1176.)
       In a then shocking renunciation of the fee title to the submerged lands in the
harbor of Chicago the State of Illinois had transferred to a railroad, the United States


Legal Foundation and California Farm Bureau Federation; and Association of California
Water Agencies.
5 “ ‘By the law of nature these things are common to mankind – the air, running water,
the sea and consequently the shores of the sea.’ (Institutes of Justinian 2.1.1.)” (National
Audubon, supra, 33 Cal.3d at pp. 433-434.)

                                               9
Supreme Court in 1892 first enunciated the sanctity of a public trust over navigable
waterways. Illinois Central Railroad v. Illinois (1892) 146 U.S. 387 [13 S.Ct. 110]
(Illinois Central), established that “the title which a State holds to land under navigable
waters is . . . held in trust for the people of the State, in order that they may enjoy the
navigation of the waters and carry on commerce over them, free from obstruction or
interference by private parties; that this trust devolving upon the State in the public
interest is one which cannot be relinquished by a transfer of the property; that a State can
no more abdicate its trust over such property, in which the whole people are interested, so
as to leave it under the control of private parties, than it can abdicate its police powers in
the administration of government and the preservation of the peace; and that the trust
under which such lands are held is governmental so that they cannot be alienated, except
to be used for the improvement of the public use in them.” (Long Sault Development Co.
v. Call (1916) 242 U.S. 272, 278-279 [37 S.Ct. 79].)
       Illinois Central remains the seminal case on the public trust doctrine. (San
Francisco Baykeeper, Inc. v. State Lands Com. (2015) 242 Cal.App.4th 202, 234
(Baykeeper).) The case instructs courts to “ ‘look with considerable skepticism upon any
governmental conduct which is calculated either to reallocate that resource to more
restricted uses or to subject public uses to the self-interest of private parties.’ [Citation.]”
(Zack’s, Inc. v. City of Sausalito, supra, 165 Cal.App.4th at p. 1176.)
       The doctrine is expansive. (Colberg, Inc. v. State of California ex rel. Dept. Pub.
Wks. (1967) 67 Cal.2d 408, 416-417.) “The range of public trust uses is broad,
encompassing not just navigation, commerce, and fishing, but also the public right to
hunt, bathe or swim. [Citation.] Furthermore, the concept of a public use is flexible,
accommodating changing public needs. [Citation.] For example, an increasingly
important public use is the preservation of trust 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

                                              10
scenery and climate of the area.” [Citation.]’ [Citation.]” (Baykeeper, supra,
242 Cal.App.4th at p. 233.)
       Moreover, the public trust doctrine is more than a state’s raw power to act; it
imposes an affirmative duty on the state to act on behalf of the people to protect their
interest in navigable water. As our Supreme Court has mandated: “[T]he public trust is
more than an affirmation of state power to use public property for public purposes. It is
an affirmation of the duty of the state to protect the people’s common heritage of streams,
lakes, marshlands and tidelands, surrendering that right of protection only in rare cases
when the abandonment of that right is consistent with the purposes of the trust.”
(National Audubon, supra, 33 Cal.3d at p. 441.)
       What Illinois Central was on the national level in the nineteenth century, National
Audubon was to California in the twentieth century—a monumental decision enforcing,
indeed expanding, the right of the public to benefit from state-owned navigable
waterways and the duty of the state to protect the public’s “common heritage” in its
water. We reject the County’s effort to diminish the importance of the opinion, including
its mistaken labeling of its central holdings as dicta.6 To the contrary, National Audubon
is binding precedent, factually analogous, precisely on point, and indeed dispositive of
the threshold question in this appeal: does the public trust doctrine apply to the
extraction of groundwater that adversely impacts the Scott River, a navigable waterway?
       We begin with the extraordinary collision of values exposed in National Audubon.
The Department of Water and Power of the City of Los Angeles (DWP), pursuant to a


6  We reject any notion that the Supreme Court’s discussion of the public trust doctrine in
National Audubon was mere dicta. To the contrary, the discussion was essential to the
decision. We agree with ELF that the public trust doctrine’s relationship to the regulation
of water was literally the substantive question before the court. “Statements by appellate
courts ‘responsive to the issues on appeal and . . . intended to guide the parties and the
trial court in resolving the matter following . . . remand’ are not dicta.” (Sonic-Calabasas
A, Inc. v. Moreno (2013) 57 Cal.4th 1109, 1158.)

                                             11
permit issued by the Division of Water Resources, the predecessor to the Board, diverted
water from nonnavigable tributaries that would have otherwise flowed into Mono Lake.
(National Audubon, supra, 33 Cal.3d at p. 424.) The diversion of the water caused the
level of the lake to drop, thereby imperiling its scenic beauty and ecological value. (Id. at
pp. 424-425.) The permit was issued under the appropriative water rights system, a
system that dominated California water law since the gold rush (id. at p. 442) and was
formally enshrined in statute with the enactment in 1913 of the Water Commission Act.
(People v. Shirokow (1980) 26 Cal.3d 301, 308.) In National Audubon, the values
undergirding that legislative mandate collided with those that had been, until then,
embodied but ignored in the public trust doctrine. (National Audubon, supra, at p. 445.)
       The Supreme Court captured the intensity of the drama involved in the high stakes
contest between the two distinct systems of legal thought. The court wrote: “They meet
in a unique and dramatic setting which highlights the clash of values. Mono Lake is a
scenic and ecological treasure of national significance, imperiled by continued diversions
of water; yet, the need of Los Angeles for water is apparent, its reliance on rights granted
by the board evident, the cost of curtailing diversions substantial.” (National Audubon,
supra, 33 Cal.3d at p. 425.) Despite the historical significance of appropriative water
rights in the state, the comprehensiveness of the water rights system, the threat to the
water supply for the City of Los Angeles, and perhaps, most significantly, the fact that
the tributaries from which the water was being diverted were not themselves navigable,
the public trust prevailed. Yet the County would have us now dilute or ignore the trust
for far less compelling reasons.
       Pointing out that groundwater is not navigable, the County insists that it should not
be subject to the public trust doctrine, reminding us that no court has held that
groundwater is a public trust resource. But the trial court did not find the public trust
doctrine embraces all groundwater. To the contrary, the water subject to the trust is the
Scott River, a navigable waterway. “[T]he court does not hold the public trust doctrine

                                             12
applies to groundwater itself. Rather, the public trust doctrine applies if extraction of
groundwater adversely impacts a navigable waterway to which the public trust doctrine
does apply.”
       Thus, the trial court’s finding is unremarkable and well supported by the facts and
logic of National Audubon and the precedent upon which it relies. The most notable
similarity between this case and National Audubon is the fact that nonnavigable water
was diverted or extracted. In National Audubon, the diversion of nonnavigable tributaries
had a deleterious effect on Mono Lake, a navigable waterway. (National Audubon,
supra, 33 Cal.3d at pp 424-425.) Similarly, ELF alleges in this case that the extraction of
groundwater potentially will adversely impact the Scott River, also a navigable
waterway. The fact the tributaries themselves were not navigable did not dissuade the
Supreme Court from concluding the public trust doctrine protects the navigable water
(Mono Lake) from harm by diversion of nonnavigable tributaries. (Id. at p. 437.) Nor
does the fact that nonnavigable groundwater rather than nonnavigable tributaries is at
issue here dissuade us where, in both cases, it is alleged the removal of water will have an
adverse impact on navigable water clearly within the public trust.
       Thus, the pivotal fact is not whether water is diverted or extracted or the fact that it
is water itself adversely impacting the water within the public trust. Rather, the
determinative fact is the impact of the activity on the public trust resource. Indeed, the
Supreme Court in National Audubon highlighted an illustrative early case. In People v.
Gold Run D. & M. Co. (1884) 66 Cal. 138 (Gold Run), the state utilizing the public trust
doctrine enjoined a mining company from dumping sand and gravel into an nonnavigable
stream that flowed into the navigable Sacramento River, because the dumping raised the
bed of the Sacramento River impairing navigation. (National Audubon, supra, 33 Cal.3d
at p. 436.) Focusing on whether the activity had deleterious impacts on navigable
waterways, the Supreme Court concluded: “ ‘If the public trust doctrine applies to
constrain fills which destroy navigation and other public trust uses in navigable waters, it

                                              13
should equally apply to constrain the extraction of water that destroys navigation and
other public interests. Both actions result in the same damage to the public trust.’ ” (Id.
at pp. 436-437.)
       The County’s squabble over the distinction between diversion and extraction is,
therefore, irrelevant. The analysis begins and ends with whether the challenged activity
harms a navigable waterway and thereby violates the public trust. The fact that in this
case it is groundwater that is extracted, in National Audubon it was nonnavigable
tributaries that were diverted, and in Gold Run it was sand and gravel that was dumped, is
not determinative. Each and every one of these activities negatively impacted a
navigable waterway. As a consequence, the dispositive issue is not the source of the
activity, or whether the water that is diverted or extracted is itself subject to the public
trust, but whether the challenged activity allegedly harms a navigable waterway.
       The authority provided by the County does not persuade us otherwise. The
County cites Santa Teresa Citizen Action Group v. City of San Jose (2003)
114 Cal.App.4th 689 for the bold assertion that the public trust doctrine does not apply to
groundwater, ignoring, as we explained above, the crucial detail that the trial court did
not find the public trust doctrine applies to groundwater. But more importantly, Santa
Teresa is not on point because there was no evidence in that case of any negative impact
on the surface water body and, therefore, no showing of a harmful impact on public trust
resources. Here, the issue is not about protecting public trust uses in groundwater, but
about protecting the public trust uses of the Scott River that are at risk of being impaired
due to groundwater pumping of contributory flows.
       Environmental Protection Information Center v. California Dept. of Forestry &
Fire Protection (2008) 44 Cal.4th 459 (EPIC) is equally inapposite. EPIC is not a water
case. At issue in EPIC is the public trust in wildlife, which is primarily statutory, unlike
the public trust in water, which is based on common law. Moreover, the County
misrepresents the court’s holding. The County argues that “EPIC held that the ‘common

                                              14
law’ public trust doctrine does not apply in defining an agency’s regulatory duties where
the Legislature has enacted a statute defining the agency’s duties.” But the case did not
hold that the state’s wildlife protection statutes supersede the common law public trust
doctrine regarding water or fish; it merely held that the Department of Forestry and Fire
Protection’s statutory duty to comply with wildlife protection statutes should not be
equated with a public trust duty. (Id. at pp. 515-516.) Thus, we agree with the Attorney
General that since EPIC addressed only the statutory (and not the common law) public
trust in nonaquatic wildlife, nothing in the Supreme Court’s opinion suggests that the
Department of Forestry and Fire Protection’s statutory responsibilities displaced or
superseded any of its responsibilities under the common law public trust doctrine in water
resources; nor is there any indication the court sought to merge the two doctrines.
       Amici accuse the trial court of confusing a municipality’s authority to adopt an
ordinance or regulatory system under its police power with its public trust authority. The
parties do not challenge the County’s police powers. (See, e.g. Allegretti & Co. v.
County of Imperial (2006) 138 Cal.App.4th 1261, 1283; Baldwin v. County of Tehama
(1994) 31 Cal.App.4th 166, 173-174.) The trial court properly addressed the very
different question of whether the public trust doctrine imposes a fiduciary duty on the
County. There is no allegation here the County overstepped the scope of its public power
and any issue outside the public trust doctrine is not before this court.
       National Audubon and its progeny recognize that government has a duty to
consider the public trust interest when making decisions impacting water that is imbued
with the public trust. The County raises two additional objections to imposition of the
duty to consider the public’s inherent interest in its navigable waterways. First, the
County insists that the constitutional imperative compelling the reasonable use of water
subsumes any parallel duty under the public trust doctrine. And, secondly, the County
rejects the notion that any duty imposed upon the state to enforce the public trust
devolves to it as a mere political subdivision of the state.

                                              15
       Article X, section 2 of the California Constitution provides: “It is hereby declared
that because of the conditions prevailing in this State the general welfare requires that the
water resources of the State be put to beneficial use to the fullest extent of which they are
capable, and that the waste or unreasonable use or unreasonable method of use of water
be prevented, and that the conservation of such waters is to be exercised with a view to
the reasonable and beneficial use thereof in the interest of the people and for the public
welfare. The right to water or to the use or flow of water in or from any natural stream or
water course in this State is and shall be limited to such water as shall be reasonably
required for the beneficial use to be served, and such right does not and shall not extend
to the waste or unreasonable use or unreasonable method of use or unreasonable method
of diversion of water. . . . This section shall be self-executing, and the Legislature may
also enact laws in the furtherance of the policy in this section contained.” (Cal. Const.,
art X, § 2.) All uses of water, including public trust uses, are subject to the constitutional
standard of reasonable use. (National Audubon, supra, 33 Cal.3d at p. 443.)
       The County asserts that article X, section 2 subjects groundwater to the reasonable
use standard, and “thus there is no basis or need to apply the public trust doctrine to
groundwater.” National Audubon answers the County’s argument. The Supreme Court
quoted article X, section 2 and expressly recognized that public trust uses of water remain
subject to reasonable use. Nevertheless, the court rejected the notion that reasonable use
or the appropriative rights system supplanted the public trust doctrine. The court wrote:
“The state has an affirmative duty to take the public trust into account in the planning and
allocation of water resources, and to protect public trust uses whenever feasible. Just as
the history of this state shows that appropriation may be necessary for efficient use of
water despite unavoidable harm to public trust values, it demonstrates that an
appropriative rights system administered without consideration of the public trust may
cause unnecessary and unjustified harm to trust interests. [Citations.] As a matter of
practical necessity the state may have to approve appropriations despite foreseeable harm

                                              16
to public trust uses. In so doing, however, the state must bear in mind its duty as trustee
to consider the effect of the taking on the public trust [citation], and to preserve, so far as
consistent with the public interest, the uses protected by the trust.” (National Audubon,
supra, 33 Cal.3d at pp. 446-447, fn. omitted.)
       Despite such a formidable acknowledgment by the Supreme Court that multiple
standards can exist simultaneously, the County claims the public trust doctrine and the
reasonable use standard are incompatible. Missing is any citation to authority. National
Audubon rebuts the County’s unsupported and unsupportable assertion that the
reasonable use standard obliterates the public trust doctrine.
       Finally, the County contends the Water Code restricts the Board’s authority to
protect the public trust. The argument leads us down a now familiar rabbit hole. The
County argues that sections 1200 and 1221 restrict the Board’s authority by defining its
permitting authority. But the Board’s authority to apply the public trust doctrine extends
to rights not covered by the permit and license system. (In re Water of Hallet Creek
Stream System (1988) 44 Cal.3d 448, 472, fn. 16.) In fact, the Board’s authority to
protect the public trust is independent of and not bounded by the limitations on the
Board’s authority to oversee the permit and license system. (Ibid.) The County offers no
compelling argument to the contrary and we see no rationale for finding the permitting
and licensing system incompatible with the public trust doctrine.
                                               II

Did the Legislature intend to occupy the entire field of groundwater management and
thereby abolish all fiduciary duties to consider potential adverse impacts on the Scott
River, a navigable waterway and public trust resource?
       Although one-third of Californians’ water is extracted from groundwater basins
and many of the state’s basins are suffering from overdraft, it was not until 2014 that the
California Legislature passed the Sustainable Groundwater Management Act. (§ 10720



                                              17
et seq., added by Stats. 2014, ch. 346, § 3.) SGMA allows local agencies to voluntarily
form groundwater sustainability agencies (GSA’s) over a number of years. (§§ 10723,
10727.2.) They manage and regulate groundwater basins through adoption and
implementation of groundwater sustainability plans (GSP’s). (§§ 10723, 10727.) The
GSA’s are charged with procedural and substantive obligations designed to balance the
needs of the various stakeholders in groundwater in an effort to preserve, and replenish to
the extent possible, this diminishing and critical resource. (§§ 10721, subds. (u), (v),
(x)(6), 10723.2, 10725.2, 10725.4, 10726.2, 10726.4, 10726.5.) The County hails the
legislation as a general and comprehensive regulatory scheme fulfilling the Legislature’s
duty to protect the public trust. Specifically, the County points out that GSA’s are
required to regulate groundwater extractions from wells (§ 10726.4, subd. (a)(2)), the
same obligation the trial court thrust upon it under the public trust doctrine. The
occupation of the field by SGMA absolves the County and the Board of any common law
duty it might have to consider and protect the Scott River from harmful groundwater
extraction. We disagree.
       It is true that a cornerstone of SGMA is a transfer of responsibility for
groundwater management from the state to local jurisdictions when possible. The
Legislature intended to “manage groundwater basins through the actions of local
governmental agencies to the greatest extent feasible, while minimizing state intervention
to only when necessary to ensure that local agencies manage groundwater in a sustainable
manner.” (§ 10720.1, subd. (h).) The Legislature expressly stated its intent “[t]o
recognize and preserve the authority of cities and counties to manage groundwater
pursuant to their police powers.” (Stats. 2014, ch. 346, § 1.) The County argues that in
so doing the Legislature has precluded the Board from acting to protect the public trust
from groundwater extraction except in limited circumstances. (§§ 10735.2, 10735.8.) As
a consequence, according to the County, neither its nor the Board’s public trust duties



                                             18
survive the enactment of SGMA. In the case of the Board, the County maintains it no
longer has the authority to act.
       As a general rule, statutes do not supplant the common law. (I.E. Associates v.
Safeco Title Ins. Co. (1985) 39 Cal.3d 281, 285.) “ ‘Accordingly, “[t]here is a
presumption that a statute does not, by implication, repeal the common law. [Citation.]
Repeal by implication is recognized only where there is no rational basis for harmonizing
two potentially conflicting laws.” ’ [Citation.]” (Verdugo v. Target Corp. (2014)
59 Cal.4th 312, 326 (Verdugo).) But the County relies on an exception to the general
rule. A statute may supplant the common law if “it appears that the Legislature intended
to cover the entire subject or, in other words, to ‘occupy the field.’ [Citations.]
‘[G]eneral and comprehensive legislation, where course of conduct, parties, things
affected, limitations and exceptions are minutely described, indicates a legislative intent
that the statute should totally supersede and replace the common law dealing with the
subject matter.’ ” (I.E. Associates, supra, at p. 285.) The County insists (1) the general
rule does not apply because no court has found a duty under the public trust doctrine to
regulate groundwater, and (2) SGMA is a comprehensive statutory scheme reflecting the
Legislature’s intent to occupy the field of groundwater management and the statute,
therefore, does supplant the common law public trust doctrine. National Audubon
persuades us otherwise.
       The County mischaracterizes the public trust duty. By repeatedly referring to the
fact that no court has held that groundwater constitutes a public trust resource nor
imposed on the state or a county the duty to regulate groundwater, the County begins
with a false premise. The trial court did not find that groundwater itself was protected by
the public trust doctrine; nor did it find either the Board or the County had the duty to
regulate groundwater. To the contrary, the trial court found a duty to consider any
adverse impacts groundwater extraction would have on a public trust resource, the Scott
River. The duty, the court found, was not to regulate but to consider the impact on the

                                             19
public trust resource and, where feasible, to preserve the public interest in the Scott
River, a navigable waterway. The trial court’s narrow rulings are fully supported by
National Audubon.
       National Audubon clarifies the common law public trust doctrine as we discussed
in part I, ante. The court emphasized that no public agency had ever considered the
adverse impacts on Mono Lake, a navigable waterway protected by the public trust
doctrine, by diverting the entire flow of the Mono Lake nonnavigable tributaries into the
Los Angeles Aqueduct. (National Audubon, supra, 33 Cal.3d at p. 447.) The DWP
acquired the rights to the entire flow in 1940 from a water board “which believed it
lacked both the power and the duty to protect the Mono Lake environment.” (Ibid.)
Those rights were acquired pursuant to a comprehensive appropriative water rights
system administered by the Division of Water Resources. The Supreme Court analyzed
the relationship between the public trust doctrine and the California water rights system.
(Id. at pp. 445-448.) Its analysis is equally apt to the relationship between the public trust
doctrine and SGMA.
       The court explained: “As we have seen, the public trust doctrine and the
appropriative water rights system administered by the Water Board developed
independently of each other. Each developed comprehensive rules and principles which,
if applied to the full extent of their scope, would occupy the field of allocation of stream
waters to the exclusion of any competing system of legal thought. Plaintiffs, for
example, argue that the public trust is antecedent to and thus limits all appropriative
water rights, an argument which implies that most appropriative water rights in California
were acquired and are presently being used unlawfully. Defendant DWP, on the other
hand, argues that the public trust doctrine as to stream waters has been ‘subsumed’ into
the appropriative water rights system and, absorbed by that body of law, quietly
disappeared; according to DWP, the recipient of a board license enjoys a vested right in
perpetuity to take water without concern for the consequences to the trust. [¶] We are

                                             20
unable to accept either position. In our opinion, both the public trust doctrine and the
water rights system embody important precepts which make the law more responsive to
the diverse needs and interests involved in the planning and allocation of water
resources.” (National Audubon, supra, 33 Cal.3d at p. 445, fn. omitted.)7
       The court concluded that neither system of thought occupied the field and both
ought to be accommodated. In other words, the court endorsed two parallel systems.
Moreover, the court provided a concise statement of the state’s common law duty under
the public trust doctrine. “The state has an affirmative duty to take the public trust into
account in the planning and allocation of water resources, and to protect public trust uses
whenever feasible. Just as the history of this state shows that appropriation may be
necessary for efficient use of water despite unavoidable harm to public trust values, it
demonstrates that an appropriative water rights system administered without
consideration of the public trust may cause unnecessary and unjustified harm to trust
interests. [Citations.] As a matter of practical necessity the state may have to approve
appropriations despite foreseeable harm to public trust uses. In so doing, however, the
state must bear in mind its duty as trustee to consider the effect of the taking on the public




7  Sensitive to the Supreme Court’s rejection of the notion that the comprehensive water
rights system “subsumed” the public trust doctrine, the County avoids the use of the word
subsumed or any of its synonyms. Rather, the County argues that SGMA “fulfills” the
state’s public trust duties with respect to groundwater. The County’s clever word play
does not save its discredited argument. In National Audubon, the court made the
important observation that even the comprehensive appropriative water rights system in
California did not weaken or decimate the public trust doctrine. Had the court accepted
the essence of the County’s argument it could have found, as the County urges us to do,
that the Legislature fulfilled its public trust duty by enacting the appropriative water
rights system. The point is not whether the public trust duty is characterized as
“fulfilled” or whether a statutory scheme is characterized as “subsuming” the common
law, but whether the fiduciary duties imposed by the public trust doctrine survive a
statutory scheme regulating water in the state. In National Audubon, they did. We
conclude the same fiduciary duties survive the enactment of SGMA.

                                             21
trust [citation], and to preserve, so far as consistent with the public interest, the uses
protected by the trust.” (National Audubon, supra, 33 Cal.3d at pp. 446-447, fn.
omitted.)
       The SMGA is not as comprehensive as the appropriative water rights system. As
ELF points out, SMGA’s coverage of groundwater is incomplete by its own terms in at
least four ways. First, a covered basin for purposes of SMGA means only a designated
basin or subbasin identified and defined in the Department of Water Resources’ Bulletin
118 or as modified pursuant to a procedure outlined in SGMA. (§ 10721, subd. (b).)
Second, SGMA does not apply to any groundwater basin listed in section 10720.8,
including the adjudicated portions of the Scott River stream system. (§ 10720.8,
subds. (a)-(e).) Third, many requirements in SGMA do not take effect for a number of
years, and even then only for some subset of the total corpus of groundwater in the state.
(See, e.g., §§ 10720.7, subd. (a) [setting deadlines of 2020 or 2022 for adopting
groundwater sustainability plans for certain identified basins], 10735.8, subd. (h)
[delaying until 2025 any SGMA-based Board interim plan intended to remedy depletions
of interconnected groundwater in probationary basins].) Finally, 26 fully adjudicated
basins and three pending adjudicated basins are exempted from SGMA under section
10720.8.
       We reject, therefore, the County’s position that because SGMA is comprehensive
it occupies the field and supplants the common law. But even if the legislation was
deemed comprehensive, National Audubon teaches the two systems can live in harmony.
If the expansive and historically rooted appropriative rights system in California did not
subsume or eliminate the public trust doctrine in the state, then certainly SGMA, a more
narrowly tailored piece of legislation, can also accommodate the perpetuation of the
public trust doctrine.
       We highlight National Audubon because it is factually on point, it encapsulates the
most basic and important principles governing the public trust doctrine as applied to

                                               22
navigable waterways, and it answers both of the County’s arguments that no court has
held that the public trust doctrine applies to groundwater and that the comprehensiveness
of SGMA precludes further consideration of the public trust doctrine in approving
extraction of groundwater. On the more mundane issue of whether a statute impliedly
supplants the common law, Verdugo, supra, 59 Cal.4th 312 echoes the conclusions
reached by the Supreme Court decades earlier.
       In Verdugo, the Supreme Court attempted to discern legislative intent from the
scope of the legislation, in this case the statutes governing automated external
defibrillators (AED’s) for use in a medical emergency. (Verdugo, supra, 59 Cal.4th at
pp. 325-334.) The court acknowledged the presumption that a statute does not impliedly
supplant the common law. (Id. at p. 317.) The question was whether the statutes were
sufficiently comprehensive to evince a legislative intent to occupy the field. The court
concluded the AED statutes did not evince any such legislative intent. (Id. at p. 334.)
       As in National Audubon, there was no incongruity between the legislation and the
common law. In both cases, the Supreme Court harmonized the two, concluding the
parallel systems did no violence to the legislative objectives. In Verdugo that meant
businesses could obtain immunity by voluntarily providing AED’s for emergency use
under the AED statutes but those statutes did not preclude the courts from finding a
common law duty to acquire and make available AED’s in a medical emergency. “The
applicability of the immunity statutes to entities that are under a common law duty to
acquire and provide an AED would not in any way reduce or undermine the incentive
that the immunity statutes provide to persons or entities that voluntarily obtain and make
available AEDs.” (Verdugo, supra, 59 Cal.4th at p. 332.)
       Similarly, we can evince no legislative intent to eviscerate the public trust in
navigable waterways in the text or scope of SGMA. While the public trust is not
expressly mentioned in SGMA, there are many provisions that reflect a legislative desire
not to interfere with the existing law. These provisions certainly do not suggest the

                                             23
Legislature intended to dismantle one of the hallmarks of water policy in the state for
over 35 years. Nor is the scope of SGMA any more comprehensive than the statutes in
National Audubon or Verdugo. Indeed, given the number of groundwater basins that are
not covered and the time horizon before GSA’s are operational, SGMA’s scope is
arguably even more narrow than the counterpart legislation in either case. And by
whatever measure is used, the County has fallen far short of overcoming the presumption
that a statute does not supplant the common law, particularly when the common law at
issue embodies a doctrine as significant to the people of the state as a trust on their water.
We conclude the enactment of SGMA does not, as the County maintains, occupy the
field, replace or fulfill public trust duties, or scuttle decades of decisions upholding,
defending, and expanding the public trust doctrine.
       The County makes a valiant effort to demonstrate that the public trust doctrine
does not apply to groundwater under the common law and, even if it did, SGMA
abolishes any fiduciary duties the Board or the County have to take the public trust
interests into account when making decisions involving groundwater that will adversely
impact navigable waterways. That effort fails. Independent of these claims, however,
remains the County’s contention that even if the Board’s fiduciary duties survive SGMA,
its own duties do not. In the County’s view, it never had and, continues not to have, any
fiduciary duties involving groundwater. Not so.
       A county is a legal subdivision of the state and references to the “state” may
include counties. (Baldwin v. County of Tehama (1994) 31 Cal.App.4th 166, 175-176.)
Although the state as sovereign is primarily responsible for administration of the trust, the
county, as a subdivision of the state, shares responsibility for administering the public
trust and “may not approve of destructive activities without giving due regard to the
preservation of those resources.” (Center for Biological Diversity, Inc. v. FPL Group,
Inc. (2008) 166 Cal.App.4th 1349, 1370, fn. 19.)



                                              24
       We need only address one further argument raised by the County. The County
asserts the Legislature, by enacting SGMA, rendered a conclusive judgment about the
administration of the public trust, and the venerable separation of powers principle
prohibits courts from intruding on the legislative prerogative. In this scenario, the
Legislature is the sole keeper of the trust. The County’s argument derives from a mere
footnote in a case factually and legally inapposite.
       We begin with the footnote in City of Long Beach v. Mansell (1970) 3 Cal.3d 462
(Mansell). “The administration of the trust by the state is committed to the Legislature,
and a determination of that branch of government made within the scope of its powers is
conclusive in the absence of clear evidence that its effect will be to impair the power of
succeeding legislatures to administer the trust in a manner consistent with its broad
purposes.” (Id. at p. 482, fn. 17.) Relying on this footnote, the County concludes the
Legislature can administer the public trust and a “system of regulation based on
judicially-fashioned public trust principles” would usurp the Legislature’s “conclusive”
judgment in administering the trust. But the County ignores the context in which this
footnote was written.
       The dispute in Mansell involved tidelands the Legislature freed from the public
trust, thereby cutting them off from water resources. (Mansell, supra, 3 Cal.3d at p. 482.)
The dispositive issue was whether the Legislature’s action violated a state constitutional
provision prohibiting the grant to private persons of tidelands within two miles of any
city. (Id. at p. 478.) The Supreme Court examined the relationship between the
constitutional provision and the public trust doctrine, noting that although public trust
tidelands generally are not alienable, the Legislature may determine the tidelands are no
longer useful for trust purposes and free them from the trust. It was in this context the
court added a footnote observing that the Legislature’s decision to free the tidelands from
the public trust was “conclusive.” (Id. at p. 482, fn. 17.) The court emphasized that the
case was exceptional and involved a “rare combination of government conduct and

                                             25
extensive reliance” that “will create an extremely narrow precedent for application in
future cases.” (Id. at p. 500.)
       Mallon v. City of Long Beach (1955) 44 Cal.2d 199 (Mallon), cited by the
Supreme Court in Mansell, involved the same basic fact pattern. Again the Legislature
freed income derived from tidelands from the public trust. And, as in Mansell, the
legislative decision to curtail the trust was deemed conclusive. The court explained:
“[T]he Legislature has ‘found and determined’ that . . . the income derived from the
production of oil and gas from the tide and submerged lands of Long Beach harbor is ‘no
longer required for navigation, commerce and fisheries, nor for such uses, trusts,
conditions and restrictions as are imposed by’ statutes granting the said tide and
submerged lands in trust. [Citation.] That determination and finding is conclusive upon
this court.” (Mallon, supra, at pp. 206-207.)
       Neither case found an implied legislative intent to dismantle the public trust from
the mere scope of a statute. Neither case compelled wholesale abolition of public trust
fiduciary duties. Both instead relied on an express and limited legislative determination
that specific tidelands or income derived from tidelands no longer served the public
interest. As the trial court aptly found, Mansell and Mallon “stand for a limited
proposition: If the Legislature determines public trust lands or waterways are no longer
useful for trust purposes and frees them from the trust, that determination is conclusive.
It will not be second guessed by the courts. Neither case is applicable here. The
Legislature has not released the Scott River from the public trust. Therefore, requiring
the County to consider the public trust in approving well permits does not infringe upon
any ‘conclusive’ legislative determination.”
       The County concedes this case involves the regulation of water rather than the
ownership of tidelands and urges us to follow water regulation cases such as Colberg,
Inc. v. State of California ex rel. Dept. Pub. Wks, supra, 67 Cal.2d 408 and Boone v.
Kingsbury (1928) 206 Cal. 148. We agree with ELF that neither case actually involves

                                               26
the regulation of water. By means of a specific state statute in both cases the Legislature
weighed the competing public interests and made a determination which interest
prevailed. The cases bear no relevance to the dispositive questions before us.
       Whether the Legislature could supersede or limit the Board’s public trust authority
if it wanted to is a question for another day. At present, we can find no violation of the
separation of powers because, as we explained at length above, we have found no
legislative intent to occupy the field and thereby to dissolve the public trust doctrine
within the text or scope of SGMA.
                                      DISPOSITION
       The judgment is affirmed. ELF and the Board shall recover costs on appeal. (Cal.
Rules of Court, rule 8.278(a)(1) & (2).)




                                                               RAYE            , P. J.



We concur:



           ROBIE             , J.



             BUTZ            , J.




                                             27
