Environmental groups fighting to save the Great Salt Lake from drying up and exposing millions to toxic dust have turned to the courts, but their attempt to invoke a legal concept that protects natural resources is being met with skepticism.
“Using the public trust doctrine to modify water rights in the West is a big step for a court to take,” Robin Craig, a environmental law professor at the University of Southern California, said.
State leaders say that they have made unprecedented efforts to save the Great Salt Lake. But the groups suing say that it’s not enough: Utah’s inaction violates the public trust doctrine, which places certain natural resources in trust held by the government for the benefit of the public.
Utah Physicians for a Healthy Environment sued as lead plaintiff in September, claiming that Utah has failed to take necessary action to save the lake—which has already shrunk by two-thirds and could poison the air around Salt Lake City if it continues to dry up. Scientists say that it will be gone in five years without substantial policy changes.
“We have seen record low levels of the Great Salt Lake, a clear indication that public trust resource is being mismanaged,” Earthjustice’s Stu Gillespie, a lead attorney on the case, said. “Judicial supervision is absolutely necessary here. The state isn’t taking the proper steps to protect the lake.” Earthjustice represents the physicians’ group, the Center for Biological Diversity, and the others.
The lawsuit asks Utah’s Third Judicial District Court to order the state to halt further elevation decline within two years and restore it to a level consistent with protected trust uses by reviewing all existing water diversions from the lake. Of the roughly 3.1 million acre-feet of water that would naturally flow into the lake each year, 2.1 million are diverted by upstream water users.
“The lawsuit is likely to fail,” said Tim Hawkes, general counsel for the Great Salt Lake Brine Shrimp Cooperative and a Republican former member of the Utah House of Representatives. “It’s hard to make a compelling case that the state isn’t fulfilling its public trust obligations.”
Doctrine Applied Differently
Courts across the country have applied the public trust doctrine, mostly to resolve water issues. But the outcomes of those cases have varied, and some scholars and Utah lawyers aren’t sure that this case will make headway in Utah, given the state’s history with the doctrine and the complexity of its private water rights.
Though the doctrine has been used to protect some natural resources—like freshwater streams in Hawaii and beach access in New Jersey—it has been less successful in other states like Colorado, where courts have ruled that the doctrine can’t curtail fracking.
“Each state has developed the doctrine a little differently,” Melissa Scanlan, the director of the Center for Water Policy at the University of Wisconsin-Milwaukee, said. “Some have extensive case law on the public trust doctrine. Other states may be a little sparser.”
A version of the public trust doctrine is written into Utah’s constitution, but it’s unclear how the court will apply it—and Craig, who also taught at the University of Utah for nine years, is skeptical it will be sympathetic to the environmental groups.
“This lawsuit will force the court to address the tension between the public trust doctrine and constitutionally protected private property rights,” Ashley Peck, an environmental litigator at Holland & Hart LLP in Salt Lake City, said.
The state has already been through major public trust doctrine litigation in recent months. The Utah Supreme Court ruled in May that the state’s Public Waters Access Act—which makes it an act of criminal trespass for the public to touch privately owned river and stream beds during recreational activities—doesn’t violate the public trust.
“The basic decision is that no, it is not a constitutional doctrine in Utah,” Craig said—it’s based in common law.
“It’s good background for the Great Salt Lake case because Utah courts have just been dealing with this,” Craig said. “They have just been restricting public rights in public trust waters.
“And then to turn around and ask them to start cutting back on water rights, which are long held property rights and considered almost sacred in western states, and do what liberal California did—it’s a big ask.”
Another Mono Lake?
That California case has a striking similarity to the Great Salt Lake case and could provide a backdrop for how the public trust doctrine intersects with water rights under “prior appropriation.”
The legal doctrine is used by most western states, including Utah, and allocates water by the principle “first in time, first in right.”
Environmental groups in 1979 sued to save Mono Lake, an ancient saline lake on the eastern edge of the Sierra Nevadas with plummeting water levels due to freshwater diversions by Los Angeles.
The case eventually reached the California Supreme Court, which held that the state had a legal duty to preserve Mono Lake’s ecosystem and ordered the city to scale back its diversions until the lake reached a sustainable level.
“It was a really important statement on the duty of the state as the trustee,” Scanlan said. “The state has a continuing affirmative duty to reconsider any kind of previously issued water rights permit, in light of harm to the public trust.”
The Great Salt Lake is a far more important resource to Utah than Mono Lake was to California, Dave Owen, a law professor the the University of California San Francisco, said.
But it’s not certain that Utah would take the same approach as California did with Mono Lake, Scanlan said. Mono Lake was far simpler to analyze than the Great Salt Lake because there was only one entity depleting the water.
‘Administrative Nightmare’
And if the court ordered a remedy similar to the one that saved Mono Lake, the implementation could be wildly complex.
Tens of thousands of individuals, municipalities, and businesses hold water rights in the Great Salt Lake basin, some dating to 1847.
An injunction would “be an administrative nightmare” and “require a review of all water right diversions from the watershed” to determine what would be necessary for the lake to have healthy water levels, said Peck, who represents companies and municipalities in complex environmental litigation.
The state engineer would have to review and curtail water rights—likely according to priority date, Warren Peterson, a water attorney and consultant to the Utah Farm Bureau, said.
Most senior water rights holders are generally agricultural, Hawkes said. Cuts could also affect several major water conservancy districts and municipalities, as well as water dedicated for conservation and wetlands—rights generally held by junior holders, he said.
“There are tough decisions to make here,” Gillespie said. “A large percentage of the diversions are for alfalfa, municipalities, and industries. The state is going to have to figure out a system to manage those diversions. Continuing to let people divert water will harm everyone.”
Even if the court doesn’t reach a Mono Lake-type decision and order the state to cut back private water rights, Craig said, it could still rule that Utah has a duty to protect the Great Salt Lake as a public trust resource.
“What that means is anyone’s guess,” Craig said. “If the duty exists, but the doctrine doesn’t allow you to impede on private water rights, what does that allow the state to do?”
Future Influence
Gillespie says that the case could have positive implications for other natural resources in the state, as it would instruct agencies on their duty to act in line with the public trust doctrine.
But Owen is skeptical that the case would have much of an influence. Even the Mono Lake case was “not a complete and total win,” Owen said.
Many saw the Mono Lake case as an important catalyst for reform, but Owen says hardly any freshwater case law emerged from California. It also didn’t do much to influence agency action, he said.
“Some people see the public trust doctrine as this great hope for environmental protection,” Owen said. “But it’s very hard to see evidence of significant and independent impact. The doctrine really hasn’t done much to systematically change water management in California.”
The plaintiffs are nevertheless confident in the power of the public trust doctrine, and they say that the suit was necessary to prevent what would be the greatest environmental crisis in Utah history.
“Bringing litigation isn’t something you do without a lot of thought, and we gave it a lot of thought,” Deeda Seed, an attorney at the Center for Biological Diversity, said. “The situation is urgent.”
Another plaintiff is the Sierra Club, which has received funding from Bloomberg Philanthropies, the charitable organization founded by Michael Bloomberg. Bloomberg Law is operated by entities controlled by Michael Bloomberg.
The case is Utah Physicians for a Healthy Env’t v. Utah Dep’t of Natural Res., Utah Dist. Ct., No. 230906637, complaint filed 9/6/23.
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