Golden Feather Community Ass'n v. Thermalito Irrigation District

In this case we consider whether members of the public may assert the public trust doctrine in order to compel authorized appropriators of water from a nonnavigable stream to continue their diversion of water but forego their use of the diverted water in order to maintain an artificial reservoir for the recreational use of the public. We hold that the public trust doctrine does not apply in these circumstances.

Plaintiffs appeal from a judgment dismissing their action after the trial court sustained a demurrer to their fourth amended complaint. By their action plaintiffs sought to maintain the waters of Concow Reservoir in Butte County at a level “which will answer the concerns of the public concerning health, fishing, wild life, recreational, and aesthetic rights . . . .” Plaintiffs assert that the public trust doctrine, as set forth in National Audubon Society v. Superior Court (1983) 33 Cal.3d 419 [ 189 Cal.Rptr. 346 , 658 P.2d 709 ], and Fish and Game Code section 5943, support their claim that they have stated a cause of action. We disagree and shall affirm the judgment.

Facts

Since this appeal is from a judgment of dismissal following the sustaining of a…