The American Bar Association’s Natural Resources & Environment vol 36 no 1 contained “Rewatering Napa’s Rivers” by Karrigan Bork and Amber Manfree. The article describes the history of California’s legislative efforts to protect fisheries, the structural failures which led to non-enforcement, and the role of private entities like Water Audit in effecting the will of the legislature and protecting the rights of the people. Addressing members of the bar association, the authors draw from Water Audit’s experience to suggest “four key insights into creating successful litigation campaigns elsewhere.”
Water Audit has secured permission to host this article on its website and a copy is published below.
Past legislative efforts to protect fishes were well-informed, but these laws were seldom enforced and now read as a series of broken legislative promises. Time and again, private interests overwhelmed efforts to protect the public good. This is the structural failure that Professor Joseph Sax sought to address through the modern public trust doctrine. Yet there is hope.
Private litigation built on public trust standing is reinvigorating old laws. By suing to enforce these laws as the legislative expression of the public trust, private attorneys general can require the state to fulfill its promises of healthy fisheries in California. Private litigation by Water Audit California (Water Audit) has breathed new life into California Fish and Game (CF&G) Code § 5937, a statute requiring dam owners to release enough water to keep downstream fish in good condition, and improved environmental conditions in the Napa River watershed. Water Audit is just one player in a broader litigation ecosystem, but its story shows that sound science and focused litigation can reopen historic habitats and increase fish populations.Bork, Karrigan, and Amber Manfree. “Rewatering Napa’s Rivers.” Natural Resources & Environment 36, no. 1 (2021): 1-5. (ABA, HeinOnline, SSRN)