Public Trust Doctrine

INFORMATION AND EXPLANATION

Public Trust Doctrine Principles

• According to Public Trust Doctrine principles, certain types of property are of high public value and private right of ownership of these properties should be limited. By the late 19th century, the Federal Supreme Court confirmed that the Public Trust Doctrine imposes specific obligations on the states.
• The concept of the Public Trust Doctrine can be used to challenge whether Federal and State governments are meeting their public trust obligations regarding vital resources that are the common heritage of all people in the U.S.
• The state of California holds these properties as sovereign for the benefit of all citizens and limits the creation of private rights in public trust properties.
• Historically, the public trust doctrine has been applied to navigable waterways. This has been upheld in California courts. The Albion and Gualala rivers are certified as navigable waterways.
• International trade agreements under the World Trade Organization (WTO) will institutionalize privatization and remove regulation that protects our common pool resources and our health by means of supra-national laws that are enforceable by secret trade tribunal.

Albion and Gualala Rivers Attempted Water-Grab and International Trade Agreements

• Alaska Water Exports (AWE) has applied to the state for the right to extract large quantities of water from these rivers and pump it into giant water bags which will be towed to San Diego for sale there.
• The public could lose control of its water resources if the state sets a precedent by giving AWE the rights to this water.
• AWE is part of an international consortium called World Water SA, which includes Japanese, Norwegian, and Saudi partners. Ric Davidge, owner and president of AWE is also chairman and president of World Water SA.
• If AWE acquires the right to this water, it would only require an administrative change to transfer title to one of it’s partners. If this is done, the water then would fall under WTO provisions. Ric Davidge has argued that he cannot do this because of the provisions of the Jones Act. This, however, is not entirely accurate for two reasons:
  • The Jones Act requires that freight shipped within the U.S. be shipped in U.S.-made and owned vessels with domestic crews. However, under this act it is legal for a foreign flag ship to pick up cargo in the U.S., touch in at a foreign port, then go back to the U.S. and deliver its cargo. For example, AWE could transfer title to the water to its partner Nordic Water Supply, whose tugs could then tow the water bags to a port in Mexico, then turn around and deliver it to San Diego.
  • There currently is a strong movement by organized groups to have the Jones Act repealed.
• WTO rules that could potentially apply include those under the North American Free Trade Agreement (NAFTA) and General Agreement on Trade and Tariffs (GATT) treaties. Under these rules, once the water is taken, local governments lose the right to restrict the taking of the water, regardless of environmental or social consequences if such a restriction could be deemed to deprive a company of its future profits.
  • Currently, water services are included in NAFTA and GATT rules.
  • For example, under NAFTA, U.S. based Sun Belt Water Inc. sued Canada for $10 billion because a Canadian province interfered with its plans to export water to California. Sun Belt claimed that the ban on exporting the water expropriated its future profits.
• The General Agreement on Trade in Services (GATS), which was enacted in 1994, could affect this water whether title to it stays with a domestic corporation (AWE) or is transferred to a foreign corporation:
  • GATS Article II Most Favored Nation Treatment: Requires that the best treatment given to any foreign service or service provider must be extended to all like foreign services and service providers.
  • GATS Article XVII National Treatment Rule: Requires that governments extend the best treatment given to domestic services or service providers to like foreign services or service providers.
  • The GATS includes most services and applies very strict rules such as the above to any that WTO member countries have agreed to. Although none has yet agreed to include water services, there currently is a strong push by the U.S. and European Union to include water services in the GATS.
  • If bulk water becomes a service under the GATS, then if AWE gains title to the water, the state might be required to allow a corporation from another WTO member country access to an equal amount of water from the state or be fined for expropriating future profits.
• Giving AWE title to Albion and Gualala River water would violate the public trust by allowing the water to potentially fall under these WTO rules. Should this happen the state of California, local governments, and the public could lose control of this and other water sources in California. Once this happens, a precedent would be set and we would not be able to restrict the taking and selling of other waters in our state.

RESOURCES

What you can do:
Request the application notice and protest package for the Albion River (#31195) and Gualala River (#31194) by contacting: Kathryn Gaffney at Kgaffney@waterrights.swrcb.ca.gov, or:
SWRCB
Division of Water Rights
P.O. Box 2000
Sacramento, CA 95812-2000

For detailed info, protest forms, and instructions, go to www.gualalariver.org. Also check out www.albionnation.org.

For detailed information on water and international trade agreements, download the publications “Thirst for Control” at www.canadians.org and “Facing the Facts: A Guide to the GATS Debate” at www.policyalternatives.ca

For information on the Jones Act and attempts to repeal it: www.mctf.com/jonesact.htm and www-personal.si.umich.edu/~cejohns/JonesAct.html