Another Opinion on Reynolds v. City of Calistoga

The Court’s decision in Reynolds v. City of Calistoga does not create new law.  It simply reiterates venerable authority that has long held that in California the individual has standing to enforce protection of the public trust in the fisheries.

The action was commenced and initially prosecuted by Mr. Reynolds, a non-attorney acting without the support of counsel.  Given the complexity of water law and the City’s retention of a major establishment law firm to vigorously answer his complaint, his accomplishments in this matter should be equally ranked with successful amateur do-it-yourself brain surgery.  It’s a wonder to observe but be very careful about trying this at home.  At a critical point in the litigation Reynolds had to stand his ground and defend against a claim by the City for many thousands of dollars of sanctions against him.

The City is the operator of the Kimball Dam, which stands at the northern end of the Napa Valley.  Reynolds, a “catch and release” fly fisherman, sued the City alleging breach of the public trust for failing to release adequate water to support the fisheries in the upper Napa River. The City filed a motion for judgment on the pleadings on the grounds that Reynolds was without standing to sue in the public interest, and that his remedy, if any, was to bring a mandamus action against the State Water Resource Control Board (“SWRCB”). The Court granted the City’s motion and ordered Reynolds’ public trust claim dismissed as a matter of law.

The writer was then retained to draft a mandamus action and to assist Reynolds in preparing a motion for reconsideration of the order of dismissal. The SWRCB, Department of Fish and Game, and the City were named as respondents in the writ action.

Following discussions with the state agencies’ attorneys, the Attorney-General’s counsel in San Francisco (“State”), it was discovered that the State and Reynolds were in apparent agreement on several issues.  Among these it was agreed that pursuant to the California Supreme Court’s decision in National Audubon Society v. Superior Court (1983) 33 Cal.3 419 an individual had explicit standing to sue to enforce the protection of the public trust. This authority had not been initially cited to the Court.  It was also agreed that the proper defendant for alleged violations of Fish & Game Code 5937 was the dam operator, not the state agencies.

The State concluded that the public interest would be best served by filing an amicus brief in support of Reynolds’ motion for reconsideration. Assembled in near record time, the amicus brief, among other significant matters, set forth the long history of the public trust in the fisheries and the long standing right of the individual to enforce protection of that trust.  The Court granted reconsideration, making the order that has received this attention. Thereafter the parties entered into a stipulated stay to allow for settlement negotiations, which are ongoing.

Given National Audubon, it is not likely that new legislation or new precedence could improve upon a Californian’s present standing to enforce protection of the public trust. If one has a standing problem before a recalcitrant court, one might seek judicial notice of the amicus brief in the Reynolds matter. The State made a very compelling argument for the role of the citizen litigant.

Reynolds v. Calistoga is not now and may never be a new tool in the toolbox of environmental litigators.  Rather it stands as a new reminder as to what an old tool can do, given the right circumstances and task.

William McKinnon – Attorney at Law — 530.575.5335 —