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Worksheet Grade 12 Social Studies & Civics

The Pallowmere Lake Diversion Case: Reading a Court Opinion

A grade 12 worksheet on a fictional state supreme court opinion about a lake diversion permit, asking students to separate holding, reasoning, and what it left undecided.

Objectives

  1. Students will distinguish a court's holding from its reasoning and from the questions it expressly leaves open.
  2. Students will apply the opinion's rule to two new permit situations and justify each result.
  3. Students will compare litigation with other routes for changing a water policy.

Vocabulary

Key words: public trust, holding, remand, navigable, dissent

Teacher overview

Water policy is made in legislatures and agencies, and it is also made when a court reviews what an agency did. This worksheet gives students a short fictional appellate opinion, written for this material, in which a state's highest court reviews a permit to divert water away from a lake. The work is the ordinary work of reading a case: name the holding, separate it from the reasoning, mark what the court refused to decide, and then apply the rule to facts the court never saw. The misconception to correct before students begin is the assumption that a winning plaintiff gets what it asked for; the association here wins a rule about how the agency must reason and may still lose the diversion on remand. The last items ask students to weigh litigation against the other routes open to the people who brought the suit.

The Pallowmere Lake Diversion Case: Reading a Court Opinion — Grade 12 Social Studies & Civics
Name: ____________________________ Date: ______________

Student Worksheet

Read the fictional opinion below, then answer the items that follow. Every name, place, and figure in it was invented for this worksheet.

Pallowmere Lake Association v. Marchwell Water Board

Supreme Court of the fictional state of Marchwell.

Facts. The Marchwell Water Board issued a permit to the city of Caddowmere. The permit allows the city to divert up to 6 million gallons a day from Cleddon Creek. That creek is the main inflow to Pallowmere Lake. The lake is navigable. People fish, boat, and swim there, and a marsh lines its north shore. A hydrologist working for the Board estimated that the diversion would lower the lake about 18 inches in a dry summer. The Board's written order discussed the city's growing demand and the cost of other supplies. The order said nothing about fishing, boating, swimming, or the marsh. The Pallowmere Lake Association sued.

Holding. The state holds the beds and waters of navigable lakes in trust for the public. That trust binds the Board when it issues a diversion permit. The Board must consider how a proposed diversion affects public trust uses. It must also state in its written order how it weighed them. This order does not. We vacate the order and send the matter back to the Board.

Reasoning. The trust is not a veto. The legislature may authorize diversions, and it has done so. But an agency acting on a trust resource must show its work. An order that never mentions the affected uses leaves a reviewing court nothing to examine. We therefore require a stated finding, not a particular result.

What we do not decide. We do not decide whether this diversion may be approved. We do not decide what lake level the trust requires. We do not decide whether the same claim could be brought about a pond that is not navigable.

Dissent, one justice. The legislature wrote a permit statute with detailed criteria. Recreation is not among them. The court has added a requirement the legislature chose to leave out. If the public wants lake levels protected, the remedy is a bill, not an opinion.

  1. State the court's holding in one sentence of your own words.
  2. What did the Board's written order fail to include?
  3. What remedy did the court order?
  4. Name one question the court expressly did not decide.
  5. The opinion says the trust "is not a veto." Explain what that sentence means for the city of Caddowmere's plans.
  6. Under this opinion, who has to show that public trust uses were weighed, the Board or the Association? Quote the phrase that supports your answer.
  7. Suppose the Board later permits a diversion from a farm pond that is not navigable and has no lake downstream. Does this holding require findings about public trust uses? Explain.
  8. Suppose the Board redoes the Caddowmere order, adds two paragraphs weighing the effect on fishing and boating, and approves the same diversion. Under this opinion, would that order survive review? Explain.
  9. The dissent says the court added a requirement the legislature left out. State the strongest answer the majority could give.
  10. State the strongest point in the dissent that the majority does not answer.
  11. Litigation is one route for changing a water policy. Name one other route the Association could have taken toward the same goal, and give one advantage that route has over a lawsuit.
  12. On remand, the Board could write the findings and approve the same diversion anyway. Explain what the Association would have gained, if anything, from winning this case.
  13. In three or four sentences, argue either that a court reviewing an agency should require a reasoned explanation and stop there, or that it should decide the outcome itself. Answer the strongest objection to your position.

From Water for Schools (waterforschools.org). This material is in the public domain (CC0) and may be copied, edited, and shared freely.

Answer Key
  1. Answer: The Board must consider public trust uses and say in its order how it weighed them.
    Accept any wording that captures both the duty to consider and the duty to state the weighing in the written order.
  2. Answer: Any mention of fishing, boating, swimming, or the marsh.
    The order covered demand and the cost of alternatives only, which is why the court found the record inadequate.
  3. Answer: It vacated the order and sent the matter back to the Board.
    The permit is undone for now, and the Board must act again with a proper record.
  4. Answer: Accept any one of the three questions the opinion lists.
    The court did not decide whether the diversion may be approved, what lake level the trust requires, or whether the claim reaches a pond that is not navigable.
  5. Answer: Caddowmere may still get its water.
    The trust does not bar diversions. The city faces a procedural requirement, so its permit can be reissued if the Board considers the lake uses and explains its weighing.
  6. Answer: The Board, which "must show its work."
    Accept the quoted phrase "must show its work" or "must also state in its written order how it weighed them." The duty runs to the agency, not to the citizens who sued.
  7. Answer: No.
    The holding is limited to navigable waters held in trust, and the court expressly left the non-navigable pond question open. A student may add that a later case could extend the rule.
  8. Answer: Yes, most likely.
    The opinion requires a stated finding, not a particular result. If the new order shows the weighing, it satisfies the rule even though the outcome for the lake is unchanged.
  9. Answer: The trust duty comes from the state's ownership of navigable waters, not from the permit statute. The majority can answer that the legislature cannot delegate away a duty the state holds as trustee, and that requiring findings leaves the statute's criteria intact.
  10. Answer: The court supplied a requirement the elected legislature omitted.
    Accept any statement of the separation-of-powers objection: a court raised the cost of permitting without a legislative vote, and the criteria in the statute were a legislative choice.
  11. Answer: Accept any reasonable route with an advantage.
    Examples: lobbying for a bill setting a minimum lake level, which binds every future board rather than one order; commenting during the permit proceeding, which is faster and cheaper than suing; organizing lake users to press the governor and state legislators who oversee the Board; petitioning the Board for a rule on recreation findings.
  12. Answer: A record, a standard, and leverage for the next permit.
    The Association gained a rule that binds the Board in every future case, a public record of the lake's uses, and delay that allows political organizing. Accept answers noting that the practical gain may be small if the Board approves the same diversion.
  13. Answer: Accept either position when it is supported and answers an objection.
    A student favoring reasoned explanation can argue that judges lack the technical record and the accountability to set lake levels. A student favoring judicial decision can argue that a findings requirement is easy to satisfy on paper and protects nothing. Strong answers name a concrete consequence rather than only stating a preference.

Differentiation

Support

Provide a case-brief frame with four labeled boxes for facts, holding, reasoning, and questions left open, and have students fill it in before starting item 1. Highlight the sentence "The trust is not a veto" in the copy given to these students, since items 5 and 8 both depend on it.

Extension

Ask students to write the two paragraphs of findings the Board would need on remand, then trade with a partner and mark whether the partner's findings would satisfy the rule as the majority stated it.

ELL supports

Pre-teach "holding," "remand," "vacate," "navigable," and "dissent" with a one-line definition and a short example for each. Allow items 1 through 4 to be answered with a phrase and a short quotation from the opinion, and provide the sentence frame "The court did not decide ___ because ___" for item 4.

Extensions

Have students find how their own state describes public rights in lakes and rivers, using a state agency page, and write one paragraph comparing that description with the fictional Marchwell rule. Students may also stage a short oral argument in which two speakers take the majority and dissent positions on whether the findings requirement should apply to a pond that is not navigable.