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Public Trust Doctrine As It Relates To The Lake At Lake Elsinore

If nothing is done to correct the miscarriage of justice to the public I fear that in a few short years recreational activity will become very scarce in Lake Elsinore.

After the American Revolution, each of the original states succeeded to the sovereign right and duty to protect navigable waters and submerged lands not in a proprietary capacity, but rather “as a trustee of a public trust for the benefits of the people” for uses such as commerce, navigation and fishing. This right and duty was passed on to all the other states by way of the “Equal Footing Doctrine." The determination of what was a navigable waterway was to be determined at the time of statehood.

“The public trust ... is an affirmation of the duty of the state to protect the people’s common heritage of streams, lakes, marshlands and tidelands …," wrote the Supreme Court of California in regard to its 1983 court ruling on Mono Lake.

In looking at this doctrine, a navigable waterway is one that was such at the time of statehood; in California, that date is September 9, 1850. On this date, according to records of the time and subsequent studies, the highwater mark of Laguna Grande (later renamed Lake Elsinore) was 1,265 ft. (federal law determines the highwater mark as the line that the water impresses on the soil by covering it for a sufficient time to deprive it of vegetation). The lake has had enough water to flow downstream on several occasions since records were compiled starting as far back as 1776. The level of the water in the lake was at 1,250 ft. approximately on Admissions Day and as such these two elevations should have been used in determining the “Public Trust Lands." Other documents from the era show that the Native American people used these lands for their lively hood i.e. fishing, canoeing and such, which further support the “Public Trust Doctrine” criteria.

Somehow these lands were not transferred by the State of California into the Public Trust until 1952, some 102 years later by the legislature and at that time they only transferred the land below 1,236 ft. elevation which was probably the level of the lake at the time as it dried up in 1954. This smells of politics in the foulest of ways. Granted the lake has had its ups and downs in elevation, as do all bodies of water, but when the lake level was down, what is now the floodplain became a marshland that filtered the waters going into the lake. The Public Trust Doctrine is very clear in that what is at the time of statehood is what should have been transferred -- it matters not what happens down the road. This means if a lake or river existed on the date of statehood and should later completely disappear, that land is considered Public Trust land.

It is time for the citizens of the local area to ask why the law was not followed. There are a number of instances in which prior actions by some powerful entities have been reversed by the courts such as Mono Lake and Owens River versus Los Angeles DWP, Chicago Lake Front versus Illinois Central Railroad, and on and on. If nothing is done to correct this miscarriage of justice to the public I fear that in a few short years recreational activity will become very scarce in Lake Elsinore due to the city's appetite for expansion. The building of private residences on the flood plain will soon lead to complaints about the recreational activities associated with the lake area to increase to the point that these activities will cease to exist.

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Cat June 07, 2012 at 02:09 AM
KEN- someone had previously mentioned that someone was buying up the previously flooded land around the lake btwn the 1235 & 1280 flood mark. Do you think there is a chance that they will develope any lakeside attractions for the good of all the Lake Elsinore residents?
Ken Mayes June 07, 2012 at 06:40 AM
I have e-mailed the Attorney Generals office and have yet to receive a reply which is kind of surprising seeing as how Kamala Harris has been involved in the same fight in the Bay Area. Also e-mailed Kevin Jeffries and received a reply that pretty much blew me off. As for filling a lawsuit anything is possible I'm still gathering information on property ownership at the time California became a state which appears to have been in the hands of one person Julian Manriquez by way of the Rancho La Laguna land grant, Mexico at the time had a similar public trust doctrine called "Las Siete Partidas".
Ken Mayes June 07, 2012 at 06:43 AM
As I recall most of the property that was flooded during the 80's flood was purchased with the intention of preventing construction on it, but how times have changed. The city is more interested in privatizing the lakefront and restricting access to a few city owned venues.
big aunt harry mary June 11, 2012 at 03:18 PM
resident should only have to pay a minimum fee to use what they already pay for to keep up. somewhere in the 10-20 range per day or a 50.00 yearly pass. i know its not high now but, to residents there should be a substantial break. for any one using the lake from may 1st to october 31st, during the weekdays, should be allowed to use it for free to keep the water "churned" to avoid costing more each month to run the aerators. this will also keep the algae growth down during the summer months by keeping the water moving. letting people know this a people friendly lake will increase the usage by paying parties. income is a good thing here since it is weak at best right now and has been very low for years. the "free use" would have to be from the city launch since its not fair to the private parks to impose on their facilities will no income. there are many large boat builders who test here and could use the break and, we certainly could use the water to be "moving" as much as possible. for free !
Ken Mayes June 12, 2012 at 02:48 PM
Had this lake, up to the natural high water mark of 1265 ft, been placed into the "Public Trust" as it should have been all boat launches would be on land leased from the public trust including the city launch site. All monies collected from these leases would then be required to be spent on the lake. As for the fee it should be the same for all citizens of California and in looking around a other lakes the going rate is about 8.00 per day. As for the locals getting a break, if the city wishes to subsidize the fee so be it. Regarding the aerator's with the amount of wind across the lake daily maybe this should have been taken into consideration when this was being planned and then their would not have been a cost for electricity. The fact is there is are many more problems than just aeration with the water quality in this lake.

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