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.
