Guest Editorial Osburn
021512
Independence Lake Untangled 6
Guest Editorial by Kenny Osburn
Independence Lake is a public, navigable body of water. All navigable waterways in the State of California are held in trust for the public by the California State Lands Commission. Why then does it become a Sierra County problem?
In the 1970’s Independence Lake was threatened by development by the Disney Corporation. At that time, Sierra County and public opposition prevented development of a huge resort. Sierra County and their no-growth stance blocked this development and the lake is as pristine today as it was in the 1970’s.
The following decades found Independence Lake threatened by land owners threatening to keep the lake closed and gates on the public roads locked. The public inundated the California State Lands Commission with letters of outrage, and these were followed with a cry for help by Tim Beals, then Director of Sierra County Department of Public Works and Transportation. In a letter to Sierra County Assessor William G. Copren, dated December 10, 1986, Mr. Beals writes, “…the paramount concern expressed here is…the public right to access to Independence Lake, the boat ramp, and the fishing resources in the area.”
In a following letter to Mr. Beals from the California State Lands Commission dated July 13, 1987, the State Lands Commission states that “…these access complaints may be resolvable at the county level if the County Counsel would consider developing information in support of possible implied dedication rights. The research should probably concentrate on historic and long-term public access to Independence Lake on the present road and the public’s use of the boat launch ramp.” Subsequently the fight was on with Sierra County and private land owners, and until 2009 the public has had complete access to the lake and boat launch.
It is clear that in the 1980’s Sierra County encountered similar access problems as we are seeing today, with a private landowner threatening to block public access on public roads to the publicly owned lake and shoreline. Why is it that in 1986 it was appropriate for Sierra County to try to resolve these access problems with cooperation with the California State Lands Commission and in this decade it is more appropriate for gates to be locked on Sierra County Roads?
A letter dated February 2, 1987 from then Forest Supervisor Geri B. Larson to Tim Beals describes the long history of access to Independence Lake. It indicates that the lake was meandered by the “…original General Land Office Survey in 1874 and that there was road access to the lake at that time.” This Forest Service letter is proof that the public has had road access to Independence Lake since before 1874: over 134 years!
In the past 5 issues of “Untangled,” we have presented information bit by bit to prove that there is more to the Independence Lake access issue than the Sierra County Board of Supervisors believe. The problem is simply one issue: providing public access to Independence Lake. Bordered by this issue is whether or not Sierra County has allowed access to be blocked on two Sierra County Roads, whether Sierra County has illegally gifted public assets to private land-owners, and why Independence Lake continues to remain a controversial problem.
We presented our legal opinion to the County on February 9, 2011. However, during the Board of Supervisors February 15, 2011 board meeting, held before a packed crowd, the County Director of Planning and Transportation, Mr. Tim Beals, acknowledged he was making his recommendation to the Board without careful consideration of all the facts. With regard to the legal opinion presented by the Friends of Independence Lake, he stated, “…I haven’t even taken the time to read them. I have glanced at the points but I haven’t had the time to read them.” He goes on to say when discussing the two letters presented by Friends of Independence Lake, “There’s certainly information in those letters that may…change the course of this discussion.”
Based on this acknowledgement, it is apparent that the Board of Supervisors was not properly advised regarding all the issues relating to public access to Independence Lake at the February 9, 2011 hearing. This issue needs to be fully evaluated and finally determined by the County.
012512
Independence Lake Untangled 5
Guest Editorial by Kenny Osburn
When faced with controversy while dealing with Independence Lake access issues, the Sierra County Board of Supervisors forwarded the contentious subject to the Sierra County Water Resources Committee in 2010. This was a decision that most feared was disastrous for the taxpaying public. Friends of Independence Lake (FOIL) were successful in filling board meetings with angry members of the public insisting the county intervene on the public’s behalf to regain access to their state owned navigable waterway, held hostage by a conservation group. Former Sierra County Board of Supervisor Pat Whitley was pivotal in keeping the issue alive and at the time was the only Supervisor who agreed to go tour the site with FOIL and become informed on the issues, something a voter expects in a county of less than 3,300 residents. What about the other Supervisors? Newly elected Supervisor Scott Schlefstein has made several trips to the lake in the past couple of years while others rely solely on testimony from the Director of Public Works. A trip to the lake with FOIL has been offered to most of the applicable Sierra County staff in an attempt to “work together” but so far it has fallen on mostly deaf ears.
The Sierra County Water Resources Board is made up from a wide variety of Sierra County residents who work on water related issues. Why would they have been asked to advise on an issue involving public access via Sierra County roads? While some of their members may have been teetering on conflict of interest issues, the committee as a whole only gives recommendations to the Board of Supervisors. Reaching the boiling point FOIL asked “Are you feeding us to the wolves?” during one Sierra County Board meeting. Sierra County denied several requests by FOIL to remove the road access issue from the Committee’s consideration. Instead, the Committee heard and adopted the report from the Director of Public Works regarding the access issues, and declined to open up the issue to public comment, or to even engage in public deliberations. The Committee forwarded that singular recommendation to the Board of Supervisors – a recommendation that was adverse to you, the traditional users of Independence Lake.
In a Board meeting that followed, Sierra County Supervisor Scott Schlefstein did make an attempt to adopt a resolution supporting the public’s right to continue to access Independence Lake, but was unable to get a second. In an attempt to help, Supervisor Bill Nunes made a resolution to support public access, which was approved. At the same meeting, Supervisor Nunes made a commitment to get motorboats back on the lake. The resolution and commitment for motor boating did not go unnoticed but still gave the keys to Independence Lake to a conservation group who still insisted on “Closing” the public owned resource.
While the Board of Supervisors appear to support public access, you can still only use the lake via motorboat owned and strictly regulated by the Nature Conservancy every other week for a small usable window during the summer. Try to use the lake any other time with a motorboat and you might be considered a “Trespasser”. Private property rights commonly come into question regarding Independence Lake and it is important to note that the lake is yours and so are the roads leading to it. The land around the lake is privately owned by the Nature Conservancy (purchased with your tax dollars). All of us should tell our Sierra County Supervisors: “Give us our access back!”
The next issue will focus on the State Lands Commission and one Sierra County employee’s plea for public access including use of the boat ramp in the 80’s and now his so different stance.
011112
Guest Editorial By Kenny Osburn
Independence Lake Untangled part 4
What is a navigable waterway and why is it important?
When the State of California entered the United States in 1850, California agreed to abide by the United States Constitution and also insert language into the California State Constitution to keep navigable waterways open to the public. When getting admitted to the Union, California agreed that: “…all the navigable waters within said State shall be common highways and forever free.”
The California State Constitution, Article 10, Section 4 forbids any individual, joint, and corporate landowners from obstructing the free navigation. It also states that: “…the Legislature shall enact such law as will give the most liberal construction to this provision, so that access to the navigable waters of this State shall be always attainable for the people thereof.” California acquired title to navigable waterways and tidelands by virtue of its sovereignty in 1850 when California was admitted to the Union.
Now that we know that we have public access to navigable waterways, what exactly is a navigable waterway? Through precedent-setting court cases in California, we have learned that a navigable waterway need not be floatable year-round, but it must be for more than a few days in the rainy season. The State of California holds title to the navigable waterways and the land beneath them, as a trustee for the public. A navigable waterway, therefore, is a state-owned body of water, river, or stream. In the case of Independence Lake, the bed of the lake – or the land beneath the lake – is held in title by the State of California, as shown by the Sierra County and Nevada County Assessor’s maps.
Independence Lake is a navigable water. The State of California holds it in trust for us, the public. In looking at the California State Constitution, Article 10, Section 4, this article forbids any individual, joint, and corporate landowners from obstructing free navigation. This is exactly what The Nature Conservancy in cooperation with Sierra County Board of Supervisors, is doing: blocking free navigation to our publicly-owned lake. Speak to your Board of Supervisors about claiming those two roads that provide access to the Lake. Tell them that blocking access to a California-owned body of water is simply illegal! Have your public officials stand up for what is right – your rights as the public!
122811
Guest Editorial by Kenny Osburn
Independence Lake Untangled 3, Sierra County Road 351
As promised this issue will address the illegal abandoning/gifting of County Road 351, the old access from Highway 89 North at Sagehen summit which runs right into Independence Lake. Many old-timers remember making the journey from Truckee to Independence Lake via this road. A portion of this road was recently locked by the Nature Conservancy. Today Sierra County still continues to collect maintained road mileage funds on it and doesn’t put a dime back into it. Just recently, with assistance from Friends of Independence Lake (FOIL), the County has found the road again.
Sierra County has maintained mileage records on this road since at least 1956 and has been collecting funds on 2.85 miles since then. This road, for 2.85 miles, travels from Highway 89 North directly to Independence Lake. Ironically the Director of Public Works claims a portion of it was given away with a “Handshake” and sites a 1962 document as proof. The county never had that authority to abandon any access to a navigable waterway. In fact, the County is remiss in not following legal procedure to abandon and/or gift a road. Therefore the County has illegally given away a portion of County Road 351 to a conservation group – giving away our public assets for no financial or access consideration. This should anger all of us. Our public tax dollars paid for this road – a road which provided our access to a public lake. In a Staff Report provided to the Sierra County Board of Supervisors the Director of Public Works even admits the County did not formally relocate County Road 351.
County Road 351 is an example of having the right facts with no one to listen. FOIL’s attorney advised Sierra County Board of Supervisors that County Road 351 could not be legally abandoned, and that in any event, the County had not followed proper procedure to abandon a County Road. The Board, however, chose to listen solely to the evidence provided from one employee while ignoring all other evidence. In the legal opinion provided by FOIL’s attorney, Sierra County was advised “…..the county cannot legally abandon the road if it would destroy the right of public access to such waters”. In a map provided by a Sierra County employee after a visit to the lake with FOIL, the old alignment is shown in its entirety and crosses the outlet portion of the lake that is now currently the overflow ending in the old public campground. As shown in the several Sierra County documents, road 351 actually connects with the much contested county road 350 which remains locked just prior to the lake, with or without mileage lost in the 70’s. Therefore the two roads connect and form a loop to the lake, as shown in several Sierra County maps.
Let’s demand Sierra County use the money they have collected over 30 years on County Road 351 and reopen and improve the public’s access to Independence Lake. The County legally cannot abandon or give away any portion of this road. Ask your Board of Supervisors to maintain our public assets! Next issue will give FOIL’s view of being “Put to pasture” with the Sierra County Water Resources Board.
113011
Guest Editorial by Kenny Osburn
Independence Lake Untangled Part 2
This issue’s focus is on one of the Sierra County Roads that access Independence Lake, County Road 350 which was originally considered the primary Sierra County access. Today you will find an unwelcoming gate just prior to the lake with several signs informing you that the “Preserve” is currently closed. But what about Independence Lake?
Locked gates at various times were common on a ½ mile portion of the County Road 350 when Sierra Pacific Power owned it, illegal but rarely contested. After extensive legal research, the previous land owners should have been held responsible for any locked gates which prevented access to a state-owned body of water. The same research has found many issues of contention regarding these roads including implied dedication, mileage discrepancies, maintained road inconsistencies, and Sierra County’s interpretation of their own documents.
Let’s talk road mileage and County Road 350. Whether you do a Public Records Request or simply just travel to Sierra County headquarters in Downieville to ask for documentation regarding this road you will find within a Sierra County document describing County Road 350 as: “a seasonal road providing access to Independence Lake……”. This almost forty year old document doesn’t warn its reader that the county just recently claimed the end of the road to be some two hundred feet short of the dam and Lake, allowing a conservation group to control access using terms like “Private Property” and “Threatened Fish”. There is a way to determine mileage from 40 years ago and today.
The County’s Maintained Road mileage for this road is 3.85 miles today and actually was 3.90 miles up until sometime shortly after 1970. This mileage starts and ends from designated points following a certain “alignment”. The biggest problem with a designated point from 40 years ago is trying to agree where that point is today. In an attempt to figure these points out Friends of Independence Lake (FOIL) did a great deal of research and visited the site with a Sierra County employee who mapped both roads (however, this employee was not made available to present these findings during the hearing before the Board of Supervisors, even after his presence was specifically requested by FOIL). So, if you can’t agree on a point that a given road starts then perhaps you should work backwards from the lake – unless you don’t believe the road started from the lake in the first place. This conundrum is easily fixed when there is a United States Forest Service (USFS) property line splitting this road and the county has the mileage on each side documented. This works well providing a fixed reference point that is today still well marked. The County states that 3.15 miles of County Road 350 are on the USFS side and .70 miles continue across private property to the end, the total being 3.85 miles as described above. Problem solved: FOIL used several methods of measurement and confirmed that the end of the road actually is on the dam without even adding the .05 miles illegally abandoned in 70’s. Given the right-of-way (width) of the road you are well within reach of the high water mark at this location, thus providing access to the water. FOIL in an attempt to solve this dilemma has offered to hire a state-certified surveyor to measure the road but the Director of Public Works has declined.
In a separate document Sierra County actually shows the location of all the road mileage markers on County Road 350 in half mile increments. This 1972 document is part of the Public Records Act request by FOIL. The interesting part is the 3.5 mile marker appears to be about where the current locked gate is, leaving over a 1/3 of a mile of unclaimed road and ultimately road access to the dam, again without even adding the illegal loss of .05 mileage from the 70’s.
What if, only armed with amateur instruments, FOIL is correct? This would mean that Sierra County is collecting tax money for a portion of road that has been given to a conservation group. FOIL and the public demand the return of .05 miles of County road 350 illegally abandoned. If this doesn’t upset you as a tax payer, then wait for next issue when we expose the illegal abandonment/gifting of County Road 351 which runs right into the lake.
110911
Guest Editorial by Kenny Osburn
Independence Lake Untangled
An issue-by-issue look at why Independence Lake, a navigable waterway, owned by you is still being held hostage by a conservation group.
This issue’s focus is on the public’s right to access this “Gem of the Sierra”. The California Department of Fish and Game 2011 Freshwater Water Fishing Regulations identify Independence Lake as open year around for fishing with several provisions to protect the Lahanton Cutthroat. The Nature Conservancy (TNC) has closed the lake for the season and currently has a locked gate on a county road effectively precluding the public from exercising its right to access year around. How did we get here?
It sure gets tiresome responding to the same old misnomer, “TNC bought the lake and did it with private donations”. This couldn’t be further from the truth. Friends of Independence Lake has repeatedly pointed out that you, a citizen of this great nation, own the lake and have a right to access it year around; it is after all held in trust for you by the California State Lands Commission. Unfortunately TNC and the decisions of the Sierra County Board of Supervisors have severely restricted your access. The land around Independence Lake was purchased by the TNC with your tax dollars in attempt to protect you from yourself. Any guess why this spectacular pristine lake is so perfect? The answer can be found within its traditional users who have used and protected her so well for so long. Over 98% of the monies used in the land acquisition, $15 million were from you the taxpayer and of course now the newly named “Independence Lake Preserve” is closed for the season. Millions of other tax dollars are currently being used for stewardship and improvements on the property as well, in today’s fiscal mess.
Aquatic invasive species, a unique strain of the Lahanton Cutthroat Trout and a multibillion dollar non-profit conservation group have singled Independence Lake out and decided to “protect” her. Could it be more about a new user group, perhaps those who believe in quiet non-motorized boats and those who don’t carry guns to hunt and have the attitude of an “elitist”?
Buyers beware: in the TNC’s Title Report, TNC was warned of the public’s right to access the lake including multiple types of recreation. The old owners have been criticized for restricting access in the past but the restrictions of the past owner were never this harsh and unreasonable. Hind sight is 20/20, I wish we knew then what we know now. Two wrongs don’t make a right!
Sierra County Board of Supervisors have been requested multiple times to stand up for the rights of the people in regards to Independence Lake. Public access is the topic of this week’s story, in particular the direct violation of the Board of Supervisors to the Sierra County General Plan Policies which require the County to ensure adequate access to public lakes and reservoirs. The Parks and Recreation Policy element 5a mandates that the county must “[e]nsure adequate access to public waterways.” The Parks and Recreation Policy element 8a directs the county to “[e]nsure adequate access to public lakes and reservoirs.” The County has also claimed that it has “abandoned” portions of Independence Lake Road, which provide the public direct access to the Lake. However, any claim of abandonment by the County is illegal and in direct contravention of the well established legal rule that once a public road that provides public access to navigable waters is established, the county cannot legally abandon the road if it would destroy the right of public access to such waters.
The Board of Supervisors have not helped the citizens of Sierra County in this matter. Their Planning Director can be quoted in a February meeting as saying that he did not even read the legal opinion of Friends of Independence Lake. Without such thorough review, what else is your Board of Supervisors willing to give away of your public rights? Issues such as these must have an objective and thorough review. Have you ever wondered who holds the Board of Supervisors responsible? The answer is you! Remember this when it is time to go to the polls a year from now. Stay current on the issues and please vote. Stay tuned for the next issue which will focus on the two roads that access Independence Lake and the illegal abandoning, gifting and mileage claimed of one such road.
