Should Sierra County Do Something at Independence Lake? 102710

Recap: There’s a long, cold, windy lake at the southern border of Sierra County where strange and vanishing critters once lived in abundance, but now are nearly gone.  The lake is Independence Lake, of course, and the vanishing critters, of course, are the yokels, young and old, who like to don a cap, get some cold beer, and putter up and down the lake dragging all kinds of spinning and bobbing hardware, looking for fish for the pan.  These critters are correctly called “law abiding citizens” but they’re known among the elite as “motor-boaters,”  “trout-snaggers,” and (a local favorite) “booger eatin’ cousins.”  
The lake was owned for more than a century by benign barons who often lived far away, but always, under the law of the land, allowed the law abiding citizens the chance to fish and camp at the lake.  
Then came forward a behemoth in the garb of the do-gooder, The Nature Conservancy, a gigantic, $6 billion dollar fairy godmother that “rescued” the land from the benevolent barons and drove the law abiders from the lake.  They moved the camping area from the traditional spot (now used by TNC insiders) and prohibited putt-putts.  TNC has happily avowed to make the lake a “pristinized” nearly free resort for people who are often from somewhere else, and often more affluent than the more local motorboaters.

The law abiders are known as “Friends of Independence Lake” and most commonly in the person of Kenny Osburn, who has fished the lake since he was a wee lad. The Friends have had several meetings with supervisors and TNC, and though their interactions were amateurish at first, they’ve been persistent and have gained friends, resources and skills as they’ve gone along.
Currently, there appears to be an impasse, with TNC unmoved and the Friends undaunted.  

We remind of these facts which have been deemed by some to be important:
1. The water is owned by somebody in the state of Nevada; it’s an inconvenience for Harry Reid, The Nature Conservancy and the thirsty village of Reno-Sparks that the lake isn’t in Nevada.
2. The ground under the lake is owned by the people of the state of California.
3. The roads in, out, and around are largely owned by the people of the County of Sierra.
4. The Nature Conservancy took public money to purchase the land around the lake to ostensibly hold in public trust, though now TNC local nabob Chris Fichtel calls the land “private property”.  
5. There are very old historical use rights involved.

One might also add that there are cultural and class issues involved in the uses of Independence Lake.

The question is, what role, if any, should the County of Sierra have in resolving the issues?

This reporter has heard various answers to that question.  Supervisor Pat Whitley isn’t afraid of TNC and says the county should assert the right the public has to the county roads there.  She has visited the site and made it clear in board meetings that the road goes through the property, and the people of Sierra County and the world should get the same access to the lake they historically have.

Other department heads and staff have been a little more silent on the matter.

There is a general opinion that says that TNC is as big as a thousand Sierra Counties, and we have all the legal battles we can handle right now.  I’ve heard specific opinions from staff that the county doesn’t have a dog in this fight, but that’s clearly not true.

Tim Beals, Director of Stuff-We’re-Keeping-An-Eye-On has said very little.  His mission is to collect information and bring it to the board for direction, and this is one stinky mess on which he isn’t going do more than that. However, Beals has made trips to the lake, looked at the gates there and gathered historical information.

The supervisors sent the matter to the committee that handles water matters, which has led some of the Friends to refer to attending those meetings as “getting water-boarded.”  There are many reasons the board might send an issue to a specific committee.  One would be to gather facts and return with a recommendation.  Another would be to let it languish there until the issue resolves itself.

Some say that isn’t likely to happen.  TNC is opaque.  It is certainly true that the Prospect’s attempts to find out more about the decision to exclude traditional users from the lake or the chain of administrative authority which could change the decision have been met with silence.  Chris Fichtel has a profound ability to ignore our emails, causing me to remark often on his amazing powers of ignorance.  At this point, it might be just a “pissing contest” for TNC, an organization too big to be pushed around by a bunch of yokels, however determined.  
Further, at least for the moment, TNC has 99% of the press and residents in the state on their side.  Most people love the idea of “rescuing” a “pristine” lake from evil private ownership.  They love the idea that the NATURE Conservancy is saving endangered fish from those buck-toothed fish hunters.  Canoeists and kayakers love the idea of a lake all to themselves, since they are closer to nature in their all petroleum boat, clothes and gear, not like those oily motorboaters.  Never mind that most of that isn’t true.

On the other hand, the Friends seem to have no idea the size of the monster they’re taking on.  It’s all too easy to see Kenny as the ant about to shift a rubber tree plant, he’s energetic, eager to work, and knows in his heart that he and people like him have the right to fish Independence Lake as they always have.  The Friends don’t think the legal location of County roads and traditional campgrounds is rocket science, but they used county documents and a satellite to verify that, yep, TNC is blocking a public road.  They think that should stop.

They don’t care one way or another about people paddling around the lake, and aren’t keeping anyone from doing anything.  Indeed, some year real soon the wind is going to sweep off the glacier-scrubbed granite mountains and churn Independence Lake into a plastic-boat gobbling monster, and Kenny and his motorized pals will probably save as many paddlers as possible.  
One thing they aren’t likely to do, though, is give up.

Among the many bits of information and evidence the Friends have is a 1987 letter from the state saying that, yep, the lake is public.  The California Department of Fish and Game is not taking sides, but worked for many years with the system the way it was.  TNC isn’t preventing fishing, so there’s no basis for them to get involved.  

That still leaves the County, embodied by the Board of Supervisors.  They’re waiting for the committee to get back to them, and this month’s meeting was cancelled, so, they’ll just have to be satisfied to wait.  And they are satisfied to wait.

Winter is on us, and the Lake is traditionally closed, so the issue might hibernate for a few months.  Spring, though, will come, and with it the Friends will start working on that monster rubber tree plant.  

What can the county do in this situation?  
Well, for starters it can insist that the gate be open and the historic road available for public travel.  That ways people could at least drive up and watch the pals of TNC using the lake.

They could also write a letter to TNC complaining about the curtailment of traditional and historic uses.  

Photo is Link

They could write letters of complaint to the State Lands Commission; they can draw on the letter from the State Lands Commission of 1987 which clarifies that the public has a right to access the lake.

California Public Resources Code, Section 6301
  - “California State Lands Commission has exclusive jurisdiction over all ungranted tidelands and submerged lands owned in the state and the beds of navigable rivers, streams, lakes, bays, estuaries, inlets and straits, including tidelands and submerged lands or any interest therein, whether within or beyond the boundaries of the State as established by law .….  .”

Clearly, the people of California, in crafting their law, intended that navigable waters should have public access.   The Board could instruct staff to take what avenues are available to express to the state agencies that the county wants use restored.  

CALIFORNIA CONSTITUTION ARTICLE 10 WATER SEC. 4. No individual, partnership, or corporation, claiming or possessing the frontage or tidal lands of a harbor, bay, inlet, estuary, or other navigable water in this State, shall be permitted to exclude the right of way to such water whenever it is required for any public purpose, nor to destroy or obstruct the free navigation of such water; and the Legislature shall enact such laws 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.

It is possible the State Lands Commission would again find that access to Independence Lake can’t be limited.  The Board could appeal to them.  

Navigable waters: Daniel Ball, 77 U.S. (10 Wall.) 557,563 (1870)  
(Waters) are navigable in fact when they are used, or are susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water.

In one very real sense, the County Board of Supervisors are really just some local folks we hire to do the bidding of the state, like the local communist party officials did in China or Russia.  In another sense, though, if we have any semblance of a nation where the voters own the government, the supervisors also have to represent us, and not in the corporate sense in that we’re stock holders and they’re the governing board, but in the sense that they work for us and need to watch out for our interests, or we’ll vote them out and vote for some property rights wacko and gum up local government good.  

Besides Pat Whitley, no supervisor has gone on record about IL.  The two candidates for District 5 had given opinions on the matter.  Scott Schlefstein clearly feels the road to the old camp ground is a public road, and thinks the facilities should be re-opened.  Karen Rickman stated she felt that it was private property and TNC could control access.  

Should the Board of Supervisors do all they can to restore traditional uses to Independence Lake?

You decide, take our Independence Lake Survey HERE.

Here’s an interesting read.
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