LEGAL LUNACY, OR WATER ON THE BRAIN?

In a letter dated February 26, Mr. Daniel Kelly, of one of Royal Gorge LLC's (many) law firms, Somach, Simmons, and Dunn, addressed the entire board of Sierra Lakes County Water District (SLCWD)*.  As avid readers of this ongoing serial, "Royal Gorge LLC Attempts to  Dam, Dredge, and Pave the Entire Sierra," may recall, in protesting SLCWD's draft  proposed ordinance which limits how much water may be drawn down from Serene Lakes in order to protect water quality, and recreational and aesthetic values, Royal Gorge LLC (RG) made the very odd argument that SLCWD was forbidden from considering recreational and aesthetic values because the statute SLCWD was formed under didn't allow them to "construct, maintain, or operate works or facilities appropriate or ancillary to such recreational use...." How does this affect protecting recreational, environmental, and aesthetic considerations?  It's hard to see the rationale, if any, there.

An observant water board member noted that a logical consequence of this would be that SLCWD water couldn't be used to fill RG's proposed recreational "West Lake".  As a point of fact, RG is dependent at this time on SLCWD's state water rights permit for any water that ends up in "West Lake", even if it originates from snow melt that has piled on RG's hole in the ground (impoundment). If they don't have a state water rights permit for those two proposed impoundments, they don't have rights to the water. SLCWD does.

Ouch! RG's law firm then had to labor to establish through astonishing feats of legal legerdemain, that although SLCWD was forbidden from considering my favorite quote, from 'Wind in the Willows', "There is nothing- absolutely nothing-half so much worth doing as simply messing about in boats" for the benefit of all the Serene Lakes folks, they still had to float RG's boats in "West Lake," because that was a 'beneficial use' under state law. Even, apparently, if that means draining Serene Lakes to benefit "West Lake."

Here's it in a nutshell.  SLCWD received an amendment to its water rights permit in 1991 that allowed it to provide water to John Slouber for the period of mid November to December 31st to allow snowmaking. That was an industrial use, so SLCWD could provide water to other users for industrial and other beneficial uses, but, under RG's reasoning, SLCWD can't consider beneficial uses such as recreation and keeping fish alive for their own lake.  Sounds like a perverse variation on "No good deed goes unpunished", right?

Don't worry, illogic doesn't win the day, although it no doubt runs up a huge legal tab for RG.  What isn't said by RG and their counsel is more important than what is said- and they always leave out the Public Trust Doctrine.  The Public Trust Doctrine, (see the Mono Lake decision) underpins every decision regarding water in the State of California.  It transcends the formative statute RG keeps alluding to.  If SLCWD did not consider recreational, environmental, and aesthetic elements when weighing an ordinance, they could be subject to lawsuit from any resident of California. Bottom line, fish, boating, water sparkling in the sun- all these things not only matter- the California Constitution backs them up!

It's really kind of sad to see RG and their lawyers making all this fuss over a point they know they'd lose in court in a nanosecond, when they know the Public Trust Doctrine controls the (red herring) issue they try to raise.

Sadder still, why are they wasting SLCWD's time and resources, which when the day is done are ratepayers' resources with meritless arguments? What do they expect to gain from saying SLCWD can't make sure the Serene Lakes remain good for boating, but SLCWD has to send that water to the as yet unbuilt "West Lake," so their purchasers/customers can boat ?

Is it that Royal Gorge LLC really, truly doesn't care what happens to Serene Reservoir as long as they get enough water to sell their 1000 units?  

Here's their answer in lawyerese: 

"Those that receive water from SLCWD can 'use' water for any authorized beneficial purpose under SLCWD's water rights. Water Code section 31015's prohibition on SLCWD using water and land under its control for recreational purpose is limited to SLCWD itself, and is not imposed on end users of water."

Maybe we all need to form a "Serene Lakes Boating Club" to "use" water from SLCWD?  Oh, but  we already use the water to boat on- but we don't count-only RG's intended use counts.....

Two closing observations.  First, the "legal reasoning" above regarding section 31015 is, to be charitable, strained.  Second, Don't blame the tool.

*This letter is public record under the California Public Records Act.