ROYAL GORGE LLC, WATER, SERENE LAKES, AND THE PUBLIC TRUST

It has become increasingly apparent that those who own Royal Gorge LLC: Kirk Syme, of Woodstock Development, and Todd Foster, Mark Foster, and T. Jack Foster, of Foster Enterprises all hold a certain ideology concerning water--to whit, it's a market resource, and it's primarily there to be used in order to allow them to build as many units at Donner Summit as they want to. The sum total of their communications to the public, and the many letters/arguments put forth to the Sierra Lakes County Water District (SLCWD) by their employee Mike Livak, as well as multiple lawyers and consultants adds up to: "Royal Gorge LLC has a right to  Serene Lakes water, and  Royal Gorge LLC is going to do whatever it takes to get it."  

Now, at almost every  SLCWD board meeting, Mr. Livak makes earnest protestations that of course Royal Gorge would never, ever do anything to harm our Serene Lakes. Ever. Really truly.  This is a little hard to believe, as he, or the consultant or the lawyer of the month then proceeds to tell us various incredible things, such as dredging won't hurt our lakes, or raising the dam on Dulzura and maintaining a raised water level over several months (water level is currently only high during rapid melt time) won't damage private property, trees, and foundations, or, the whopper, that the Serene Lake's water level can be dropped 4 feet below the dam without affecting the lakes adversely. Worse than that whopper is the latest  chain of legal arguments- several of Royal Gorge LLC's lawyers have held out that SLCWD cannot consider recreational and aesthetic aspects in managing the lakes, because the state water permit says they can't operate recreational facilities, which besides being an inane and nonlinear claim, throws the Public Trust Doctrine out with the bathwater, in my mind.

How does Public Trust enter into this, aside from the fact the mere mention of it seems to have the effect of sending Royal Gorge LLC's latest water lawyer into a vehement diatribe? Two words. MONO LAKE  

In lieu of attempting a history of the over 20 year saga of environmental groups suing the Los Angeles Department of Water and Power (LADWP), the State Water Resources Control Board, etc., I'll direct you here for quick background: http://www.monobasinresearch.org/timelines/polchr.htm. In a nutshell, though, here's a (really) brief sum up: LADWP had state granted appropriative rights to take massive amounts of water from Owens Valley/Lake, tributary creeks, and ground water.  They took so much water that Mono Lake was being drained away, killing the brine shrimp that kept many birds alive. As the waters dropped, land bridges were formed, enabling predators to reach bird nests, putting more birds in peril.  The California Supreme Court's ruling established that public trust considerations, which included protecting the waters of Mono Lake, could trump prior allocated water rights.  

Now, other legal issues were involved in the series of cases, including the very important fish and game code requiring dam owners to bypass water to protect downstream fish, and that 20 year saga required diligence on the part of many plaintiffs-  including the Audubon Society, the Mono Lake Committee, the Mammoth Fly Rodders, and California Trout. What really wasn't pretty was the absolute foot dragging of public agencies, a kind of war of attrition against those who would protect Mono Lake and its tributaries. In the end though, the Public Trust Doctrine emerged as a firm underpinning of water policy in California. Since the seminal Mono Lake Decision, the notion of Public Trust has been expanded to include aesthetic concerns, concerns for habitat, and even simply "messing about in boats."  (I get bonus points for using Kenneth Graham's Wind in Willow's quote as often as possible)

However, there are many who would love to consign the Public Trust Doctrine to the dustbin of ancient legal history. It will be a key point of contention in the upcoming fights to save the Delta from being  fatally siphoned off for agriculture and southern California interests. Further, the Public Trust Doctrine is a thorn in the side of those who feel water is a marketable commodity, and protection of lakes and instream uses is just so much environmental twaddle--tree hugging, fish kissing namby pamby  greenie stuff.

Back to Serene Lakes -- Those of us who love the lakes, and respect the fact water should flow down Serena Creek to support fish, and feed the North Fork of the American River, and those of us who like to swim, and boat, and merely gaze upon two small lakes that are treated as lakes, not reservoirs -- the Public Trust Doctrine supports our desire to protect the lakes. SLCWD, being a sophisticated board, knows that despite the fact they hold appropriative rights to the water in Serene Lakes watershed, that this right is not paramount to maintaining the lakes in a manner that protects habitat, the environment, aesthetics, boating, swimming, and simple, quiet enjoyment. 

I believe Royal Gorge LLC knows this too -- but the Public Trust Doctrine is rather inconvenient when you're trying to max out the water draw from small lakes that may actually be at maximum draw now, in terms of continuing to maintain them as lakes instead of fetid reservoirs.  Perhaps Royal Gorge might be wise to consider this possibility- if they kick the Public Trust Doctrine too hard, it might cause the public to wonder about the "Private Trust Doctrine," i.e., should the public trust private developer's claims they won't harm our lakes, when for the past few months they've spent tons of money on lawyers (and forced SLCWD to do likewise) to challenge a resolution aimed at protecting the life and beauty of Serene Lakes?

Or does Royal Gorge LLC really care if anyone trusts them, as long as they get enough water to build their 1000 or so units?