California Did not Consider the Effect On the Public of Supporting the Shasta Indian Nation in Obtaining 2,800 Acres of Land on the Klamath
The State of California decided to support the Shasta Indian Nation’s effort to obtain over 2,800 acres of land along the Klamath River without considering the effect of the decision on public access and use of the navigable Klamath River for recreation and without considering the effect of the decision on public access and use of lands under the public right to fish on state-owned land whether or not navigable, in violation of the procedural requirements of the Public Trust Doctrine.
On June 18, 2024, Governor Gavin Newsom announced the State of California’s support of the Shasta Indian Nation’s effort to acquire 2,820.860 acres of “Parcel B” land associated the dams being removed from the Klamath River. The announcement referred to obligations of the state arising from wrongs suffered by Native Americans, but did not mention the state’s obligations to the people of the California under the public trust doctrine or the right of the people of California to fish on state-owned and formerly state-owned lands. This does not criticize the state’s consideration of the needs of Native American groups or the Shasta Indian Nation. This criticizes the state for not considering the needs of the people of California.
The land to be transferred is land located in California and included in “Parcel B” in the Klamath Hydroelectric Settlement Agreement providing for the removal of dams on the Klamath River. This lands was owned by PacificCorp, transferred by them to Klamath River Renewal Corporation in connection with the agreement to remove the dams, and to be transferred by Klamath River Renewal Corporation to the State of California, or the state’s designee.? The state’s right to receive the land and its right to designate another entity to receive the land in its place: makes it clear that the state is making a decision which may have an adverse effect on a public trust interest – the decision to designate another recipient rather than accept the transfer of the land to the state. Go to the Kalmath River Renewal Corporation website for the Agreement and other documents.
If the state designates the Shasta Indian Nation to receive these lands (and does not otherwise protect the public interest) then:
a.?????? ?the public loses the right to cross these lands to get to the navigable Klamath River its navigable tributaries, the temporarily dry bed and banks of these navigable waters and lands subject to annual overflow from them; and,
b.?????? The public loses the right to fish on the land including on the non-navigable waters of this land together with the right to do those things necessary and convenient to enjoy the fishing (driving on, parking, camping overnight, for example).
If the state does not designate the Shasta Indian Nation to receive these lands, then they are transferred to the State and then:
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a.?????? the public can cross them to get to and from the navigable Klamath River and its tributaries including their temporarily dry beds and banks below ordinary high water mark and lands annually flooded by their overflow; and,
b.?????? the public can fish on these lands (including on small non-navigable streams) and the land can never be sold or transferred without reserving in the public the absolute right to fish on them (and the right to do those things necessary and convenient to enjoy the right to fish – driving in, parking, camping over night).
The state is not supposed to make decisions that may interfere with public access to and use of navigable waters without first considering the effect of the proposed decision on public access and use, avoiding so far as feasible harming the public access and use; and providing this consideration in a public manner facilitating public participation. For example, the reservation of easements providing convenient access to the navigable waters is a feasible way of avoiding the loss of access. See San Francisco Baykeeper v. Californis State Lands Commission (2105) 242 Cal. App. 4th 202.
Although not as clear, it is likely that state is not supposed to make decisions that may interfere with the public right to fish on state-owned lands without a similar consideration process.
As a separate concern, the state’s right to receive the land under the Klamath Hydroelectric Settlement Agreement together with the state’s power to designate another person or entity to receive the lands in lieu of the state, appears to be a sufficient interest in the real property to trigger the state’s obligation to reserve in the people the absolute right to fish on the property upon any sale or transfer; and, the designation of the Shasta Indian Nation appears to be a transfer of state-owned land.? A transfer without the reservation would likely be void as beyond the authority of the state; although, a court might attempt to save the over-all transaction by reading in the omitted reservation. See section 25 article I California Constitution; California v. San Luis Obispo Sportsman’s Ass’n (1978) 22 Cal. 3d 440.
In attempting satisfy obligations to Native Americans, the state has neglected to meet its obligations to the ?people of the State of California.? We need to step back and consider the rights of the people as well as those of a narrow subset of the people.? #
#klamath #KRRC #KHSA #COPCO #PACIFICCORP #SHASTAINDIANNATION #RIGHTTOFISH #PUBLICTRUST #KLAMATHRIVERRENEWALCORPORATIONCalifornia Did not Consider the Effect of Supporting the Shasta Indian Nation in is effort to Obtain 2,800 Acres of Land on the Klamath River On the California Public
River / Public Trust Land Access; Bond and Undertaking Law
5 个月Thanks. Ray. Now you have set me off. The right to fish and engage in other recreation generally on navigable waters is protected. This includes waters so small they are only navigable in a canoe and don't connect to a greater system. This includes the dry land from the water to the ordinary annual high water mark ( yes you do get to sit or walk along the bank), and lands subject to annual flooding from the water's overflow ( possibly as it would be without levees and drains). The right extends to artificial waters - Lakrs like Shasta,, ponds on farms and golf courses, ditches and canals. There is no general constitutional right to fish or walk up a stream so small it won't accommodate a canoe or raft. There is a right to fish on land which is now owned by the state; and, a right to fish on land owned by the state after November 8, 1910, and later transferred out. The issue often is access to, not the right to be on. California public agencies ( state-wide and local both) are required to refrain from interfering with access so far as feasible, and to make decisions that might impair access only after considering the possible effect avoiding so far as feasible interference, in a public manner facilitating public participation.
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5 个月The right to navigate in the navigable waters of the state and the river to fish in the waters of the state are constitutionally protected. The state can’t transfer property without reservation. You simply can’t extinguish a constitutional right by a change in title. Francis, you are right as usual. If you want to have some fun take a look at how the state took over the Dye Creek Ranch ? (Therms County) back in the 1980’s and then transferred the property to a non profit only to see the non profit lease the property back to the same Dye Creek company that the state took for failure to pay taxes. I might also mention that this property is the play ground for the elite members of the state.