# Petition for Writ of Certiorari — Fogerty v. California > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_0302%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1987 - **Citation:** 484 U.S. 821 ## Text a. via f ® 6 . st a ~ : te patil. ats ] S 0 ] FILED { bo kb be we ye Ct oRK - Pe & JOSEPH F. SPANIOL, dhe, In the Supreme Co OF THE United States OCTOBER TERM, 1986 TAHOE SHOREZONE REPRESENTATION, Petitioner, VS. STATE OF CALIFORNIA, et al., Respondents. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOR THE THIRD APPELLATE DISTRICT WILLIAM T. CHIDLAW COUNSEL OF RECORD LAW OFFICES OF WILLIAM T. CHIDLAW A Professional Corporation Point West Executive Centre 1455 Response Road, Suite 191 Sacramento, California 95815 Telephone: (916) 920-0202 Attorney for Petitioner Tahoe Shorezone Representation BOWNE OF SAN FRANCISCO. INC. + 190 NINTH ST. + S.F.. CA 94103 © (415) 864-2300 QUESTIONS PRESENTED The court below, implementing an earlier interim decision by the California Supreme Court, held that the public trust servitude applied to the bed of Lake Tahoe between low and high water marks.’ The California Supreme Court relied on //linois Central Railroad Co. v. Illinois, 146 U.S. 387 (1892) (“Jllinois Cen- tral’), stating that //linois Central “settled the issue.” This was a sudden and unpredictable change, without precedent in state property law. However, the court reasoned that “public interest” in protecting the environment and “preserving” the shorezone on California lakes and rivers justified its drastic change in California law. Petitioner’s appeal from the subsequent adverse trial court ruling, following remand by the Californnia Supreme Court, resulted in yet another unprecedented and unpredictable change in well established California law, the court below holding that, since 197], the public trust servitude extended up to an artificial high water mark. The court supported its ruling with the theory of “prescriptive rights” which it said created a public trust in the state based on the periodic flooding of petitioners’ property, for water storage, by the operation of the federal dam from 1966 to 1971. There had been no notice to shoreline owners of any adverse claim to their property until immediately prior to the commencement of this litigation in 1977. The following questions are presented: I. Does the decision in //linois Central: a. Constitute a rule of federal common law, binding on states, rendering the states “powerless”? to convey ' The earlier California Supreme Court decisions in this litigation leading up to the final judgment were: State of California v. Superior Court (Fogerty I), 29 Cal.3d 240 (1981) and the companion case of State of California v. Superior Court (Lyon), 29 Cal.3d 210, (1981). >In Lyon the California Supreme Court ruled that //linois Central stood for the proposition that a state was “powerless to relinquish its rights as trustee.” (Lyon, supra at 227.) il sovereign lands free of the burden of the public trust servitude as defined by the California Supreme Court? b. Support a state court ruling changing, unpredict- ably and without precedent, well-settled state law and transferring ownership of property to the state without payment, where the public trust servitude is involved, without regard to the Due Process and Taking Clauses of the Constitution? c. Support a state court ruling that a state has a public trust servitude in any land above the ordinary high water mark of the bed of a navigable lake as that mark existed at statehood where the state had never owned the land above that mark? Il. Does a sudden, unprecedented and unpredictable change in state law, which terminates vested property rights and destroys the reasonable investment expectations of own- ers constitute a taking of private property without payment in violation of the Fifth and Fourteenth Amendments? a. Does a state court’s concept of what is in the “public interest” or the “best public policy” override constitutional protections when a state court transfers private property to the state by judicial decision? b. Are state courts, as well as the legislative and executive branches, constitutionally prohibited from “taking” property for the state without the payment of just compensation? III. Can a state court hold, consistent with due process guarantees, that: a. The public trust servitude can be imposed on shoreline owners’ previously unencumbered property under a prescriptive rights theory where the owners had no prior notice of such an adverse claim? b. The flooding of private lakefront land above the natural high water mark of a navigable lake by a federal dam creates, in the state, the public trust servitude in the land periodically flooded? iii PARTIES Petitioner is Tahoe Shorezone Representation, a non-profit corporation of Lake Tahoe shoreline owners, including both California and Nevada sides of Lake. Tahoe. Tahoe Shorezone Representation has no parent or subsidiary corporations or affiliates. ' ' Respondents are State of California, State Lands Commission of the State of California, and Does I through X, inclusive. Additional Real Parties in Interest below, also Petitioners here, are: Charles F. Fogerty, Stella Fogerty, Russell S. Grove; Harold E. Ebright, Jr., Katherine Ebright, George Hilton Edmundson, Janet Louise Edmundson, Lau- rence L. Lindsey, Jr., Rosemary F. Lindsey, Homer M. Hayward, Reid W. Dennis, and Tahoe Meadows, a California corporation. 1V TABLE OF CONTENTS Page IE SINS ocho once kc cee edn riccdacwiasinnns i Dc CcU Des Vecu eyes awe UV ekae a kane bund 6 Caen ee ee ill Me Ae PIs on occ bc secsdesagtdaneasansunaas Vill PUT CCTU TERT CC ECCUCL CE TELE TE LC ee l pg EE ey re peer eee eg rere l Constitutional and statutory provisions.................. 2 cick andes deka adn eacbadeneun'a 3 PRO TE IIE GD GUE wn nc ae ce cen encccss 11 aa, fr rere ree 11 B. Illinois Central Railroad Co. v. Illinois needs to te put in proper place in public trust law............ 13 C. State courts are prohibited, just as state legislatures, from transferring private property to public ownership without payment even though a court may conclude that its decision is in the “public interest” and pro- NE EE kbc wa de wiadee eed vesccbicass 18 D. The state court decisions in this proceeding have suddenly and unpredictably changed California prop- erty law and therefore constitutionally prohibited tak- ings and due process violations have occurred ..... 23 Re oo Se coe ear eae eee eee kerk 29 Vv TABLE OF AUTHORITIES CITED Cases Page Federal Appleby v. City of New York, 271 U.S. 364 (1926)...... 17 Bonelli Cattle Co. v. Arizona, 414 U.S. 313 (1973) ...... 12 Brinkerhoff-Faris Co. v. Hill, 281 U.S. 673 (1930) ....... 27 Broad River Power Co. v. South Carolina, 281 U.S. 537 CUE Auk Raina bake ee des ea eeu ee haben ones 12 Corp. of the Presiding Bishop v. Hodel, 637 F.Supp. 1398 Gs PENN a yt ine rh eee aae hanna eeaanees 19 Demorest v. City Bank Farmers Trust Co., 321 U.S. 36 CE ha win een vices Sere CK Rk en AD eee eae 12 Enterprise Irr. Dist. v. Farmers Mutual Canal Co., 243 U.S. See UCR a5 5 Sedna Ree ro ee eees 12 Fox River Paper Co. v. Railroad Comm. of Wisc., 274 U.S. ee Cr ek ss WEN eee ess eee 12 Hodel v. Irving, No. 85-631 (May 18, 1987) ............ 23 Hughes v. State of Washington, 389 U.S. 290 (1967) ...11, 26 Illinois Central Railroad Co. v. Chicago, 176 U.S. 646 COD 85s 5-09 aaddbendsasd sale ees eee 17 Illinois Central Railroad Co. v. Illinois, 146 U.S. 387 CRUE i and ane ganas eee ee ee 3, passim Kaiser Aetna v. United States, 444 U.S. 164 (1979) ....13,27 Leo Sheep Co. v. United States, 440 U.S. 668 (1979).... 22 Robinson v. Ariyoshi, 441 F.Supp. 559 (D. Hawaii 1977) 29 San Diego Gas & Elec. Co. v. San Diego, 450 U.S. 621 CORES wcbk See en ae eters eesera te eeeree ee ees 22 Sotomura v. County of Hawaii, 460 F.Supp. 473 (1978) .. 22 Summa Corp. v. Calif. ex rel. Lands Comm’n., 466 U.S. 198 EOE Fas oe ace cease see enon essa eee 6, 10, 13, 16, 25, 29 Texaco, Inc. v. Short, 454 U.S. 516 (1982) ............ 12, 23 Williamson Planning Commission v. Hamilton Bank, 473 te Be St. | ee rrrer per ere mn ee 29 vi TABLE OF AUTHORITIES CITED CASES Page State Anderson v. Trotter, 213 Cal. 414 (1931)............... 8 Brandenburger v. State, No. 21947, Superior Court, County Se MD GOES pc cccccsvsccecectccteenecavs 6 City of Berkeley v. Superior Court, 26 Cal.3d 515 (1980) CLE A EO PT Eee ee Te 4, 10, 12, 15, 21, 25 City of Long Beach v. Mansell, 3 Cal. 3d 462 (1970) .... 27 City of Los Angeles v. Aitken, 10 Cal.App.2d 460 (1935) 8 City of Los Angeles v. Venice Peninsula Properties, 31 RE SEE SOUR noc cbccescncssectasens 10, 16, 25, 28, 29 Crews v. Johnson, 202 Cal.App.2d 256 (1962) .......... 8 Fogerty v. State of California, 187 Cal.App.3d 224, 231 CED yh nccncecc Many of the hundreds of homes located on the shore of the California side of Lake Tahoe also have piers, boat houses and other water-related structures for the private use and enjoyment of the owners and their guests. Many of the lakefront homeowners have chosen to maintain the balance of the lake-facing portion of their lakefront property in a relatively unimproved state with landscaping and open beaches rather than structures. However, all the owners and residents of these lakeside properties have protected and enjoyed the privacy and security of their private ownership and have exercised their rights as owners to “exclude others” from all of their private property including the land involved in this proceeding. * Nine years after Marks v. Whitney, in City of Berkeley v. Superior Court, 26 Cal.3d 515, (1980), cert. denied 449 U.S. 840 (1980), but prior to Fogerty I and Lyon, the California Supreme Court ruled that the 5 The California Attorney General advised the State Lands Commission to make the claim for the first time in California history that: “1. In general, the State of California’s sovereign owner- ship of the lands underlying navigable lakes and non-tidal, navigable rivers extends landward to the ordinary high-water mark. “2. Irrespective of whether State’s title to such land extends landward to that line or merely to the ordinary low- water mark, the strip of lands between the two lines is subject to the common-law public trust for commerce, navi- gation and fisheries.” Petitioners immediately filed suit alleging violation of Fifth and Fourteenth Amendment rights if the claims were upheld. A temporary restraining order was issued preventing the state from recording these claims. The state based its claim to the “com- mon-law public trust” on //linois Central. The trial court granted a preliminary injunction against the state, which was upheld by the court of appeal in an unpublished opinion.” On subsequent motions for summary judgment the owners’ shoreline property rights were again confirmed: The trial court ruled: “|. That no portion of the subject property landward of the last natural low water mark of Lake Tahoe is, or ever was, sovereign property of the State of California; and “2. That no portion of the subject property landward of the last natural low water mark of Lake Tahoe is, or ever area between high and low tide was subject to the “tidelands trust” even though the property affected had been granted to private owners many years before, free of the “tidelands trust”, pursuant to an 1870 legislative act. The Court overruled earlier decisions to the contrary and cited Illinois Central in support of that reversal of well-established California property law. (As in Marks v. Whitney, supra, neither Lake Tahoe shoreline owners nor the owners of any other shoreline property fronting on lakes and rivers in California were parties to the litigation.) * See App. H, A-77, et seq. 6 was, subject to the common law public trust for commerce, navigation and fisheries.” On its second “appeal” from an unfavorable trial court ruling the state requested the California Supreme Court to exercise original jurisdiction (mandamus). The state’s attempt to by-pass the court of appeal was successful. The supreme court accepted the matter and thereafter rejected the estoppel, stare decisis and constitutional arguments of petitioners. Although the court de- nied the state’s request that it be awarded fee title up to an undefined high water mark, substantially the same result® was accomplished by the court imposing the public trust servitude on the shorezone of “all the navigable lakes and rivers in Califor- nia.”’ (Fogerty I, supra, at 247) (App. C at A-28.) ° As recently observed, referring to the “public trust easement” in California: “Although the landowner retains legal title to the property, he controls little more than naked fee... .” (Summa Corp. v. Calif. ex rel. Lands Comm'n., 466 U.S. 198, 205 (1984). ’ Again, there was no representation in the litigation of the affected owners of all the other shoreline which the court described as “4,000 linear miles along all navigable lakes and rivers in California” including “34 navigable lakes and 31 navigable rivers.” The California State Lands Commission (“Commission”) described these 34 lakes and 31 rivers as “navigable” in a 1972 list. However, the navigabliity of these other lakes and rivers was not an issue in the Fogerty or Lyon litigation in spite of the court’s sua sponte statement. Furthermore, the record does not furnish any basis of such an assump- tion. In fact, the question of navigability is the primary issue in litigation by shoreline owners at Donner Lake against the state. Donner Lake, near Lake Tahoe in the crest of the Sierra, is a lake some two and a half miles long and half mile wide which has no useful purpose as a “highway of commerce,” but is nonetheless included as one of the “navigable lakes” in the Commission list. A motion for summary judgment by the state, asserting that Donner Lake was navigable for title purposes as a matter of law, was denied by the trial court. That litigation is still pending, presumably awaiting the outcome of this litigation since the state is now asserting in the Donner Lake litigation that the Fogerty / “public trust” will likewise apply at Donner Lake, whether or not it is navigable, or ever was sovereign property of the state. (Brandenburger v. State, No. 21947, Superior Court, County of Nevada, Mar. 1977.) (In 7 There was no previous California law even suggesting the “tidelands trust” burdened the shorelines of California’s navigable lakes and rivers.* The court brushed aside the lack of precedent and the “failure of the state to previously assert its trust rights in the lands below high water” (Lyon, at 231; App. D, at A-61), citing //linois Central as the basis for this drastic reversal of California property law: *“...In our view, I/linois Central Railroad Company. v. Illinois (1892) 146 U.S. 387, which we described in City of Berkeley as the ‘seminal case on the scope of the public trust doctrine’ (26 Cal.3d at p. 521), settled the issue...” (Lyon at 227; App. D at A-55.)° All the historical evidence was in marked contrast to what the court ruled. In addition to the general community recognition of the complete ownership of the shorezone by the riparian owners National Audubon Society v. Superior Court, 33 Cal.3d 419 (1983), cert. denied, 464 U.S. 977 (1983), the court ruled, in yet another uprecedented decision, that the public trust now applies to non-naviga- ble waters. ) * As to other owners on the “4,000 miles” of shoreline the later decision in Lyon v. Western Title Ins. Co., 178 Cal. App.3d 1191, 1199 (1986), points out: “Those 4,000 miles must reasonably concern thousands, perhaps hundreds of thousands, of now devalued land titles acquired in reliance upon the rule of Civil Code Section 830.” See also dissent in Lyon at 238, App. D at A-71; 70 Cal.L.Rev. 1138, 1145. ” In 1983 the court again pointed to //linois Central as the basis for imposing the “tidelands trust” on inland lakes in California: “(T]he decision of the United States Supreme Court in //linois Central Railroad Co. v. Illinois, 146 U.S. 387, remains the primary authority even today, almost nine decades after it was decided.” The court also confirmed its ruling that the public trust servitude confers on the state “a power which extends to the revocation of previously granted rights or the enforcement of the trust against lands long thought to be free of the trust.” (National Audubon Society v. Superior Court, 33 Cal.3d 419, 440 (1983); cert. denied, 464 U.S. 977 (1983).) 8 the confirmation of the extent of these rights was the subject of legislative,'° executive,'' and judicial'” recognition in California. Following the California Supreme Court’s 1981 decisions in Fogerty I and Lyon, petitioners sought, and were denied, review by this Court. Subsequent trial and appellate court proceedings have shown that this litigation was not then ripe for review. The state, in its 1981 Opposition to the Petitions for Certiorari expressed no doubt as to their prematurity: “. . . issues respecting the location of high and low water lines remain to be tried on remand to the state trial court.” The state pointed out that any opinion by this Court in 1981 at that stage of the litigation would be merely “‘advisory”. (See p. 4 of state’s Brief in Opposition. ) A principal issue in the continued state court proceedings was whether the high and low water marks that the court said determined the location of the public trust servitude were those that existed at California’s statehood or those resulting from the '° See California Civil Code § 830, for example. '' The court acknowledged that state files “contain hundreds of letters stating or implying that the state’s ownership extends waterward of the ordinary low water mark... (Lyon at 225; App. D at A-51.) None of these letters suggest any state or public interest in the land above the “ordinary low water mark.” Between 1916 and 1964 no less than 5 “official” attorney general opinions interpreting Cal. Civ. Code § 830, as limiting the state’s interest to the low water mark, were issued. See 43 Ops. Cal. Atty. Gen. 291, 292, 295, 296 (1964); 30 Ops. Cal. Atty. Gen. 262, 269 (1957); 23 Ops. Cal. Atty. Gen. 306, 307, 309 (1954); 23 Ops. Cal. Atty. Gen. 97, 98 (1954); Ops. Cal. Atty. Gen. No. 3100 pp. 5-6 (1916). In the 1964 opinion, Justice Mosk, the author of the Lyon and Fogerty I decisions, as California Attorney General, advised: “[I]t is now settled law in California that private ownership extends to the low water mark of non- tidal navigable waters.” 43 Ops. Cal. Atty. Gen. 291, 295 (1964). '? See, for example, Foss v. Johnstone, 158 Cal. 119, 127 (1910); Anderson v. Trotter, 213 Cal. 414, 420 (1931); City of Los Angeles v. Aitken, 10 Cal.App.2d 460 (1935); Crews v. Johnson, 202 Cal.App.2d 256 (1962). 9 much later artificial impoundment of water at Lake Tahoe by the U.S. Bureau of Reclamation dam. The trial court granted the state’s motion for summary judg- ment, ruling the public trust servitude extended up the shoreline to the higliest level the water could legally be raised by the federal dam. Petitioner appealed, alleging, among other arguments, that Fifth and Fourteenth Amendment rights had been violated by the uncompensated taking of vested property interests resulting from the court’s decision. The court of appeal had to create a novel, unpredictable and unprecedented theory to uphold the trial court.'’ It designated its new legal theory “prescription.” The decision in Fogerty I was pointed to as being responsible for this perverse and startling result: “The extent of the public trust must be established in accordance with the theory of prescriptive rights... [W]e read Fogerty as establishing that the People have acquired their public trust rights in the shorezone by prescription.” /d. at 237, App. A at A-12. The court of appeal discussed the well-established California doctrine of prescription (see, e.g., Fogerty II, at 238; App. A at A- 13.), but since all of the essential elements of that doctrine were missing under the facts at Lake Tahoe, the court was unable to cite any California precedent to support its strange and unusual ruling except for the brief reference to Fogerty I quoted above. The court’s novel “prescriptive” theory did not fit within any existing California law for several reasons. Not only had there been no notice of any adverse claim by the state to the rights the court was transferring to the state, but conversely, the state, at all times prior to the filing of this action by petitioners in 1977, as discussed above, actually disclaimed any interest in the shoreline '’ The court of appeal rejected another novel state theory that the “agreed boundary” doctrine somehow gave the state title. (Fogerty II, supra, at 235-237; App. A at A-10-12.) 10 involved. Furthermore, the court of appeal, in Fogerty II, ignores the fact that the periodic raising and lowering of the water level of Lake Tahoe resulted from the federal dam owned and controlled by the Bureau of Reclamation and not the State of California. Consequently, the only adverse user, if in fact there was any, was the federal government, which by periodic flooding of the shore- line had acquired only a flowage easement. (See 30 Ops. Cal. Atty. Gen. at 268.) (Also somewhat perplexing is the court’s choice of 1966 to 1971 as the prescriptive period for fixing the location of the public trust servitude.) '* Petitioner TSR filed a petition for review with the supreme court on January 5, 1987, which was denied on March 4, 1987. During this time, because California voters had earlier failed to confirm three of the sitting justices, the court was comprised of only four of the full complement of seven justices, one of whom had written the Fogerty I, Lyon, City of Berkeley'’ and Venice Properties'® decisions and another had authored National Audu- bon.'’ (Four votes are required for hearing.) The impact of this last court of appeal decision in Fogerty IJ on the interests of shoreline owners is well defined and drastic. With this final state court decision in this litigation, no longer is there any question as to the location and extent of the interests in the property transferred from the owners of the private shoreline frontage of Lake Tahoe to the state by the combined efforts of California’s executive and judicial branches. The “taking” is now '* Perhaps it was no coincidence that the five-year period chosen was immediately prior to the enactment of Code Civ. Proc. § 1007. (See Fogerty II, f.n. 10 at 240, App. A at A-15.) 'S City of Berkeley v. Superior Court, 26 Cal.3d 515 (1980), cert. denied, 449 U.S. 840 (1980). '° City of Los Angeles v. Venice Peninsula Properties, 31 Cal.3d 288 (1982), cert. granted, sub nom. Summa Corp. v. Calif. ex rel. Lands Comm'n., 466 U.S. 198 (1984). '’ National Audubon Society v. Superior Court, 33 Cal.3d 419 (1983), cert. denied, 464 U.S. 977 (1983). 11 complete. There are no further state remedies available to the shoreline owners. REASONS FOR GRANTING THE WRIT A. Preliminary Statement A Wnit of Certiorari should be issued to secure uniformity of conflicting decisions on federal constitutional law; to settle impor- tant questions of federal constitutional law on the power of state courts to suddenly, unpredictably and without precedent change state property law so as to divest owners of valuable property rights within their reasonable investment expectations; to settle the question of whether [/linois Central Railroad Co. v. Illinois, 146 U.S. 387 (1892) (“Jllinois Central’), is a rule of federal common law limiting state power to convey sovereign lands underlying inland navigable waters and authorizing a state to impose the public trust at any time, and in any expanded form, regardless of existing, long-settled state law; and to settle whether state courts are free of the restraints of the Fourteenth and Fifth Amendment prohibitions against uncompensated takings and vio- lations of due process. More specifically: 1. Earlier in this litigation the California Supreme Court (Fogerty I) held the public trust applied to the bed of Lake Tahoe (and all other “navigable” lakes and rivers in Califor- nia) up to an undefined portion of the privately-owned shoreline. Previously, these private shoreline property inter- ests had always been considered to consist of an unencum- bered fee down to the ordinary low water mark. The decision in Fogerty I was a startling, sudden, retroactive and unpre- dictable reversal in California property law in terms of relevant precedents and, therefore, when finalized, would be a taking of private property, without payment, in violation of the Fourteenth and Fifth Amendments, and in conflict with the views in the concurring opinion in Hughes v. State of Washington, 389 U.S. 290 (1967), which were approved in Bonelli Cattle Co. v. Arizona, 414 U.S. 313 (1973) (over- ruled on other grounds). 12 2. Later in this same proceeding (Fogerty //), the court of appeal announced a radical, unpredictable and unprece- dented extension of the doctrine of prescription which retro- actively, and without any previous notice to owners of any adverse claim, finalized the destruction of vested property rights of Lake Tahoe shoreline owners. Both Fogerty J and Fogerty II violate Fourteenth Amendment due process rights of private property owners and are in conflict with Demorest v. City Bank Farmers Trust Co., 321 U.S. 36, 43 (1944), in that they do not rest upon a “fair or substantial basis’’; are in conflict with Broad River Power Co. v. South Carolina, 281 U.S. 537 (1930), in that they so far depart from established principles as to be without substantial basis; are in conflict with Fox River Paper Co. v. Railroad Comm. of Wisc., 274 U.S. 651, 656 (1927), in that they represent a “novel view,” inconsistent with earlier state court decisions; and are in conflict with Enterprise Irr. Dist. v. Farmers Mutual Canal Co., 243 U.S. 157, 164 (1917), in that they are “so clearly unfounded that it may properly be regarded as essentially arbitrary” and totally inconsistent with due process notice requirements as described in Texaco, Inc. v. Short, 454 U.S. 516 (1982), Brennan, J., dissenting. 3. The California Supreme Court in Fogerty J, and the California Court of Appeal in Fogerty // in applying Fogerty I, have erroneously interpreted I//linois Central as supporting a retroactive change in well established state law which allows state court transfer of private property into public ownership without payment of just compensation. Illinois Central is also relied on as allowing state courts to expand and/or change the origin, scope and location of the public trust on the shorelines of California inland waterways without regard to either existing state law or federal Consti- tutional protections. //linois Central is also relied on by the court as having “establish[ed] the principle” that a state “does not have the power” to convey shorelands free of the public trust. (City of Berkeley v. Superior Court, 26 Cal.3d 515, 521, cert. denied, 449 U.S. 840 (1980).) (Also see Lyon, supra at 227; App. D at A-55.) 13 4. If allowed to stand, Fogerty I and Fogerty Il will support the proposition that a state court, unlike its executive and legislative branches, may not be guilty of a “take” in a constitutionally prohibited sense but rather simply “de- clares” the law even if the effect is a retroactive taking of vested property rights, especially if the state court concludes that “public interest” requires it to implement its concept of public policy to protect lands bordering on waterways in the “public interest” and from what it perceives to be environ- mental harm. 5. The decisions in Fogerty J and Fogerty II are contrary to the decision in Summa Corp. v. Calif. ex rel. Lands - Comm'n., 466 U.S. 198 (1984) (“Summa”), in that the state courts held the public trust in the shorelands involved at Lake Tahoe was created by prescription after statehood and thus would apply to lands that were not part of the bed of Lake Tahoe at the time of statehood. Therefore, the deci- sions could be argued to apply to the artificially created tidelands in the Summa matter and therefore conflict with Summa. The state decisions here are also contrary to Kaiser Aetna v. United States, 444 U.S. 164 (1979) (“Kaiser Aetna’), in denying to owners their reasonable expectations by imposing the public trust, without payment, to lands which had been previously represented to shoreline owners by all branches of state government to be unencumbered. B. Illinois Central Railroad Co. v. Illinois Needs To Be Put in Its Proper Place in Public Trust Law The state cannot reasonably argue that the decisions here, Fogerty I and Fogerty II, do not represent sudden, unpredictable and unprecedented changes in California property law. Neither can it be reasonably argued that the property rights lost by shoreline owners, are not valuable and essential parts of the bundle of rights of a variety protected by the Fourteenth and Fifth Amendments. A ruling by this Court is urgently needed before further damage is done to the rights of property owners on lakes and rivers not only in California but throughout the nation under the guise of enforcing a federal common law rule said to derive from the decision in //linois Central which has the effect of 14 making state courts immune from the Fourteenth and Fifth Amendments, and which allows the transfer of private property to public ownership in the name of //linois Central. Illinois Central needs the caretul, correct and authoritative analysis that only this Court can give in order that state courts may not use that decision in the future when seeking justification for transferring private property to public ownership without payment. California shoreline owners at Lake Tahoe and the owners of shoreline on what the California Supreme Court described as the other “navigable”'® lakes and rivers in California, have been victimized by a series of judicial decisions and are desperately in need of help from this Court.'? That help can be the affirmation of the constitutional limitations on state courts and, perhaps more importantly, by setting forth the reasonable and correct relation- ship of the //linois Central decision to state court rulings on the public trust in the interest of restoring fairness and justice to this branch of law.” '® See Fogerty I, at 245, App. C at A-24. '° Indeed, it appears there are more California court changes in the public trust law to come. Following the decision in National Audubon Society v. Superior Court, 33 Cal.3d 419 (1983); cert. denied, 464 U.S. 977 (1983), owners of shoreline properties on non-navigable streams and lakes maywell aiso be subject to the confiscation of their rights by California courts under the theory that the “public trust” follows the waters into the non-navigable tributaries of the navigable lakes and rivers. As shown in f.n. 19 at 437, the California court suggested as much: “In view of the conclusion stated in the text, we need not consider the question whether the public trust extends for some purposes—such as protection of fishing, environmental values, and recreation inter- ests—to nmonnavigable streams.” (Emphasis ours.) *° Nevada shoreline owners on Lake Tahoe may soon need the same help unless these California decisions are reversed now since the Nevada Attorney General in Opinion No. 204, issued April 20, 1976, ruled: “The State of Nevada owns the bed and shores of Lake Tahoe and other navigable waters within Nevada to the present ordinary and permanent high-water mark [according to Fogerty /]—eleva- tion 6228.75 feet]. The State of Nevada has not divested itself of any interest in the subject lands by state law or usage. Rather, it 15 The distortion and misuse of the //linois Central decision in California began in 1971 with a California Supreme Court deci- sion involving coastal tidelands. The decision in Marks v. Whitney, as discussed at 3, supra, greatly expanded the scope of the tidelands trust from the traditional navigation, commerce and fisheries to include “general recreational purposes” and other uses including “the preservation of those lands in their natural state.” Thereafter, in 1980, in City of Berkeley, as discussed at 4-5, supra, the supreme court held that tidelands were subject to the tidelands trust even where grants by the state to private parties were unrestricted. The court went so far as to hold it was virtually powerless in dealing with these lands, stating that: “The decision [/llinois Central] established the principle that a state. . . does not have the power to abdicate its role as trustee in favor of private parties.” (Emphasis ours.) The court referred to /Ilinois Central, as the “seminal case on the scope of the public trust.” (/d. at 521.) In Fogerty I (and Lyon), as discussed earlier, in placing the public trust servitude on shoreline property at Lake Tahoe for the first time in California history, the court again relied upon //linois Central as supporting this drastic change in California’s property law. In City of Los Angeles v. Venice Peninsula Properties, 31 Cal.3d 288 (1982), (“l’enice Properties”), (cert. granted sub nom., Summa Corp. v. California ex rel. Lands Comm'n, 466 holds them in trust for full public enjoyment of navigation, fishery and related purposes.” Later, in response to this ruling and to such a claim by the State of Nevada in litigation, /ncline Village Gen. Improvement Dist. v. State of Nev., Case No. 78-3191, 2d Judicial Dist., County of Washoe, the Nevada Legislature passed and the Governor signed into law a bill Stating that Nevada owned the bed of Lake Tahoe only up to the low water mark of elevation 6223 feet. If Fogerty I and Fogerty II are allowed to stand that same rationale would appear applicable to Nevada shoreline owners, i.e., that the Nevada Legislature’s attempt to cure the Nevada Attorney General-created problem of ownership above the low water mark did not eliminate the public trust claim to the same shoreline property in Nevada, either. (Nev. Rev. Stat. § 321.595) 16 U.S. 198 (1984), the California court again used //linois Centrai to support its conclusion that land grants by the Mexican govern- ment prior to California statehood and confirmed by the treaty of Guadalupe Hidalgo were nonetheless subject to the “public trust” even though the first time the claim was made was shortly prior to that recent litigation. Although this Court overruled the Califor- nia Supreme Court and protected the private titles against the public trust claim, it does not appear that Summa settled the question of whether the state must have owned the property for the state to burden it with the public trust. The California court overruled earlier contrary precedent in‘its decision.” This state of affairs leaves what had previously been thought to be the public trust origin, i.e., the Equal Footing doctrine, somewhat confused in California, especially when compared to the recent ruling of this Court in Summa. In National Audubon Society v. Superior Court, 33 Cal.3d 419, 438 (1983) (“National Audubon”) cert. denied, 464 U.S. 977 (1983), the California court again used //linois Central to support a decision which seems to be leading to another state taking of long-vested water rights from the City of Los Angeles without payment, in the name of //linois Central. Petitioner submits that //linois Central, while it does describe the public trust which arises out of statehood, under the Equal Footing doctrine, does not justify expanding the traditional con- cepts of “navigation, commerce and fisheries”; does not apply above the point of practical navigability of a navigable lake; does not apply to land that was not acquired by the state at statehood under the Equal Footing doctrine; and that it is not a federal common law rule binding on the states. Seemingly, this Court long ago recognized that //linois Central was an interpretation of state, not federal, law. See Appleby v. City of New York, 271 U.S. 364 (1926) and I/linois Central *! The Supreme Court's reference to its earlier decision on the point as “dictum” would not seem to detract from the point that it was again proclaiming a drastic change in California law. (See infra at 28.) 17 Railroad Co. v. Chicago, 176 U.S. 646 (1900).” As indicated in App. H at A-96, Illinois is a low water state, i.e., the upland owner owns the land down to the ordinary low water mark. California is also a low water mark state historically as was recognized by the California Supreme Court in Lyon. Conse- quently, there appears to be no rational basis for construing Illinois Central as justifying imposing the public trust above the low water. As Justice Clark observed in dissent in Lyon: “In concluding that the trust doctrine must extend to the shorezone the majority rely mainly upon IJ/linois Central Railroad v. Illinois (1892) 146 U.S. 387 [36 L.Ed. 1018, 13 S.Ct. 110] where the Supreme Court held that a grant of submerged lands in Lake Michigan was subject to the trust. (/d. at p. 452, et seq. [36 L.Ed. at p. 1041, et seq.].) The court expressly recognized that it did not impose a trust on the shorezone. It stated: ‘If it be ascertained... and deter- mined that such piers and docks do not extend beyond the point of practical navigability, the claim of the railroad company to their title and possession will be confirmed; but if they or either of them are found on such inquiry to extend beyond the point of such navigability, then the State will be entitled to a decree that they, or the one thus extended, be abated and removed to the extent shown...” (/d. at p. 450 [36 L.Ed. at p. 1041].) The court’s order was to the same effect. (/d. at p. 464 [36 L.Ed. at pp. 1046-1047].)” Lyon, at 238, App. D at A-72. (Emphasis in original.) Petitioner submits that Justice Clark correctly limited //linois Central in this statement: “Far from serving as authority to extend the trust to freshwater shorezones, //linois Central Railway re- flects it is on/y navigable submerged lands that are subject to the trust.” /d., at 239, App. D at A-73. (Emphasis in original.) 2 As pointed out in Lyon v. Western Title Ins. Co., supra at 1201, the state courts of Illinois “clung to the rule that: ‘The riparian owner [has] the right to the exclusive use [our italics] of the banks [of an inland waterway] to the low water mark.’ (Ensminger v. The People ex rel. Trover (1868), 47 Ill. 384, 391; City of Peoria v. Central Nat. Bank (1906) 224 lil. 43 [79 N.E. 296, 297].)” 18 Unquestionably, the application of J/ilinois Central by the California courts is being watched nationwide. Before further damage is done to the rights of shoreline owners directly affected, and to those yet unaware of these unfounded and unprecedented decisions, this Court should clearly state what Jilinois Central stands for and thus reinstate the protection of the Fourteenth and Fifth Amendments to shoreline owners on all lakes and rivers. C. State Courts Are Prohibited, Just as State Legislatures, from Transferring Private Property to Public Ownership Without Payment Even Though a Court May Conclude That Its Decision Is in the “Public Interest” and Promotes “Public Policy” In California the public trust and the Fourteenth Amendment have collided. Notwithstanding the state courts’ attempts to justify the resulting takings as necessary to preserve and protect areas bordering on waterways in California the impact on the shoreline owners is confiscation of their property without just compensation. Seemingly, a nation-wide frustration among certain groups, not content with the government’s power of eminent domain, nor with extensive land use regulations, has resulted in the promotion and encouragement of the use of the //linois Central decision in a distorted and perverse fashion which, in California, at least, has placed property rights held to be subject to the public trust doctrine beyond the protection of the Constitution. Some writers (state attorneys and judges, as well) have appar- ently concluded that the //linois Central public trust doctrine, and any refinements, additions or novel applications a state court wishes to make of it, is available to overturn long-settled state law and to take property rights for public use contrary to all reasona- ble expectations of the owners and without regard to the emo- tional or financial impact on shoreline owners. They argue that whatever interpretation or expansion of the Illinois Central decision a state court wishes to make has always been the law, lurking in obscure judicial shadows, waiting to be 19 dusted off and used to transfer property from its nghtful owner to the state free of charge.” In perhaps the bluntest statement as to the value to public agencies in using the courts and //linois Central to transfer private property to public ownership without payment is found in a study™* commissioned by the President’s Council on Environmen- tal Quality in the chapter, “Sidestepping the Taking Issue”, where the authors suggest: “Professor Joseph Sax has discussed at length this concept of property ‘as an interdependent network of competing uses’ in articulating an expanded theory of the public trust inherent in property. [Sax, “Takings, Private Property and Public Rights,’ 81 Yale L.J. 149, 140 [sic] (1971).] Obviously, the possibility of claiming such paramount title interest is useful only in regard to particular types of property [obviously shoreline property], but where available may be the easiest method of avoiding the taking issue’”.”> (Emphasis ours.) *’ Apparently there is also a widely-held view that courts do not “take” in a constitutional sense but rather simply “declare” the law. See, for example, Chang, “Unraveling Robinson v. Ariyoshi: Can Courts ‘Take’ Property?”’, 2 Hawaii L.Rev. 57, 68 (1979). A hint of this view is found in the recent case of Corp. of the Presiding Bishop v. Hodel, 637 F.Supp. 1398 (D.D.C. 1986), where that court seemingly expresses doubt as to whether this Court has ruled that a court “takes” in the constitutional sense by drastically changing existing property law: “Thus, the Supreme Court Aas intimated, without ever squarely holding, that a court may effect an unconstitutional taking by force of judgment when it arbitrarily reverses precedent and awards property to the state.” (Corp. of the Presiding Bishop, at 1406.) (Emphasis ours.) * Executive Office of the President’s Council on Environmental Quality, “The Taking Issue.’ Washington, D.C., July 9, 1973, Chapter 16 at 313. *S In Sax, The Public Trust Doctrine In Natural Resource Law: Effective Judicial Intervention, 68 Mich. L.Rev. 471, 474 (1970), Professor Sax suggested the way to evade payment for the takings of shoreline properties in the following language: “Of all the concepts known to American law, only the public trust doctrine seems to have the 20 The California Attorney General, the California State Lands Commission and the California courts answered the challenge and by their concerted efforts imposed the public trust on Califor- nia land previously pnvately and exclusively owned. What was the “policy” justificagon for this taking? The California Supreme Court proclaimed “ “The exercise of the police power has proved insufficent to protect the shorezone. The urgent need to prevent deteriora- tion and disappearance of this fragile resource provides ample justification for our conclusion that the People may not be estopped from asserting the rights of the public in those lands.””° That the California Supreme Court is imposing its perception of what is best for the public interest, without regard to existing law, and is accomplishing that goal by a perverse application of its erroneous concept of the //linois Central public trust doctrine, is also illustrated by the recent decision of the court in National Audubon, supra at 16. As the court put it, as its apparent justification for its judicial “intervention”: “{ T]he [Mono] lake’s recession obviously diminishes its value as an economic, recreational, and scenic resource. Of course, there will be less lake to use and enjoy. The declining shrimp hatch depresses a local shrimping industry. The rings breadth and substantive content which might make it useful as a tool of general application for citizens seeking to develop a comprehensive legal approach to resource management problems.” Sax describes //linois Central as “the lodestar of American public trust law.” (/d. at 489.) © In Fogerty I the court extended its “policy” decision to lands of other owners, outside of Lake Ta:..c, who were not even parties to this litigation: “Whether or not the shorezone of Lake Tahoe would be better preserved if privately owned than if the public has an interest therein is not determinative, since we are not concerned here with recreation only, nor with Lake Tahoe alone, but with a principle which will apply to 4,000 linear miles along all the navigable lakes and rivers in California, in many of which the conditions may well differ in some respect from those at lake Tahoe.” (Fogerty I, supra, at 247; App. C at A-28.) 21 of dry lake bed are difficult to traverse on foot, and thus impair human access to the lake, and reduce the lake’s substantial scenic value. Mono Lake has long been treasured as a umique scenic, recreational and scientific resource, [ citations omitted] but continued diversions threaten to turn it into a desert wasteland like the dry bed of Owens Lake.” (Id. at 431.) The court, thereafter, had no difficulty in converting what it considered to be an appropriate public policy at Mono Lake into new state law and, after discussing J/linois Central, set forth its thoughts both on its power and the absence, under its theory, of any Constitutional protection to property owners where the public trust is involved: “[ W]e rejected the claim that establishment of the public trust constituted a taking of property for which compensation was required ... In summary, the foregoing cases [including Illinois Central] amply demonstrate the continuing power of the state as administrator of the public trust, a power which extends to the revocation of previously granted rights or to the enforcement of the trust against lands long thought free of the trust. (See City of Berkeley v. Superior Court, supra, 26 Cal.3d 515.)” (National Audubon, supra, at 440.)*’” The court again ties its ruling to the //linois Central decision, stating that it “remains the primary authority even today, almost nine decades after it was decided.” (National Audubon, supra at 437.) The reasoning of the California courts that the //linois Central public trust doctrine overrides the Constitution and that it may be used to promote public policy goals originating with the court is contrary to the decisions of this Court. In a case remarkably similar to ours, this Court’s constitutional limits on a state taking property in the name of public policy are reviewed. In Sotomura 7 A “power” that apparently runs only one way—the imposition of further and expanded burdens on more and more private shoreline, since the same court asserted in City of Berkeley that it “did not have the power’ to relieve a private owner of the burden. (See supru at 15.) 22 v. County of Hawaii, 460 F.Supp. 473 (1978), the Hawaii Supreme Court’s decision transferring private ownership of coastal beaches to the state without payment was under attack in the federal court. That court correctly stated: . “The decision in Sotomura was contrary to established practice, history and precedent and, apparently, was intended to implement the court’s conclusion that public policy favors extension of public use and ownership of the shoreline. A desire to promote public policy, however, does not constitute the justification for a state taking private property without compensation. The Fourteenth Amendment to the Constitu- tion forbids it. Chicago, Burlington and Quincy Railroad v. Chicago, 166 U.S. 226 (1897).” (/d. at 481.) (Emphasis ours. ) Justice Brennan reaffirmed this aspect of constitutional law in a recent regulatory taking case: “But the applicability of express constitutional guarantees is not a matter to be determined on the basis of policy judg- ments made by the legislative, executive, or judicial branches. Nor can the vindication of those rights depend on the expense of doing so.” (San Diego Gas & Elec. Co. v. San Diego (Brennan, J., dissenting), 450 U.S. 621, 661 (1981).* The views and decisions of the California courts on the impact of the public trust on constitutional guarantees and on its extent and application are totally repugnant to the admonitions and decisions of this Court. Constitutional protections are being ignored while the state, through its courts, transfers basic rights Sin Leo Sheep Co. v. United States, 440 U.S. 668 (1979), in rejecting the Government’s contention of an implied easement of neces- sity to federal land over private-land granted to the railroads in connection with the transcontinental railroad construction, the majority observed that the “easement is not actually a matter of necessity in this case because the Government has the power of eminent domain.” (/d. 679-680.) In other words, as applied to the California situation, if public policy requires state ownership of all the interests (except the “naked fee”) in the shoreline of all California lakes and rivers let the state pay as required by constitutional law! 23 from shoreline owners to itself without payment. This shameful misuse of the power of courts must be stopped and the unconsti- tutional actions reversed. It is not too late to bring back the Fourteenth and Fifth Amendment protection to California shore- line property owners. However, without this Court’s help the cause may be irretrievably lost in California, and thus provide even greater impetus nationwide for this grossly unjust method of transferring valuable, vested and essential property interests from private owners to the public without payment. D. The State Court Decisions in This Proceeding Have Sud- denly and Unpredictably Changed California Property Law and Therefore Constitutionally Prohibited Takings and Due Process Violations Have Occurred The earlier California Supreme Court decision leading up to the final judgment in this proceeding, Fogerty I, radically changed California law by imposing the public trust in an undefined location on the private shoreline property at Lake Tahoe. The more recent California court decision in this proceeding, Fogerty II, radically, unpredictably and without state law precedent changed the California law of prescription resulting in the taking of valuable vested property interests in specific and well defined shoreline land. Fogerty II completed the taking of private property commenced in Fogerty J. Furthermore, the extinguishment of private property rights which resulted from awarding the property to the state based upon the limited adverse use by the federal government did not give the constitutionally required notice to the owner of the belated state claim and is therefore a violation of due process. (See, e.g., Texaco, Inc. v. Short, 454 U.S. 516 (1982), Hodel v. Irving, No. 85-631 (May 18, 1987). Until the decision in Fogerty I there was not even a hint in California custom, practice, history, statutes or judicial precedent that the property of shoreline owners on Lake Tahoe, or any other navigable lakes and rivers in California, would be held to be subject to a public trust servitude, let alone property above the low water mark as it existed on Lake Tahoe at California’s admission to the Union—not to mention the novel and remark- able court-created theory that places it even above the high water mark! 24 Further proof that Fogerty J is a radical change in California law is found in the dissent of Justice Clark where he refers to the previous law: “[T]he public trust declared today by the majority applies only to tide and submerged lands and does not apply to the shorezone.” 29 Cal.3d at 249. He points out the ruling that estoppel did not apply to the Lake Tahoe shorezone was also contrary to the court’s earlier decision in a similar case which involved the tidelands at a time when only the tidelands were subject to the public trust. Justice Clark protests: “I must also dissent from the majority’s conclusion that the People may not be estopped from asserting the trust. The holding of the sole author- ity relied on by the majority, City of Long Beach v. Mansell, 3 Cal. 3d 462 [91 Cal.Rptr. 23, 476 P.2d 423] (1970), is directly contrary to today’s decision.” (Fogerty I, at 250; App. C at A-32.) (Emphasis ours.) More evidence that Fogerty I is a drastic, radical and retroac- tive change in California law is the decision of another California court of appeal occurring well after Fogerty J and Lyon. Mr. Lyon, the original victim of the state at Clear Lake, filed suit against his title company in an attempt to recover for the loss suffered when the California Supreme Court transferred his private property into public ownership. The California Court of Appeal, First Appellate District, in Lyon v. Western Title Ins. Co., 178 Cal.App.3d 1191 (1986), reluctantly ruled that his title policy excluded the cover- age sought.”” However, the court was not content to let the matter rest there and severely criticized the Fogerty I and Lyon decisions as drastic, retroactive confiscation of vested property rights. (Re- printed in full in App. I at A-100.) *? The court, in Lyon v. Western Title Ins. Co., expresses its frustra- tion at being required to be a party to the result forced upon it by the California Supreme Court decisions in Lyon and Fogerty I: “Nevertheless, we are told by Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 [20 Cal.Rptr. 321, 369 P.2d 937], that ‘all tribunals exercising inferior jurisdiction are required to follow decisions of courts exercising superior jurisdiction.’ Obedient to that rule, and regardless of the views we have expressed, we must, and do, declare the holding of Lyon to be the law of the state.”” (/d. at 1203.) 25 An illustration of this California court’s strong views on the unjudicious nature of the California Supreme Court’s decision on the public trust: “On the instant appeal Lyon insistently contends that Lyon's innovative public trust doctrine which did not exist when he acquired Anderson Marsh, is bad law, unsupported by au- thority, violative of the separation of powers doctrine expli- cated by the state and federal Constitutions, and has taken his property for public use contrary to the state’s Constitu- tion, article I, section 19 [just compensation for taking]. “Respectfully, we find ourselves in agreement.” (Lyon v. Western Title, supra, at 1200, App. I at A-109.)*° California Supreme Court Justice Richardson, who dissented in Lyon, Fogerty I and in City of Berkeley, also indicated his displeasure with the court’s treatment of property owners under the public trust doctrine in his dissent in City of Los Angeles v. Venice Peninsula Properties, 31 Cal.3d 288 (1982), cert. granted sub nom., Summa Corp. v. Calif. ex rel. Lands Comm'n., 466 U.S. 198 (1984). Justice Richardson wrote about this unprece- dented change in law and the drastic inroads into the rights of California shoreline owners as follows: “There is no precedent for such an extension of public ownership. The Legislature has never reached so far, nor have we. In City of Berkeley v. Superior Court (1980) 26 Cal.3d 515 [162 Cal.Rptr. 327, 606 P.2d 362], a bare majority of this court first expounded the notion that tide- lands in navigable waters which had been conveyed by the state to private parties nonetheless were encumbered by a reserved public trust for commerce, navigation, fishing and © The court added: “We are not alone in our criticism of Lyon: see Note, Lyon and Fogerty, Unprecedented Extensions of the Public Trust (1982), 70 Cal. L.Rev. 1138; The Public Trust After Lyon and Fogerty, Private Interests and Public Expectations—A New Balance (1983), 16 U.C. Davis L.Rev. 631; Note, Property Boundaries—Civil Code § 830 Grants Nontidal Shorezone to Private Landowners, Subject to Tide- lands Trust (1982), 22 Santa Clara L.Rev. 559.” (/d. at p. 1203.) 26 other uses. (/d. at pp. 523, 528.) In the following year in State of California v. Superior Court (Lyon) (1981) 29 Cal.3d 210 [172 Cal.Rptr. 696, 625 P.2d 239], the same majority extended this new doctrine to lands between high and low water in nontidal navigable lakes which had been granted by the state into private ownership.” (/d. at 307.) That a state court cannot transfer private property into public ownership without payment is made clear by Justice Stewart's concurrence in Hughes v. Washington, supra, under circum- stances parallel to the instant matter: “(T]o the extent that the decision of the Supreme Court of Washington on that issue arguably conforms to reasonable expectations, we must of course accept it as conclusive. But to the extent it constitutes a sudden change in state law, unpredictable in terms of relevant precedents, no such defer- ence would be appropriate. For a State cannot be permitted to defeat the constitutional prohibition against taking prop- erty without due process of law by the simple device of asserting retroactively that the property it has taken never existed at all. Whether the decision here worked an unpre- dictable change in state law thus inevitably presents a federal question for the determination of this court.” (/d. at 296- 297.) And in language which also accurately describes the Lake Tahoe shoreline owners’ similar situation: “There can be little doubt about the impact of that change [the declaration that accretions belong to the state] upon Mrs. Hughes: The beach she had every reason to regard as hers was declared by the state court to be in the public domain... Although the State in this case made no attempt to take the accreted lands by eminent domain, it achieved the same result by effecting a retroactive transformation of private into public prop- erty—without paying for the privilege of doing so. Because the Due Process Clause of the Fourteenth Amendment forbids such confiscation by a State, no less through its courts than through its legislature, and no less when a taking is unintended than when it is deliberate, I join in reversing the judgment.” (/d. at 297-298.) 27 (See also Brinkerhoff-Faris Co. v. Hill, 281 U.S. 673, 680 (1930).) In Kaiser Aetna v. United States, 444 U.S. 164 (1979), Justice Rehnquist agreed that the “reasonable expectations” referred to by Justice Stewart in Hughes were a critical element in determin- ing the extent of previously vested rights of the owner. Especially was this so when the right to be taken by the government was the “right to exclude” others. While stating that “individual officials representing the United States cannot ‘estop’ the United States,” it was observed that such an historical background of government consent “can lead to the fruition of a number of expectancies embodied in the concept of ‘property,’—expectancies that, if sufficiently important, the Government must condemn and pay for before it takes over the managment of the landowner’s property. In this case, we hold that the ‘right to exclude’, so universally held to be a fundamental element cf the property right, falls within this category of interests that the Government cannot take without compensation.” (/d. at 179-180.)>" Moreover, to some degree in Fogerty J and unquestionably in Fogerty II the property held to be subject to the public trust was property that had never been in state ownership before the court decisions. Since the genesis of the public trust is the Equal Footing doctrine, property never before owned by the state simply could not become subject to the servitude. However, contrary to this principle, in City of Los Angeles v. Venice Peninsula Proper- ties, 31 Cal.3d 288 (1982), the California court ruled that lands in southern California, acquired by Mexican grants, which were never state owned, were nevertheless subject to the public trust. Justice Richardson, in dissent, pointed out at p. 307: *' Compare the fundamental conflict between this Court’s “reasonable expectations” approach in Kaiser Aetna to the California Supreme Court’s rejection of petitioner’s estoppel argument in Fogerty / which, too, was based on “an historical background of government consent.” (Fogerty I, supra at 244-247, App. C at A-23-28.) Additionally, as Justice Clark pointed out, the California Supreme Court’s earlier ruling on estoppel in City of Long Beach v. Mansell, 3 Cal.3d 462 (1970) was “directly contrary to today’s [ Fogerty /] decision.” (See Fogerty I, supra at 250, App. C at A-32.) 28 “By imposing a public trust easement upon properties which are neither tidal, navigable, nor formerly under public dominion, the majority has removed all heretofore recog- nized reasonable limitations on the scope of the public trust doctrine.” The majority in Venice Properties had overruled what it called “dictum” in San Diego County Archaeological Society, Inc. v. Compadres, 81 Cal.App.3d 923, 927 (1978) to the effect that “the public trust doctrine applies only to property to which the state has at one time held title.” Justice Richardson goes on to explain how the court has distorted the previous law in regard to its conclusion that the state need not have owned the property in order for the public trust to burden the land: “It should be carefully noted that the rationale of the public trust doctrine is that the public lands conveyed into private ownership remain subject to public use for certain limited purposes unless the intention to extinguish that public right is clearly expressed in the grant. The doctrine operates when the ownership of land and waters vested in California upon its admission to the Union (Borax, Lid. v. Los Angeles (1935) 296 U.S. 10, 15 [80 L.Ed. 9, 14, 56 S.Ct. 23]) is thereafter conveyed into private hands, the doctrine reserving in the public grantor a public trust. In short, the principle limits subsequently created private prop- erty rights. (People v. California Fish Co. (1913) 166 Cal. 576, 583-585 [138 P. 79].) “It seems to be obvious that this reasoning has no applica- tion to lands like those before us which never were owned publicly. Indeed, the majority freely acknowledges that we have never before applied the public trust doctrine to such property. (Ante p. 298.) Nonetheless, my colleagues assert, without analysis, that prior government ownership is not essential to the application of that doctrine, but that unadorned, unsupported, bare conclusory assertion is not persuasive. In my view the majority thus errs in applying the public trust doctrine to the property before us, title to which 29 has been exclusively in private ownership since 1839.”*? (31 Cal.3d at 307-308.) (Emphasis in original. ) CONCLUSION As was pointed out by the district judge in Robinson v. Ariyoshi, 441 F.Supp. 559 (1977):” “Underlying the right of the courts and legislature to make changes in the law, however, is the concomitant obligation of the State to compensate those whose property may have been taken over by the State by those changes. Chicago, Burlington & c. R'D v. Chicago, 166 U.S. 226, 17 S.Ct. 581, 41 L.Ed. 979 (1897). Even by legislative fiat, property cannot be expropriated and taken over by the State without compensating the private owner for his lost rights. No more can private property be so taken away by judicial decision and handed over, gratis, to the State. ‘The touchstone of due process is the protection of the individual against arbitrary action of the government.’ Wolff v. McDonell, 418 U.S. 539, 558, 94 S.Ct. 2963, 2976, 41 L.Ed.2d 935.” (/d. at 584-585.) * Although the majority’s reasoning on the lack of necessity of state ownership to support the application of the public trust seems to have been severely discredited in the subsequent overturning by this Court of Venice Properties in Summa, a narrow reading of that decision by the court below may leave that portion of the Venice Properties decision intact. * Subsequently the Ninth Circuit upheld the District Court. See 753 F.2d 1468 (9th Cir. 1985), vacated and remanded, No. 85-406 (June 23, 1986). Based on the citation of Williamson Planning Commission v. Hamilton Bank, 473 U.S. 172 (1985), by this Court on remand apparently the petition for certiorari was deemed premature. 30 In this year of the celebration of the Constitution, and its Amendments, it seems especially appropriate to remind state courts that they, no less than the executive and legislative branches, are prohibited by the Fifth and Fourteenth Amend- ments from transferring private property to the state without payment and to reinforce the proposition that the Due Process and Taking Clauses are not just high-sounding phrases but are meaningful and enforceable constitutional rights designed to pro- tect the individual from just such arbitrary actions by all branches of state government as have occurred here. Respectfully submitted, WILLIAM T. CHIDLAW Attorney for Petitioner Tahoe Shorezone Representation (Appendices follow) ee ee ee ee ee Appendix A In the Court of Appeal of the State of California in and for the Third Appellate District (Placer) 3 Civil 25115 (Super.Ct.No. 48281) Charles F. Fogerty, Tahoe Shorezone, Representation, et al., Plaintiffs and Appellants, vs. State of California, et al., Defendants and Respondents. [ Filed Nov. 24, 1986] APPEAL from a judgment of the Superior Court of Placer County, Keith Sparks and George Yonehiro, Judges. As modi- fied, the judgment is affirmed. William T. Chidlaw, Peter E. Racobs, Washburn & Kemp, and Edgar B. Washburn for Plaintiffs and Appellants. John K Yan De Kamp, Attorney General, N. Gregory Taylor, Assistant Attorney General, Jan Stevens and David B. Judson, Deputy Attorneys General for Defendants and Respondents. In State of California v. Superior Court (Lyon) (1981) 29 Cal.3d 210 (hereafter “Lyon”) our Supreme Court held that the lands lying between the low and high watermarks of Clear Lake are owned by their littoral owners subject to a “trust” interest held by the State of California for the benefit of the public for purposes of commerce, navigation, fishing, recreation, and preservation of ‘the land in its natural state. (/d., at pp. 226-233.) In State of California v. Superior Court (Fogerty) (1981) 29 Cal.3d 240 (hereafter “Fogerty”) our high court held, in this very case, that the public trust enunciated in Lyon was applicable to Lake Tahoe. (/d., at pp. 243, 247.) In this appeal, we hold that, for purposes of A-2 determining the boundaries of land along the shore of Lake Tahoe subject to the public trust, the low watermark of the lake is 6223 feet above sea level, Lake Tahoe datum, and the high watermark is 6228.75 feet above sea level, Lake Tahoe datum. PROCEDURAL BACKGROUND This litigation began in 1977 when the Attorney General informed the State Lands Commission that the state claimed fee ownership of the shorezone, the property lying between the low and high watermarks of navigable nontidal lakes and rivers. (Fogerty, supra, 29 Cal.3d at p. 243.) The Commission proposed to record claims to such lands in county recorders’ offices throughout the state. (/bid.) Thereupon, plaintiffs Charles and Stella Fogerty and other owners of property along the shores of Lake Tahoe, and Tahoe Shorezone Representation, a corporation which represents many shorezone owners, filed this litigation claiming they and not the state owned the lands between low and high waters. (Jbid.) In Lyon our Supreme Court resolved this question, concluding private citizens held fee title to the lands to the low watermark. (Lyon, supra, 29 Cal.3d at p. 226.) The court went on to hold, however, that the land between low and high water was subject to the public trust. (/d., at pp. 226-233.) The court first determined that California acquired sovereign fee ownership of the lands between low and high water in nontidal navigable lakes and rivers upon its admission to the Union. (Lyon, supra, at pp. 217-222.) The court next determined that, by the enactment of Civil Code section 830 in 1872, the Legislature granted fee title to the lands in question to the littoral property owners.' (/d., at pp. 222-226.) Finally, the court considered whether the grant of fee title was free of the public trust described ' Civil Code section 830 provides that “Except where the grant under which the land is held indicates a different intent, the owner of the upland, when it borders on tidewater, takes to ordinary high-water mark; when it borders upon a navigable lake or stream, where there is no tide, the owner takes to the edge of the lake or stream, at low-water mark; when it borders upon any other water, the owner takes to the middle of the lake or stream.” A-3 in City of Berkeley v. Superior Court (1980) 26 Cal.3d 515. The court concluded it was not, and that the trust still applied, relying on the settled proposition that lands held by the state in trust remain subject to the trust once conveyed to private parties unless the conveyance was made for trust purposes. (Lyon, supra, at pp. 226-232.) In Fogerty, the People sought a writ of mandate from our Supreme Court after the trial court had entered partial summary judgment decreeing that no real property lying landward of the last natural low watermark of Lake Tahoe was subject to the public trust. (29 Cal.3d at p. 243.) The court addressed two questions not discussed in Lyon. First, the court concluded the People may not be estopped from asserting their public trust interest in those lands lying between low and high watermarks: “The exercise of the police power has proved insufficient to protect the shorezone. The urgent need to prevent deterioration and disappearance of this fragile resource provides ample justification for our conclusion that the People may not be estopped from asserting the rights of the public in those lands.” (Fogerty, supra, 29 Cal.3d at p. 247.) Second, the court concluded the boundary between public and private ownership was to be measured by using the “current” level of the lake. (/d., at pp. 248-249.) Although Lake Tahoe had existed before statehood, its elevation was raised significantly by the construction of a dam across its natural outlet into the Truckee River in 1870. (Fogerty, supra, 29 Cal.3d at p. 247.) Lands were inundated which, before statehood, had belonged to the littoral owners free of the public trust. The court therefore faced the question whether these newly-flooded lands remained free of the trust or had become subject to it. (/bid.) The court began by noting with approval the People’s conten- tion that it would be difficult if not impossible to reconstruct the natural water levels of a lake. (/Jd., at p. 248.) The court reasoned that “The monumental evidentiary problem which would be created by measuring the boundary line between public and private ownership in accordance with the water level which existed prior to the construction of [the dam] provides a convinc- A-4 ing justification for accepting the current level of the lake as the appropriate standard.” (Jbid., emphasis added.) The court went on to note, “Moreover, the dam at Lake Tahoe has been in existence since 1870, long past the period required for the acquisition of prescriptive rights by the state of the lands in question. (Civ. Code, § 1007; Code Civ. Proc., § 325.) It has been held in other jurisdictions that a landowner loses ownership of property covered by water resulting from the construction of a dam if the condition has continued for the period required for the acquisition of prescriptive rights. (State v. Parker (1918) 132 Ark. 316 [200 S.W. 1014, 1016]; State v. Sorenson (1937) 222 Iowa 1248 [271 N.W. 234, 238-239].) Sorenson stated that in these circumstances ‘the artificial condition is... stamped with the character of a natural condition, and the title to the lands covered by the waters of the lake is deemed to have passed from private ownership to the same trust as that of lands covered by the waters of natural navigable lakes. The state, and private owners, as well, of lands affected by the artificial condition, may enforce the maintenance of that condition.’” (Fogerty, supra, 29 Cal.3d at pp. 248-249.) Thus, the court held the trial court had erred in using the pre-dam level of the lake to set the low watermark. (/d., at p. 249.) The Fogerty court issued a writ of mandate directing the trial court (a) to vacate its order granting the landowners’ motion for partial summary judgment and (b) to grant the People’s motion for partial summary judgment and partial judgment on the plead- ings “insofar as consistent with the views expressed above.” ([bid.) In Lyon, the court added a footnote referring to Fogerty and directing “that the determination of the boundary between public and private ownership must be assessed in accordance with the shoreline of the lake as it exists presently.” (Lyon, supra, 29 Cal.3d at p. 232, fn. 20.) The Lyon court issued a writ identical to that in Fogerty. (/d., at p. 233.) Following our Supreme Court’s issuance of its writ to the trial court in this case, the state moved for summary judgment. The state submitted voluminous exhibits in support of its motion A-5 which established, among other things, that several agencies of government including the U.S. Army Corps of Engineers, the California Tahoe Regional Planning Agency and the bistate Tahoe Regional Planning Agency have consistently used the figure of 6229.1 feet above sea level as the lake’s high watermark. That figure had its genesis with the California-Nevada Interstate Compact Commission in 1934 and was premised on the volume of water needed by users along the Truckee River. It was incorporated in the Truckee River Agreement of 1935 which was negotiated by the United States and several major users of Truckee River water. (See generally 30 Ops.Cal.Atty.Gen. 262 (1957).) It was also incorporated in a consent decree which adjudicated the water rights of all users of Truckee River water. (U.S. v. Orr Water Ditch Co. (U.S. Dist. Ct., Nev. 1944) Equity No. A3.) However, the littoral property owners were never made parties to the negotiations _or the litigation. (30 Ops.Cal.Atty.Gen., supra, at p. 268.) Defendants’ exhibit R showed the maximum and minimum lake elevations from 1900 to 1984. The exhibit revealed that since 1917 the lake had never reached its negotiated high watermark of 6229.1 feet.” The data summarized in the exhibit are undisputed by the parties. The trial court entered summary judgment in favor of the state establishing among other things that: (1) the lake’s high water- mark, as well as its low watermark, is to be determined in accordance with the lake’s current conditions; and (2) the high watermark of Lake Tahoe constituting the uppermost limit of the lake subject to theyblic trust is located at 6229.1 feet above sea level, Lake Tahoe datum.’ ? However, it had come close on several occasions. Since the entry of the consent decree in 1944 (which established the present mode of water level regulation) the lake exceeded elevation 6229 feet on a total of 81 days. During that time, however, it never rose the next one-tenth of a foot to the theoretical maximum of 6229.1 feet. * The trial court’s judgment established the following: “1. Plaintiff landowners holding otherwise valid grants to the shores of Lake Tahoe hold to the low water mark thereof: seeaiiiiaiiiaiees A-6 Plaintiffs’ appeal challenges these two rulings. As we shall explain, we conclude many of plaintiffs’ contentions are fore- closed by Lyon and Fogerty. However, plaintiffs also assert the trial court erroneously fixed the high watermark at a theoretical maximum elevation which the lake has not reached since 1917. This contention is meritorious; we shall modify the trial court’s summary judgment to reflect the high watermark as disclosed by the record in accordance with the state’s acquisition of its prop- erty interest by prescription. Plaintiffs have acquiesced in the summary judgment’s estab- lishment of 6223 feet as the lake’s low watermark and do not challenge that figure on appeal. (See 9 Witkin, Cal. Procedure (3d ed. 1985) Appeal, § 479, p. 469.) Defendants have not cross- appealed (see op. cit. supra, at pp. 394-395) and may make no challenge of their own. Accordingly, the figure of 6223 feet as the low watermark is conclusively established. Consequently, as mod- “2. The title of littoral owners at Lake Tahoe is impressed with a public trust for commerce, navigation, fisheries and environmen- tal preservation to the high water mark thereof; “3. The state may not be estopped from asserting the rights of the public to the high water mark at Lake Tahoe; “4. The high and low water marks at Lake Tahoe are to be determined in accordance with the current condition of that lake; “5. The low water mark constituting the fee boundary between [the bed of Lake Tahoe in] state sovereign ownership and upland fee ownership is located at 6223 feet above sea level, Lake Tahoe datum; “6. The high water mark of Lake Tahoe constituting the uppermost limit of that lake subject to the public trust is located at 6229.1 feet above sea level, Lake Tahoe datum; “7. Any right of the plaintiffs herein to pier out to the line of navigation in Lake Tahoe is subject to the authority of the State of California and its designees to impose reasonable regulations; “8. Plaintiffs hoiding property littoral to the bed of Lake Tahoe have not been deprived of the use or enjoyment thereof without compensation, contrary to the provisions of article 1, section 19 of the state Constitution and amendments V and XIV of the United States Constitution.” A-7 ified to reflect the correct high watermark, the judgment shall be affirmed. DISCUSSION I Certain of Plaintiffs’ Contentions Cannot be Reconciled with Lyon and Fogerty. Read together, we think Lyon and Fogerty establish the follow- ing rules: (1) the littoral property owners own the shorezone* of Lake Tahoe in fee simple to the low watermark of the lake in its “current” condition; (2) the property owners’ fee simple title in the shorezone is impressed with a public trust analagous to an easement, acquired by the State of California pursuant to the doctrine of prescription and held for the benefit of the public for purposes of commerce, navigation, fishing, recreation and preser- vation of the land in its natural state. In their attack on the judgment, plaintiffs have fired a fusillade of contentions that essentially ask us to undo what Lyon and Fogerty have done.* Thus, for example, although plaintiffs con- cede in their brief that “Lyon held that the public trust easement extends to the ordinary high watermark, making it necessary to ascertain the location of that line,” plaintiffs contend the high watermark must be set according to conditions prevailing in 1850, when California was admitted to the Union. This argument cannot be reconciled with Fogerty’s conclusion the state has acquired prescriptive rights by the incursion of higher water caused by construction of the dam. (29 Cal.3d at pp. * The lands between low and high water. (Fogerty, supra, 29 Cal.3d at p. 245.) > These include the assertions: (1) that our Supreme Court’s deci- sions in Lyon and Fogerty constitute a “sudden and unpredictable change in state law” and thereby violate their constitutional rights to due process of law; (2) that the state acquired no prescriptive rights in new shorezone created by construction of the dam; and (3) that any prescriptive rights acquired by the state permit fewer uses of land by the public than the uses allowed by the public trust doctrine. A-8 248-249.) The argument also asks us to disregard Fogerty's instruction that the low watermark must be set according to the “current” level of the lake. (Jd, at p. 248.) Plainly if the shorezone must be established, and if the lower boundary of that zone must be set by using the “current” level of the lake after construction of a dam, then the upper boundary cannot be set using the pre-dam level. That formula would theoretically allow the upper boundary of the shorezone to be set at an elevation lower than the lower boundary, so the shorezone would always be under water.° That result would effectively remove all shore from the shorezone. Such a result cannot be reconciled with Fogerty’s extensive discussion of the shorezone as “/and between high and low water” necessary for the survival of birds, plants, and vegeta- tion and useful for picnicking, hunting and biking. (Fogerty, supra, 29 Cal.3d at p. 245, emphasis added.) As an inferior court, we are duty bound to follow and apply the law as interpreted by our Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Plaintiffs suggest the Supreme Court’s express instructions—to set the low watermark using post-dam conditions—are dicta and may be disregarded by this court. We cannot agree. Even when part of an opinion is not relevant to material facts, if it is responsive to an argument raised by counsel and intended for guidance of the court and attorneys upon a new hearing, it probably constitutes the basis of the d«cision and cannot be disregarded by a lower court as mere dictum. (United Steelworkers of America v. Board of Education (1984) 162 Cal.App.3d 823, 834-835; Paley v. Supe- rior Court (1955) 137 Cal.App.2d 450, 460.) Here, in both Lyon and Fogerty, the Supreme Court issued writs directing lower courts to rule “consistent with the views expressed above.” (Lyon, supra, at p. 233; Fogerty supra, at p. 249.) In these circumstances, Fogerty’s direction to use the “current” post-dam level of the lake °It is immaterial that the lower boundary now established—6223 feet—may or may not be lower than the high level of the lake in 1850. That figure had not been agreed upon and was not discussed by the court in Fogerty. A-9 is not dictum.’ (United Steelworkers of America v. Board of Education, supra, 162 Cal.App.3d at p. 835.) Indeed, the court’s remarks on the question constitute the law of the case that we are obliged to follow. (People v. Shuey (1975) 13 Cal.3d 835, 841; compare Searle v. Allstate Life Ins. Co. (1985) 38 Cal.3d 425, 434.) We shall therefore use the “current” condition of the lake to set the high watermark. II The “Current” Level of Lake Tahoe is 6228.75 Feet Above Sea Level, Lake Tahoe Datum. Plaintiffs contend the trial court erred in setting the high level of the lake it 6229.1 feet above seal level. For reasons that follow, we agree. A. The 1944 consent decree adjudicating water rights of all users of Truckee River water does not establish the high watermark of Lake Tahoe for public trust purposes. In a consent decree entered into in 1944, the level of Lake Tahoe was set at 6229.1 feet for purposes of adjudicating the water rights of all users of Truckee River water. (U.S. v. Orr Water Ditch Co. (U.S. Dist. Ct., Nev. 1944) Equity No. A3.) The Attorney General now argues the consent decree may be used to set the high level of the lake in this case. However, in 1957, the California Attorney General opined the consent decree could have no effect on the property rights of littoral property owners because they were not parties to the litigation. (30 Ops.Cal.Atty.Gen., supra, at p. 268.) We think the Attorney General had it right in 1957. The party against whom the plea of collateral estoppel or res judicata is asserted must have been a party or otherwise privy to the prior action. (F. W. Woolworth Co. v. Franchise Tax Bd. (1984) 160 Cal.App.3d 1154, 1160.) ’ Even assuming it is dictum we would be bound to follow it. (See County of Fresno v. Superior Court (1978) 82 Cal.App.3d 191, 194.) A-10 Since such was not the case here, the consent decree has no effect on plaintiff's property rights.* B. The state did not acquire any property rights by plaintiffs’ “acquiescence” in public administrative agencies’ use of 6229.1 feet above sea level as the high level of the lake. As we have noted, the level of Lake Tahoe has never reached elevation 6229.1 feet since 1917. Nonetheless, the defendants note that correspondence and records maintained by the State Lands Commission reveal a widespread acceptance of 6229.1 feet as the lake’s high watermark. Defendants also point to an affidavit by plaintiffs’ counsel suggesting that the figure of 6229 feet is “generally accepted” as the high watermark. In addition, defend- ants note that the U.S. Army Corps of Engineers, the California Tahoe Regional Planning Agency and the bistate Tahoe Regional Planning Agency have consistently used that figure. Defendants conclude the widespread acceptance of the figure (6229.1 feet) compels the conclusion the figure has been established by “acqui- escence” and is now binding on plaintiffs. We cannot agree. We note, first of all, that in Fogerty our Supreme Court neither stated nor implied that it was of the view the littoral owners’ land had been impressed with the public trust under a novel theory of “acquiescene.” We do not read Fogerty as establishing some new theory by which the state acquires rights in private property. Indeed, what the court said in Fogerty was precisely the oppo- site—that the state’s rights were obtained under the long-estab- lished doctrine of prescription. The state’s proposed theory of “acquiescene” is therefore not “consistent with the views ex- pressed” in Fogerty, as that case directs. (29 Cal.3d at p. 233.) Moreover, if defendants’ claim of “acquiescence” has any grounding in an established theory of property rights, it may be viewed as an assertion of an “agreed boundary.” However, the assertion may not be maintained. The doctrine of agreed bound- ary is wholly insufficient to sustain the trial court’s high water- mark of 6229.1 feet. * We also note the consent decree litigated water rights, not property rights. A-11 The elements required to establish an agreed boundary are well established. They are: (1) uncertainty as to the true boundary line; (2) an express or implied agreement between adjoining landowners to accept a line as the boundary; and (3) acceptance and acquiescence in the line for a period equal to the statute of limitations or until action is taken in reliance on the agreement which would result in substantial loss if the boundary were altered. (French v. Brinkman (1963) 60 Cal.2d 547, 551; Erie v. Trinity Lutheran Church (1959) 51 Cal.2d 702, 707-709; see Humphrey v. Futter (1985) 169 Cal.App.3d 333, 338; Finley v. Yuba County Water Dist. (1979) 99 Cal.App.3d 691; 699; 3 Miller & Starr (rev. ed. 1977) § 21:27, pp. 552-559.) The objects of the agreed boundary doctrine are to secure repose, to prevent strife and disputes concerning boundaries, and make titles permanent and stable. (Martin v. Lopes (1946) 28 Cal.2d 618, 623; 3 Miller & Starr, op. cit. supra, § 21:27, pp. 553- 554.) The policy of the law is to give stability to agreements which the parties themselves undertake in good faith in an effort to settle an extant controversy. (Martin v. Lopes, supra, at p. 624.) Where an extant controversy is absent the doctrine may not be applied. For example, the mere erection of a fence at a certain point does not establish a boundary if there is no dispute which the construction of the fence purports to resolve. (See Dooley’s Hardware Mart v. Trigg (1969) 270 Cal.App.2d 337, 340.) Although the existence of a dispute may be inferred from long standing acceptance of a fence as a boundary (Erie v. Trinity Lutheran Church, supra, 51 Cal.2d at p. 708), where there is direct evidence that no controversy existed the doctrine of agreed boundaries is inapposite. (Dooley’s Hardware Mart v. Trigg, supra, 270 Cal.App.2d at pp. 340-341; 3 Miller & Starr, op. cit. supra, § 21:31, p. 562.) Here, the agreed boundary doctrine is inapplicable because, at the time the figure of 6229.1 feet was established as a limitation on filling Lake Tahoe, and until recently, there was no extant controversy as to the boundary of public property nghts, so no controversy was resolved. We know this, as a matter of law, because “with few exceptions, state authorities, including the A-12 Attorney General, took the position until at least 1970 that by virtue of the provisions of [Civil Code] section 830 the state claimed ownership only to the low water mark. [Citations.]” (Lyon, supra, at p. 224.) The state first asserted claim to the lands at Lake Tahoe in 1977, whereupon this litigation was promptly filed. (Fogerty, supra, at p. 243.) Before the state’s assertion of its claim in 1977, the owners had no reason to believe the figure of 6229.1 feet was anything more than a limitation on filling the reservoir. They had no cause to suspect it could have further significance as a property boundary for purposes of the public trust doctrine. The owners had no more reason to believe their property rights were being adjusted under the agreed bound- ary doctrine (by their acquiescence in a theoretical lake level of 6229.1 feet) than would the property owner who watches his neighbor build a fence on the neighbor’s own land in order to comply with an ordinance requiring the construction of fences. (See Dooley’s Hardware Mart v. Trigg, supra, 270 Cal.App.2d at pp. 339-340.) Thus, there was no controversy over property boundaries to be resolved by agreement. (/d., at pp. 340-341.) In the circumstances it would be manifestly unfair, if not disingenuous, to justify the imposition of public trust rights upon private owners’ land on the basis that the owners, by their ignorance and inaction, somehow “agreed” to imposition of the public trust boundary at elevation 6229.1 feet. The trial court’s high watermark may not be sustained under a theory of “agreed boundary.” C. The extent of the public trust must be established in accordance with a theory of prescriptive nights. 1. The doctrine of prescription will not support a high watermark of 6229.1 feet. As we have noted, we read Fogerty as establishing that the People have acquired their public trust rights in the shorezone by prescription. Although the public trust may not be in all respects A-13 identical to an easement,’ we think the similarities are sufficient to justify resort to the law of prescriptive easements to set the upper boundary of the public trust. (See, e.g., Gilardi v. Hallam (1981) 30 Cal.3d 317, Gion v. City of Santa Cruz (1970) 2 Cal.3d 29, 41.) Defendants contend a high watermark of 6229.1 feet has been established by prescription. However, we cannot agree. “The elements necessary to establish a prescriptive easement are well settled. The party claiming such an easement must show use of the property which has been open, notorious, continuous and adverse for an uninterrupted period of five years.” (Warsaw v. Chicago Metallic Ceilings, Inc. (1984) 35 Cal.3d 564, 570; Code of Civ. Proc., § 321.) The purpose of these requirements is to insure that the owner of the real property which is being en- croached upon has actual or constructive notice of the adverse use and to provide sufficient time to take necessary action to prevent that adverse use from ripening into a prescriptive easement. (Twin Peaks Land Co. v. Briggs (1982) 130 Cal.App.3d 587, 593; Zimmer v. Dykstra (1974) 39 Cal.App.3d 422, 431.) Unlike waters which actually lap upon the shore, a high watermark which exists only on paper and not on the land is not a “use” of the land at all, much less an “open” one. (See Warsaw v. Chicago Metallic Ceilings, supra, 35 Cal.3d at p. 570.) A “paper” high watermark—particularly one unaccompanied by the asser- tion of any effect on property rights—cannot fulfill the notice purpose underlying the elements of prescription. (Twin Peaks Land Co. v. Briggs, supra, 130 Cal.App.3d at p. 593; Zimmer v. Dykstra, supra, 39 Cal.App.3d at p. 431.) As the court of appeal has colorfully said, an adverse user “ * “must unfurl his flag on the * land, and keep it flying, so that the owner may see, if he will, that an enemy has invaded his domains, and planted the standard of conquest.” ’”” (Wood v. Davidson (1944) 62 Cal.App.2d 885, 890.) To continue the metaphor, merely filing the blueprints for a flagpole over at the irrigation district offices or at the federal ” Thus, for example, Lyon apparently establishes that the uses of land subject to the public trust are broader than actual uses of the land previously by the public. (See Lyon, supra, 29 Cal.3d at p. 229.) A-14 courthouse with the thought that, someday, the flagpole might be built, is not the sort of notice to which the landowner is entitled. The trial court erred in concluding that 6229.1 feet was the high watermark. 2. Application of the doctrine of prescription results in a high watermark of 6228.75 feet above sea level. Fogerty's doctrine of prescriptive rights is derived from cases allowing the public to obtain property nights from the actual incursion of dam waters upon the shore. (See Fogerty, supra, 29 Cal.3d at p. 248; State v. Parker (1918) 132 Ark. 316 [200 S.W. 1014, 1016]; State v. Sorenson (1937) 222 Iowa 1248 [271 N.W. 234, 238-239].) We shall therefore use the actual incursion of the waters to set the high level of Lake Tahoe. The question is: what is the appropriate level of actual incursion? Once again, we turn to the law of prescriptive easements for the answer. “To acquire a prescriptive easement, the easement must be used in the required manner continuously and without interrup- tion for the full prescriptive period [of five years]. The actual use required depends on the nature of the easement. It need not be used every day during the prescriptive period. The use is sufficient if it occurs on those occasions when it is necessary for the convenience of the user.” (3 Miller & Starr, op. cit. supra, § 18:37, pp. 327-328.) “If a mght of way over another’s land has been used for more than five years, it is not necessary, to make good such use, that the claimant has used it every day. He uses it every day, or once in every week, or twice a month, as his needs require. He is not required to go over it when he does not need it, to make his use of the way continuous. The claimant is required to make such reasonable use of the way as his needs require.” (Hesperia Land etc. Co. v. Rogers (1890) 83 Cal. 10, 11.) In Hesperia Land our Supreme Court held that a user of a water ditch need not use the ditch year-round in order to satisfy the requirement of continuous use. It was sufficient that he used the ditch during the growing season and then only when he needed it. (/bid.; see Twin Peaks Land Co. v. Briggs supra, 130 Cal.App.3d at p. 593.) A-15 We find Hesperia Land directly analogous to the situation at bar. The need for water storage, like the need for water transpor- tation in an irrigation ditch, fluctuates from season to season and ultimately from year to year. We believe it wholly unnecessary to the doctrine of prescription for water impounded behind a dam to remain in place continuously for the five-year period in order for prescriptive rights to attach. Practical experience tells us no reservoir operates that way. We believe, instead, that the needs of the reservoir operator are determinative. (Hesperia Land etc. Co. v. Rogers, supra, 83 Cal. at p. 11.) Where the reservoir operator returns the waters to a zenith each water year and maintains the - water at that elevation for the duration of his needs his use of the reservoir is “continuous” up to and including that highest point. (/bid.) For purposes of the public trust doctrine, we shall there- fore set the high watermark of Lake Tahoe at the highest elevation actually reached by the “current” lake in five sequential years. Applying this rule to the undisputed data contained in defend- ants’ exhibit R is relatively straightforward. We must look to the lake’s current conditions. (Fogerty, supra, 29 Cal.3d at pp. 248- 249.) Thus, we consider the water levels after 1944 when the present mode of water level regulation was established. Examin- ing defendants’ exhibit R, we find that the five consecutive years of highest water since 1944 are years 1967, 1968, 1969, 1970, and 1971. In each of those five years, the lake has reached elevation 6228.75 feet.'° This is a “continuous” use of the reservoir up to 0 '’ The actual water levels were as follows: RR a gE ipa 6228.87 feet Ne eee kan a we ek a 6228.75 feet SR ee ts Sails toe? a oe 6229.05 feet INA, FS ee ete 6229.05 feet Ne gt he a ere 6228.99 feet Needless to say, only the lowest of these five elevations has been reached each year. Because the last year of the prescriptive period was 1971 we need not consider the effect, if any, of Civil Code section 1009 (effective 1972) which provides a means of protecting owners of private property who A-16 that elevation for the purposes of prescriptive rights. (Hesperia Land etc. Co. v. Rogers, supra, 83 Cal. at p. 11.) We acknowledge that the high watermark should be “ordinary” and should not represent the level reached by water in unusual floods. (Lyon, supra, 29 Cal.3d at p. 216; State v. Sorenson, supra, 271 N.W. at p. 236.) The undisputed data indicate the figure of 6228.75 feet is not markedly different from other elevations of the lake reached since 1944 and does not represent an inappropriate unusual condition of the lake.'’ We shall modify the trial court’s judgment to establish the high watermark as 6228.75 feet above sea level, Lake Tahoe datum." make their lands available to the public from later claims of prescriptive rights. '' For example, in years 1951, 1952, and 1953 the lake reached elevations 6228.89, 6228.79, and 6229.04 feet, respectively. Similarly, in years 1956, 1957, and 1958, the lake reached elevations 6229.04, 6229.07, and 6229.02 feet, respectively. In 1973, 1974, and 1975, the lake reached 6228.64, 6228.92, and 6228.64 feet, and in 1982, 1983, and 1984 the lake exceeded elevation 6228.50 feet. '? The parties have suggested various other methods that might be used to set the high level of the lake. However, none of the methods they suggest is consistent with the theory of prescriptive rights which provides the basis for the state’s assertion of its public trust. (Fogerty, 29 Cal.3d at pp. 248-249.) We briefly summarize the proposed methods and their shortcomings. The traditional method of ascertaining the high watermark in tidal waters is of little help. The height of the tides is determined primarily by the gravitational effects of the sun and the moon; these effects run one complete cycle every 18.6 years. The high tide is generally computed by averaging the high tides occurring over such a period of time. (Borax Consolidated v. City of Los Angeles (1935) 296 U.S. 10, 26-27 [80 L.Ed. 9].) This method is inconsistent with prescriptive rights obtained during a five-year period of time. Moreover, nontidal waters generally, and waters impounded behind a dam in particular, know of no tidal rhythmic regularity. Water stored in reservoirs, like that in uncontrolled lakes and streams, fluctuates with the weather but is also under the direct control of man. Thus, the 18.6 year average is of little utility. Averaging the high watermarks set over a larger number of years is also inconsistent with the theory of prescriptive rights. Moreover, the A-17 DISPOSITION The judgment is modified to reflect that “the high watermark of Lake Tahoe constituting the uppermost limit of that lake subject to the public trust is located at 6228.75 feet above sea level, Lake Tahoe datum.” As modified, the judgment is affirmed. (CERTIFIED FOR PUBLICATION.) SIMS, J. We concur: BLEASE, Acting P.J. CARR, J. method poses two additional problems: (1) determining the number of years over which to average (see, e.g., Willis v. United States (S.D. W.Va. 1943) 50 F. Supp. 99, 101-102; and (2) the danger that a landowner may have to endure excess encroachment in years of above- average waters. Plaintiffs propose the method traditionally used in free-flowing rivers. The high watermark is defined as the place where the riverbed ends and the riverbank begins. (Howard v. Iagersoll (1851) 54 U.S. 381 [14 L.Ed. 189].) This method involves examining the riverbank to find the highest point where the water’s flows have prevented the growth of vegetation. (See Harrison v. Fite (8th Cir. 1906) 148 F. 781, 783.) This method is premised on the assumption that the river will, over a period of time, predictably return to a certain level where it will leave an indelible mark upon its banks. This method is unacceptable for several reasons. First, resort to the physical characteristics of the riverbank is a method of ascertaining the historic levels of water where more accurate measurements are unavailable. Here, we have data accurate to two decimal points and need not rely on physical inspection of vegetation to tell how high the water has risen over time. Moreover, in a reservoir the water level is under the control of man and may fluctuate from month to month and from year to year in only a grossly predictable manner. Thus, the visible vegetation line may be a reflection of only recent events in the reservoir. We conclude the “vegetation test,” like the mathematical averaging test, is unsuitable for present purposes. A-18 Appendix B Superior Court of the California County of Placer No. 48281 Charles F. Fogerty et al., Plaintiffs, ¥. State of California et al., Defendants. Order for Entry of Summary Judgment in Favor of Defendants State Lands Commission and State of California [Filed April 11, 1985] The motion of defendants State of California and State Lands Commission for summary judgment or summary adjudication of issues without substantial controversy was heard by this Court in Department No. 3, before Honorable George Yonehiro, Judge, on April 1, 1985. Appearing as attorneys were Jan S. Stevens and David B. Judson for defendants and Edgar B. Washburn, Mary Beth Uitti for plaintiffs Charles F. Fogerty et al. and William T. Chidlaw for plaintiff Tahoe Shorezone Representation. After full consideration of moving and responding papers, all supporting papers including declarations, exhibits and discovery documents, all other documents filed herein, oral arguments of counsel, holdings of the California Supreme Court in State v. Superior Court (Lyon) (1981) 29 Cal. 210 and State v. Superior Court (Fogerty) (1981) 29 Cal. 240 and in accordance with the Peremptory Wnit of Mandate issued by the California Supreme Court on October 3, 1983, which commands this Court to vacate its order of June 4, 1979, granting plaintiffs’ partial summary judgment and to enter a new order granting the People’s motion for partial summary judgment and partial judgment on the plead- ings insofar as consistent with the views stated in that court’s opinion filed March 20, 1981, the court finds that defendants have shown by admissible evidence and reasonable inferences there- from and by judicial notice properly taken of those matters A-19 requested by defendants in their moving papers, that there is no triable issue of any material fact remaining in this case and, therefore, defendants are entitled to judgment as a matter of law. IT IS THEREFORE ORDERED that the order of this Court of June 4, 1979, granting plaintiffs’ motion of March 1, 1979, for partial summary judgment is hereby vacated and defendants’ motion for summary judgment filed herein on December 10, 1984, is granted and that judgment shall be entered in favor of defendants and against plaintiffs as follows: 1. Plaintiff landowners holding otherwise valid grants to the shores of Lake Tahoe hold to the low water mark thereof; 2. The title of littoral owners at Lake Tahoe is impressed with a public trust for commerce, navigation, fisheries and environmental preservation to the high water mark thereof; 3. The state may not be estopped from asserting the rights of the public to the high water mark at Lake Tahoe; 4. The high and low water marks at Lake Tahoe are to be determined in accordance with the current condition of that lake; 5. The low water mark of Lake Tahoe constituting the boundary between state sovereign ownership and upland fee ownership is located at 6223 feet above sea level, Lake Tahoe datum; 6. The high water mark of Lake Tahoe constituting the uppermost limit of that lake subject to the public trust is located at 6229.1 feet above sea level, Lake Tahoe datum; 7. Any right of the plaintiffs herein to pier out to the line of navigation in Lake Tahoe is subject to the authority of the State of California and its designees to impose reasonable regulations; A-20 8. Plaintiffs holding property littoral to the bed of Lake Tahoe have not been deprived of the use or enjoyment thereof without compensation, contrary to the provisions of article 1, section 19, of the state Constitution and amend- ments V and XIV of the United States Constitution. DATED: April 11, 1985 GEORGE YONEHIRO Judge of the Superior Court A-21 Appendix C In The Supreme Court of the State of California S.F. No. 24035 THE STATE OF CALIFORNIA et al., Petitioners v. - THE SUPERIOR COURT OF PLACER COUNTY, Respondent; CHARLES F. FOGERTY et al., Real Parties in Interest. [Filed Mar. 20, 1981] OPINION MOSK, J.—Thie present action is concerned with the ownership of lands between high and low water in Lake Tahoe, a navigable lake in which there is no appreciable ebb and flow of the tide. The primary issues are the same as those discussed in State of California v. Superior Court (Lyon), ante, page 210 [...... Cal. Bptr. ...... ita cen gh ee ], but some questions in addition ta those in the Lyon action are raised by the parties. In the spring of 1977, the State Lands Commission, after being advised by the Attorney General that the state claimed ownership of the property between high and low water in navigable nontidal lakes and rivers, propose to record claims to such lands in the offices of county recorders throughout the state. Thereupon, Charles and Stella Fogerty and other owners of property along the shore of Lake Tahoe, and Tahoe Shorezone Representation, a corporation which represents many shoreline owners, filed this action for declaratory relief and inverse condemnation, and claimed violation of A-22 their civil rights (42 U.S.C. 4 1983).' The complaint alleged that plaintiffs owned the lands between high and low water in the lake in fee simple, that many of them had built piers or docks extending to low water, and that the state wrong- fully asserted title or a public trust to high water. Plaintiffs sought an injunction to prevent the state from claiming any interest in the property between high and low water.: As defendants in the action, they joined the state, the State lands Commission, and several state officials (hereinafter called the People). After overruling the demurrers of the People and grant- ing plaintiffs a preliminary injunction prohibiting the state from recording a notice that it owns the lands between high and low water in Lake Tahoe, the trial court granted plain- tiffs’ motion for partial summary judgment. It ruled that no portion of the property involved in this action landwar« of the last natural low water mark of Lake Tahoe is or ever was sovereign property of the state or subject to the common law public trust for commerce, navigation and fishing, and it denied the motions for partial summary judgment and for partial judgment on the pleadings filed by the People. Thereafter. the People filed this proceeding, secking a peremptory writ of mandate to direct the trial ‘Section 1983 provides: “Every person who, under color of any statute, ordinance, regulation, custom, or usage. of any State or Territory or the District of Columbia. subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any nghts. privileges. or immunities secured by the Constitution and laws, shall be liable to the party iniured in an action at law, suit in equity. or other proper proceeding for redress. . . .” A-23 court to vacate its order granting plaintiffs’ motion, anc to enter an order granting the motions made by the People. The major issue raised by the plaintiffs, not discussed in Lyon, is that of estoppel. Strictly speaking, that issue is not formally before us. Plaintiffs’ complaint pleads a cause of action for declaratory relief in estoppel. hut their notion for partial summary judgment did not seek a ruling on this issue, and the trial court did not pass upon the question. The People, urging that plaintiffs should not be permitted to raise the issue, assert that estoppel is a ques- tion of fact for the trial court in any future proceeding. This argument is technically tenable. But if estoppel were to be determined on a case-by-case basis it would require a massive expenditure of time and money by the state. riparian landowners, and the judiciary. Such an effort may he avoided if, as we shall conclude, we can decicle the question as a matter of law on the basis of the present record. (Cf. City of Long Beach v. Mansell (1970) 3 Cal.3a 462, 487-488 [91 Cal.Rptr. 23, 476 P.2d 423].) The elements of equitable estoppel were described so thoroughly by Justice Sullivan in Mansell that little more need be said on the subject.* *There are four elements necessary to apply the doctrine: “(1) the party to be estopped must be apprised of the facts; (2) he must intend that his conduct shall be acted upon, or must so act that the party asserting the estoppel had a right to believe it was so in- tended: (3) the other party must be ignorant of the true state of facts; and (+4) he must rely upon the conduct to his injury.” (3 Cal. 3d at p. 489. ) We note that the opinion of the Attorney General referred to in Lyon declares that the public trust applies to the land in question (43 Ops.Cal.Atty.Gen. 285, 294 (1964) ), and that it has long been A-24 Since we find that one critical requirement for the application of the doctrine is absent, we need not discuss other aspects of the doctrine or their relevance to the present case. Estoppel will not be applied to the govern- ment if the result would be to nullify a strong rule of policy adopted for the benefit of the public (Mansell, 3 Cal3d at p. 493), and we entertain no doubt that this would be the result if we were to hold that the People are barred from asserting the public trust in the lands at issue. As we point out in Lyon, our decision will affect the rights of the public in 4,000 miles of shoreline along 34 navigable lakes and 31 navigable rivers, and many thou- sands of acres of land hetween high and low water (the shorezone). Amicus curiae in the Lyon action, the Cali- fornia Department of Water Resources. points out that il sl-orezone has heen reduced to a fraction of its original ~iz- in this state by the pressures of development. Such lands now cover less than one half of 1 percent of the state: a further reduction by 15 percent was projected for 1980. Some anthorities have warned that at the pres- eut rate of destruction nearly all riparian vegetation on the Saeramento River could be eliminated in the next “0 vears. The shorezone .is a fragile and complex resource. It provides the environment necessary for the survival of numerous tynes of fish (inelnding salmon. steelhead and settled in this state that the fact a private landowner has title to tidewaters does not establish such ownership is free of the interest of the public. (See, e.g., People v. California Fish Co. (1913) 166 Cal. 576 [138 P. 79].) A-25 striped bass), birds (such as the endangered species: the bald eagle and the peregrine falcon), and many other species of wildlife and plants. These areas are ideally suited for scientific study, since they provide a gene pool for the preservation of biological diversity. In addition, the shore- zone in its natural condition is essential to the maintenance of good water quality, and the vegetation acts as a buffer against floods and erosion. The close relationship of the life forms in the shorezone to one another and to the condition of the hed of the stream or lake, the delicate balance among them, and the adverse effects of reclamation and development of these areas have been documented in numerous studies and reports. (E.g., U. S. Dept. of Agr., Forest Service (1973) Gen. Plan for Management of Nat. Forest Lands, Lake Tahoe Pasin. Review Draft. Lake Tahoe Management Unit, South Lake Tahoe. pp. 1-2: Cal. Dept. Fish and Game (1974) Fish and Wildlife Res. of Anderson Marsh, Clear Lake, Lake County: Cal. Dept. Fish and Game (1966) 1.Fish and Wildlife Plan, p. 14.) One commentator has observed: “{T lhe argument is now commonplace that these environments are the earth’s most hiologically productive ... If nature hats last, wetlands may be the natural team’s designated hitter.” (Nash, Who Loves a Swamp? in Strate- gies for Protection and Management of Floodplain Wet- lands, ete., a Symposium (USDA. Forest Service, GTR- W0-12, Dee. 11-13, 1978.}) The reereational use of these areas for picknicking, hunting, fishing, hiking, hirdwatel- ing and nature study does not require elaboration to anv Californian. In Marks v. Whitney (1971) 6 Cal.Ad 251, 959-260 [98 Cal.Rptr. 790, 491 P.2d 574), Justice McComb made the following comment for a unanimous court regard- A-26 ing the public uses of tidelands: “There is a growing public recognition that one of the most important public uses of the tidelands—a use encompassed within the tide- lands trust—is a preservation of those lands in their natural state, so that they may serve as ecological units for seientific study, as open space, and as environments which provide food and habitat for hirds and marine life, and which favorably affect the scenery and climate of the area.” That observation is equally applicable to the shore- 7one. The Legislature has recognized the value of the shore- zone by enacting statutes calling for its protection. (Pub. Resourees Code, §4 5095.50, 5811.) Section 5811 provides that “the remaining wetlands of this state are of increas- ingly critical economic, aesthetic, and scientific value to the people of California, and ... there is need for an affirma- tive and sustained public policy and program directed at their preservation, restoration, and enhancement, in erder that such wetlands shall continue in perpetuity to meet the needs of the people.” We are not convinced by the assertion that these con- siderations do not rise to the level of a strong public policy in favor of retaining the public trust in the shore- zone. Plaintiffs argue that a large percentage of the shore- line of Lake Tahoe is presently devoted to public use either heeause of public ownership or the public utilization of privately owned shoreline facilities such as marinas, that the prohlems at Lake Tahoe are related to a large influx of people which contributes to the pellution of the Inke, that the public heach areas are overused and the A-27 forest cover destroyed by motor vehicles, and that the best preserved areas of the lake are in private ownership. Thus, they urge, the public interest in preservation of the scenic beauty of the lake would be enhanced by private rather than public ownership of the shorezone. Moreover, it is argued, owners are limited in their use of the shore- zone by many regulations designed to protect the ecology of the area,’ and these are adequate to protect the public’s interest. Amicus curiae, the California Land Title Association, in a brief filed in the Lyon action, asserts that the People exaggerate the ecological importance of the shorezone since not all shorezone areas are of ecological importan:», some of the most significant heing located above hich water or helow low water. It is also argued that the imposition of a trust on hehalf of the publie will not necessarily provide the ecological henefits which the People envision. That goal can he better accomplished on a project-by-project basis in which ecological concerns can be dealt with and private improvements prohibited, liin- *For example, state law requires mitigation of adverse environ- mental effects of a project (Pub. Resources Code, § 21000 et seq.), development which will obstruct the fow of a river or lake or which uses material from a stream bed must be approved by the Department of Fish and Game to determine whether it will ad- versely affect fish and wildlife (Fish & G. Code, § 1603); the California Tahoe Regional Planning Agency has broad powers to enact ordinances for the regulation of improvement at the lake (Gov. Code, § 67100), and 10 percent of the wetlands in the state are protected by a law providing for the formulation of a plan to control development of Suisun Marsh (Pub. Resources Code. § 29000 et sec, ). A-28 ited, or modified, depending on the ecological needs of the area involved. Whether or not the shorezone of Lake Tahoe would be better preserved if privately owned than if the public has an interest therein is not determinative. since we are not concerned here with recreation only, nor with Lake Tahoe alone. but with a principle which will apply to 4.000 linear miles along all the navigable lakes and rivers in California, in many of which the conditions may well differ in some respect from those at Lake Tahoe. Preservation of the public trust in the shorezone will allow the state flexibility in determining the appropriate use of such land, so that, for example. areas which are endangered by overuse can he closed to certain activities such as public bathing. A number of the considerations advanced by plaintiffs and amicus would call also for abdication of the tidelands trust and the substitution of regulation of tidelands development for the concept of the public’s right to control such lands as a matter of right. These arguments appear to oppose the established public trust doctrine in principle, rather than its application to the shorezone as such. The exercise of the police power has proved insufficient to protect the shorezone. The urgent need to prevent deteri- oration and disappearance of this fragile resource provides auiple justification for our conclusion that the People may not be estopped from asserting the rights of the public in those lands. One question remains: whether the boundary between publie and private ownership should he determined with reference to Lake Tahoe in its eurrent condition, or the A-29 “natural” level of the lake as it existed prior to the con- struction of a dam in 1870, which had the effect of raising the level of the lake. (See 30 Ops.Cal.Atty.Gen. 262, 267- 268 (1957).) The trial court concluded that the appropriate boundary between public and private ownership is to he measured in accordance with the “last natural” low water mark of the lake. Plaintiffs argne in favor of the trial court’s ruling, while the People assert that the boundary should be fixed by assessing the lake in its current condi- tion. There is no direct authority on this issue in California. While there is authority relating to a landowner’s right to accretions and relictions* and to the maintenance of a hody of water at its existing level,’ the issue in the present ease revolves a [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_0302%3A1. Public record. Not legal advice.