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| Donner Summit district considering eminent domain | Dec 17, 08 by Greyson Howard |
| Letter to SLCWD Board | Dec 2, 08 by Kathryn Gray |
| Why is Royal Gorge LLC. so afraid of Eminent Domain? | Nov 19, 08 by Kathryn Gray |
| Uneasy In Serene Lakes? | Nov 21, 08 by Kathryn Gray |
Read the Sierra Sun article published December 17, 2008 written by Greyson Howard.
The following "10 Reasons SLCWD Should Acquire the Lakes in Eminent Domain" were originally written for posting on Serene Lakes Property Owner's Association Forum. As they were written for general community readership they are sometimes somewhat lighthearted, and they are by no means exhaustive. Matters which were nuanced or arcane were not touched upon; such matters would be more appropriately explored with SLCWD's legal counsel.
The subject matter covered by the postings is serious, and the issues involved are complex and layered. Of all the issues, I think the most compelling is the following:
Royal Gorge LLC, as titular owner of the lake and dam parcels that may be subject to the exercise of eminent domain, is confronted by inherent conflicts in managing the lake and dam. Because of pressures to maximize their profits, to satisfy their investors,and to provide water to the large development they are proposing to build on Donner Summit, they may be torn between acting in a manner that takes into account the many factors SLCWD considers in managing water supplies, and acting in a manner that satisfies other competing considerations. While they certainly have longstanding duties to the lakes, and water supply, there is a danger those duties may play "second fiddle" to their other interests.
SLCWD, on the other hand, is a duly elected public board with the specific responsibility of managing our water, and protecting our resources. They stand in a position of trust with the entire community, and are the one body uniquely able to ensure Serene Lakes, as a water supply, and as lakes with recreational, aesthetic, and wildlife values, are protected for all constituents.
Hence, I would urge the board to seriously consider the many reasons that necessitate either the purchase of the lakes and other parcels for fair market value, or, alternatively, condemnation in eminent domain.
Thank you for you consideration.
Sincerely,
Kathryn Gray
In an earlier piece, I stated that Sierra Lakes County Water District (SLCWD) relies on easements to carry on its normal business of protecting our water supply in Serene Lakes, and providing water to customers. Royal Gorge LLC, as you know, owns the lake bottom, the dam, and much of the green belt. As a point of clarification, SLCWD does own the narrow strip of land in Lake Serena where the intake pipe is. The pipe doesn't extend far out into the lake (or deep), which may present a problem in the future, as the district finds out more about the impact of our amazingly thick ice in winter on the ability to draw water.
Other operations involving the lake are carried out under easements. Delineating exactly what kind of easements are involved could keep property lawyers very, very busy. You see, SLCWD doesn't operate under any written agreement/license/easement with Royal Gorge LLC, but, rather, performs their business of providing our water just as they always have. That is no cause for worry, as there is more than one type of easement-- here, where SLCWD has been carrying on operations (pardon the invocation of legalese) "openly, notoriously, continually, and for a period of 5 years" (and then some!), an argument may be made that SLCWD has a prescriptive easement, which is a very nice thing to have. Of course, Royal Gorge LLC, or anyone they might sell their operations to in the future, could argue that SLCWD doesn't, and end up costing our district a whole lot of money to keep doing what they've always done.
One might, at this point, think SLCWD should just get permission from Royal Gorge LLC in writing to keep on doing what they're doing-- no muss, no fuss, right? Not exactly. First off, that prescriptive easement, if SLCWD has one, is a lot stronger than a mere license, as the owner of the lake bottom can't revoke it at will. And, if SLCWD were to have to rely on licenses/permission, and have to go hat in hand to Royal Gorge LLC to take actions to protect the greenbelt, in order to protect the water quality, or to seek an extension to put an intake pipe deeper in the lake, then Royal Gorge LLC (or subsequent owner), would have the ability to hold the district (and all of us) over the barrel to, perhaps, extract conditions that might not be favorable to SLCWD as a water supplier-- shall we call it watermail?
In my mind, this situation cries out for the exercise of eminent domain. SLCWD is a public agency, providing water, and needs to have not only access, but control over all elements that affect our water supply. Early on there were indications that the present owner of the lake bottom was unwilling to negotiate the sale of the lakes for a fair market value because they wished to use it as some sort of "bargaining chip" in procuring water from SLCWD (source: old SLCWD minutes). I find that thought odious, as SLCWD's only consideration here should be the maintenance and provision of water to customers in a fair, equitable way-- not negotiations with developers, whose interests could possibly be adverse to the health of the water supply.
There's an even more compelling reason for SLCWD to use its powers to take the lake bottom and shores in eminent domain (paying fair market value, of course). I've wondered why Royal Gorge LLC is so adamant about wanting to keep the lake in private ownership, and I think I've figured out one of their reasons. Royal Gorge LLC had proposed, as one of their water supply alternatives, raising the dam on Lake Dulzura. This would cause a long period of inundation of parts of the greenbelt, which Royal Gorge LLC owns, and some private lakeside property. Private property owners would object, and could seek to enjoin raising the dam under various legal theories, but unless SLCWD can demonstrate how raising the dam will harm water quality, by damaging the greenbelt/filter, excess sedimentation/turbidity/ damage to habitat, the owner of the lake/greenbelt can just thumb their nose, and say, "so sue me."
SLCWD has a duty to provide us safe, clean water year round. They should not have to worry about seeking legal advice, at great expense, every time they want to conduct operations to protect our water supply, and provide our water. Until they acquire the lake, bottom, sides, and dam, we should all be "Uneasy in Serene Lakes."
November 21, 2008
First off, here's a quick definition of eminent domain, courtesy of Nolo Press, folks I can't recommend highly enough:
The power of the federal or state government to take private property for a public purpose, even if the property owner objects. The Fifth Amendment to the United States Constitution allows the government to take private property if the taking is for a public use and the owner is "justly compensated" (usually, paid fair market value) for his or her loss. A public use is virtually anything that is sanctioned by a federal or state legislative body, but such uses may include roads, parks, reservoirs, schools, hospitals or other public buildings. Sometimes called condemnation, taking or expropriation.
Those of you who follow happenings at Sierra Lakes County Water District (SLCWD) know the topic of eminent domain has been percolating around for quite some time. SLCWD has the rights to the water in Serene Lakes, but because of the history of the development, not all of it blithe and carefree ( ugly wrangles and brangles that ended up in court, even), SLCWD did not acquire the actual receptacle, i.e. lake bottom and shore that holds the water they control. Apparently at one point some years ago, SLCWD's directors passed up the opportunity to purchase the lake bottom and shores lock, stock, and barrel, apparently relying on the good intentions of the then owner. Bad choice.
As things stand today, SLCWD has to use easements from the current owner, Royal Gorge LLC*, to perform day to day operations involving the lake and the dam. Much of the shoreline ringing the lake belongs to Royal Gorge LLC, so SLCWD is not able to manage it in a way that protects water quality. Working under the constraints of easements is, shall we say, less than ideal for SLCWD, because Royal Gorge LLC, or any subsequent purchaser, should there be one, can impede at will actions SLCWD might deem necessary, such as stopping a homeowner from cutting down all the trees in the greenbelt, for example, or passing ordinances to maintain the water level so as to protect the greenbelt, which is our lakes' big filter.
Acquiring the lake bottom through condemnation should be prudent, easy, and very inexpensive...unless.....
Let's take the prudent as a given, to enable SLCWD to act to protect the water supply without having to ask "mother may I" to Royal Gorge LLC every time they need to do something. Condemnation through eminent domain should be easy because, as per the above definition, acquiring land for a reservoir is not only well within the parameters of "public use", it's even given as an example of eminent domain. Plain vanilla. It's just horse sense that a water district should own the lake their water is in.
"Just compensation" isn't even that tough of an issue. Royal Gorge LLC has not been assessed, nor have they ever paid a crooked penny of property tax on the lake bottom parcel. The parcel came with the purchase of Ice Lakes Lodge, kind of riding piggyback. Placer County Tax Assessor considers the land unusable. Royal Gorge LLC can't build on it, and nobody but a water district would be willing to buy it from them. Calling it "open space", as they did on the plans they submitted a year ago November (time flies when you're having a good time), is patently ludicrous.
Here's where the "unless" comes in, though. Royal Gorge LLC, in the personage of their employee Mike Livak, is huffing, and puffing, and threatening to blow the eminent domain house down by, you guessed it, piling on the lawyers.
Which leads us to the curious question. Why all this bluff and bluster over a bog standard, plain vanilla eminent domain action? First off, why didn't they sell it at an agreed upon price to SLCWD years ago when they seemed to be negotiating -what changed their minds? Second, why are they costing all of us so much money in legal fees by throwing, or threatening to throw encrustations of quagga mussels, er lawyers, at SLCWD?
Are they hoping to get their very own water rights from the State Water Rights Control Board, and then claim they own the lake it's stored in, so we're compelled to purchase our water from them? Do they have a cunning scheme to interest a water privatizer (see articles of interest a few days ago down in Foster/Syme/ Royal Gorge LLC section of strand on Serene Lake's Property Owner's Forum ) in trying to take our water system private? Or do they have some other farfetched, concocted by high-priced water lawyers scheme that they can use the lake bottom and sides for that even I can't imagine?
Or are they just trying to hold our community, and the safety of our water supply hostage to their development plans, in hopes that some how, some way they're going to wear us all out, and let them drain our lakes every year?
This issue isn't about their development--it's about SLCWD not having to be threatened by lawyers when they're trying to carry out their duties as our water supplier--trying to protect the cleanliness of our water, the recreational qualities of our lakes, and the greenbelt that surrounds and protects our lakes.
For all of Royal Gorge LLC's talking of "private property rights", it's impossible for me to see what rational purpose they have for refusing to transfer the lake bottom to SLCWD for an agreed upon fair market value.
* Royal Gorge LLC is owned by San Francisco Bay Area Developers--Kirk Syme, Woodstock Development, and Todd Foster, and Mark Foster, both affiliated with Foster Enterprises. Both Syme, and the Fosters also own Rainbow Lodge, aka Rainbow Holding Company LLC.
November 19, 2008