City of San Luis Obispo, Plaintiff and Appellant, v. Trustees of the California State University and Colleges and Whale Rock Commission, Defendants and Appellants. (1977)

ORDER

The City of San Luis Obispo (City), the trustees of the California State University and Colleges (College), and the Whale Rock Commission (Commission) appeal from a judgment of the trial court ordering the City and the State together, acting by and through the Commission, to provide adequate public access for fishing to Whale Rock Reservoir, and to establish, maintain, and operate an adequate public recreational fishing program at Whale Rock Reservoir. The judgment further divided the cost of the program as 55.05 percent to City, 33.71 percent to College, and 11.24 percent to the California Department of Correction (prison).¹

The judgment is the end of a lengthy series of litigation and efforts at settlement regarding fishing rights at the Whale Rock Reservoir and, if such rights are granted to the fishermen, the source of financing for said fishing program. In 1969, the State and City filed a complaint alleging the danger of trespassing fishermen and the resultant contamination of water at the Whale Rock Reservoir. The complaint asked for a temporary restraining order, a preliminary injunction, and an injunction prohibiting people from entering, loitering, and fishing on the Whale Rock Reservoir project property without written authorization from plaintiff Commission or its authorized representative. In 1972, defendants San Luis Obispo Sportsmen's Association and three individuals cross-complained against City, County of San Luis Obispo, City of Morro Bay, Commission, and various other agencies of the State of California. Cross-complainants asked for an order compelling cross-defendants to provide fishing in Whale Rock Reservoir with appropriate regulations, control, and management. Commission filed a cross-complaint to the cross-complaint asking for declaratory relief that so long as Commission and the State Department of Health do not open the reservoir to public fishing, unauthorized entry into said reservoir grounds for purposes of fishing is without legal right.

Before, during, and after the filing of these various pleadings, all parties were engaged in various court activities, administrative hearings, and efforts at settlement. The trial with which we are concerned was eventually bifurcated into the issues of (1) whether the public had a legal right to fish at Whale Rock Reservoir, and (2) if so, how any fishing program was to be financed. Counsel stipulated to the facts as amended and also stipulated that all previous hearings may be considered by the court as evidence.

FACTS:

The facts found by the trial court are not seriously disputed. They are as follows:

The Whale Rock Reservoir was created pursuant to a 1957 statute (Chapter 1080, Statutes of 1957). Thereafter the State acquired the land by outright purchase and by condemnation action, and took title and entered into an agreement with City. Pursuant thereto, State and City in 1969 constructed the reservoir. The purpose was to impound and distribute water for domestic use primarily to City, College, and prison, all located nearby. In 1957 City and two state agencies, College and prison, filed applications with the State Water Rights Board for permits to appropriate water from the reservoir. The Department of Fish and Game filed an objection to the applications. The permits were granted after an agreement was reached between the City and the state agencies (College and prison) on one side with another state agency (the Department of Fish and Game) on the other side. The permit referred to the agreement by language: ‘This permit is expressly subject to the agreement . . ..’ The agreement was written and is dated October 21, 1957. It recited the reasons for the withdrawal of objection by Fish and Game as follows:

‘Whereas the California Department of Fish and Game has determined that, if the applicants agree to maintain the pool in the proposed Whale Rock Reservoir, as hereinafter provided, for the habitation of fish life and related recreation, and if the proposed condition herein agreed upon is inserted in the permits and licenses issued pursuant to the above identified applications, the interest of the people of this state in the fisheries and recreational resources involved will be adequately protected and the protest of the California Department of Fish and Game to the above identified applications may be considered withdrawn and may be disregarded; and

‘Whereas the applicants have determined that such a pool can be maintained as hereinafter described without diminution in the firm quantity of water that can be obtained from the Whale Rock Project for other beneficial uses and are willing to cooperate with the California Department of Fish and Game in the interest of maintaining the fisheries and recreational resources for the People of this State.’

The State and City are both owners of the Whale Rock project. The State acquired the land for the project and the City contributed 55 percent of the capital cost to the project, making it a joint project between the City and State.

By further agreement State and City established the Commission to operate the reservoir, establish policies to allocate costs of operation by City, College, and prison, and conduct other necessary affairs of the project.

The project impounds a water course known as ‘Old Creek’ and its tributaries, the waters of which were naturally frequented by migratory fish including steelhead trout. The annual and seasonal migration of steelhead at the site of said project varied from 200 fish in dry years to 1500 fish in wet years. Old Creek and its tributaries were used for recreational fishing for many years prior to the construction of Whale Rock Dam and Reservoir.² The project as constructed interferes with the passage of fish. Eventually, after hearings the Department of Fish and Game ‘ordered’ that Commission annually plant a certain number of fish. The Commission refused and has not done so.

A part of the project property was formerly known as the ‘La Monk’ property and was acquired by State through condemnation action. The final order of condemnation ordered that title be vested in the State with the following language:

‘It Is Hereby Ordered, Adjudged and Decreed: That said plaintiff shall take the said Parcels 2A, 2B, 2C and 5 free and clear of all claims, liens, encumbrances, easements, leaseholds, taxes and assessments, both current and delinquent, including penalties and costs of whatsoever kind and nature, excepting and subject only to the following:

‘. . .

‘(7) The absolute right of the People to fish upon said Parcels 2A, 2B, 2C and 5, except the south half of the southeast quarter of Section 26, as provided by the Constitution of the State of California.’

The recital in the trial court's order of the foregoing item No. ‘(7)’ as an exception to the free and clear title taken by the state as the new owner, was but the perpetration of an error. The record is clear that the ‘exception’ or ‘presence’ of the exception first appeared in any form by reason of being listed as an exception to the insurance of title issued by a title company in 1952. The refusal of the title company to insure against the possible exercise of such a claimed right did not create any such right nor was that refusal equivalent to a correct recognition of any such existing right in the public. There was no such ‘absolute right’ as we explain in our discussion below.

During the time that litigation was pending, meetings and hearings were held, tentative plans for resolution of the questions were proposed and at one time appellant Commission approved a plan to allow fishing in a small area. However, nothing was done to implement this plan. Commission took the view that neither it nor City, College, or prison should be required to finance the recreational fishing at the reservoir. Another plan for fishing was approved by State. No fishing has been provided for or allowed by Commission since the construction of the reservoir in 1959. The trial court additionally found that fishing if supervised properly would not be a hazard to the domestic use of the water. The court relied on the fact that fishing is allowed at many other domestic supply reservoirs.

CONTENTIONS ON APPEAL:

1. There is no constitutional, statutory, or contractual right of the public to enter the grounds or to fish at Whale Rock Reservoir.

2. Even if such a right to fish exists, appellants are not financially obligated to fund part of the capital outlay or maintenance costs of any such fishing program.

DISCUSSION:

1. The contractual right.

An agreement between the California Department of Fish and Game, the City of San Luis Obispo, the Department of Corrections (California Men's Colony), and the Department of Education (California Polytechnic College), dated October 21, 1957, provided for the withdrawal of protests by the Department of Fish and Game to granting permits for the Whale Rock Reservoir.

‘WHEREAS, the California Department of Fish and Game has determined that, if the Applicants agree to maintain the pool in the proposed Whale Rock Reservoir, as hereinafter provided, for the habitation of fish life and related recreation, and if the proposed condition herein agreed upon inserted in the permits and licenses issued pursuant to the above identified applications, the interests of the People of this State in the fisheries and recreational resources involved will be adequately protected and the protest of the California Department of Fish and Game to the above identified applications may be considered withdrawn and may be disregarded; and

‘WHEREAS, the Applicants have determined that such a pool can be maintained as hereinafter described without diminution in the firm quality of water that can be obtained from the Whale Rock project for other beneficial uses and are willing to cooperate with the California Department of Fish and Game in the interest of maintaining the fishery and recreational resources for the People of this State; [a minimum pool will be preserved].’ (Emphasis added.)

The trial court found that the plain meaning of this agreement was that the permit applicants would provide for recreational use of Whale Rock Reservoir, which would in this case be fishing. We agree that any other interpretation of that language would be convoluted. There is no reason to read the language in any way other than that as interpreted by the trial court. Therefore, if the parties have standing to raise the issue, this agreement does provide for fishing rights at the Whale Rock Reservoir, assuming protection of the quality of the water can be maintained without diminution. The California State Department of Fish and Game, which was a party to the agreement, is a cross-defendant in this action and has standing to enforce its terms.

2. The statutory and constitutional arguments.

Since we have determined that there is a contractual right to fish at the Whale Rock Reservoir, we need not decide whether there is also a statutory or a constitutional right³ to do so. But we deem it appropriate to mention briefly the constitutional issue strongly urged by appellants. Article 1, section 25, of the California Constitution does not automatically create a right to fish at Whale Rock Reservoir. The fact that the state acquired the property did not make the now-state-owned property ‘public lands.’ All publicly owned property is not necessarily ‘public lands' to which the right of fishing thereon or therefrom applies under operation of the constitutional provision. (In re Quinn, 35 Cal.App.3d 473, 110 Cal.Rptr. 881.) The La Monk property was at the time of the taking by the state, and at all times prior thereto,⁴ had been private property. As such, the presence of a non-navigable stream or creek thereon with or without fish therein, did not give any person any right to enter to fish thereon. The English common law relative to owners of real property applies unless repugnant to constitutional or statutory provision. (Irwin v. Phillips, 5 Cal. 140; Lux v. Haggin, 69 Cal. 255, 4 P. 919; Crandall v. Woods, 8 Cal. 136, 51 Cal.Jur.2d, Waters, § 14, p. 466; see People v. California Fish Co., 166 Cal. 576, at p. 601, 138 P. 79; San Bernardino v. Riverside, 186 Cal. 7, 198 P. 784; Chow v. City of Santa Barbara, 217 Cal. 673, 22 P.2d 5.) Under common law the stream, subject only to riparian rights to take water, belonged to the property owners the La Monk family. Riparian rights have nothing to do with any claimed right to fish and no such claim is made here.

However, we must decide, if as urged by some appellants, the statutes prohibit fishing. Because of the contract herein, the issue is not whether the owner or operator of the reservoir must open the reservoir to the public for fishing.⁵ The issue is whether the statutes permit public fishing at Whale Rock Reservoir.

Section 5943 of the Fish and Game Code provides:

‘The owner of a dam shall accord to the public for the purpose of fishing, the right of access to the waters impounded by the dam during the open season for the taking of fish in such stream or river, subject to the regulations of the commission.’ (Emphasis added.)

Section 4462 of the Health and Safety Code provides:

‘A city, city and county, district or other public agency, owning or operating a reservoir used for domestic or drinking water purposes, may open to public fishing all or any part of the reservoir and its surrounding land.’ (Emphasis added.)

However, section 4464 of the Health and Safety Code provides:

‘Public fishing shall not be conducted in a reservoir or on its surrounding land if the reservoir is used as a regulating reservoir to meet daily or peak consumption demands and as a terminal reservoir to a water collecting facility and as a distribution reservoir from which water may be supplied for drinking or domestic purposes without full purification treatment after withdrawal from the reservoir.’ (Emphasis added.)

There is substantial evidence that Whale Rock is a ‘terminal reservoir’ within the meaning of Health and Safety Code section 4464. There is also evidence that, at least as to emergency water for the City of Morro Bay, Whale Rock Reservoir is a ‘distribution reservoir from which water may be supplied for drinking or domestic purposes without full purification treatment after withdrawal from the reservoir.’ If Whale Rock Reservoir is also a ‘regulating reservoir to meet daily or peak consumption demands' then according to section 4464 of the Health and Safety Code, public fishing shall not be conducted thereon. We find no evidence, however, that Whale Rock is also used as a ‘regulating reservoir.’ While appellants would have us read section 4464 with ‘and’ meaning ‘or,’ we think that section 4464 is a legislative determination that when a reservoir is used for all three of these purposes, all relating to domestic drinking water, public fishing shall not be conducted. Section 4464, if constitutional,⁶ sets forth a series of conditions which might well produce a ‘compelling state interest’ in prohibiting public fishing in a reservoir or on its surrounding land. Appellants have not shown us, however, that Whale Rock Reservoir does fit within section 4464. All the other sections to which we are cited permit and even encourage public fishing and multiple use of public waters. Given those sections, the fact that Whale Rock Reservoir apparently does not fit within the proscription of Health and Safety Code section 4464, and the terms of the agreement between the parties, we agree that there is no statutory prohibition to fishing at Whale Rock Reservoir.⁷

3. The financing of the fishing program.

The trial court ordered that ‘The City of San Luis Obispo and State, acting by and through the Whale Rock Commission shall provide adequate public access for fishing to Whale Rock Reservoir, and shall further establish, maintain, and operate an adequate public recreational fishing program at Whale Rock Reservoir. The cost of said program shall be borne as follows: 55.05% by the City of San Luis Obispo, 33.71% by the Board of Trustees of the California State University and Colleges, California Polytechnic State University, 11.24% by the California Department of Corrections, California Men's Colony.’ Appellants, even if it be conceded that there is a right to fish, contest their obligations to pay for any fishing program.

As noted by the trial court in the findings, appellants agreed in the document dated October 21, 1957, to protect and maintain the recreational resources of Whale Rock Reservoir. By so doing, they implicitly agreed to finance or at least bear their fair share of such recreational resources; otherwise, the agreement would be meaningless. The trial court's allocation of the costs of the program appears fair and reasonable.

The judgment is affirmed.

FOOTNOTES

1.  The judgment further ordered Commission to plant fish at such time and in such numbers as stated in the orders of the California Fish and Game Commission. However, the briefs on appeal do not contest this part of the judgment.

2.  There was no evidence or finding that this use was in any way lawful or more than tolerated—or that it ripened into any ‘right.’

3.  Article 1, section 25, of the California Constitution certainly does not prohibit fishing. It provides:‘The people shall have the right to fish upon and from the public lands of the State and in the waters thereof, excepting upon lands set aside for fish hatcheries, and no land owned by the State shall ever be sold or transferred without reserving in the people the absolute right to fish thereupon; and no law shall ever be passed making it a crime for the people to enter upon the public lands within this State for the purpose of fishing in any water containing fish that have been planted therein by the State; provided, that the Legislature may by statute, provide for the season when and the conditions under which the different species of fish may be taken.’This section of the California Constitution has been interpreted in In re Quinn, 35 Cal.App.3d 473, 110 Cal.Rptr. 881.

4.  A small parcel was at one time conveyed to a school district and then reconveyed back to one of the La Monks.

5.  All parties seem to agree that this question is resolved by harmonizing, or at least trying to reconcile, section 5943 of the Fish and Game Code with Health and Safety Code sections 4050, 4051, 4054, 4055, 4462, 4464, and Water Code section 106.

6.  We need not and therefore do not discuss or decide whether such statute is or is not constitutional.

7.  We emphasize that in the instant case, public fishing at the reservoir, as long as there is adequate surveillance, apparently does not constitute a health hazard. The trial court repeatedly stressed that if fishing were a health danger, there would be no fishing at Whale Rock Reservoir. Various health officials testified that either plan is acceptable from a health standpoint. Tim Gannon, the area engineer for the State Department of Public Health testified he had assurances from the Commission, the City, and the court that if fishing affects water quality, the fishing would stop. Therefore, given these assurances by all parties, the health factor need not now be considered by this court in this particular case.

BEACH, Associate Justice.

ROTH, P. J., and FLEMING, J., concur.