State of California v. San Luis Obispo Sportsman's Assn.

• Decision Date: 13 October 1978
• Court: California Supreme Court
• Parties: , 584 P.2d 1088, 9 Envtl. L. Rep. 20,012 The STATE of California, Plaintiff and Respondent, City of San Luis Obispo, Plaintiff and Appellant, v. SAN LUIS OBISPO SPORTSMAN'S ASSOCIATION et al., Defendants, Cross-complainants and Respondents, State Department of Public Health et al., Cross-defendants and Respondents, Board of Trustees of California State University and Colleges, Cross-defendant and Appellant, Whale Rock Commission, Cross-defendant, Cross-complainant and Appellant. L.A. 30806.

Page 482

149 Cal.Rptr. 482

22 Cal.3d 440, 584 P.2d 1088, 9 Envtl. L. Rep. 20,012

The STATE of California, Plaintiff and Respondent City of San Luis Obispo, Plaintiff and Appellant, v. SAN LUIS OBISPO SPORTSMAN'S ASSOCIATION et al., Defendants, Cross-complainants and Respondents State Department of Public Health et al., Cross-defendants and Respondents Board of Trustees of California State University and Colleges, Cross-defendant and Appellant Whale Rock Commission, Cross-defendant, Cross-complainant and Appellant.

L.A. 30806.

Supreme Court of California.

Oct. 13, 1978.

[584 P.2d 1089] A. J. Shaw, Jr., City Atty., for plaintiff and appellant. Mayer Chapman and Robert J. Henry, Los Angeles, for cross-defendant and appellant.

William P. McWhinney, San Luis Obispo, for cross-defendant, cross-complainant and appellant.

No appearance for plaintiff and respondent.

Andre, Morris & Racouillat, Michael J. Morris, San Luis Obispo, Michael T. LeSage, Hart & LeSage, Paso Robles, Jon M. Jenkins and Wright and Jenkins, Atascadero, for defendants, cross-complainants and respondents.

Evelle J. Younger, Atty. Gen., R. H. Connett, Asst. Atty. Gen., and Raymond H. Williamson, Deputy Atty. Gen., for cross-defendants and respondents.

MANUEL, Justice.

The City of San Luis Obispo, the Trustees of the California State University and Colleges and the Whale Rock Commission appeal from a judgment directing the City of San Luis Obispo and the State of California, acting through the Whale Rock Commission, to provide adequate public access for fishing at Whale Rock Reservoir and to establish, operate and maintain a public recreational fishing program at the reservoir. ¹

The judgment represents the culmination of a lengthy process of negotiation and litigation directed toward determining whether the public has a right to fish at Whale Rock Reservoir and, if such right exists, the extent to which each of the respective parties bears a responsibility to finance a recreational fishing program at the reservoir. ² For reasons set forth below, we conclude that the judgment must be affirmed.

The Whale Rock Reservoir was begun in 1957 under the authority of a special legislative In contemplation of this project the city, the university and the prison in 1956 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 these applications in the interest of protecting the native fish. The department, however, withdrew its objections after an agreement (Fish and Game Agreement) was reached on October 21, 1957, between the city, the university, and the prison on one side, and the department on the other, regarding the preservation of fishlife at the reservoir.

[584 P.2d 1090] enactment (Stats.1957, ch. 1080, p. 2388). The state acquired the underlying land by purchase and by condemnation and constructed the reservoir jointly with the City of San Luis Obispo, which agreed to contribute 55 percent of the initial capital cost of the project. The purpose of constructing the reservoir was to impound and distribute water for domestic use, primarily to the City of San Luis Obispo, California State Polytechnic University and a nearby state prison. By further agreement, the state and the city established a joint-powers entity known as the Whale Rock Commission ³ to operate and maintain the reservoir.

The present proceeding was commenced in 1969 when the state and the city sought to enjoin trespassing or fishing at the reservoir to prevent possible contamination of the water, which is used for domestic consumption. In 1972, defendant San Luis Obispo Sportsman's Association cross-complained against the state, the city, the County of San Luis Obispo, the City of Morro Bay, the Whale Rock Commission and various state agencies, claiming a right to fish in the reservoir. Their cross-complaint was subsequently amended to claim that there was also a duty to fund an adequate public fishing program. After it became apparent that a properly supervised fishing program would not result in contamination of the water in the reservoir, the state altered its position by amending its answer to the cross-complaint to request an order from the court imposing liability for establishing a fishing program on the City of San Luis Obispo and the Whale Rock Commission. The Whale Rock Commission also filed a cross-complaint asking for declaratory relief to the effect that so long as the reservoir was not open to the public for fishing, unauthorized entry into the reservoir was without legal right.

After six years had passed, in the course of which the parties had unsuccessfully sought to reach a settlement, trial commenced in 1975. At trial the parties were aligned as follows: the Whale Rock Commission, the City of San Luis Obispo, the County of San Luis Obispo, the City of Morro Bay and the university trustees against the Sportsmen and all state agencies excepting the trustees. At the conclusion of the proceedings the court found that the public had a right to fish at the reservoir pursuant to the 1957 Fish and Game Agreement, article I, section 25 of the California Constitution, and section 5943 of the Fish and Game Code. The court further found that a properly regulated fishing program would not interfere with Whale Rock Reservoir's use as a domestic water supply, and that the public right to fish at the reservoir requires the city and the state acting through the Whale Rock Commission to fund such a program. The court apportioned the costs of a fishing program according to the joint exercise of powers agreement between the state and the city, dated December 12, 1960, in which the costs of operation and maintenance of the reservoir were divided among the city, the state university and the state prison. Judgment was entered accordingly, and this appeal followed.

Appellants dispute the trial court's finding of a public right to fish pursuant to article I, section 25 of the California Constitution, section 5943 of the Fish and Game

                [584 P.2d 1091] Code, and the Fish and Game Agreement. 4  They further dispute the trial court's conclusion that the public right to fish requires the city and the state, acting through the Whale Rock Commission, to provide an adequate fishing program at the reservoir.  We proceed with an examination of the disputed public right to fish and duty to provide a fishing program.
                

PUBLIC RIGHT TO FISH

Article I, Section 25

Article I, section 25 of the California Constitution 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 be statute, provide for the season when and the conditions under which the different species of fish may be taken."

Although title to the lands surrounding Whale Rock Reservoir is vested in the state, appellants argue that this property is not "public lands" within the meaning of article I, section 25 because it is being used for a special governmental purpose, i. e., as a domestic water supply reservoir.

The words "public lands" must be interpreted to give effect to the intent of the voters in adopting this constitutional amendment. (Kaiser v. Hopkins (1936) 6 Cal.2d 537, 58 P.2d 1278.) Evidence of this intent may be found in the argument submitted to the voters in support of the amendment. (Carter v. Com. on Qualifications, etc. (1939) 14 Cal.2d 179, 93 P.2d 140.) The argument submitted to the voters in 1910 indicates that the amendment was aimed at protecting the public's right to fish upon and from state-owned land and to prevent the state from disposing of land without reserving that right. ⁵ Although the framers and electorate appear to have contemplated that this amendment would apply to property subsequently acquired by the state, it does not appear that they contemplated or intended that it would apply to state-owned lands which are used for a governmental purpose that is incompatible with use by the public for fishing. Illustrative uses are prisons and mental institutions. We do not, however, think that it was the intent of the framers and voters to exclude from the reach of this amendment all state-owned land acquired for Any governmental purpose since all state acquisitions of land are in fact made for some state purpose. Thus, we interpret the words "public lands" in article I, section 25 as meaning state-owned land the use of which by the state is also compatible with use by the public for purposes of fishing. Only property which is being used for a special purpose that is incompatible with its use by the public for example, lands used for prisons or mental institutions does not fall within the scope of this constitutional provision. ⁶

Use of a domestic water supply reservoir for public recreational fishing is not necessarily incompatible with its primary purpose since many domestic water supply reservoirs throughout the state provide public fishing programs without any health hazard to the users of the water. Although there may be domestic water supply reservoirs at which such use is incompatible with public fishing, ample evidence supports the trial court's finding in this case that a properly implemented public recreational fishing program at Whale Rock Reservoir would not interfere with its function as a domestic water supply reservoir. We therefore conclude that article I, section 25 applies to the state-owned lands surrounding Whale Rock Reservoir.

This conclusion, however, does not end our...