August 9, 2007
North Tahoe’s Speedboat Beach is well known for the scenic granite boulders jutting out of the lake, clear waters and endless controversy between private land and public access.
Also known as Buck’s Beach, the stretch of sand is bisected by a long, metal fence running down the beach to the water ” hindering public access to a substantial part of the beach that is lined with lakefront homes.
California law grants the public access between the high- and low-water mark of any shoreline within the state’s jurisdiction ” which prompts some to question the fence’s legality.
“Where is the mark? We won’t go past that, but then you need to take down your huge, long fence,” said Laurel Whaley, a Kings Beach resident who frequents Speedboat Beach. “[The fence] goes straight down into the water.”
On the California side of Lake Tahoe, visitors can walk across any beach or swim in the water, so long as they do not wander above the high-water line, said Placer Sheriff’s Capt. Jeff Granum.
“[Shoreline public access] isn’t always entirely clear,” Granum said. “After all, it is their property and any property owner can put up a fence.”
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The Speedboat fence was permitted by the Tahoe Regional Planning Agency, said Chief of Communications Julie Regan. But despite the barrier the fence poses to access, the beach beyond the fence ” though seemingly private ” is within the public trust and available for public use so long as any use is below the high-water mark and in California, Regan said.
“Those types of structures, people should be able to go under, around or over,” said Barbara Dugal, chief of the Land Management Division of the California State Lands Commission.
Similar disputes between lakefront property owners and the public that wants access are echoed around Lake Tahoe’s coveted shoreline, except in Nevada where no such public trust exists.
Anyone found walking between the high- and low-water mark in front of private property in Nevada can be arrested for trespassing, Granum said.
According to the Public Trust Doctrine at Lake Tahoe that was issued by the State of California Department of Justice, lands located between the high mark of 6,228.75 feet above sea level and the low mark of 6,223 feet are subject to a public trust that allows commerce, navigation, fishing, recreation and the preservation of land.
But, enforcing such access is often a gray area.
“First of all, we are not surveyors, and we cannot determine on a beach where that [high and low] mark is,” Granum said.
Second, interpretation of the law is often left to attorneys, Granum said. The law is unclear on whether sitting or spending extended periods of time ” perhaps with music, chairs or ice chests ” on the public trust in private property is permitted, he said.
“We know for sure that they can walk across the property, but what we don’t know is if they can park there and picnic,” Granum said.
Third, some landowner’s deeds show that they own up to the high water mark, whereas other homeowners own and pay taxes up to the low water mark, Granum said.
Dugal said public trust rights are placed above private property rights.
“Everyone has a responsibility for ensuring that the public trust is enforced,” Dugal said. “It’s not just the State Lands Commission. It’s the responsibility of all agencies and the public.”
The Tahoe Regional Planning Agency, the Department of Fish and Game, the Lahontan Water Quality Board and the Army Corps of Engineers, in addition to the State Lands Commission, are all agencies that hold an obligation to enforce the public trust.
“If the public saw something that they felt limited their ability to exercise their public trust rights, they need to call somebody and let them know ” which people do,” Dugal said.
Access to the public trust is primarily enforced through the permitting process before a structure is built.
“When we look at a new project, we try to look at what impact that would have on the public trust,” said Assistant Chief Counsel Curtis Fossum of the State Lands Commission.
The Tahoe Regional Planning Agency’s Shorezone plan, a proposed general plan that would regulate piers, buoys and Tahoe’s shoreline over the next 20 years, incorporates regulations that would enforce the public trust through the design and permitting process of new structures, Regan said.
“Making sure that piers are designed correctly to ensure public access is where we have the ability to help the state” enforce the public trust, Regan said in a phone interview.
Dugal said the State Lands Commission has been actively involved in the Shorezone plan and has been very concerned with the plan’s potential interference with public access.
But when it comes to existing structures that block public shoreline access, enforcement becomes even more gray.
The State Lands Commission has the ability to request improvements to structures in the public trust, Fossum said. But if the structure was lawfully constructed, the commission must pay for any remedial action.
Fossum and Dugal said the commission has never requested that any legal structure be taken down in the Tahoe basin.
If the structure was not lawfully constructed, the cost must be born by the property owner. Such action has occurred in Tahoe, Dugal said.
The Tahoe Regional Planning Agency has limited, if any, enforcement capacity when it comes to existing structures, Regan said.
“We have more effect on new projects or modifications … than we do to existing piers that perhaps they’ve been there maybe 30 years before we even had our rules in place,” Regan said.
The bistate planning agency has the ability to issue penalties for noncompliance with a permit, Regan said. Public access comes as a secondary issue.
“[Public trust enforcement] really is the ultimate responsibility of the California State Lands Commission because they are the property owner of the lake,” she said. “Our way of being the most effective is with the permit process.”