By Jennifer Henion
Triplicate staff writer
An effort is afoot by the Del Norte County Board of Supervisors to gain some control of the Lake Earl breach site, owned by the state.
Ultimately, the board may file a lawsuit against the California State Lands Commission, the body that has refused the county right-of-way to the breach site without a permit.
"It's not a lawsuit, it's an idea of a lawsuit. It has to do with a fairly technical interpretation of the law," said Del Norte County counsel Bob Black.
The board and its counsel discussed the matter in closed session Tuesday.
The issue is whether the supervisors, acting as the county's flood control district board, can gain right-of-way over state lands to carry out its role of preventing or relieving flood conditions.
Property owners of land near Lake Earl say they are flooded during the winter rains if the lake is not regularly breached.
But to breach the state-owned sandbar separating the wetland lake from the ocean, the county currently must suffer the arduous process of procuring permits from the State Lands Commission, Fish and Game, the Coastal Commission and the Army Corps of Engineers.
The county board is hoping to make that list shorter by asserting it's alleged right-of-way, according to Black.
The county bases its assertion on a 1955 law regarding the formation of Del Norte's flood control district, presided over by the supervisors.
"The State Lands Commission has one interpretation (of the statute) and the flood control district has another," Black said.
The specific statute at issue reads in part:
"There is hereby granted to Del Norte County Flood Control District the right of way ... over and across public lands of the state ... for the protection thereof. Whenever any selection of a right-of-way for such works ... is made by the district, the board thereof must transmit, to the State Lands Commission, the controller of the state and the recorder of the county, a plat of the lands selected ... If the State Lands Commission shall approve the selections so made, it shall ... issue to the district a permit to use such right-of-way."
Black said the flood control district interprets the statute to say the breach site can be accessed and breached by simply registering its project with State Lands, instead of going through a permit process with State Lands.
Even if the flood control district (Board of Supervisors) is right, it will still need permits from Fish and Game, Army Corps of Engineers and the Coastal Commission.
Black said the Board of Supervisors asked him to look into the statute after the latest attempt by the board to get a permit to breach the lake at five feet was shot down.
"As part of the five-foot breach application, the board voted to be involved in (with the Pacific Shores Water District), there was an item in it asking the State Lands Commission to recognize the right-of-way," Black said.
State Lands refused the county that recognition in that context.
Black said there is no lawsuit going forward at this time but a discussion item titled "Del Norte County Flood Control District vs. State Lands Commission" is included in the supervisors' meeting agenda under the heading "anticipated litigation."
Black said it is on the agenda in that form to allow the board to discuss the issue in closed session.