1 navigable in factthat is, for title purposesand that the STATE OF CALIFORNIA thus owns the

2 lands constituting the bed of Donner Lake.

3 3. Plaintiff contends that the lake is not navigable in fact, and that the STATE OF
4 CALIFORNIA owns none of it. In the alternative, Plaintiff contends that if the lake is navigable in
5 fact, the STATE OF CALIFORNIA owns only those lands below the ordinary low water mark,
6 which lies at the elevation of 5924 feet.
7 4. Plaintiff brings this suit in part to obtain declaratory relief on the ownership interests
8 of its members.
9 PARTIES
10 5. SOS DONNER LAKE is a California non-profit mutual benefit corporation.
11 Members of SOS DONNER LAKE have been and currently are owners in fee simple absolute of
12 real property and improvements bordering on, and within the bed of, Donner Lake. Plaintiff sues on
13 behalf of its members, to assert and protect their legal rights, and on behalf of itself.
14 6. Defendant STATE OF CALIFORNIA is a state of the United States, admitted to the
15 union on September 9, 1850 by an Act of Congress. The STATE LANDS COMMISSION is an
16 agency of the STATE OF CALIFORNIA, created by the Legislature in the State Lands Act of 1938.
17 Based upon Public Resources Code sections 6216, 6301, and others, the STATE LANDS

18 COMMISSION has jurisdiction over certain ungranted tidelands, submerged lands, swamp and

19 overflowed lands, and beds of navigable rivers and lakes lying within the exterior boundaries of the

20 State of California.

21 7. JENNIFER LUCCHESI is Executive Officer of STATE LANDS COMMISSION.

22 She is named in her official capacity.

23 8. The true names of Does 1 through 20 are unknown to Plaintiff, who therefore sues

24 them under these fictitious names. Plaintiff is informed and believes that each of the Does are

25 responsible in some manner for the events that give rise to this suit, and are liable in some manner

26 for those events.

27

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 1 JURISDICTION AND VENUE
2 9. A superior court has jurisdiction over claims brought under Code of Civil Procedure
3 section 1060, which provides for declaratory relief.
4 10. Venue is proper in the County of Nevada under CCP 392(a)(1) and under CCP
5 393 because the land at issue is located in Nevada County, California.
6 FACTS
7 11. Donner Lake has been and remains a nontidal water body.
8 12. In 1850, when California entered the union, Donner Lake, in its natural and ordinary
9 condition, was neither susceptible to being used, nor was it actually used, as a highway for
10 commerce within the sense articulated in numerous decisions of the United States Supreme Court.
11 13. By statute, the California Legislature has established that certain water bodies are
12 navigable. Donner Lake has not been so declared a navigable water body.
13 14. In 1865 and 1866, the United States General Land Office (now the U.S. Bureau of
14 Land Management) surveyed the townships in which Donner Lake is situated, along with the
15 meander line around Donner Lake. The eastern quarter of Donner Lake is located in section 18 of
16 Township 17 North Range 16 East Mount Diablo Meridian. The western three quarters of Donner
17 Lake are located in sections 13 and 14 of Township 17 North Range 15 East Mount Diablo

18 Meridian.

19 15. While surveying the meander line, the General Land Office established meander

20 corners by creating rock monuments at the ordinary high water mark where the section and township

21 lines intersected Donner Lake. In Township 17 North Range 15 East Mount Diablo Meridian, two

22 meander corners were set at an elevation of 5926 feet.

23 16. The elevation of the ordinary low water mark of Donner Lake is approximately 5924

24 feet

25 17. In 1927 and 1928, a concrete dam was built with a spillway crest at 5936.8 feet

26 elevation, which resulted in Donner Lakes water being raised higher than its natural level.

27 18. Recently, through their words and conduct, Defendants have asserted ownership over

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 1 the bed of Donner Lake, including for structures above 5924 feet and below 5933.8 feet.
2 19. California Civil Code section 830 provides, in relevant part, that, except where the
3 grant under which a land is held indicates a different intent, where uplands border upon a nontidal,
4 nonnavigable water, the owner takes to the middle of the lake or stream; and when uplands border
5 upon a navigable lake or stream, where there is no tide, the owners take to the edge of the lake or
6 stream, at the low-water mark.
7 20. Based on Civil Code section 830, if Donner Lake is legally nonnavigable, Defendants
8 have no ownership interest whatever, and the waterward property boundaries of Plaintiffs members
9 are the middle of Donner Lakeunless their grant indicates a different intent.
10 21. At least some of the grants to Plaintiffs members do not indicate an intent different
11 than the default rule of Civil Code section 830.
12 22. Based on Civil Code section 830, if Donner Lake is determined to be navigable, the
13 landward property boundary of Defendants ownership is the ordinary low water mark of Donner
14 Lakeunless Defendants can show a grant of land to them from the private owners of property
15 along the lake.
16 23. At least some of Plaintiffs members have not granted their property along the lake to
17 Defendants.

18 24. Defendants have enacted regulations, scheduled to become effective on January 1,

19 2017, creating a quasi-criminal administrative adjudicatory enforcement procedure for structures that

20 allegedly are on Defendants land. Those regulations (Regulations) are codified in Article 14, of

21 Chapter 1, of Division 3, of Title 2 of the California Code of Regulations.

22 FIRST COUNT

23 (Declaratory Relief Re: Ownership)

24 25. Plaintiff incorporates by reference paragraphs 1 through 23 above.

25 26. The Declaratory Relief Act (CCP 1060 et seq.) provides that where there is an

26 actual controversy between the parties, a court may provide declaratory relief.

27 27. An actual controversy has arisen and now exists between Plaintiff and Defendants

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 1 over ownership of the bed of Donner Lake.
2 28. Plaintiff is entitled to declaratory relief.
3 SECOND COUNT
4 (Declaratory Relief Re: Validity Of Regulations)
5 29. Plaintiff incorporates by reference paragraphs 1 through 3, 5 through 9, and 24 above.
6 30. Government Code 11350 allows any interested person to obtain a judicial
7 declaration as to the validity of any regulation by bringing an action for declaratory relief.
8 31. A regulation may be declared to be invalid, including for a substantial failure to
9 comply with the California Administrative Procedure Act or for there being substantial evidence in
10 the record conflicting with the agencys declaration about the economic impact of the regulation.
11 32. The Regulations substantially fail to comply with the California Administrative
12 Procedure Act, including because:
13 a. The California Administrative Procedure Act requires regulations to be
14 supported by authority which permits or obligates the agency to adopt, amend, or repeal
15 them. No authority authorizes Defendants to adopt regulations to adjudicate bona-fide title
16 or boundary disputes. To the extent the Regulations would allow Defendants to adjudicate
17 bona-fide title or boundary disputes, they are not supported by authority and violate the

18 California Administrative Procedure Act.

19 b. The California Administrative Procedure Act requires regulations to have

20 clarity, in the sense that they are written so that their meaning will be easily understood by

21 those persons directly affected by them. To the extent the Regulations would allow

22 Defendants to adjudicate bona-fide title or boundary disputes, that meaning is not clear from

23 the text of the Regulation.

24 c. The California Administrative Procedure Act requires regulations to have

25 consistency, in the sense that they are in harmony with, and not in conflict with or

26 contradictory to, existing statutes, court decisions, or other provisions of law. To the extent

27 the Regulations would allow Defendants to adjudicate bona-fide title or boundary disputes,

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 1 they are not consistent with the law, which does not authorize Defendants to adjudicate bona-
2 fide title or boundary disputes and which requires that such disputes be resolved in the first
3 instance by the courts, not administrative agencies. The Regulations also provide
4 constitutionally inadequate notice and hearing procedures, including because the Regulations
5 do not provide adequate time to prepare or present a defense and do not provide for cross-
6 examination as a matter of right.
7 d. The California Administrative Procedure Act requires regulations to be
8 nonduplicative. To the extent the Regulations would allow Defendants to adjudicate bona-
9 fide title or boundary disputes, they inappropriately duplicate court procedures provided by
10 other statutes for resolving bona-fide title or boundary disputes.
11 33. Substantial evidence exists in the record contradicting Defendants declaration of no
12 significant statewide economic impact. The STATE LANDS COMMISSION currently meets just
13 six times a year and a typical meeting agenda already includes more than 100 other items to
14 consider. Adding the adjudicatory proceedings contemplated by the Regulations would have a
15 significant statewide economic impacts because doing so would either require significant additional
16 STATE LANDS COMMISSION resources of staff and commissioners, or the deferral or removal of
17 consideration of other items that are on a typical STATE LANDS COMMISSION meeting agenda.

18 34. An actual controversy has arisen and now exists between Plaintiff and Defendants

19 over the validity of the Regulations, including whether the Regulations are invalid to the extent they

20 would allow Defendants to adjudicate bona-fide title or boundary disputes and whether they provide

21 for constitutionally adequate notice and hearing procedures.

22 35. Plaintiff is entitled to declaratory relief.

23 PRAYER FOR RELIEF

24 Plaintiff respectfully requests the following relief:

25 1. A declaration that Donner Lake is not navigable in fact and therefore that Defendants

26 hold no title or other real property interest to the land underlying the lake, except where Defendants

27 may have been privately granted such an interest;

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