A Law Reborn

But what had happened? How had the anglers found the key that Audubon and the Mono Lake Committee, for all their court achievements, had missed?

The state has had stream protection laws since the 1800s. In 1937, the legislature wrote the language now found in the Fish and Game Code at section 5937: "The owner of any dam shall allow sufficient water at all times . . . to pass over, around or through the dam, to keep in good condition any fish that may be planted or exist below the dam."

This directive seems perfectly clear. But in fact, from the moment of its passage the law was evaded, interpreted almost out of existence, and simply ignored.

An early blow to 5937 occurred in 1940, with the signing of the Hot Creek Agreement between the Department of Water and Power and the California Department (formerly Division) of Fish and Game. This agreement, we recall, seemed to permit the drying-up of the Mono Basin creeks and also the Owens River below the new Long Valley dam, exempting those streams from the requirements of the code.

A second blow fell in 1951. A big new federal dam had just gone up on one of California's major rivers, the San Joaquin. The Friant dam blocked the river where it leaves

the foothills of the central Sierra Nevada to meander through the flat San Joaquin Valley. The dam operator, the U.S. Bureau of Reclamation, proposed to let only the merest trickle of river pass the dam; fifty-six miles of the San Joaquin would go nearly or entirely dry. Downstream landowners sued in state court, charging that the federal bureau must obey the state Fish and Game Code.

The state made a move to support the landowners, then withdrew in confusion: its wildlife and water bureaucrats disagreed. They bucked the question up to the attorney general of the day, a bright young man (and future governor), Edmund G. "Pat" Brown. Brown could have sidestepped the issue by disclaiming state authority over a federal dam. Instead, he took dead aim at 5937. The legislature, he said, could not possibly have meant what it said in that law. Other statutes, he pointed out, seemed to contradict it. It could only, he suggested, apply to streams where there was water to spare; it did not affect a dam-builder whose water rights included the entire flow. In other words, 5937 applied only where it was not needed.

After the Brown opinion, section 5937 fell into a kind of dormancy. The law was not a secret: environmentalists were aware of it; it was cited in government documents; a few brave local fish and game officials, unaware of the chilling opinion, even enforced it. But whenever the top brass heard about such enforcement, it was stopped.

In 1974 another attorney general, Evelle Younger, overrode Pat Brown's interpretation. Even after that, though, the code was not enforced. The concern seems to have been that the law, taken literally, was too strong. It was feared that rigorous stream protection would inconvenience water projects up and down the state, enrage the water lobby, and lead to outright repeal. One might ask what good a dead-letter statute was doing; but Fish and Game people felt they got some mileage out of 5937 by using it as a lever in negotiations with water users.

In 1971 California Trout was formed. Executive Director Richard May was well aware of 5937. He encountered the "Use it and lose it" argument but thought, "What's to lose if we can't use it?" He was itching for a test case. Then Dick Dahlgren came forward.

Rush Creek, a nationally known fishing stream in the 1930s, seemed a splendid test site physically but a difficult one legally, due to the Hot Creek Agreement. Richard May and Barrett McInerney, however, weren't at all sure that this well-known emperor was wearing clothes. Could the Fish and Game Commission so casually set aside the legislature's will?

When McInerney contacted Assistant City Attorney Ken Downey, Downey sent him a copy of the Hot Creek Agreement. The agreement stated that it was merely implementing an earlier action of the Fish and Game Commission. But that earlier action was not attached. When McInerney dug up this missing link, he felt like Dahlgren seeing trout in Rush Creek: he couldn't believe what he had stumbled onto.

For the agreement signed by Fish and Game Commission Chairman Nate Milnor in

Image not available.

Barrett McInerney organized the
second major legal attack on the
Los Angeles Department of
Water and Power's Mono
Basin diversions.
(Photo by Gerda S. Mathan)

November of 1940 was radically different from the one agreed to by the full commission in August. The earlier action had relieved Los Angeles of building a fishway; Milnor, acting on his own nonexistent authority, had relieved it of making any water releaseswhatever. Even if there were no question as to basic legality, this action would be void.

McInerney found, in short, a stronger case than he had dared imagine.

Why had the Morrison & Foerster lawyers not found this gap in the city's defenses? The Audubon legal team, says Bruce Dodge, had simply been too closely focused on the lake and the public trust doctrine to consider the creeks and the Fish and Game Code at all. And one might ask, "What creeks?" In 1979, when the MoFo staff was setting strategy, Rush Creek had contained neither fish nor water.