Sept. 3, 2013
Kimberly Rivers, OVN correspondent
As Ecotopia moves forward with its land management plan for the Matilija Canyon Hot Springs, a recent swell of public concern — which peaked with talk of a potential protest and resulted in a police visit to the would-be protest planner — has helped Ecotopia’s founders see the need to move faster in re-opening the land.
An Ojai Police officer visited the home of Sean Keenan in Meiners Oaks last week, acting on information received from a representative of Ecotopia that local residents were possibly planning a march on the Hot Springs over the Labor Day weekend. The officer’s goal was to remind Keenan that if he were to go onto private property, he would be cited for trespassing.
Earlier this year, Ecotopia put up barbed wire fencing and signs letting the public know that the hot springs were temporarily closed to allow the land to “rest.” During the land closure Ecotopia volunteers have built trails and removed truckloads of garbage from the land around the hot springs. Ecotopia group members met on Monday, and in response to the swell of concern from a growing number of area residents, they revisited their strategy and are moving to open the land sooner than previously planned.
“Ecotopia has decided in further review of community concerns that it will begin to open access to the land the next 60 to 90 days — or sooner pending getting logistics in place — on a purely donation basis,” said Gunnar Lovelace, Ecotopia co-founder and one of the property owners. “We have decided it is important to open access again in a way that is respectful of the land. For us, this project has never been about making money.”
Lovelace explained that the group has basic expenses that need to be met, and said they plan to put all donations directly toward those expenses. “The expenses and donations will be published publicly so it’s fully transparent … This will be a great opportunity to measure and test the communities (sic) willingness to really support this project.” The group’s baseline expenses every month, he added, are around $4,000. This amount includes mortgages, utilities, property taxes and insurance, as well as costs of signs, fencing, tools and salary-stipends for the few employees of Ecotopia. “This access will be for just the hot springs at this time until we have reasonable plans for how to interface with our neighbors to the west, whose property line runs through the swimming hole,” Lovelace said.
Police Visit in Advance of Protest
On Aug. 21, Keenan posted a question in an Ojai discussion group on the social networking site Facebook, asking whether locals would support a march “to liberate the hot springs in Matilija.”
Six days later, a police officer arrived at his home and spoke to Keenan’s wife, as he was not there.
Keenan said he felt the police came to his home “to dissuade me from (organizing a march) … The officer told my wife, ‘If they march they will be ticketed.’ The police changed our plans from peaceful protest to civil disobedience.” Keenan explained that his idea was to have supporters walk along the waterway from a point where the public is currently granted access. He says it would not be trespassing to walk in the waterway because in California, a navigable waterway cannot be privately owned. Due to the police visit, he said, he postponed any action and is weighing his options.
“It is not uncommon for us to reach out (to those planning a protest) to find out what is going on,” said Capt. David Kenney with the Ojai Police Department. “We let them know as long as they are exercising their constitutional rights, and break no laws and commit no crimes, then it’s no big deal.” Responding to whether or not the police intended to dissuade Keenan from organizing a protest Kenney said, “It’s like I said, we will find out who is organizing the protest, and contact them to establish communication.” He said this is the first planned protest he is aware of in Ojai in the one-and-a-half years he has been in Ojai. Kenney confirmed that the police learned of the protest plans from a representative of Ecotopia.
“We talk to the police in front of holidays and have been since we began this process,” said Lovelace. The Ecotopia representative, he went on, let police know “a protest (was) possible. The police took it upon themselves to go visit (Keenan). We did not, and would not ask for such a thing.”
Question of Public Access Continues
The issue of who owns a waterway relies on whether the creek or river is designated as “navigable.” Navigable can mean a waterway that is a large river flowing year-round, or a small creek that is ankle deep in dry years, but sometimes (and in some portions) can be kayaked — including “portages,” or spots where a kayak must be carried over land.
“While I understand and deeply appreciate public rights, and we are doing this as a community-based effort, we are committed to protecting this land,” said Lovelace. He and other founders of Ecotopia have pointed to the misuse of the land as the motivation for the temporary closing, and as the reason for their original proposal of donating time or money in exchange for use of the land.
“The land there has gone through multiple variations of what we are dealing with now,” said Brian Holly, a third-generation Ojai Valley resident and local conservation biologist with BioResource Consultants in Ojai. Holly serves on the board of the Ojai Valley Land Conservancy, but spoke with the Ojai Valley News on the condition that it be made clear that his statements are representative of his personal opinion and not OVLC’s.
Holly agrees with Lovelace that the land has been misused and abused, but said, “Privatization of the hot springs is not the answer. It is a public resource.” Holly explained that there are two legal pathways the public can use to exercise its right to access the waterway: by recognizing it meets the definition of navigable, or that there is a public prescriptive easement. He said that while no one wants this to go as far as landing in court, he said proving either navigability or easement rights would be “difficult, but possible.” He is hopeful that Ecotopia and those like himself, who want to avoid privatization and protect public access, can figure out a solution.
Holly shared the story of Heather Wylie, a former U.S. Army Corps of Engineer employee who resigned from her job in an effort to protect the Los Angeles River and connect the community to their local waterway. Wylie actually kayaked the length of that river and was able to prove that it met the legal definition of navigable and therefore the public had access to the length of it.
According to the handout, “What are the public’s rights on rivers?” printed by the National Organization for Rivers (N.O.R.), “Private property on rivers is … always subject to the public’s rights to use the stream. State authority on rivers is subject to the public’s ‘paramount right of navigation.’” The handout also cautions property owners and the public about the “confusion” and unwanted events that can result if an official designation is not obtained. “Needless confrontations between officers and river users waste valuable law enforcement resources,” is states.
Earlier this month, Sheri Pemberton, Chief of External Affairs and legislative liaison at the California State Land Commission, wrote, “I do not think that the State Lands Commission would have any jurisdiction over this hot springs.” She pointed to several issues and court cases relating to determining navigability. “In particular, the court found that the following tests are relevant: it is immaterial that the underlying bed is privately owned and taxed; the land may have once been dry in its original state; and water need not cover the area all year. A seminal case to review is People v. Mack, supra, at 19 Cal. App. 3d at 1050.” That case found that “Members of the public have a right to navigate and to exercise the incidence to navigation in a lawful manner at any point below the high water mark on waters of this state which are capable of being navigated by oar or motor-propelled small craft.” And “the test of navigability is met if the stream is capable of boating for pleasure.” People v. Mack further found, “it is extremely important that the public not be denied use of recreational water.”
Supporters of Ecotopia and its plans point to the way the land has been abused, and the lack of safety on the land in recent years, due to the increase in the number of people visiting the hot springs. They are thankful that Ecotopia has stepped in.
Similar disputes happen all the time up and down the coast of California, where property owners try to restrict public access to the beach. The California Coastal Commission works to balance the environmental protection of the coastline with maintaining public access and finds itself frequently in conflict with property owners who want to restrict public access by claiming the need to protect the land and environment is more important.
“We must not compromise our collective right to use public rights-of-way or public waters simply because we do not like the folks that are showing up at the swimming or the hot springs,” wrote Holly on Facebook, and reprinted with his permission. “We cannot let the bad apples take away our freedom to use waters of the state or U.S. It’s a compromise that impacts all of us. And this is true because if a legal precedent is set that a private landowner can maintain and claim ownership to a reach of public stream, then we have opened the doors to future development and privatization of our local watershed. Therefore, I cannot endorse the concept of ownership of a public waterway, no matter how dire the circumstances may be to necessitate such an action.”
Ecotopia is accepting applications for a “full-time land steward” to live on the land. Contact project manager Venica Ftacek, email@example.com, for an application.