Landowners celebrate ruling on Delta tunnels, but delays not likely, state says

03/14/2014 7:54 PM

03/14/2014 7:55 PM

Property owners in the Sacramento-San Joaquin Delta are celebrating a legal victory involving a controversial proposal to build two giant water diversion tunnels, though state officials say the ruling is unlikely to delay the project significantly.

A California appellate court in Sacramento ruled Thursday that the California Constitution bars the state from entering private land to do environmental studies unless it first condemns the affected land through its powers of eminent domain, and pays landowners accordingly. The court also upheld an earlier ruling in the same case that requires eminent domain before engaging in soil testing studies.

The case originally was brought by about 150 landowners in Sacramento, San Joaquin, Yolo, Solano and Contra Costa counties, who opposed efforts by the California Department of Water Resources to build two giant tunnels to divert a portion of the Sacramento River’s flow out of the Delta. Although a final decision on the tunnels is months away, property owners consider Thursday’s ruling a major victory.

“This, to me, is another brick in the wall toward stopping this project – a pretty significant one,” said Daniel Wilson, a Delta farmer and plaintiff in the case who has fought efforts to survey his land. “I’m glad, and I’m very happy that it happened this way. Our family feels quite relieved.”

Officials at the Department of Water Resources say they do not expect the ruling to cause significant delays. The state already has been heeding a 2011 lower court ruling that required the use of eminent domain for soil testing studies, which are ongoing. The existing project budget and schedule take this process into account, said DWR spokeswoman Nancy Vogel.

And because environmental studies – surveying for endangered species, for example – are complete for now, the latest court ruling is expected to have little immediate effect, Vogel said.

However, if the project proceeds to construction, she said, additional environmental surveys may be required. “That will be an added process, but not enough to change the schedule significantly,” Vogel said. “We think a couple months, maybe.”

The case addresses a disputed area of law involving so-called “taking” of land by the government. The court concluded that even temporary access to survey private property is considered a taking that requires compensation, said J. David Breemer, an attorney specializing in eminent domain at the Pacific Legal Foundation, a nonprofit law firm based in Sacramento that focuses on property rights issues.

In this regard, Breemer said, the case can be considered precedent-setting. He noted that some of the access DWR sought involved as many as eight people at a time surveying private property for as many as 66 days a year. Many property owners considered this to be invasive.

“It is one of a handful of decisions that recognize that even short invasions of property by the government for investigatory purposes can be considered a taking,” said Breemer. “Most property owners can relate to that on a visceral level. Owning property isn’t just about money, it’s about privacy.”

The case could be appealed to the state Supreme Court; Vogel said DWR hasn’t decided yet whether to do that.

Breemer said the decision is likely to increase costs and cause delays in a variety of situations in which government seeks to survey private land, adding that he believes such constraints are justified.

“That is exactly what the Constitution was intended to do when it required payment of just compensation before government takes property,” he said.

Others say the ramifications are less certain, and will depend on the degree of access sought by government.

“It certainly remains to be seen,” said Matthew Hinks, a land-use attorney who practices in Los Angeles. “It’s also a fair assessment to say that property owners may look to this opinion and try to expand its reach.”

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