The California Supreme Court has agreed to decide an epic battle over whether the state must condemn and acquire parcels on tens of thousands of acres of private property to conduct preliminary testing for Gov. Jerry Brown’s proposal to construct two large water-conveyance tunnels in the Sacramento-San Joaquin Delta.
The two tunnels – nearly 40 feet in diameter – would divert river water around the Delta and ship it south for users in Central and Southern California.
The state Department of Water Resources asked for the high court’s review after the 3rd District Court of Appeal ruled in March that, in this instance, the state did not have a pre-condemnation right to enter private properties in the Delta without the permission of the landowners.
The ruling put the state in a pickle because it does not want to condemn, acquire and pay for property that it has not yet decided it will need for its “twin tunnels” project.
“We’re pleased to have the Supreme Court review the case, and we’ll file a brief in response to yesterday’s order,” DWR spokeswoman Nancy Vogel said Thursday, referring to a Supreme Court order that limited the issues it would consider in its review.
Thomas Keeling, attorney for some Delta landowners, said, “We obviously think the result reached in the 3rd District Court of Appeal was the correct result.”
But, he added, “We also understand that the rights of many Delta landowners whom we represent, and of landowners throughout California, could be reaffirmed and further protected by Supreme Court decision-making in this case.”
In its Wednesday order, the Supreme Court said it would accept briefs and arguments on three fundamental issues:
• Does the geological testing proposed by the department constitute a “taking” of property, as that term is legally defined?
• Does the proposed environmental testing constitute a taking?
• If so, do California’s pre-condemnation entry laws allow for legally valid eminent domain proceedings that acquire property on a preliminary basis?
The litigation involves more than 150 owners of more than 240 parcels in Sacramento, San Joaquin, Yolo, Solano and Contra Costa counties. The properties total tens of thousands of acres used primarily for commercial agriculture, cattle ranching and recreation.
At the 3rd District Court of Appeal, two members of a three-justice panel said that drilling to test the soil and tramping around while testing and surveying the environment are legal takings of property and must be done in accord with procedures spelled out in eminent domain laws and the California Constitution.
The property “entry statutes” cited by the DWR in its arguments do not apply to the department’s proposed activities, the two justices ruled. The opinion was authored by Associate Justice George Nicholson, who was joined by Associate Justice Andrea Lynn Hoch.
In a lengthy dissent, Acting Presiding Justice Cole Blease leveled a blistering broadside at his colleagues, saying they misinterpreted the law.
Laywers for DWR cited Blease’s dissent in asking for a Supreme Court review of the case.
The appellate opinion “overturns decades of law and practice by discarding the pre-condemnation entry statutes and effectively requires public agencies to commence a full condemnation action any time they seek to perform preliminary property studies,” the lawyers wrote.
That argument left Gerry Houlihan, a lawyer for property owners in Contra Costa County, incredulous. He said the state’s lawyers would have the high court believe the Legislature implicitly intended to create an alternative process to condemn property when it adopted a statute in 1959.
That statute allows pre-condemnation entries for reservoir purposes and requires a deposit of an amount sufficient to compensate the landowner for any damage that might result from the entry, survey and exploration.
“The fact that no other public agency has advanced the ‘alternative eminent domain proceeding’ argument since 1959 is powerful evidence of just how ‘out there’ DWR’s position is,” Houlihan wrote in his answer to the state’s petition.
Delta property owners say their lack of trust of the Department of Water Resources is a big factor in the quarrel.
Dennis Gardemeyer, a 65-year-old landowner who has farmed in the Delta for 40 years, said he is not surprised that the state is pushing the “twin-tunnels scheme, another water grab by south-of-the-Delta interests. But, I was surprised by the state’s indifference to private property rights. I hope the Supreme Court reaffirms that private property rights still mean something in California.”
Russell van Loben Sels, a 70-year-old fourth-generation Delta farmer, said DWR came to landowners five years ago and said, “Sign our entry permits or we’ll sue you. Someday we might have a project and we might need some of your property.”
Van Loben Sels, former president of the Sacramento County Farm Bureau, noted that “condemnation is a tool for a project. They went way beyond that. They wanted access for a long period of time without condemnation and without a public project to support it.”
“We’ve been very fortunate in at least a recognition of private property rights,” he added. “I hope the Supreme Court sees it the same way.”
When the court of appeal ruled in March, DWR spokeswoman Vogel took exception to a sentence in a Bee story that said: “There is a strong possibility that the state will seek review of Thursday’s opinion at the California Supreme Court, and the opinion is likely to cause a substantial delay of the project.”
But the water agency has submitted arguments to both the appellate court and the Supreme Court noting that the 3rd District’s published decision will place an undue burden on projects like the Delta tunnels if it is allowed to stand.
On Thursday, Vogel said the decision “impacts governmental agencies statewide, and the general concern regarding delays to public works and costs is evidenced by the number of (friend of the court) briefs and requests for depublication submitted to the Supreme Court” in support of the petition for review.
But, she said, the delay to the Delta project caused by the bitter legal struggle “was already built into the (project’s) schedule prior to the (appellate) ruling.”
In a March email, Vogel also said, “DWR has been proceeding pursuant to the eminent domain process to conduct geotechnical drilling and will continue to do so.”
At the time, DWR had filed four eminent domain actions, one in each of four counties, but all of them had been withdrawn by the state long before the email was written. No other suits have been filed.
Vogel said Thursday the eminent domain process “is more than just filing cases with the court.” It “involves continuing evaluation and optimization of alternatives, identification of necessary parcels, etc. A decision was made earlier this year to dismiss the existing cases, but the intent was to refile them in a manner which would better reflect the department’s existing needs.”
Any decision earlier this year could not have been regarding three of the four cases, which were dismissed in 2013. The fourth, in Sacramento County, was dismissed Jan. 8.