In a win for the state, the California Supreme Court declared Thursday that the state has the right to go on private property for soil and environmental testing as part of a plan to divert fresh water under or around the Sacramento-San Joaquin Delta on its way to Central and Southern California.
The ruling reverses a 2-1 opinion by the 3rd District Court of Appeal holding that entry is not allowed unless the state first condemns and takes the property as its own, or there is an agreement between the state and the property owner.
The high court’s decision is a victory for Gov. Jerry Brown’s controversial $15.7 billion proposal to construct two giant tunnels beneath the Delta as a way to improve reliability of the state’s water supply system and restore and better protect the fragile estuary’s ecosystem.
We will continue moving forward with our important work to modernize California's water infrastructure.
Ted Thomas, spokesman, Department of Water Resources
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The Department of Water Resources maintains the soil testing and environmental analysis are necessary to determine the suitability of each property for the diversion project and to comply with numerous state and federal environmental laws governing such a project.
Department spokesman Ted Thomas said in a prepared statement: “We are pleased with the court’s decision, which validates the procedures we’ve been using. We will continue moving forward with our important work to modernize California’s water infrastructure.”
The state does not want to condemn and pay for property that will not be used for a tunnel or canal diversion project. But a two-justice majority of the 3rd District said drilling and surveying are legal “takings” of property and must be done in accord with the California Eminent Domain Law.
The pre-condemnation statutes relied on by the department fail to “provide for a condemnation suit in which the landowners receive all of their constitutional rights ... including the right” to a jury trial on the issue of compensation, the appellate majority said.
The pro-tunnel interests have many more bridges to cross, and we will be at each crossing.
Attorney Thomas Keeling, who argued on behalf of landowners before the high court
The statutes require a public entity to obtain a court order authorizing the activities that are to be conducted, and to deposit with the court an amount the court deems would be fair compensation for losses attributable to the authorized activities. The existing statutes also permit the property owner to obtain compensation for any actual damage and/or substantial interference with the possession or use of the property.
The Supreme Court said Thursday the statutes satisfy all constitutional requirements except a jury trial on compensation, and the legislation’s history makes it apparent that lawmakers intended to include such a trial as a requirement.
“Accordingly, the provisions of (existing law) are reformed to provide a property owner the option of obtaining a jury trial on the measure of damages,” the seven Supreme Court justices decreed in their 73-page opinion.
The opinion was written by Chief Justice Tani Cantil-Sakauye, with five associate justices concurring.
Associate Justice Goodwin H. Liu wrote a separate but concurring opinion.
Stockton attorney Thomas Keeling, who argued on behalf of landowners before the high court, acknowledged Thursday that the addition of a right to a jury trial on the issue of damages represents a limited victory for his clients.
“But,” he added, “we had hoped the Supreme Court would take this opportunity to protect California landowners against governmental overreaching in the future. (T)he decision is likely to make landowners in this state more vulnerable to aggressive tactics such as those DWR tried to use against Delta landowners.”
In 2008 and 2009, the department filed more than 150 Superior Court petitions seeking entry onto properties in five counties: Sacramento, Yolo, San Joaquin, Contra Costa and Solano. The actions were consolidated in 2010 in San Joaquin Superior Court, and a judge there granted environmental surveying, but denied geological drilling.
“Our successes in the lower courts achieved a six-year delay in gathering information DWR said is essential for engineering and planning the twin tunnel project,” Keeling said. “That gave anti-tunnel interests time to get their arms around the project and coalesce into an environmental, legal and economic force. The pro-tunnel interests have many more bridges to cross, and we will be at each crossing.”
Denny Walsh: 916-321-1189