The California Supreme Court on July 21 overturned a Court of Appeal decision that favored Delta landowners in their legal battle against the California Department of Water Resources (DWR), eliminating one of the many hurdles faced by the Brown administration in its campaign to build the Delta Tunnels.
The court ruled that state officials are not required to pay landowners to access their land to conduct surveys needed for planning the construction of Governor Jerry Brown’s Delta Tunnels, renamed the California WaterFix in 2015. Tunnels opponents consider the WaterFix to be the most environmentally destructive public works project in California history.
The court said they reject the landowner’s claim that the Department of Water Resources overreached its authority in entering private land to drill test borings for the twin tunnels.
“We conclude that the current precondemnation entry and testing statutes are properly interpreted to encompass the type and degree of precondemnation environmental and geological testing at issue here,” the court ruled. “Accordingly, we reject the landowners‘ claim that the Department overreached in invoking the precondemnation entry and testing statutes in order to obtain authority to conduct the precondemnation activities proposed in this case.”
The ruling is available here: http://www.courts.ca.gov/opinions/documents/S217738.PDF
Tom Keeling of the Freeman Firm in Stockton, representing dozens of landowners, said the court did hand Delta landowners a “limited victory” in the case by “reforming” the statute at issue to allow the landowners the right of a jury trial.
DWR had requested court orders that would allow DWR agents to enter Delta properties to conduct investigations in support of the Governor’s controversial twin tunnels project. “The proposed investigations included geological, biological and cultural surveys DWR said were essential for the twin tunnel project to continue,” according to a statement from Keeling’s office.
Keeling focused on the fact that DWR did not offer to pay for its proposed entries. DWR argued that the entries should be granted without compensation under a “pre-condemnation entry” statute. That statute requires a deposit of probable compensation for actual damage to property, but no right to a jury within the proceeding, said Keeling.
Keeling argued that the proposed entries would amount to “takings” of private property that require just compensation. This was the same argument he had made in the Court of Appeal, resulting in the 2014 decision favoring the landowners.
“In reversing that 2014 decision, the Supreme Court assumed, without deciding, that the proposed entries amounted to takings or damaging of private property. It also held that even if such entries would be a taking of private property, government may use the pre-condemnation entry statute to acquire that property,” according to Keeling.
“The Supreme Court reformed the pre-condemnation entry procedure to allow landowners the right of a jury trial on the measure of damages at the proceeding, noted Keeling. “Our successes in the lower courts achieved a 6-year delay in gathering information DWR said is essential for engineering and planning the twin tunnel project. But we had hoped the Supreme Court would take this opportunity to protect California landowners against governmental overreaching in the future. We had argued for a result that would apply existing law to balance the needs of government and the rights of landowners.”
Keeling said the Supreme Court’s new decision “effectively changes California law, in our view.”
“Although it did reform the pre-condemnation entry statute to provide the right to a jury trial within that proceeding, the decision is likely to make landowners in this State more vulnerable to aggressive tactics such as those DWR tried to use against Delta landowners,” Keeling concluded.
Restore the Delta (RTD) reminded people that the court decision is “just a battle in one long war.”
“We won’t win every battle, but we will win the right battles. Federal agencies have not approved the project, and the State Water Resources Control Board is just beginning a long administrative process to consider granting a permit for the project. There will be many battles before it is over,” the group said.
The Delta Tunnels will hasten the extinction of Central Valley steelhead, Sacramento winter-run Chinook salmon, Delta and longfin smelt, and green sturgeon, as well as imperil the salmon and steelhead populations on the Trinity and Klamath rivers.
A broad coalition of recreational and commercial fishermen, Tribal leaders, family farmers, environmental justice advocates, Delta residents and elected officials opposes the construction of tunnels to divert Sacramento River water under the Delta to facilitate water exports to corporate agribusiness interests and Southern California water agencies.