To get the geotechnical information needed to build the peripheral tunnels, the Department of Water Resources (DWR) has been trying to use eminent domain to obtain drilling easements in the Delta.
Now a San Joaquin County judge has denied a motion by DWR for an order of “pre-judgment possession” in one of the eminent domain actions. Such motions are common where an agency wants to get a project going before the case has been decided. The order would have allowed DWR personnel and equipment onto the five affected properties within the next few weeks. DWR had insisted that it is critical that it be allowed to complete the drilling before the rainy season.
The hearing took place on September 25 in the San Joaquin County Superior Court. After a lengthy presentation, DWR’s motion was denied. Representing the landowners, Thomas Keeling successfully argued that DWR’s failure to comply with law governing who must be named as defendants in an eminent domain action prevented DWR from obtaining pre-judgment possession.
DWR also filed identical motions in its actions in Yolo, Sacramento and Contra Costa Counties. The Yolo County court has not yet ruled on the motion, which was argued on September 21. The Contra Costa hearing has not yet occurred.
A hearing in Sacramento on DWR’s motion for pre-judgment possession (which affects almost four times as many properties as the San Joaquin motion) was supposed to be held this week. However, on its own motion, the Sacramento Superior Court continued the hearing to October 10. That alone further frustrated DWR, given its rush to beat the rains.
Further, the court asked for supplemental briefing on questions of law and statutory interpretation that, in Mr. Keeling’s opinion, probably favor landowners rather than DWR.
The ruling in San Joaquin County – as well-reasoned as it is – may not be binding on other courts, which means that landowners could conceivably see inconsistent rulings from court to court.
DWR will most likely try again in San Joaquin County, but, according to Mr. Keeling, it would actually have to comply with the law.
This should serve as a reminder to Delta landowners that it IS possible to fight the State and win.