Court poised to say NO to temporary entry permits

Delta landowners won a potentially significant legal victory last week.  A San Joaquin County judge tentatively denied a request by the Department of Water Resources (DWR) that would have allowed DWR to enter many Delta properties to conduct invasive “Geological Activities,” including drilling.

DWR insisted that the Geological Activities are necessary to gather data for a proposed alternative conveyance system (peripheral canal or tunnel) to divert fresh water that normally flows through the Delta, sending it directly to pumps near Tracy for conveyance to Central and Southern California.

This ruling is significant both for landowners whose cases are pending and for over 100 landowners who are targets of the next wave of actions DWR says it will file soon.

For over two years, Delta landowners have waged a courtroom battle to prevent DWR  from gaining entry to tens of thousands of acres of privately owned Delta land.   DWR had filed more than 150 petitions against landowners in Sacramento, San Joaquin, Contra Costa, Solano and Yolo Counties.  The cases were later transferred from their original counties to San Joaquin County as a single proceeding.

DWR’s petitions request entry to conduct “Environmental Studies” as well as invasive “Geological Studies.”  The court addressed these requests separately.  In February, the court granted DWR’s request to enter Delta properties to conduct Environmental Studies, but it reduced the duration and narrowed the scope of DWR’s request.

Among other things, it reduced the time frame from 2 years to 1 year, limited the number of days of entry and the number of DWR personnel allowed to enter, and disallowed certain activities altogether.  Faced with stiff landowner resistance, DWR dropped its request for trenching and test pits on all the properties and reduced the number of properties on which it requested entry for Geological Activities.

Last week’s ruling addressed the proposed Geological Activities, which included drilling holes up to 205 feet deep using a truck-mounted rig.  Soils removed during the boring were to be taken off-site, and the holes left behind were to be filled with a cement-and-clay grout called bentonite.

DWR also asked for “cone penetrometer testing” (CPT), which involves pushing a cone up to 205 feet underground using hydraulic force.  Holes created by the CPT were also to be filled with bentonite.  These activities would require trucks, drilling equipment and DWR personnel on each affected property for two weeks or more.

DWR insisted that the “pre-condemnation entry statutes” give it the right to enter private property for these purposes.  Attorneys for landowners argued that those provisions of the law allow only brief entries by government agencies for the purpose of innocuous preliminary surveys and non-invasive testing.  They argued that the rights sought by DWR go far beyond that and would amount to easements.

To acquire an easement – as distinguished from a “temporary right of entry” – DWR  must comply with legal requirements enacted to safeguard landowners’ constitutional rights to due process and just compensation for private property taken for public use.

Siding with landowners on this issue, the court ruled last week that the proposed Geologic Activities would constitute a “taking,” a point DWR appears to now concede.  As such, the requested entries would go beyond what could be allowed under the pre-condemnation entry statutes.

A final order will not issue until after a further hearing set April 8, but, if the ruling holds, it could be a major setback for DWR and proponents of an alternative conveyance system.

Tom Keeling – an attorney with the Stockton law firm Freeman, D’Aiuto, Pierce, Gurev, Keeling & Wolf who has been battling DWR on behalf of landowners in over 100 of the petition actions – observed that last week’s ruling could go far towards protecting Delta landowners’ constitutional and due process rights.  It could force DWR to rethink its strategy – which to date has been to ignore the wishes and needs of Delta landowners in an attempt to meet the demands of powerful interests south of the Delta that have long pushed for a peripheral canal.

Mr. Keeling is part of a coalition of attorneys that includes Dante Nomellini, Sr., Dante Nomellini, Jr., John Herrick, and Dean Ruiz.

Delta landowners need to spread the word about this ruling.  DWR can be expected to intensify its efforts to persuade landowners to sign temporary entry permits that would allow DWR to conduct its proposed Environmental Studies and Geologic Activities.  It would be a shame if landowners – disheartened by the actions of the State and unaware of this ruling –  capitulated to DWR’s sales pitch.  The State would be getting by landowner permission what it has thus far failed to win in court.

For further information about the legal proceedings in the San Joaquin County Superior Court, landowners may call Tom Keeling at (209) 474-1818.

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