DELTA TUNNELS: CA Supreme Court Rules in Farmland Access Case

For Immediate Release: 7/21/16
Contact: Tom Keeling, Principal, Freeman Firm, Stockton CA (209) 474-1818       

San Francisco –  The California Supreme Court has reversed a Court of Appeal decision that favored Delta landowners against the California Department of Water Resources (DWR).  In doing so, however, it did hand Delta landowners a limited victory by “reforming” the statute at issue. DWR had requested court orders that would allow DWR agents to enter Delta properties to conduct investigations in support of the controversial twin tunnel project.  The proposed investigations included geological, biological and cultural surveys DWR said were essential for the twin tunnel project to continue.   

Representing dozens of Delta landowners, Tom Keeling of the Freeman Firm (Stockton) 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. 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. 
Here, Delta landowners gained what Keeling describes as a limited victory: 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. 
Keeling added: “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.  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.”

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