No Free Pass for Water Tunnel Project Tests

     SACRAMENTO, Calif. (CN) - California must buy land before conducting suitability tests for a massive tunnel project that will divert water south to thirsty farms and residents, a state appeals court ruled.
     The Department of Water Resources wants to build two 30-mile tunnels to send fresh water under the Sacramento-San Joaquin River Delta to Central and Southern California. Before work on the $25 billion project can start, however, the state needs to run geological and environmental suitability tests on hundreds of properties to determine the exact route for the tunnels.
     But landowners balked when the department said it planned to do the tests without buying the properties first. The state then petitioned a San Joaquin County Superior Court for entrance to the affected properties to make the precondemnation studies.
     The trial court found that the planned geological studies - which involve drilling holes 200 feet into the ground and permanently filling them with concrete when the testing is finished - constitutes a taking that required condemnation.
     But the judge granted permission to conduct the environmental studies, giving the state a yearlong blanket permission slip to enter the properties at will for up to 66 days and with eight personnel for each visit. In return, the state agreed to deposit a predetermined sum in anticipation of potential damage to and interference with the properties.
     Both the department and the landowners appealed. But a panel for the Third Appellate District held in a 2-1 decision last week that the extensive nature of the tests and their imposition on property owners went well beyond precondemnation investigation, as the state claimed.
     "The state's proposed geological activities will work a taking, as they will result in a permanent occupancy of private property," Judge George Nicholson wrote for the panel. "The state proposes to bore holes in the ground between 100 and 205 feet deep with a diameter of up to six inches, remove the earth from those borings, and fill the holes with the permanent cement/bentonite grout. It also proposes to push a rod one and one-half inches in diameter to a depth of up to 200 feet, and then fill the resulting hole with cement/bentonite grout. The grout is comprised of 95 percent cement and five percent bentonite. The state's expert witness described the grout as 'a permanent physical' column of 'hardened cement.'"
     He continued: "Removing earth from private property and replacing it with a permanent, physical column of cement to depths of 205 feet is the type of physical invasion and occupation that must be acquired by eminent domain and compensated."
     Meanwhile, 66 days' worth of dozens of environmental tests - from biological to archeological - also requires purchasing the properties first, according to the ruling.
     "In effect, the state seeks to acquire a temporary blanket easement for one year to access the landowners' properties for a total of two months or more by as many as eight people at a time, and to conduct its studies wherever may be appropriate on the lands subject to reasonable restrictions set by the trial court," Nicholson wrote. "Even though it is temporary and regulated, the occupancy nonetheless intentionally acquires an interest in real property without paying for it. A 30-day lease is an enforceable interest in real property, and an intentional taking of such an interest should be compensated."
     But in his dissenting opinion, Judge Cole Blease criticized Nicholson and Judge Andrea Hoch for undermining the 38-year-old precondemnation entry statutes of the Golden State's eminent domain law.
     "The entry statutes are addressed to a rational need to determine the suitability of a property for a public project before the property is taken for the project," Blease wrote. "By invalidating the entry statutes, the majority would force a public entity that initiates a large-scale public project such as the one envisioned here either to put up the money for the property before determining its suitability for a project, or engage in two complete condemnation proceedings with their attendant jury trials and costs."
     The department said that contingency plans will keep the project on track, but declined to say whether it will appeal to the California Supreme Court.
     Meanwhile, environmental red tape means that construction of the tunnels is years away, and the project will do nothing to alleviate the immediate water woes of 38 million Californians facing the worst drought in recorded state history.