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Property Reserve v. Superior Court of San Joaquin County

ELR Citation: 46 ELR 20125
Nos. S217738, (Cal., 07/21/2016)

The Supreme Court of California held that the state may enter and conduct environmental and geological studies and testing on more than 150 privately owned properties in the Sacramento-San Joaquin Delta that the state might seek to acquire for construction of two new tunnels to deliver fresh water from Northern California to Central and Southern California. The project is estimated to cost more than $15.7 billion and is intended to improve the reliability of the water supply system in California while addressing environmental and ecological concerns. The state sought a court order granting it the authority to enter the properties and undertake various environmental and geological testing activities. The lower court granted the state's request to conduct environmental testing but not geological testing. Landowners appealed, arguing that the state should pay "rent" to access their properties. The appellate court determined that both testing activities were unauthorized, holding that the precondemnation entry and testing statutes violate the California takings clause because the proposed activities would constitute a per se taking of property, thereby requiring a classic condemnation proceeding for a temporary easement. It therefore ruled that the state was not authorized to conduct either of the proposed testing activities. The state's highest court reversed. The precondemnation entry and testing statutes: (1) require a public entity to seek and obtain a court order specifically authorizing the activities that are to be conducted on the property and to deposit in court an amount that the court determines is the probable compensation for the authorized activities; and (2) permit the property owner to obtain damages in the same proceeding for any actual damage and substantial interference with the possession or use of the property caused by the public entity's entry and testing activities. When reformed to permit the property owner to obtain a jury determination of damages in the proceeding if the property owner so chooses, the statutes comply with the state takings clause. No condemnation proceeding is required. The court therefore reversed the appellate court's decision in its entirety.