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March 14, 2014  |  Written by Somach Simmons & Dunn

Appellate Court Finds DWR’s Environmental Studies in Support of BDCP Constitute a Taking of Private Property

In coordinated proceedings, the California Court of Appeal for the Third Appellate District holds that the California Department of Water Resources’ (DWR) entries onto hundreds of Delta properties for the purpose of conducting environmental studies and geological activities conducted in support of the Bay Delta Conservation Plan (BDCP) is a taking under the State and federal Constitutions. The case is Property Reserve Inc. v. Superior Court, C067758 (JCCP No. 4594).


In 2009, DWR filed more than 100 petitions for entry onto hundreds of Delta properties via the precondemnation statutes found at Code of Civil Procedure sections 1245.010 through 1245.060. Landowners resisted these entries in court and the cases were eventually coordinated in San Joaquin County Superior Court. DWR’s petitions for entry sought to conduct various environmental studies as well as more invasive geological studies. The Superior Court bifurcated the entries for environmental studies from the entries for geological studies. In separate rulings, the Superior Court granted DWR’s entries for environmental activities but held that the geological activities resulted in a taking for which DWR would need to comply with California’s Eminent Domain Law.

The landowners sought relief from the Superior Court’s ruling granting the environmental entries via writ to the Third Appellate District, which was summarily denied. The landowners turned to the California Supreme Court, which granted the writ, directing the Third Appellate District to consider the landowners’ claims. DWR appealed the Superior Court’s decision denying access to conduct geological activities and the cases were heard together before the Third Appellate District in December 2013.

The Court’s Decision

Environmental Entries (Landowners’ Writ)

The Court noted that the order allowing the entries for environmental studies amounted to “blanket easements” over the landowners’ property. For the smallest parcels at issue (less than 100 acres), the entry order authorized 25 entries of up to four people within a one-year period. Authorized entries increased with property size, allowing up to 66 entries with up to eight people per entry within a one-year period on the properties over 3,501 acres.

The Court explained that the environmental studies were not a per se taking – as they would not result in a permanent occupancy of property. Instead, the Court considered whether DWR’s temporary physical invasion rose to the level of a compensable taking. The Court compared cases examining the differences between a simple government trespass on private property and those involving more invasive activities. In doing so, the Court used four factors to determine whether DWR’s activities constituted a compensable taking: (1) the degree to which the invasions are intended; (2) the character of the invasions; (3) the amount of time the invasions will last; and (4) the economic impact of the invasions. Given the nature and extent of the environmental studies, the Court determined that all four factors weighed in favor of finding a temporary taking, ultimately holding that the performance of environmental studies “works a taking of a compensable property interest in the nature of a temporary easement,” an interest that could not be acquired under the precondemnation statutes. If DWR desired to obtain what amounts to blanket easements over these properties, without landowner acquiescence, DWR would need to initiate eminent domain proceedings.

Geological Activities (DWR’s Appeal)

The geological activities presented an easier question for the Court. The Court noted that DWR conceded that the geological activities would constitute a per se taking, because soil from soil borings would be removed from the property and the boring holes would be filled with a permanent column of bentonite grout. The only remaining question was whether the precondemnation statutes satisfied the demands of subdivision (a) of article I, Section 19 of the California Constitution sufficient to allow a per se taking. Section 19 provides for procedural safeguards for landowners faced with a government taking of their property.

On this issue, the Court noted that the State had taken inconsistent positions throughout the proceedings. DWR first argued that the precondemnation statutes were not akin to eminent domain proceedings for the purposes of Section 19. DWR later changed its position, arguing that the precondemnation statutes actually satisfied the demands of Section 19. DWR changed its position a third time at oral argument, conceding that the precondemnation statutes do not authorize a per se taking but arguing there was no “taking” as a result of DWR’s activities.

Notwithstanding DWR’s inconsistent positions, the Court held that the precondemnation statutes are not sufficient to authorize a per se taking because they do not satisfy the demands of Section 19, which requires the filing of an eminent domain action, triggering various constitutional protections for landowners. If DWR desired to conduct the geological activities, without landowner acquiescence, DWR would need to initiate an eminent domain action.

Conclusions and Implications

The Court of Appeal’s decision is another setback for the BDCP process. DWR will likely now be faced with costly litigation for what now amounts to the taking of blanket easements on hundreds of Delta properties. Landowners will undoubtedly seek damages for the takings and DWR will be forced to initiate eminent domain proceedings, in the absence of landowner consent, to conduct any further studies on private property. DWR can Petition the California Supreme Court to review the Court of Appeal’s decision, but that Court’s review is completely discretionary.

Daniel Kelly, of Somach Simmons & Dunn, represented some of the landowners in this proceeding. The Court of Appeals decision can be found here.

For additional information please contact Daniel Kelly at 916-446-7979 or by email

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