Here's the amici brief we filed today on behalf of the Owners' Counsel of America and the National Federation of Independent Business Small Business Legal Center with the California Supreme Court in Property Reserve, Inc. v. Dep't of Water Resources, No. S217738. In that case, the court is reviewing a decision of the Court of Appeal which held that the DWR's attempts to enter private property to survey and study the land and the environment in anticipation of condemnation were beyond the minor intrusions allowed by California's "entry statute." The Court of Appeal concluded the proposed entries rose to the level of takings, meaning that if the DWR wanted to undertake them, it would have to exercise its eminent domain power to do so.
We posted background on the case here, but the short story is that the State of California is once again planning a massive public works project to transport water from the north to the south. The plans include tunnels and takings of private property. As part of its planning, the state needs to do surveys, tests, borings, environmental surveys, and the like. The DWR filed several actions under the "entry statutes" (Cal. Civ. Pro. Code § 1245.010 et seq.), to allow it entry to private land to undertake those activities, which include "environmental activities" (surveys about hydrology, botany, wildlife, and culture), and "geological activities" (soil testing and boring). On each of the approximately 150 properties affected, these activities would require entry for 60 intermittent 24-hour days over a two-year period.
The trial court concluded the geological activities were per se takings (physical invasion), but the environmental activities were privileged entries. But the Court of Appeal reversed the latter conclusion, holding that both categories of activities were takings, the only way the DWR could undertake the proposed activities was to condemn and pay for the taken or damaged property, and that the entry statutes were not constitutionally-adequate substitutes for the eminent domain process. The DWR sought discretionary review in the California Supreme Court, which agreed to hear the case.
We'll post the merits briefs of the parties in a separate post, since they contain the full arguments for and against the Court of Appeal's ruling.
Our amici brief argues:
Nearly a century ago, this Court confirmed that a government entry onto private property which goes beyond “innocuous” and “superficial”—even if made under color of the entry statute—is a taking for which an owner is entitled to the full protections of California’s eminent domain process. (Jacobsen v. Superior Court of Sonoma Cnty. (1923) 192 Cal. 319) Since that time, California’s courts have reaffirmed that not every encroachment under the entry statute is privileged, and have avoided adopting the per se rule now advocated by the Department of Water Resources (DWR), that the mere invocation of the statute strips property owners of their eminent domain rights. When the government seeks more—as it did so here in its request to conduct the environmental and geological activities—it is a taking.
Amici Owners’ Counsel of America (OCA) and National Federation of Independent Business Small Business Legal Center (NFIB Legal Center) submit this brief to urge this Court to reconfirm (1) any substantial physical intrusion onto private property is a taking triggering constitutional eminent domain protections, and (2) contrary to the State’s hyperbole, reaffirming this principle—first enunciated by this court in Jacobsen—will not result in public infrastructure projects grinding to a halt.
This brief makes two points. First, any non-trivial physical invasion of private property is a per se taking requiring just compensation and adherence to eminent domain procedures. The intrusions sought by DWR and ordered by the Superior Court cannot be dismissed as mere “entries.” This is not only a long-standing tenet of California constitutional law (see Jacobsen, supra, 192 Cal. at 329), it is a baseline Fifth Amendment principle, and thus a federal floor below which state law may not fall. Second, DWR exaggerates the impact of this Court reaffirming the Jacobsen rule. DWR seeks unchecked and expanded powers to invade and occupy private property on an on-going basis, and to make lasting physical imprints on the land, beyond the reach of constitutionally mandated condemnation and just compensation protections. It is no answer for DWR to argue that the gears of government will grind to a halt should this Court affirm bedrock constitutional principles; the sky will not fall if this Court continues to require what the Constitution demands.
Br. at 1-3.
This is most definitely a case to watch, so there will be more to come.