Another Water Issue; This One Involving Eminent Domain.

The State of California seeks to build a tunnel to transport water from the north to the south. Before condemning the land needed for the project, it desires to study the environmental and geological suitability of hundreds of properties on which the tunnel may be constructed. The question in this case is whether or not those precondemnation activities may themselves be a taking, and California has always required property to be directly condemned in a condemnation suit that provides the affected landowners with all of their constitutional protections against the exercise of eminent domain authority, including the determination by a jury of just compensation for the value of the property interest intentionally taken.  Here, the State successfully petitioned the superior court for orders permitting it to enter the affected properties to conduct their studies, which effectively granted the State a one-year easement. But the superior court denied the State’s request to conduct certain geologic studies. Both the State and the landowners petitioned for extraordinary relief. In granting relief to the landowners, the appellate court stated:  “ Eminent domain authority must be exercised in strict conformity to the constitutional protections and procedures that limit its operation. If a condemnor intends to take private property or intends to perform actions that will result in the acquisition of a property interest, permanent or temporary, large or small, it must directly condemn those interests, and pay for them, in a condemnation suit that provides the affected landowner with all of his constitutional protections against the state’s authority. Based on that fundamental state constitutional doctrine, we affirm the trial court’s order denying entry to conduct the geological activities, and we reverse the order granting entry to conduct the environmental activities. (Property Reserve, Inc. v. Sup. Ct. (Department of Water Resources)  (Cal. App. Third Dist.; March 13, 2014)224 Cal.App.4th 828, [168 Cal.Rptr.3d 869].)