San
Joaquin County Super Ct. JCCP No. 4594 Ct.App. 3 C067758, 3
C067765, 3 C068469 John P. Farrell[*]
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COUNSEL
Matteoni,
O’Laughlin & Hechtman, Norman E. Matteoni, Gerry
Houlihan; Kirton & McConkie and Christopher S. Hill for
Petitioner Property Reserve, Inc.
Freeman,
D’Aiuto, Pierce, Gurev, Keeling & Wolf, Thomas H.
Keeling, Arnold J. Wolf; Nomellini, Grilli & McDaniel and
Dante J. Nomelini, Jr., for Petitioners Mark G. Scribner,
Jr., Randy J. Baranek, Siara Andrews, J.H. Jonson & Sons,
Inc., Arnaudo Bros., Delta Wetlands Properties, The 2000
teVelde Family Trust, The Biagi Living Trust Agreement, The
Carolyn Nichols Revocable Living Trust dated 12/09/1999,
Carolyn A. Nichols as Trustee, Venice Island, Coney Island
Farms, Inc., Robert A. DalPorto, Jr., Islands, Inc., Richard
Brann as Trustee, S.S. & S.M. Oates Family Trust, Wilson
Vineyard Properties, Eileen V. Nichols Revocable Living Trust
dated 12/09/1999, Eileen V. Nichols as Trustee, Victoria
Island, L.P., Lucille L. Christensen Family Trust dated
8/31/2004, Lucille J. Christensen as Trustee, Smith and Karen
Cunningham, Zuckerman Mandeville, Inc., and Heritage Land
Co., Inc.
Downey
Brand and Scott D. McElhern for Petitioners CCRC Farms, LLC
and Tuscany Research Institute.
Somach
Simmons & Dunn, Stuart L. Somach and Daniel Kelly for
Petitioners Sutter Home Winery, Inc., and Delta Ranch
Partnership.
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J.
David Breemer and Jonathan Wood for Pacific Legal Foundation
as Amicus Curiae on behalf of Petitioners.
Luke A.
Wake; Damon Key Leong Kupchak Hastert, Robert H. Thomas;
Manatt, Phelps & Phillips and Edward G. Burg for
Owners’ Counsel of America and National Federation of
Independent Business Small Business Legal Center as Amici
Curiae on behalf of Petitioners.
Jenny
& Jenny and Scott E. Jenny as Amici Curiae on behalf of
Petitioners.
Nancy
N. McDonough and Kari E. Fisher for California Farm Bureau
Federation as Amicus Curiae on behalf of Petitioners.
No
appearance for Respondent.
Kamala
D. Harris, Attorney General, Steven M. Gevercer and Kristin
G. Hogue, Assistant Attorneys General, Alberto
González, John M. Feser, Jr., Michael P. Cayaban,
James C. Phillips, Neli N. Palma and Gregory D. Brown, Deputy
Attorneys General, for Real Party in Interest.
Jeanne
Scherer, David Gossage and Lucille Y. Baca for California
Department of Transportation as Amicus Curiae on behalf of
Real Party in Interest.
Meyers,
Nave, Riback, Silver & Wilson and David W. Skinner for
League of California Cities, California State Association of
Counties and Association of California Water Agencies as
Amici Curiae on behalf of Real Party in Interest.
Woodruff,
Spradlin & Smart, Gary C. Weisberg and Laura A. Morgan
for Orange County Transportation Authority as Amicus Curiae
on behalf of Real Party in Interest.
Stephanie
D. Morris for State Water Contractors as Amicus Curiae on
behalf of Real Party in Interest.
Best,
Best & Krieger and Kendall H. MacVey for Riverside County
Transportation Commission as Amicus Curiae on behalf of Real
Party in Interest.
OPINION
CANTIL-SAKAUYE,
C. J.
In an
effort to improve the reliability of the water supply system
in California as well as to address environmental and
ecological concerns, the Department of Water Resources
(hereafter, the
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Department) undertook to investigate the feasibility of
constructing a new tunnel or canal in the Sacramento-San
Joaquin Delta as a means of delivering fresh water from
Northern California to Central and Southern California. As
part of the preliminary steps in going forward with the
project, the Department sought to conduct environmental and
geological studies and testing on more than 150 privately
owned parcels of land that the state, in the future, might
seek to acquire for the project through negotiation or
eminent domain.
In
pursuing the proposed studies and testing, the Department
proceeded through the specific statutory procedure
established by the Eminent Domain Law (Code Civ. Proc., pt.
3, tit. 7, § 1230.010 et seq.) relating to
precondemnation entry and testing. (Code Civ. Proc.,
§§ 1245.010-1245.060.)[1] The Department filed
petitions in superior court relating to the privately owned
properties, seeking a court order granting the Department
authority to enter the properties and undertake various
environmental and geological testing activities. The
Department maintained that these activities were necessary to
determine the suitability of each property for the project
and to comply with the numerous state and federal
environmental laws governing such a project.
After a
four-day hearing, the trial court issued a detailed and
lengthy order authorizing the Department to enter all of the
private properties and conduct various environmental
studies and testing under specified limitations. After a
separate hearing, the trial court denied the
Department’s request to conduct geological
testingtesting that contemplated the drilling and refilling
of deep test holes on certain properties in questionon the
ground that the Department’s authority to conduct that
drilling could be obtained only through a classic
condemnation action rather than through the statutory
precondemnation procedure.[2]
Both
the landowners and the Department sought review of the trial
court’s rulings in the Court of Appeal. The Court of
Appeal, in a two-to-one decision, upheld the trial
court’s denial of the Department’s request to
enter and to
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conduct geological testing, but reversed the trial
court’s grant of authority to conduct environmental
testing. The majority in the Court of Appeal concluded (1)
that the procedure established by the precondemnation entry
and testing statutes does not satisfy the demands of the
takings clause of the California Constitution with regard to
any precondemnation entry and testing activity that would
constitute a taking or damaging of property within the
meaning of the state takings clause, and (2) that both the
geological testing sought by the Department and the
environmental activities authorized by the trial court fell
within that category. The Court of Appeal majority held that
in order to conduct such activities, the Department was
required to proceed to condemn a temporary easement through a
classic condemnation action, rather than proceeding by means
of the procedure established by the precondemnation entry and
testing statutes.
The
Department sought review of the Court of Appeal decision in
this court. We granted review and posed three questions for
briefing and argument: (1) Do the geological testing
activities proposed by the Department constitute a taking?
(2) Do the environmental testing activities authorized by the
trial court’s order constitute a taking? (3) If so, do
the precondemnation entry and testing statutes provide a
constitutionally valid eminent domain proceeding for the
activities?
For the
reasons set forth below, we conclude that there is no need to
determine under the first two questions whether the
authorized environmental testing activities or the proposed
geological testing activities constitute a taking or damaging
of property for purposes of the state constitutional takings
clause. (Cal. Const., art. I, § 19, subd. (a).)
Assuming, without deciding, that both the environmental and
the geological activities in question amount to a taking or
damaging of property for which just compensation must be paid
under the California takings clause, we conclude that in
answer to our third question the procedure established by the
precondemnation entry and testing statutes satisfies the
requirements of the California takings clause when the
procedure is reformed to comply with the jury trial
requirement of that clause. As we explain, the
precondemnation entry and testing statutes (1) require a
public entity, before undertaking such entry and testing, 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. This
procedure satisfies the California takings clause when
reformed to permit the property owner to obtain a jury
determination of damages in the proceeding if the property
owner so chooses.
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Accordingly,
we conclude that the Court of Appeal judgment should be
reversed in its entirety, both insofar as the Court of Appeal
affirmed the trial court’s denial of the
Department’s proposed geological testing and insofar as
it reversed the trial court’s authorization of
environmental testing.
I.
Facts and Proceedings Below
In this
case, the Department proposed to enter more than 150
privately owned properties in the Sacramento-San Joaquin
Delta area (Delta) in order to conduct environmental and
geological studies and testing needed to investigate the
feasibility of adding new water conveyance facilities - such
as tunnels or additional canals - in the Delta and to
determine the suitability of potential alternative routes for
the contemplated project. The proposed new facilities would
become part of the Bay Delta Conservation Plan and are
intended to improve the reliability of the water supply
statewide as well as to restore the Delta ecosystem and
native fish populations.[3]
Because
the alternative potential locations for the new facilities
cross or lie beneath privately owned lands, the Department
sought to enter the private properties in question to
ascertain preliminary environmental and geological
information about the properties. The Department maintains
that the proposed entries and testing are necessary for two
reasons: (1) to determine the feasibility and best potential
location for the contemplated conveyance system, and (2) to
assess the potential effects of the project on biological,
environmental, geological, and archeological resources within
the properties in order to comply with numerous applicable
state and federal environmental laws, including the
California Environmental Quality Act (Pub. Resources Code,
§21000 et seq.), the National Environmental Policy Act
of 1969 (42 U.S.C. § 4321 et seq.), the California
Endangered Species Act (Fish & G Code, § 2050 et
seq.), the Federal Endangered Species Act of 1973 (16 U.S.C.
§ 1531 et seq.), the Federal Clean Water Act of 1977
(Pub.L. No. 95-217 (Dec, 27, 1977) 91 Stat. 1566), and the
Porter-Cologne Water Qualitv Control Act (Wat. Code. §
13000 et seq.).
Between
2008 and 2009, the Department filed more than 150 separate
petitions in superior court pursuant to section 1245.030,
seeking entry onto
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properties located in five separate counties - San Joaquin,
Contra Costa, Solano, Yolo, and Sacramento. In June 2009, the
Department filed a request to coordinate in a single
proceeding the numerous entry petitions at issue here, and in
March 2010, the superior court granted the request,
coordinating the petitions in a single proceeding before the
San Joaquin County Superior Court.
In
September 2010, the Department filed a “Master Amended
Petition” in which it sought authority to conduct what
the petition characterized collectively as
“environmental activities” with respect to all
properties and “geological activities” with
respect to 35 properties. The proposed environmental
activities consisted of mapping and surveys relating to plant
and animal species, habitat, soil conditions, hydrology,
cultural and archeological resources, utilities, and
recreational uses. The proposed geological activities
consisted of drilling deep holes or borings to determine
subsoil conditions. The Master Amended Petition attached
declarations from environmental managers, planners, and
surveyors employed by the Department, describing the scope
and purpose of the proposed testing activities.
Thereafter,
at a case management conference in October 2010, the trial
court bifurcated the upcoming hearing on the Master Amended
Petition, setting an initial hearing limited to the proposed
environmental activities and a subsequent hearing for the
proposed geological activities. The court indicated that it
had reviewed the numerous declarations that had already been
submitted on behalf of many landowners describing concerns
with the Department’s proposed activities, and invited
any property owner, prior to the upcoming hearings, to
present additional evidence by declaration regarding any
property-specific issues that could affect the scope of any
order the court might ultimately issue. The court also
directed the Department to be prepared to produce witnesses
at the hearings who would testify in person with regard to
the nature and scope of the proposed entries and activities
and who would be subject to cross-examination by the court
and landowners.
A.
Environmental activities hearing and order
In
December 2010, and January and February 2011, the trial court
held a hearing on the proposed environmental activities. It
considered the declarations filed on behalf of the Department
and the landowners, and the in-person testimony of a number
of Department employees, as well as suggestions, concerns and
objections raised by the landowners and the Department to a
series of tentative orders drafted by the court. On February
22, 2011, the trial court issued a detailed 33-page order
granting the Department limited authority to enter each of
the parcels at issue to conduct the various types of
environmental testing sought by the Department. The order
stated that “[t]he
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court has determined the nature and scope of the activities
reasonably necessary to accomplish the purposes identified,
taking due consideration of constitutional limitations and
statutory procedures required for a taking of property. The
court has provided suitable limitations to strike the best
possible balance between the needs of [the Department] and
the interests of the property owners.”
In
brief summary, the order authorized Department employees to
enter each property[4] for a maximum of 25 to 66 days
(depending on property size) over a one-year period in order
to conduct the designated environmental survey, sampling, and
testing activities (recreational, botanical, hydrolic,
general, habitat, vernal pool, archeological and utility
surveys, and mapping activities) under specific conditions
and limitations set forth in the order with regard to each
type of activity.[5] The authorized environmental
activities generally would be conducted by walking, visual
observation, minor soil and plant sampling and testing,
photography, and trapping and releasing small animals. The
entries would be on foot where practicable, and any vehicle
use would be restricted to existing roads.
The
order required the Department to give a landowner 72-hour
advance notice before each entry, prohibited any entry on
agricultural land during harvest season or on hunting land
during hunting season, limited the number of persons per
entry (two-to-eight persons) by property size, specified the
time of day the activities could be conducted (generally
between 7:00 a.m. and 7:00 p.m.), and provided that most of
the authorized activities were to be conducted concurrently
in order to reduce the total number of days Department
employees would be on the property. No equipment could be
left on the property between entries with the exception of
small traps that could be left for 14 days and small cloth
targets for aerial mapping that could remain on
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the property for between 30 and 38 days (depending on
property size).[6] The order prohibited any inspection of
or entry within 100 feet of an inhabited dwelling, as well as
any entry into any other structures that are not open to the
public. The order also contained a schedule of general
conditions, relating to indemnification, confidentiality,
disclosure of gathered information to landowner, and other
matters.
Finally,
the order set forth a schedule designating by property size
the amount of probable compensation that the Department was
required to deposit prior to entering any property to conduct
the authorized environmental activities. Under the order, the
amount of probable compensation to be deposited ranged from
$1, 000 per property for properties of 100 acres or fewer to
$6, 000 per property for properties of 3, 501 to 8, 500
acres.
B.
Geological activities hearing and order
After
issuing its order relating to the environmental activities,
the trial court held a hearing over a number of days in
February, March, and April 2011, concerning the proposed
geological testing. In declarations and testimony, Department
employees explained that geological tests were needed on 35
properties in order to determine the suitability of the
subsurface of those properties for several alternative
potential alignments of surface canals or underground water
conveyance tunnels.
Two
engineering geologists employed by the Department testified
in some detail with regard to the testing protocol. For each
property, the process would generally begin with a two- or
three-day entry to determine, in consultation with the
property owner and utility and reclamation district
personnel, the best location for the drilling operations,
taking into account existing uses of the property and the
location of underground utilities. The geologists testified
that the sites of the drilling initially suggested by the
Department could be adjusted within the proposed alignment of
the project, and that the goal would be to find locations for
the drilling along existing roads and turnouts in order to
minimize any damage or interference with the
landowner’s ongoing uses of the property.
Once
the optimal sites for drilling were determined, the
Department would first conduct “cone penetrometer
testing” (CPT) on each of the 35 properties. CPT
involves pushing into the ground a long rod that emits
signals to determine the subsurface composition of the tested
land. The CPT creates a hole that is one and one-half inches
in diameter and up to 205 feet in depth,
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and that is refilled after the rod is withdrawn. The CPT
process generally requires four persons and up to four
vehicles (including a five-ton or 25-ton CPT truck) and a
portable toilet, and is generally completed in a single day.
Thus, on properties that the Department proposed to conduct
only CPT, the Department’s proposed geological
activities generally would be completed in a total of no more
than four working days, including the preliminary
identification of the site location.
With
respect to 28 of the 35 properties, the Department geologists
indicated that, in addition to the CPT process, the
Department would need to drill additional, larger “soil
borings” or “drill holes” that would
generally be located within five feet of the CPT hole. The
soil borings or drill holes would range from three and
seven-tenths to eight inches in diameter, would reach up to
205 feet in depth, and would be refilled once the drilling
and retraction of soil for sampling was completed. The
geologists testified that the drilling of drill holes
generally requires a five-person crew and larger and more
equipment than the CPT (generally including a drilling rig,
forklift, support trucks, 55-gallon storage drums, a mudbox,
and a portable toilet). They further testified that in
undertaking this type of drilling the Department would need
to use an area of approximately 100 feet by 100 feet as a
worksite[7] for a period of between five and 10
days (depending upon the depth of the drilling), a period
that would include the time for setting up and taking down
the drilling rig as well as the actual drilling. Accordingly,
with regard to the 28 properties on which both the CTP and
drill holes would be conducted, the geological testing
activities generally would require the Department to be
engaged on each property for no more than a total of 14
working days.
The
geologists further testified that, with respect to both the
CPT and drill holes, the top two to five feet of the holes
would be refilled with native topsoil, to restore the surface
area as closely as possible to its original condition. In
accordance with current California regulations, the lower
depths of the CPT holes and the drill holes would be refilled
with bentonite grout. As described by the geologists,
bentonite grout hardens into a type of cement, but because it
lacks the aggregate materials (sand and gravel) found in
concrete, bentonite grout when hardened is similar in texture
to the native subsurface material that it would replace, is
soft enough to be shaved with a pen knife, would not
interfere with or damage farm machinery, and would not
adversely affect the filled land for agricultural or other
purposes. The geologists explained that bentonite grout is
used in order to provide stability and avoid groundwater
contamination. An expert witness testifying on behalf of
landowners raised no objection to the Department’s
proposed use of bentonite grout and described such use as
“textbook sealing.”
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After
considering the evidence regarding the factual nature and
scope of the proposed geological activities as well as
briefing by all parties regarding the constitutional issues
raised by those proposed activities, the trial court issued
an order denying the Department’s petition as it
related to the proposed geological activities. The trial
court’s order relied heavily upon this court’s
1923 decision in Jacobsen v. Superior Court (1923)
192 Cal. 319 [219 P. 986] (Jacobsen), which denied a
public entity’s request to conduct somewhat similar
drilling activities under an earlier precondemnation entry
statute. (We discuss the Jacobsen decision in detail
below, post, pp. 178-181.) The trial court
acknowledged that the current precondemnation entry and
testing statutes were enacted by the Legislature after the
Jacobsen decision and include boring among the
precondemnation activities explicitly covered by those
statutes. Nonetheless, the court denied the order for the
following reasons: the current statute does not explicitly
state that it is intended to apply to the type of deep
drilling involved in Jacobsen and the present case;
Jacobsen concluded that such drilling activity would
constitute a taking or damaging of property for purposes of
the California taking clause; and because the precondemnation
entry and testing statutes do not satisfy the requirements of
the state takings clause, the precondemnation entry and
testing statutes should not be interpreted to authorize this
type of drilling activity.
C.
Court of Appeal Proceedings
Prior
to the entry of the trial court’s geological testing
order, the landowners initially filed two petitions for writs
of mandate, prohibition, or other appropriate relief in the
Court of Appeal, challenging the trial court’s
environmental testing order and seeking a stay of that order.
The appellate court initially summarily denied the writ
petitions, but this court granted review and directed the
Court of Appeal to order the Department to show cause why the
writs should not issue.
In the
meantime, after the entry of the trial court’s
geological testing order, the Department appealed the trial
court judgment insofar as it denied entry to conduct the
proposed geological activities and the landowners appealed
the judgment insofar as it authorized entry to conduct the
environmental activities. The Court of Appeal stayed the
environmental testing order and consolidated the writ
petitions and appeals for hearing and decision.
After
briefing and argument, the Court of Appeal, in a two-to-one
decision, affirmed the trial court order insofar as it denied
the Department’s petition to conduct geological
activities, but reversed the trial court order insofar as it
granted the Department authority to conduct the environmental
activities. The majority in the Court of Appeal, relying
heavily on this court’s 1923 decision
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in Jacobsen, supra, 192 Cal. 319, concluded
that the current precondemnation entry and testing statutes
would be constitutionally valid if the statutes were
interpreted to authorize only those precondemnation entry and
testing activities that are sufficiently
“innocuous” and “superficial” that
they do not constitute a taking or damaging of property
within the meaning of the California takings clause. Because,
in the majority’s view, the proposed geological
activities “will result in permanent structures being
placed in the ground on the affected landowners’
properties, ” the majority concluded that such
activities constituted a per se taking of property for
purposes of both the federal and state takings clauses. And
in light of the duration and scope of the environmental
activities authorized by the trial court orderpermitting
entry and surveying throughout each property for between 25
to 66 days in a one-year periodthe majority concluded that
the environmental order effectively granted the Department
“a temporary blanket easement for one year.” Such
an easement, the Court of Appeal concluded, constituted a
compensable property interest for purposes of the federal and
state Constitutions’ takings clauses. The majority
rejected the Department’s contention that even if the
geological and environmental activities constitute a taking
or damaging of property for purposes of the California
takings clause, the procedural requirements established by
the current precondemnation entry and testing statutes
satisfy the demands of the state takings clause. The majority
found the statutory procedure constitutionally deficient in
several respects. It determined that the Department was
required to institute a classic condemnation proceeding for a
temporary easement in order to obtain the authority to
undertake the precondemnation environmental and geological
testing activities at issue here.
One
Court of Appeal justice dissented, concluding that neither
the environmental activities authorized by the trial court
nor the geological activities proposed by the Department -
because of their temporary nature and very limited economic
impact - constituted a taking or damaging of property for
purposes of the California takings clause. Furthermore, the
dissenting justice concluded that, in any event, the
procedure embodied in the precondemnation entry and testing
statutes satisfies the requirements of the state takings
clause.
The
Department sought review of the Court of Appeal decision in
this court. We granted review to decide the significant
issues posed by this case.
II.
Current Precondemnation Entry and Testing Statutes
Before
discussing the specific issues raised in this case, we begin
with an overview of the precondemnation entry and testing
statutes contained in Eminent Domain Law. (§§
1245.010-1245.060.)
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Section
1245.010 sets forth the general authority granted to public
entities by the precondemnation entry and testing statutes.
It provides: “Subject to requirements of this article,
any person authorized to acquire property for a particular
use by eminent domain may enter upon property to make
photographs, studies, surveys, examinations, tests,
soundings, borings, samplings, or appraisals or to engage in
similar activities reasonably related to acquisition or use
of the property for that use.” (Ibid.)
Section
1245.020 establishes the circumstances under which the
property owner’s consent or, alternatively, a court
order is required before a public entity can enter property
to conduct precondemnation testing. The section provides:
“In any case in which the entry and activities
mentioned in Section 1245.010 will subject the person having
the power of eminent domain to liability under Section
1245.060, before making such entry and undertaking such
activities, the person shall secure: [¶] (a) The written
consent of the owner to enter upon his property and to
undertake such activities; or [¶] (b) An order for entry
from the superior court in accordance with Section
1245.030.” (Ibid.) In this case, the
Department has acknowledged that either the consent of the
property owner or a court order is required under this
provision before it may enter and conduct the proposed
activities at issue here.
Section
1245.030 sets forth the procedure governing an order for
entry. The section provides: “(a) The person seeking to
enter upon the property may petition the court for an order
permitting the entry and shall give such prior notice to the
owner of the property as the court determines is appropriate
under the circumstances of the particular case. [¶] (b)
Upon such petition and after such notice has been given, the
court shall determine the purpose for the entry, the nature
and scope of the activities reasonably necessary to
accomplish such purpose, and the probable amount of
compensation to be paid to the owner of the property for the
actual damage to the property and interference with its
possession and use. [¶] (c) After such determination,
the court may issue its order permitting the entry. The order
...