Private property owners in the California Delta cannot be forced to give state access to their lands to study a massive twin water tunnels project that would ship northern water south, a split state appeals court ruled Thursday.
What’s known as the Bay Delta Conservation Plan may face added delays as a result of the ruling that environmental and geological studies on hundreds of properties over thousands of acres amount to a “taking” of property. The project carries an estimated cost for construction of nearly $15 billion.
The ruling by the Third District Court of Appeal in Sacramento would entitle the landowners to eminent domain proceedings.
“The geological activities will intentionally result in a permanent physical occupation of private property, defined constitutionally as a taking per se,” wrote Justice George Nicholson, joined by Justice Andrea Lynn Hoch.
“The environmental activities will work a taking because they intentionally acquire a temporary interest of sufficient character and duration to require being compensated,” Nicholson wrote.
The state has proposed a tunnel, or canal, to divert fresh water from Northern California, around the Sacramento-San Joaquin River Delta to Central and Southern California. To pursue the plan, the state needs to conduct surveys, tests and borings on parcels of land that would potentially be acquired for locating and constructing the project.
The appeal stems from coordinated lawsuits affecting 150 property owners on 240 parcels in San Joaquin, Contra Costa, Solano, Yolo and SacramentoCounties.
The properties affected are used primarily for commercial agriculture, cattle ranching and recreation, according to the court.
Although the drill holes to test the soil would be small, six inches wide and 200 feet deep, they would be filled with grout and “result in a permanent occupancy” of the property.
The court also objected to experts walking and driving on private property to survey for the existence of sensitive plant and animal species, study river channels and wetlands or dig for historic relics.
Justice Cole Blease dissented arguing that any harm to Delta landowners was “speculative.”
He said he would reverse the trial court decision denying entry on the lands for the purpose of conducting geological surveys.
Case: Property Reserve Inc v. Sup. Ct. San Joaquin, No. C06775