March 20th, 2015 — By — In News & Events

Amici Brief Supporting California Property Owners in Eminent Domain Case Argues the Sky Will Not Fall if the State Follows Procedures

The Owners’ Counsel of America (OCA) and the National Federation of IndependentBusiness (NFIB) Small Business Legal Center have filed an amici curiae brief in support of Sacramento-San Joaquin Delta property and business owners in Property Reserve, Inc. v. Superior Court, case number S217738. The brief calls upon the California Supreme Court to uphold a Third District Court of Appeal decision which held that the California Department of Water Resources’ (DWR) request to enter private property to undertake geological and environmental activities such as boring holes and installing permanent structures were not the “innocuous” or “superficial” activities permitted under California law. The Court of Appeal concluded that the level of intrusion on private property requested by DWR would be a taking, and that in order to undertake those activities, the DWR must follow eminent domain procedures.

“The Third District Court of Appeal concluded, and we agree, that the government’s eminent domain power must be used ‘in strict conformity to the constitutional protections and procedures that limit its operation’,” explained Robert H. Thomas, a Director with Damon Key Leong Kupchak Hastert in Honolulu and the Hawaii member of OCA, one of the authors of the OCA-NFIB brief. “In a similar case in 1923, the California Supreme Court held that loyalty to constitutional protections is more important than the government’s ability to operate free of constitutional restraints, and all we’re asking the Court to do in this case is reaffirm that long-standing principle.”

The DWR has proposed a conservation and resource management plan called the Bay Delta Conservation Plan (BDCP). According to its website (, the BDCP includes a multi-million dollar water delivery project planned to divert water from the Sacramento-San Joaquin Delta to the southern regions of the state.

As part of its planning, the DWR requested permission to enter private property under California’s entry statutes (Cal. Civ. Pro. Code § 1245.010 et seq.) before filing suit to take the property by eminent domain. DWR requested permission to perform geological and environmental studies on approximately 240 parcels owned by more than 150 owners. The trial court granted DWR’s request to complete the environmental activities providing DWR deposit with the court an amount of money to compensate for any damages to or interference with the use of the properties.

The court, however, denied DWR’s request to conduct geological testing prior to acquiring the properties through California’s eminent domain procedures. The trial court concluded that the geological activities amounted to a taking or damaging of property and ruled that the entry statutes are unconstitutional if used to authorize DWR’s taking or damaging of private property. It further found that the entry statutes did not comply with article I, section 19, subdivision (a) of the California Constitution (Section 19(a)) – the constitutional provision limiting the use of eminent domain.

Both parties appealed the trial court’s order. In Property Reserve, Inc. v. Superior Court, No. C067758 (Mar. 13, 2014), the Court of Appeal ruled in favor of the property owners finding that the geological activities, which included entering the land, boring holes and installing permanent structures is a taking or damaging of property which requires the State to follow statutory eminent domain procedures. The appellate court also found that DWR’s proposed environmental activities would constitute a temporary taking and cannot be authorized by the entry statutes. DWR sought review by the California Supreme Court.

“Essentially, the appellate court ruled that there is no substitute for eminent domain when there’s been a taking,” said Edward G. Burg, a partner with Manatt, Phelps & Phillips, LLP in Los Angeles and the California member of OCA, who joined Mr. Thomas on the brief. “No matter how small the interest, if the government takes property, it must condemn and pay for it first, and provide all of the protections the eminent domain process has.”

The amici brief filed by the NFIB Small Business Legal Center and OCA argues two points. Amici contend that any significant physical invasion of private property is a taking requiring the payment of just compensation and compliance with eminent domain procedures. The brief disputes the State’s assertions that its adherence to established eminent domain procedures would interfere with its ability to function or to complete this and other projects. Rather, amici argue, at worst complying with eminent domain procedures might be inconvenient for the government, but will not make the project impossible.

“There is no reason to think that this project will grind to a halt should the Court reaffirm the bedrock constitutional principle that the government must condemn and pay just compensation when its invasive activities are of such magnitude that they interfere with an owner’s property rights,” stated Thomas. “The sky will not fall if the California Supreme Court continues to require what the Constitution has always demanded.”

Sharing is caring!