The state sought to build a canal to divert fresh water from northern California around the Sacramento-San Joaquin River Delta to central and southern California. Before condemning the land needed for the project, the California Department of Water Resources sought to conduct surveys and tests on hundreds of parcels of private property to determine the environmental and geological suitability of the properties on which the canal may be built. For its geological studies, the state requested to conduct borings and drillings in the ground that could leave permanent columns of cement in the bored holes up to depths of 200 feet.
The state filed numerous requests in state court under California's "Entry Statutes" (Code of Civil Procedure section 1245.010 et seq.) for orders to conduct the geological and environmental studies. The trial court refused the state's request to conduct the geological activities because it found that these activities constituted a "taking" of property that can be authorized only in an eminent domain action. Eminent domain is the power of public agencies to take private property for "public use" so long as the government pays "just compensation." The trial court, however, approved the state's request to conduct environmental studies, allowing the state to enter targeted properties for such purpose for up to 66 days during the year with up to eight staff at each entry.
Both the state and landowners challenged the trial court's decision. The state challenged the denial of its request to conduct geological activities, and the landowners challenged the decision allowing for the environmental testing.
The Court of Appeal concluded that both the geological activities and the environmental activities constitute a taking that requires the filing of an eminent domain proceeding. The court held that the geological activities will intentionally result in a permanent physical occupation of private property, defined constitutionally as a taking. The environmental activities will effect a taking because the state will intentionally acquire a temporary property interest of sufficient character and duration to require being compensated.
The Court of Appeal held that the state could not use the entry statutes to accomplish these takings. "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 will all of his constitutional protections against the state's authority."
Property Reserve, Inc. v. Superior Court of San Joaquin County (2014) 224 Cal.App.4th 828.