The opinion
Filed 3/13/14
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(San Joaquin)
----
PROPERTY RESERVE, INC.,
C067758
Petitioner,
(JCCP No. 4594)
v.
THE SUPERIOR COURT OF SAN JOAQUIN
COUNTY,
Respondent;
DEPARTMENT OF WATER RESOURCES,
Real Party in Interest.
CAROLYN A. NICHOLS, as Trustee, etc., et al., C067765
Petitioners, (JCCP No. 4594)
v.
THE SUPERIOR COURT OF SAN JOAQUIN
COUNTY,
Respondent;
DEPARTMENT OF WATER RESOURCES,
Real Party in Interest.
1
COORDINATED PROCEEDINGS SPECIAL TITLE C068469
(RULE 3.550) DEPARTMENT OF WATER
RESOURCES CASES. (JCCP No. 4594)
APPEAL from a judgment of the Superior Court of San Joaquin County and
ORIGINAL PROCEEDINGS in mandate and prohibition. John P. Farrell, Judge.
(Retired judge of the L.A. Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6
of the Cal. Const.) Affirmed in part, reversed in part, and petitions granted.
Matteoni, O’Laughlin & Hechtman, Norman E. Matteoni, Gerry Houlihan; Kirton
& McConkie and Christopher S. Hill for Petitioner and Appellant Property Reserve, Inc.
Freeman, D’Aiuto, Pierce, Gurev, Keeling & Wolf, Thomas H. Keeling, Arnold J.
Wolf; Downey Brand, Scott D. McElhern; Nomellini, Grilli & McDaniel, Dante J.
Nomellini, Jr.; Somach Simmons & Dunn and Daniel Kelly for Petitioners and
Appellants Carolyn A. Nichols et al.
No appearance for Respondent Superior Court of San Joaquin County.
Kamala D. Harris, Attorney General, Steven M. Gevercer, Assistant Attorney
General, Alberto González, John M. Feser, Jr., Michael P. Cayaban, and James C.
Phillips, Deputy Attorneys General, for Real Party in Interest and Appellant.
Best Best & Krieger and Stefanie D. Hedlund for State Water Contractors as
Amicus Curiae on behalf of Real Party in Interest and Appellant.
2
This case tests the strength of the constitutional rights granted landowners against
the state’s authority to take private property. The State of California (the State) 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 difficulty here is
that those precondemnation activities may themselves be a taking; an intentional taking
the California Constitution has always required to be directly condemned in a
condemnation suit brought by the condemnor 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.
Pursuant to a statutory procedure that purports to authorize these precondemnation
activities, the State petitioned the trial court for orders to enter the affected private
properties and conduct the studies. For the geological studies, the State requested
authority to enter the properties and conduct borings and drillings in the ground that
would leave permanent columns of cement in the bored holes up to depths of 200 feet.
The court denied the State’s petition for the geological activities. It ruled these activities
constituted a taking, and they could be authorized only in a direct condemnation action,
not by the precondemnation procedure.
The trial court, however, granted the State’s petition to enter the affected
properties to conduct environmental studies. It effectively granted the State a blanket
temporary easement for one year, during which the State may enter the properties and
conduct its studies for up to 66 days during the year with up to eight personnel each
entry. The court concluded such access and the environmental activities to be performed
did not work a taking. As required by the statutory procedure, the court conditioned the
environmental entries on the State depositing an amount of money the court determined
to be the probable amount necessary to compensate the landowners for actual damage to,
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or substantial interference with their possession or use of, their properties, which the
State’s activities may cause.
The State appealed from the trial court’s denial of its petition to conduct the
geological activities. The gist of the State’s appeal has been the court erred in denying
the geological petition and the State can perform the activities under the statutory
precondemnation procedure, but the State’s arguments for why it believes the court erred
have changed and contradicted each other throughout this litigation such that its latest
concession defeats its appeal.
The landowners petitioned and appealed for relief from the trial court’s granting
the State authority to conduct the environmental activities. They claimed the court erred
in granting the environmental petition because the entries constitute a taking that cannot
be acquired through the statutory entry proceeding but must instead be directly
condemned in a condemnation suit.
We conclude both the geological activities and the environmental activities as
authorized will work a taking. The geological activities will intentionally result in a
permanent physical occupation of private property, defined constitutionally as a taking
per se. The environmental activities will work a taking because they intentionally acquire
a temporary property interest of sufficient character and duration to require being
compensated.
We also conclude the statutory precondemnation procedure cannot be used to
accomplish these intentional takings. If an entity with the power of eminent domain
intentionally seeks to take property or perform activities that will result in a taking, the
California Constitution requires that entity to directly condemn the affected property
interest in an authorized condemnation suit it brings and in which a landowner receives
all of his constitutional protections against eminent domain. The statutory
precondemnation procedure does not provide such a suit, as it fails to authorize the
determination of the value of the property interest intentionally sought to be taken and to
4
do so in a noticed hearing, and it fails to provide for a jury determination of just
compensation in that hearing.
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.
FACTS
The State proposes to construct 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 proposal, the State, by and through the Department of
Water Resources, sought to conduct surveys, tests, and borings on parcels of land that
could potentially be acquired for locating and constructing the project. In 2009, the State
filed numerous petitions pursuant to Code of Civil Procedure section 1245.010 et seq.
(referred to as the entry statutes) for orders for entry to conduct the studies and borings.
Ultimately, the petitions were judicially coordinated, and the State filed a master petition
to obtain the rights of entry. The coordinated proceedings affect more than 150 owners
of more than 240 parcels in San Joaquin, Contra Costa, Solano, Yolo, and Sacramento
Counties.
The properties, totaling tens of thousands of acres, are used primarily for various
commercial agriculture enterprises, cattle ranching, and recreation. Many of the parcels
are improved with residences, barns and other out buildings and storage facilities, wells
and irrigation systems, utilities, roads, and other infrastructure. Many are also
5
encumbered with easements in favor of various public utilities, including reclamation
districts that maintain levies on the properties.
With its master petition, the State sought entry onto these properties for the
following precondemnation purposes: “(1) to investigate potential impacts of a water
conveyance system to, among other things, biological resources, water resources,
environmental resources, geology, archeology and utilities found on the Subject
Properties; (2) to investigate the feasibility of alternative types of water conveyance
systems, the best alternative conveyance alignment location, and the best alternative
corridor location within each alternative conveyance alignment location; (3) to
investigate the various types of conveyance systems, including surface level canals,
surface level pipelines, and buried tunnels; (4) to investigate conveyance alternative
locations, including a west alignment, a through-Delta or dual alignment, and an east
alignment, and (5) to investigate whether a water conveyance system should be
constructed in the Delta.”
The State sought authority to conduct what it designated as two general categories
of precondemnation activities: environmental activities and geological activities. It
sought to conduct the environmental activities on all of the parcels in the coordinated
action, and to conduct the geological activities on selected parcels. It alleged the
activities would require entry for a total of 60 intermittent 24-hour days spread over a
period of two years for each of the parcels.
In general, the environmental activities consisted of various surveys to determine
and document each parcel’s botany and hydrology; the existence of sensitive plant and
animal species; the existence of vernal pools, wetlands, and other animal habitat; the
existence of cultural resources and utilities; and the parcel’s recreational uses. Personnel
would also map the properties using aerial photography and large targets secured by
stakes. Personnel would take minor soil samples, and they would observe and trap
6
certain animal species. They would access the properties by motor vehicle, on foot, and
by boat when necessary.
The geological activities involved various soil testing and boring activities that
would affect 35 parcels. One type of test involved inserting a one and one-half-inch
diameter rod into the ground up to a depth of 200 feet to learn various soil characteristics.
Another test involved boring into the ground up to a depth of 205 feet, creating a hole
roughly six inches in diameter, and removing soil cores and samples for review and
testing. The holes created by both types of tests would be filled with a permanent
cement/bentonite grout.
The trial court bifurcated the proceeding and conducted separate hearings on the
petitions to enter and conduct the environmental activities and the geological activities.
On February 22, 2011, it issued an order, referred to by the parties as the entry order,
granting the State’s petitions to enter the parcels and conduct the environmental
activities, subject to a number of conditions. In its order, the court noted it had taken
“due consideration of constitutional limitations and statutory procedures required for a
taking of property,” and that it had “provided suitable limitations to strike the best
possible balance between the needs of [the State] and the interests of the property
owners.” It ordered the State to deposit $1,000 to $6,000 per owner based on the amount
of property owned as probable compensation for actual damages or substantial
interference with the owner’s use or possession of his property the entries would cause.
On April 8, 2011, the trial court denied the State’s petition to conduct the
geological activities on any of the properties. It ruled the activities constituted a taking or
damaging, and the entry statutes were unconstitutional if used to take or damage
property. The court stated the State had conceded its geological borings would result in a
taking or damaging of property, and the court so found. 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 state constitutional provision limiting the use of eminent
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domain, and thus they could not be used to authorize the State’s proposed taking or
damaging of property. The entry statutes failed to satisfy Section 19(a) because the court
proceeding they authorized was not an “eminent domain proceeding” as referenced in
Section 19(a) that provided the affected landowners with all of their constitutional rights
against the State’s exercise of eminent domain authority, including the right to a jury
determination of just compensation.
Challenges to the court’s rulings came from both sides. Landowners filed two
petitions for writs of mandate, prohibition, or other appropriate relief in this court seeking
reversal of the trial court’s entry order authorizing the environmental activities. They
contended the entry order unlawfully authorized a taking of private property in violation
of Section 19(a) and its requirement that a taking occur only after commencement of an
eminent domain proceeding. Our court initially denied the petitions, but the Supreme
Court granted review and directed us to issue an order to the State to show cause why the
writs should not issue. We issued that order on July 19, 2011.
Meanwhile, the State appealed from the court’s judgment denying entry for the
geological activities. The State claims the trial court erred in denying entry, but, as we
will explain below, its arguments of why the court erred have changed throughout this
action. The landowners also filed appeals from the judgment, again challenging the
environmental entry order as an unconstitutional taking and raising additional procedural
issues.
We stayed the entry order and consolidated the writ petitions and the appeals for
hearing and decision.
DISCUSSION
I
The State’s Appeal
The State contends the trial court erred when it denied its petition to perform the
geological activities. However, its arguments for why it believes the court erred have
8
changed, and contradicted each other, throughout the course of this litigation to the point
that its latest concession defeats its appeal. The issues it raised in its appeal, however, are
questions of law affecting significant government and public interests that will arise
again. Accordingly, besides deciding the State’s appeal on its concession, we also
address those important issues by resolving the following questions of law based on
undisputed facts: first, do the geological activities constitute a taking; and, second, if so,
do the entry statutes provide an eminent domain proceeding for a direct condemnation in
which the affected landowners receive all of their constitutional rights against the State’s
exercise of its eminent domain authority?
We conclude, as the State earlier conceded, the geological activities will work a
taking per se, as they will result in a permanent occupancy of private property. As a
result, the State must exercise its eminent domain authority before it can perform the
geological activities.
We also conclude, as the State most recently conceded, the entry statutes do not
provide a constitutionally valid eminent domain proceeding by which the State can take
the landowners’ property interests to accomplish the geological activities. This is
because the proceeding, as a matter of California constitutional law, does not provide for
a condemnation suit in which the landowners receive all of their constitutional rights
against the State’s exercise of its eminent domain authority, including the right to a jury
determination of just compensation for a direct and permanent taking.
We first explain how the geological activities constitute a taking. We then explain
the constitutional doctrines that govern the entry statutes and show why the latter do not
conform to the former when a taking such as this is sought by the state.
A. The geological activities will work a taking per se
1. Additional background information
There is no dispute the geological activities will result in permanent structures
being placed in the ground on the affected landowners’ properties. In a declaration
9
accompanying the State’s petition for the entry order, a supervising land agent for the
State testified the geological activities would necessitate compensation to the affected
landowners.
At the evidentiary hearing on the petition, expert witnesses explained that the
geological activities would involve two main types of activities. The first is referred to as
cone penetrometer testing (CPT). For this test, operators push a rod into the ground up to
a depth of 200 feet. CPT provides a mechanical measurement of the force on the front of
the tip of the rod being pushed into the ground, and the friction it incurs while being
pushed down. It also accommodates an electrical measurement of the soil’s weight
velocity. After the test is complete, the rod is withdrawn, and the hole, about one and
one-half inches in diameter, is filled with a permanent grout made up of 95 percent
cement and five percent bentonite.1
A CPT can take up to 10 hours to perform, plus an additional two days for meeting
landowners and setting up the equipment. It involves the use of a CPT truck, a support
truck, a trailer, two operators, a geologist with his truck, and an environmental scientist
with his truck.
The second geological activity is boring. For this, operators will bore into the
ground to depths of up to 205 feet. Soil samples and cores will be removed and tested.
Bore holes will be approximately six inches in diameter. Each boring will remove up to
2.04 cubic yards of earth, which will be replaced by a column of near equal volume of
permanent cement/bentonite grout. Operators will fill the hole with the grout, which
dries and settles a bit, and they will cover the remainder of the hole with soil. If
requested by the landowner, they will fill the hole up to two feet from the surface with the
1 Bentonite is an “absorptive and colloidal clay used [especially] as a sealing agent
or suspending agent . . . .” (Merriam-Webster’s Collegiate Dict. (11th ed. 2006) p. 114.)
10
grout, and cover the remainder. Significant amounts of mud for drilling would also be
injected into the bore holes as part of the boring, recovered, and removed from the sites.
The boring would require use of a drill rig, a support truck for transporting
personnel and samples, occasionally a forklift and containers or drums for mud, and
personnel. Each bore site would occupy 10,000 square feet of land. Conducting the
boring would require up to 10 days per hole.
The State proposed to conduct 46 CPT’s and bore 41 holes across a total of 35
parcels. Some parcels would incur only one hole for one of the tests, others would incur
up to a total of nine holes.
In supplemental briefing in the trial court, the State conceded the geological
activities would constitute a compensable taking or damaging. It conceded “the
geological borings and boring backfill activities it seeks to conduct constitute a ‘taking or
damaging’ of private property for public use.” In a supplemental posthearing brief filed
in the trial court, the State attempted to modify its concession by stating the geological
activities would constitute a compensable damaging, but not a taking. This was because
the geological activities allegedly would not substantially interfere with the landowners’
possession or use of their property or cause any economic impact to them.
At oral argument here, the State asserted the geological activities did not constitute
a taking and thus need not have been performed pursuant to its eminent domain authority.
2. Analysis
As originally conceded by the State, the geological activities will work a taking.
They would result in a permanent physical occupation by the government removing earth
from the parcels and filling the CPT holes and bore holes with a permanent column of
cement/bentonite grout to depths of up to 205 feet. “[A] permanent physical occupation
authorized by government is a taking without regard to the public interests that it may
11
serve.” (Loretto v. Teleprompter Manhattan CATV Corp. (1982) 458 U.S. 419, 426 [73
L.Ed.2d 868, 876] (Loretto).)
In Loretto, the United States Supreme Court determined a state statute that
authorized a cable television carrier to attach a cable and two cable boxes on the roof of a
residential apartment building worked a taking per se. The high court wrote: “[W]e have
long considered a physical intrusion by government to be a property restriction of an
unusually serious character for purposes of the Takings Clause. Our cases further
establish that when the physical intrusion reaches the extreme form of a permanent
physical occupation, a taking has occurred. In such a case, ‘the character of the
government action’ not only is an important factor in resolving whether the action works
a taking but also is determinative.” (Loretto, supra, 458 U.S. at p. 426.) “[A] permanent
physical occupation is a government action of such a unique character that it is a taking
without regard to other factors that a court might ordinarily examine.” (Id. at p. 432, fn.
omitted.) “[W]hen the ‘character of the governmental action,’ [citation], is a permanent
physical occupation of property, our cases uniformly have found a taking to the extent of
the occupation, without regard to whether the action achieves an important public benefit
or has only minimal economic impact on the owner.” (Id. at pp. 434-435.)
Quoting Professor Michelman, the Loretto Court stated: “ ‘The modern
significance of physical occupation is that courts . . . never deny compensation for a
physical takeover. The one incontestable case for compensation (short of formal
expropriation) seems to occur when the government deliberately brings it about that its
agents, or the public at large, “regularly” use, or “permanently” occupy, space of a thing
which theretofore was understood to be under private ownership.’ [Citation.]” (Loretto,
supra, 458 U.S. at pp. 427-428, fn. 5, quoting Michelman, Property, Utility, and Fairness:
Comments on the Ethical Foundations of “Just Compensation” Law (1967) 80
Harv.L.Rev. 1165, 1184, original italics.)
12
Significantly for our purposes, the Loretto court ruled the size of the permanent
physical occupation had no effect on determining whether a taking had occurred. The
cable equipment at issue in Loretto displaced only one and one-half cubic feet of space,
less than the volume of earth to be removed and the permanent grout to be filled in each
of the bore holes here, but the high court still held it to be a taking. (Loretto, supra, 458
U.S. at p. 438, fn. 16.) “[C]onstitutional protection for the rights of private property
cannot be made to depend on the size of the area permanently occupied.” (Id. at p. 436,
fn. omitted.) “[W]hether the installation is a taking does not depend on whether the
volume of space it occupies is bigger than a breadbox.” (Id. at p. 438, fn. 16.) Indeed,
“ ‘ “[an] owner is entitled to the absolute and undisturbed possession of every part of his
premises, including the space above, as much as a mine beneath.” ’ ” (Id. at p. 436, fn.
13, quoting United States v. Causby (1946) 328 U.S. 256, 265, fn. 10 [90 L.Ed. 1206,
1212].) “Our cases establish that even a minimal ‘permanent physical occupation of real
property’ requires compensation under the [5th Amendment Takings] Clause.
[Citation.]” (Palazzolo v. Rhode Island (2001) 533 U.S. 606, 617 [150 L.Ed.2d 592, 607]
(Palazzolo).)
The State’s proposed geological activities will work a taking, as they will result in
a permanent occupancy of private property. The State proposes to bore holes in the
ground between 100 and 205 feet deep with a diameter of up to six inches, remove the
earth from those borings, and fill the holes with the permanent cement/bentonite grout. It
also proposes to push a rod one and one-half inches in diameter to a depth of up to 200
feet, and then fill the resulting hole with cement/bentonite grout. The grout is comprised
of 95 percent cement and five percent bentonite. The State’s expert witness described the
grout as “a permanent physical” column of “hardened cement.”
Under Loretto, the State’s action will be a taking. Removing earth from private
property and replacing it with a permanent, physical column of cement to depths of 205
feet is the type of physical invasion and occupation Loretto mandates must be acquired
13
by eminent domain and compensated. The cement column destroys the landowner’s right
to possess, use, and dispose of that property to the extent of the column’s size. It makes
no difference that the top of the cement column may be covered by two feet of soil, will
affect a small portion of each landowner’s property, may serve a beneficial purpose, or
will have only minimal economic impact on the landowner. An intentional, permanent
physical occupation by the government such as this is “of such a unique character that it
is a taking without regard to other factors that a court might ordinarily examine.”
(Loretto, supra, 458 U.S. at p. 432, fn. omitted.)
B. The entry statutes are not a constitutional eminent domain proceeding to acquire
interests in private property directly
Having concluded the geological activities will work a taking per se, we must
determine whether the State may exercise its eminent domain power and acquire interests
in the landowners’ properties directly by means of the entry statutes. In other words, we
must determine whether the entry statutes provide a constitutionally valid means to
directly condemn property interests.
To be constitutionally valid, the entry statutes must at least provide the rights
granted under Section 19(a) to affected landowners against the State’s exercise of
eminent domain power. Section 19(a) consists of two sentences, and they read in full:
“Private property may be taken or damaged for a public use and only when just
compensation, ascertained by a jury unless waived, has first been paid to, or into court
for, the owner. The Legislature may provide for possession by the condemnor following
commencement of eminent domain proceedings upon deposit in court and prompt release
to the owner of money determined by the court to be the probable amount of just
compensation.”
Here again, the State’s arguments have not been consistent. At trial, the State
contended the entry statutes’ proceeding was not an eminent domain proceeding, but
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nonetheless could be used to acquire interests in private property because it provided
landowners with all of their constitutional rights against the exercise of eminent domain.2
In its opening brief before us, the State continued to argue it could take or damage
property under the entry statutes because they allegedly provided the affected landowners
the constitutional rights guaranteed them under the first sentence of Section 19(a),
including a jury determination of just compensation by means of allowing the landowners
to file a new civil action to recover for the intentional taking. The State asserted the
second sentence of Section 19(a) did not apply to the entry statutes because the latter did
not commence an eminent domain proceeding.
The State has since changed its position twice. In supplemental briefing before us,
the State conceded the entry statutes’ proceeding did not comply with the first sentence of
Section 19(a), almost certainly because the proceeding did not provide for a jury
determination of just compensation prior to the State entering the property. Instead, the
State argued the proceeding complied with the second sentence of Section 19(a) because
it was an eminent domain proceeding by which entry could be gained prior to a final
determination of just compensation. The proceeding allegedly provided the landowners
with all of their constitutional rights against the exercise of eminent domain power,
including the determination of a probable amount of just compensation before the State
entered the property, and the prompt release of that money. In this brief, the State said
nothing about the right to a jury trial to determine just compensation.
At oral argument, the State changed its position again.3 This time, it conceded the
entry statutes did not authorize a taking because their procedures were not an eminent
2 The landowners’ request for judicial notice filed November 4, 2011, is granted.
3 “We take a dim view of counsel’s decision to wait until oral argument to apprise
this court that a claim is being abandoned. When counsel learns of new facts that cause
him to abandon a claim, the proper course is promptly to advise opposing counsel and the
15
domain proceeding, as referenced in Section 19(a)’s second sentence. In other words, the
State now claims the entry statutes may not be used to authorize precondemnation
activities that result in a compensable taking of private property. Because we have
determined the geological activities will work a taking per se, just as the State conceded
in the trial court, the State’s latest concession, that the entry statutes may not be used to
authorize a taking, ends the State’s appeal.
We treat the State’s concession at oral argument that the entry statutes do not
provide a constitutionally valid eminent domain proceeding as binding for purposes of
this appeal. (See Bell v. Tri-City Hospital Dist. (1987) 196 Cal.App.3d 438, 449,
disapproved on another ground in State of California v. Superior Court (2004) 32 Cal.4th
1234, 1244.)
However, because the facial challenge to the entry statutes the State and the
landowners originally disputed raises a question of significant public interest and law, we
decide this case based on the State’s concession, but, as well, do so by also resolving the
facial challenge. Whether the entry statutes provide an eminent domain proceeding that
facially complies with the constitutional limits on the State’s exercise of eminent domain
power is a question of first impression.
Generally, we assume the Legislature intended to adopt a constitutional statute,
and where a statute is susceptible to two constructions, one of which will render the
statute unconstitutional, we must adopt the meaning that, without doing violence to the
statute’s language, renders the statute valid. (People v. Superior Court (Romero) (1996)
13 Cal.4th 497, 509.) However, that rule does not apply so broadly to statutes
authorizing the use of eminent domain authority. “ ‘Statutory language defining eminent
domain powers is strictly construed and any reasonable doubt concerning the existence of
court.” (Avila v. Citrus Community College Dist. (2006) 38 Cal.4th 148, 163, fn. 8,
original italics.)
16
the power is resolved against the entity.’ [Citation.]” (Burbank-Glendale-Pasadena
Airport Authority v. Hensler (2000) 83 Cal.App.4th 556, 562.) The exercise of eminent
domain authority “is strictly defined and limited by the express terms of the constitution
or statute creating it.” (Jacobsen v. Superior Court (1923) 192 Cal. 319, 325
(Jacobsen).) In California, Section 19(a) is the “ ‘the exclusive and comprehensive
authority in the California Constitution for the exercise of the power of eminent domain
and for the payment of compensation to property owners when private property is taken
or damaged by state or local government.’ ” (Historical Notes, 1D West’s Ann. Codes,
Cal. Const. (2012 ed.) foll. § 19, p. 333.)
Consistent with these rules of review, we conclude the entry statutes’ proceeding
does not facially satisfy the demands of Section 19(a) as it applies to an intentional
taking. Section 19(a) limits the intentional exercise of eminent domain authority
exclusively to the filing of a condemnation suit that provides the affected landowners
with all of their constitutional rights against the State’s exercise of eminent domain
authority in that suit, including a determination of the probable amount of just
compensation for the acquisition of a property interest and the right to a jury
determination of just compensation. The entry statutes’ proceeding is not such a
condemnation suit.
1. Jacobsen
The starting point of our analysis is Jacobsen, supra, 192 Cal. 319. Despite its
age, Jacobsen’s holding applies today: a condemnor may not engage in precondemnation
activities that will work a taking or damaging unless it first files a condemnation suit that
provides the affected landowner all constitutional rights against the state’s exercise of
eminent domain. The facial challenge to the entry statutes asks us to determine whether
the entry statutes’ procedure for taking or damaging property is such a suit. Because the
parties disagree as to Jacobsen’s role in this matter, we discuss it at length.
17
In Jacobsen, a municipal water district sought private landowners’ consent to enter
their properties to conduct borings and excavations to determine whether the properties
would support a proposed reservoir. Personnel would bore holes three to eight inches in
diameter and 150 feet in depth. They would also excavate pits four feet by six feet and
up to 15 feet deep. Four men would be on the premises for 60 days to accomplish the
work. At some locations, the work would damage or destroy growing crops. Upon
completing the work, personnel would restore the lands to their original conditions.
(Jacobsen, supra, 192 Cal. at pp. 321-323.)
When the landowners refused to consent to the entries, the district filed a
complaint for injunctive relief to prohibit the landowners from preventing the district’s
entry to conduct the work pursuant to the entry statute then in effect, Code of Civil
Procedure former section 1242.4 The trial court granted a temporary restraining order
against the owners. It also ordered the district to deposit $1,000 with the court as security
for any damages the work might cause. Aggrieved by the judgment, the landowners
petitioned the Supreme Court for a writ of prohibition. (Jacobsen, supra, 192 Cal. at pp.
322, 324.)
Defending the trial court’s order, the district argued the proposed work did not
amount to a taking or damaging, but was instead expressly permitted by former section
1242. The high court was “unable to give [its] assent to either of these propositions.”
(Jacobsen, supra, 192 Cal. at p. 324.)
The Supreme Court first described the landowners’ constitutional rights that
limited a condemnor’s exercise of eminent domain power. That power “has always and
everywhere been limited and safeguarded by express provisions of the constitutions and
4 Subsequent undesignated section references are to the Code of Civil Procedure.
18
statutes of the several states and it has been uniformly held that being in invitum[5] and in
derogation of the common right, its exercise is strictly defined and limited by the express
terms of the constitution or statute creating it. [Citations.]” (Jacobsen, supra, 192 Cal. at
p. 325, original italics.) Specifically, the constitutional requirement that private property
not be taken without just compensation required “a proceeding in court in the nature of a
condemnation suit wherein the necessity for the taking of the property for the alleged
public use could first be litigated and determined and wherein also the damages resultant
upon such taking could be ascertained and provided for. [Citation.]” (Ibid., italics
added.)
Answering the district’s two primary contentions, the Supreme Court first ruled
the proposed borings and excavations amounted “pro tanto” to a taking.6 (Jacobsen,
supra, 192 Cal. at p. 327, original italics.) The court stated: “It is idle to attempt to argue
that such entry, occupation, disturbance, and destruction of the properties of these
petitioners would not constitute such an interference with their exclusive rights to the
possession, occupation, use, and enjoyment of their respective holdings as would amount
to a taking and a damaging thereof to the extent and during the period of such entry upon
said lands and of the operations of the corporation thereon.” (Id. at p. 328.)
As to the district’s second contention, the Jacobsen court ruled former section
1242 did not authorize a taking by its language, and also could not be read to authorize a
taking without violating the landowners’ constitutional rights. Former section 1242
authorized the condemnor to enter land and “ ‘make examinations, surveys, and maps
thereof, and such entry shall constitute no cause of action in favor of the owners of the
5 In invitum means “[a]gainst an unwilling person.” (Black’s Law Dict. (9th ed.
2009) p. 854.)
6 Pro tanto means “[t]o that extent; for so much; as far as it goes . . . .” (Black’s
Law Dict., supra, p. 1343.)
19
land, except for injuries resulting from negligence, wantonness, or malice.’ ” (Jacobsen,
supra, 192 Cal. at p. 329.) The statute did not authorize the borings and excavations the
district sought to perform prior to condemnation.
More significantly, even if former section 1242 had authorized borings, it did not
provide landowners with their constitutional rights against the exercise of eminent
domain, including the filing of a condemnation suit in which the validity of the taking
and just compensation could be determined. Former section 1242 required a
condemnation action to acquire the property being studied to have been filed before the
condemnor entered the property to conduct its studies and tests, but even with a
complaint already filed to condemn the property as so required, the high court ruled the
entry statute still could not be used to authorize a taking. A separate condemnation suit
had to be filed by the government to perform the entry. The Jacobsen court wrote: “But
however this may be [referring to the requirement to file a condemnation action first], it
is clear that whatever entry upon or examination of private lands is permitted by the
terms of this section cannot amount to other than such innocuous entry and superficial
examination as would suffice for the making of surveys or maps and as would not in the
nature of things seriously impinge upon or impair the rights of the owner to the use and
enjoyment of his property. Any other interpretation would, as we have seen, render the
section void as violative of the foregoing provisions of both the state and the federal
constitution.” (Jacobsen, supra, 192 Cal. at p. 329, italics added.)
In other words, if the precondemnation entry works a taking, “[t]he only means by
which [the condemnor] can acquire such property without the owner’s consent is through
the exercise of the right of eminent domain. The only legal procedure provided by the
constitution and statutes of this state for the taking of private property for a public use is
that of a condemnation suit which the constitution expressly provides must first be
brought before private property can be taken or damaged for a public use. ([Cal. Const.,
art. I, former § 14, now see Section 19(a)].)” (Jacobsen, supra, 192 Cal. at p. 331, italics
20
added & omitted.) Former section 1242 did not require the district to file a condemnation
suit before entering private property to conduct its tests, and thus, the district’s attempt to
work a taking by means of a complaint for injunctive relief based on former section 1242
instead of a condemnation suit with its attendant constitutional protections violated the
landowners’ constitutional rights.
Of importance here, the Jacobsen court recognized that the California
Constitution, in a precursor to Section 19(a)’s current second sentence, then authorized
certain condemnors for reservoir purposes to take immediate possession of property
before just compensation has been determined “ ‘upon first commencing eminent domain
proceedings according to law in a court of competent jurisdiction and thereupon giving
such security in the way of money deposits as the court in which such proceedings are
pending may direct . . . to secure the owner of the property sought to be taken immediate
payment of just compensation for such taking.’ This exception,” wrote the Jacobsen
court, “only serves to emphasize the otherwise general rule that no court in any other
action or proceeding than an action in eminent domain has jurisdiction to order the taking
or damage of private property for a public use.” (Jacobsen, supra, 192 Cal. at p. 331,
italics added.) Both the acquisition of the property being studied, and the performance of
the studies that will result in a taking, could be authorized only by separate actions in
eminent domain.
Jacobsen thus sets the constitutional foundation for the issue we face. If the State
desires to enter private property to conduct tests in a manner that will cause actual
damage to the property or result in a taking, it can do so only by first filing a
condemnation suit for that purpose and which provides in that suit all constitutional rights
granted to a property owner against the State’s power of eminent domain.7
7 Lifting a line from County of San Luis Obispo v. Ranchita Cattle Co. (1971) 16
Cal.App.3d 383 (Ranchita Cattle), the State asserts the requirement to file a separate
21
2. The current entry statutes
Is the proceeding provided by the current entry statutes such a condemnation suit?
The current entry statutes are the result of attempts by the Legislature to provide a
precondemnation entry procedure that complies with the rule of Jacobsen.8 In various
entry statutes and government liability statutes enacted after Jacobsen and in the current
entry statutes, the Legislature attempted to address both of the failings found by the
Jacobsen court in former section 1242. First, the current entry statutes expressly
authorize a condemnor to enter private property to conduct the activities the State seeks
to conduct here. The condemnor may “enter upon property to make photographs, studies,
surveys, examinations, tests, soundings, borings, samplings, or appraisals or to engage in
condemnation suit to perform precondemnation studies that work a taking may “require
the agency to perform a useless act” if the State later decides not to acquire the entire
property. (Id. at p. 389.) The State reads the Ranchita Cattle court’s statement out of
context. The Ranchita Cattle court was discussing the requirement, as existed at the time
of Jacobsen, that an eminent domain action for the entire property sought to be
condemned had to have been filed before the condemnor could engage in
precondemnation studies. The court stated that if it construed the subsequently revised
entry statutes to compel the condemnor to first file an eminent domain action to condemn
the entire parcel sought for the public project, and then the condemnor later “abandon[ed]
[that eminent domain] action upon discovery, after survey, that the land was unsuitable,
such construction would require the agency to perform a useless act.” (Ibid.) The useless
act was requiring a condemnor to condemn the entire parcel before allowing the
condemnor to enter the land to study it, not requiring the condemnor to condemn
whatever interest it required in order to conduct the studies it desired to perform.
Nothing in Ranchita Cattle questioned Jacobsen’s requirement that a condemnor initiate
a separate condemnation suit to perform studies that themselves are or will result in an
intentional taking.
8 We grant the State’s request for judicial notice, filed on October 19, 2011, of the
legislative history that led up to the enactment of the entry statutes with the exception of
exhibit No. 4, correspondence from Senator Alfred H. Song to Governor Ronald Reagan.
Letters by a bill’s sponsor to the Governor without an indication the author’s views were
made known to the Legislature as a whole are inadmissible legislative history. (Kaufman
& Broad Communities, Inc. v. Performance Plastering, Inc. (2005) 133 Cal.App.4th, 26,
37.)
22
similar activities reasonably related to acquisition or use of the property for [the
proposed] use.” (§ 1245.010.)
Second, the State argued the current entry statutes purport to grant an affected
landowner all of his constitutional rights that limit the State’s exercise of eminent domain
power, protection Jacobsen found missing in former section 1242. At issue is whether
the Legislature succeeded in its attempts to provide all of those constitutional rights to
affected landowners subject to a direct taking by means of the entry statutes.
The entry statutes operate as follows: if the condemnor’s entry and activities on
the property will cause “actual damage to or substantial interference with the possession
or use of the property” (§ 1245.060, subd. (a)), the entry statutes require the condemnor,
before making entry, to secure either the owner’s written consent or an order for entry
from the superior court. (§ 1245.020.)
If the owner will not consent, the condemnor must petition the superior court for
an order for entry and provide prior notice to the owner as the court directs. (§ 1245.030,
subd. (a).) After notice has been given, the court must 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.” (§ 1245.030, subd. (b).) The entry statutes do not provide the landowner with a
hearing on the petition.9
After making these determinations, the court may issue the order for entry, but it
must prescribe the entry’s purpose and the nature and scope of the activities to be
undertaken, and it must require the condemnor to deposit with the court the probable
9 The trial court here, however, provided formal evidentiary hearings on the master
petition for both the geological and the environmental activities before it ruled on the
petition.
23
amount of compensation. (§ 1245.030, subd. (c).) A court may thus issue an entry order,
and the entry may occur, before the landowners obtain a hearing to contest the order.
After subsequent notice and a hearing, the court may modify any provisions of the
entry order, including increasing the amount of compensation to be deposited. (§
1245.040, subd. (a).) If it increases the amount to be deposited, the court may direct that
any further entry be stayed until the additional amount has been deposited. (§ 1245.040,
subd. (b).)
If the condemnor’s entry and activities “cause actual damage to or substantial
interference with the possession or use of the property,” the owner may recover for that
damage and interference either by filing a new civil action (§ 1245.060, subd. (a)), or by
applying to the court for recovery from the funds the condemnor deposited with the court.
(§ 1245.060, subds. (a), (c).)
If the owner applies to the court to recover from the funds on deposit, the court
shall determine and award the amount the owner is entitled to recover and shall order it
paid out of the deposit. (§ 1245.060, subd. (c).) If the funds on deposit are insufficient to
pay the full amount of the award, the court “shall enter judgment for the unpaid portion.”
(Ibid.)
The entry statutes do not provide a jury determination of just compensation if the
landowner elects to apply to the court to recover the funds on deposit. If the landowner
desires a jury to determine just compensation, he must file a new action against the state,
and incur the costs and delays that inhere in any legal proceeding a citizen undertakes
against the government. (§ 1245.060, subd. (a).)
Nothing in the entry statutes is to affect the availability of any other remedy the
owner may have for the damage done to his property by the government or its agents. (§
1245.060, subd. (d).)
24
3. Constitutional rights not provided in the entry statutes
The landowners claim the entry statutes do not provide all of the constitutional
rights guaranteed them under Section 19(a) and Jacobsen. Specifically, they argue the
entry statutes (1) do not provide for the acquisition of an interest in property, but provide
only for probable damages for actual damage or interference; (2) do not provide for a jury
determination of just compensation; (3) do not make the deposit of the probable amount
of just compensation promptly available; and (4) are not an eminent domain proceeding,
which they define as the formal condemnation action filed under the Eminent Domain
Law (§ 1240.010 et seq.), in which the power of eminent domain may be exercised.
We agree with two of the landowners’ arguments. Jacobsen holds that as a matter
of California constitutional law, a condemnor who intends to take private property may
do so only by filing a “condemnation suit wherein the necessity for the taking of the
property for the alleged public use could first be litigated and determined and wherein
also the damages resultant upon such taking could be ascertained and provided for.”
(Jacobsen, supra, 192 Cal. at p. 325, italics added.) In other words, if a California
condemnor intends to take property, it must acquire a property interest by filing a
condemnation suit that provides in it all constitutional rights owed the landowner against
the exercise of eminent domain. It may not intentionally take property while leaving to
the landowner the responsibility to initiate a new legal action to receive his constitutional
rights. The entry statutes violate this principle of California constitutional law, as they do
not provide for a condemnation suit by which a condemnor can directly acquire an
interest in property and in which the affected landowner can receive a jury determination
of just compensation in that suit.
First, the entry statutes do not provide for the acquisition and transfer of a property
interest when the entry is an intentional, direct taking. The trial court hearing a petition
for an entry order is authorized to determine only the probable amount of just
25
compensation owed a landowner if the entry will inflict actual damage to the property or
will substantially interfere with the landowner’s use or possession of his property.
(§ 1245.060, subd. (a).) A direct, intentional taking, by contrast, requires a determination
of the fair market value of the property interest sought to be acquired. This is a value
separate from damage subsequently caused to the property or later suffered due to a
substantial interference with its possession or use where an interest in property was not
intentionally taken.
This point is further shown by the entry statutes’ imposition of a burden of proof
on the landowner. Before the affected landowner can recover any compensation for
damage or interference under the entry statutes, he must show in that proceeding the
state’s activities actually caused damage to or interfered with his property rights after the
entry has been completed. (§ 1245.060.) By contrast, in a direct condemnation action,
causation is irrelevant. Just compensation is determined based on the property interest’s
fair market value before the state enters the property. In a direct condemnation action,
just compensation is a factual issue of valuation on which neither the condemnor nor the
landowner bear any burden of proof, and the landowner bears only a burden of going
forward. (§ 1260.210, subd. (b).)
This constitutional principle violated by the entry statutes is also reflected in the
Legislature’s statutory pronouncement that if a government wants to acquire property in
eminent domain, it must bring a condemnation suit to do so. Government Code section
7267.6 provides: “If any interest in real property is to be acquired by exercise of the
power of eminent domain, the public entity shall institute formal condemnation
proceedings. No public entity shall intentionally make it necessary for an owner to
institute legal proceedings to prove the fact of the taking of his real property.”
If used to acquire an interest in real property, the entry statutes conflict with
Government Code section 7267.6. The entry statutes do not allow for the condemnor to
acquire an interest in real property in the hearing it initiates. And even if the entry
26
statutes were interpreted as a constitutionally valid exercise of eminent domain power to
acquire property the state will damage, they still require the landowner to file a separate
action -- either a claim with the trial court that granted the entry order or a new action --
to prove the fact that his property was actually taken, i.e., was actually damaged or its use
substantially interfered with. The fact of the taking is not assumed in the landowner’s
action if the landowner must still prove causation.
This conflict is not one simply to be resolved under the rules of statutory
construction. Government Code section 7267.6 codifies the state constitutional doctrine
enforced here, that when the state intends to take an interest in real property, it must
condemn it directly in a condemnation suit. We cannot say the entry statutes prevail over
Government Code section 7267.6 because they are more recent or more specific when in
fact they violate the Constitution.
The entry statutes thus do not provide for a condemnation suit initiated by the
condemnor in which the fair market value of the property interest to be taken directly, as
opposed to the value of property eventually damaged, can be determined.
Second, the entry statute’s procedure does not provide for a condemnation suit
initiated by the condemnor in which just compensation will be determined by a jury
unless waived. Under the entry statutes, the landowner is not entitled to a jury
determination of just compensation unless he files a new civil action. (§ 1245.060, subd.
(a).) Indeed, under the entry statutes, the landowner is not even entitled to a hearing on
the entry petition or on the determination of the probable amount of just compensation.
By contrast, and as stated above, Section 19(a) and Jacobsen require the condemnor to
file the condemnation suit when it seeks to take property intentionally, and for just
compensation to be determined by the fact finder in a hearing in that suit. Also by
contrast, the condemnor in a direct condemnation action may deposit the probable
amount of compensation only on a noticed motion, or ex parte application in an
emergency (§ 1255.010, subd. (c)), and may not take early possession of the property
27
until after noticing another motion to do so and scheduling a hearing on the motion. (§
1255.410.)
Section 19(a) and Jacobsen require the condemnor to file a direct condemnation
suit to intentionally take an interest in property, and for all of the landowner’s
constitutional rights, including the right to a jury trial, to be available in that
condemnation suit. In a direct condemnation action, the landowner simply demands a
jury in that action in order to have a jury determine just compensation. (§ 631.) It need
not file a cross-complaint.
Under Jacobsen, it is the “condemnation suit” brought by the condemnor to take
property that is to provide the landowner with his constitutional rights against a direct
condemnation. The entry statutes, on the other hand, condition a landowner’s receipt of
his constitutional rights in a direct condemnation action on the landowner filing a new
action. Interpreting the condemnor’s eminent domain power strictly, as we are required
to do, we cannot loosen Jacobsen and Section 19(a) to excuse the government from any
of its constitutional obligations when it seeks to directly condemn an interest in private
property. If the state intends to acquire an interest in private property directly, no matter
how small an interest, the California Constitution requires it to initiate a condemnation
suit that provides the affected landowner with all of his constitutional protections against
eminent domain in that action. The entry statutes do not provide such a condemnation
suit.10
10 We recognize the Fifth Amendment does not require “that just compensation be
paid in advance of, or contemporaneously with, the taking; all that is required is that a
‘ “reasonable, certain and adequate provision for obtaining compensation” ’ exist at the
time of the taking. [Citations.]” (Williamson Planning Comm’n v. Hamilton Bank (1985)
473 U.S. 172, 194 [87 L.Ed.2d 126, 144].) However, we are interpreting the California
Constitution, and nothing in federal constitutional takings law prohibits a state from
granting a landowner more protections against the exercise of eminent domain authority
than those granted under the federal Constitution.
28
Accordingly, the trial court correctly denied the State’s petition to enter to perform
the geological activities. The activities were a taking per se, and the entry statutes do not
provide a constitutionally adequate eminent domain proceeding for the government to
directly acquire an interest in private property. We affirm the trial court’s judgment as
against the State’s appeal.11
II
The Landowners’ Writ Petitions and Appeals
In their writ petitions and appeals, the landowners ask us to address the same
questions raised in the State’s appeal, but as applied to the environmental activities.
First, does the entry order authorizing the environmental activities result in a taking?
Second, if it does, may the State acquire the necessary property interests to perform the
environmental activities by means of the entry statutes?
The landowners claim the entry order results in a taking because it grants the State
a one-year temporary easement over their properties, a cognizable property interest that
11 The landowners contend the only “eminent domain proceeding” by which the
State may intentionally take property is that provided in the Eminent Domain Law and
defined there as an “eminent domain proceeding,” which is initiated by the filing of a
complaint following the condemnor’s adoption of a resolution of necessity. (§§
1250.110; 1250.310.) As of the date of this opinion, such an action is the only
“condemnation suit” or “eminent domain proceeding” available to the State that provides
the affected landowners with all of their constitutional rights against an intentional
taking. However, the “condemnation suit” required by Jacobsen and the “eminent
domain proceeding” required by Section 19(a) are synonymous, and neither of them refer
solely to the formal condemnation action authorized under the Eminent Domain Law.
Rather, they require eminent domain authority be exercised in a special judicial action
brought by the state that provides the affected landowners all of their constitutional rights
against the state’s exercise of eminent domain authority in that action. Neither the
Constitution nor the Eminent Domain Law limits the Legislature from enacting any
number of such “condemnation suit” procedures, so long as those procedures guarantee
all constitutional rights. Subject to that rule of state constitutional law, the Legislature
has correctly stated the power of eminent domain may be exercised not only by the
procedures contained in the Eminent Domain Law, but also “as otherwise provided by
statute . . . .” (§ 1230.020.)
29
must be condemned. In addition, they contend the entry statutes do not, and
constitutionally cannot, authorize the taking of such a property interest.
If we conclude the entry order works an intentional or direct taking, the
landowners’ appeals end successfully, because we have already determined the entry
statutes cannot be used to directly condemn a property interest. If we conclude the entry
order does not work a direct taking and the activities can be pursued subject to the court’s
determinations of probable damage and imposition of reasonable restrictions, the
landowners ask us to review three additional claims of procedural error.
We agree with the landowners that performance of the environmental activities
works a taking of a compensable property interest in the nature of a temporary easement,
an interest in property that cannot be acquired directly under the entry statutes. We first
review the environmental activities, and then we explain our conclusion that they
constitute a taking of a compensable property interest.
A. Additional background information
The entry order authorizes the following environmental activities:
Botanical surveys: For these surveys, personnel will identify and evaluate existing
vegetation and wildlife, looking particularly for the existence of special status species.
Their activities will include walking, collecting samples of vegetation, recording
locations using handheld global positioning system (GPS) equipment, photographing
landscape and vegetation, and digging holes no larger than approximately two feet in
diameter and two feet deep with a trowel and refilling the hole without taking any soil
samples. Personnel may use a small boat to access the property, if required. All surveys
will be conducted in daylight hours.
Hydrologic surveys: For these, personnel will identify and characterize site
drainage, streams, and creeks located on the properties; delineate wetlands; note
conditions that could impact water quality; locate storm water drains; and note storm
water flow patterns. A biologist will survey the properties for threatened or endangered
30
species at sites designated as critical habitat for the species. The biologist will also
perform translocation surveys to determine the presence or absence of species within
critical habitat traversed by the project’s proposed alignments.
General surveys: For these surveys, personnel will survey the properties for
sensitive bird species and habitats. Personnel will access the habitats by motor vehicle
or, where possible, by walking. They will conduct species-specific surveys by walking
through appropriate habitat. In addition to using a motor vehicle, personnel will use
binoculars, spotting scopes, photography equipment, maps, GPS units, and laptop
computers.
Recreational surveys: State personnel will observe recreational facilities on the
properties and persons using those facilities.
The botanical, hydrologic, general, and recreations surveys will be conducted
concurrently, and will require two to six personnel between one and 12 days to complete
the surveys on each parcel. If wetlands are found, an additional one to four days would
be needed.
Habitat and species specific surveys: For these surveys, personnel will search the
properties for the presence of a number of sensitive species of reptiles, amphibians, and
mammals. They will observe and capture species using a variety of methods, including
trapping. Night surveys are allowed, if required. Access to sites and traps will vary
depending on the species being observed. Personnel will use one motor vehicle for
access, as well as binoculars, cameras, recording equipment, computer equipment, and
different types of traps and nets to perform their work. Species and habitat surveys will
take from five days to 10 days per parcel, per year, to complete. Some trapping surveys
will require access seven days per week for checking the traps. Each trap will be set for
at least two weeks per site.
Vernal pool surveys: Personnel will conduct surveys both on the ground and from
the air to identify and document vernal pools. They will make field determinations by
31
drive-by observations, walking surveys, or dip-netting of ponded pools. Personnel will
use cameras, a GPS unit, and other tools. During the rainy season, survey teams may
visit each site once every two weeks for six to eight months between October and May,
an average of 12 to 16 days per parcel.
Archaeological surveys: For these surveys, one or two archaeologists will walk
the sites to look for cultural resources, such as archaeological sites, historic structures,
and sacred sites, both known and unknown. They will make shallow soil scrapings as
necessary but will not remove or collect any soils. In addition to using a motor vehicle to
access the sites, they will use cameras and GPS equipment.
Utility inventory surveys: For these, personnel will survey the sites to inventory
existing utilities. This will include measuring the height of overhead power lines in
different ambient temperatures and performing walking surveys. Personnel will use a
passenger vehicle for access to the sites. These surveys will require up to one hour per
site.
Mapping activities: Personnel will conduct geodetic mapping of the sites. To do
this, they will install targets on the ground and take photographs from an aircraft. The
targets are made of three-foot square black cloths with a large white “X” on them. Up to
two flights are allowed per site, each spaced several weeks apart. Two-inch wood survey
stakes will also be used. The mapping activities will require up to four site visits.
Personnel will use a motor vehicle to access the site, and iron pipe and metal spikes to
secure the targets to the ground. They will remove the targets on the fourth visit after the
second flight.
The entry order limits the total number of days the State may enter properties to
perform the activities and the total number of personnel allowed for each entry. The
number of days and personnel allowed depend on the size of the owner’s property
holdings. For property holdings of 100 acres or less, the court granted the State 25 days
of entry within a one-year period, and up to four people per entry. The limits increase
32
incrementally, with the court granting 66 days of entry within a one-year period, with up
to eight people per entry, for property holdings of 3,501 to 8,500 acres. The court also
authorized the targets for mapping be kept on the properties for up to 38 days.
The entry order imposes a number of other conditions on the environmental
activities. The State must limit vehicular and pedestrian access to those routes reasonably
identified by the owner of the property. It must restore any soil disturbances to its
predisturbance condition. It must restrict its use of vehicles and large equipment to
existing roadways, and may not use vehicles or large equipment in planted fields or
orchards. The State must repair and restore any damage to roadways and trails. It must
avoid placing markers and other objects in planted fields. And it must take protective
measures in the placement and type of markers used in order to protect cattle and
livestock.
The entry order limits entries to 10 and one-half hour days between 7:00 a.m. and
7:00 p.m., Monday through Friday. No entry is allowed between Wednesday and Sunday
of Thanksgiving week and from December 23 through January 1, the 4th of July, Labor
Day, or Memorial Day. The order limits the number of night entries to five. The order
also prohibits entries into vineyards between September 1 and October 15, and onto lands
used primarily for hunting between October 1 and February 25, except to conduct vernal
pool studies.
The entry order requires the State to give 72 hours prior notice of each entry. It
requires the State to stay at least 100 feet away from any inhabited dwelling, and the
State may not enter any closed structure on the property that is not considered open to the
public.
With respect to levees and reclamation facilities, the entry order prohibits digging,
hand auguring, and drilling within 100 feet of the base of a levee. The State is required to
comply with any reclamation district regulations applicable to the property owner
33
regarding use or weight of vehicles on the reclamation district’s easement area or that
restrict access to pumping stations, digging near levees, and the like.
The entry order requires the State to coordinate entries into areas covered by a
conservation easement or grant with the California Department of Fish and Wildlife, and
to obtain all necessary permits. The State may not trap wildlife in a conservation
easement without specific approval from the appropriate authority.
The entry order also requires State personnel to use their best efforts not to block
needlessly or impede any activity by the owners or their agents on the properties. The
State may fence or otherwise prevent access only to specific areas of property the State is
actually utilizing. The State is required to consult with the owners about any special
conditions on the property, including a very high water table, and to take such special
conditions into account when performing tests.
B. Analysis
The landowners argue the entry order results in a taking that cannot be authorized
by the entry statutes because the order grants the State a temporary easement on their
properties for a period of one year, a compensable property interest they contend must be
condemned. They claim acquiring a temporary easement, as with acquiring an interest
for an intentional permanent taking, is distinct from compensating for any damage to or
interference with the use or possession of their properties which the entry statutes were
written to authorize.
The landowners in their briefing do not cite to evidence of any actual damage or
interference the environmental activities will cause to their properties. Indeed, one of the
landowners in a declaration at trial stated: “Without knowing the precise location and
time for each of the studies to be conducted by [the State], it is impossible to determine in
advance the damage that will be suffered as a result of the access and interference by [the
State].” However, the landowners contend the disruption of economic and noneconomic
activities on their properties and the loss of their right to the quiet use and enjoyment of
34
their properties is “manifest” and “self-evident.” They allege authorizing eight people to
enter their properties for up to 66 days and allowing targets and traps to be kept on the
property for up to 38 days deprives them of their quiet use and enjoyment as a matter of
law. The landowners claim the entry statutes do not, and constitutionally cannot,
authorize the taking of such compensable property interests.
We conclude the entry order for the environmental activities authorizes a taking of
a property interest in the nature of a temporary easement that must be acquired in a
condemnation suit. We explain our reasoning.
Unlike the geological activities, the environmental activities are not a taking per
se. They will not result in a permanent occupancy of property (see Loretto, supra, 458
U.S. at p. 426), or deny the landowners of all economically beneficial uses of their
properties. (See Lucas v. South Carolina Coastal Council (1992) 505 U.S. 1003, 1019
[120 L.Ed.2d 798, 815].) Thus, the rule of Loretto, that a permanent physical occupation
is a taking per se, does not apply to our review of the environmental activities.
There is no bright-line rule for determining whether a temporary physical invasion
constitutes a taking. “The permanence and absolute exclusivity of a physical occupation
distinguish it from temporary limitations on the right to exclude. Not every physical
invasion is a taking. . . . [S]uch temporary limitations are subject to a more complex
balancing process to determine whether they are a taking. The rationale is evident: they
do not absolutely dispossess the owner of his rights to use, and exclude others from, his
property.” (Loretto, supra, 458 U.S. at p. 435, fn. 12, original italics.)
A simplified way of viewing the issue is to compare the entry to a trespass, a type
of physical invasion that is not a taking. “Occasionally an issue arose as to whether the
government’s activity was so short lived as to be more like the tort of trespass than a
taking of property. The distinction between the government vehicle parked one day on
[landowner’s] land while the driver eats lunch, on the one hand, and the entry on
[landowner’s] land by the government for the purpose of establishing a long term storage
35
lot for vehicles and equipment, on the other, is clear enough. The fact that sovereign
immunity might insulate the government from liability in the tort but not in the taking
makes for interesting line-drawing in the close cases, and provides employment for
lawyers. [Citation.]” (Hendler v. United States (Fed.Cir. 1991) 952 F.2d 1364, 1371.)
This is one of those close cases.
Performing the “more complex balancing process” to determine whether the entry
to perform the environmental activities constitutes a taking involves an ad hoc, factual
inquiry into several factors of significance. (Loretto, supra, 458 U.S. at p. 435, fn. 12;
Penn Central Transp. Co. v. New York City (1978) 438 U.S. 104, 124 [57 L.Ed.2d 631,
648] (Penn Central).) One of those factors is the length of time the invasion will last.
“When regulation or temporary physical invasion by government interferes with private
property, our decisions recognize, time is indeed a factor in determining the existence vel
non[12] of a compensable taking. (See Loretto, supra, 458 U.S. at 435, fn. 12 [temporary
physical invasions should be assessed by case-specific factual inquiry]; Tahoe-Sierra
[Preservation Council, Inc. v. Tahoe Regional Planning Agency (2002) 535 U.S. 302],
342 [152 L.Ed.2d 517] [(Tahoe-Sierra)] [duration of regulatory restriction is a factor for
court to consider]; National Board of YMCA v. United States (1969) 395 U.S. 85, 93 [23
L.Ed.2d 117] [‘temporary, unplanned occupation’ of building by troops under exigent
circumstances is not a taking].)
“Also relevant to the takings inquiry is the degree to which the invasion is
intended or is the foreseeable result of authorized government action. [(John Horstmann
Co. v. United States (1921) 257 U.S. 138, 146 [66 L.Ed. 171] [no takings liability when
damage caused by government action could not have been foreseen]. See also Ridge
Line, Inc. v. United States (Fed.Cir. 2003) 346 F.3d 1346, 1355-1356 (Ridge Line);
12 Vel non means “[o]r the absence of it (or them).” (Black’s Law Dict., supra, p.
1694.)
36
Matter of Chicago, Milwaukee, St. Paul & Pacific R. Co. (7th Cir. 1986) 799 F.2d 317,
325-326 (Chicago).)] So, too, are the character of the land at issue and the owner’s
‘reasonable investment-backed expectations’ regarding the land’s use. [(Palazzolo,
supra, 533 U.S. at p. 618.)] . . . Severity of the interference figures in the calculus as
well. (See Penn Central, supra, 438 U.S., at 130-131; Portsmouth Harbor Land & Hotel
Co. v. United States (1922) 260 U.S. 327, 329-330 [67 L.Ed. 287] [(Portsmouth)]
(‘[W]hile a single act may not be enough, a continuance of them in sufficient number and
for a sufficient time may prove [a taking]. Every successive trespass adds to the force of
the evidence.’).” (Arkansas Game & Fish Comm’n v. United States (2012) __ U.S. __
[84 L.Ed.2d 417, 431], original italics.)
Applying these factors here -- the degree to which the invasions are intended, the
character of the invasions, the amount of time the invasions will last, and the invasions’
economic impact -- we conclude the environmental activities authorized by the entry
order constitute a temporary taking.
1. The degree to which the invasions are intended
A primary factor that distinguishes a taking from a tort or a taking recoverable in
inverse condemnation is the degree to which the physical invasions are intended or occur
as authorized. A condemnor’s intent to commit an act that is or results in a taking is a
significant factor in determining the existence of a temporary taking, and that factor
weighs heavily in determining the environmental activities here constitute a taking. “[A]
property loss compensable as a taking only results when the government intends to
invade a protected property interest or the asserted invasion is the ‘direct, natural, or
probable result of an authorized activity and not the incidental or consequential injury
inflicted by the action.’ [Citation.]” (Ridge Line, supra, 346 F.3d at p. 1355.) In
contrast, “[a]ccidental, unintended injuries inflicted by governmental actors are treated as
torts, not takings.” (Chicago, supra, 799 F.2d at p. 326.)
37
In Portsmouth, supra, 260 U.S. 327, the Supreme Court stated a single, temporary
invasion could constitute a taking if the invasion and its consequences were intended and
authorized by the government. In that case, the federal government erected a fort along
the coast, with guns that had a range over the entire sea front of the claimants’ property.
The government also established a fire control station there. The claimants alleged the
government had set up the guns with the intent of being able to fire projectiles across
their land for whatever purpose and whenever it wanted. The high court ruled if that was
the government’s intent, the firing of only one shot could establish a taking. Writing for
the court, Justice Holmes explained: “If the United States, with the admitted intent to fire
across the claimants’ land at will should fire a single shot or put a fire control upon the
land, it well might be that the taking of a right would be complete. But even when the
intent thus to make use of the claimants’ property is not admitted, while a single act may
not be enough, a continuance of them in sufficient number and for a sufficient time may
prove it. Every successive trespass adds to the force of the evidence.” (Id. at pp. 329-
330.)
Here, the State intends to invade the landowners’ properties and to perform
authorized activities. The invasions are the foreseeable result of authorized government
action. These invasions will happen not just once, but are intended to occur up to 66 days
over a one year period by as many as eight people at a time per owner. This is a
significant intentional invasion of private property.
2. The character of the invasions
Temporary invasions can be either physical entries onto property, or can result
from the temporary regulation of the property’s use. As between those two, “a physical
invasion is a government intrusion of an unusually serious character.” (Loretto, supra,
458 U.S. at p. 433, fn. omitted.) The environmental activities are a physical invasion.
Although they are not a permanent invasion like the geological activities, they
nonetheless involve intentionally and physically entering onto and using a landowner’s
38
property. At a minimum, by entering onto the properties to conduct the environmental
activities, the State appropriates to itself a blanket right of access for a period of time for
up to one year, similar to a temporary easement, and in doing so defeats the landowner’s
right to exclude others.
“The Government does not have the right to declare itself a co-tenant-in-
possession with a property owner. Among a citizen’s -- including a property owner’s --
most cherished rights is the right to be let alone. (Olmstead v. United States (1928) 277
U.S. 438, 478 [72 L.Ed. 944] (Brandeis, J., dissenting); see generally Warren & Brandeis,
The Right to Privacy, 4 Harv.L.Rev. 193 (1890).)
“In the bundle of rights we call property, one of the most valued is the right to sole
and exclusive possession -- the right to exclude strangers, or for that matter friends, but
especially the Government. (See, e.g., Nollan v. California Coastal Comm’n [(1987) 483
U.S. 825, 831] [97 L.Ed.2d 677]; Loretto, [supra, 458 U.S. at p. 426]; In re Etter
(Fed.Cir. 1985) 756 F.2d 852, 859, cert. denied, 474 U.S. 828 [88 L.Ed.2d 72] (1985)
(‘The essence of all property is the right to exclude . . . .’); Connell v. Sears, Roebuck &
Co. (Fed.Cir. 1983) 722 F.2d 1542, 1548 (citing Schenck v. Nortron Corp. (Fed.Cir.
1983) 713 F.2d 782.)
“The notion of exclusive ownership as a property right is fundamental to our
theory of social organization. In addition to its central role in protecting the individual’s
right to be let alone, the importance of exclusive ownership -- the ability to exclude
freeriders -- is now understood as essential to economic development, and to the
avoidance of the wasting of resources found under common property systems.
[Citations.]
“The intruder who enters clothed in the robes of authority in broad daylight
commits no less an invasion of these rights than if he sneaks in in the night wearing a
burglar’s mask. In some ways, entry by the authorities is more to be feared, since the
citizen’s right to defend against the intrusion may seem less clear. Courts should leave
39
no doubt as to whose side the law stands upon.” (Hendler v. United States, supra, 952
F.2d at pp. 1374-1375.)
As an intentional physical invasion, the environmental activities amount to an
appropriation of a valuable property right -- “an intrusion of an unusually serious
character” -- even though the invasion is temporary.
3. The amount of time the invasions will last
“[T]he duration of the restriction is one of the important factors that a court must
consider in the appraisal of a regulatory [or temporary] takings claim, but with respect to
that factor as with respect to other factors, the ‘temptation to adopt what amount to per se
rules in either direction must be resisted.’ (Palazzolo, supra, 533 U.S. at p. 636
(O’Connor, J., concurring).)” (Tahoe-Sierra, supra, 535 U.S. at p. 342, original italics.)
As a result, this factor is not considered in isolation, but is considered in relation to
the other factors we weigh to determine whether the government’s action is a taking. For
example, a temporary, unforeseeable occupation of private buildings by United States
troops for two days to defend the buildings from attacks by rioters was insufficient
government involvement to be a taking, as the troops’ actions did not deny the owners the
use of their properties, which were already heavily damaged, and since the possession
was a response to battle. (National Board of YMCA v. United States, supra, 395 U.S. at
p. 93.)
In another example, a 32-month moratorium on development imposed while the
local government adopted a comprehensive land-use plan for the area was not a facially
unconstitutional regulatory taking, in part because the moratorium was not a physical
invasion of a property interest and it did not deny the landowners all economically viable
use of their properties. (Tahoe-Sierra, supra, 535 U.S. 302.) Of importance here, the
Supreme Court in Tahoe-Sierra emphasized that cases involving regulatory takings, such
as the one before it, should not be seen as controlling precedents for cases involving
physical invasions. (Id. at pp. 323-324.)
40
Thus, we must consider whether the proposed occupancy of portions of the
landowners’ properties, up to a total of 66 days over the course of a year, is a significant
factor in light of the environmental activities’ other characteristics. We conclude it is. In
effect, the State seeks to acquire a temporary blanket easement for one year to access the
landowners’ properties for a total of two months or more by as many as eight people at a
time, and to conduct its studies wherever may be appropriate on the lands subject to
reasonable restrictions set by the trial court. Even though it is temporary and regulated,
the occupancy nonetheless intentionally acquires an interest in real property without
paying for it. A 30-day lease is an enforceable interest in real property, and an intentional
taking of such an interest should be compensated.
Because the right to exclude the government from obtaining and possessing an
interest in private property is one of a property owner’s most cherished rights, a private
property owner should not be required to lease portions of his land rent free to the
government. Under the facts and circumstances here, a blanket temporary easement for
one year that authorizes from 25 to 66 days of entry by four to eight people is a
significant length of time for an intentional, physical invasion of private property.
4. The invasions’ economic impact on the landowners and interference with
their distinct investment-backed expectations
The inquiry into the invasion’s economic impact “may be narrowed to the question
of the severity of the impact” of the entry upon the landowners’ properties. (Penn
Central, supra, 438 U.S. at p. 136.) As the landowners admit, it is difficult, if not
impossible, to produce evidence of adverse economic impact at this point where the
environmental activities have yet to occur.
This factor, however, unlike in the context of a regulatory taking where it is
routinely utilized, is less significant in an intentional physical invasion that acquires a
property right. The more similar a government’s action is to a direct taking, the less
significant the invasion’s economic impact must be in our weighing. This is because if
41
the government intentionally and physically invades private property to the extent it
requires a permanent or temporary interest in that property to accomplish its public
purposes, it must pay for that interest, no matter how small the interest may be.
“When the government physically takes possession of an interest in property for
some public purpose, it has a categorical duty to compensate the former owner (United
States v. Pewee Coal Co (1951) 341 U.S. 114, 115 [95 L.Ed. 809]), regardless of whether
the interest that is taken constitutes an entire parcel or merely a part thereof. Thus,
compensation is mandated when a leasehold is taken and the government occupies the
property for its own purposes, even though that use is temporary. (United States v.
General Motors Corp. (1945) 323 U.S. 373 [89 L.Ed. 311]), United States v. Petty Motor
Co. (1946) 327 U.S. 376 [90 L.Ed. 729].) Similarly, when the government appropriates
part of a rooftop in order to provide cable TV access for apartment tenants (Loretto,
supra, 458 U.S. 419); or when its planes use private airspace to approach a government
airport (United States v. Causby, supra, 328 U.S. 256), it is required to pay for that share
no matter how small.” (Tahoe-Sierra, supra, 535 U.S. at p. 322, italics added.)
Thus, in this matter, all the factors weigh in favor of finding a temporary taking.
The invasion and its consequences are intended by the State similar to a direct
condemnation for a temporary easement. The invasion is a physical invasion, “a
government intrusion of an unusually serious character.” (Loretto, supra, 458 U.S. at p.
433, fn. omitted.) The invasion will take place over a significant period of time,
providing a one-year blanket easement to private property for entry by up to eight people
for up to 66 days. These characteristics outweigh the preliminary lack of evidence on the
invasions’ economic impact. In short, if the State intends to take and use a temporary
easement, it must directly condemn it.
As we concluded earlier, the entry statutes do not provide for a direct
condemnation suit as required by Section 19(a) by which the State can acquire that
temporary easement. Indeed, the State’s desire and need to condemn a temporary
42
easement to perform the environmental activities provides another example of how the
entry statutes do not provide the condemnation suit Section 19(a) and Jacobsen require
for a direct condemnation. In a temporary taking, the usual measure of just compensation
is the fair rental value of the property interest taken for the period of the taking. (Yuba
Natural Resources, Inc. v United States (Fed.Cir. 1990) 904 F.2d 1577, 1581.) The entry
statutes, however, authorize the trial court hearing the entry petition only to determine the
value of any actual damage or substantial interference that may occur after the State uses
the property interest. These measures are different than the rental value of the interest the
State intends to acquire directly in order to perform its activities. The entry statutes do
not provide a constitutionally viable means whereby the fair rental value can be
determined in a condemnation suit brought by the condemnor and in which the
landowner receives all of his constitutional protections against the use of eminent
domain, including a jury determination of fair rental value.
For all of these reasons, we conclude the environmental activities work a
temporary taking, and as such, cannot be authorized by the entry statutes’ procedure.
The State makes much of the inconvenience and cost imposed on it if it cannot
enter properties to perform studies of the complexity and length of the environmental and
geological studies without having to directly condemn an interest, or if it cannot acquire
that interest in private property by means of the entry statutes, particularly for projects of
this size. No doubt our ruling imposes more work on condemning agencies and the
courts. However, constitutional rights against the exercise of eminent domain authority
are not subject to the convenience of the government. As far back as Jacobsen, the
Supreme Court made clear that if a government entity, even one that has already filed a
condemnation action to acquire the property in question, wants to engage in studies and
surveys that in themselves work a taking, the entity must file a separate condemnation
suit to do so. (Jacobsen, supra, 192 Cal. at p. 329.) Our opinion today merely reinforces
that fundamental doctrine of California constitutional law.
43
DISPOSITION
In the matter of case No. C068469, the order of the trial court denying the master
petition for entry to perform the geological activities is affirmed.
In the matters of case Nos. C067758 and C067765, the petitions for writ relief are
granted after an order to show cause was issued. The order of the trial court granting the
master petition for entry to perform the environmental activities is reversed, and the
matter is remanded to the trial court with instructions to enter a new order denying the
master petition for entry to perform the environmental activities. The temporary stay is
dissolved upon the trial court’s entry of a new order.
Costs on appeal and in this original proceeding are awarded to the landowners.
(Cal. Rules of Court, rules 8.278(a), 8.493(a).)
NICHOLSON , J.
I concur:
HOCH , J.
44
I dissent.
In this case, a court, for the first time since its enactment 38 years ago, declares a
part of the Eminent Domain Law, the precondemnation entry statutes, unconstitutional as
a violation of the takings provisions of article I, section 19 of the California Constitution
(hereafter article I, section 19), and does so without according the statutes the simplest
presumption of constitutionality. The majority insists that eminent domain statutes must
be strictly construed, but this does not mean that they cannot be presumed constitutional,
and the cases on which the majority relies are not in point.
The State of California (State) by and through the Department of Water Resources
(Department) proposes to construct the Bay Delta Conservation Plan (BDCP), a canal or
tunnels that would divert fresh water from Northern California across or around the delta
for conveyance to Southern California, and seeks to employ an entry procedure within the
Eminent Domain Law (the entry statutes)1 to determine the suitability of the proposed
route for the project prior to condemnation of the property.
The entry statutes, enacted in 1976 on the recommendation of the California Law
Revision Commission,2 and drafted to comply with Jacobsen v. Superior Court (1923)
192 Cal. 319 (Jacobsen), permit a person, “authorized to acquire property for a particular
use by eminent domain,” to enter a property “to make photographs, studies, surveys,
examinations, tests, soundings, borings, samplings, or appraisals . . . reasonably related to
acquisition or use of the property . . . .” (§ 1245.010.) If the entry would subject the
person to liability for damage or substantial interference with the possession or use of the
1Code of Civil Procedure sections 1245.010-1245.060. A reference to a section is to the
Code of Civil Procedure unless otherwise designated or made apparent by the context.
2 Eminent Domain Law (Dec. 1975) 13 California Law Revision Commission Report
(1975) pages 1119-1123, Recommendation Relating to Sovereign Immunity (Sept. 1969)
9 California Law Revision Commission Report (1969) pages 811-815.
1
property, the entering person must obtain a court order specifying the terms of the entry
and requiring the tender of the “probable amount of compensation” for actual damage to
or substantial interference with the use of the property. (§§ 1245.030, subd. (c),
1245.020-1245.060.)
The trial court issued an order, since stayed by this court, for entry on over 240
properties in the proposed path of the BDCP to conduct environmental studies by wildlife
biologists and other science professionals, who walk across the properties to collect data
and place cloth targets for an aerial survey of the proposed route (Entry Order).3 The
court denied a petition seeking entry for the purpose of making soundings and drilling
test borings on 35 of the properties (Denial Order).
The petitioners, owners of the properties, challenge the validity of the Entry Order
as a taking that violates article I, section 19. Article I, section 19, subdivision (a)
provides, in relevant part, that “[t]he Legislature may provide for possession by the
condemnor following commencement of eminent domain proceedings upon deposit in
court and prompt release to the owner of money determined by the court to be the
probable amount of just compensation [for the property].” The majority opinion reasons
that an eminent domain proceeding may be commenced only by a complaint that initiates
a condemnation proceeding.
The challenge raises two kinds of question and I address each in order. First, do
the tests proposed for the BDCP constitute a taking under article I, section 19? Second, is
the Entry Order valid and the Denial Order invalid because article I, section 19 authorizes
the Legislature to divide the Eminent Domain Law in two sections, one for
precondemnation entries to determine the suitability of a property for a public project,
and the other to condemn the property if deemed suitable? If the answer to the second
3 The Department initially filed a separate petition for each of the properties. The trial
court combined them into a single order applying to all of the properties by size.
2
question is that the entry statutes satisfy the provisions of article I, section 19 the first
question need not be answered.
I begin with the first question.
The over 150 owners of the properties (Owners) claim that the Entry Order
violates article I, section 19 as a taking because it authorizes an entry that is not
innocuous, pursuant to Jacobsen, supra, 192 Cal. 319, and because it measures the right
to an entry order by whether the entry would subject an entering party to liability for
damage to or substantial interference with the possession or use of the property entered.
(§§ 1245.020, 1245.060, subd. (a).)
The entry procedure provides that a property owner must be given notice of a
petition for entry. (§ 1245.030, subd. (a).) There is no formal provision for objecting to
the petition and no hearing is expressly required but basic principles of due process
would require one. Nonetheless, a hearing was held, the trial court took testimony from
the State elaborating the details of the proposed entry, and some of the Owners filed
objections in the form of hypotheticals claiming that an entry, as set forth in the order,
would unlawfully interfere with the use of their properties. The court issued an order
specifying the conditions of entry and requiring that the State tender the probable amount
of compensation for any injury to the property caused by the entry.
In determining the probable amount of compensation for any damage to or
interference with the use of the property pursuant to the entry statutes (§§ 1245.010,
1245.020), the trial court does not determine the actual damage or interference caused by
an entry because the entry has not yet occurred. Actual damage or interference can be
determined only in a hearing or jury trial held after entry on the property. (§ 1245.060.)
For these reasons there are no facts concerning actual injury to a property and therefore
the Entry Order must be judged on its face. Thus, a constitutional challenge to an entry
order necessarily is a facial challenge to the purpose and conditions for entry as set forth
3
in the order. The order, if challenged as unconstitutional, must be fairly read and
presumed constitutional.
The majority opinion claims to test the constitutionality of the Entry Order by the
balancing tests set out in Penn Central Transp. Co. v. New York City (1978) 438 U.S. 104
[57 L.Ed.2d 631] (Penn Central) and Loretto v. Teleprompter Manhattan CATV Corp.
(1982) 458 U.S. 419 [73 L.Ed.2d 868] (Loretto). But the Owners have not established
any facts showing the burden of the Entry Order on their ownership interests. For this
reason the balancing test amounts to no more than a summary of the activities permitted
by the order together with an assertion that they impose too much of a burden on the
property.
The majority opinion did not draw inferences from the language of the Entry
Order in favor of its constitutionality. It selected a worst case and reviewed it on the
narrowest of legal grounds. It said, for example, that the authorization of “66 days of
entry by four to eight people is a significant length of time for an intentional, physical
invasion of private property.” (Maj. opn. ante, at p. 41.) However, 66 days of entry was
allowed only on the largest properties, those from 3,500 to 8,500 acres in size. If the
opinion had simply divided the size (3,500) by the number of days (66) and by the
number of persons (eight) allowed entry, it would have arrived at 6.6 acres per one
entrant per one day over a year, hardly a burdensome impact on the property, especially
when considered in the light of the numerous conditions placed by the order on the
conduct of the entry.
The majority opinion purports to recognize that there is no bright-line rule for
determining when a temporary physical invasion becomes a taking, but nonetheless states
that any physical invasion that is not a trespass is a taking. (Maj. opn. ante, at p. 35.) By
the measure of a trespass, doing anything other than placing a foot on a property is
unconstitutional.
4
The trial court held a separate hearing on the proposed geological testing. As with
the proposed environmental entry, the court took testimony from the Department on the
details of the proposed entry, and heard objections to the proposed entries from the
Owners. The trial court denied entry for geological testing on the grounds Jacobsen,
supra, 192 Cal. 319, held similar activities to be a taking, and the Department conceded
the drilling would damage property.
The appellant State by and through the Department challenges the denial of an
entry for the purpose of drilling holes for geological studies. The majority opinion
concludes that the entry for the purpose of drilling holes is a permanent physical
invasion, and therefore a taking per se. However, the entries for the purposes of drilling
test holes and pushing rods in the ground will be brief. Only the residual grout columns
left behind as a safety measure (to protect the water table) will be permanent, and the
State will not assert a permanent or continuing right to control access to, or dominion of
any kind over the grout tubes. A permanent physical occupation occurs when the
government regularly uses or permanently occupies a space or a thing. (Loretto, supra,
458 U.S. at p. 436, fn. 12.) The drilling of holes is not a permanent physical occupation,
and does not constitute a taking per se. There is nothing in the proposed drilling that
would seriously impinge on the Owners’ use of or investment in the property. The
drilling will not cause lasting damage to the property because the holes will be filled and
the Owners have not proposed any scenario by which the filled holes will inconvenience
them, much less interfere with their rights in the property. On this record the drilling
constitutes no more than the inconvenience of the time spent in drilling the holes or
pushing in the rods and conducting the Cone Penetrometer testing (CPT).
None of the proposed tests, either environmental or geological, amount to a taking.
They are not permanent or exclusive, nor are they to be conducted at a fixed location.
Owners try to shoehorn the tests into some kind of compensable property interest by
claiming they are a temporary occupancy or floating easement. A floating easement is an
5
easement for right-of-way that is not limited to any specific area when created, but which
later becomes fixed by one of the parties or by use. (6 Miller & Starr, Cal. Real Estate
(3d ed. 2011) § 15:50, p. 168.) The tests contemplated here are not floating easements.
The tests do not involve a temporary occupancy because they do not prevent the owners
from using their properties in their intended manner.
Although a temporary easement can be the subject of a taking, the condemnor’s
use of the property must substantially prevent the owner from actually using the property
in its intended manner. (City of Fremont v. Fisher (2008) 160 Cal.App.4th 666, 676-
677.) A temporary taking is treated like a permanent taking if it denies the owner “all use
of his property.” (First Lutheran Church v. Los Angeles County (1987) 482 U.S. 304,
318 [96 L.Ed.2d 250, 266].) The temporary occupations contemplated here do not
prevent the owners from using the properties in their intended manner. No exclusive use
is being sought.
My second inquiry is whether the Entry Order is valid because the enactment of
the entry statutes was within the authority granted the Legislature to determine what
constitutes “eminent domain proceedings” under article I, section 19.
Article I, section 19 delegates to the Legislature the authority to fashion an
eminent domain procedure, subject to tender to the court of the probable amount of just
compensation and a jury trial on the issue of just compensation. The section says: “[t]he
Legislature may provide for possession by the condemnor following commencement of
eminent domain proceedings upon deposit in court and prompt release to the owner of
money determined by the court to be the probable amount of just compensation.” (Id.,
subd. (a), italics added.)
There is nothing in this provision that precludes the Legislature from dividing the
eminent domain procedure into a precondemnation procedure, limited to studies
necessary to determine the suitability of a property for a project, and a condemnation
procedure for taking the property if deemed suitable. In fact, article I, section 19 invites
6
the Legislature to do so, for it includes the “damage” of property as a subject of the
exercise of the power of eminent domain. Since damage to a property to be taken is not
compensable in a condemnation proceeding because it is subsumed in the value of the
property taken, it can occur only incident to the exercise of the power of eminent domain.
Thus the condemnation statutes provide for the recovery of damage only for damage to
the remainder of a property that is not taken (§ 1263.410), damage when the taking is not
commenced within one year and six months of the resolution of necessity (§ 1245.260),
or damage when the proceeding is commenced but not completed (§ 1268.620, subd. (b)).
But an injury also can occur incident to the exercise of the power of eminent domain
when a property is entered for the purpose of determining its suitability for a taking. As
section 1245.010 provides, an entry is justified if the person is “authorized to acquire
[the] property [entered] for a particular use by eminent domain . . . .” Thus the entry
statutes are within the eminent domain statutes.
For this reason the statutory Eminent Domain Law (pt. 3, tit. 7) is divided into an
entry procedure (pt. 3, tit. 7, ch. 4, art. 1), and a condemnation procedure (pt. 3, tit. 7, ch.
5, art. 2 to pt. 3, tit. 7, ch. 12), both of which are contained in the Eminent Domain Law
of title 7 of part 3 of the Code of Civil Procedure. It thus appears that the Legislature has
parsed the phrase “eminent domain proceedings” (plural) of article I, section 19, as
inclusive of both the precondemnation and condemnation proceedings contained in the
Eminent Domain Law.4 There is nothing in article I, section 19 that requires that an
eminent domain proceeding be “commenced” by a complaint,5 as required for a
4 The Legislature could make this explicit by defining the commencement of “eminent
domain proceedings,” in section 1250.010, as inclusive of both a complaint in
condemnation proceedings and a petition in entry proceedings.
5 The predecessor to article I, section 19, provision as it existed at the time of the
Jacobsen decision, referred to “ ‘commencing eminent domain proceedings according to
law,’ ” making clear that the Legislature’s authority extended to the definitions of
7
condemnation proceeding (§ 1250.110), or precludes an entry proceeding from being
commenced by a petition.
In essence the majority opinion holds the entry procedure unconstitutional because
it historically has never been called an “eminent domain proceeding,” notwithstanding
that the entry statutes clearly function as a “proceeding” within the Eminent Domain
Law, as enacted by the Legislature pursuant to its authority under article I, section 19.
(Pt. 3, tit. 7, ch. 4, art. 1.)
The condemnation statutes were not designed to do the limited precondemnation
work of the entry statutes. They do not provide for recovery for “damage” to property
other than ancillary damage to property not the subject of the condemnation action
(§§ 1255.030, subd. (a)(3), 1263.410, 1263.420), or damage caused by failure to timely
proceed with a condemnation proceeding (§ 1245.260, subd. (a)). The condemnation
statutes provide for the recovery of the market value of property, but not for the
“preliminary actions of the plaintiff relating to the taking of the property,” including
damage occurring in the course of a precondemnation entry. (§ 1263.330, subd. (c).)
Nor do they provide for the trial of a damage action arising out of a precondemnation
procedure. That may be brought only by a compulsory cross-complaint based on
damages or interference caused by a precondemnation entry. (§ 426.70.) In short, the
quick-take procedure, a part of the condemnation statutes (§ 1240.110), cannot fulfill the
function of the entry statutes as a “precondemnation” activity.
The entry statutes are addressed to a rational need to determine the suitability of a
property for a public project before the property is taken for the project. By invalidating
the entry statutes, the majority opinion would force a public entity that initiates a large-
scale public project, such as the one envisioned here, either to put up the money for the
“commencement.” (Jacobsen, supra, 192 Cal. at p. 331; Cal. Const. former art. I, § 14,
as adopted Nov. 5, 1918.)
8
property before determining its suitability for a project, or engage in two complete
condemnation proceedings with their attendant jury trials and costs. “If the result of [a]
survey should disclose that the land was unsuitable for [the project] purposes, obviously
the public agency would not file an action to condemn it. On the other hand, if the statute
is construed in such manner as to compel the public agency to first file an action in
eminent domain to condemn the land as a condition precedent to the exercise of the rights
conferred [by the entry statutes] and then abandon the action upon discovery, after
survey, that the land was unsuitable, such construction would require the agency to
perform a useless act.” (County of San Luis Obispo v. Ranchita Cattle Co. (1971) 16
Cal.App.3d 383, 389 (Ranchita).)
The majority notes that Ranchita concerned only the case where a condemnation
action is initiated for the taking of the whole of a property but does not concern the
necessity of filing a separate condemnation proceeding for the preliminary tests
themselves. However, the majority’s position means either all the money must be put up
for the whole of the property before it is determined to be suitable, or two full-blown
condemnation proceedings must be completed. Thus, the majority opinion would force a
public entity that initiates a large-scale public project, such as here, either to put up the
money for the property before determining its suitability for the project, or engage in two
complete condemnation proceedings with their attendant costs,
FACTS AND PROCEDURE
The purpose of the proposed studies is to “determine the feasibility of alternative
types of water conveyance systems; the best alternative conveyance alignment location;
and the best alternative corridor location within each alternative conveyance alignment
location.” The studies also are intended to determine “whether a water conveyance
system should or should not be constructed.” The properties at issue are located in five
counties. There are over 150 different owners and over 240 separate parcels.
9
The expedited procedures of the entry statutes are consistent with their purpose,
which is to determine whether the property is suitable for the project. At the same time,
the procedures satisfy constitutional concerns, that a property owner be fairly
compensated for any interference with the possession and use of the property, and that
the compensation be determined by a jury if necessary.
Pursuant to the entry statutes, the trial court issued an order in the environmental
portion of the bifurcated proceeding allowing entry for environmental tests (the Entry
Order). The Entry Order set forth conditions governing the scope of work, the number of
entry days, and number of personnel allowed for each entry. The number of days and
personnel allowed under the Entry Order was dependent upon the size of the property.6
The entries were to be completed within a one-year period, and were supposed to
commence on April 1, 2011.
The Entry Order also set forth the probable amount of compensation the
Department was required to deposit for each piece of property. The probable amount of
compensation was: (a) 100 acres or less, $1,000; (b) 101-1,000 acres, $1,500; (c) 1,001-
2,000 acres, $2,500; (d) 2,001-3,500 acres, $4,000; (e) 3,501-8,500 acres, $6,000. No
geological testing or drilling was allowed under the Entry Order.
The geological (i.e., drilling) portion of the bifurcated proceeding resulted in an
order denying entry (the Denial Order). The trial court stated that Department conceded
its geological borings would likely result in a taking or damaging of property, and
ultimately contended the borings would constitute a damaging, but not a taking of
property. The trial court concluded the borings would constitute a taking under the
6 For a property 100 acres or less in size, Department was allowed 25 days of entry, and
up to four people per entry. The limits increase incrementally, with the largest properties
being 3,500 to 8,500 acres in size, and allowing 66 days of entry, and up to eight people
per entry.
10
United States Constitution, and would constitute a taking or damaging under the state
Constitution.
DISCUSSION
Owners contend, and the majority agrees, that the tests proposed by the
Department are a taking of property without just compensation in violation of the federal
and state Constitutions. I will explain that Owners cannot demonstrate that the entry
statutes are unconstitutional on their face, and that Owners have not demonstrated that as
applied to circumstances of this case the entry statutes allow a taking in violation of the
Constitution. Even if Owners had tendered evidence that Department’s proposed
activities would amount to a taking, the entry statutes comply with the constitutional
requisites for the taking of property because they are a procedure within the Eminent
Domain Law and provide for a deposit of just compensation prior to possession.
I
The Entry Order Does Not Authorize an Unconstitutional Taking
A. Jacobsen’s Innocuous Entry Standard is No Longer Applicable
Owners argue that in the preliminary entry context, a taking of property was
defined in 1923 by the California Supreme Court as anything “other than such innocuous
entry and superficial examination as would suffice for the making of surveys or maps and
as would not in the nature of things seriously impinge upon or impair the rights of the
owner to the use and enjoyment of his property.” (Jacobsen, supra, 192 Cal. at p. 329.)
In Jacobsen, supra, 192 Cal. 319, the Petaluma Municipal Water District proposed
to drill test holes and excavate test pits pursuant to former section 1242, which stated that
the state or its agents could “ ‘enter upon the land and make examinations, surveys, and
maps thereof, and such entry shall constitute no cause of action in favor of the owners of
the land, except for injuries resulting from negligence, wantonness, or malice.’ ”
(Jacobsen, supra, 192 Cal. at pp. 329, 321-322, 324.)
11
Jacobsen concluded that whatever activities former section 1242 allowed, they
“cannot amount to other than such innocuous entry and superficial examination as would
suffice for the making of surveys or maps and as would not in the nature of things
seriously impinge upon or impair the rights of the owner to the use and enjoyment of his
property.” (Jacobsen, supra, 192 Cal. at p. 329.) The court stated that “[a]ny other
interpretation would . . . render the section void as violative of the foregoing provisions
of both the state and the federal constitution.” (Ibid.)
Owners insist that Jacobsen is conclusive authority in this state for the proposition
that the only precondemnation examinations that do not constitute a taking are
“innocuous” entries and “superficial examination[s.]” (Jacobsen, supra, 192 Cal. at
p. 329.) They also quote Hendler v. United States (Fed.Cir. 1991) 952 F.2d 1364, 1377,
for the proposition that the only government intrusion that does not rise to the level of a
taking is one that is “transient and relatively inconsequential, and thus properly can be
viewed as no more than a common law trespass quare clausum fregit. [A] truckdriver
parking on someone’s vacant land to eat lunch is an example.” Thus, Owners assert that
a taking occurs if the entry is more than innocuous.
However, federal takings law has evolved since Jacobsen was decided in 1923. It
is now understood that a takings analysis requires a situation-specific factual inquiry
involving a weighing of several factors. The California Constitution provides a
somewhat broader protection because it provides compensation for damage as well as for
taking, but “the state takings clause is construed congruently with the federal clause.”
(Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229, 260.)
B. The Current State of Takings Law
Historically, the federal constitutional clause requiring just compensation for the
taking of private property was thought to apply only to a direct appropriation of property
resulting in the ouster of possession by the owner. (Lucas v. So. Carolina Coastal
Council (1992) 505 U.S. 1003, 1014 [120 L.Ed.2d 798, 812] (Lucas).) However, in
12
1922, the Supreme Court recognized that a taking may also occur where property is not
physically occupied, but where the regulation of the property “goes too far.”
(Pennsylvania Coal Co. v. Mahon (1922) 260 U.S. 393, 415 [67 L.Ed. 322, 326].)
Not every use, possession, or control of private property by a public entity
constitutes a taking in violation of the federal and state Constitutions. (Sun Oil Co. v.
United States (Ct.Cl. 1978) 572 F.2d 786, 818.) In determining whether government
action has effected a taking we focus on the character of the action and the nature and
extent of the interference with rights in the parcel as a whole. (Penn Central, supra, 438
U.S. at pp. 130-131.)
Two types of takings are “categorical,” i.e., an action that is compensable without
an ad hoc, fact-specific inquiry into the public interest advanced by the action. (Lucas,
supra, 505 U.S. at p. 1015.) The majority refers to this as a taking per se. These are: (1)
the permanent physical occupation of an owner’s property (Loretto, supra, 458 U.S. at
p. 421); and (2) the regulatory denial of all economically beneficial or productive use of
the property. (Lucas, at p. 1015.)
Where the actions of the condemnor do not involve one of these two extremes,
“most takings claims turn on situation-specific factual inquiries.” (Ark. Game & Fish
Comm’n v. United States (2012) ___ U.S. ___ [184 L.Ed.2d 417, 426] (Arkansas Game).)
Courts weigh several factors to determine whether a taking has occurred. The primary
factors are: (1) the economic impact of the regulation, (2) the extent to which the
regulation has interfered with distinct investment-backed expectations, and (3) the
character of the governmental action. (Penn Central, supra, 438 U.S. at p. 124.)
In Loretto, the Supreme Court held a permanent physical occupation constituted a
taking, even though the area occupied was nothing more than a half-inch diameter cable
and two cable boxes. (Loretto, supra, 458 U.S. at p. 422.) The court endorsed the
concept that a taking occurs whenever an entity regularly uses or permanently occupies a
space or a thing. (Id. at p. 428, fn. 5.) Permanent physical occupations are characterized
13
by their permanence and “absolute exclusivity.” (Id. at p. 436, fn. 12.) “[A] permanent
physical occupation is a government action of such a unique character that it is a taking
without regard to other factors that a court might ordinarily examine.” (Id. at p. 432,
fn. omitted.)
But not every physical invasion of property is a physical occupation, and therefore
a taking. (Loretto, supra, 458 U.S. at p. 436, fn. 12.) The court made a distinction
between a “permanent physical occupation” and a “more temporary invasion,” holding
that a taking has always been found only in the former situation. (Id. at p. 428.) The
court referred to temporary physical intrusions as physical “invasions.” (Id. at p. 436, fn.
12.) Temporary physical invasions “do not absolutely dispossess the owner of his rights
to use, and exclude others from, his property.” (Ibid.)
Temporary physical invasions “are subject to a more complex balancing process to
determine whether they are a taking.” (Loretto, supra, 458 U.S. at p. 436, fn. 12.) The
Supreme Court discussed this balancing process in detail in Penn Central. (Loretto,
supra, 458 U.S. at p. 432.) As stated, the balancing process entails the consideration of
the economic impact of the government action, the extent to which it interferes with
investment-backed expectations, and the character of the governmental action. (Penn
Central, supra, 438 U.S. at p. 124; Loretto, supra, 458 U.S. at p. 432.)
More recently in Arkansas Game, supra, 184 L.Ed.2d at p. 426, the Supreme
Court affirmed that the Penn Central balancing test is the appropriate method for
analyzing a taking, whether the intrusion is physical or regulatory--permanent or
temporary. (But see Tahoe-Sierra P. Council v. Tahoe RPA (2002) 535 U.S. 302, 322
[152 L.Ed.2d 517, 540] [“Our jurisprudence involving condemnations and physical
takings, . . . for the most part, involves the straightforward application of per se rules.
Our regulatory takings jurisprudence, in contrast, is of more recent vintage and is
characterized by ‘essentially ad hoc, factual inquiries,’ [citation] designed to allow
‘careful examination and weighing of all the relevant circumstances.’ ”].)
14
Arkansas Game indicated that two other factors are also to be considered in
determining whether a taking has occurred, namely: (1) the length of a temporary
invasion, and (2) whether the invasion is intended or is the foreseeable result of
authorized government action. (Arkansas Game, supra, 184 L.Ed.2d at p. 431.)
C. Application of Current Law
As a preliminary matter, even under the Jacobsen standard, Owners cannot prove
that the entry statutes are unconstitutional on their face. A facial challenge will not
succeed unless the provisions of the statute or order present a total and fatal conflict with
constitutional prohibitions in all of its applications. (East Bay Asian Local Development
Corp. v. State of California (2000) 24 Cal.4th 693, 709.) Certainly, the provisions
allowing an entity to make photographs and studies would be constitutional in many
applications, even if we were to incorrectly assume that the proper standard for a taking is
an entry that is not innocuous.
Owners also cannot show that the entry statutes are unconstitutional as applied to
them in the Entry Order. The Owners’ claim suffers from an absence of evidence. Nor
could the Owners show that an order allowing geological testing would necessarily result
in an unconstitutional application of the entry statutes as to them.
Here is the problem. Unless the government’s actions can be classified as a
“categorical” taking as described above, the analysis to determine whether a taking has or
will occur involves a fact-specific inquiry that focuses on what impact the entry will have
on the owner’s use of and investment in the property. This necessarily requires evidence
of exactly how the entry will adversely impact the owner’s use of and investment in the
property. Such evidence is difficult or impossible to produce in advance of the entry. It
certainly has not been produced here. What we do have is speculation as to the worst-
case scenario of what might occur. Speculation alone about the effect of a government’s
actions cannot provide the basis for a constitutional challenge. (In re Johnson (1965) 62
Cal.2d 325, 332.)
15
1. The Entry Order
Most of the Department’s proposed actions can be characterized as walking;
photographing; visual observations; sampling of water, soil, and flora; and animal
trapping. No drilling or boring is allowed under the Entry Order. There appears to be no
necessity for heavy, large equipment, other than the vehicles used to transport personnel
to the survey sites. These vehicles must remain on existing roadways. The Entry Order
restricts entry so as not to interfere with hunting activity on land used for that purpose.
The Entry Order contains special provisions to prevent damage to livestock and crops.
Entry onto the largest properties (3,500-8,500 acres) is limited to 66 days in a one-
year period. This means that if the Department works 10.5-hour days, it will be on the
property less than 12 minutes per acre for the entire year. The larger properties
encompass more than five square miles. The most personnel that may enter at any one
time is eight, for properties in excess of 2,000 acres. The smallest properties of 100 acres
or fewer may be entered by only four people at any one time, and only for a total of 25
days.
The smallest of petitioners’ properties is the Christensen property, which is 8.36
acres. The largest property is 8,400 acres, owned by Delta Wetlands. The properties are
used primarily for growing crops, boating, hunting, cattle ranching, and wildlife habitat
management. Many of the properties have one or more residences.
To succeed in their as-applied challenge, Owners must tender evidence of the
impact on their property of the Department’s activities. Pursuant to Loretto, the analysis
depends upon the particular circumstances of the case and is “essentially [an] ad hoc,
factual inquir[y.]” (Penn Central, supra, 438 U.S. at p. 124.) Here, there is no evidence
of the impact. Looking at the activities proposed, the conclusion must be that the
Department’s proposed actions fall within the category of a temporary physical invasion
as described in Loretto. The activities proposed are not permanent and they do not
constitute a temporary occupation because they lack exclusivity. They “do not absolutely
16
dispossess the owner of his rights to use, and exclude others from, his property.”
(Loretto, supra, 458 U.S. at p. 436, fn. 12.)
a. Economic Impact of Entry
The first Penn Central factor is the economic impact of the government action.
Petitioner The Carolyn Nichols Revocable Living Trust broadly asserts that the nature
and scope of the activities allowed by the Entry Order “will substantially interfere with
the . . . use and enjoyment of [the property], both with respect to the intensive farming
activities and residential activities that take place on the property.” The trust argued that
the activities allowed under the Entry Order will “substantially interfere” with the use and
enjoyment of the property because: (1) the activities “could result in diminished
production and diminished revenue” for those properties under cultivation;
(2) Department’s presence on the properties will present a substantial safety problem;
(3) the need to escort Department personnel will result in employees of the owners being
diverted from their work; and (4) Department’s vehicles will degrade the roads.
However, as previously detailed, the Entry Order contains limitations designed to
minimize any detriment to farming. It limits the times and days of entry, does not allow
entry from October 1 and February 25 on land used for hunting, and does not allow
inspections within 100 feet of an inhabited residence. The Department is required to pay
for any damage arising out of its activities, and to repair any damage to roadways and
trails.
Petitioner Property Reserve, Inc. (PRI) claims that providing access on demand to
Department will disrupt irrigation and potentially damage crops. PRI asserts that daily
access to check traps will significantly disrupt fertilization and pesticides, potentially
causing significant damage to crops. PRI claims that the installation of posts, stakes, and
traps could cause destruction of the crops at and between the stakes. PRI also argues
traps could damage harvesting equipment. PRI points to the possibility of theft and
17
vandalism, of infecting livestock and workers with contagious diseases, and of damaged
fences leading to the escape of livestock.
This is sheer speculation. The Entry Order strictly limits the time of year that the
Department may access planted areas, provides that Department personnel will not
unreasonably interfere with operations on the properties, provides that the Department
assumes the risk of exposure to pesticides, bans vehicles and equipment in planted areas,
and directs that markers and other objects be placed in nonplanted areas. Given the
comprehensive limitations on the Department’s activities set forth in the Entry Order,
PRI’s contentions that the Entry Order will cause harm to its property and to its workers,
crops, and livestock is merely speculative, and is insufficient to establish an
unconstitutional taking.
In applying the first Penn Central factor, the question we address is not whether
the governmental action will inconvenience the owner, or whether the action will cause
damage or economic loss. We examine whether, considering the owners’ general use of
the property, the action will unreasonably impair the value or use of the property.
(PruneYard Shopping Center v. Robins (1980) 447 U.S. 74, 83 [64 L.Ed.2d 741, 753];
Shaw v. County of Santa Cruz, supra, 170 Cal.App.4th at p. 272.) We ask “whether the
interference with [the] property is of such a magnitude that ‘there must be an exercise of
eminent domain and compensation to sustain [it].’ ” (Penn Central, supra, 438 U.S. at
p. 136.)
There is no evidence in the record that the activities allowed under the Entry Order
will destroy or even impair the fair market value of the properties. There is no evidence
that the allowed activities are so invasive that they will make the business operations of
the owners “commercially impracticable.” (Keystone Coal Association v. DeBenedictis
(1987) 480 U.S. 470, 493, 495-496 [94 L.Ed.2d 493, 472, 495].) On the contrary, the
conditions placed by the Entry Order on the activities allowed and the manner in which
18
they may be conducted, assures that the business conducted on the properties will be
minimally affected.
b. Interference With Investment-backed Expectations
The second Penn Central factor is the extent to which the Department’s actions
will interfere with the Owners’ distinct investment-backed expectations. The activities
permitted by the Entry Order will not change the landowners’ reasonable expectations in
the use of the property. There is no evidence that the allowed actions will result in the
Owners’ inability to use the property as expected, that it will render the property “wholly
useless” or result in a “complete destruction” of the Owners’ rights in the property.
(Penn Central, supra, 438 U.S. at p. 127-128.)
c. Character of Government Action
The final Penn Central factor is the character of the government action. (Penn
Central, supra, 438 U.S. at p. 124.) While Penn Central indicated that a physical
invasion of property is more likely to constitute a taking, the Supreme Court more
recently made it clear in Loretto that not every physical invasion is a taking. (Loretto,
supra, 458 U.S. at p. 436, fn. 12.) Here, because the parcels are relatively large in size
and there are numerous restrictions put in place by the Entry Order for the protection of
the property owners, the entries allowed are not particularly intrusive. The entries are
short in duration, the number of personnel allowed on the property is limited, the types of
activity allowed will not significantly disrupt the normal use of the property by the
Owners, the Department’s access is not exclusive, the activities will not oust the Owners
of possession, and the allowed activities are so limited as to be unlikely to damage the
property. The Owners will receive compensation for any damage that does occur.
d. Arkansas Game Factors
Although the intentional character of the invasion weighs in favor of a taking, not
every intentional invasion is a taking, and in this case the temporary nature of the
invasion weighs heavily in favor of finding no taking. As indicated, over a one-year
19
period the entry would last 25 days on the smallest parcels, and 66 days on the largest
parcels. No recurring entry is allowed. Thus, after the Department has completed its
allotted time, no further entries will occur.
Based on the Penn Central and Arkansas Game factors, the activities allowed
pursuant to the Entry Order do not constitute a taking. They will not unreasonably impair
the value or use of the property, they will not destroy the investment-backed expectations
of the owners, and they have been carefully restricted to be noninvasive, short in
duration, and to cause as little damage to property as possible.
2. The Denial Order for Geological Testing
The majority opinion reasons that the geological activities on 35 of 240 properties
will work a taking “per se” because they are a permanent physical occupation by the
State that will destroy the landowners’ right to possess, use, and dispose of the property.
(Maj. opn. ante, at p. 13.) This faulty premise leads to an incorrect conclusion. The
State’s occupation of the property is not permanent in the sense that the cables and boxes
in Loretto, supra, 458 U.S. 419 were permanent. In that case the cable company owned
the cables and boxes, had the right to occupy the space needed for the cables and boxes,
and presumably the right to repeated entries to maintain the installations. It was this
permanent, exclusive appropriation of property to the condemnor, however small, that
characterized the categorical taking. Here, by contrast, the grout left behind by the
testing does not give rise to a continuing right on behalf of the State to enter the property,
and the State maintains no interest in the columns of grout left behind.
Additionally, the grout columns are not hard, like concrete, but are of a
consistency that may be shaved with a pocket knife, similar to material that would be
naturally occurring underground. Consequently, it is incorrect to say that these
underground tubes will destroy the Owners’ right to possess, use, or dispose of the
property. The Owners retain the right to possess and use the property, and because the
grout is designed to be a substitute for the removed dirt, no evidence has been offered
20
that the tubes of grout will in any way impair the use of the property. On the contrary,
the grout will serve to protect the water table.
This is not a permanent occupation by the State, but is a temporary physical
invasion short of an occupation that will leave a permanent residual impact, albeit a
benign impact. This is not a per se taking. Rather, it requires an ad hoc factual
determination to evaluate whether it constitutes a taking.
Because the trial court denied the Department’s request for geological testing,
there is no order delineating the scope of the allowed activities. We must rely on the
Department’s petition and other evidence describing the proposed activities to delineate
the scope of the proposed entry.
The geological activities that Department sought to employ consisted of borings
with an auger and/or mud rotary drill, soils sampling using a Standard Penetrometer test
(SPT) barrel and Shelby tubes, CPT, and geophysical borings and surveys to obtain,
study and examine soil and groundwater samples and to determine groundwater depth.
The Department requested entry onto 35 parcels for the purpose of geological
testing, only 10 of which would involve drilling more than one hole. On seven of the
parcels, the Department proposed to conduct CPT only. On the other parcels, the
Department proposed either drilling alone, or drilling and CPT. As the majority notes,
the Department plans to leave nine CPT and drill holes on one parcel, the most holes for
any one parcel. The record is silent, however, on how large this one parcel is. We do
know that the parcel is owned by The Carolyn Nichols Revocable Living Trust, that the
property owned by the trust would be subjected to 13 holes in total, and that the trust
owns just over 7,136 acres of property involved in this action. On such a large amount of
land, even 13 holes seems a minor intrusion.
The CPT involves a rod that is pushed into the ground. The rod is removed, and
the hole is filled with grout. The CPT activities require a CPT truck, a support truck, a
geologist’s truck, and an environmental scientist’s vehicle. Up to four personnel were
21
required. There would also be a need for limited, transitory access for regulatory
personnel from the Department of Fish and Wildlife and the United States Fish and
Wildlife Service, as well as Department personnel to deliver supplies. One day of entry
(7:00 a.m. to 7:00 p.m.) would be required for each CPT site.
Soil boring activities required 11 days per parcel. Each soil boring required a
drilling rig, a support vehicle, a geologist’s truck, an environmental scientist’s vehicle, a
portable toilet, 55-gallon drums for the removal of soils, and possibly a forklift. The
borings would be from 3.7 to 8 inches in diameter. The depth would be from 5 to 205
feet. The drills are vehicle mounted and powered by a commercial or industrial engine.
The soil samples obtained would be removed for testing.
Upon completion of the testing, the bore holes would be filled with bentonite
grout. The grout prevents cross-contamination. A properly sealed hole cannot
contaminate a nearby drinking well or agricultural well. The grout is not as hard as
cement. It can be shaved with a pocket knife. The grout stops approximately two feet
below the surface and the top is filled with dirt, so that future planting is not affected.
Each boring would require a five-person crew. Limited, transitory access would
be required as for CPT testing. For parcels requiring two or more soil borings (10 of the
total 35 parcels), two crews would work simultaneously. Before any underground work,
the Department would contact the Underground Service Alert to determine the location of
underground utilities. There would be an environmental scientist and a cultural scientist
on hand to prevent harm to endangered species or cultural artifacts. The Department tries
to accommodate the landowner’s preferences as to location of the exploration, and can
work around harvest times, but the location must be within 200 feet of the proposed
alignment of the canal or tunnel. The Department also tries to have a representative from
the reclamation district review the site, in case there are concerns about the levees.
However, the Department stated it would not drill on a levee or at the toe of a levee.
22
As with the environmental testing, Owners made few claims about the impact the
specific testing would have on their property interests. Owners presented the following
claims in response to the proposed geological testing. First, the Tsakopoulos Family
Trust declared that its property was actively farmed, and that it contained gas pipelines
and pump stations, as well as underground irrigation lines. The trust objected to the
possibility that it would receive no notice of the entry, and that it would have no control
over the location of the drilling. However, the Department indicated that it would notify
Owners of preliminary entries, and consult with Owners regarding the location of the
geological sites. The Department submitted aerial views of the properties with the
location of the proposed test sites marked on each.
Second, PRI submitted a declaration stating that every pit or bore hole located in a
field will “necessarily” destroy crops, and will force harvesting equipment to
circumnavigate the drilling equipment. It claimed the excavations and borings could
cause contamination of the soil and groundwater or induce seepage from adjoining water
sources. It claimed that borings could weaken levees and create seepage and levee
failure, and impair the operation of toe drains and drainage canals. This is merely
speculation, as the Department testified that it would accommodate the landowner’s
preferences as to the location of the drilling, and the procedures for sealing the drill holes
would prevent contamination or weakening of the levees.
Third, at the hearing, Owners presented the testimony of an engineer, who stated
he knew of two instances in the Delta where boils had occurred after borings had been
drilled into the floor of an island adjoining a levee. A boil is uncontrolled seepage
through a levee. The borings were not performed by the Department, but by an
underground oil reserve company. The boils occurred because the holes were improperly
sealed. The sealing process proposed by the Department is the correct method. One of
the two boils resulting from the oil company’s drilling was later sealed using the method
proposed by the Department, and no further problems occurred.
23
a. Economic Impact of Entry
As in the case of the environmental testing, Owners made only the above claims as
to the testing’s impact and any claim that the drilling would have an economic impact on
the properties is merely speculative in light of testimony that the Department would work
with landowners to determine the location and time of drilling, and would not
permanently disturb the surface of property that is primarily used for agriculture and
hunting purposes.
b. Interference With Investment-backed Expectations
Owners made no claims that the drilling would interfere with their
investment-backed expectations.
c. Character of Government Action
As with the environmental testing, the entries would constitute a physical
invasion, but they would be short in duration, would be designed to avoid significant
disruption of the use of the property, and would not oust Owners of possession. Any
planned damage to the property would be de minimis. The drilling would not leave holes
in the ground. The grout material used to fill the holes would not disturb crops because
the top two feet would consist of soil. When completed, the drilling would leave no
visible sign of its occurrence.
d. Arkansas Game Factors
As with the environmental tests, the brevity of the entries for geological testing is
such that it outweighs the intentional nature of the entry.
Based on the Penn Central and Arkansas Game factors, Owners have not
presented evidence that the geological testing will rise to the level of a compensable
taking, thus the entry statutes would not be unconstitutional as applied to allow
geological testing.
24
II
The Entry Statutes Satisfy the Constitution
Even Where They Allow a Taking
Owners have not shown that the entry statutes are unconstitutional on their face,
nor are they unconstitutional as applied because the face of the order, fairly read, does not
propose a taking. Nonetheless, even if the order proposed a taking, the entry statutes
would not allow a taking in violation of the federal or state Constitutions. The majority
states that the State has effectively conceded this argument, but it has long been the rule
that the courts are not bound by the concessions of a party’s attorney, because it is the
court’s duty “to declare the law as it is, and not as either appellant or respondent may
assume it to be.” (Bradley v. Clarke (1901) 133 Cal. 196, 210; People v. Sanders (2012)
55 Cal.4th 731, 740, fn. 9.)
The Fifth Amendment to the United States Constitution provides: “nor shall
private property be taken for public use, without just compensation.” Article I, section
19, subdivision (a) provides first that, “[p]rivate property may be taken or damaged for a
public use and only when just compensation, ascertained by a jury unless waived, has
first been paid to, or into court for, the owner.” The second sentence of subdivision (a) is
an exception to this general rule. “The Legislature may provide for possession by the
condemnor following commencement of eminent domain proceedings upon deposit in
court and prompt release to the owner of money determined by the court to be the
probable amount of just compensation.” The exception relates to the timing of the
condemnor’s possession, thus the exception modifies the timing requirement of the first
sentence, i.e., that property may not be entered or possessed before just compensation has
been ascertained by a jury unless waived and the probable amount of compensation is
paid to the owner or into court.
Because the California Constitution contains more stringent requirements, I look
to those to determine whether the entry statutes may authorize a taking. Since the entry
25
statutes do not require a jury trial before the condemnor takes possession, to satisfy the
second sentence they must: (1) provide for the deposit in court and prompt release to the
owner of an amount determined by the court to be the probable amount of just
compensation; and (2) qualify as an eminent domain proceeding, if they are to satisfy
subdivision (a) of article I, section 19. The entry statutes meet both of these requisites.
A. Just Compensation
The entry statutes contain a procedure by which the court determines “the
probable amount of compensation to be paid to the owner of the property for the
[anticipated] actual damage to the property and interference with its possession and use”
and requires that the amount determined be deposited with the court. (§ 1245.030,
subd. (b).) Because section 1245.050 gives the court the discretion to disburse the money
deposited and to modify the amount as necessary, there is a mechanism for the prompt
release of the money.
Owners argue, and the majority agrees, that payment for actual damage to the
property and for interference with its possession and use is not the equivalent of just
compensation. They argue that just compensation must also include payment for the loss
of their quiet use and enjoyment of the property. I disagree. Owners argue the tests will
amount to a taking in the nature of a temporary easement. “Ordinarily, fair compensation
for a temporary possession of a business enterprise is the reasonable value of the
property’s use.” (United States v. Pewee Coal Co. (1951) 341 U.S. 114, 117 [95 L.Ed.
809, 813].) This is precisely the measure of just compensation provided in the entry
statutes for the temporary use of the property to conduct tests and surveys.
Owners do not say in what respect payment for the loss of quiet use and
enjoyment differs from payment for interference with the possession and use of the
properties, and I do not discern a difference. By fully compensating the owner for actual
damage and loss of possession and use, the owner is fully compensated as if the property
had been taken temporarily for that purpose and the owner had received just
26
compensation. There is no additional measure of the value of just compensation when
the taking involves a temporary nonexclusive entry for test purposes.
The majority insists that the entry statutes do not provide for the acquisition of a
property interest because the value determination made by the trial court is for damage
and loss of use, rather than fair market value in the traditional sense. (Maj. opn. ante, at
p. 26.) This is a curious argument for the majority to make since the condemnation
statute is limited to “interest[s] in property.” (§ 1240.110) Again, the type of temporary
invasion contemplated by the entry statutes is not readily susceptible to the type of
appraisal used to make a standard fair market value determination. Instead, in the case of
a temporary, nonexclusive entry, the fair market value is measured by the damage to and
loss of use of the property. Thus, the entry statutes do provide for the payment and
acquisition of this type of interest in property.
Owners are correct in recognizing that a taking for preliminary testing and a taking
prior to the completion of condemnation proceedings (a quick-take) implicate different
measures of value. An entry for the purpose of testing may cause interference with the
use of or incidental damage to the property, while the value of acquiring the whole of the
property is measured by its fair market value.
Owners do not detail an inadequacy in the dollar amount of compensation allowed
by the trial court, and refuse to recognize that the measure of compensation for
preliminary testing provided under the entry statutes is the equivalent of constitutional
just compensation. Thus, the essence of the Owners’ position is simply that the entries
are not innocuous, and are therefore unconstitutional.
B. Entry Statutes are an Eminent Domain Proceeding
The entry statutes are contained within the Eminent Domain Law and function as
an eminent domain proceeding for purposes of the state Constitution. The second
sentence of article I, section 19 of the California Constitution states that the Legislature
may provide a mechanism by which a condemnor may take possession of the property
27
after commencing an eminent domain proceeding. It does not dictate the specific
procedure, let alone require a complaint, other than to require the court to determine the
probable amount of just compensation and to require its deposit and prompt release to the
owner. The entry statutes are, in effect, a shortened eminent domain proceeding for the
limited purpose of allowing precondemnation tests.
1. Entry Statutes are Part of the Eminent Domain Statutes
Section 1230.020 states: “Except as otherwise specifically provided by statute, the
power of eminent domain may be exercised only as provided in this title.” “[T]his title”
is title 7, the Eminent Domain Law. The entry statutes are found in title 7 of part 3 of the
Code of Civil Procedure. They specifically provide for the exercise of the power of
eminent domain for a limited purpose. As discussed in section 3 below, the Legislature
has shown by its amendment of the entry statutes and the legislative history
accompanying the amendments that it intended the entry statutes as a type of eminent
domain proceeding that applies in the narrow circumstances described therein.
2. Entry Statutes Provide Just Compensation
The entry statutes today bear little resemblance to former section 1242, in effect
when Jacobsen was decided. There are now multiple sections setting forth a detailed
procedure for preliminary examinations and payment for damage, in contrast to former
section 1242 as analyzed by Jacobsen, which contained but one section and two
sentences.7
7 In Jacobsen “section 1242 of the Code of Civil Procedure, . . . [read] as follows: ‘In all
cases where land is required for public use, the state, or its agents in charge of such use,
may survey and locate the same; but it must be located in the manner which will be most
compatible with the greatest public good and the least private injury, and subject to the
provisions of section twelve hundred and forty-seven. The state, or its agents in charge
of such public use, may enter upon the land and make examinations, surveys, and maps
thereof, and such entry shall constitute no cause of action in favor of the owners of the
28
The entry statutes now provide a mechanism to pay just compensation to the
landowner. In the absence of the owner’s agreement, the condemnor is required to obtain
a court order that establishes the probable amount of compensation and requires such
amount to be deposited with the court. (§ 1245.030.)
The majority reasons that the entry statutes do not protect an owner’s
constitutional rights because they do not expressly provide for a hearing on the petition.8
But the entry statutes require notice to be given the owner and an order issued by the
court. No purpose would be served by notifying the owner unless to allow the owner an
opportunity to be heard. Moreover, a hearing would be required by due process of law
and to the extent lack of a hearing is a constitutional impediment, we may reform or
rewrite the statute to preserve it from invalidation. (In re Marriage of Burkle (2006) 135
Cal.App.4th 1045, 1068.) “[A] court may reform--i.e., ‘rewrite’-- a statute in order to
preserve it against invalidation under the Constitution, when we can say with confidence
that (i) it is possible to reform the statute in a manner that closely effectuates policy
judgments clearly articulated by the enacting body, and (ii) the enacting body would have
preferred the reformed construction to invalidation of the statute.” (Kopp v. Fair Pol.
Practices Com. (1995) 11 Cal.4th 607, 660-661.) Since notice and an opportunity to be
heard are basic due process notions before one’s interests may be adversely affected, we
may say with confidence that the Legislature intended that an owner will be afforded a
hearing under the entry statutes.
The entry statutes contain a mechanism for increasing the deposited amount,
where necessary, and for disbursing the amount deposited. (§§ 1245.040-1245.060.)
land, except for injuries resulting from negligence, wantonness, or malice.’ ” (Jacobsen,
supra, 192 Cal. at pp. 328-329.)
8 I note that the second sentence of article I, section 19, also does not expressly require a
hearing at which the just compensation for the entry is determined.
29
Subdivision (a) of section 1245.060 provides that “the owner may recover for such
damage or interference in a civil action . . . .” And subdivision (d) specifically provides
that the owner retains any other remedy it may have for the damaging of the property.
These payment provisions comply with the federal Constitution, which provides
merely: “nor shall private property be taken for public use, without just compensation.”
(U.S. Const., 5th Amend.) “[T]he Fifth Amendment does not require that just
compensation be paid in advance of or even contemporaneously with the taking.
[Citation.] All that is required is the existence of a ‘ “reasonable, certain and adequate
provision for obtaining compensation” ’ at the time of the taking. [Citations.] ‘If the
government has provided an adequate process for obtaining compensation, and if resort
to that process “yield[s] just compensation,” then the property owner “has no claim
against the Government” for a taking.’ [Citations.]” (Preseault v. ICC (1990) 494 U.S.
1, 11 [108 L.Ed.2d 1, 13].)
The entry statutes also comply with the additional requirements of the state
Constitution, that just compensation be determined by the court, deposited in court, and
promptly released to the owner.
The taking authorized by the entry statutes is a particular, narrow type of taking.
It is temporary and for the limited purpose of conducting such tests as are “reasonably
related to acquisition or use of the property” by the condemnor. (§ 1245.010.)
3. The Legislature Intended that the Entry Statutes Function as Eminent Domain
Proceedings
The history of amendments to the entry statutes shows that the Legislature
intended the statutes would comply with the state constitutional provisions regarding the
taking of private property for public use. In 1959, the Legislature added former section
1242.5 to the Cod
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