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California Supreme Court Finds State Officials May Conduct Pre-Condemnation Environmental and Geological Activities on Privately Owned Delta Lands

Capping several years of litigation, on July 21, 2016, the California Supreme Court determined in Property Reserve, Inc. v. Superior Court that California’s eminent domain statues allow state officials to enter and conduct extensive studies on privately owned Sacramento-San Joaquin Delta (Delta) lands in order to evaluate their suitability for the controversial proposed $15 billion tunnel system project that would be used to convey water to central and southern California (Delta Tunnels Project, also known as the California WaterFix). The Supreme Court also reformed California’s statutory pre-condemnation procedures to give landowners a right to have a jury determine the measure of compensation owed from damage caused by such pre-condemnation activities.
[Property Reserve, Inc. v. Superior Court, ___Cal.4th___, 204 Cal.Rptr.3d 770 (Cal. July 21, 2016).]

The Property Reserve decision carries broad and long-term implications, not only for the Delta Tunnels concept, but for many public projects that involve pre-condemnation activities. Facing predictions of longer and more intense periods of drought, the need for stable and sufficient water storage, conveyance and delivery infrastructure in California has never been greater. The Property Reserve decision of the Supreme Court not only extends the parameters within which public agencies must operate in evaluating candidate properties for those infrastructure projects but also adds protection for landowners in the right to a jury’s determination of the requisite compensation.
(Derek Hoffman, Michael Duane Davis)