Tuesday, April 12, 2011

Property Rights Upheld, Progress on Peripheral Canal/Tunnel Thwarted in Courts

Large San Francisco Bay
San Francisco Bay from Space
by: NASA Earth Observatory
The courts have ruled against the State Department of Water Resources (DWR) demand to drill on private lands to research the “best” route for the diversion of water around the Delta. The Fifth Amendment of the Constitution covers the legal concept of taking private land for public use, requiring just compensation. The two types of government taking are through condemnation or through regulatory taking. This case involves the latter.

DWR is charged with locating alternative routes and infrastructure (e.g. canal v. tunnel). Route designations will presumably be chosen based on a multitude of factors, the underlying geomorphology contributing some of the significant factors. It is understandable that DWR would request access to lands for drilling to understand the nature and suitability of the subsurface, but first, perhaps, they should take the time to understand the nature and sensibilities of the citizens on whom they are imposing.

In 2006, while I sat on the California Reclamation Board (now the Central Valley Flood Protection Board), I had a conversation with a Deputy Director of DWR. He seemed fairly cavalier about exercising eminent domain to force the peripheral canal onto private lands. His assumptions about the State’s acquiring land for the project are likely correct and I can’t fault him for that. What I do take issue with is the cynicism and general disregard for the gravity of the action against our citizens. None of this should be undertaken lightly and all of it should be considered in terms of due compensation.

One of the problems is that to date the State has been brushing off the concerns of the local stakeholders, justifying the project as representing the needs of the many and ignoring the needs of the few. There is no reason to ignore the needs of the few, just because they do not carry political clout. A government that does right by all of its constituents will have a higher approval rating, and therefore prove more effective.

The cost of due compensation, even going over and above for these generational farmers and land owners will pay off in goodwill dividends down the road, setting the stage to build a more sustainable and resilient Bay Delta in the future.

State can't drill lands for canal, judge rules

Delta landowners applaud decision; Water Resources may pursue appeal
The state's request to drill more than 200 feet into private Delta lands in search of the best route for a peripheral canal or tunnel has been denied by a San Joaquin County Superior Court judge.Alex Breitler
The decision arrives after more than two years of legal struggles between 100-plus landowners and the state Department of Water Resources, which first asked the landowners for access to their properties and then tried to force the matter in court.
"This is a very good day for Delta landowners," said Stockton attorney Thomas Keeling, who represented 93 of them. "The DWR's roughshod ride over the backs of the landowners has encountered a major speed bump."
In a tentative ruling, Judge John P. Farrell basically found that the drilling would constitute a "taking" of property under the law. The final written ruling was expected to be released late Friday.
A spokesman for Water Resources said the state may seek an appeal, and will continue seeking access to drill.
"We will negotiate with landowners to purchase the easements necessary for our studies. Failing that, we may seek necessary easements through eminent domain," spokesman Ted Thomas said.
In any event, Friday's ruling could mean considerable delay in the environmental studies needed to build a canal or tunnel, Keeling said.
In 2008 and 2009, the state sent requests for temporary access to landowners spread across five Delta counties. Those who would not agree were taken to court.
The judge earlier this year agreed to allow the state some access for less-intrusive environmental survey work, such as checking for the presence of plants and animals, or examining the locations of drainage ditches, streams and wetlands.
But the judge has now declined to allow the most controversial action - drilling.
The truck-mounted drills would have bored holes 205 feet underground, removing about 2 cubic yards of soil from each site and plugging the holes with grout, according to court documents.
About 25 to 30 of the 100-plus landowners in question would have been subject to the drilling, Keeling said. Another 150 property access requests expected to go out soon also seek permission to drill, he said, although the Water Resources spokesman could not verify that Friday.
The purpose of a canal or tunnel is to divert Sacramento River water before it hits the heart of the Delta, shipping it to giant pumps near Tracy that push the water to farms in the south San Joaquin Valley and to cities as far south as San Diego. Delta farmers fear the diversion will ruin their water quality, while supporters say it could improve water supplies for much of California and help fish.
For Delta farmers, the drilling requests - and the land-access issue as a whole - were a double insult. They were being asked to allow the state on their land for what they considered to be intrusive surveys, in order to pave the way for a project that many of them despise.
"From a Delta landowner perspective, this is a huge victory," said Brett Baker, a sixth-generation pear farmer and advocate with Stockton-based Restore the Delta. "From all we can tell, they said the information they were seeking was absolutely necessary to the environmental document (for a canal or tunnel). I don't see how they can complete the document now."
He urged farmers to "hold strong" and "not cave in to prevailing pressure" during the negotiations to come.
Contact reporter Alex Breitler at (209) 546-8295 or abreitler@recordnet.com. Visit his blog at recordnet.com/breitlerblog.

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