A state appellate court dropped a bomb late Thursday on the early stages of the state's plan to divert fresh Northern California water under or around the Sacramento-San Joaquin Delta on its way to Central and Southern California.

On a 2-1 decision, a three-justice appeal panel in Sacramento ruled the California Constitution bars the state from entering private properties to do preliminary soil testing and environmental studies unless it wants to condemn affected sections of the parcels through its power of eminent domain.

The ruling on soil testing affirms a 2011 decision by a retired Superior Court judge sitting in San Joaquin County. The ruling on environmental studies reverses a separate 2011 ruling by the same judge.

In a terse statement released Friday, the state Department of Water Resources said it "does not expect yesterday's ... decision to have any material impact on the schedule of the Bay Delta Conservation Plan (BDCP). Based on the lower court's decision, DWR has been proceeding pursuant to the eminent domain process to conduct geotechnical drilling and will continue to do so."

Judge John P. Farrell, retired from the Los Angeles Superior Court, was appointed by the chief justice of the California Supreme Court to handle the issue.


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The state does not want to condemn, acquire and pay for property that it has not yet decided will be used for a tunnel or canal diversion project. But the two-justice majority of the 3rd District Court of Appeal panel said in a 44-page opinion that drilling to test the soil and tramping around to survey the environment are legal "takings" of property and must be done in accord with procedures spelled out in California's Eminent Domain Law.

The "land-entry statutes" relied on by the state Department of Water Resources do not apply to those activities because they fail to "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," said the majority.

The state wants to enter private land and drill for soil samples, as deep as 200 feet, to find the best route for a canal or tunnel to divert a portion of the Sacramento River's flow out of the environmentally sensitive estuary and directly into state and federal Delta water diversion pumps near Tracy. The drilled holes would be left filled with concrete.

Water authorities also want to enter the properties to determine each parcel's botany and hydrology; the presence of sensitive plant and animal species; the existence of vernal pools, wetlands and other animal habitat; the extent of cultural resources and utilities; and potential for recreational uses.

The majority noted the environmental crews would take minor soil samples, observe and trap certain animals and access the properties by motor vehicle, on foot, and by boat when necessary. If the state wants 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," the majority opinion declared.

The litigation involves more than 150 owners of more than 240 parcels in Sacramento, San Joaquin, Yolo, Solano and Contra Costa counties. The properties total tens of thousands of acres used primarily for commercial agriculture, cattle ranching and recreation.

There is a strong possibility that the state will seek review of Thursday's opinion at the California Supreme Court, and the opinion is likely to cause a substantial delay of the project. The majority opinion was authored by Associate Justice George Nicholson, who was joined by Associate Justice Andrea Lynn Hoch.

In a dissent two pages longer than the majority opinion, Acting Presiding Justice Cole Blease took strong exception to the reasoning of his colleagues. Blease quotes the land-entry statutes as allowing an entity with eminent domain power to go on property "to make photographs, studies, surveys, examinations, tests, soundings, borings, samplings, or appraisals ... reasonably related to (possible) acquisition or use of the property." The majority's ruling "clearly was not the purpose of the Legislature in enacting a procedure for preliminary (study), which provides notice and payment to the owner and a procedure for ensuring that the testing is reasonably necessary, without obligating the (public entity) to file a traditional condemnation proceeding," Blease wrote.

"We should construe the entry statutes as constituting an eminent domain proceeding," he wrote.

Kelly Gust of Bay Area News Group also contributed to this story. Reach her at kgust@bayareanewsgroup.com.