Reported / Citable
Background
The California Department of Water Resources (DWR) has been considering a major water conveyance project to move water from the Sacramento-San Joaquin Delta. To assess whether particular properties are suitable for the project, DWR filed multiple petitions in superior court under California’s precondemnation entry statutes (Code of Civil Procedure section 1245.010 et seq.). These statutes allow public entities with eminent domain authority to obtain court orders to enter property for surveying, soil testing, environmental sampling, and similar activities to determine whether the property should be acquired.
Numerous landowners objected. They argued that DWR was not entitled to use the precondemnation entry procedure because Water Code sections 250 and 11580 impose a special timing limitation on DWR’s exercise of eminent domain. Specifically, the landowners contended DWR must first have an “authorized and funded project” in place before it can commence “any such proceeding in eminent domain,” and that this requirement extended to precondemnation entry petitions.
The trial court granted DWR’s entry petitions. The landowners appealed. They also argued, in light of the U.S. Supreme Court’s decision in Cedar Point Nursery v. Hassid (2021), that the geotechnical and environmental testing constituted per se physical takings requiring a classic condemnation action.
The Court’s Holding
The Third District Court of Appeal affirmed. The court held that DWR was entitled to use the precondemnation entry statutes for water conveyance project investigations without first having an authorized and funded project in place under Water Code sections 250 and 11580.
The court relied heavily on Property Reserve, Inc. v. Superior Court (Property Reserve I), the California Supreme Court’s 2016 decision validating the precondemnation entry procedure as a constitutionally adequate alternative to a classic condemnation action. Property Reserve I held that public entities considering condemnation may use the entry statutes for investigation, even where the testing might rise to the level of a taking, as long as landowners can ultimately obtain just compensation through a jury trial on damages.
The court rejected the argument that Water Code sections 250 and 11580 imposed an additional pre-entry requirement. Reading those sections to require an authorized and funded project before precondemnation entry would defeat the very purpose of the entry statutes, which is to allow the public entity to determine whether a property is suitable before deciding whether to acquire it. The Water Code restrictions apply to the actual exercise of eminent domain through a classic condemnation action, not to precondemnation investigation.
The court also rejected the Cedar Point Nursery argument, explaining that even if DWR’s testing activities constitute physical takings, Property Reserve I had already established that the precondemnation entry procedure provides a constitutionally adequate mechanism for compensating landowners.
Key Takeaways
- Public entities with eminent domain authority may use the precondemnation entry statutes (Code of Civil Procedure section 1245.010 et seq.) to enter property for testing without first commencing a classic condemnation action.
- Water Code sections 250 and 11580 do not require DWR to have an authorized and funded project in place before initiating precondemnation entry proceedings; those provisions govern actual exercise of eminent domain authority.
- Property Reserve I remains the controlling authority for evaluating challenges to precondemnation entry procedures, and its holding is not displaced by Cedar Point Nursery.
- Even if precondemnation testing rises to the level of a taking, the entry statutes provide a constitutionally adequate procedure because landowners may obtain just compensation through a jury trial on damages.
- Landowners objecting to entry petitions cannot defeat them by demanding a classic condemnation action or by invoking project authorization requirements that apply only to actual property acquisition.
Why It Matters
This decision is significant for major California water and infrastructure projects. The opinion confirms that DWR can investigate property suitability for the long-debated Delta water conveyance project without first having to obtain project authorization or funding. This provides DWR with substantial flexibility to gather information needed to make informed decisions about whether and how to pursue major projects.
For landowners affected by potential infrastructure projects, the opinion narrows the procedural defenses available to delay or prevent precondemnation entry. The remedy for any taking or damaging caused by such testing remains compensation through the precondemnation entry process itself. For practitioners in environmental, water, and eminent domain law, the decision reinforces that California’s two-tiered approach to eminent domain (precondemnation entry versus classic condemnation) operates as a unified scheme, with the entry statutes serving as a constitutionally adequate first step.