Reported / Citable
Background
The California Department of Water Resources (DWR) has long studied potential water conveyance options through and around the Sacramento-San Joaquin Delta. To evaluate whether specific properties are suitable for the proposed conveyance project, DWR has filed numerous petitions under the precondemnation entry statutes, Code of Civil Procedure section 1245.010 et seq. Those statutes allow any public entity authorized to acquire property by eminent domain to obtain a court order permitting entry to conduct surveys, studies, geotechnical borings, and similar investigative activities reasonably related to a potential acquisition.
The California Supreme Court’s 2016 decision in Property Reserve, Inc. v. Superior Court (Property Reserve I) upheld the constitutionality of the precondemnation entry statutes, holding that they provide an adequate procedure for landowners to obtain just compensation if the entry activities rise to the level of a taking, so long as the landowner can obtain a jury trial on damages. The Supreme Court rejected the argument that DWR had to file a classic condemnation action before conducting precondemnation testing.
In this round of petitions, San Joaquin County landowners argued that even after Property Reserve I, DWR could not obtain entry orders because Water Code sections 250 and 11580 require DWR to have an “authorized and funded project” before commencing any eminent domain proceeding. The trial court rejected the argument and granted DWR’s entry order. The landowners appealed.
The Court’s Holding
The Third District Court of Appeal affirmed. The court held that Property Reserve I is dispositive: the precondemnation entry statutes are a constitutionally valid procedure separate and distinct from a classic eminent domain action. DWR need not commence a classic condemnation action, or comply with the project authorization and funding requirements of Water Code sections 250 and 11580, before conducting precondemnation testing.
The court explained that the project authorization and funding requirements in the Water Code apply to DWR’s exercise of its classic eminent domain power to acquire property. Precondemnation entry and testing are not classic condemnation activities; they are part of the investigative process that may help DWR determine whether to commence a classic condemnation action in the first place. The only statutory prerequisite for using the precondemnation entry statutes is that DWR be legally authorized to acquire property by eminent domain for the relevant public use, which it is for state water and dam purposes.
The court also rejected the landowners’ argument that the entry would constitute a per se physical taking under Cedar Point Nursery v. Hassid, requiring a classic condemnation action. Even if the geotechnical and environmental activities amount to physical takings, the Supreme Court’s Property Reserve I decision establishes that the precondemnation entry statutes provide a constitutionally adequate procedure for landowners to obtain just compensation. The trial court properly granted the entry order.
Key Takeaways
- The precondemnation entry statutes (Code of Civil Procedure section 1245.010 et seq.) provide a separate and constitutionally valid procedure for public entities to investigate properties before deciding whether to commence a classic condemnation action.
- Public entities need not satisfy project authorization and funding requirements that apply to classic condemnation before using the precondemnation entry statutes.
- For DWR specifically, Water Code sections 250 and 11580’s authorization and funding requirements do not apply to precondemnation entry and testing.
- Cedar Point Nursery’s per se physical takings analysis does not require a classic condemnation action, because the precondemnation entry statutes provide an adequate compensation procedure.
- Landowners challenged with precondemnation entry orders must focus their arguments on damages and procedural protections, not on requiring a full condemnation action up front.
Why It Matters
This decision is critical to the long-running Delta Conveyance project and to other large water infrastructure efforts in California. By confirming that DWR can investigate potential project sites without first locking in project authorization and funding, the opinion enables agencies to do the engineering and environmental work needed to evaluate whether to proceed at all. Without this flexibility, agencies would face an impossible chicken-and-egg problem.
For landowners and their counsel, the case is a reminder that resistance to precondemnation entry on jurisdictional grounds is unlikely to succeed. Practitioners should focus instead on negotiating protocols for the testing, ensuring property restoration, and preparing for a damages action if the entry causes physical harm. The opinion fits within a stable line of California law that, since Property Reserve I, has consistently rejected efforts to convert precondemnation entry into a full eminent domain proceeding.