Appellate court ruling new hurdle for Delta tunnel plans
“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.
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.
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.”
Walsch, Denny. Sacramento Bee 13 March 2014.