California Legal Brief

The Rule of Department of Water Resources Cases is that a public entity with eminent domain authority may conduct precondemnation entry and testing activities under Code of Civil Procedure section 1245.010 et seq. without satisfying project approval requirements found in other statutes, under circumstances where the entity possesses general statutory authority to acquire property by eminent domain for the relevant use, regardless of whether the testing activities constitute a taking or damaging of property.

Appeal from judgment after coordinated proceedings in Superior Court, San Joaquin County.

Defendant Appellants were multiple landowners — property owners whose land DWR sought to access for precondemnation testing activities related to a potential water conveyance project.

Plaintiff Respondent was State of California, acting by and through the Department of Water Resources — the state agency seeking to conduct environmental, cultural, and geological investigations including borings and cone penetrometer tests.

The suit sounded in eminent domain/condemnation proceedings under the precondemnation entry statutes. No cross-claims identified.

The key substantive facts leading to the suit were DWR filed petitions under Code of Civil Procedure section 1245.010 et seq. seeking court orders to access private properties to conduct environmental, cultural, and geological testing activities (including borings and cone penetrometer tests) to evaluate property suitability for a potential Delta Conveyance Project water infrastructure project, despite the project not being fully authorized or funded as required by Water Code sections 250 and 11580.

The procedural result leading to the Appeal: The trial court granted DWR's petitions for precondemnation entry orders, ruling that DWR was authorized to conduct the testing activities under the precondemnation entry statutes without needing to satisfy the project approval requirements of Water Code sections 250 and 11580.

The key question(s) on Appeal: Whether the project approval requirements of Water Code sections 250 and 11580 (requiring an "authorized and funded project") apply as prerequisites to precondemnation entry and testing activities under Code of Civil Procedure section 1245.010 et seq.

The Appellate Court held that project approval requirements in Water Code sections 250 and 11580 do not apply to precondemnation entry and testing activities, because these statutes impose timing restrictions only on classic condemnation proceedings to acquire property, not on preliminary testing activities designed to determine whether property should be acquired, and requiring project authorization before testing would render the precondemnation entry statutes meaningless by forcing entities to fund projects before assessing property suitability.

The case is inapplicable when the public entity lacks general statutory authority to acquire property by eminent domain for the relevant use, or when the entity seeks to actually acquire property interests rather than conduct temporary precondemnation testing activities.

The case leaves open what specific level of statutory eminent domain authority is sufficient to satisfy Code of Civil Procedure section 1245.010's requirement that the entity be "authorized to acquire property for a particular use by eminent domain," and whether different project approval requirements in other statutory schemes might apply to precondemnation activities.