California Legal Brief

The Rule of Department of Water Resources Cases is that Water Code section 250 and 11580 project authorization and funding requirements do not apply to precondemnation entry and testing activities under Code of Civil Procedure section 1245.010, under circumstances where a public entity with eminent domain authority seeks temporary access to conduct investigations to determine property suitability for future condemnation.

Appeal from order granting entry under the precondemnation entry statutes in Superior Court, San Joaquin County.

Appellant was Coney Island Farms, Inc. et al. — landowners whose properties DWR sought to enter for environmental, cultural, and geological investigations including borings and cone penetrometer tests in connection with the Delta Conveyance Project.

Respondent was State of California, acting by and through the Department of Water Resources — the state agency with eminent domain authority seeking precondemnation access to conduct studies to evaluate properties' suitability for a potential water conveyance project.

The suit sounded in eminent domain law regarding precondemnation entry and testing. 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 enter private properties to conduct environmental, cultural, and geological investigations, including borings and cone penetrometer tests, to evaluate property suitability for the Delta Conveyance Project. DWR had certified a final environmental impact report for the project in December 2023 but the project was not fully authorized and funded.

The procedural result leading to the Appeal: The trial court granted DWR's petitions for entry orders, ruling that DWR was not required to comply with the project approval requirements of Water Code sections 250 and 11580 for precondemnation entry and testing activities.

The key question(s) on Appeal: Whether Water Code sections 250 and 11580 project authorization and funding requirements apply 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 are limitations on DWR's exercise of classic eminent domain power to acquire property, not prerequisites to precondemnation entry and testing activities, because the precondemnation entry statutes only require that the condemning entity possess authority to acquire property by eminent domain, and imposing project approval requirements would render the precondemnation entry statutes meaningless by forcing entities to finance projects before conducting preliminary investigations to assess property suitability.

The case is inapplicable when the public entity lacks any statutory authority to acquire property by eminent domain, or when the entity seeks to commence a classic condemnation proceeding to actually acquire property rather than merely conduct precondemnation investigations.

The case leaves open questions regarding what constitutes sufficient "authorization to acquire property by eminent domain" under section 1245.010 for entities other than DWR, and whether different timing limitations in other statutes might apply to precondemnation activities by other public entities.