Destruction of Delta moves forward: courts say more of the pieces legal

The Mercury News
State Supreme Court sides with Southern California in sale of delta islands
Matt Stevens

LOS ANGELES -- The state Supreme Court has cleared the way for Southern California's powerful Metropolitan Water District to buy five islands at the epicenter of the delta's water system, officials said Friday.
Some officials and environmentalists in Northern California fought to halt the sale, worried about what the MWD planned to do with the land. The agency has said it might use some of the land to provide access for the construction of a proposed delta tunnel system, a controversial project some oppose amid California's five-year drought.
A cohort of counties, water agencies and environmental advocacy groups mounted a series of legal challenges aimed at postponing the sale. But the high court on Thursday turned those back, allowing the MWD to proceed with its $175-million purchase of the farm islands in the Sacramento-San Joaquin River Delta.
An MWD spokesman reiterated Friday that the agency has not proposed a project for the land. In the past, the district has said the 20,000 acres could be converted to fish and wildlife habitat or used to store materials for emergency levee repairs.
They have also said the islands could be used to provide access for the construction of the tunnel system, which would carry Sacramento River water under the delta to the pumping operations that send supplies south.
Two of the islands are in the path of the proposed $15-billion tunnel system, a project that MWD supports. MWD ownership of the islands would eliminate the need for eminent domain proceedings and provide easy access for construction crews on part of the project route.
Opponents of the tunnels have expressed numerous objections, including the effect on the environment and concerns about tourism and the agricultural economy.
MWD officials said Friday that they still face several lawsuits connected to the island purchase. At least one of the suits claims a breach of contract, and others argue that MWD should have been required to prepare an environmental impact report beforecompleting the purchase.
The California Environmental Quality Act lawsuits seek to unwind the deal and ultimately force MWD to give the islands back to Delta Wetlands Properties.
Thursday's Supreme Court order does not toss out the original lawsuit filed by San Joaquin County to block the sale. It simply allows the island purchase to move forward while that case and others play themselves out.
It could be months or even years until all the legal challenges to the purchase are resolved, officials said.
In court documents, lawyers for San Joaquin County and the advocacy group Food and Water Watch accused MWD of attempting to skirt the California Environmental Quality Act to "prematurely facilitate Delta exports" to the Southland.
They argued that the purchase was "an issue of great public importance" requiring the court's attention.
Brett Spencer Jolley, an attorney representing San Joaquin County did not return a phone message seeking comment on the ruling. Jolley told the Sacramento Bee that the county had every reason to oppose Metropolitan's land purchase because the tunnels would be used "to export more water to Southern California."
A divided MWD board approved the island buy in March, with representatives of Los Angeles, Santa Monica and the San Diego County Water Authority voting no. The land is owned by a private company that for years has tried to develop a water storage project on the property.

The Record
Surveys for Delta tunnels can move forward
State Supreme Court rules against landowners

Alex Breitler
In a defeat for Delta landowners, the state Supreme Court on Thursday ruled that government officials need not go through a formal eminent domain process before they can survey private property for the $15 billion twin tunnels.
The decision reverses a lower court’s ruling and removes one potential hurdle for the massive water diversion project after a six-year, back-and-forth legal struggle between Delta farmers and the state Department of Water Resources.
Delta farmers, who fiercely oppose the tunnels, objected to the state’s efforts to access their land. The proposed surveys included activities such as searching for animals, taking photographs and drilling softball-sized holes more than 200 feet deep to examine the soil.
In the end, however, the Supreme Court found that those surveys are consistent with state law, which allows public agencies to conduct initial examinations before acquiring land outright through eminent domain.
“We’re obviously pleased with the Court’s decision, which validates the procedures we’ve been using,” Water Resources spokesman Ted Thomas said Thursday. “We will continue moving forward with our work to modernize California’s water infrastructure to better protect the Delta ecosystem and water supplies.”
Had it gone the other way around, Thursday's decision could have had implications across the state. Public transportation and water agencies warned in court papers that if the Delta landowners prevailed, it would become vastly more expensive and time consuming for any agency to acquire land for any project in California.
Ed Zuckerman, president of Zuckerman Family Farms on McDonald Island and one of the plaintiffs in the case, said he was “disappointed” in the ruling, but not surprised, given the possible statewide impacts had Delta interests prevailed.
“We wanted to delay things, and we certainly did that for much longer than we actually anticipated,” Zuckerman said Thursday. “We still believe what the state was asking for was draconian and very invasive, and when they do come on (the property) we’re going to be very attuned to how they conduct themselves. They’re going to have a full-time escort and we’re going to want to know when and where. We’ll be watching like a hawk.”
Thomas Keeling, who represented the Delta landowners as an attorney with the Stockton-based Freeman Firm, said there were two “silver linings” to the Supreme Court’s action.
First, the court declared that property owners who are subjected to the initial surveys have the right for a jury to decide how much compensation they should receive. That protection didn’t exist before.
And Keeling agreed with Zuckerman that the lengthy legal proceedings delayed the project.
“This put a six-year dent in their plans for the tunnels,” Keeling said. “In terms of the overall litigation, it’s been a success.”
Water Resources first notified about 150 Delta property owners in 2008 and 2009 that it needed access to their land. Many resisted. As allowed by law, the state sought court orders, but Delta interests sued and won a series of delays as the case wound its way through the courts.
The question before the Supreme Court was whether the state’s proposed studies on private property amounted to a “taking,” which would require formal eminent domain proceedings and additional compensation for landowners.
An earlier court determined that for the preliminary surveys, Water Resources could spend anywhere from 25 days to 66 days over the course of a year conducting studies at any one property. Landowners would receive compensation ranging from $1,000 to $6,000 per property, depending on the size.
The Supreme Court acknowledged that the number of days set aside for the surveys is “not insignificant,” but noted that the landowners “will retain full possession of the property and no significant damage to the property is intended or anticipated.”
If damage does occur, property owners are entitled under the law to recoup that, the court said.
The drilling had been the most contentious of the proposed activities. The holes would be no larger than 8 inches in diameter, no deeper than 205 feet and would be filled with grout when the work was finished. Delta advocates argued that amounted to a “taking” of property.
But the court disagreed with that stance, as well.
Thursday’s decision was the second piece of recent bad news for Delta interests delivered by the state Supreme Court. Last week, the court declined to hear an emergency request to block the sale of 20,000 acres of Delta farmland to the Metropolitan Water District of Southern California. As a result, Metropolitan officially took ownership of the property on Monday.