PROPERTY RESERVE v. S.C. (DEPARTMENT OF WATER RESOURCES)

Real Party in Interest, Department of Water Resources, Petition for Review

Cal.April 22, 2014

5217738 PROPERTY RESERVE,INC., Petitioner, v. THE SUPERIOR COURT OF SAN JOAQUIN COUNTY, Respondent; STATE OF CALIFORNIA, BY AND THROUGH DEPARTMENT OF WATER RESOURCES, - Real Party in Interest. THE CAROLYN NICHOLS REVOCABLE LIVING TRUST,etc.,et al., Petitioners, V. THE SUPERIOR COURT OF SAN JOAQUIN COUNTY, Respondent; DEPARTMENT OF WATER RESOURCES, Real Party in Interest. COORDINATED PROCEEDINGSSPECIAL TITLE (RULE 3.550) DEPARTMENT OF WATER RESOURCES COPY In the Supreme Court of the State of California Court of Appeal Case No. C067758 San Joaquin CogamREMeE COURT JCCP4594 (- | | E D APR 22 2014 Frank A. McGuire Clerk Court of Appeal-Gase No. C067765 Deputy San Joaquin County No. JCCP4594 Court of Appeal Case No. C068469 San Joaquin County No. JCCP4594 After a Decision of the Court of Appeal, Third Appellate District San Joaquin Superior Court Case No. JCCP4594, Honorable John P. Farrell PETITION FOR REVIEW KAMALAD. HARRIS Attorney General of California Senior Assistant Attorney General Supervising Deputy Attorney General EinCOURT KRISTIN G. HOGUE L mo t ALBERTO L. GONZALEZ APR @y 7} JAMESC, PHILLIPS, SBN 121848 MICHAEL P. CAYABAN, SBN 179252 Frank A. Wieuire Clerk Deputy — NELI N. PALMA, SBN 203374 Deputy Attorneys General 1300 I Street, Sacramento, CA 95814 Telephone: (916) 445-2482 Email: Neli,Palma@doj.ca.gov Attorneysfor Petitioner California Department of Water Resources TABLE OF CONTENTS Page Petition for ROVICW ......:.cescessssesecssseceeseecessesecesseeeseessseeeesseessseessstecseseneseeas 1 Issues Presented for REVICW ........cccescessecssessscessessscesesessecsesseesesseessessesseeeeees 1 Reasonsfor Granting ReView....... ces eesecceseeneesteeseceeserseeeeseseeresseesssensseneeraees 2 I. This case presents issues of exceptional importanceto public entities and landownersstatewide............ccsceeseesessees 2 I. Review is necessary to settle important questions of VAW woeeeececcesecscenseesesneeeaetaeecsaseateaeeaessessessaessestaesaessaeseeseasareensnes 4 Factual and Procedural Background........ cc ccsceceessessesseeesesseeestessessesseeseesnens 6 A. Coordination of the State’sentry petitions............0.. 6 B Decision ofthe trial court sectaeetneeeesceeesaeessnaeseseseesensresss 8 C. Disposition at the Court of Appeal... ceeeeeenecerees 9 D Petition for rehearing ........cccccccsscsssesecesseseeseseeneeens 10 ALBUMEN voce eeeeeeteeennetenerereneeeseeeeeesaeeeaesaeecseessessseseseeteeetetessasensesesegeses 11 I, This Court should review the constitutionality of the entry statutes, which reflect a careful and appropriate legislative response to this Court’s holding in Jacobsen V. SUPETIOK COUPT eee eccesscceesseteneeteeeteneeeteneecsaeeseaeeesseseneeeneees 1] A. B. Jacobsen’s holding concerning only innocuous entries is no longer applicable ..........cccsccesssesseeseeeens 11 The current entry statutes were drafted to comply with Jacobsen, and are entitled to a presumption of constitutionality.........ceceeeeeseeeee 13 I. This Court should grant review to clarify the legal standard andrestore case-specific factual inquiries for temporary, precondemnation eNtries. .........csceserseeseeseeeeses 17 II. This Court should grant review to determine whether Loretto supports a finding that geotechnicalactivities TESUIt in a tAkING oeeeeeeeesseeseeesecseeesneeseeessseessaeeeereesseeets 21 TABLE OF CONTENTS (continued) Page IV. This Court should grant review becausethe decision creates onerous burdens and conflicts with the eminent Gomain law ....... ccc eeecccscceseesecssecnecensssssnssceseeececsrsssttecnersessecesess 24 CONCIUSION ..........ccccssccccssccecesesecsenacececeseesscecssseseseesauecesseustsaussesetsssersrersttuanans 27 il TABLE OF AUTHORITIES Page CASES Arkansas Game & Fish Commission v. United States (2012) US os 133 S.Ct. SDeeceecteesseeeneeeneens passim City ofLos Angeles v. Superior Court (2002) 29 Cal41 icicccccccceescssessecseeseesesseseseesteaeesoeseeseesssaneeeseesnsnnes 16 Hughes v. Board ofArchitectural Examiners (1998) 17 Cal.4th 763 oo ccceccccceccesecsseesssesessesssssssseessesseeeeens 16 Inglewood Redevelopment Agency v. Aklilu (2007) 153 Cal.App.4th 1095... cccccsecssectsesecessecseessresecsssesseeens 25 Jacobsen vy. Superior Court ofSonoma County (1923) 192 Cal. 319.ce eeceeeereeseceseseesrersesseesessessesssesenesssenss passim Loretto v. Teleprompter Manhattan CATV Corp. (1982) 458 U.S. 419ieccscessesetsesssecsssesseseseceseesesseeeessenens passim Penn Central Transp. Co. v. New York City (1978) 438 U.S. 104oeeccesecsecesssseeseecessesereseseveseeseesseseeasenss passim People v. Harris (1985) 165 Cal.App.3d 1246... cccccscctecsrsesssseseseesssseesessessseees 16 People v. Superior Court (Romero) . (1996) 13 Cal.App.4th 497... cccecsecscecssesscssetscsseetescssesecatenseensess 16 Ridge Line, Inc. v. United States (Fed.Cir. 2003) 346 F.3d 1346.0... ececesesessesseseesesssesecsssesseeseesaees 19 Shaw v. County ofSanta Cruz (2008) 170 Cal.App.4th 229.ieccsseessesssecssesteecnsesssessssersesserees 18 ill TABLE OF AUTHORITIES (continued) Page STATUTES Code of Civil Procedure § 1005ieee ccccccecsssecssseeeesessseceeceessseeseseesssereresuueceseesntessesesssnessenens 14 § 1084cccecccssssccssseessesssseecesseesecesseceessecesseseesseeeeesseceessaesessaeeessges 25 § 1230.01iceecccccccsscesessseeessseccessresecsseverseeesssseesesseeesessnenesseseeseas 11 § 1230.020oeccercccsssessscessssececsseeseessseeveseeceeeesessssesessecessetresessteesess 11 § L235. 140ccceeseeesssccccessssseescccessseeecssssscesesecstaeersessseecesevenenecess 24 § 1240.030 ooo ceesccsssceessessesecesecssseseresssssesesssseseccsessseseccsessneveseeens 25 § 1.240.040eeccccscccsesceeecssseeseccesesseeescesseeeeesssssusserecsseeuseserereneas 4,25 IO 12, 13, 15 SaISccccccccesecccsececcessenececeversueteesesnscesecerseceseseeseesencesenes 14, 15 § 1245.010 wo eecescsecsssccececcecessnsseesestssesesecesstseeseeeteseneresevveveeees passim § 1245020oeeccescccssscceecesseccecececsseeeeccsssceeesesssssseesssseunsescerestsesses 13 § 1245030ecccccsssccsssecccsesssseceesecesssesecessereeessesseqeeeeesssseeeeeeses 3, 7,14 § 1245 .030(a)-(D) wo. ecceeccccccssseccsssceceeseessteeeessseesessseeeessseeeeesesecseseees 14 § 1245040occcescccsssccccescsseeescecessssseccesseneeeesssnssssesersaeeenecensunuvens 14 §$ 1245 .050ececcccsseeessececccesesseeecceussssescesstecesscesesesssecusterstcesstteees 14 § 1245060 oe cccccecssscecccscesteeeeececssseeeversseecececerssstevesssequeneerecsaas 1, 14 § 1245 060d ) ....ceeccccsseccsssseccssseescessseccssecesaeeeeessesesseseseeseesersseseess 15 § 1245.220eeccccccccstsccccccssseecccecesssseeecesssssersecsssssccessseaeusesesasaness 25 § 1245.230ec ccccssccsssesssccesessecessseeceseeseseeceeseeeeecsasevesseeeeeseeeseneesees 25 § L245 255 (a) oo. eeeccecsccssesseessscsensescecssssecsseeseseesecsesesseuececnsnreeesseesess 25 S$ L255.O10eccescesssecsesssecesseeeeecsseecstsecessseesceseesetseerseseteecerseeesss 25 S LZSSAOcecccccscesseesesseceesseeceeseesessseeeseeseeessseeseseuecesersesestteseess 25 § 1260.01 0occccecssccccesssssceccesssesseececssssereserssseeeeecersneeenersenas 14, 26 § 1260. 110. ecsccsscesesseeesssseecessrseessseseseeeeecessusesseescessseesesaes 4,25 § 1260.1 20(C)1) ou. ceccecccsssscceessseccesssecccsseecsseecescrsseucssessessecstessssecees 25 § L268.51Occccecccsscccccccssseseeesessscesccessssececessesssseesvessrsuaseseetaes 24 § 1268.610occcccccsscccecccsssseeeeescsseesessseeeeccceessteeesesseentseseseeenags 24 § 1268.6 10a) 1) ue ececcceesssccessecesecseesesseecsseeeesessasessaeesessereeesesueeeess 25 § 1273050 oe ccccesccccssscceceecsssseecccccsseceecessseveceeeseessseseseseeseneueeersnnaas 11 Government Code § 72672 veecccccccccscccccsessssestecceescessnesesecessaseeessnseececceseesstesesesessaucescuersuaanees 4 § 7207.6... ccccscccccsccccccssccesssesecesssseeeessccussssnessenesecessvessusuevessersnnnasees 15, 16 iv TABLE OF AUTHORITIES (continued) Page California Endangered Species ACt....c.ccccscsesesseesseesssssssessesessscesseaeens 7 California Environmental Quality Act ......cccccccecescesssesssesseeseeeseeees 7,13 Federal Clean Water Act ....cccceecsccsscssssesscessesssseecessecsscsesesesesssesseesensens 7 Federal Endangered Species Act ......c.ccccsccsssssssssecessesssccssceessesssesseseesasens 7 National Environmental Policy ACescssscsssseesessssssssesessssesesssesssssasieesssesssnee 7 Porter-Cologne Water Quality ACt oc .cceccccsscessssesssecesecssssecsscssseesseeneens 7 CONSTITUTIONAL PROVISIONS California Constitution v0... ceccccsssssssesscsssesscssesssesssceesssessesnesseessesneeays 10 Article I, § 19 of the California Constitution....00...cceeceeceeseseeeeees passim COURT RULES California Rules of Court Rule 3.1103 (a)(1) occ eeeeccssecccessessecssessssecsesesssesssesessccsesseecessesrevsees 14 Rule 3.21 12(a)(1) nee eecseeseesecseceseesecesesscsesessccseseceessessessesssesaesaueaes 14 Rule 8.500(D)(1) nee ecesesessesssessesecnsenecesscnseeseccseecseecsseseceussaserteaneneens 2 PETITION FOR REVIEW TO THE HONORABLETANI CANTIL-SAKAUYE, CHIEF JUSTICE, AND TO THE HONORABLE ASSOCIATE JUSTICES OF THE CALIFORNIA SUPREME COURT: The State of California, by and through the Department of Water Resources(“‘State’’), petitions this Honorable Court for review ofthe published decision of the Court of Appeal, Third Appellate District, filed March 13, 2014, in Coordinated Proceedings, Department of Water Resources (March 13, 2014, C068469, C067758, C067765). (Exh. 1, Slip opn.) ISSUES PRESENTED FOR REVIEW 1. Are provisions of the Eminent Domain Lawthat permit public entities to petition a court for precondemnation entry onto property “to makephotographs,studies, surveys, examinations, tests, soundings, borings, samplings, or appraisals” (Code Civ. Proc., §§ 1245.010 — 1245.060) invalid underarticle I, section 19, of the California Constitution, or are they instead within the authority granted to the Legislature to determine what constitute “eminent domain proceedings”underthat constitutional provision? 2. Cana public agency’s temporary entry onto private property pursuantto the entry statutes, where such entry does notsignificantly burden ownership interests, result in substantial interference with the landowner’s use of the property, or impact the landowner’s investment- backed expectations, constitute a “taking” underarticle I, section 19 of the California Constitution? 3, Did the Court of Appeal significantly alter the test for determining what constitutes a taking when it concluded that entries sought by the State to conduct environmental and geotechnical studies amounted to a taking, without conducting a parcel-specific inquiry of the entries’ likely impact on the property owners? 4. Doesthe boring and remediation of holes for geological studies on private property, conducted pursuantto the precondemnation entry statutes, constitute a “taking” per se underarticle I, section 19 of the California Constitution? REASONS FOR GRANTING REVIEW This Court may order review of a Court of Appeal decisionto settle an important question of law. (Cal. R. Ct., rule 8.500(b)(1).) This case presents important constitutional issues of great consequence to public agencies, landowners, and taxpayers statewide. In a split decision, the Third District Court of Appeal has ruled that Chapter 4 of the Eminent Domain Law, the Precondemnation Activities statutes, fail to meet the requirements ofarticle I, section 19 of the California Constitution. These statutes permit public entities with the power of eminent domain to enter real property, under judicial supervision, for the limited purpose of conducting certain prescribed tests and surveys to determine whether the property is suitable to be acquired for public purposes. Rather than affording the entry statutes the required presumption of constitutionality, the opinion overturns decades of law and practice by discarding the precondemnation entry statutes and effectively requiring public agencies to commencea full condemnation action any time they seek to perform preliminary property studies. I. THIS CASE PRESENTS ISSUES OF EXCEPTIONAL IMPORTANCE TO PUBLIC ENTITIES AND LANDOWNERS STATEWIDE These proceedingsarise from the State’s efforts to conduct geotechnical and environmental studies to evaluate a proposed project that includes alternatives for moving water from Northern California through the Sacramento—San Joaquin River Delta to Central and Southern California (the Bay Delta Conservation Plan or BDCP). The State sought permission to enter more than 200 parcels to gather information for the project and to determinethe suitability of various proposed routes for conveyancefacilities. | The Court of Appeal’s opinion, however, has vastly wider implications, which Acting Presiding Justice Blease recognizedin his lengthy dissent: In this case, a court, for the first time since its enactment 38 years ago, declares a part of the Eminent Domain Law,the precondemnation entry statutes, unconstitutional as a violation of the takings provisionsofarticle I, section 19 of the California Constitution ... and does so without according the statutes the simplest presumption of constitutionality. (Dissentat p. 1.) For decades, the Eminent Domain Law’s entry statutes have allowed a public agency contemplating a public project to conduct studies to gather information by sampling, surveys, appraisals, tests, and similar examinations of property to determine public project feasibility. (Code Civ. Proc., § 1245.010.) The entry statutes provide for a summary legal proceeding in which a superior court determines the nature and scopeofthe permitted activities after notice and hearing and provides expeditious compensation to the property owner for any damageto the property or interference with its possession and use. (Code Civ. Proc., § 1245.030.) Andif the informational surveys and studies reveal project infeasibility, the public agency can changeor even abandonthe proposed project. By concluding that almost any “intentional” entry onto private property, even those that cause no damageorinterference, are a “taking” underarticle 1, section 19, the decision casts grave doubt upon California public entities’ longstanding reliance on the entry procedures to evaluate land conditions and determinethe feasibility of preliminary locations of public projects, as well as perform othercritical project planning functions. Mostimportantly, the Court of Appeal’s decision will force many public entities to postpone project planning in order to commencefull condemnation proceedingsjust to gather information about initial impacts and project feasibility, at great expense to both the public and the affected landowners, before assessing whether the subject properties are even suitable for a proposed project.’ The ruling of the court below will burden the courts with additional jury trials and add years and millions of dollars to the planning and construction of major public works projects. It could even render many public projects economically and logistically prohibitive. Landowners would likewise be burdened by having to defend against a full condemnation action rather than a summary petition underthe entry statutes before it is even determined whethertheir property or any portion thereof will be needed and acquired for a public project. If. REVIEW IS NECESSARY TO SETTLE IMPORTANT QUESTIONS OF LAW The Court of Appeal’s decision has effected a radical change in long- accepted practice and law that marks a departure from explicit legislative ' This could include formal precondemnation appraisals andinitial offers (assuming the agency can go onto the property to conductthe necessary appraisal) (Gov. Code § 7267.2.), a resolution of necessity hearing by the governing body of the agency (CodeCiv.Proc., §§ 1240.040, 1245.230, subd. (c)), along with a deposit of probable compensation, a formal noticed motion for prejudgment possession (at which point the landowner can attempt to challengethe right to take), discovery, and an eventual two-phasetrial on any right to take challenges and the amount ofjust compensation due,the latter of which to be determined by a jury. (Code Civ. Proc., §§ 1260.110) All this would occur before a public entity could determine whether a location or project was even feasible. intent that public agencies be allowedto petition a court for entry onto property to gather information before commencing a full condemnation case. Disregarding the logical structure andlegislative intent behind the Eminent Domain Law,as well as the presumptionof constitutionality that must be afforded the entry statutes, the Court of Appealrested its holding on this Court’s 1923 decision in Jacobsen v. Superior Court ofSonoma County (1923) 192 Cal. 319, and on article 1, section 19 of the California Constitution. However,the entry statute that this Court interpreted in 1923 was significantly redrafted to allow the type of testing requested by the State in these proceedings and to expressly address issuesraised in Jacobsen. The stark disagreement between the majority and dissenting opinionsin this case on whether this Court’s 1923 decisionstill applies to the revised statutes underscoresthe urgent need for this Court’s review. The Court of Appeal’s decision also creates an unworkable situation for public entities and lower courts alike which must now engage in an ill- defined constitutional analysis of the nature of the proposed entry andits impact on landowners before statutorily-authorized information gathering entries are permitted. Although the Court purported to engage ina constitutional analysis defined in Penn Central Transp. Co. v. New York City (1978) 438 U.S. 104 and Arkansas Game & Fish Commissionv. United States (2012)= US __, 133 S.Ct. 511, before finding that the proposed environmental entries on 138 parcels resulted in a taking,it did so on an inadequate record becausethe vast majority of landowners did not contest the entry orders or failed to proffer any evidence that would require the invocation ofthis constitutional analysis. The minimal evidence proffered for a handful of parcels was entirely and necessarily speculative (since the entries had yet to occur) and insufficient to even consider a takings analysis as to those parcels. Because the Court failed to engage in a parcel-specific analysis and instead relied on “worst case” impacts,there is little guidance to public entities or to the lower courts on whenthe takings threshold is purportedly crossed and the entry statutes cannotbe utilized. Furthermore, the Court of Appeal ignored several factors described by the United States Supreme Court in Penn Central and morerecently in Arkansas Game, by employing an analysis that effectively results in every intentional, physical entry onto private property being characterized as a taking, regardless of whether the entry causes a significant interference with the owner’s enjoymentanduse of the property and regardless of whether the entry impacts the owner’s investment-backed expectations. Becauseall information-gathering activities under the entry statutes necessarily require an “intentional,” physical entry onto private property, the Court’s opinion favoring that one factor of the multi-faceted takings analyses severely and unnecessarily restricts all pre-condemnation entries. Additionally, the Court’s undue emphasis on the intentional nature of the entries at the expenseofother factors described in the case law, may lead to misuse of the case as authority in other cases to question the constitutionality of other statutorily-authorized physical entries by public officials onto private property. This Court should grant review to address these important legal issues and to resolve the unworkable and incorrect standard left in the wake of the Court of Appeal’s decision. FACTUAL AND PROCEDURAL BACKGROUND A. Coordination of the State’s Entry Petitions The State is proposing to construct water conveyancefacilities to improve water supply conveyance, enhancereliability, and bolster operational flexibility of the state and federal water projects. As part of obtaining preliminary environmental and soil information to plan for the BDCP,the State, acting through the Department of Water Resources, sought entry onto properties in five counties (San Joaquin, Contra Costa, Solano, Yolo, and Sacramento) within proposed alternative alignments in order to conduct information gathering activities as authorized under Code of Civil Procedure section 1245.010. (Opinion at p 5.) The entries would help the State: (1) investigate potential impacts on biological resources, water resources, environmental resources, geology, archeology, and utilities to support compliance with state and federal environmentallaws, including the California Environmental Quality Act, the National Environmental Policy Act, the California Endangered Species Act, the Federal Endangered Species Act, the Federal Clean Water Act, and the Porter-Cologne Water Quality Act; (2) investigate the feasibility of alternative conveyance systems(surface level canals, surface level pipelines, or buried tunnels); (3) investigate the best potential alignment within each alternative; and (4) determine whether a water conveyance system is infeasible for any number of reasons, including the geological conditions in the Delta. (Opinionat p. 6; Appellant’s Appendix in case number C068469 (“AA”) at p. 21.) The lower court granted a request to judicially coordinate over 150 petitions that had been separately filed in 2009 pursuant to Code of Civil Procedure section 1245.030. (Opinion at p. 5.) The separate petitions were coordinated for judicial economy. In its Master Petition, the State sought entry to conduct two types of information gathering activities: environmental studies and geotechnical activities. The environmental studies generally consist of surveys to determine each parcel’s botany and hydrology; the existence of sensitive plant and animal species; the existence of vernal pools, wetlands, and other animal protected and endangered species habitat; the existence of cultural resources andutilities; and the parcels’ recreational uses. (Opinionat pp. 6-7.) The geotechnical entries involve borings 3.7 to 8 inches in diameterat depths of 5 to 205 feet (ranging from oneto six borings per each ofthe 35 parcels). (AA at pp. 17-18, Dissent at pp. 21-22.) The boring holes would be re-filled with native top soil for the first two to five feet, while the soil removed from the lower depths would be replaced with a bentonite grout. (Dissent at p. 22.) The native top soil helps restore the area, as closely as possible, to its original condition. (Opinion at p. 33.) Per California regulations, the use of the grout material at the greater depths stabilizes the | soil and avoids ground water well contamination, thus ensuring that the boring activities will not impact agricultural or other uses. (Dissentat p. 22.) The grout does not have any impact on the use of the property for agricultural or any other purposes — the material can be shaved with a pen knife and is not dissimilar in texture from the native soil. (/d. at pp. 20, 22.) Also, seasonal exclusions andthe location of the geotechnical activities can be adjusted from east to west by as much as 200 feetafter consultation with the ownerso as to minimize the impact on the existing uses of the parcel. (Opinion at p. 33; Dissent at p. 22.) B. Decision of the Trial Court Following evidentiary hearings, the trial court entered twoorders, cross-challenges of which are the subject ofthis appeal:” a February 22, 2011 order granting the State’s petition to enter 138 parcels to conduct environmental studies, and an April 8, 2011 Order denying the State’s petition to enter 35 parcels to conduct geotechnical activities. In order to minimize any impacts on the currentuses ofthe properties that might be caused by the environmental activities, the trial court placed ? Ofthe 138 parcels subject to the environmental order, 11 owners filed Petitions for Writs of Prohibition, Mandate, or Other Appropriate Relief. In addition, 16 parties appeared as respondents and cross-appellants. special conditionson the entries, including, amongothers, the numberof days on properties (25 to 66 days over a one-year period depending on parcelsize), the time of day, the numberofpersonsperentry, and seasonal exclusions(entries not permitted during harvest on agricultural land, nor during hunting season on hunting/recreational lands). (Opinionatp. 33.) Thetrial court also noted it had taken “due consideration of constitutional limitations and statutory procedures required for a taking of property,” and that it had “provided suitable limitationsto strike the best possible balance between the needsof(the State) and the interests of the property owners.” (Opinionat p. 7.) It also required deposits of $1,000 to $6,000 based on property size as probable compensation for any actual damages or substantial interference with the owners’ use or possession that may result from the entries. (/d.) Asto the proposed geologicalactivities, the trial court decided that the backfill of the boring holes with bentonite grout constituted a per se taking because the State took exclusive dominion and control overthat part of the properties. (Citing Loretto v. Teleprompter Manhattan CATVCorp. (1982) 458 U.S. 419.) As such,it ruled the entry statutes unconstitutional to the extent they authorize such taking or damaging ofproperty. C. Disposition at the Court of Appeal The Court of Appeal issued its Opinion on March 13, 2013. The Court affirmedthe trial court’s judgmentthat the geotechnical activities constituted a taking, but reversed the judgment allowing the environmental activities on the groundthat they too wereintentional takings of a compensable property interest akin to an easement. (Opinion at pp. 3-5.) Relying on Loretto, supra, 458 U.S. 419, the Court held that the geological activities, specifically the subterranean bentonite backfill, result in an intentional taking per se due to the backfill’s permanent physical presence in that portion of the properties. (Opinion at pp. 11-14.) The Court of Appealalso held that the entry statutes could not be used to authorize these “intentional takings.” (Opinion at pp. 4-5; 14-29.) The California Constitution, it held, requires a public entity proposing to conduct these activities to acquire the affected property interest via a condemnation action in which the landownerreceives specific constitutional protections applicable to the exercise of eminent domain. (Opinion at pp. 22-29.) The Court held that the entry statutes do not provide twosuch protections: (a) they authorize the determination of potential damages, as opposedto the fair market value of the property interest intentionally sought to be acquired, in a noticed hearing, and (b) there is no provision for a jury determination ofjust compensationin that hearing, as required by the California Constitution. (/d.) In a comprehensivedissent, Justice Blease reached a dramatically different conclusion on every major point considered by the majority. (Dissent at pp. 16-24.) The dissent also highlighted the widespread adverse impactof the decision on public works projects throughout the state. (/d. at p. 9.) D. Petition for Rehearing The State filed a Petition for Rehearing on March 28, 2014. The State asserted, amongother things, that the Court had misstated a material fact whenit assumedthat the environmental studies would subject 138 parcels to entry by four to eight people for up to 66 days over a one-year period when only three parcels would be subject to such entry. On April 10, 2014, the Petition for Rehearing was denied. Justice Blease was of the opinion that the Petition for Rehearing should have been granted. 10 ARGUMENT I. THIS COURT SHOULD REVIEW THE CONSTITUTIONALITY OF THE ENTRY STATUTES, WHICH REFLECT A CAREFUL AND APPROPRIATE LEGISLATIVE RESPONSE TO THIS COURT’S HOLDINGIN JACOBSEN V. SUPERIOR COURT A. Jacobsen’s holding concerning only innocuousentries is no longer applicable Pursuantto article I, section 19, subdivision (a) of the California Constitution, the California Legislature is authorized to determine what constitutes “eminent domain proceedings.” Under Code of Civil Procedure sections 1230.010 and 1230.020, the power of eminent domain may be exercised only as provided by the Eminent Domain Law,ofwhich the entry statutes are part. (Code Civ. Proc., §§1230.010-1273.050.) Here, the Legislature enacted the entry statutes so that public entities can conduct information gathering activities prior to condemnation. In fact, the Legislature redrafted the current entry statutes to address constitutional concernsraised by this Court in its 1923 holding in Jacobsen, supra, 192 Cal. 319. The Court of Appeal was required to accord the entry statutes a presumption of constitutionality. As shown below,if the presumption is applied, the entry statutes survive constitutional scrutiny, as well as the proposedactivities because they are expressly authorized bythesestatutes. Instead, the landownersin this case argued, and the Court of Appeal agreed, that in the preliminary entry context, a taking of property was defined in 1923 by this Court as anything “other than such innocuousentry and superficial examination as would suffice for the making of surveys or maps and as would notin the nature of things seriously impinge upon or impair the rights of the owner to the use and enjoymentofhis property.” (Jacobsen, supra, 192 Cal. at p. 329.) The Court of Appeal relied uponthis language to concludethat the entry for environmentalstudies rose to the 11 level of a taking and the geological borings constituted a taking per se. A large numberof survey boringscritical for environmental and engineering purposesfor a variety of public works projects are now subject to the eminent domain process because they necessitate the backfilling of the hole with benign materials. Likewise,it is likely that most environmental surveys will require a condemnation action under the Court’s analysis, as they involve personnel walking on properties and conducting at least some minor sampling of soils, plants, or wildlife. | Although the Court in Jacobsen did use broad language,it did so in the context of a statute that is quite different than the statutes at issue in this case. Today, public agencies maypetition a court underthe entry statutes to “enter upon property to make photographs,studies, surveys, examinations, tests, soundings, borings, samplings, or appraisals or to engage in similar activities reasonably related to acquisition or use of the property for that use.” (Code Civ. Proc., § 1245.010.) In contrast, the statute as it existed in 1923 (Code of Civil Procedure section 1242), when Jacobsen was decided, did not permit the sort of testing requested by the State in these coordinated proceedings. That statute allowed entry onto property only to conduct “examinations, surveys and maps.” The Jacobsen Court examined whether“the acts of entry and examination and excavation [including borings] as proposed by the municipal waterdistrict and permitted by the lower court in said action would not amountto such a taking or damaging ofpetitioner's said properties as to come within the inhibition of said clause of the constitution, but that they were such acts as were expressly permitted by the provisions of section 1242 of the Code of Civil Procedure.” (Jacobsen v. Superior Court, supra, 192 Cal. at p. 324.)° * It should be noted that the law pertainingto takings has evolved considerably since Jacobsen wasdecided in 1923. In determining whether (continued...) 12 The Jacobsen Court rejected the water district’s contentions based upon the existing case law and the express language of former Code ofCivil Procedure section 1242. This Court concluded that it was not required by either to accept the waterdistrict's interpretation. (/d. at pp. 327-329.) By its terms, former Code of Civil Procedure section 1242 authorized only innocuous entries and superficial examinations. (/d. at 329.) B. The current entry statutes were drafted to comply with Jacobsen, and are entitled to a presumption of constitutionality Bycontrast, the current entry statutes expressly permit the studies and testing sought by the State in these proceedings. Unlike Jacobsen, the Court is not being asked to assign an expansive interpretation of the current entry statutes. The proposedentriesat issue are activities that fall squarely within the list of activities specifically authorized by the Legislature in Code of Civil Procedure section 1245.010. As a result, the Jacobsen decision is not governing authority in this case and the courts below should not haverelied uponit. Part of the Legislature’s response to the Jacobsen decision included the addition of significant procedural protections for landowners that were not relevant to the Court in Jacobsen. Today, a public entity seeking entry must obtain either the property owner’s consentor, if not secured, a court order. (Code Civ. Proc., §1245.020.) The entry statute provides that if the (...continued) governmentaction constitutes a taking, the courts are now required to examinethe character of the action and the nature and extent of the interference with rights in the parcel as a whole. (Penn Central, supra, 438 USS. at pp. 130-131.) Moreover, in 1923, the Supreme Court could not possibly have imagined current environmental laws (the California Environmental Quality Act is an obvious example) which fundamentally changethe level of investigation that must occur prior to commencement of any public project. 13 owner's consentis not obtained, the public entity may petition for the order, but only after notice to the landowner“as the court determinesis appropriate underthe circumstancesofthe particular case." (Code Civ. Proc., §1245.030(a)-(b).) The current entry statutes also require a deposit of the “probable amount of compensationto be paid to the ownerofthe property forthe actual damageto the property and interference with its possession and use.” (Code Civ. Proc., §§1245.030-1245.050.) The court is authorized under section 1245.060 to enter judgment in the amount of any actual damageto or substantial interference due to the entry. (Code Civ. Proc., §1245.060.) The legislative history of the current entry statutes, demonstrates that the Legislature intended to addressissues raised in Jacobsen andto establish provisions that would withstand constitutional muster. (Dissent at pp. 30-36.) The Legislature enacted Code of Civil Procedure section 1242.5 in 1959 to allow entries for reservoir purposes(the public use at issue in Jacobsen), and to require a deposit of an amount sufficient to compensate the landownerfor any damage that might result from the entry, survey, and exploration. (Dissent at pp. 30-31.) Thereafter, in 1970, section 1242.5 was amended to expand the provision to information gathering activities for any public use. (Dissent at p. 32.) This change followed recommendations by the California Law * The Court of Appeal took issue with the notice provision of the entry statutes, claiming it does not provide for a hearing. Although a petition for a court order permitting entry under section 1245.030 is not subject to the minimum notice requirements set forth in CodeofCivil Procedure section 1005 (see Code Civ. Proc., §1260.010 [entitling matters under the Eminent Domain Lawto precedenceover othercivil matters so that they may be quickly “heard and determined”’]), it does not follow that a hearing on the petition is not required. Like any request for an orderto the court, a notice of hearing is required as part of the request. (Cal. Rules of Court, rules 3.1103(a)(1), 3.1112(a)(1).) 14 Revision Commission in 1969, which described former inadequacies in the statutory scheme, includingthose raised by this Court in Jacobsen. (Id. at pp. 31-32.) According to those comments,the purpose of the amendments wasto prevent condemnation of land that may notbe suitable for the proposeduse, an exercise the Law Revision Commission determined neither benefited the agency nor the property owner. (/d. at p. 32) Finally in 1975, sections 1242 and 1242.5 were repealed and superseded by the current entry statutes in order to permit a public entity to enter a property prior potential condemnation. (/d. at p. 1.) This has been the law now for nearly 40 years. | In the view ofthe dissent, the Legislature also intended, and the Constitution permits, the entry statutes to function as a shortened eminent domain proceeding for the purpose of allowing precondemnation activities even if they result ina taking. (Dissent at pp. 25-46.) Specifically, the dissent found that the entry statutes are authorized by the second sentence of article I, section 19, subdivision (a) of the California Constitution which states that "[t]he Legislature may provide for possession by the condemnor following commencementof eminent domain proceedings upon deposit in court and promptrelease to the owner of money determinedby the court to be the probable amountofjust compensation." Nothing in those statutes precludes the landowners’ other remedies. (Code Civ. Proc., § 1245.060, subd. (d ); Dissent at p. 30.) The dissent found that the precondemnation entry procedure is an eminent domain proceeding for the purpose ofthis provision andthat the entry statutes allow for recovery ofjust compensation. (/d. at pp. 27-28.) The dissent also found that the entry statutes do not violate Government Code section 7267.6 which precludes a public entity from intentionally making it necessary for an owner to institute an inverse condemnation action. (/d. at pp. 44-45.) The landownerisnot forced to “institute legal proceedings to prove the fact of 15 the taking” in violation of Government Code section 7267.6 because a taking is presumed; only the amount of compensationis at issue. (/d.) This view articulated in the dissentreflects the general proposition that the Legislature, in enacting the present entry statutes, is entitled to “the presumptionthatit [ ] intended, not to violate the Constitution, but to enact a valid statute within the scope ofits constitutional powers.” (People v. Superior Court (Romero) (1996) 13 Cal.App.4th 497, 509; Hughesv. Board ofArchitectural Examiners (1998) 17 Cal.4th 763, 816-817.) The separation of powers doctrine dictates that this Court must “adopt the construction which, without doing violence to the reasonable meaning of ithe language used, will renderthe [statute] valid in its entirety, or free from doubtasto its constitutionality, even though other [potential] construction is equally reasonable.” (People v. Superior Court (Romero), supra, 13 Cal.App.4th at 509.) Unless “clearly, positively, and unmistakably unconstitutional,”the court should presumea statute is constitutional.° (City ofLos Angeles v. Superior Court (2002) 29 Cal.4" 1, 10-1 1.) The well-reasoned dissent suggests strongly that the entry statutes are not “clearly, positively, and unmistakably unconstitutional.” (/d.) Towardthis end, this Court in Jacobsen recognized the Legislature's authority to enact legal procedures for entry, holdingthatits inquiry and interpretation of such provisions must be guided not only by the Constitution, but also the “statutes of this state.” (192 Cal. at p. 331.) ° Moreover,to the extent there is a facial attack on the entry statutes, “[a]ll presumptions and intendments favorthe validity of a statute and mere doubt does not afford sufficient reason for a judicial declaration of invalidity. .. . [I]fa [reviewing] court can conceive ofa situation in which the [challenged statute] could be applied without entailing an inevitable collision with and transgression of constitutional provisions, the statute will prevail over defendants' challenge.” (People v. Harris (1985) 165 Cal.App.3d 1246, 1255-1256.) 16 Article I, section 19, of the California Constitution authorizes the Legislature to determine what constitutes ‘““eminent domain proceedings” and the entry statutes are contained in the Eminent Domain Law. (Dissent at pp. 36-38.) The Legislature hence was authorized to devise a pre- condemnation entry procedure for certain information gathering activities. Rather than accordingthe current entry statutes the presumption of constitutionality, the opinion eviscerates the legislatively-enacted process, replacing it with an edict that virtually all activities authorized under the entry statutes are impermissible unless a public agencyfiles a condemnation complaint in eminent domain. Il. THIS COURT SHOULD GRANT REVIEW TO CLARIFY THE LEGAL STANDARD AND RESTORE CASE-SPECIFIC FACTUAL INQUIRIES FOR TEMPORARY, PRECONDEMNATIONENTRIES. The Court of Appeal categorically precluded a range of seemingly innocuous environmentalactivities on 138 properties, including recreational surveys, observationsof plant and animallife, and soil sampling.° As a result, its decision is both wrong andpresents a very confusing legal standard to apply in other cases. With respect to the environmental entry order, the Court concludedthat it “authorizes a taking of a property interest in the nature of a temporary easementthat must be acquired in a condemnation suit.” (Opinion at p. 35.) To reach that conclusion, the Court stated that it performed the “‘more complex balancing process’ test ‘involv[ing] an ad hoc, factual inquiry into several factors of significance.’” (Citing Loretto, supra., 458 U.S. at 435, fn. 12; Penn Central Transp. Co. v. New York City (1978) 438 U.S. 104, 124.) (Opinion at p. 35.) The balancing test employed by the Court of Appeal, ° It is worth noting that these are activities which would likely have been permitted even under the Jacobsen decision which involved a challenge to only subsoil examinations. (192 Cal. at p. 331.) 17 however, misapplied the multi-factor approach by overemphasizing whether the entry wasintentional and by failing to analyze the factual record as to each parcel to determine whether each entry effected a taking. Penn Central sets forth a multi-factor approach for determining whether a taking has occurred. The Penn Central factors include: “(1) the economic impactof the regulation onthe claimant; (2) the extent to which the regulation has interfered with distinct, investment-backed expectations; and (3) the character of the governmentaction,i.e., did it involve a physical invasion or merely a regulation adjusting societal burdens andbenefits to promote the public good.” (Shaw v. County ofSanta Cruz (2008) 170 Cal.App.4th 229, 272.) Morerecently, the United States Supreme Court in Arkansas Game and Fish Commission v. United States (2012) _U.S.___, 133 S.Ct. 511 announcedfourfactors that courts must consider in determining whether temporary physical invasions of private property result in a compensable taking. Those factors include: (1) duration, (2) the degree to which the invasion is intended oris foreseeable, (3) the landowner’s reasonable investment-backed expectations regarding the land’s use, and(4) the severity of the interference. (Arkansas Game, supra, 133 S.Ct. at p. 522.) Citing Loretto, the United States Supreme Court confirmed that “temporary physical invasions should be assessed by case-specific factual inquiry.” (/d. at p. 518.) The high court also noted that although there are some fundamental guides in Takings Clause jurisprudence,it recognizes “that no magic formula enables a court to judge, in every case, whether a given governmentinterference with property is a taking.” (/d.) The Court of Appeal placed far too much emphasis on the “intentional” factor in order to avoid engaging in a true Penn Central analysis. As a result, the scales are improperly loaded against public entities in both this matter and all future cases, since the entry statutes are 18 premised on the governmentintending to conductinvestigations. The Court stated: Here, the State intends to invade the landowners’ properties and to perform authorized activities. The invasions are the foreseeable result of authorized governmentaction. These invasions will happen notjust once, but are intended to occur up to 66 days over a one-year period by as manyaseight people at a time per owner. This is a significant intentional invasion of private property. (Opinionat p. 38.) However, whether an entry is intentional is only one of several factors a court must consider. (See Ridge Line, Inc. v. United States (Fed.Cir. 2003) 346 F.3d1346, 1355-1356.) In Ridge Line, the court referred to a two-part inquiry to distinguish potential physical takings from a possible tort. (/d.) First, the “invasion”of the private property must be intended or a predictable outcome of governmentaction (as opposedto an incidental, accidental, or indirect consequence of governmentaction). (/d.) Second, even if intended or predictable, the invasion must do more than merely - inflict an injury that reduces the property’s value; it must diminish the owner’s enjoyment of his property for an extended period of time. (/d.) The recent case ofArkansas Game involved the government’s intentional act of altering the discharge of water from a dam underits control with knowledge that it would cause a physical invasion of another’s property. The United States Supreme Court described the four factors that should be considered by courts in determining whether a temporary physical entry amounts to a taking. As noted above,the factors include an examination of the landowner’s reasonable investment-backed expectations and the severity of any interference. Despite the fact that Arkansas Game involved an intentional, physical invasion of property, the Court did not 19 place any greater emphasis on the intentional nature of the government’s conductand it did not abandon the Penn Centralfactors. In the present case, although the Court of Appeal ostensibly engaged in the Penn Central analysis, it did so on an inadequate record because the vast majority of landownersdid not challenge the order or failed to proffer evidence that would permit the requisite analysis. In fact, only a handful of properties submitted substantive declarations, and those were insufficient to enable the Court to engage in any fact-intensive constitutional analysis. (Petitioners’ Appendix of Exhibits in Support of Petition for Writ of Mandate, Prohibition or Other Appropriate Relief in case number C067765 at pp. 597-599, 615-629; Property Reserve, Inc.’s Appendix of Documents Supporting Petition for Writ of Prohibition, Mandate, or Other Appropriate Relief in case number C067758 at pp. 279-287.) Property Reserve, Inc. itself spoke mostly ofpotential damages that might occur as a result of the environmentalactivities, as well as possible harm to crops that may result from the geotechnicalactivities (borings and pits). However, since the borings in most cases would be located along dirt access roads, the alleged damageto crops is baseless. Given the imperfect factual record, the finding of taking as to the environmental entries was improperly analyzed.’ Parcel-specific evidence, lacking in the record, would be needed for the Court to assess how the proposed entries would impair the respective owners’ reasonable investment-backed expectation to continue the current uses on each of the properties. Properly weighing the Penn Central factors, or the factors in Arkansas Game, requires that the Court look specifically at the extent of the entry on each parcel. In sum, had the Court analyzed the ’ Thedissent offered the following observation on this point: “What we[] have is speculation as to the worst-case scenario of what might occur. Speculation alone aboutthe effect of a government's actions cannot provide the basis for a constitutional challenge.” (Dissent at p. 15.) 20 level of entry on each parcel rather than assuming a worst-case impact on all parcels, it may have concluded,as did the trial court, that the impacts would be minor, and that no taking would occuras a result of the environmentalentries.* Because of the one-size-fits-all approach adopted by the Court of Appeal, thereis little guidance to public entities or to the lower courts on whenthetakings threshold is crossed.’ Basedonthe decision,there is no way to objectively identify whether a particular activity is “innocuous” enoughto allow use ofthe entry statutes, or is a taking that purportedly requires an eminent domain condemnation action. Such uncertainty would undoubtedly arise for virtually all entry activities, as the cases under review illustrate. Especially for controversial projects, the decision would also encourage landownersto argue that a requested entry is an intrusive taking of property in all situations. The opinion of the court of appeal effectively invalidated the entry procedure, or at least rendered them functionally useless except in a vanishingly small numberofcases. II. THIS COURT SHOULD GRANT REVIEW TO DETERMINE WHETHERLORETTO SUPPORTSA FINDING THAT GEOTECHNICAL ACTIVITIES RESULT IN A TAKING Relying on Loretto v. Teleprompter Manhattan CATVCorp., supra, 458 U.S. 419, the Court of Appeal held that all of the proposed geological studies would constitute a taking per se because the bentonite back-fill results in a “permanent occupancyofprivate property.” (Opinion at p. 9.) ® By failing to undergo a parcel specific analysis, the Court of Appeal failed to consider the fact that the action was coordinated only for purposesofjudicial economy; however, each entrystill needed to be considered separately. ” For example, the Court of Appeal’s decision implies that each of the 138 parcels would be subjected to 66 days of entry by upto eight (8) people over the course of one year. In actuality, only three (3) parcels would be subject to such entry. 21 In Loretto, the United States Supreme Court concluded that the permanent installation of cable television boxes, plates and wires “completely occupying space above and upon the roofofthe [appellant’s] building,” amounted to a taking. (Loretto, supra, 458 U.S.at p. 438.) The Supreme Court held that “when the ‘character of the governmentalaction,’ [citation], is a permanent physical occupation of property, our cases uniformly have found a taking to the extent of the occupation, without regard to whether the action achieves an important public benefit or has only minimal economic impact on the owner.” (/d. at pp. 434-435.) The Court concludedthat the “constitutional protection for the rights of private property cannot be madeto depend on the size of the area permanently occupied.” (/d. at p. 436, fn. omitted.) The Court of Appeal’s superficial comparison of this case to Loretto does not withstand scrutiny. As Justice Blease explained in his dissent, this case is unlike the circumstances where the governmentintends a physical occupation for a public use. (Dissent at p. 5.) The residual grout columns were left behind as a safety measure (to protect the water table) and the State.will not assert a permanent or continuing right to control accessto, or dominion ofany kind over the grout tubes. (/bid.) The facts presented here are demonstrably different because thegrout in question lacks the permanency ofthe cable equipmentat issue in Loretto. Indeed, it has virtually the same consistency as the hardened dirt that naturally occursat greater depths. (Dissent at p. 22; Motion to Augment Record on Appeal, Hearings on February 24 and 25, 2011 (“M.A.”) at pp. 210:21-212:8.) Like the native soils, the grout will simply break apart if the ground is plowedto the depths of the grout. (/d.) The backfill is as “permanent”a “‘structure” as the hardened native soils at those greater depths. (Dissent at p. 22; M.A. at pp. 103:18-104:2; 210:21-212:8.) 22 At issue then is the permanentnature of the occupancyallegedly imposed bythe backfill. The opinion holdsthat: The cement column destroys the landowner’s right to possess, use, and dispose of that property to the extent of the column’s size. It makes no difference that the top of the cement column may be covered by twofeet ofsoil, will affect a small portion of each landowner’s property, may serve a beneficial purpose, or will have only minimal economic impact on the landowner. An intentional, permanent physical occupation by the government such asthis is “of such a unique characterthat it is a taking without regard to other factors that a court might ordinarily examine.” (Loretto, supra, 458 U.S.at p. 432, fn. omitted.) (Opinion at p. 14.) In Loretto the Supreme Court examined how a permanent occupancy “effectively destroys”the rights to possess, use, and dispose ofproperty. However, in the context of the proposed boringshere, it is evident that no such destruction could take place. The backfill of the boring holes in no wayinfringes on the owner’s right to possess or exclude others from the backfilled area. The backfilled area would remain under the owner’s exclusive possession, use, and control. After the proposed entries are completed, the State would have no furtherinterest in the backfilled space, and there is no impact on the use of the land. (Dissent at pp. 20-21.) Becausethe backfill is of the same consistencyas the soil naturally occurring at those depths, there is nothing that an owner can conceivably do or wish to do that this grout would precludeor inhibit. Certainly, there is nothing in the record that would support a contrary conclusion. Finally, the Supreme Court in Loretto noted that while the apartment building could be sold, the new owner would have the samerestrictions on use and possession as the prior owner. Here, however, there would be no real restriction of the owner’s right to possess and use the property. It necessarily follows that the same would be true of any subsequent owners. 23 In Loretto, the Court acknowledged that not every physical invasion results in a compensable taking. (458 U.S. at p. 436, fn 12.) Rather, “temporary limitations are subject to a more complex balancing process to determine whether they are a taking. Therationale is evident: they do not absolutely dispossess the ownerofhis rights to use, and exclude others from, his property.” (/d.) As discussed above, the borings do not amount to a taking per se. Also, under the aforementioned balancingtest, these statutorily permitted activities do notrise to a taking. IV. THIS COURT SHOULD GRANT REVIEW BECAUSE THE DECISION CREATES ONEROUS BURDENS, AND CONFLICTS WITH THE EMINENT DOMAIN LAW The practical effect of the Court of Appeal’s decision is that public entities will be forced to file condemnation actions in order to conduct even the most minimally-invasive information gathering activities, and then file a second action to condemnthelarger parcel if the property or any portion thereof is deemed suitable for the proposed governmentproject. Alternatively, a public entity might commence an eminent domain action to ~ condemntheentire parcel it anticipates will be needed, then dismiss or “abandon”the action under Code of Civil Procedure section 1268.510 if the property is later found to be unsuitable.'° But before a public entity may exercise the power of eminent domain,it must adopt a resolution of necessity that, among other requirements, includesfinding that: (a) The public interest and necessity require the project. (b) The project is planned and located in a mannerthat will be most compatible with the greatest public good andleast private injury. '° Pursuant to Code ofCivil Procedure sections 1235.140 and 1268.610, the landowner would beentitled to litigation expenses, including attorney fees, upon the agency’s abandonmentof the eminent domain action. 24 (c) The property sought to be acquired is necessary for the project. (Code Civ. Proc., §§1240.030, 1240.040, 1245.220, 1245.230.) Without the entry statutes, however, a public entity could not render the requisite findings without conducting suitability studies becauseit has not yet determined whetherit will proceed with the project, nor what land, if any, would be needed. Should the agency attempt to proceed with adoption ofa resolution of necessity at such nascent stages, the landowner could challenge the resolution and right to take via a writ of mandate pursuant to Code of Civil Procedure section 1084. (Code Civ. Proc. §1245.255(a); Inglewood Redevelopment Agency v. Aklilu (2007) 153 Cal.App.4th 1095, 1114.) In addition, before the agency can prevail over such challenge,it would need to, among otherthings,file the action (wherein the landowner couldraise right to take objections), make a deposit of the amount of probable just compensation (Code Civ. Proc., §1255.010), file a noticed motion for prejudgment possession under Code of Civil Procedure section 1255.410 (wherein the ownercan raise right to take challenges), conduct discovery, including expert discovery, and prosecute a two-phasetrial on any right to take challenges, and the amountofjust compensation due, the latter of which will be determined by a jury (Code Civ. Proc., § 1260.110). However,if the landownerprevails on the right to take challenge, the eminent domain action will be dismissed prior to the compensation phase, and the landownercanrecoverlitigation expenses in defending the action. (Code Civ. Proc., §§ 1260.120, subd. (c)(1), 1268.610, subd. (a)(1).) All of this would have to occur before a public entity determined whether a project was feasible and whether the land was neededfor such project. This process could add years to the time frame for construction of proposed public works and increase costs to the point where they may become prohibitive. 25 The present case also highlights the potential burden on the court system given the numberofjury trials that would be neededto enter properties for the mere purpose of conducting information gathering activities for large projects. Pursuant to Code of Civil Proceduresection 1260.010, the courts would also need to give preference to these actions over other civil matters so that they may be quickly “heard and determined.” These practical consequencesof the Court of Appeal’s decision support review by this Court. CONCLUSION The entry statutes are vitally important to enable public entities contemplating a public project to determine feasibility and suitability of property for that purpose before expending substantial taxpayer resources. The State respectfully requests that this Court grant review in this case to address issues of substantial importance to public entities and landowners throughoutthe State. Dated: April 22, 2014 Respectfully submitted, KAMALA D. HARRIS Attorney General of California KRISTIN G. HOGUE Senior Assistant Attorney General ALBERTO L. GONZALEZ Supervising Deputy Attorney General JAMESC. PHILLIPS MICHAEL P. CAYABAN Deputy Attorneys General NELI N. PALMA Deputy Attorney Gener Attorneysfor Petitioner California Department of Water Resources 26 DECLARATION OF SERVICE BY U.S. MAIL Case Name: Property Reserve, Inc. (Petitioner) (Court ofAppeal C067758) v. The Superior Court ofSan Joaquin County (Respondent) (JCCP 4594); State ofCalifornia, by and through the Department of Water Resources (Real Party in Interest) Case Name: The Carolyn Nichols Revocable Living Trust, etc., et al. (Petitioner) (Court of Appeal C067765) v. The Superior Court ofSan Joaquin County (Respondents) v. State ofCalifornia, by and through the Department of Water Resources (Real Party in Interest) Case No.: C068469 Coordinated Proceedings Special Title (Rule 3.550) Department of Water Resources Consolidated Matters: C067758 and C067765 I declare: Iam employed in the Office of the Attorney General, whichis the office of a memberofthe California State Bar, at which member's direction this service is made. I am 18 years of age or older and not a party to this matter. | am familiar with the businesspractice at the Office of the Attorney General for collection and processing of correspondence for mailing with the United ' States Postal Service. In accordance with that practice, correspondence placedin the internal mail collection system at the Office of the Attorney General is deposited with the United States Postal Service with postage thereon fully prepaid that same day in the ordinary course of business. On April 22, 2014, I served the attached: PETITION FOR REVIEW by placing a true copy thereof enclosed in a sealed envelopein the internal mail collection system at the Office of the Attorney General at 455 Golden Gate Avenue, Suite 11000, San Francisco, CA 94102-7004, addressed as follows: SEE ATTACHEDLIST I declare under penalty of perjury under the laws of the State of California the foregoingis true and correct and that this declaration was executed on April 22, 2013, at Sacramento, California. Sylvia Wu . * Abe.W \y Declarant Signature Case Name: California Dept. of Water Resources v. Janice Adams,etal. Case Nos: C068469 Coordinated Proceedings Special Title (Rule 3.550) Department of Water Resources Consolidated Matters: C067758 and C067765 SERVICE LIST Attorneys for Respondents/Cross-Appellants ThomasH.Keeling, Esq. Freeman, D’ Aiuto, Pierce, Gurev, Keeling & Wolf 1818 Grand Canal Boulevard, Suite 4 Stockton, CA 95207-4417 Dante J. Nomellini, Jr., Esq. Nomellini, Grilli & McDaniel P.O. Box 1461 235 East Weber Avenue Stockton, CA 95201 Telephone: (209) 465-5883 Facsimile: (209) 465-3956 Email: dantejr@pacbell.net Attorneys for Respondents Delta Ranch & Sutter Home Winery Daniel Kelly, Esq. Somach, Simmons & Dunn 500 Capitol Mall, Suite 1000 Sacramento, CA 95814 Telephone: (916) 446-7979 Facsimile: (916) 446-8199 Email: dkelly@somachlaw.com; ydelacruz@somachlaw.com Stephanie D. Hedlund, Esq. Best Best & Krieger 500 Capitol Mall, Suite 1700 Sacramento, CA 95814 Attorneys for Respondent Property Reserve ChristopherS. Hill, Esq. Kirton & McConkie P.O. Box 45120 1800 Eagle Gate Tower, 60 E. South Temple Salt Lake City, UT 84145-0120 . Telephone: (801) 328-3600 Facsimile: (801) 321-4893 Email: chill@kmclaw.com Gerald Houlihan, Esq. Norman Edward Matteoni, Esq. Matteoni, O’ Laughlin & Hechtman 848 The Alameda San Jose, CA 95126 Telephone: (408) 293-4300 Facsimile: (408) 293-4004 Email: Gerry@matteoni.com Attorneys for Respondents Tuscany Research & CCRC Farms Scott McElhern, Esq. Downey Brand, LLP 621 Capitol Mall, 18" Floor Sacramento, CA 95814-4731 Telephone: (916) 444-1000 Facsimile: (916) 520-5767 Email: smcelhern@downeybrand.com; mdowd@downeybrand,com Clerk, Third District Court of Appeal, State of California 621 Capitol Mall, 10" Floor Sacramento, CA 95814 Judicial Council of California Chief Justice c/o Shawn Parsley, Administrative Coordinator Judicial Council of California, AOC 455 Golden Gate Avenue San Francisco, CA 94102-3660 Supreme Court of California Earl Warren Building 350 McAllister Street San Francisco, CA 94102 SA2008302634 40949764 .doc The Honorable John P. Farrell Francine Smith, Civil Supervisor San Joaquin Superior Court 222 E. Weber Avenue, Rm. 303 Stockton, CA 95202 Filed 3/13/14 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (San Joaquin) PROPERTY RESERVE, INC., © C067758 Petitioner, (JCCP No, 4594) Vv. THE SUPERIOR COURT OF SAN JOAQUIN COUNTY, Respondent; DEPARTMENT OF WATER RESOURCES, Real Party in Interest. CAROLYN A. NICHOLS,as Trustee,etc., etal., C067765 Petitioners, (JCCP No, 4594) V. THE SUPERIOR COURT OF SAN JOAQUIN COUNTY, Respondent, DEPARTMENT OF WATER RESOURCES, Real Party in Interest. COORDINATED PROCEEDINGS SPECIAL TITLE C068469 (RULE 3.550) DEPARTMENT OF WATER RESOURCES CASES. (JCCP No. 4594) APPEALfrom a judgmentofthe Superior Court of San Joaquin County and ORIGINAL PROCEEDINGSin mandate and prohibition. John P. Farrell, Judge. (Retired judge of the L.A. Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmedin part, reversed in part, and petitions granted. Matteoni, O’Laughlin & Hechtman, Norman E. Matteoni, Gerry Houlihan; Kirton & McConkie and Christopher S. Hill for Petitioner and Appellant Property Reserve,Inc. Freeman, D’Aiuto, Pierce, Gurev, Keeling & Wolf, Thomas H. Keeling, Arnold J. Wolf; Downey Brand, Scott D. McElhern; Nomellini, Grilli & McDaniel, Dante J. Nomellini, Jr.; Somach Simmons & Dunn and Daniel Kelly for Petitioners and Appellants Carolyn A. Nicholset al. No appearance for Respondent Superior Court of San Joaquin County. Kamala D. Harris, Attorney General, Steven M. Gevercer, Assistant Attorney General, Alberto Gonzalez, John M.Feser, Jr., Michael P. Cayaban, and James C, Phillips, Deputy Attorneys General, for Real Party in Interest and Appellant. Best Best & Krieger and Stefanie D. Hedlund for State Water Contractors as Amicus Curiae on behalf of Real Party in Interest and Appellant. This case tests the strength of the constitutional rights granted landowners against the state’s authority to take private property. The State of California (the State) seeks to build a tunnelto transport water from the north to the south. Before condemningthe land neededfor the project,it desires to study the environmental and geologicalsuitability of hundreds of properties on which the tunnel! may be constructed. The difficulty here is that those precondemnation activities may themselves be a taking; an intentional taking the California Constitution has always required to be directly condemnedin a condemnation suit brought by the condemnorthat provides the affected landowners with all of their constitutional protections against the exercise of eminent domain authority, including the determination by a jury ofjust compensation for the value ofthe property interest intentionally taken. Pursuant to a statutory procedure that purports to authorize these precondemnation activities, the State petitionedthe trial court for orders to enter the affected private properties and conduct the studies. For the geological studies, the State requested authority to enter the properties and conduct borings and drillings in the ground that would leave permanent columns of cement in the bored holes up to depths of 200 feet. The court denied the State’s petition for the geological activities. It ruled these activities constituted a taking, and they could be authorized only in a direct condemnation action, not by the precondemnation procedure. Thetrial court, however, granted the State’s petition to enter the affected properties to conduct environmental studies. It effectively granted the State a blanket temporary easementfor one year, during which the State may enter the properties and . conductits studies for up to 66 days during the year with up to eight personnel each entry. The court concluded such access and the environmentalactivities to be performed did not work a taking. As required by the statutory procedure, the court conditioned the environmental entries on the State depositing an amount ofmoney the court determined to be the probable amount necessary to compensate the landowners for actual damageto, or substantial interference with their possession oruse of, their properties, which the -State’s activities may cause. The State appealed from thetrial court’s denial of its petition to conduct the geological activities. The gist of the State’s appeal has been the court erred in denying the geological petition and the State can performthe activities under the statutory precondemnation procedure, but the State’s arguments for why it believes the court erred have changed and contradicted each other throughoutthis litigation such thatits latest concession defeats its appeal. The landowners petitioned and appealed forrelief from thetrial court’s granting the State authority to conduct the environmentalactivities. They claimed the court erred in granting the environmentalpetition becausethe entries constitute a taking that cannot be acquired through the statutory entry proceeding but must insteadbe directly condemned in a condemnationsuit. Weconclude both the geological activities and the environmental activities as authorized will work a taking. The geological activities will intentionally result in a permanent physical occupation of private property, defined constitutionally as a taking per se. The environmental activities will work a taking because they intentionally acquire a temporary property interest of sufficient character and duration to require being - compensated. _ Wealso conchide the statutory precondemnation procedure cannot be used to accomplish these intentional takings. If an entity with the power of eminent domain intentionally seeks to take property or perform activities that will result in a taking, the California Constitution requires that entity to directly condemn the affected property interest in an authorized condemnation suit it brings and in which a landowner receives all of his constitutional protections against eminent domain, The statutory precondemnation procedure does not provide such a suit, as it fails to authorize the determination of the value of the property interest intentionally sought to be taken and to do so in a noticed hearing, and it fails to provide for a jury determination ofjust | compensation in that hearing. Eminent domain authority must be exercised in strict conformity to the constitutional protections and procedures that limit its operation. If a condemnor intends to take private property or intends to perform actionsthat will result in the acquisition of a property interest, permanent or temporary, large or small, it must directly condemn those interests, and pay for them, in a condemnationsuit that provides the affected landownerwith all of his constitutional protections against the state’s authority. Based on that fundamentalstate constitutional doctrine, we affirm thetrial court’s order denying entry to conduct the geological activities, and we reverse the order granting entry to conduct the environmental activities. FACTS The State proposes to construct a tunnel or canal to divert fresh water from Northern California around the Sacramento-San Joaquin River Delta to Central and Southern California. To pursue the proposal,the State, by and through the Department of Water Resources, sought to conduct surveys,tests, and borings on parcels of land that could potentially be acquired for locating and constructing the project. In 2009, the State filed numerouspetitions pursuant to Code of Civil Procedure section 1245.010 et seq. (referred to as the entry statutes) for orders for entry to conduct the studies and borings. Ultimately, the petitions were judicially coordinated, and the State filed a master petition to obtain the rights of entry. The coordinated proceedings affect more than 150 owners ofmore than 240 parcels in San Joaquin, Contra Costa, Solano, Yolo, and Sacramento Counties. The properties, totaling tens of thousands of acres, are used primarily for various commercial agriculture enterprises, cattle ranching, and recreation. Many ofthe parcels are improved with residences, barns and other out buildings and storage facilities, wells and irrigation systems, utilities, roads, and other infrastructure. Manyare also 5 encumbered with easements in favor of various public utilities, including reclamation districts that maintain levies on the properties. With its master petition, the State sought entry onto these properties for the following precondemnation purposes: “(1) to investigate potential impacts of a water conveyance system to, amongotherthings, biological resources, water resources, environmental resources, geology, archeologyand utilities found on the Subject Properties; (2) to investigate the feasibility of alternative types of water conveyance systems, the best alternative conveyancealignmentlocation, and the best alternative corridor location within each alternative conveyance aligninent location; (3) to investigate the various types of conveyance systems, including surface level canals, surface level pipelines, and buried tunnels; (4) to investigate conveyancealternative locations, including a west alignment, a through-Delta or dual alignment, and an east alignment, and (5) to investigate whether a water conveyance system should be constructed in the Delta.” The State sought authority to conduct what it designated as two general categories ofprecondemnationactivities: environmental activities and geological activities. It sought to conduct the environmental activities on all of the parcels in the coordinated action, and to conductthe geologicalactivities on selected parcels. It alleged the activities would require entry for a total of 60 intermittent 24-hour days spread over a period of two years for each of the parcels. In general, the environmental activities consisted of various surveys to determine and document each parcel’s botany and hydrology; the existence of sensitive plant and animal species; the existence of vernal pools, wetlands, and other animal habitat; the existence of cultural resources andutilities; and the parcel’s recreational uses. Personnel would also mapthe properties using aerial photographyand large targets secured by stakes. Personnel would take minorsoil samples, and they would observe andtrap certain animal species. They would access the properties by motor vehicle, on foot, and by boat when necessary. The geological activities involved various soil testing and boringactivities that would affect 35 parcels. One type oftest involved inserting a one and one-half-inch diameter rod into the ground up to a depth of 200 feet to learn various soil characteristics. Anothertest involved boring into the ground up to a depth of205 feet, creating a hole roughly six inches in diameter, and removing soil cores and samples for review and testing. The holes created by both types of tests would befilled with a permanent cement/bentonite grout. The trial court bifurcated the proceeding and conducted separate hearings on the petitions to enter and conduct the environmental activities and the geological activities. On February 22, 2011, it issued an order, referred to by the parties as the entry order, granting the State’s petitions to enter the parcels and conduct the environmental activities, subject to a numberof conditions. In its order, the court noted it had taken “due consideration of constitutional limitations and statutory procedures required for a taking of property,” and that it had “provided suitable limitations to strike the best possible balance between the needs of[the State] and the interests of the property owners.” It ordered the State to deposit $1,000 to $6,000 per owner based on the amount ofproperty owned as probable compensation for actual damages or substantial interference with the owner’s use or possession of his property the entries would cause. On April 8, 2011, the trial court denied the State’s petition to conduct the geological activities on any of the properties. It ruled the activities constituted a taking or damaging, and the entry statutes were unconstitutional if used to take or damage property. The court stated the State had conceded its geological borings would result in a taking or damaging of property, and the court so found. It further foundthat the entry statutes did not comply with article I, section 19, subdivision (a), of the California Constitution (Section 19(a)), the state constitutional provision limiting the use of eminent domain, and thus they could not be used to authorize the State’s proposed taking or damaging of property. The entry statutes failed to satisfy Section 19(a) because the court proceeding they authorized was not an “eminent domain proceeding” as referenced in Section 19(a) that provided the affected landowners withall of their constitutional rights against the State’s exercise of eminent domain authority, including the right to a jury determination ofjust compensation. Challenges to the court’s rulings came from both sides. Landowners filed two petitions for writs of mandate, prohibition, or other appropriate relief in this court seeking reversal of the trial court’s entry order authorizing the environmentalactivities. They contended the entry order unlawfully authorized a taking of private property in violation of Section 19(a) and its requirementthat a taking occur only after commencementof an eminent domain proceeding. Ourcourt initially denied the petitions, but the Supreme Court granted review anddirected us to issue an order to the State to show cause whythe writs should not issue. We issued that order on July 19, 2011. Meanwhile, the State appealed from the court’s judgment denying entry forthe geological activities. The State claims the trial court erred in denying entry, but, as we will explain below, its arguments ofwhy the court erred have changed throughoutthis action. The landownersalso filed appeals from the judgment, again challenging the . environmental entry order as an unconstitutional taking and raising additional procedural issues. Westayed the entry order and consolidated the writ petitions and the appeals for hearing anddecision. . DISCUSSION I The State’s Appeal The State contendsthe trial court erred when it deniedits petition to perform the geological activities. However, its arguments for why it believes the court erred have 8 changed, and contradicted each other, throughout the courseofthis litigation to the point that its latest concession defeats its appeal. The issuesit raised in its appeal, however, are questions of law affecting significant government and public interests thatwill arise again. Accordingly, besides deciding the State’s appeal on its concession, wealso address those important issues by resolving the following questions of law based on undisputed facts: first, do the geological activities constitute a taking; and, second,if so, do the entry statutes provide an eminent domain proceeding for a direct condemnationin which the affected landownersreceive all of their constitutional rights against the State’s exercise of its eminent domain authority? We conclude,as the State earlier conceded, the geologicalactivities will work a taking per se, as they will result in a permanent occupancy ofprivate property. Asa result, the State must exercise its eminent domain authority before it can perform the geological activities. Wealso conclude, as the State most recently conceded, the entry statutes do not provide a constitutionally valid eminent domain proceeding by whichthe State can take the landowners’ property interests to accomplish the geological activities. This is because the proceeding, as a matter of California constitutional law, does not provide for a condemnation suit in which the landownersreceiveall of their constitutional rights against the State’s exercise of its eminent domain authority, including the right to a jury determination ofjust compensation for a direct and permanenttaking. Wefirst explain how the geological activities constitute a taking. We then explain the constitutional doctrines that govern the entry statutes and show whythe latter do not conform to the former whena taking such as this is sought by the state. A. The geological activities will work a taking per se 1. Additional background information There is no dispute the geological activities will result in permanent structures being placed in the ground on the affected landowners’ properties. In a declaration accompanyingthe State’s petition for the entry order, a supervising land agentfor the _ State testified the geological activities would necessitate compensationto the affected landowners. At the evidentiary hearing on the petition, expert witnesses explained that the geological activities would involve two main typesof activities. The first is referred to as cone penetrometer testing (CPT). For this test, operators push a rod into the ground upto a depth of 200 feet. CPT provides a mechanical measurementofthe force on the front of the tip of the rod being pushed into the ground,andthefriction it incurs while being pushed down. It also accommodatesan electrical measurementof the soil’s weight velocity. After the test is complete, the rod is withdrawn, and the hole, about one and one-half inches in diameter,is filled with a permanent grout made up of 95 percent cementandfive percent bentonite.! | A CPT can take up to 10 hours to perform, plus an additional two days for meeting landowners andsetting up the equipment. It involves the use of a CPT truck, a support truck, a trailer, two operators, a geologist with his truck, and an environmental scientist with his truck. The second geologicalactivity is boring. For this, operators will bore into the ground to depths ofup to 205 feet. Soil samples and cores will be removed andtested. Bore holes will be approximately six inches in diameter. Each boring will remove up to 2.04 cubic yards of earth, which will be replaced by a column of near equal volume of permanent cement/bentonite grout. Operators will fill the hole with the grout, which dries and settles a bit, and they will cover the remainderofthe hole with soil. If requested by the landowner, they will fill the hole up to two feet from the surface with the I Bentonite is an “absorptive and colloidal! clay used [especially] as a sealing agent or suspending agent... .” (Merriam-Webster’s Collegiate Dict. (11th ed. 2006) p. 114.) 10 grout, and cover the remainder. Significant amounts of mud for drilling would also be injected into the bore holes as part of the boring, recovered, and removed from thesites. The boring would require use of a drill rig, a support truck for transporting personnel and samples, occasionally a forklift and containers or drums for mud, and personnel. Eachbore site would occupy 10,000 squarefeet of land. Conducting the boring would require up to 10 daysperhole. The State proposed to conduct 46 CPT’s and bore 41 holes acrossa total of 35 parcels. Some parcels would incur only one hole for oneofthe tests, others would incur up to a total of nine holes. In supplementalbriefing in thetrial court, the State conceded the geological activities would constitute a compensable taking or damaging. It conceded “the geological borings and boring backfill activities it seeks to conduct constitute a ‘taking or damaging’ ofprivate property for public use.” In a supplemental posthearing brief filed in the trial court, the State attempted to modify its concession by stating the geological activities would constitute a compensable damaging, but not a taking. This was because the geological activities allegedly would not substantially interfere with the landowners’ possession or use oftheir property or cause any economic impact to them. At oral argument here, the State asserted the geological activities did not constitute a taking and thus need not have been performed pursuant to its eminent domain authority. 2. Analysis Asoriginally conceded by the State, the geological activities will work a taking. They would result in a permanent physical occupation by the government removing earth from the parcels and filling the CPT holes and bore holes with a permanent columnof cement/bentonite grout to depths of up to 205 feet. “[A] permanent physical occupation authorized by governmentis a taking without regard to the public interests that it may 1] serve.” (Loretto v. Teleprompter Manhattan CATV Corp. (1982) 458 U.S. 419, 426 [73 L.Ed.2d 868, 876] (Loreito).) In Loretto, the United States Supreme Court determineda state statute that authorized a cable television carrier to attach a cable and two cabie boxes on the roof ofa residential apartment building worked a taking per se. The high court wrote: “[W]e have long considered a physical intrusion by governmentto be a property restriction of an | unusually serious character for purposes of the Takings Clause. Our cases further establish that when the physical intrusion reaches the extreme form of a permanent physical occupation, a taking has occurred. In such a case, ‘the character of the governmentaction’ not only is an important factor in resolving whether the action works a taking but also is determinative.” (Loretto, supra, 458 U.S.at p. 426.) “[A] permanent physical occupation is a government action of such a unique character that it is a taking without regard to other factors that a court might ordinarily examine.” (/d. at p. 432, fn. omitted.) “[W]hen the ‘character of the governmental action,’ [citation], is a permanent physical occupation of property, our cases uniformly have founda taking to the extent of the occupation, without regard to whether the action achieves an important public benefit or has only minimal economic impact on the owner.” (/d. at pp. 434-435.) Quoting Professor Michelman, the Loretto Court stated: “ ‘The modern significance ofphysical occupation is that courts ... never deny compensation for a physical takeover. The one incontestable case for compensation (short of formal expropriation) seems to occur when the government deliberately brings it about thatits agents, or the public at large, “regularly” use, or “permanently” occupy, space of a thing which theretofore was understood to be underprivate ownership.’ [Citation.]” (Loretto, supra, 458 U.S. at pp. 427-428, fn. 5, quoting Michelman, Property, Utility, and Fairness: Comments on the Ethical Foundations of “Just Compensation” Law (1967) 80 Harv.L.Rev. 1165, 1184, original italics.) 12 Significantly for our purposes, the Loretto court ruled the size of the permanent physical occupation had no effect on determining whethera taking had occurred. The cable equipmentat issue in Loretto displaced only one and one-half cubic feet of space, less than the volume ofearth to be removed and the permanent grout to be filled in each of the bore holes here, but the high court still held it to be a taking. (Loretto, supra, 438 U.S. at p. 438, fn. 16.) “[C]onstitutional protection for the rights of private property cannot be made todependonthe size of the area permanently occupied.” (/d. at p. 436, fn. omitted.) “[W]hetherthe installation is a taking does not depend on whetherthe volumeofspace it occupies is bigger than a breadbox.” (/d. at p. 438, fn. 16.) Indeed, “< “Tan] owner is entitled to the absolute and undisturbed possession of every part of his premises, including the space above, as much as a mine beneath.” ’” (/d. at p. 436,fh. 13, quoting United States v. Causby (1946)328 U.S.256, 265, fn. 10 [90 L.Ed. 1206, 1212].) “Our cases establish that even a minimal “permanent physical occupation ofreal property’ requires compensation under the [5th Amendment Takings} Clause. [Citation.]” (Palazzolo v. Rhode Island (2001) 533 U.S. 606, 617 [150 L.Ed.2d 592, 607] (Palazzolo).) The State’s proposed geologicalactivities will work a taking, as they will result in a permanent occupancyofprivate property. TheState proposesto bore holes in the ground between 100 and 205 feet deep with a diameter of up to six inches, remove the earth fromthose borings,and fill the holes with the permanent cement/bentonite grout. It also proposes to push a rod one and one-half inches in diameter to a depth of up to 200 feet, and then fill the resulting hole with cement/bentonite grout. The grout is comprised of 95 percent cement andfive percent bentonite. The State’s expert witness described the grout as “a permanentphysical” column of “hardened cement.” Under Loretto, the State’s action will be a taking. Removing earth fromprivate property and replacing it with a permanent, physical column of cementto depths of 205 feet is the type of physical invasion and occupation Loretto mandates must be acquired 13 by eminent domain and compensated. The cement column destroys the landowner’sright to possess, use, and dispose of that property to the extent of the column’s size. It makes no difference that the top of the cement column maybe covered by twofeet of soil, will affect a small portion of each landowner’s property, may serve a beneficial purpose, or will have only minimal economic impact on the landowner. An intentional, permanent physical occupation by the government such as this is “of such a unique character that it is a taking without regard to otherfactors that a court might ordinarily examine.” (Loretto, supra, 458 U.S. at p. 432, fn. omitted.) B. The entry statutes arenot a constitutional eminent domain proceeding to acquire interests in private property directly Having concluded the geological activities will work a taking per se, we must determine whether the State may exercise its eminent domain power and acquire interests in the landowners’ properties directly by means of the entry statutes. In other words, we must determine whetherthe entry statutes provide a constitutionally valid means to directly condemn property interests. To be constitutionally valid, the entry statutes must at least provide the rights granted underSection 1 9(a) to affected landowners against the State’s exercise of _ eminent domain power. Section 19(a) consists oftwo sentences, and they read in full: “Private property may be taken or damaged for a public use and only whenjust compensation, ascertained by ajury unless waived, has first been paid to, or into court for, the owner. The Legislature may provide for possession by the condemnor following commencement of eminent domain proceedings upon deposit in court and promptrelease to the owner ofmoney determined by the court to be the probable amount ofjust compensation.” Here again, the State’s arguments have not been consistent. Attrial, the State contended the entry statutes’ proceeding was not an eminent domain proceeding, but 14 nonetheless could be used to acquire interests in private property because it provided landownerswith all of their constitutional rights against the exercise of eminent domain.” In its opening brief before us, the State continued to argue it could take or damage property underthe entry statutes because they allegedly provided the affected landowners the constitutional rights guaranteed them underthe first sentence of Section 19(a), including a jury determination ofjust compensation by means of allowing the landowners to file a newcivil action to recoverfor the intentional taking. The State asserted the second sentence of Section 19(a) did not apply to the entry statutes becausethe latter did not commence an eminent domain proceeding. The State has since changedits position twice. In supplemental briefing before us, the State conceded the entry statutes’ proceeding did not comply with the first sentence of Section 19(a), almost certainly because the proceedingdid not providefor a jury ‘determination ofjust compensationprior to the State entering the property. Instead, the State argued the proceeding complied with the second sentence of Section 19(a) because it was an eminent domain proceeding by whichentry could be gained priorto a final determination ofjust compensation. The proceeding allegedly provided the landowners with all of their constitutional rights against the exercise of eminent domain power, including the determination of a probable amount ofjust compensation before the State entered the property, and the prompt release of that money. In this brief, theState said nothing about the right to a jury trial to determine just compensation. At oral argument, the State changed its position again.> This time, it conceded the entry statutes did not authorize a taking because their procedures were not an eminent 2 The landowners’ requestfor judicial notice filed November4, 2011, is granted. 3 “We take a dimview of counsel’s decision to wait until oral argument to apprise this court that a claim is being abandoned. When counsel learns of new facts that cause him to abandon a claim,the proper course is promptly to advise opposing counsel and the 15 domain proceeding, as referenced in Section 19(a)’s second sentence. In other words,the State now claimsthe entry statutes may not be used to authorize precondemnation activities that result in a compensabletaking ofprivate property. Because we have determined the geological activities will work a taking per se, just as the State conceded in the trial court, the State’s latest concession, that the entry statutes may not be used to authorize a taking, ends the State’s appeal. Wetreat the State’s concession at oral argumentthat the entry statutes do not provide a constitutionally valid eminent domain proceeding as binding for purposes of this appeal. (See Bell v. Tri-City Hospital Dist. (1987) 196 Cal.App.3d 438, 449, disapproved on another groundin State of California v. Superior Court (2004) 32 Cal.4th 1234, 1244.) However, because the facial challenge to the entry statutes the State and the landownersoriginally disputed raises a question of significant public interest and law, we decide this case based on the State’s concession, but, as well, do so by also resolving the facial challenge. Whethertheentry statutes provide an eminent domain proceeding that facially complies with the constitutional limits on the State’s exercise of eminent domain poweris a question of first impression. Generally, we assumethe Legislature intended to adopt a constitutionalstatute, and wherea statute is susceptible to two constructions, one of which will render the statute unconstitutional, we must adopt the meaning that, without doing violence to the statute’s language, renders the statute valid. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 509.) However, that rule does not apply so broadly to statutes authorizing the use of eminent domain authority. “ ‘Statutory language defining eminent domain powersis strictly construed and any reasonable doubt concerning the existence of court.” (Avila v. Citrus Community College Dist. (2006) 38 Cal.4th 148,163, fn. 8, original italics.) 16 the poweris resolved against the entity.’ [Citation.]” (Burbank-Glendale-Pasadena Airport Authority v. Hensler (2000) 83 Cal.App.4th 556, 562.) The exercise of eminent domain authority “is strictly defined andlimited by the express terms of the constitution or statute creatingit.” (Jacobsen v. Superior Court (1923) 192 Cal. 319, 325 (Jacobsen).) In California, Section 19(a) is the “ ‘the exclusive and comprehensive authority in the California Constitution for the exercise of the power of eminent domain and for the payment of compensation to property owners when private property is taken or damaged by state or local government.’ ” (Historical Notes, 1D West’s Ann. Codes, “Cal. Const. (2012 ed.) foll. § 19, p. 333.) Consistent with these rules of review, we conclude the entry statutes’ proceeding does not facially satisfy the demands of Section 19(a) as it applies to an intentional taking. Section 19(a) limits the intentional exercise of eminent demain authority exclusively to the filing of a condemnationsuit that provides the affected landowners with all of their constitutional rights against the State’s exercise of eminent domain authority in that suit, including a determination of the probable amount ofjust compensation for the acquisition of a property interest and the right to a jury determination ofjust compensation. The entry statutes’ proceeding is not such a condemnation suit. 1. Jacobsen The starting point of our analysis is Jacobsen, supra, 192 Cal. 319, Despite its age, Jacobsen’s holding applies today: a condemnor may not engage in precondemnation activities that will work a taking or damagingunlessit first files a condemnation suit that provides the affected landowner all constitutional rights against the state’s exercise of eminent domain. The facial challenge to the entry statutes asks us to determine whether the entry statutes’ procedure for taking or damaging property is such a suit. Because the parties disagree as to Jacobsen’s role in this matter, we discussit at length. 17 In Jacobsen, a municipal water district soughtprivate landowners’ consent to enter their properties to conduct borings and excavations to determine whetherthe properties would support a proposedreservoir. Personnel would boreholes three to eight inches in diameter and 150 feet in depth. They would also excavate pits four feet by six feet and up to 15 feet deep. Four men would be on the premises for 60 days to accomplish the work. At some locations, the work would damageor destroy growing crops. Upon completing the work, personnel would restore the lands to their original conditions. (Jacobsen, supra, 192 Cal. at pp. 321-323.) When the landownersrefused to consent to the entries, the district filed a complaint for injunctiverelief to prohibit the landowners from preventing the district’s entry to conduct the work pursuantto the entry statute then in effect, Code of Civil Procedure former section 1242.4 Thetrial court granted a temporary restraining order against the owners. It also ordered the district to deposit $1,000 with the court as security for any damages the work might cause. Aggrieved by the judgment, the landowners petitioned the Supreme Court for a writ of prohibition. (Jacobsen, supra, 192 Cal. at pp. 322, 324.) Defendingthetrial court’s order, the district argued the proposed workdid not amountto a taking or damaging, but was instead expressly permitted by formersection 1242. The high court was “unable to give [its] assent to either of these propositions.” (Jacobsen, supra, 192 Cal. at p. 324.) The Supreme Courtfirst described the landowners’ constitutional rights that limiteda condemnor’s exercise of eminent domain power. That power“has always and everywhere been limited and safeguarded by express provisionsof the constitutions and 4 Subsequent undesignated section references are to the Code ofCivil Procedure. 18 statutes of the several states and it has been uniformly held that being in invitum [5] and in derogation of the commonright, its exercise is strictly defined and limited by the express terms of the constitution orstatute creating it. [Citations.]” (Jacobsen, supra, 192 Cal.at p. 325, original italics.) Specifically, the constitutional requirementthat private property not be taken without just compensation required “‘a proceeding in court iv the nature ofa condemnation suit wherein the necessity for the taking of the property for the alleged public use could first be litigated and determined and wherein also the damagesresultant upon such taking could be ascertained and provided for. [Citation.]” (/bid., italics added.) Answering the district’s two primary contentions, the Supreme Court first ruled the proposed borings and excavations amounted “pro tanto”to a taking.® (Jacobsen, supra, 192 Cal. at p. 327, original italics.) The court stated: “It is idle to attempt to argue that such entry, occupation, disturbance, and destruction ofthe properties of these petitioners would not constitute such an interference with their exclusive rights to the possession, occupation, use, and enjoymentoftheir respective holdings as would amount to a taking and a damagingthereofto the extent and during the period of such entry upon said lands and of the operations of the corporation thereon.” (Cd. at p. 328.) Asto the district’s second contention, the Jacobsen court ruled former section 1242 did not authorize a taking by its language, and also could not be read to authorize a taking without violating the landowners’ constitutional rights. Former section 1242 ¢ authorized the condemnorto enter land and “ “make examinations, surveys, and maps thereof, and such entry shall constitute no cause of action in favor of the ownersofthe 5 In invitum means “[a]gainst an unwilling person.” (Black’s Law Dict. (9th ed. 2009) p. 854.) 6 Pro tanto means“[t]o that extent; for so much; as far as it goes....” (Black’s Law Dict., supra, p. 1343.) - 19 land, except for injuries resulting from negligence, wantonness, or malice.’ ” (Jacobsen, supra, 192 Cal. at p. 329.) The statute did not authorize the borings and excavations the -district sought to perform prior to condemnation. Moresignificantly, even if former section 1242 had authorized borings,it did not provide landowners with their constitutional rights against the exercise of eminent domain,including the filing of a condemnation suit in which the validity of the taking and just compensation could be determined. Former section 1242 required a condemnation action to acquire the property being studied to have been filed before the condemnorentered the property to conduct its studies and tests, but even with a complaint already filed to condemn the property as so required, the high court ruled the entry statute still could not be used to authorize a taking. A separate condemnation suit had to be filed by the government to perform the entry. The Jacobsen court wrote: “But howeverthis may be [referring to the requirementto file a condemnation action first], it is clear that whatever entry upon or examination ofprivate lands is permitted by the terms of this section cannot amount to other than such innocuousentry and superficial examination as would suffice for the making of surveys or maps and as would notin the | _ nature ofthings seriously impinge upon or impair the rights of the owner to the use and enjoymentofhis property. Any other interpretation would, as we have seen, render the section void as violative of the foregoing provisions of both the state and the federal constitution.” (Jacobsen, supra, 192 Cal. at p. 329,italics added.) In other words, if the precondemnation entry works a taking, “{t]he only means by which [the condemnor] can acquire such property without the owner’s consentis through the exerciseofthe right of eminent domain. The only legal procedure provided by the constitution and statutesofthis state for the taking of private property for a public useis that of a condemnation suit which the constitution expressly provides must first be brought before private property can be taken or damaged for a public use. ([Cal. Const., art. I, former § 14, now see Section 19(a)].)” (Jacobsen, supra, 192 Cal. at p. 331, italics 20 added & omitted.) Former section 1242 did not require the district to file a condemnation ~ suit before entering private property to conduct its tests, and thus, the district’s attempt to work a taking by means of a complaint for injunctive relief based on formersection 1242 instead of a condemnation suit with its attendant constitutional protections violated the landowners’ constitutional rights.- Of importance here, the Jacobsen court recognized that the California Constitution, in a precursor to Section 19(a)’s current second sentence, then authorized certain condemnorsfor reservoir purposes to take immediate possession of property before just compensation has been determined “ ‘upon first commencing eminent domain proceedings according to law in a court of competentjurisdiction and thereupon giving such security in the way of moneydeposits as the court in which such proceedings are pending maydirect . . . to secure the owner of the property sought to be taken immediate payment ofjust compensation for such taking.” This exception,” wrote the Jacobsen court, “only serves to emphasize the otherwise general rule that no court in any other action or proceedingthan an action in eminent domain hasjurisdiction to order the taking or damageofprivate property for a public use.” (Jacobsen, supra, 192 Cal. at p. 331, italics added.) Both the acquisition of the property being studied, and the performance of the studies that. will result in a taking, could be authorized only by separate actions in eminent domain. | Jacobsen thus sets the constitutional foundation for the issue we face. If the State desires to enter private property to conduct tests in a manner that will cause actual damageto the property orresult in a taking, it can do so only by first filing a condemnation suit for that purpose and which provides in that suit all constitutional rights granted to a property owner against the State’s power of eminent domain.” 7 Lifting a line from County ofSan Luis Obispo v. Ranchita Cattle Co. (1971) 16 Cal.App.3d 383 (Ranchita Cattle), the State asserts the requirementto file a separate 21 2. The current entry statutes . Is the proceeding provided by the current entry statutes such a condemnation suit? The current entry statutes are the result of attempts by the Legislature to provide a precondemnation entry procedure that complies with the rule of Jacobsen.® In various entry statutes and governmentliability statutes enacted after Jacobsen and in the current entry statutes, the Legislature attempted to address both ofthe failings found by the Jacobsen court in former section 1242. First, the current entry statutes expressly authorize a condemnorto enter private property to conduct the activities the State seeks to conduct here. The condemnor may “enter upon property to make photographs,studies, surveys, examinations, tests, soundings, borings, samplings, or appraisals or to engage in condemnationsuit to perform precondemnation studies that work a taking may “require _ the agency to perform a useless act” if the State later decides not to acquirethe entire property. (id. at p. 389.) The State reads the Ranchita Cattle court’s statementout of context. The Ranchita Cattle court was discussing the requirement, as existed at the time ofJacobsen, that an eminent domain action for the entire property sought to be condemnedhadto have been filed before the condemnor could engage in precondemnationstudies. The courtstated that if it construed the subsequently revised entry statutes to compel the condemnorto first file an eminent domain action to condemn the entire parcel sought for the public project, and then the condemnorlater “abandon[ed] [that eminent domain] action upon discovery,after survey, that the land was unsuitable, such construction would require the agency to perform a useless act.” (bid.) The useless act was requiring a condemnor to condemnthe entire parcel before allowing the condemnorto enter the land to study it, not requiring the condemnor to condemn whateverinterest it required in order to conduct the studies it desired to perform. Nothing in Ranchita Cattle questioned Jacobsen’s requirement that a condemnorinitiate a separate condemnation suit to perform studies that themselves are or will result in an intentional taking. 8 We grant the State’s request for judicial notice, filed on October 19, 2011, of the legislative history that led up to the enactment of the entry statutes with the exception of exhibit No. 4, correspondence from Senator Alfred H. Song to Governor Ronald Reagan. Letters by a bill’s sponsor to the Govemorwithout an indication the author’s views were made knownto the Legislature as a whole are inadmissible legislative history. (Kaufman & Broad Communities, Inc. v. Performance Plastering, Inc. (2005) 133 Cal.App.4th,26, 37.) 22 similar activities reasonably related to acquisition or use of the property for [the proposed] use.” (§ 1245.010.) Second, the State argued the current entry statutes purport to grant an affected landownerall of his constitutional rights that limit the State’s exercise of eminent domain power, protection Jacobsen found missing in former section 1242. At issue is whether the Legislature succeededin its attempts to provide all of those constitutional rights to affected landowners subject to a direct taking by meansofthe entry statutes. The entry statutes operate as follows: if the condemnor’s entry and activities on the property will cause “actual damageto or substantial interference with the possession or use of the property” (§ 1245.060, subd.(a)), the entry statutes require the condemnor, before making entry, to secure either the owner’s written consent or an orderfor entry from the superior court. (§ 1245.020.) | If the ownerwill not consent, the condemnor must petition the superior court for | an order for entry and provide prior notice to the owneras the court directs. (§ 1245.030, subd. (a).) After notice has been given, the court must determine “the purpose for the entry, the nature and scope of the activities reasonably necessary to accomplish such purpose, and the probable amount of compensation to be paid to the ownerofthe . property for the actual damageto the property and interference with its possession and use.” (§ 1245.030, subd. (b).) The entry statutes do not provide the landownerwith a hearing on the petition.? After making these determinations, the court may issue the order for entry, but it must prescribe the entry’s purpose andthe nature and scopeofthe activities to be undertaken, and it must require the condemnor to deposit with the court the probable 9 Thetrial court here, however, provided formal evidentiary hearings on the master petition for both the geological and the environmentalactivities before it ruled on the petition. 23 amount of compensation. (§ 1245.030, subd. (c).) A court may thus issue an entry order, and the entry may occur, before the landowners obtain a hearing to contest the order. After subsequent notice and a hearing, the court may modify any provisionsofthe entry order, including increasing the amount of compensation to be deposited. (§ 1245.040, subd. (a).) If it increases the amount to be deposited, the court may direct that any further entry be stayed until the additional amount has been deposited. (§ 1245.040, subd. (b).) If the condemnor’s entry and activities “cause actual damage to or substantial interference with the possession or use of the property,” the owner may recoverforthat damage and interferenceeither by filing a new civil action (§ 1245.060, subd. (a)), or by applying to the court for recovery from the funds the condemnordeposited with the court. (§ 1245.060, subds. (a), (c).) If the owner applies to the court to recover from the funds on deposit, the court shall determine and award the amount the owneris entitled to recover and shall order it _ paid out of the deposit. (§ 1245.060, subd. (c).) If the funds on deposit are insufficient to pay the full amount of the award, the court “shall enter judgment for the unpaid portion.” (Ibid.) | | The entry statutes do not provide a jury determination ofjust compensation if the landownerelects to apply to the court to recover the funds on deposit. If the landowner desires a jury to determine just compensation, he must file a new action against thestate, and incurthe costs and delays that inhere in any legal proceeding a citizen undertakes against the government. (§ 1245.060, subd. (a).) Nothingin the entry statutes is to affect the availability of any other remedy the owner may have for the damage doneto his property by the governmentor its agents. (§ 1245.060, subd.(d).) 24 3. Constitutional rights not provided in the entry statutes The landownersclaim the entry statutes do not provide all of the constitutional rights guaranteed them. under Section 19(a) and Jacobsen. Specifically, they argue the entry statutes (1) do not provide for the acquisition of an interest in property, but provide only for probable damagesfor actual damageorinterference; (2) do not provide for a jury determination ofjust compensation; (3) do not make the deposit of the probable amount ofjust compensation promptly available; and (4) are not an eminent domain proceeding, whichthey define as the formal condemnationaction filed under the Eminent Domain Law (§ 1240.010 et seq.), in which the powerof eminent domain maybe exercised. We agree with twoofthe landowners’ arguments. Jacobsen holds that as a matter - of California constitutional law, a condemnor whointends to take private property may do so only by filing a “condemnation suit wherein the necessity for the taking ofthe property for the alleged public use could first be litigated and determined and wherein also the damagesresultant upon such taking could be ascertained and provided for.” (Jacobsen, supra, 192 Cal. at p. 325, italics added.) In other words, if a California condemnorintends to take property, it must acquire a property interest by filing a condemnationsuit that providesinit all constitutional rights owed the landowneragainst the exercise of eminent domain. It may not intentionally take property while leaving to the landownerthe responsibility to initiate a new legal action to receive his constitutional rights. The entry statutes violate this principle of California constitutional law, as they do not provide for a condemnation suit by which a condemnor can directly acquire an interest in property and in which the affected landowner can receive a jury determination ofjust compensationin that suit. First, the entry statutes do not providefor the acquisition and transfer of a property interest when the entry is an intentional, direct taking. Thetrial court hearing a petition for an entry orderis authorized to determine only the probable amount ofjust 25 compensation owed a landownerifthe entry will inflict actual damage to the property or- will substantially interfere with the landowner’s use or possession ofhis property. (§ 1245.060, subd. (a).) A direct, intentional taking, by contrast, requires a determination of the fair market value ofthe property interest sought to be acquired. This is a value separate from damage subsequentlycaused to the property or later suffered due to a substantial interference with its possession or use where an interest in property was not intentionally taken. This point is further shown by the entry statutes’ imposition of a burden ofproof on the /Jandowner. Before the affected landowner can recover any compensation for damage or interference underthe entry statutes, he must show in that proceeding the state’s activities actually caused damageto or interfered with his property rights after the entry has been completed. (§ 1245.060.) By contrast, in a direct condemnation action, causation Is irrelevant. Just compensation is determined based on the property interest’s fair market value before the state enters the property. In a direct condemnation action, just compensation is a factual issue of valuation on which neither the condemnornorthe landownerbear any burden ofproof, and the landownerbears only a burden of going forward. (§ 1260.210, subd.(b).) This constitutional principle violated by the entry statutes is also reflected in the - Legislature’s statutory pronouncement that if a government wants to acquire property in eminent domain, it must bring a condemnation suit to do so. Government Codesection 7267.6 provides: “If any interest in real property is to be acquired by exercise of the powerof eminent domain, the public entity shall institute formal condemnation proceedings. No public entity shall intentionally make it necessary for an ownerto institute legal proceedings to prove the fact of the taking of his real property.” Ifused to acquire an interest in real property, the entry statutes conflict with Government Code section 7267.6. The entry statutes do not allow for the condemnor to acquire an interest in real property in the hearing it initiates. And even if the entry 26 statutes were interpreted as a constitutionally valid exercise of eminent domain powerto acquire property the state will damage, they still require the landownerto file a separate action -- either a claim with thetrial court that granted the entry order or a new action-- to prove the fact that his property was actually taken,1.¢., was actually damaged orits use substantially interfered with. The fact of the taking is not assumed in the landowner’s action if the landowner muststill prove causation. This conflict is not one simply to be resolved underthe rules of statutory construction. Government Code section 7267.6 codifies the state constitutional doctrine enforced here, that when the state intends to take an interest in real property, it must condemnit directly in a condemnation suit. We cannotsay the entry statutes prevail over Government Code section 7267.6 because they are more recent or more specific when in fact they violate the Constitution. The entry statutes thus do not provide for a condemnation suit initiated by the condemnor in whichthe fair market value of the property interest to be taken directly, as opposedto the value of property eventually damaged, can be determined. Second, the entry statute’s procedure does not provide for a condemnation suit initiated by the condemnorin which just compensation will be determined by a jury unless waived. Underthe entry statutes, the landowneris not entitled to a jury determination ofjust compensation unless he files a new civil action. (§ 1245.060, subd. (a).) Indeed, underthe entry statutes, the landowneris not even entitled to a hearing on the entry petition or on the determination of the probable amountofjust compensation. By contrast, and as stated above, Section 19({a) and Jacobsen require the condemnor to file the condemnation suit when it seeks to take property intentionally, and for just compensation to be determined by the fact finder in a hearing in thatsuit. Also by contrast, the condemnorin a direct condemnation action may deposit the probable amount of compensation only on a noticed motion, or ex parte application in an emergency (§ 1255.010, subd. (c)), and may not take early possession of the property 27 until after noticing another motion to do so and scheduling a hearing on the motion. (§ 1255.410.) Section 19(a) and Jacobsen require the condemnorto file a direct condemnation suit to intentionally take an interest in property, and for all of the landowner’s constitutional rights, including the right to a jury trial, to be available in tha condemnation suit. In a direct condemnation action, the landowner simply demands a jury in ¢ha¢ action in order to have a jury determine just compensation. (§ 631.) It need notfile a cross-complaint. | Under Jacobsen,it is the ‘condemnation suit” brought by the condemnorto take property that is to provide the landownerwith his constitutional rights against a direct condemnation. The entry statutes, on the other hand, condition a landowner’sreceipt of his constitutional rights in a direct condemnation action on the landownerfiling a new action. Interpreting the condemnor’s eminent domain powerstrictly, as we are required to do, we cannot loosen Jacobsen and Section 19(a) to excuse the government from any of its constitutional obligations whenit seeks to directly condemn aninterest in private property. If the state intends to acquire an interest in private property directly, no matter howsmall an interest, the California Constitution requires it to initiate a condemnation suit that provides the affected landownerwith all of his constitutional protections against eminent domain in that action. The entry statutes do not provide such a condemnation suit.J° 10 Werecognize the Fifth Amendment does not require “that just compensation be paid in advance of, or contemporaneously with, the taking; all that is required is that a ‘ “reasonable, certain and adequate provision for obtaining compensation”” exist at the time of the taking. [Citations.]” (Williamson Planning Comm’n v, Hamilton Bank (1985) 473 U.S. 172, 194 [87 L.Ed.2d 126, 144].) However, weare interpreting the California Constitution, and nothing in federal constitutional takings law prohibits a state from granting a landowner moreprotections against the exercise of eminent domain authority than those granted under the federal Constitution. 28 Accordingly, the trial court correctly denied the State’s petition to enter to perform the geological activities. The activities were a taking per se, and the entry statutes do not provide a constitutionally adequate eminent domain proceeding for the government to directly acquire an interest in private property. We affirm thetrial court’s judgmentas againstthe State’s appeal.}! Y The Landowners’ Writ Petitions and Appeals In their writ petitions and appeals, the landowners ask us to address the same questions raised in the State’s appeal, but as applied to the environmentalactivities. First, does the entry order authorizing the environmental activities result in a taking? Second, if it does, may the State acquire the necessary property interests to perform the environmental! activities by means of the entry statutes? The landowners claim the entry order results in a taking becauseit grants the State a one-year temporary easement overtheir properties, a cognizable property interest that MW The landowners contend the only “eminent domain proceeding” by which the State may intentionally take property is that provided in the Eminent Domain Law and defined there as an “eminent domain proceeding,” which isinitiated by the filing ofa complaint following the condemnor’s adoption of a resolution of necessity. ($§ 1250.110; 1250.310.) As of the date of this opinion, such an action is the only “condemnation suit” or “eminent domain proceeding” available to the State that provides the affected landowners with all of their constitutional rights against an intentional taking. However, the “condemnationsuit” required by Jacobsen and the “eminent domain proceeding”required by Section 19(a) are synonymous, and neither of them refer solely to the formal condemnation action authorized under the Eminent Domain Law. Rather, they require eminent domain authority be exercised in a special judicial action brought by the state that provides the affected landownersall of their constitutional rights against the state’s exercise of eminent domain authority in that action. Neither the Constitution nor the Eminent Domain Law limits the Legislature from enacting any numberof such “condemnation suit” procedures, so long as those procedures guarantee all constitutional rights. Subject to that rule of state constitutional law, the Legislature has correctly stated the power of eminent domain may be exercised not only by the procedures contained in the Eminent Domain Law,but also “as otherwise provided by Statute....” (§ 1230.020.) 29 must be condemned. In addition, they contend the entry statutes do not, and constitutionally cannot, authorize the taking of such a property interest. Ifwe concludethe entry order works an intentional or direct taking, the landowners’ appeals end successfully, because we have already determined the entry statutes cannot be used to directly condemn a propertyinterest. If we conclude the entry order does not work a direct taking and the activities can be pursued subject to the court’s determinations of probable damage and imposition of reasonablerestrictions, the landowners ask us to review three additional claims of procedural error. Weagree with the landowners that performance of the environmental activities works a taking of a compensable property interest in the nature of a temporary easement, an interest in property that cannot be acquired directly under the entry statutes. Wefirst review the environmentalactivities, and then we explain our conclusion that they constitute a taking of a compensable property interest. A. Additional background information The entry order authorizes the following environmentalactivities: Botanical surveys: For these surveys, personne! will identify and evaluate existing vegetation and wildlife, looking particularly for the existence of special status species. Their activities will include walking, collecting samples of vegetation, recording locations using handheld global positioning system (GPS) equipment, photographing landscape and vegetation, and digging holes no larger than approximately two feet in diameter and two feet deep with atrowel andrefilling the hole without taking anysoil samples. Personnel may use a small boat to access the property, if required. All surveys will be conducted in daylight hours. Hydrologic surveys: For these, personnel will identify and characterizesite drainage, streams, and creeks located on the properties; delineate wetlands; note conditions that could impact water quality; locate storm water drains; and note storm waterflow patterns. A biologist will survey the properties for threatened or endangered 30 species at sites designated ascritical habitat for the species. The biologist will also perform translocation surveysto determine the presence or absenceof species within critical habitat traversed by the project’s proposed alignments. General surveys: For these surveys, personnelwill survey the properties for sensitive bird species and habitats. Personnel will access the habitats by motor vehicle or, where possible, by walking. They will conduct species-specific surveys by walking through appropriate habitat. In addition to using a motor vehicle, personnel will use binoculars, spotting scopes, photography equipment, maps, GPS units, and laptop computers. Recreational surveys: State personnel will observe recreationalfacilities on the properties and personsusing thosefacilities. The botanical, hydrologic, general, and recreations surveys will be conducted concurrently, and will require two to six personnel between one and 12 days to complete the surveys on each parcel. If wetlands are found, an additional one to four days would be needed. Habitat and species specific surveys: For these surveys, personnel will search the properties for the presence of a numberofsensitive species of reptiles, amphibians, and mammals. They will observe and capture species using a variety of methods, including trapping. Night surveys are allowed, if required. Access to sites and traps will vary depending on the species being observed. Personnel will use one motor vehicle for access, as well as binoculars, cameras, recording equipment, computer equipment, and different types of traps and nets to perform their work. Species and habitat surveys will take from five days to 10 days per parcel, per year, to complete. Some trapping surveys will require access seven days per week for checking the traps. Each trap will be set for at least two weekspersite. | Vernal pool surveys: Personnel will conduct surveys both on the ground and from the air to identify and document vernal pools. They will make field determinations by 3] drive-by observations, walking surveys, or dip-netting ofponded pools. Personnel will use cameras, a GPS unit, and other tools. During the rainy season, survey teams may visit each site once every two weeksfor six to eight months between October and May, an average of 12 to 16 days per parcel. | Archaeological surveys: For these surveys, one or two archaeologists will walk the sites to look for cultural resources, such as archaeological sites, historic structures, » and sacredsites, both known and unknown, They will make shallow soil scrapings as necessary but will not remove orcollect any soils. In addition to using a motor vehicle to accessthe sites, they will use cameras and GPS equipment. Utility inventory surveys: Forthese, personnel will survey the sites to inventory existing utilities. This will include measuring the height of overhead powerlines in different ambient temperatures and performing walking surveys. Personnel will usea passengervehicle for accessto the sites. These surveys will require up to one hourper Site. Mappingactivities: Personnel will conduct geodetic mapping ofthe sites. To do this, they will install targets on the ground and take photographs from an aircraft. The targets are made of three-foot square black cloths with a large white ““X” on them. Up to two flights are allowed persite, each spaced several weeks apart. Two-inch wood survey | stakes will also be used. The mapping activities will require up to foursite visits. Personnel will use a motor vehicle to access the site, and iron pipe and metal spikes to secure the targets to the ground. They will remove the targets on the fourth visit after the secondflight. The entry order limits the total numberof days the State may enter propertiesto performthe activities and the total number of personnel allowed for each entry. The number of days and personnel allowed depend on the size of the owner’s property holdings. For property holdings of 100 acres or less, the court granted the State 25 days of entry within a one-year period, and up to four people per entry. Thelimits increase 32 incrementally, with the court granting 66 days of entry within a one-year period, with up to eight peopleperentry, for property holdings of 3,501 to 8,500 acres. The court also authorized the targets for mapping be kept on the properties for up to 38 days. The entry order imposes a numberof other conditions on the environmental activities. The State must limit vehicular and pedestrian access to those routes reasonably identified by the owner of the property. It must restore any soil disturbancesto its predisturbance condition. It mustrestrict its use of vehicles and large equipment to existing roadways, and may notuse vehicles or large equipmentin planted fields or orchards. The State must repair and restore any damage to roadwaysandtrails. It must avoid placing markers and other objects in planted fields. And it must take protective measures in the placement and type of markers used in orderto protect cattle and livestock. The entry order limits entries to 10 and one-half hour days between 7:00 a.m. and 7:00 p.m., Monday through Friday. No entry is allowed between Wednesday and Sunday ofThanksgiving week and from December 23 through January 1, the 4th of July, Labor Day, or Memorial Day. The’orderlimits the numberof night entries to five. The order also prohibits entries into vineyards between September 1 and October 15, and onto lands used primarily for hunting between October 1 and February 25, except to conductvernal pool studies. The entry order requires the State to give 72 hours prior notice of each entry. It requires the State to stay at least 100 feet away from any inhabited dwelling, and the State may not enter any closed structure on the property that is not considered opento the public. With respect to levees andreclamation facilities, the entry order prohibits digging, hand auguring, and drilling within 100 feet of the base ofa levee. The State is required to comply with any reclamation district regulations applicable to the property owner 33 regarding use or weight ofvehicles on the reclamation district’s easement areaorthat restrict access to pumping stations, digging nearlevees, and thelike. The entry order requires the State to coordinate entries info areas covered by a conservation easement or grant with the California Department of Fish and Wildlife, and to obtain all necessary permits, The State may not trap wildlife in a conservation easement without specific approvalfrom the appropriate authority. The entry order also requires State personnelto use their best efforts not to block needlessly or impede anyactivity by the owners or their agents on the properties. The State may fence or otherwise prevent access only to specific areas of property the State is actually utilizing. The State is required to consult with the owners about any special conditions on the property, including a very high watertable, and to take such special conditions into account when performingtests. B. Analysis The landowners arguethe entry order results in a taking that cannot be authorized by the entry statutes because the order grants the State a temporary easement on their properties for a period of one year, a compensable property interest they contend mustbe condemned. They claim acquiring a temporary easement, as with acquiring an interest for an intentional permanenttaking,is distinct from compensating for any damageto or interference with the use or possession oftheir properties which theentry statutes were written to authorize. | The landownersin their briefing do not cite to evidence of any actual damage or interference the environmentalactivities will cause to their properties. Indeed, one ofthe landownersin a declaration at trial stated: “Without knowingthe precise location and time for each of the studies to be conducted by [the State],it is impossible to determine in advance the damagethat will be suffered as a result of the access and interference by [the State].” However, the landowners contend the disruption of economic and noneconomic activities on their properties and the loss oftheir right to the quiet use and enjoymentof 34 their properties is “manifest” and “self-evident.” They allege authorizing eight people to enter their properties for up to 66 days and allowing targets and traps to be kept on the property for up to 38 days deprives them oftheir quiet use and enjoyment as a matter of law. The landowners claim the entry statutes do not, and constitutionally cannot, authorize the taking of such compensable property interests. | We concludethe entry order for the environmentalactivities authorizes a taking of a property interest in the nature of a temporary easementthat must be acquired in a condemnation suit. We explain our reasoning, Unlike the geological activities, the environmental activities are not a taking per se. They will not result in a permanent occupancyofproperty (see Loretto, supra, 458 USS. at p. 426), or deny the landowners ofall economically beneficial uses of their properties. (See Lucas v. South Carolina Coastal Council (1992) 505 U.S, 1003, 1019 [120 L.Ed.2d 798, 815].) Thus, the rule ofZoretto, that a permanent physical occupation is a taking perse, does not apply to our review of the environmental activities. There is no bright-line rule for determining whether a temporary physical invasion constitutes a taking. “The permanence andabsolute exclusivity of a physical occupation distinguish it from temporary limitations on the right to exclude. Not every physical invasion is a taking. ... [S]Juch temporary limitations are subject to a more complex balancing process to determine whether they are a taking. Therationale is evident: they do not absolutely dispossess the ownerof his rights to use, and exclude others from,his property.” (Loretto, supra, 458 U.S.at p. 435, fn. 12, original italics.) A simplified way of viewing the issue is to compare the entry to a trespass, a type of physical invasionthat is not a taking. “Occasionally an issue arose as to whetherthe government’s activity was so short lived as to be more like thetort of trespass than a taking of property. The distinction between the government vehicle parked one day on [landowner’s] land while the driver eats lunch, on the one hand, and the entry on [landowner’s] land by the governmentfor the purpose of establishing a long term storage 35 lot for vehicles and equipment, on the other, is clear enough. The fact that sovereign immunity might insulate the government from liability in the tort but not in the taking makes for interesting line-drawing in the close cases, and provides employmentfor lawyers. [Citation.]” (Hendler v. United States (Fed.Cir. 1991) 952 F.2d 1364, 1371.) This is one of those close cases. Performing the “more complex balancing process” to determine whetherthe entry to perform the environmental activities constitutes a taking involves an ad hoc, factual inquiry into several factors of significance. (Loretto, supra, 458 U.S.at p. 435, fn. 12; Penn Central Transp. Co. y. New York City (1978) 438 U.S. 104, 124 [57 L.Ed.2d 631, 648] (Penn Central).) One of those factors is the length oftime the invasion willlast. “When regulation or temporary physical invasion by governmentinterferes with private property, ourdecisions recognize, time is indeed a factor in determining the existence vel nonl!2] of a compensable taking. (See Loretto, supra, 458 U.S. at 435, fn. 12 [temporary physical invasions should be assessed by case-specific factual inquiry]; Tahoe-Sierra [Preservation Council, Inc. v. Tahoe Regional Planning Agency (2002) 535 U.S. 302], 342 [152 L.Ed.2d 517] [(Tahoe-Sierra)] [duration of regulatory restriction is a factor for court to consider]; National Board ofYMCA vy. United States (1969) 395 U.S. 85, 93 [23 L.Ed.2d 117] [‘temporary, unplanned occupation’ of building by. troops under exigent circumstancesis not a taking].) “Also relevant to the takings inquiry is the degree to which the invasion is intendedoris the foreseeable result of authorized government action. [(/ohn Horstmann Co. v. United States (1921) 257 U.S. 138, 146 [66 L.Ed. 171] [no takings liability when damage caused by governmentactioncould not have been foreseen]. See also Ridge Line, Inc. v. United States (Fed.Cir. 2003) 346 F.3d 1346, 1355-1356 (Ridge Line); 12 Yel non means“[o]r the absence of it (or them).” (Black’s Law Dict., supra, p. 1694.) 36 Matter ofChicago, Milwaukee, St.Paul & Pacific R. Co. (7th Cir. 1986) 799 F.2d 317, 325-326 (Chicago).)| So, too, are the character of the land at issue and the owner’s ‘reasonable investment-backed expectations’ regarding the land’s use. [(Palazzolo, supra, 533 U.S,at p. 618.)] ... Severity of the interference figures in the calculus as well. (See Penn Central, supra, 438 U.S., at 130-131; Portsmouth Harbor Land & Hotel Co. v. United States (1922) 260 U.S. 327, 329-330 [67 L.Ed. 287] [(Portsmouth)] (‘{While a single act may not be enough, a continuanceofthem in sufficient number and for a sufficient time may prove [a taking]. Every successive trespass adds to the force of the evidence.’).” (Arkansas Game & Fish Comm'n v. United States (2012) _- U.S. [84 L.Ed.2d 417, 431], originalitalics.) | Applyingthese factors here -- the degree to whichthe invasionsare intended, the character of the invasions; the amount of time the invasions will last, and the invasions’ economic impact -- we conclude the environmental activities authorized by the entry order constitute a temporary taking. 1, The degree to which the invasions are intended A primary factor that distinguishes a taking from tort or a taking recoverablein inverse condemnation is the degree to which the physical invasions are intended or occur as authorized, A condemnor’s intent to commit anactthatis or results in a taking is a significant factor in determining the existence of a temporary taking, and that factor weighs heavily in determining the environmental activities here constitute a taking. “[A] property loss compensable as a taking only results when the governmentintendsto invade a protected property interest or the asserted invasionis the ‘direct, natural, or probable result of an authorized activity and not the incidental or consequential injury inflicted by the action.’ [Citation.]” (Ridge Line, supra, 346 F.3d at p. 1355.) In contrast, “[a]ccidental, unintended injuries inflicted by governmental actors are treated as torts, not takings.” (Chicago, supra, 799 F.2d at p. 326.) 37 In Portsmouth, supra, 260 U.S. 327, the Supreme Court stated a single, temporary invasion could constitute a taking if the invasion and its consequences were intended and authorized by the government. In that case, the federal governmenterected a fort along the coast, with gunsthat had a range over theentire sea front of the claimants’ property. The governmentalso established a fire control station there. The claimants alleged the government had set up the guns with the intent of being able to fire projectiles across their land for whatever purpose and whenever it wanted. The high court ruled if that was the government’sintent, the firing of only one shot could establish a taking. Writing for the court, Justice Holmes explained: “Ifthe United States, with the admitted intent to fire across the claimants’ land at will should fire a single shot or put a fire control upon the land, it well might be that the taking of a right would be complete. But even when the intent thus to make use of the claimants’ property is not admitted, while a single act may not be enough, a continuance of them in sufficient number andfor a sufficient time may prove it. Every successive trespass adds to the force of the evidence.” (id. at pp. 329- 330.) Here, the State intends to invade the landowners’ properties and to perform authorized activities. The invasions are the foreseeable result of authorized government action. These invasions will happen not just once, but are intended to occur up to 66 days over a one year period by as manyas eight people at a time per owner. This is a significant intentional invasion of private property. 2. The character ofthe invasions Temporary invasions can be either physical entries onto property, or can result from the temporary regulation of the property’s use. As between those two, “a physical invasion is a governmentintrusion of an unusually serious character.” (Loretto, supra, 458 U.S.at p. 433, fn. omitted.) The environmentalactivities are a physical invasion. Although they are not a permanent invasion like the geological activities, they nonetheless involve intentionally and physically entering onto and using a landowner’s 38 property. At a minimum,by entering onto the properties to conduct the environmental activities, the State appropriatesto itself a blanket right of access for a period oftime for up to one year, similar to a temporary casement, and in doing so defeats the landowner’s right to exclude others. | “The Government does not havethe right to declare itself a co-tenant-in- possession with a property owner. Amonga citizen’s -- including a property owner’s-- most cherished rightsis the right to be let alone. (Olmstead v. United States (1928) 277 U.S. 438, 478 [72 L.Ed. 944] (Brandeis, J., dissenting); see generally Warren & Brandeis, The Right to Privacy, 4 Harv.L.Rev. 193 (1890).) “In the bundleofrights we call property, one of the most valuedis the right to sole _ and exclusive possession -- the right to exclude strangers, or for that matter friends, but especially the Government. (See, e.g., Nollan v. California Coastal Comm’n [(1987) 483 USS. 825, 831] [97 L.Ed.2d 677]; Loretto, [supra, 458 U.S.at p. 426]; In re Etter (Fed.Cir. 1985) 756 F.2d 852, 859, cert. denied, 474 U.S. 828 [88 L.Ed.2d 72] (1985) (‘The essenceof all property is the right to exclude . . . .”); Connell v. Sears, Roebuck & Co. (Fed. Cir. 1983) 722 F.2d 1542, 1548 (citing Schenck v. Nortron Corp. (Fed.Cir. 1983) 713 F.2d 782.) “The notion of exclusive ownership as a property right is fundamental to our theory of social organization. In additionto its central role in protecting the individual’s — right to be let alone, the importance of exclusive ownership -- the ability to exclude freeriders -- is now understood as essential to economic development, and to the avoidance ofthe wasting of resources found under common property systems. [Citations.] | “The intruder whoenters clothed in the robes of authority in broad daylight commits no less an invasion ofthese rights than if he sneaks in in the night wearing a burglar’s mask. In some ways, entry by the authorities is more to be feared, since the citizen’s right to defend against the intrusion may seem less clear. Courts should leave 39 no doubt as to whoseside the law stands upon.” (Hendler v. United States, supra, 952 F.2d at pp. 1374-1375.) As an intentional physical invasion, the environmental activities amount to an appropriation of a valuable property right -- “an intrusion of an unusually serious character” -- even thoughthe invasion is temporary. 3, The amountoftime the invasions will last “T]he duration of the restriction is one of the important factors that a court must considerin the appraisal of a regulatory [or temporary] takings claim, but with respect to that factor as with respectto other factors, the ‘temptation to adopt what amount to per se rules in either direction must be resisted.’ (Palazzolo, supra, 533 USS.at p. 636 (O’Connor, J., concurring).)” (Tahoe-Sierra, supra, 535 U.S.at p. 342, originalitalics.) As a result, this factor is not considered in isolation, but is considered in relation to the other factors we weigh to determine whetherthe government’s action is a taking. For example, a temporary, unforeseeable occupation of private buildings by United States troops for two days to defendthe buildings from attacks by rioters was insufficient government involvement to be a taking, as the troops’ actions did not deny the owners the use oftheir properties, which were already heavily damaged, and since the possession was a responseto battle. (National Board ofYMCA v. United States, supra, 395 U.S, at p. 93.) In another example, a 32-month moratorium on development imposed while the local government adopted a comprehensive land-use plan for the area was not a facially unconstitutional regulatory taking, in part because the moratorium was not a physical invasion ofa property interest and it did not deny the landowners all economically viable use oftheir properties. (Tahoe-Sierra, supra, 535 U.S. 302.) Of importance here, the Supreme Court in 7:ahoe-Sierra emphasized that cases involving regulatory takings, such as the one beforeit, should not be seen as controlling precedents for cases involving physical invasions. (/d. at pp. 323-324.) 40) Thus, we must consider whether the proposed occupancy of portions of the landowners’ properties, up to a total of 66 days over the courseofa year, is a significant factorin light of the environmentalactivities’ other characteristics. We concludeitis. In effect, the State seeks to acquire a temporary blanket easement for one year to access the landowners’ properties fora total oftwo months or more by as manyas eight peopleata time, and to conduct its studies wherever may be appropriate on the lands subject to reasonable restrictions set by the trial court. Even thoughit is temporary and regulated, the occupancy nonetheless intentionally acquires an interest in real property without paying for it. A 30-day lease is an enforceable interest in real property, and an intentional taking of such an interest should be compensated. Becausethe right to exclude the government from obtaining and possessing an interest in private property is one of a property owner’s most cherished rights, a private property owner should not be required to lease portions ofhis land rentfree to the government. Under the facts and circumstanceshere, a blanket temporary easement for one yearthat authorizes from 25to 66 days of entry by four to eight people is a significant length of time for an intentional, physical invasion of private property. 4. The invasions’ economic impact on the landowners and interference with their distinct investment-backed expectations The inquiry into the invasion’s economic impact “may be narrowedto the question of the severity of the impact” of the entry upon the landowners’ properties. (Penn Central, supra, 438 U.S. at p. 136.) As the landowners admit,it is difficult, if not impossible, to produce evidence of adverse economic impactat this point where the environmental activities have yet to occur. This factor, however, unlike in the context of a regulatory taking whereit is routinely utilized, is less significant in an intentional physical invasion that acquires a property right. The more similar a government’s actionis to a direct taking, the less significant the invasion’s economic impact must be in our weighing. This is because if 4] the governmentintentionally and physically invades private property to the extent it requires a permanent or temporary interest in that property to accomplishits public purposes, it must pay for that interest, no matter how small the interest maybe. “When the government physically takes possession of an interest in property for some public purpose, it has a categorical duty to compensate the former owner (United States v. Pewee Coal Co (1951) 341 U.S. 114, 115 [95 L.Ed. 809]), regardless of whether the interest that is taken constitutes an entire parcel or merely a part thereof. Thus, compensation is mandated whena leasehold is taken and the government occupies the property for its own purposes, even though that use is temporary. (United States v. General Motors Corp. (1945) 323 U.S. 373 [89 L.Ed. 311]), United States v. Petty Motor © | Co. (1946) 327 U.S. 376 [90 L.Ed. 729].) Similarly, when the government appropriates part of a rooftop in order to provide cable TV access for apartment tenants (Loretto, supra, 458 U.S. 419); or whenits planes use private airspace to approach a government airport (United States v. Causby, supra, 328 U.S. 256), it is required to pay for that share no matter how small.” (Tahoe-Sierra, supra, 535 U.S,at p. 322,italics added.) Thus, in this matter, all the factors weigh in favor of finding a temporary taking. The invasion and its consequences are intended by the State similar to a direct ‘condemnation for a temporary easement. The invasionis a physical invasion, “a governmentintrusion of an unusually serious character.” (Loretio, supra, 458 U.S. at p. 433, fn. omitted.) The invasion will take place over a significant period oftime, providing a one-year blanket easement to private property for entry by up to eight people for up to 66 days. These characteristics outweigh the preliminary lack of evidence on the invasions’ economic impact. In short, if the State intends to take and use a temporary easement, it must directly condemnit. As weconcluded earlier, the entry statutes do not provide for a direct condemnationsuit as required by Section 19(a) by which the State can acquire that temporary easement. Indeed, the State’s desire and need to condemna temporary 42 easement to perform the environmental activities provides another example of how the entry statutes do not provide the condemnationsuit Section 19(a) and Jacodsen require for a direct condemnation. In a temporary taking, the usual measure ofjust compensation is the fair rental value of the property interest taken for the period of the taking. (Yuba Natural Resources, Inc, v United States (Fed.Cir. 1990) 904 F.2d 1577, 1581.) The entry statutes, however, authorize the trial court hearing the entry petition only to determine the Value of any actual damageorsubstantial interference that may occurafter the State uses the property interest. These measures are different than the rental value of the interest the | State intends to acquire directly in order to perform its activities. The entry statutes do not provide a constitutionally viable means whereby the fair rental value can be determined in a condemnation suit brought by the condemnorand in which the landownerreceivesall of his constitutional protections against the use of eminent domain, including a jury determination of fair rental value. Forall of these reasons, we conclude the environmental activities work a temporary taking, and as such, cannot be authorized by the entry statutes’ procedure. The State makes much of the inconvenience and cost imposed onit if it cannot enter properties to perform studies of the complexity and length of the environmental and geological studies without having to directly condemnaninterest, or if it cannot acquire that interest in private property by meansofthe entry statutes, particularly for projects of this size. No doubt our ruling imposes more work on condemning agencies and the courts. However, constitutional rights against the exercise of eminent domain authority are not subject to the convenience of the government. As far back as Jacobsen, the Supreme Court madeclear that if a government entity, even one that has already filed a condemnation action to acquire the property in question, wants to engage in studies and surveys that in themselves worka taking, the entity must file a separate condemnation suit to do so. (Jacobsen, supra, 192 Cal. at p.329.) Our opinion today merelyreinforces that fundamental doctrine of California constitutional law. 43 DISPOSITION In the matter of case No. C068469, the order of thetrial court denying the master petition for entry to perform the geologicalactivities is affirmed. . In the matters of case Nos. C067758 and C067765, the petitions for writ relief are granted after an order to show cause was issued. The orderofthetrial court granting the master petition for entry to perform the environmentalactivities is reversed, and the matter is remandedto the trial court with instructions to enter a new order denying the master petition for entry to perform the environmentalactivities. The temporary stay is dissolved upon thetrial court’s entry of a new order. Costs on appeal andin this original proceeding are awarded to the landowners. (Cal. Rules of Court, rules 8.278(a), 8.493(a).) NICHOLSON J, I concur: HOCH J. 44 ] dissent. In this case, a court, for the first time since its enactment 38 years ago, declares a part of the Eminent Domain Law, the precondemnation entry statutes, unconstitutional as a violation of the takings provisions ofarticle I, section 19 of the California Constitution (hereafter article 1, section 19), and does so without according the statutes the simplest presumption of constitutionality. The majority insists that eminent domain statutes must be strictly construed, but this does not mean that they cannot be presumed constitutional, and the cases on which the majority relies are not in point. . The State of California (State) by and through the Department of Water Resources (Department) proposes to construct the Bay Delta Conservation Plan (BDCP), a canal or tunnels that would divert fresh water from Northern California across or around the delta for conveyance to Southern California, and seeks toemploy an entry procedure withinthe Eminent Domain Law (the entry statutes)! to determinethe suitability of the proposed route for the project prior to condemnation of the property. The entry statutes, enacted in 1976 on the recommendation of the California Law Revision Commission,” and drafted to comply with Jacobsen v, Superior Court (1923) 192 Cal. 319 (Jacobsen), permit a person, “authorized to acquire property for a particular use by eminent domain,”to enter a property “to make photographs, studies, surveys, examinations, tests, soundings, borings, samplings, or appraisals .. . reasonably related to acquisition or use of the property... .” (§ 1245.010.) Ifthe entry would subject the personto liability for damage or substantial interference with the possession or useof the 1 Code of Civil Procedure sections 1245.010-1245.060. A reference to a section is to the Code of Civil Procedure unless otherwise designated or made apparent by the context. 2 Eminent Domain Law (Dec. 1975) 13 California Law Revision Commission Report (1975) pages 1119-1123, Recommendation Relating to Sovereign Immunity (Sept. 1969) 9 California Law Revision Commission Report (1969) pages 811-815. property,the entering person must obtain a court order specifying the terms of the entry and requiring the tenderof the “probable amount of compensation”for actual damage to or substantial interference with the use of the property. (§§ 1245.030, subd. (c), 1245.020-1245.060.) The trial court issued an order, since stayed by this court, for entry on over 240 properties in the proposed path of the BDCP to conduct environmental studies by wildlife biologists and other science professionals, who walk across the properties to collect data and place cloth targets for an aerial survey ofthe proposed route (Entry Order).3 The court denied a petition seeking entry for the purpose of making soundings anddrilling test borings on 35 of the properties (Denial Order). The petitioners, owners ofthe properties, challenge the validity of the Entry Order as a taking that violates article I, section 19. Article I, section 19, subdivision (a) provides,in relevantpart, that “[t]he Legislature may provide for possession by the condemnor following commencement of eminent domain proceedings upon depositin court and promptrelease to the owner ofmoney determined by the court to be the probable amount ofjust compensation [for the property].” The majority opinion reasons that an eminent domain proceeding may be commencedonly by a complaint that initiates a condemnation proceeding. The challenge raises two kinds of question and I address each in order. First, do the tests proposed for the BDCP constitute a taking underarticle I, section 19? Second,is the Entry Order valid and the Denial Order invalid becausearticle I, section 19 authorizes the Legislature to divide the Eminent Domain Law in twosections, one for precondemnation entries to determine the suitability of a property for a public project, and the other to condemn the property if deemedsuitable? If the answer to the second 3 The Departmentinitially filed a separate petition for each of the properties. Thetrial court combined them into a single order applyingto all of the properties bysize. question is that the entry statutes satisfy the provisions of article I, section 19 the first question need not be answered. I begin with the first question. _ The over 150 owners ofthe properties (Owners) claim that the Entry Order violatesarticle I, section 19 as a taking becauseit authorizes an entry that is not innocuous, pursuant to Jacobsen, supra, 192 Cal. 319, and because it measures the right to an entry order by whether the entry would subject an entering party to liability for damageto or substantial interference with the possession or use of the property entered. (§§ 1245.020, 1245.060, subd.(a).) The entry procedure provides that a property owner must be given notice ofa petition for entry. (§ 1245.030, subd. (a).) There is no formal provision for objecting to the petition and no hearing is expressly required but basic principles of due process would require one. Nonetheless, a hearing washeld, the trial court took testimony from the State elaborating the details ofthe proposed entry, and some ofthe Owners filed objections in the form of hypotheticals claiming that an entry, as set forth in the order, would unlawfully interfere with the use of their properties. The court issued an order specifying the conditions of entry and requiring that the State tender the probable amount of compensation for any injury to the property caused by the entry. In determining the probable amount of compensation for any damageto or interference with the use of the property pursuantto the entry statutes (§§ 1245.010, 1245.020), the trial court does not determine the actual damage or interference caused by an entry because the entry has not yet occurred. Actual damageor interference can be determined only in a hearing orjury trial held after entry on the property. (§ 1245,060.) For these reasons there are no facts concerning actual injury to a property and therefore the Entry Order must be judged on its face, Thus, a constitutional challenge to an entry order necessarily is a facial challenge to the purpose and conditions for entry as set forth in the order. Theorder, if challenged as unconstitutional, must be fairly read and presumed constitutional. The majority opinion claimsto test the constitutionality of the Entry Order by the balancing tests set out in Penn Central Transp. Co. v. New York City (1978) 438 U.S. 104 [57 L.Ed.2d 63 1 (Penn Central) and Loretto v. Teleprompter Manhattan CATV Corp. (1982) 458 U.S. 419 [73 L.Ed.2d 868] (Zoretto). But the Owners have not established any facts showing the burden of the Entry Order on their ownership interests. Forthis reason the balancing test amounts to no more than a summary ofthe activities permitted by the order together with an assertion that they impose too muchof a burden on the property. The majority opinion did not draw inferences from the language of the Entry Orderin favorofits constitutionality. It selected a worst case and reviewedit on the narrowestof legal grounds. It said, for example, that the authorization of “66 days of entry by four to eight peopleis a significant length of time for an intentional, physical invasion of private property.” (Maj. opn. ante, at p. 41.) However, 66 days of entry was | allowed only on the largest properties, those from 3,500 to 8,500 acres in size. Ifthe opinion had simply divided the size (3,500) by the number of days (66) and by the numberofpersons(eight) allowed entry, it would have arrived at 6.6 acres per one entrant per one day overa year, hardly a burdensome impact on the property, especially when consideredin the light of the numerous conditions placed by the order on the conduct of the entry. The majority opinion purports to recognize that there is no bright-line rule for determining when a temporary physical invasion becomesa taking, but nonetheless states that any physical invasion that is not a trespass ts a taking. (Maj. opn.ante, at p. 35.) By the measure ofa trespass, doing anything other than placing a foot on a property is unconstitutional. The trial court held a separate hearing on the proposed geological testing. As with ihe proposed environmental entry, the court took testimony from the Department on the details of the proposed entry, and heard objections to the proposed entries from the Owners, Thetrial court denied entry for geological testing on the grounds Jacobsen, supra, 192 Cal. 319, held similar activities to be a taking, and the Department conceded the drilling would damage property. The appellant State by and through the Department challenges the denial of an entry for the purposeof drilling holes for geological studies. The majority opinion concludesthat the entry for the purpose ofdrilling holes is a permanent physical invasion, and therefore a taking per se. However, the entries for the purposesof drilling test holes and pushing rods in the ground will be brief. Only the residual grout columns left behind as a safety measure (to protect the water table) will be permanent, and the State will not assert a permanentor continuing right to control access to, or dominion of any kind overthe grout tubes. A permanent physical occupation occurs when the government regularly uses or permanently occupies a space or a thing. (Loretto, supra, 458 U.S. at p. 436,fn. 12.) The drilling of holes is not a permanent physical occupation, and does not constitute a taking per se. There is nothing inthe proposeddrilling that would seriously impinge on the Owners’ use of or investment in the property. The drilling will not cause lasting damage to the property because the holes will be filled and the Owners have not proposed any scenario by which the filled holes will inconvenience them, muchless interfere with their rights in the property. On this record the drilling constitutes no more than the inconvenience ofthe time spent in drilling the holes or pushing in the rods and conducting the Cone Penetrometer testing (CPT). None ofthe proposedtests, either environmental or geological, amountto a taking. They are not permanentor exclusive, nor are they to be conducted at a fixedlocation. Owners try to shoehorn the tests into some kind of compensable property interest by claiming they are a temporary occupancyor floating easement. A floating easementis an easement for right-of-way that is not limited to any specific area when created, but which later becomes fixed by one of the parties or by use. (6 Miller & Starr, Cal. Real Estate (3d ed. 2011) § 15:50, p. 168.) The tests contemplated here are not floating easements. Thetests do not involve a temporary occupancy because they do not prevent the owners from using their properties in their intended manner. | Although a temporary easementcan be the subject of a taking, the condemnor’s use of the property must substantially prevent the owner from actually using the property in its intended manner. (City ofFremontv. Fisher (2008) 160 Cal.App.4th 666, 676- 677,) A temporary takingis treated like a permanenttaking if it denies the owner“all use of his property.” (First Lutheran Church v. Los Angeles County (1987) 482 U.S, 304, 318 [96 L.Ed.2d 250, 266].) The temporary occupations contemplated here do not prevent the owners from usingthe properties in their intended manner. Noexclusive use is being sought. Mysecond inquiry is whether the Entry Order is valid because the enactment of the entry statutes was within the authority granted the Legislature to determine what constitutes “eminent domain proceedings” underarticle I, section 19. Article I, section 19 delegates to the Legislature the authority to fashion an eminent domain procedure, subject to tenderto the court of the probable amountofjust compensation and a jury trial on the issue ofjust compensation. The section says: “[t]he Legislature may provide for possession by the condemnorfollowing commencementof eminent domain proceedings upon deposit in court and prompt release to the owner of money determined by the court to be the probable amount ofjust compensation.” (/d., subd. (a), italics added.) There is nothing in this provision that precludes the Legislature from dividing the eminent domain procedureinto a precondemnation procedure,limited to studies ' necessary to determinethe suitability of a property for a project, and a condemnation procedure for taking the property if deemed suitable. In fact, article 1, section 19 invites the Legislature to do so, forit includes the “damage”ofproperty as a subject of the exercise of the power of eminent domain. Since damageto a property to be takenis not compensable in a condemnation proceeding becauseit is subsumedin the value of the property taken, it can occur only incident to the exercise of the power of eminent domain. Thus the condemnation statutes provide for the recovery of damage only for damage to the remainder of a property that is not taken (§ 1263.410), damage when the taking is not commenced within one year and six months ofthe resolution of necessity (§ 1245.260), or damage when the proceeding is commenced but not completed (§ 1268.620, subd.(b)). But an injuryalso can occur incident to the exercise of the power of eminent domain whena property is entered for the purpose of determiningits suitability for a taking. As section 1245.010 provides, an entry is justified if the personis “authorized to acquire [the] property [entered] for a particular use by eminent domain ....” Thus the entry statutes are within the eminent domainstatutes. For this reason the statutory Eminent Domain Law(pt.3, tit. 7) is divided into an entry procedure(pt. 3, tit. 7, ch. 4, art. 1), and a condemnation procedure(pt, 3, tit. 7, ch. 5, art. 2 to pt. 3, tit. 7, ch. 12), both of which are contained in the Eminent Domain Law of title 7 of part 3 of the Code of Civil Procedure. It thus appears that the Legislature has parsed the phrase “eminent domain proceedings”(plural)of article I, section 19, as inclusive ofboth the precondemnation and condemnation proceedings contained in the Eminent Domain Law.‘ Thereis nothingin article I, section 19 that requires that an eminent domain proceeding be “commenced”by a complaint, as required for a 4 The Legislature could make this explicit by defining the commencement of “eminent domain proceedings,”in section 1250.010, as inclusive of both a complaint in condemnation proceedings and a petition in entry proceedings. 5 The predecessorto article I, section 19, provision as it existed at the time of the Jacobsen decision, referred to “ ‘commencing eminent domain proceedings according to law,’ ” making clear that the Legislature’s authority extended to the definitions of condemnation proceeding (§ 1250.110), or precludes an entry proceeding from being commenced by a petition. In essence the majority opinion holds the entry procedure unconstitutional because - it historically has never been called an “eminent domain proceeding,” notwithstanding that the entry statutes clearly function as a “proceeding” within the Eminent Domain Law, as enacted by the Legislature pursuantto its authority under article I, section 19. (Pt. 3, tit. 7, ch. 4, art. 1.) The condemnation statutes were not designedto do the limited precondemnation work ofthe entry statutes. They do not provide for recovery for “damage” to property other than ancillary damageto property not the subject of the condemnation action (§§ 1255.030, subd. (a)(3), 1263.410, 1263.420), or damage caused by failure to timely proceed with a condemnation proceeding (§ 1245.260, subd. (a)). The condemnation statutes provide for the recovery of the market value of property, but not for the “preliminary actions of the plaintiffrelating to the taking of the property,” including damage occurring in the course of a precondemnation entry. (§ 1263.330, subd. (c).) Nordo they provide forthe trial of a damageactionarising out of a precondemnation procedure. That may be brought only by a compulsory cross-complaint based on damagesor interference caused by a precondemnation entry. (§ 426.70.) In short, the quick-take procedure, a part of the condemnation statutes (§ 1240.110), cannot fulfill the function of the entry statutes as a “precondemnation”activity. The entry statutes are addressed to a rational need to determine the suitability of a property for a public project before the property is taken for the project. By invalidating the entry statutes, the maj ority opinion would force a public entity that initiates a large- scale public project, such as the one envisionedhere, either to put up the money for the “commencement.” (Jacobsen, supra, 192 Cal. at p. 331; Cal. Const. formerart. 1, § 14, as adopted Nov.5, 1918.) property before determining its suitability for a project, or engagein two complete condemnation proceedings with their attendant jury trials and costs. “Ifthe result of[a] survey should disclose that the land was unsuitable for[the project] purposes, obviously the public agency would notfile an action to condemnit. On the otherhand,if the statute is construed in such manneras to compel the public agencyto firstfile an action in eminent domain to condemnthe land as a condition precedent to the exercise of the rights conferred [by the entry statutes] and then abandonthe action upon discovery, after survey, that the land was unsuitable, such construction would require the agency to perform a useless act.” (County ofSan Luis Obispo v. Ranchita Cattle Co. (1971) 16 Cal.App.3d 383, 389 (Ranchita).) The majority notes that Ranchita concerned only the case where a condemnation action is initiated for the taking of the whole of a property but does not concern the necessity of filing a separate condemnation proceeding for the preliminary tests themselves. However, the majority’s position meanseitherall the money must be put up for the whole of the property before it is determined to be suitable, or two full-blown condemnation proceedings must be completed. Thus, the majority opinion would force a public entity that initiates a large-scale public project, such as here, either to put up the money for the property before determiningits suitability for the project, or engage in two complete condemnation proceedings with their attendant costs, FACTS AND PROCEDURE The purposeofthe proposed studiesis to “determine the feasibility of alternative types ofwater conveyance systems; the best alternative conveyance alignment location; and the best alternative corridor location within each alternative conveyance alignment jocation.” The studies also are intended to determine “whether a water conveyance system should or should not be constructed.” The properties at issue are located in five counties. There are over 150 different owners and over 240 separate parcels. The expedited procedures ofthe entry statutes are consistent with their purpose, which is to determine whether the property is suitable for the project. At the same time, the proceduressatisfy constitutional concerns, that a property ownerbefairly compensated for any interference with the possession and use of the property, and that the compensation be determined by a jury if necessary. Pursuantto the entry statutes, the trial court issued an order in the environmental portion of the bifurcated proceeding allowing entry for environmentaltests (the Entry Order). The Entry Order set forth conditions governing the scope of work, the number of entry days, and numberofpersonnel allowed for each entry. The numberof days and personnel allowed under the Entry Order was dependentuponthesize of the property.® The entries were to be completed within a one-year period, and were supposed to commence on April 1, 2011. The Entry Order also set forth the probable amount of compensation the Department was required to deposit for each piece of property. The probable amount of compensation was: (a) 100 acresorless, $1,000; (b) 101-1,000 acres, $1,500; (c) 1,001- 2,000 acres, $2,500; (d) 2,001-3,500 acres, $4,000; (e) 3,501-8,500 acres, $6,000. No geological testing or drilling was allowed under the Entry Order. The geological(i.e., drilling) portion of the bifurcated proceeding resulted in an order denying entry (the Denial Order). The trial court stated that Department conceded ~ its geological borings would likely result in a taking or damaging ofproperty, and ultimately contended the borings would constitute a damaging, but not a taking of property. The trial court concluded the borings would constitute a taking under the 6 For a property 100 acres orlessin size, Department was allowed 25 days ofentry, and up to four people per entry. The limits increase incrementally, with the largest properties being 3,500 to 8,500 acres in size, and allowing 66 days of entry, and up to eight people per entry. 10 United States Constitution, and would constitute a taking or damaging underthestate Constitution. | DISCUSSION Owners contend, and the majority agrees, that the tests proposed by the Departmentare a taking of property without just compensation in violation of the federal and state Constitutions. I will explain that Owners cannot demonstrate that the entry statutes are unconstitutional on their face, and that Owners have not demonstrated that as applied to circumstances of this case the entry statutes allow a taking in violation ofthe Constitution. Even if Owners had tendered evidence that Department’s proposed activities would amountto a taking, the entry statutes comply with the constitutional requisites for the taking of property because they are a procedure within the Eminent Domain Law andprovidefor a deposit ofjust compensationprior to possession. I The Entry Order Does Not Authorize an Unconstitutional Taking _A. Jacobsen’s Innocuous Entry Standard is No Longer Applicable Owners arguethat in the preliminary entry context, a taking of property was defined in 1923 by the California Supreme Court as anything “other than such innocuous entry and superficial examination as would suffice for the making of surveys or maps and as would notin the nature of things seriously impinge upon or impairthe rights ofthe ownerto the use and enjoyment of his property.” (Jacobsen, supra, 192 Cal. at p. 329.) In Jacobsen, supra, 192 Cal. 319, the Petaluma Municipal Water District proposed to drill test holes and excavate test pits pursuant to former section 1242, which stated that the state or its agents could “ ‘enter upon the land and make examinations, surveys, and mapsthereof, and such entry shall constitute no cause of action in favor ofthe owners of the land, except for injuries resulting from negligence, wantonness, or malice.’ ” (Jacobsen, supra, 192 Cal. at pp. 329, 321-322, 324.) 1] Jacobsen concluded that whateveractivities former section 1242 allowed, they “cannot amountto other than such innocuous entry and superficial examination as would suffice for the making of surveys or maps and as wouldnotin the nature of things seriously impinge upon or impair the rights of the ownerto the use and enjoymentofhis property.” (Jacobsen, supra, 192 Cal. at p. 329.) The court stated that “[a]ny other interpretation would. . . render the section void as violative of the foregoing provisions of both the state and the federal constitution.” (bid.) Ownersinsist that Jacobsen is conclusive authority in this state for the proposition that the only precondemnation examinationsthat do not constitute a taking are “innocuous” entries and “superficial examination[s.]” (Jacobsen, supra, 192 Cal. at p. 329.) They also quote Hendler v. United States (Fed.Cir. 1991) 952 F.2d 1364, 1377, for the proposition that the only governmentintrusion that does notrise to the level of a taking is one thatis “transient and relatively inconsequential, and thus properly can be viewed as no more than a common law trespass quare clausumfregit. [A] truckdriver parking on someone’s vacantland to eat lunch is an example.” Thus, Ownersassert that a taking occursifthe entry is more than innocuous. However, federal takings law has evolved since Jacobsen was decided in 1923. It is now understoodthat a takings analysis requires a situation-specific factual inquiry involving a weighing of several factors. The California Constitution provides a somewhat broaderprotection becauseit provides compensation for damage as well as for taking, but “the state takings clause is construed congruently with the federal clause.” (Shaw v. County ofSanta Cruz (2008) 170 Cal.App.4th 229, 260.) B. The Current State ofTakings Law Historically, the federal constitutional clause requiring just compensation for the taking ofprivate property was thoughtto apply only to a direct appropriation of property resulting in the ouster ofpossession by the owner. (Lucas v. So. Carolina Coastal Council (1992) 505 U.S. 1003, 1014 [120 L.Ed.2d 798, 812] (Lucas).) However,in 12 1922, the Supreme Court recognized that a taking may also occur where property is not physically occupied, but where the regulation of the property “goes too far.” . (Pennsylvania Coal Co. v. Mahon (1922) 260 U.S. 393, 415 [67 L.Ed. 322, 326].) Not every use, possession, or controlofprivate property by a public entity constitutes a taking in violation of the federal and state Constitutions. (Sun O7! Co. v. United States (Ct.Cl. 1978) 572 F.2d 786, 818.) In determining whether government action has effected a taking we focus on the character of the action and the nature and extentof the interference with rights in the parce] as a whole. (Penn Central, supra, 438 U.S. at pp. 130-131.) Two types of takings are “categorical,” i-e., an action that is compensable without an ad hoc, fact-specific inquiry into the public interest advanced by the action. (Lucas, supra, 505 U.S. at p. 1015.) The majority refers to this as a taking perse. These are:(1) the permanent physical occupation of an owner’s property (Loretto, supra, 458 US.at p. 421); and (2) the regulatory denial of all economically beneficial or productive use of the property. (Lucas, at p. 1015.) Where the actions of the condemnordo not involve one of these two extremes, “most takings claims turn on situation-specific factual inquiries.” (Ark. Game & Fish Comm’n y. United States (2012) —s-US.__—«s[.184 L_Ed.2d 417, 426] (Arkansas Game).) Courts weigh several factors to determine whether a taking has occurred. The primary factors are: (1) the economic impact of the regulation, (2) the extent to which the regulation has interfered with distinct investment-backed expectations, and (3) the characterofthe governmental action. (Penn Central, supra, 438 US. at p. 124.) In Loretto, the Supreme Court held a permanent physical occupation constituted a taking, even though the area occupied was nothing more than a half-inch diameter cable and two cable boxes. (Loretto, supra, 458 U.S. at p. 422.) The court endorsed the concept that a taking occurs whenever an entity regularly uses orpermanently occupies a space or a thing. (/d. at p. 428, fn. 5.) Permanent physical occupations are characterized 13 by their permanence and “absolute exclusivity.” (Zd. at p. 436, fn. 12.) “[A] permanent physical occupation is a government action of such a unique characterthat it is a taking without regard to other factors that a court might ordinarily examine.” (/d. at p. 432, fn. omitted.) But not every physical invasion ofproperty is a physical occupation, and therefore ataking. (Loretto, supra, 458 U.S. at p. 436, fn. 12.) The court made a distinction between a “permanent physical occupation” and a “more temporary invasion,” holding that a taking has always been found on/y in the formersituation. Ud. atp. 428.) The court referred to temporary physical intrusions as physical “invasions.” (Ud. at p. 436, fn. 12.) Temporary physical invasions “do not absolutely dispossess the ownerofhis rights to use, and exclude others from, his property.” (Zbid.) Temporary physical invasions “are subject to a more complex balancing process to determine whetherthey are a taking.” (Loretto, supra, 458 U.S.at p. 436, fn. 12.) The Supreme Court discussed this balancing process in detail in Penn Central. (Loretto, supra, 458 U.S. at p. 432.) As stated, the balancing process entails the consideration of the economic impact of the government action, the extent to which it interferes with investment-backed expectations, and the character of the governmental action. (Penn Central, supra, 438 U.S. at p. 124; Loretto, supra, 458 US.at p. 432.) More recentlyin Arkansas Game, supra, 184 L.Ed.2d at p. 426, the Supreme Court affirmed that the Penn Central balancing test is the appropriate method for analyzing a taking, whetherthe intrusion is physical or regulatory-~permanentor temporary. (But see Tahoe-Sierra P. Council v. Tahoe RPA (2002) 535 U.S. 302, 322 [152 L.Ed.2d 517, 540] (“Our jurisprudence involving condemnations and physical takings, .. . for the mostpart, involves the straightforward application ofper se rules. Our regulatory takings jurisprudence, in contrast, is of more recent vintage andis characterized by ‘essentially ad hoc, factual inquiries,’ [citation] designed to allow ‘careful examination and weighing of all the relevant circumstances.’ ”].) 14 Arkansas Game indicated that two otherfactors are also to be considered in determining whether a taking has occurred, namely: (1) the length of a temporary invasion, and (2) whetherthe invasion is intended oris the foreseeable result of authorized government action. (Arkansas Game, supra, 184 L.Ed.2d at p. 431.) C. Application ofCurrent Law As a preliminary matter, even under the Jacobsen standard, Owners cannot prove that the entry statutes are unconstitutional on their face. A facial challenge will not ‘succeed unlessthe provisionsof the statute or order present a total and fatal conflict with constitutional prohibitions in all of its applications. (East Bay Asian Local Development Corp. v. State ofCalifornia (2000) 24 Cal.4th 693, 709.) Certainly, the provisions allowing an entity to make photographs and studies would be constitutional in many applications, even ifwe were to incorrectly assumethat the proper standard fora taking is an entry that is not innocuous. Owners also cannot show that the entry statutes are unconstitutional as applied to them in the Entry Order. The Owners’ claim suffers from an absence of evidence. Nor could the Owners showthat an order allowing geological testing would necessarily result in an unconstitutional application of the entry statutes as to them. Here is the problem. Unless the government’s actions can be classified as a “categorical” taking as described above, the analysis to determine whether a taking has or will occur involves a fact-specific inquiry that focuses on what impact the entry will have on the owner’s use of and investmentin the property. This necessarily requires evidence of exactly how the entry will adversely impact the owner’s use of and investmentin the property. Such evidence ts difficult or impossible to produce in advanceof the entry. It certainly has not been produced here. What we do haveis speculation as to the worst- case scenario of what might occur. Speculation alone about the effect of a government’s actions cannot provide the basis for a constitutional challenge. (in re Johnson (1965) 62 . Cal.2d 325, 332.) 15 I. The Entry Order Mostof the Department’s proposed actions can be characterized as walking; photographing; visual observations; sampling of water,soil, and flora; and animal trapping. No drilling or boring is allowed under the Entry Order. There appears to be no necessity for heavy, large equipment, other than the vehicles used to transport personnel | to the survey sites. These vehicles must remain on existing roadways. The Entry Order restricts entry so as not to interfere with hunting activity on land used for that purpose. The Entry Order contains special provisions to prevent damageto livestock and crops. Entry onto the largest properties (3,500-8,500 acres)is limited to 66 days in a one- year period. This meansthat if the Department works 10.5-hour days,it will be on the property less than 12 minutes per acre for the entire year. The larger properties encompass more than five square miles. The most personnelthat may enter at any one time is eight, for properties in excess of 2,000 acres. The smallest properties of 100 acres or fewer may be entered by only four people at any one time, and only for a total of 25 days. The smallest of petitioners’ properties is the Christensen property, which is 8.36 acres. The largest property is 8,400 acres, owned by Delta Wetlands. The properties are used primarily for growing crops, boating, hunting, cattle ranching, and wildlife habitat management. Many of the properties have one or more residences. To succeed in their as-applied challenge, Owners must tender evidence of the impact on their property of the Department’s activities. Pursuant to Loreéto, the analysis depends upon the particular circumstances of the case and is “essentially [an] ad hoc, factual inquir[y.]” (Penn Central, supra, 438 U.S.at p. 124.) Here, there is no evidence of the impact. Lookingat the activities proposed,the conclusion must be that the Department’s proposed actions fall within the category of a temporary physical invasion as described in Loretto. The activities proposed are not permanent and they do not constitute a temporary occupation because they lack exclusivity. They “do not absolutely 16 dispossess the ownerofhis rights to use, and exclude others from, his property.” (Loretto, supra, 458 U.S. at p. 436, fn. 12.) a. Eeonomic Impact ofEntry The first Penn Central factor is the economic impact of the governmentaction. Petitioner The Carolyn Nichols Revocable Living Trust broadly asserts that the nature and scope of the activities allowed by the Entry Order “will substantially interfere with the ... use and enjoymentof [the property], both with respect to the intensive farming activities and residential activities that take place on the property.” Thetrust arguedthat the activities allowed under the Entry Order will “substantially interfere” with the use and enjoyment of the property because: (1) the activities “could result in diminished production and diminished revenue” for those properties undercultivation; (2) Department’s presence on the properties will present a substantial safety problem; (3) the need to escort Department personnel will result in employees of the owners being diverted from their work; and (4) Department’s vehicles will degrade the roads. However, as previously detailed, the Entry Order contains limitations designed to ‘minimize any detrimenttofarming. It limits the times and days ofentry, does not allow entry from October | and February 25 on land used for hunting, and does not allow inspections within 100 feet of an inhabited residence. The Departmentis required to pay for any damagearising out of its activities, and to repair any damage to roadways and trails. Petitioner Property Reserve, Inc. (PRI) claims that providing access on demand to Departmentwill disrupt irrigation and potentially damage crops. PRI asserts that daily access to checktraps will significantly disrupt fertilization and pesticides, potentially causing significant damage to crops. PRI claims that the installation of posts, stakes, and traps could cause destruction of the crops at and between the stakes. PRI also argues traps could damage harvesting equipment. PRI pointsto the possibility of theft and 7 vandalism, of infecting Irvestock and workers with contagious diseases, and of damaged fences leading to the escapeof livestock. This is sheer speculation. The Entry Orderstrictly limits the time of year that the Department may accessplanted areas, provides that Department personnel will not unreasonably interfere with operations on the properties, provides that the Department assumesthe risk of exposure to pesticides, bans vehicles and equipmentin planted areas, and directs that markers and other objects be placed in nonplanted areas. Given the comprehensive limitations on the Department’s activities set forth in the Entry Order, PRI’s contentions that the Entry Order will cause harm to its property and to its workers, crops, andlivestockis merely speculative, and is insufficient to establish an unconstitutional taking. In applying the first Penn Central factor, the question we address is not whether the governmental action will inconvenience the owner, or whetherthe action will cause damage or economic loss. We examine whether, considering the owners’ general use of the property, the action will unreasonably impair the value or use of the property. (PruneYard Shopping Center v. Robins (1980) 447 U.S. 74, 83 [64 L.Ed.2d 741, 753]; Shaw v. County ofSanta Cruz, supra, 170 Cal.App.4th at p. 272.) We ask “whetherthe interference with [the] property is of such a magnitude that ‘there must be an exercise of eminent domain and compensation to sustain [it].’” (Penn Central, supra, 438 U.S. at p. 136.) There is no evidence in the record that the activities allowed under the Entry Order will destroy or even impair the fair market value of the properties. There is no evidence that the allowed activities are so invasive that they will make the business operations of the owners “commercially impracticable.” (Keystone Coal Association v. DeBenedictis (1987) 480 U.S. 470, 493, 495-496 [94 L.Ed.2d 493, 472, 495].) On the contrary, the conditions placed by the Entry Order on the activities allowed and the manner in which 18 they may be conducted, assures that the business conducted on the properties will be minimally affected. b. Interference With Investment-backed Expectations The second Penn Centralfactor is the extent to which the Department’s actions will interfere with the Owners’ distinct investment-backed expectations. The activities permitted by the Entry Order will not change the landowners’ reasonable expectations in the use of the property. There is no evidencethat the allowed actions will result in the Owners’ inability to use the property as expected, that it will render the property “wholly useless” or result in a “complete destruction” of the Owners’ rights in the property. (Penn Central, supra, 438 U.S, at p. 127-128.) c. Character ofGovernment Action The final Penn Central factor is the character of the government action. (Penn Central, supra, 438 U.S.at p. 124.) While Penn Centralindicated that a physical invasion ofproperty is morelikely to constitute a taking, the Supreme Court more recently madeit clear in Loretto that not every physical invasion is a taking. (Loretto, supra, 458 U.S.at p. 436, fn. 12.) Here, because the parcels are relatively large in size and there are numerousrestrictions put in place by the Entry Order forthe protection of . the property owners,the entries allowed are not particularly intrusive. The entries are short in duration, the numberofpersonnel allowed on the propertyis limited, the types of activity allowed will notsignificantly disrupt the normal use of the property by the Owners, the Department’s access is not exclusive, the activities will not oust the Owners of possession, and the allowedactivities are so limited as to be unlikely to damage the property. The Owners will receive compensation for any damage that does occur. d. Arkansas Game Factors Although the intentional character of the invasion weighsin favor of a taking, not every intentional invasion is a taking, and in this case the temporary nature of the invasion weighs heavily in favor of finding no taking. As indicated, over a one-year 19 period the entry would last 25 days on the smallest parcels, and 66 days on the largest parcels, No recurring entry is allowed. Thus, after the Department has completed its allotted time, no further entries will occur. Based on the Penn Central and Arkansas Gamefactors, the activities allowed pursuant to the Entry Order do not constitute a taking. They will not unreasonably impair the value or use ofthe property, they will not destroy the investment-backed expectations ofthe owners, and they have been carefully restricted to be noninvasive, short in’ duration, and to cause aslittle damage to property as possible. 2. The Denial Orderfor Geological Testing The majority opinion reasonsthat the geological activities on 35 of 240 properties ‘will work a taking “per se” because they are a permanent physical occupation by the State that will destroy the landowners’ right to possess, use, and dispose of the property. (Maj. opn. ante, at p. 13.) This faulty premise leads to an incorrect conclusion, The State’s occupation of the property is not permanentiri the sense that the cables and boxes in Loretto, supra, 458 U.S. 419 were permanent. In that case the cable company owned the cables and boxes, had the right to occupy the space needed for the cables and boxes, and presumably the right to repeated entries to maintain the installations. It was this permanent, exclusive appropriation of property to the condemnor, howeversmall, that characterized the categorical taking. Here, by contrast, the grout left behind by the testing does not give rise to a continuing right on behalf of the State to enter the property, and the State maintains no interest in the columnsofgrout left behind. Additionally, the grout columnsare not hard, like concrete, but are of a consistency that may be shaved with a pocket knife, similar to material that would be naturally occurring underground, Consequently, it is incorrect to say that these underground tubes will destroy the Owners’ right to possess, use, or dispose of the property. The Owners retain the right to possess and use the property, and because the _grout is designed to be a substitute for the removeddirt, no evidence has been offered 20 that the tubes of grout will inany way impair the use of the property. On the contrary, the grout will serve to protect the watertable. This is not a permanent occupation by the State, but is a temporary physical. invasion short of an occupation that will leave a permanent residual impact, albeit a benign impact. This is not a per se taking. Rather, it requires an ad hoc factual determination to evaluate whetherit constitutes a taking. Becausethetrial court denied the Department’s request for geological testing, there is no order delineating the scope of the allowed activities. We must rely on the Department’s petition and other evidence describing the proposed activities to delineate the scope of the proposed entry. | The geologicalactivities that Department sought to employ consisted of borings with an auger and/or mudrotary drill, soils sampling using a Standard Penetrometertest (SPT) barrel and Shelby tubes, CPT, and geophysical borings and surveysto obtain, study and examinesoil and groundwater samples and to determine groundwater depth. The Department requested entry onto 35 parcels for the purpose of geological testing, only 10 of which would involve drilling more than one hole. On seven of the parcels, the Department proposed to conduct CPT only. On the other parcels, the Department proposed either drilling alone, or drilling and CPT. As the majority notes, the Departmentplans to leave nine CPT anddrill holes on one parcel, the most holes for any one parcel. The record is silent, however, on how large this one parcel is. We do know that the parcel is owned by The Carolyn Nichols Revocable Living Trust, that the property owned by the trust would be subjected to 13 holes intotal, and that the trust ownsjust over 7,136 acres of property involved in this action. On such a large amount of land, even 13 holes seems a minorintrusion. The CPT involves a rod that is pushed into the ground. The rod is removed, and the hole is filled with grout. The CPT activities require a CPT truck, a support truck, a | geologist’s truck, and an environmental scientist’s vehicle. Up to four personnel were 21 required. There would also be a needfor limited, transitory access for regulatory personnel from the Department of Fish and Wildlife and the United States Fish and Wildlife Service, as well as Department personnel to deliver supplies. One day of entry (7:00 a.m. to 7:00 p.m.) would be required for each CPTsite. Soil boring activities required 11 days per parcel. Each soil boring required a drilling rig, a support vehicle, a geologist’s truck, an environmental scientist’s vehicle, a portable toilet, 55-gallon drums for the removal of soils, and possibly a forklift. The borings would be from 3.7 to 8 inches in diameter. The depth would be from 5 to 205 feet. The drills are vehicle mounted and powered by a commercial or industrial engine. The soil samples obtained would be removedfortesting. Upon completion of the testing, the bore holes would be filled with bentonite grout. The grout prevents cross-contamination. A properly sealed hole cannot contaminate a nearby drinking well or agricultural well. The grout is not as hard as cement. It can be shaved with a pocket knife. The grout stops approximately twofeet below the surface and the topis filled with dirt, so that future planting is not affected. Each boring would require a five-person crew. Limited, transitory access would ' be required as for CPT testing. For parcels requiring two or more soil borings (10 of the total 35 parcels), two crews would work simultaneously. Before any underground work, the Department would contact the Underground Service Alert to determine the location of - undergroundutilities. There would be an environmental scientist and a cultural scientist on hand to prevent harm to endangered species or culturalartifacts. The Departmenttries to accommodate the landowner’s preferences as to location of the exploration, and can work around harvest times, but the location must be within 200 feet of the proposed alignment of the canal or tunnel. The Departmentalsotries to have a representative from the reclamation district review the site, in case there are concerns about the levees. However, the Department stated it would notdrill on a levee orat the toe of a levee. 22 As with the environmental testing, Owners made few claims about the impact the specific testing would have on their property interests. Owners presented the following claims in response to the proposed geological testing. First, the Tsakopoulos Family Trust declared that its property was actively farmed, and that it contained gas pipelines and pumpstations, as well as undergroundirrigation lines. The trust objected to the possibility that it would receive no notice of the entry, and that it would have no control over the location of the drilling. However, the Department indicated that it would notify Owners ofpreliminary entries, and consult with Owners regarding the location of the geological sites. The Department submitted aerial views of the properties with the location of the proposedtest sites marked on each. Second, PRI submitted a declaration stating that every pit or bore hole located in a field will “necessarily” destroy crops, and will force harvesting equipment to | - circumnavigate the drilling equipment. It claimed the excavations and borings could cause contamination ofthe soil and groundwater or induce seepage from adjoining water sources, It claimed that borings could weaken levees and create seepage and levee failure, and impair the operation of toe drains and drainage canals. This is merely speculation, as the Departmenttestified that it would accommodate the landowner’s preferencesas to the location ofthe drilling, and the procedures for sealing the drill holes would prevent contamination or weakening ofthe levees. Third, at the hearing, Owners presented the testimony of an engineer, whostated he knew of two instances in the Delta where boils had occurred after borings had been drilledinto the floor of an island adjoining a levee. A boil is uncontrolled seepage through a levee. The borings were not performed by the Department, but by an undergroundoil reserve company. The boils occurred because the holes were improperly sealed. The sealing process proposed by the Department is the correct method. One of the two boils resulting from the oi] company’s drilling was later sealed using the method proposed by the Department, and no further problems occurred. 23 a. Economic Impact ofEntry Asin the case of the environmental testing, Owners made only the above claims as to the testing’s impact and any claim that the drilling would have an economic impact on the properties is merely speculativein light of testimony that the Department would work with landowners to determine the location and time of drilling, and would not permanently disturb the surface of property that is primarily used for agriculture and hunting purposes. b. Interference With Investment-backed Expectations Owners made no claims that the drilling would interfere with their investment-backed expectations. ce. Character ofGovernment Action As with the environmental testing, the entries would constitute a physical invasion, but they would be short in duration, would be designed to avoid significant disruption of the use of the property, and would not oust Owners ofpossession. Any planned damageto the property would be de minimis. The drilling would not leave holes in the ground. The grout material used to fill the holes would not disturb crops because the top two feet would consist of soil. When completed, the drilling would leave no visible sign of its occurrence. d. Arkansas Game Factors As with the environmentaltests, the brevity of the entries for geological testing is such that it outweighs the intentional nature ofthe entry. Based on the Penn Central and Arkansas Gamefactors, Owners have not presented evidencethat the geological testing will rise to the level of a compensable taking, thus the entry statutes would not be unconstitutional as applied to allow geological testing. 24 Il The Entry Statutes Satisfy the Constitution Even Where They Allow a Taking Owners have not shownthat the entry statutes are unconstitutional on their face, nor are they unconstitutional as applied becausethe face of the order,fairly read, does not proposea taking. Nonetheless, even if the order proposed a taking,the entry statutes would not allow a taking in violation of the federal or state Constitutions. The majority states that the State has effectively conceded this argument, but it has long been the rule that the courts are not boundby the concessionsof a party’s attorney, because it is the court’s duty “to declare the law as it is, and not as either appellant or respondent may assumeit to be.” (Bradley v, Clarke (1901) 133 Cal. 196, 210; People v. Sanders (2012) 55 Cal.4th 731, 740, fn. 9.) The Fifth Amendinent to the United States Constitution provides: “nor shall private property be taken for public use, without just compensation.” Article I, section 19, subdivision (a) providesfirst that, “[p]rivate property may be taken or damaged for a public use and only when just compensation, ascertained by a jury unless waived, has first been paid to, or into court for, the owner.” The second sentence of subdivision (a) is an exception to this general rule. “The Legislature may provide for possession by the condemnorfollowing commencement of eminent domain proceedings upon deposit in court and prompt release to the owner of money determined by the court to be the probable amountofjust compensation.” The exception relates to the timing of the condemnor’s possession, thus the exception modifies the timing requirementofthefirst sentence,i.e., that property may not be entered or possessed before just compensation has been ascertained by a jury unless waived and the probable amount of compensationis paid to the owneror into court. | Because the California Constitution contains more stringent requirements, I look to those to determine whetherthe entry statutes may authorize a taking. Since the entry 25 statutes do not require a jury trial before the condemnortakes possession,to satisfy the second sentence they must: (1) provide for the deposit in court and promptrelease to the ownerof an amount determined by the court to be the probable amountofjust compensation; and (2) qualify as an eminent domain proceeding, if they are to satisfy subdivision (a) of article I, section 19. The entry statutes meet both of these requisites. A, Just Compensation The entry statutes contain a procedure by which the court determines “the probable amount of compensationto be paid to the owner of the property for the [anticipated] actual damageto the property and interference with its possession and use” and requires that the amount determined be deposited with the court. (§ 1245.030, subd. (b).) Because section 1245.050 gives the court the discretion to disburse the money deposited and to modify the amount as necessary, there is amechanism for the prompt release of the money. | Ownersargue, and the majority agrees, that payment for actual damageto the property and for interference with its possession anduseis not the equivalent ofjust compensation. They argue that just compensation must also include paymentfor the loss of their quiet use and enjoyment ofthe property. I disagree. Owners arguethe tests will amount to a taking in the nature of a temporary easement. “Ordinarily, fair compensation for a temporary possession of a business enterprise is the reasonable value of the property’s use.” (United States v. Pewee Coal Co, (1951) 341 U.S. 114, 117 [95 L.Ed. 809, 813].) This is precisely the measure ofjust compensation provided in the entry statutes for the temporary use of the property to conducttests and surveys. Owners do not say in what respect paymentforthe loss of quiet use and enjoyment differs from paymentfor interference with the possession and use of the properties, and I do not discern a difference. By fully compensating the ownerforactual damage and loss of possession and use, the owneris fully compensated as if the property had been taken temporarily for that purpose and the owner had received just 26 compensation. There is no additional measure ofthe value ofjust compensation when the taking involves a temporary nonexclusive entry for test purposes. The majority insists that the entry statutes do not provide for the acquisition of a property interest because the value determination made by thetrial court is for damage andloss of use, rather than fair market value in the traditional sense. (Maj. opn. ante, at p. 26.) This is a curious argument for the majority to make since the condemnation statute is limited to “interest[s] in property.” (§ 1240.110) Again, the type oftemporary invasion contemplated by the entry statutes is not readily susceptible to the type of appraisal used to make a standard fair market value determination. Instead, in the case of a temporary, nonexclusive entry, the fair market value is measured by the damageto and loss of use of the property. Thus, the entry statutes do provide for the payment and acquisition of this type of interest in property. Ownersare correct in recognizing that a taking for preliminary testing and a taking | prior to the completion of condemnation proceedings (a quick-take) implicate different measures of value. An entry for the purpose of testing may cause interference with the use of or incidental damageto the property, while the value of acquiring the wholeofthe property is measured by its fair market value. Owners do not detail an inadequacy in the dollar amount of compensation allowed by the trial court, and refuse to recognize that the measure of compensation for preliminary testing provided undertheentry statutes is the equivalent of constitutional just compensation. Thus, the essence of the Owners’ position is simply that the entries are not innocuous, and are therefore unconstitutional. B. Entry Statutes are an Eminent Domain Proceeding The entry statutes are contained within the Eminent Domain Law and function as an eminent domain proceeding for purposes of the state Constitution. The second sentence ofarticle I, section 19 of the California Constitution states that the Legislature may provide a mechanism by which a condemnor maytake possession of the property 27 after commencing an eminent domain proceeding. It does riot dictate the specific procedure, let alone require a complaint, other than to require the court to determine the probable amount ofjust compensation and to require its deposit and promptrelease to the owner. The entry statutes are, in effect, a shortened eminent domain proceeding for the limited purpose of allowing precondemnationtests, 1. Entry Statutes are Part ofthe Eminent Domain Statutes Section 1230.020 states: “Except as otherwise specifically provided by statute, the power of eminent domain may be exercised only as providedin this title.” “[This title” is title 7, the Eminent Domain Law. The entry statutes are found in title 7 of part 3 of the Code of Civil Procedure. They specifically provide for the exercise of the powerof eminent domain for a limited purpose. As discussed in section 3 below, the Legislature has shown by its amendmentofthe entry statutes and thelegislative history accompanying the amendments thatit intended the entry statutes as a type of eminent domain proceedingthat applies in the narrow circumstances described therein. 2. Entry Statutes Provide Just Compensation The entry statutes today bearlittle resemblance to former section 1242,in effect when Jacobsen was decided. There are now multiple sections setting forth a detailed procedure for preliminary examinations and payment for damage, in contrastto former section 1242 as analyzed by Jacobsen, which contained but one section and two sentences.” 7 In Jacobsen “section 1242 of the Code of Civil Procedure, ... [read] as follows: ‘Inall cases where land is required for public use, the state, or its agents in charge ofsuch use, may survey and locate the same; but it must be located in the manner which will be most compatible with the greatest public good and the least private injury, and subjectto the provisions of section twelve hundred and forty-seven. Thestate, or its agents in charge of such public use, may enter upon the land and make examinations, surveys, and maps thereof, and such entry shall constitute no cause of action in favor ofthe owners of the 28 The entry statutes now provide a mechanism to pay just compensation to the landowner. In the absence of the owner’s agreement, the condemnoris required to obtain a court order that establishes the probable amount of compensation and requires such amount to be deposited with the court. (§ 1245.030.) The majority reasons that the entry statutes do not protect an owner’s constitutional rights because they do not expressly provide for a hearing on the petition.® But the entry statutes require notice to be given the owner and an order issued by the court. No purpose would be served by notifying the owner unless to allow the owner an opportunity to be heard. Moreover, a hearing would be required by due process of law and to the extent lack of a hearing is a constitutional impediment, we may reform or rewrite the statute to preserve it from invalidation. (in re Marriage ofBurkle (2006) 135 Cal.App.4th 1045, 1068.) “[A] court may reform--i.e., ‘rewrite’-- a statute in orderto preserve it against invalidation under the Constitution, when we can say with confidence that (i) it is possible to reform the statute in a manner that closely effectuates policy judgments clearly articulated by the enacting body, and (ii) the enacting body would have preferred the reformed construction to invalidation of the statute.” (Kopp v. Fair Pol. Practices Com. (1995) 11 Cal.4th 607, 660-661.) Since notice and an opportunity to be heard are basic due process notions before one’s interests may be adversely affected, we may say with confidence that the Legislature intended that an ownerwill be afforded a hearing underthe entry statutes. The entry statutes contain a mechanismfor increasing the deposited amount, . wherenecessary, and for disbursing the amount deposited. (§§ 1245.040-1245.060.) 2land, exceptfor injuries resulting from negligence, wantonness, or malice.’ ” (Jacobsen, supra, 192 Cal. at pp. 328-329.) 8 I note that the second sentenceofarticle 1, section 19, also does not expressly require a hearing at which the just compensation for the entry is determined. 29 Subdivision (a) of section 1245.060 provides that “the owner may recoverfor such damageorinterference in a civil action... .” And subdivision (d) specifically provides that the owner retains any other remedy it may have for the damaging of the property. These payment provisions comply with the federal Constitution, which provides merely: “nor shall private property be taken for public use, without just compensation.” (U.S. Const., 5th Amend.) “[T]he Fifth Amendmentdoes not require that just compensation be paid in advance of or even contemporaneously with the taking. & 66[Citation.] All that is required is the existence of a “reasonable, certain and adequate provision for obtaining compensation” ’ at the time of the taking. [Citations.] ‘Ifthe government has provided an adequate process for obtaining compensation, and if resort to that process “yield[s] just compensation,” then the property owner“has no claim against the Government”for a taking.’ [Citations.]” (Preseault v. ICC (1990) 494 U.S. 1, 11 [108 L.Ed.2d 1, 13].) The entry statutes also comply with the additional requirementsofthe state Constitution, that just compensation be determined by the court, deposited in court, and promptly released to the owner. The taking authorized by the entry statutes is a particular, narrow type of taking. It is temporary and for the limited purpose of conducting such tests as are “reasonably related to acquisition or use of the property” by the condemnor. (§ 1245.010.) 3. The Legislature Intended that the Entry Statutes Function as Eminent Domain Proceedings The history of amendments to the entry statutes showsthat the Legislature intendedthe statutes would comply with the state constitutional provisions regarding the taking of private property for public use. In 1959, the Legislature added former section 1242.5 to the Code of Civil Procedure. It applied specifically to precondemnationtesting of land to determine its suitability for reservoir purposes, the type of project at issue in 30 Jacobsen. (Stats. 1959, ch. 1865, § 1, pp. 4423-4424.)? Similarto the current entry statutes, it required the condemnorto obtain a court order for the explorations if no consent could be obtained from the owner. (/bid.) It directed the trial court to ascertain the appropriateness and good faith of the condemnor’s purpose in entering the property, and to require the condemnorto deposit security with the court for any damageresulting from the entry. (/bid.) In 1969,the California Law Revision Commission recommended changes to former sections 1242 and 1242.5. The Commission described the provisions of former section 1242 as granting a privilege to enter property to obtain property descriptions and other data necessary for a condemnation proceeding. (Recommendation Relating to Sovereign Immunity (Sept. 1969) 9 Cal. Law Revision Com, Rep, (1969) p. 811.) The California Law Revision Commission explained that, as originally adopted, former section 1242 allowed a condemnorto enter land to conduct tests without any formalities such as notice or a court order. (Recommendation Relating to Sovereign Immunity (Sept. 1969) 9 Cal. Law Revision Com. Rep. (1969) p. 811.) The California Law Revision Commissionstated that the early decisions justifying the entry privilege were “insufficient in cases where the entry and activities would be considered a ‘taking’ or ‘damaging’ ofproperty within the meaning of [former] Section 14 of Article I of the California Constitution.” (/bid.) The California Law Revision Commission noted the holding in Jacobsen, then stated that the holding in Jacobsen was“partially overcome,” as to land condemnedfor reservoir purposes, by the special statutory procedure in former section 1242.5, which was limited to land condemned for reservoir purposes. (Recommendation Relating to Sovereign Immunity Gept. 1969) 9 Cal. Law Revision Com. Rep.(1969) pp. 811-812.) 9 I would take note of the Department’s request to take judicial notice ofthe legislative history. 31 Following the California Law Revision Commission report, in 1970, former section 1242.5 was amended to extendits application to entries for testing incident to any purpose for which property could be acquired by condemnation. (Stats. 1970, ch. 662, § 3, pp. 1289-1290.) Senator Alfred Song, the sponsorofthe legislation amending former section 1242.5 expressed in his letter of support to Governor Reagan,that the amendmentto enlarge the scope ofthe statute was desirable because, “[c]ondemnation of land that later turns out not to be suitable for the use for which it is condemned benefits neitherthe public entity nor the original property owner. The amendmentof Section 1242.5 provides a procedure that permits the making ofthe tests necessary to determine whether the property is suitable before a condemnation action is commenced.” (Sen. Song, sponsor ofSen. Bill No. 91 (1970 Reg.Sess.), letter to Governor, July 29, 1970.) Senator Song also madeclearin his letter to the Governor that former section 1242.5 would apply only wherethe entry was likely to cause compensable damage. (Sen. Song, sponsorof Sen. Bill No. 91 (1970 Reg. Sess.), letter to Governor, July 29, 1970.) Conversely, an entry allowed under Jacobsen,i.e., an innocuous entry and superficial examination, was not likely to cause compensable damage, and there.was a recognition that such an entry could be had under former section 1242 without a preliminary court order or system for assuring compensation to the owner. (Recommendation Relating to Sovereign Immunity (Sept. 1969) 9 Cal. Law Revision Com. Rep. (1969) p. 813.) The California Law Revision Commission said: “There are many types of entries and investigations that can. be made, and should be made, without any significant interference with the property or the owner’s rights. In these cases, to require a preliminary court orderor to provide a system for assuring and assessing compensation would be unduly burdensomeas well as constitutionally unnecessary. Thus, in connection with Section 1242 of the Code of Civil Procedure,it seems reasonable to permit condemnors, without formalities, to enter and 32 survey property contemplated for public acquisition so long as the entry involves no likelihood of significant damage to the property or interference with the rights of the owner. .. . “In other cases, however, it may not be possible to obtain the owner’s consent through negotiation and the necessary exploration may involveactivities that present the likelihood of compensable damage, including the digging of excavations, drilling of test holes or borings, cutting of trees, clearing of land areas, moving ofearth, use of explosives, or employment of vehicles or mechanized equipment.” (Recommendation Relating to Sovereign Immunity (Sept. 1969) 9 Cal. Law Revision Com. Rep. (1969) pp. 813-814.) | The current entry statutes retain the distinction between innocuousentries and entries that cause damageto the property. Section 1245.020 provides that “[i]n any case in which the entry and activities .. . will subject the person having the power of eminent domain to Hability under Section 1245.060, before making such entry and undertaking such activities, the person shall secure” the owner’s written consent or a court order. Thus, where the entry and activities will not likely subject the person having the power of eminent domainto liability, no written consent or court order is necessary. Section 1245.060 relates to an entry that causes actual damage to or substantial interference with the possession or use of the property. For this reason, the entry statutes continue to allow entry without formalities for tests that do not cause actual damageor substantial interference, but require a court order or owner’s written consent pursuantto the entry statute procedures where the entry will cause such damage orinterference. Also in 1970, the Legislature enacted former Government Code section 816. It provided in relevant part: “{A] public entity is liable for actual damage to property or for substantial interference with the possession or use of property where such damageor 33 interference arises from an entry pursuant to Section 1242 or 1242.5 of the Code of Civil Procedure upon the property by the public entity to make ‘studies, surveys, examinations, tests, soundings, or appraisals or to engage in similaractivities.” (Stats. 1970, ch. 1099, § 3, p. 1957.) The substance ofthis provision is continued in current section 1245.060, subdivision (a). (See Cal. Law Revision Com. com., Deering’s Ann. Code Civ.Proc. (1981 ed.) foll. § 1245.060, p. 90.) The California Law Revision Commission comment to former Government Codesection 816 states that it was enactedto codify Jacobsen and to give assurance pursuant to the takings provision of the state Constitution that compensation would be paid for the taking or damaging ofproperty. (See Cal. Law Revision Com. com., Deering’s Ann. Gov. Code (1973 ed.) foll. § 816, p. 144.) The Floor statement supporting Senate Bill No. 94, which added Government Code section 816, and which was madea part of the record below, also madeclearthat thebill “codif[ied] the case law that a public entity is liable for actual damageto property or for substantial interference with the owner’s use or possession when public employeesenter upon the property to conduct tests to determine whether the property is suitable for acquisition for public use.” | This legislative history shows that the purpose of enacting the procedural, payment, andliability provisions of the entry statutes was to codify the holding in Jacobsen and comply with the constitutional provisions regarding the taking or damaging of property. It also shows a recognition of the need for a procedure that would comply with the constitutional requirements when the contemplated entry waslikely to damage property or substantially interfere with the owner’s possession. . “ “Ifa statute is susceptible oftwo constructions, one ofwhich will renderit constitutional and the other unconstitutional in whole or in part, or raise serious and doubtful constitutional questions, the court will adopt the construction which, without doing violence to the reasonable meaning of the language used, wil} renderit valid in its 34 entirety, or free from doubtas to its constitutionality, even though the other construction is equally reasonable. [Citations.] The basis ofthis rule is the presumption that the Legislature intended, notto violate the Constitution, but to enact a valid statute within the scopeofits constitutional powers.’ ” (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 509, quoting Miller v. Municipal Court (1943) 22 Cal.2d 818, 828.) The majority opinion eviscerates the entry statutes by effectively concluding that any entry that is not insignificant or innocuousconstitutes a taking. It holds that the entry procedures cannot be usedifthe entry will effect a taking, because such an entry does not comply with the requirements of the state Constitution. Jt makes noeffort to explain the authority given the Legislature byarticle I, section 19 to fashion an appropriate procedure in complying with its commands. It does not recognize that an entry that does not effect a taking because it does not cause actual damageto or substantial interference with the possession or use of the property is a privileged entry for which the condemnorneed not comply with any statutory procedure. (See Recommendation Relating to Sovereign Immunity (Sept. 1969) 9 Cal. Law Revision Com. Rep. (1969) pp. 81 1, 813.) An entry that is not a taking requires no procedure or court order, but a taking requires a condemnation proceeding, rendering the entry statutes entirely superfluous. This clearly wasnotthe purpose of the Legislature in enacting a procedure for preliminary testing which provides notice and payment to the owner and a procedure for ensuring that the testing is reasonably necessary, without obligating the condemnorto file a traditional condemnation proceeding. Themajority insists that an eminent domain statute, unlike other statutes, should not be accordedthe presumption of constitutionality. (Maj. opn. ante, at p. 16.) However,just becausea statute granting the power of eminent domain mustbestrictly construed, it does not follow that an eminent domain statute should not be accorded a presumption of constitutionality by the courts. The majority opinion selects the following quotation from Kenneth Mebane Ranches v. Superior Court (1992) 10 35 Cal.AppAth 276, 282-283 (Kenneth Mebane), cited in Burbank-Glendale-Pasadena Airport Authority v. Hensler (2000) 83 Cal.App.4th 556, 562 (Burbank-Glendale): “««