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

Real Party in Interest, Department of Water Resources, Reply Brief on the Merits

Cal.February 24, 2015

In the Supreme Court of the State of California Case No. 8217738 PROPERTY RESERVE,INC., Court of Appeal Defendant and Respondent, SanJoaquinCounty v. Case No. JCCP4594 STATE OF CALIFORNIA, BY AND THROUGH DEPARTMENT OF WATER RESOURCES, Plaintiff and Appellant. THE CAROLYN NICHOLS REVOCABLE CourtofAppeal LIVING TRUST,etc.,et al., San Joaquin Coun Defendant and Respondent, Case No. JCCP4594 Vv. DEPARTMENT OF WATER RESOURCES, Plaintiff and Appellant. COORDINATED PROCEEDINGS SPECIAL Courtof Appeal TITLE (RULE3.550) San Joaquin County DEPARTMENT OF WATER RESOURCES Case NowJCCP4594 After a Decision of the Court of Appeal, Third Appellate District, San Joaquin Superior Court Case No. JCCP 4594, Honorable John P. Farrell, Judge REPLY TO ANSWERSTO OPENING BRIEF KAMALAD. HARRIS = Attorney General of California FEB 24 2015 KRISTIN G. HOGUE iment te RA ea: dee PME Senior Assistant Attorney General 1". MeGuire Clerk ‘ALBERTO L. GONZALEZ ens Supervising Deputy Attorney General JAMES C. PHILLIPS, SBN 121848 MICHAEL P. CAYABAN,SBN 179252 NELIN. PALMA,SBN 203374 Deputy Attorneys General 1300 I Street, Sacramento, CA 95814 Telephone: (916) 445-2482 Email: Neli.Palma@doj.ca.gov Attorneysfor Appellant and Cross- RespondentState, by and through the Department of Water Resources TABLE OF CONTENTS Page INTRODUCTION AND SUMMARY OF ARGUMENT........ccccsssseseesees ] ARGUMENT000iccccecsssssesesseseestecssseseesscscssvecsssecsesacavssseccassuaesesasseeusaacsens 5 I. THE STATE’S PROPOSED TEMPORARYENTRIES TO CONDUCT PRECONDEMNATION TESTING ARE NOT TAKINGS......eecccsesssesscesstececsecessscsscssssssscaseasveneeseessesaacsavsessacenecs 5 A. The Environmental Activities Authorized by the Entry Order Are Not a Taking... ccccccsccceeseseseeeees 5 1. Underthe test set forth in Penn Central and Arkansas Game,the entries are not a taKINg oo.eeeccesecseseseesesscssecsscssecsseeseesseecenees 5 2. The landownersincorrectly argue that the environmentalactivities constitute Categorical takings .........cccesccssseesssesceccesterenees 9 a. . The characterization of the environmental entries as “temporary easements” does not make them categorical takings.............. 9 b. The landowners’ argumentthatall non-innocuousphysical invasions are per se takings is incorrect.............. 12 B. The Proposed Geological Activities Are Not a Taking... eeeeeeessesseesesessescessessscsessecsseerseestecssesuces 16 1. The geological activities are not a Categorical taking .......eesesecesescesssseseseseaees 16 2. The geologicalactivities are not takings under Penn Central and Arkansas Game....... 20 Il. THE ENTRY STATUTES PROVIDE CONSTITUTIONALLY VALID EMINENT DOMAIN PROCEEDINGS TO ACCOMPLISH THE PROPOSED ACTIVITIES EVENIF THEY INVOLVE TAKINGS........ccceccesscceeseccssececesesessceasecsesecees 21 A. The Entry Statutes Are Entitled to a Presumption of Constitutionality......00.0.ccccwall TABLE OF CONTENTS (continued) Page B. The Entry Statutes Comply with the Just Compensation Clause ..........ccccesceseessesssessesesetessesenses 23 1. An entry petition is an eminent domain PLOCCEMING o.oo. ee eeceecessesseeseeesssecesseseeecseteeneeass 23 2. The entry statutes provide for the deposit of an amountdetermined by the court to be the probable compensation................00024 3. The statutes provide for prompt release Of deposited funds oceeeseceseeteeseteesereeeees 26 4. The entry statutes allow the ownerto obtain a jury trial to determine COMPENSATION ........eeeeceeceesseeesssssseeseetecseesessseaes 27 C, Public Policy Supports the State’s Continued Ability to Use the Entry Statutes as Intended by the Legislature .........ccccccescssesscsseceesecsssccscseteseesesseeees 28 CONCLUSION|...ceceseesecseeeenreeeaeeaeeaeeaeesessssecseesssesesesenessessestsecnenees 29 li TABLE OF AUTHORITIES Page CASES Acco Contractors, Inc. v. McNamara & Peepe Lumber Co. (1976) 63 CalApp.3d 292... ccccesesnecscesseseessneesseesneeessareseeseeeeseess 19 Albers v. County ofLos Angeles (1965) 62 Cal.2d 250.00... cecceseetseeeteees 8 Allegretti & Co. v. County ofImperial (2006) 138 Cal.App.4th 1261...eeeeccseseseeeeceeceereseresseseeeasenenees 13 Andrus v. Allard (1979) 444 U.S. 51 oii cccecessesesseeesseseseseseeenslasseadeereeees 7 | Arkansas Game & Fish Com. v. United States (2012) US. __, 133 S.Ct. SUeeeeceneceteeeneeeesenaes passim Boise Cascade Corp. v. United States . (Fed. Cir. 2002) 296 F.3d 1339eceseseseseeeeeeeneeeteseaeeeaeeeeeers 14,17 Burlington Northern and Santa Fe Ry. v. Chaulk (2001) 262 Neb. 235 w.eceeeecceccesecssesseeteceseeeeerserenesseetessaesearcertereeeeas 19 City ofGilroy v. Filice (1963) 221 Cal.App.2d 259.0... eeeeseeeeeeee 10, 24 City ofLos Angeles v. Fiske (1953) 117 Cal.App.2d 167... ccccesessesseeseeesseceeeeenesseeeseeeseeeseeeeees 24 City ofLos Angeles v. Ricards (1973) 10 Cal.3d 385... ccesceseeseceeceeteeeeceteresaccsaeescestenenecensaees 10, 24 City ofNeedles v. Griswold (1992) 6 CalApp.4th 1881cccccsssseeeereecsnerseeseeeaeceeereetatess 16 City ofSan Diego v. Neumann (1993) 6 Cal.4th 738 oo... cceeeseseeeeeeeeee 27 County ofKane v. Elmhurst National Bank (1982) 111 TLApp.3d 292...ceccessesceeeeeeenersecenesssereaeeenseees 19, 20 County ofSan Luis Obispo v. Ranchita Cattle Co. (1971) 16 Cal.App.3d 383...ceeeeeeeeesseseseeseaesesesteeeaeseeesass 5,11, 16 ill TABLE OF AUTHORITIES (continued) Page» Cwynar v. San Francisco (2001) 90 Cal.App.4th 637 ........ccceseseeseeseees 8 Department ofPublic Works v. Ayon (1960) 54 Cal.2d 217... eeccssceccesecteceteeseeeteeeccsessesseeseraeesasenenees 26, 28 Fox v. Western Pacific Railroad Co. (1867) 31 Cal. 538cccceccesececseseeteeceeseetsseseeeeseeceseaesessesseeseesseees 11. Hendler v. United States (Fed. Cir. 1991) 952 F.2d 1364...passim Jacobsen vy. Superior Court ofSonoma County (1923) 192 Cal. 319.eeceeeceeeeseecnecenseeeesseesseeseessseeeessneenneens passim Juliano v. Montgomery-OtsegoSchoharie Solid Waste Management ManagementAuthority . (N.D.N.Y. 1997) 983 F.Supp. 319 0... eceesesceesessreesssseeeeees 14, 17, 18 Kaiser Aetna v. United States (1979) 444 U.S. 164,180 oo...cece 8 Kavanau v. Santa Monica Rent Control Bd. (1997) 16 Cal.4th 761 eeeeeeseecsececeesecenessseeesacseesssneesesessserees 12, 13 Kenneth Mebane Ranches v. Superior Court (1992) 10 CalApp.4th 276.0...eecsesecssseeesecesestesseeeeessnesensseens 22-23 Kimball Laundry Co. v. United States (1949) 338 U.S. 1 vee eceeeeeees 25 Lockaway Storagev. County ofAlameda (2013) 216 CalApp.4th 161... ccsccscecsreeseeesessseesesessessssnsenteesaees 6 Loretto v. Teleprompter Manhattan CATVCorp. (1982) 458 U.S. 419eccesnesseeetseeeesneecenessneseeesseeeeeseseaeeanees passim Lucas v. South Carolina Coastal Council (1992) 505 U.S. 1003 oo.eeeeeeeseeteeceseeseteceessecseesseeeeeeseneeseestsesenes 10 Melvindale v. Trenton Warehouse Co. (1993) 201 Mich.App. 497 ooo... eeccecccssceeeeeeseeeeesteceaeeeesesseeseeesssaeenees 20 iv TABLE OF AUTHORITIES (continued) Page Metropolitan Water Dist. ofSouthern California v. Campus Crusade for Christ (2007) 41 Cal.4th 954 ooccecccccsececnseceeseeaeesaeeeesesaeesseeeatenees 25, 26 Missouri Highway Transportation Commission v. Eilers (1987) 729 S.W.2d. 471 oo. ceccecccccccsceeeceeceseeeeeevarceaceceteeeeeeateneeats 19, 20 Mt. San Jacinto Community College Dist. v. Superior Court (2007) 40 Cal.4th 648 ooocecceseceeeseesseeeecaecereseeeeesseesseatens passim Northglenn v. Grynberg (Colo. 1993) 846 P.2d 175.0... eesseteeeeteeeeeee 20 Orange County Flood Control Dist. v. Sunny Crest Dairy, Inc. (1978) 77 Cal.App.3d 742.0... cceccessccsecseteeseeeeeeeessncecercaecneetseeseeesaeens 26 Orange Water & Sewer Authority v. Estate ofArmstrong (1977) 34 N.C.App. 162.0... cececccecceeseeseneseeeeeesesneeeeaeeceeeeneeateaeenneees 20 Pacific Tel. & Tel. Co. v. Eshelman (1913) 166 Cal. 640... 8 Penn Central Transp. Co. v. New York City (1978) 438 OLS. 104eececcecesecseeeeteeseeeseeeenereeeceseneeenseesneeaees passim PruneYard Shopping Ctr. v. Robins (1980) 447 OLS. 74 oe eeccececssessseeseecseceeeseceeeeesetieseeeeenseeseaeseeeneees 7, 8, 13 Puryear v. Red River Authority ofTexas (Tex. 1964) 383 S.W.2d 818 ooocceeeseececceeeseesneeeeeceeseeeeaeeaesateneenes 20 Robinson v. Southern California Railway Co. (1900) 129 Call. 8... ecceccnessseeseecsnesseeseteneceessecesseessaeeceeeeeteaeeeeeneenes 11 San Joaquin Drainage District v. Goehring (1970) 13 CalApp.3d 58.0... ccscsesseceeteeeteeeseeeseeseeeeseesseeseteeeeeeees 25 Santa Monica Beach, Ltd. v. Superior Court (1999) 19 Cal4th 952 ooo ececccseecssececesceeteecsseesecaceeeceseerseeseetaeeeates 22 Skreden v. Superior Court (1975) 54 Cal.App.3d 114oeerent 23 TABLE OF AUTHORITIES (continued) Page Southern California Gas Co. v. Wolfskill Co. (1963) 212 Cal.App.2d 882.00... ecccccccsssssessssesesessseessaetesssseseeersesaes 11 State by Waste ManagementBd. v. Bruesehoff (Minn. App. 1984) 343 N.W.2d 292 ooccsccsseetscessseeesesseeessseecees 11 Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency (2002) 535 U.S. 302...eevateeesneeessensesaeeteeesecesenceeeeeaeestenens 13, 15 Thunderburk v. United Food & Com. Workers’ Union (2001) 92 CalApp.4th 1332.0... eccccccsscssssessseeeceesssseseseesssssseees 18 United States v. General Motors (1945) 323 US. 373... cccceeeeees 13, 25 United States v. Petty Motor (1946) 327 US. 372 ..ecccccccccsesecessessrseeseees 13 United States v. Pewee Coal (1951) 341 US. 114.eects13 STATUTES Code of Civil Procedure § 1235140eeceecceeeeseeceneceeeeaeecsesesseseceesaeeesentesesseeeseesssessenessees 6 § LQ4SO10eececnecnesteececeesecteeeeeeeseaeseacescessesseessateeseesaseecsesesseeeace 9 §§ 1245.010 — 1245060 00...ce cececeessnsteeseseeseessressaneeeeeseeenesetsucesssusss 1 § 1245.030, Subd. (D)...eee eecececeseeeseeeeeesseesenesseeesessneeeseseeassesesseenens 24 § 1245.040eeececcscenecssceessecsseesenseessseeseseneeseeensveeeeeeeeeeeseceeseeseeees 24 § 1245060oecececscsscessceceeceeseeeetscecesecseneeseessesessenseeeeeseeeeness 9, 24, 26 § 1245.060, Subd. (8)... cee eeeecceeceseessetseseseesesseceeeesteessseecseeeseesssssas 28 § 1245.060, SUB. (D)ooeeeecceesseeeeeeensesesesseeceeessasteeesatesesessersseceees 6 § D4SSeeeeeesceseeseeseteeeceaeesecsaeessaeeaneassenecsesseesseesesesseeesasseneersaeses 21 § L250LO.eeeeeeeeseeseeeeceetseeessceeesaceneessesseesesseaeeeeeesaeeseeeseeess 23, 24 CONSTITUTIONAL PROVISIONS | California Constitution, Article I BOeceessseecseeserceeecscesscsecsetrsssesesseseessessssseesecsteeseeseeeneeas 4, 21, 23 § 19, SUDA. (8)... cecesessessseecsscesseceeseeecenssscssasseeesssessecsesssnsesacsasacs 21,27 v1 TABLE OF AUTHORITIES (continued) Page OTHER AUTHORITIES Cal. Law Revision Comm. com., 19 West’s Ann. Code Civ. Proc. (2007 ed.) foll. § 1245.060 0... ccccccscscssssesssecesseessesersseeeseeeas 24, 26 Cal. Law Revision Comm. com., 19 West’s Ann. Code Civ.Proc. (2007 ed.) foll. § 1250110.ecccecscescssescsscscssessecesessesseseeseseseasas 24 Eminent Domain: Right to Enter Land for Preliminary Survey or Examination, 29 A.L.R.3d 1104 (1970)...cccceeeescescescssessenecees 20 , 1 Matteoni & Veit, Condemnation Practice in Cal. (Cont. Ed. Bar 3rd Cd. 2013) § 4.80 oeccsccsecsseseessssessesesecssssssecsecesssseneveesatseens 24, 25 Rest. 2d of Torts, § 211 cccccccssscssscsssssssscsssesessssesestssessuscseseseusceseccessceeeeece 10 Vii INTRODUCTION AND SUMMARYOF ARGUMENT' For 40 years, the precondemnationentry statutes (Code Civ. Proc., §§ 1245.010 — 1245.060),” part of the State’s Eminent Domain Law,have served an essential purpose, permitting California agencies temporary entry to assess the suitability of property for a wide variety of contemplated public projects, such as highways, schools, hospitals, and infrastructure. These early assessments allow the State to determine whether to condemn any particular parcel and, in many instances, whether the project can proceed at all. At the sametime, by the Legislature’s design, the entry statutes have fully protected property owners, as well as compensated them against any resulting damageor interference with possession or use. In this case, the State invoked the entry statutes for their intended | purpose-——to gain temporary entry to determine the environmental and geological suitability of parcels for construction of potential improvements to the State Water Project. The State followed the prescribed procedure by seeking a court order, and stands ready to comply with the conditions imposedbythetrial court for the environmental entries and any additional and reasonable conditions that should be imposed for the geologicalentries, and to deposit the probable amountnecessary to compensate the landowners for any actual damage or substantial interference with possession orusethatits activities may cause. Just as the entry statutes are entitled to a presumption of constitutionality (Mt. San Jacinto Community College Dist. v. Superior Court (2007) 40 Cal.4th 648, 656), so too are ' The State responds to the answersfiled in Case No. C067758 (“PRI Answer”), and in Case Nos. C067765 and C068469 (“Nichols Answer’) (collectively, “landowners’”). * All referencesare to the Code of Civil Procedure unless otherwise stated. these entries—whichare squarely of the type contemplated by the Legislature. The Court of Appealfailed to apply this presumption of constitutionality, holding that both the environmental and geological entries sought by the State would constitute takings. It held, in addition, that the entry statutes do not provide constitutionally valid eminent domain proceedings to accomplish such “intentional takings.” (Opinion 17-28.) The implication of this holdingis that the proposed entries may be achieved only through a full condemnation action. The court erred onall counts. Asexplained in the State’s opening brief, the entries to conduct environmental surveys were authorized and limited bythe trial court’s order; whetherthose activities constitute a taking is determined by a multi- factor balancing test. (Arkansas Game & Fish Com. v. United States (2012) __ US. __, 133 S.Ct. 511, 522; Penn Central Transp. Co. v. New York City (1978) 438 U.S. 104, 124.) Thetrial court’s order authorized only temporary entries for non-invasive surveys of environmental conditions, and placed specific limits on the number of days and personnel allowed. It did not permit any structures or other physical changesto the properties. And as the Court of Appeal noted, the landowners “do not cite evidence of any actual damageorinterference . . . to their properties.” (Opinion 34.) Under these circumstances,there is no taking. The landownersattempt to avoid this result by arguing that the environmental entries automatically constitute a taking without need to engage in any balancing. (PRI Answer 26-32; Nichols Answer 12-37.) They advance two theories: first, that the environmentalentries should be relabeled as “temporary easements”(the theory employed by the Court of Appeal), and that a temporary easementnecessarily is a taking; and second, that any physical entry that permits more than an innocuousand superficial examination is in every instancea taking, citing Jacobsen v. Superior Court ofSonoma County (1923) 192 Cal. 319. (Nichols Answer 12-14.) The landownersoffer only one specific example of the type ofactivity purportedly authorized by the entry statutes: a “truck driver parking on someone’s vacant land to eat lunch.” (Nichols Answer44.) Neither theory is correct. Modern takings doctrine, as set out in Penn Central and Arkansas Game, generally holds that only two types of | invasionsofproperty interests are “categorical” takings: the permanent physical occupation of the owner’s property and the regulatory denialofall economically beneficial or productive use of the property. (Arkansas Game, supra, 133 S.Ct. at p. 518.) The entries for environmentalsurveysfit neither per se category, and the balancing test required by law tips decisively against a taking. Applying the same balancingtest to the entries for geological surveys, the State in its opening brief explained that the entries would be temporary, and, after testing is complete, the borings would be closed, sealed with bentonite clay grout to prevent any environmental harm, and covered over with native soil, returning the land to its substantially original condition. (Motion to Augment Record on Appeal (MA) 94:26-96:6; 122:7-26; 123:8- 124:18; Appellant’s Appendix in Case No. C068469 (AA) 182, 377.) There is no evidence that the entries and the backfilled borings would affect the value or use of the properties, and thus no taking would result from suchtests. In response, the landowners again rely on the superseded Jacobsen, case. They also cite Loretto v. Teleprompter Manhattan CATV Corp. (1982) 458 U.S. 419, comparing closed geological test borings to the permanently- attached cable equipmentheld to be a taking in that case. The cable equipment, intendedto be usedfor public purposes on an ongoingbasis, is fundamentally different from the backfilled borings, however. Once the geologicaltesting is complete, the State will have noresidual rights to reenter the land or to monitor and maintain the backfilled borings. There were no facts before the Court ofAppeal establishing that the subsurface clay grout—which can be shaved with a pen knife andis not dissimilar in texture from native soil—would inhibit any use of any particular property. (MA 94:26-96:6; 97:6-11; 210:25-21 2:24.) On balance, the only reasonable conclusionis that no taking will occur. The Court of Appealalso erred in holding that if the entries would constitute a taking—a result the State believes cannot occur if the entries are undertaken consistent with the entry statutes—the State is barred from utilizing the precondemnation entry procedures and must instead proceed by initiating a full condemnation action. Asthe dissent cogently explains, even if a precondemnationentry effects a taking, the entry statutes satisfy Article I, Section 19 of the California Constitution. The landowners compareat length the differences between the procedures provided in the entry statutes and those in the statutes governing eminent domain actions for condemnation. This comparisonis irrelevant, as the Legislatureis not limited to enacting only one type of eminent domainproceeding. The inquiry is not whether the pleadings and proceduresare the same, but whetherthe entry statutes are consistent with the Constitution. Theyare, since they (1) qualify as an eminent domain proceeding; (2) provide for deposit and prompt release of the probable amount of compensation; and (3) provide a meansfor the landownersto obtain a jury trial to determine the amount of compensation. No moreis required. This Court should reverse the Court of Appeal’s decision and remand this case with instructions to permit the environmental and geological . testing to proceed, in accordance with the entry statutes. ARGUMENT 1 THE STATE’S PROPOSED TEMPORARY ENTRIES TO CONDUCT PRECONDEMNATIONTESTING ARE NOT TAKINGS A. The Environmental Activities Authorized by the Entry Order Are Not a Taking Asthe State set out in its opening brief (AOB 20-25), the environmental activities authorized by the entry order do not constitute a taking under the multi-factortest set forth in Penn Central and Arkansas Game. The landowners’ attempts to avoid the naturalresult of this balancing mustbe rejected. | 1. Underthetest set forth in Penn Central and Arkansas Game, the entries are not a taking _ Application of the factors in Penn Central and Arkansas Game establish that the environmental entries do not amountto a taking. The landowners downplaythe significanceofthe first two critical factors: economic impact and investment-backed expectations. (PRI Answer41-42; Nichols Answer 38-39.) Instead, the landowners argue that these factors are irrelevant in a “physical invasion case,”or, alternatively, that the relevant inquiry should not be investment-backed expectations, but rather interference with any expectations for the use of the property, including an expectation that the property “will be free of the . . . entries that [the State] seeks.” (PRI Answer 41-42.)° That is incorrect. The “economic impact” and “investment-backed expectations” factors are especially significant because the purposeofthe just compensation clause 3 The landowners also claim that the State fails to analyze California law on investment-backed expectations found in County ofSan Luis Obispo v. Ranchita Cattle Co. (1971) 16 Cal.App.3d 383 and Jacobsen, supra, 192 Cal. 319. (PRI Answer 41-42.) These cases do not address this factor. Also, both cases predate Penn Central. Jacobsen does notreflect 92 years of takings jurisprudence. is not to guarantee a property owner’sright to be free from any governmental inference, “‘but rather to secure compensation in the event of otherwise properinterference amounting to a taking.” (Lockaway Storage v. County ofAlameda (2013) 216 Cal.App.4th 161, 183, quoting Lingle v. Chevron U.S.A. Inc. (2005) 544 U.S. 528, 536-537, emphasis in original.) Where there are no economic damages,there is typically nothing to compensate, and thus the physical entry is less likely to result in a taking. With respect to the nature of the governmental action, the landowners argue that the fact that this is a physical entry ontoprivate landis dispositive. (PRI Answer 42; Nichols Answer 36-67.) But “not every physical invasion is a taking,” and temporary invasionsare subject to a “complex balancing process.” (Loretto, supra, 458 U.S.at p. 436,fn. 12.) Here, the entries allowed underthe entry order would be minimally intrusive, particularly given the rural and undevelopednature of the properties, and the entry order places numerousrestrictions on the entries to minimize any possible impact. (5 Petitioners’ Appendix in Case No. C067765 (PA) 1353-1355; 6PA 1548-1558.) Under such circumstances, the mere fact of physical entry does not weigh in favor ofa taking. Asto duration, the landowners misstate the time period permitted for the environmental entries, claiming that the entry order permits up to either 235 or 250 days of “occupancy” during a one year period. (PRI Answer11, 40.) But the entry order permits a maximum of 66 days of entry on the three largest properties, and maximumsofbetween 25 and 55 days on the others. (SPA 1353-1355; 6PA 1531-1538, 1556.) The vast majority of the parcels are less than 1,000 acres, and are therefore subject to maximum entries of only 25 to 32 days. (5 PA 1353-1355; 6PA 1556.) The State would not be permitted to exceed its “budget of days” without being subject to penalties reflecting litigation expenses. (§§ 1245.060, subd.(b), 1235.140.) The landownersinflate their figure of 235 or 250 days by including the days small traps would remain on the properties, separately counting the days for traps for each species, and also including the days that survey markers would remain on the property after installation. (PRI Answer40.) Thetrial court properly found that the “mere presence of a trap” and temporary “targets and alignmentstaking” do not constitute days of entry. (6PA 1556.) Alternatively, the landownersassert that intermittent entries of 25 to 66 days over the course of a year are of “sufficient duration” to be a taking. (PRI Answer 39.) But this misstates the issue, as the duration of an entry is not determinative and the limited nature of the environmental entries is but one of many factors indicating that, on balance, these entries are not a taking. With respect to the severity of the interference, Property Reserve asserts that the physical invasion by itself warrants the finding of a taking becauseit interferes with the right to exclude others. (PRI Answer42.) However, the mere interference with that right, without more, is not determinative of whetherthere is a taking. (Prune Yard Shopping Ctr. v. Robins (1980) 447 U.S. 74, 82-84.) In-Prune Yard, the United States Supreme Court rejected the claim that allowing protestors to demonstrate at a privately-owned mall was a taking becauseit violated the “right to exclude others.” (/bid.) While recognizing that the right to exclude is one of the “essential sticks in the bundle of property rights,” the Court stated that “it is well established” that not every destruction or injury to property by governmentaction is a taking. (/d. at p. 82; see also Andrus v. Allard (1979) 444 U.S. 51, 65-66 [“where an owner possessesa full ‘bundle’ of property rights, the destruction of one ‘strand’ of the bundle is not a taking”].) The Court in PruneYard concluded that where “there is nothing to suggest”that the protection of free speech and petition rights “unreasonably impair[s] the value or use of [the mall’s] property,” the fact that there is a physical invasion of property “cannot be viewed as determinative.” (447 U.S. at pp. 82-84.) The cases cited by the landowners (PRI Answer 30-34: Nichols Answer 36-37) on the right to exclude others are distinguishable because they involved permanent physical occupations. (See Pacific Tel. & Tel. Co. v. Eshelman (1913) 166 Cal. 640, 646-647 [requirementthat telephone company permit a permanent physical connection betweenits telephone lines and the lines of its competitors]; Kaiser Aetna y. United States (1979) 444 U.S. 164,180 [permanent conversion of private pond into a public aquatic park]; Hendler vy. United States (Fed. Cir. 1991) 952 F.2d 1364, 1374 [permanentinstallation and maintenance of groundwater monitoring wells|; Loretto, supra, 458 U.S. at p. 438 [permanentinstallation of cable equipment]; Cwynar v. San Francisco (2001) 90 Cal.App.4th 637, 653-654 [rent control move-in restriction amounting to “potentially endless leasehold”’].) Unlike these cases, the entry order here authorizes only temporary entriesthatare strictly limited as to time, scope, and nature. Concerning the final factor—intent—the landownersincorrectly respondthat this factor is focused solely on intent to physically enter the property. (PRI Answer 44.) The landowners’ reliance on Albers v. County ofLos Angeles (1965) 62 Cal.2d 250 to support their proposition is misplaced. There, the owners sued in inverse condemnation after they suffered unforeseen “actual damage”resulting from a landslide caused by a road construction project. (/d. at pp. 254-255.) Albers in fact supports the State’s position that unforeseen actual damages caused bythe State’s entry onto private land are generally compensable after the fact through tort or inverse condemnation, and that the mere possibility that unforeseen damages might occur in the future does not turn every intentional entry into a taking before thefact. Indeed, any actual damages caused bythe entries in this case are directly redressable under section 1245.060. 2. The landownersincorrectly argue that the environmentalactivities constitute categorical takings The landowners contend that the environmental entries constitute a categorical or “‘per se” taking, and thus that the multi-factor test under Penn Central and Arkansas Gamedoes not apply. (PRI Answer 21-22; Nichols Answer 20-28.) The landowners advance twodistinct categorical taking theories—first, that these entries are a categorical taking because they are akin to a temporary easement, which the landownerscontendis a “compensable property interest” (PRI Answer 24-30; Nichols Answer 12- 20); and second, that any physical invasion beyondthe innocuous and superficial examinations allowed under Jacobsenis a categorical taking (PRI Answer 24; Nichols Answer 12-13). Neither theory is supported. a. The characterization of the environmental entries as “temporary easements” does not make them categorical takings The landowners contendthat the entry order conveyed a temporary easement, that an easement is a compensable property interest, and that the entries permitted under the order are a categorical taking. (PRI Answer 24- 30; Nichols Answer 12-20.) The landowners attempt to short-circuit that inquiry by ignoring relevant legal distinctions and simply labeling entries as easements is flawed and mustberejected. . At issue in this case is whether the environmental entries constitute takings. An “entry” is an activity performed by a prospective condemnor preliminary to any acquisition. (Code Civ. Proc., § 1245.010.) An “entry” is: [a] duty or authority imposedor created by legislative enactment whichcarries with it the privilege to enter land in the possession of another for the purpose of performing or exercising such duty or authority in so far as the entry is reasonably necessary to such performanceor exercise,if, but only if, all the requirements of the enactmentare fulfilled. (Rest. 2d of Torts, § 211.) The question of whether an entry may result in a taking thus cannot be answered simply by relabeling the entry as a “temporary easement.” Rather, the entry’s attributes must be examined. It is well settled that not every interference with a property interest rises to the level of a taking. (Loretto, supra, 458 U.S.at p. 436, fn. 12.) Moderntakings doctrine generally recognizes only twotypes of intrusions upon property interests as “categorical” takings: (1) the permanent physical occupation of an owner’s property, and (2) the regulatory denialofall economically beneficial or productive use of the property. (Arkansas Game, supra, 133 S.Ct. at p. 518; Lucas v. South Carolina Coastal Council (1992) 505 U.S. 1003, 1015.) These categories are limited, and thus “most takings claims turn on situation-specific factual inquiries” that balance multiple factors. (Arkansas Game, supra, 133 S.Ct. at p. 518; Loretto, supra, 458 U.S.at p. 436, fn. 12.) There is nothing magic aboutlabeling something a “temporary easement”that, without more, would renderit a categorical taking and excludeit from the balancing test under Penn Central and Arkansas Game. | The landownerscite a series of cases demonstrating that public entities commonly condemn easements. (Nichols Answer 16-17; PRI Answer 26.) However, these cases do not concern precondemnation entries. Rather, they involve acquisitions for an approved project as part of a condemnation action, and most involve the condemnation of a temporary * The labeling ofthe entries as a “temporary easement” does not automatically warrant compensation. (City ofLos Angeles v. Ricards (1973) 10 Cal.3d 385, 390, fn 4.) The measure of compensation for a temporary easement, if any, will depend uponthe level of interference with the owner’s rights. (City ofGilroy v. Filice (1963) 221 Cal.App.2d 259, 266.) 10 construction easement for project construction. Under those circumstances, the public entity has already determined project feasibility and what property interests are needed, and thus has no need for precondemnation entry. Theline ofcasesis irrelevant. The conclusionthat the environmental entries are not per se takingsis also consistent with California precedent. It has long been establishedthat precondemnationentries are not a taking ofprivate property.” (See,e.g., Fox v. Western Pacific Railroad Co, (1867) 31 Cal. 538, 555 [holding that precondemnation entry not taking and cannotbe “said in any legal sense that the land has been taken until the acthas transpired which divests the title or subjects the land to the servitude”]; Robinson v. Southern California Railway Co. (1900) 129 Cal. 8, 10-11 [drawing distinction between entry on land for conducting precondemnation surveys(not a taking) and entry on land for the purpose of constructing a railroad track (a compensable taking)]; Jacobsen, supra, 192 Cal. 319, 328-329 [under prior statute, State may conductsurveys that do not seriously impinge upon or impair the owner’s rights to the use of the property]; Southern California Gas Co.v. Wolfskill Co. (1963) 212 Cal.App.2d 882, 888 [entry upon land for survey “did not constitute a taking of property”]; Ranchita Cattle, supra, 16 Cal.App.3d 383, 388-389 [public entity has statutory authority to conduct suitability surveys on land without filing a condemnation action].) For this reason, the California Law Revision Commission Recommendationsto the 1969 amendmentsreferred to precondemnation entries as “privileged > Although the landownerscite cases from somestates findingthat a public entity must condemn a temporary easement to conductcertain precondemnation entries (Nichols Answer 66-67), other states have expressly rejected this position. (See, e.g., State by Waste Management Bad. v. Bruesehoff(Minn. App. 1984) 343 N.W.2d 292, 294-296.) il official entries.” (3AA 719.) Such privileged entries do not result in a taking. b. The landowners’ argument that all non- innocuous physical invasions are per se takings is incorrect The landowners contend that all temporary physical invasions beyond the undefined “innocuous entries” and “superficial examinations” permitted under Jacobsen constitute a categorical taking. (PRI Answer 24-44.) These contentions are unsupported by precedent. To the extent that Jacobsen can be read to support a categorical rule, it is no longer good law because takings jurisprudence has evolved since 1923 to require a balancing test for temporary physical invasions; any other surviving principles from that case must be construed in that modern context. (Loretto, supra, 458 U.S.at p. 435, fn. 12; Arkansas Game, supra, 133 S.Ct. at p. 518.) Further, even ifJacobsen were controlling, the environmentalactivities permitted under the entry order—environmental surveys and mapping, strictly limited in time, scope, and mannerby the trial court (6PA 1531-1538)—are precisely the type of “innocuousentr[ies] and superficial examination[s] as would suffice for the making of surveys or maps”that are permissible under Jacobsen. (See 192 Cal. at p. 329.) | Neither California nor federal law supports a categoricalrule for temporary physical invasions. The landownerscite Kavanau v. Santa Monica Rent Control Bd. (1997) 16 Cal.4th 761. (PRI Answer 22.) In Kavanau, however, this Court observed that only twotypes ofinterference are generally considered categorical takings—‘permanentphysical invasions” and regulations that deprive an ownerof “all economically beneficial or productive use of the land.” (Santa Monica, supra, 16 Cal.4th at p. 774.) Kavanauneither states nor implies that a categorical rule applies to temporary physical invasions. (/d. at pp. 774-775.) The landowners 12 quote the Supreme Court’s statement in Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency (2002) 535 U.S. 302, 322,that “{w]hen the government physically takes possession ofan interest in property for somepublic purpose,it has a categorical duty to compensate the former owner.” (PRI Answer 27.) But Tahoe-Sierra’s discussion of “physically tak[ing] possession”refers to the complete government occupation of private property that deprives the ownersofall use of their property, and not a mere temporary entry, as highlighted by the cases Tahoe-Sierracites to support this statement. (See United States v. Pewee Coal (1951) 341 U.S. 114, 116 [government took over mine and required mineofficials to “conduct operations as agents for the Government”]; United Statesv. General Motors (1945) 323 U.S. 373, 375 [government completely ousted company from its warehouse]; United States v. Petty Motor (1946) 327 U.S. 372, 378 [governmentacquired tenant’s entire remaining leasehold].) Further, citing this same passage from Tahoe-Sierra, the United States Supreme Court subsequently clarified that “no magic formula enables a court to judge, in every case, whether a given governmentinterference with property is a taking.” (Arkansas Game, supra, 133 S.Ct. at p. 518.) The “categorical” takings rule generally applies only to permanent physical occupations and regulations that permanently require sacrifice ofall economically beneficial uses. (/bid.) Virtually all other claims turn on the fact-specific analysis set forth in Penn Central. (Ibid.) Moreover, in Loretto, the Supreme Court cited its decision in PruneYard, supra, 447 U.S. 74, to “underscore[ ] the constitutional distinction between a permanent occupation and a temporary physical invasion.” (Loretto, supra, 458 U.S. at p. 434; see also Allegretti & Co. v. County ofImperial (2006) 138 Cal.App.4th 1261, 1272 [noting that “Loretto carefully distinguished permanentphysical takings from both temporary physical invasions and regulations merelyrestricting the use of private property”].) “The rationale 13 [for this distinction] is evident: [temporary physical invasions] do not absolutely dispossess the ownerofhis right to use, and exclude others, from his property.” (458 U.S.at p. 435, fin. 12.) . The landowners’reliance on the Federal Circuit Court of Appeal’s decision in Hendler, supra, 952 F.2d 1364, is also misplaced. (PRI Answer 21, 28.) Hendler concernedthe permanentinstallation of groundwater monitoring wells. (952 F.2d at pp. 1376-1377.) Despite its broad dicta,as the Federal Circuit noted in a later case, Hendler’s holding was unremarkable and quite narrow: it merely held that when the governmententers private land, sinks 100-foot deep steel reinforced wells surrounded by gravel and concrete, and thereafter proceeds to regularly enter the land to maintain and monitor the wells over a period of years, a per se taking under Loretto has occurred. The facts ofHendler were well within the limited parametersofthe per se rule delineated by the Loretto Court for, as we stated in Hendler, the “wells are at least as ‘permanent’. . . as the CATV equipmentin Loretto.” Hendler, 952 F.3d at 1376. (Boise Cascade Corp. v. United States. (Fed. Cir. 2002) 296 F.3d 1339, 1356 [rejecting claim “that Hendler compels us to turn a transient invasion by owl surveyorsinto a per se taking under Loretto”].)° In the present case, none of the environmental activities results in a permanent occupation or a complete denial of all use of the property. Rather, the activities involve merely transitory, intermittent entries to conduct surveys, makevisual observations, take photographs, and sample ° The Federal Circuit cited Julianov. Montgomery-OtsegoSchoharie Solid Waste Management Authority (N.D.N.Y. 1997) 983 F.Supp. 319 as an example of a case that “misunderstood andcriticized” Hendler as “abrogating” Loretto ’s permanency requirement. (296 F.3d at p. 1355, fn. 12.) (See also Juliano, supra, 983 F.Supp.at p. 326-327 [criticizing Hendler’s dicta on meaning of “permanent.”]) Juliano is further discussed at 1.B.1. 14 soil with handheld equipment. Thus, cases such as Tahoe-Sierra and Hendler are readily distinguishable. The landownersclaim that the holding in Arkansas Game is extremely limited, dealing solely with an asserted takings exemption for government induced temporary flooding resulting from a governmentpolicy to release water from a dam. (PRI Answer 38.) The languageofthe case does not support the landowners’ restrictive interpretation. Citing Loretto, Arkansas Gameitself expressly rejected the existence of a “flooding-is-different”rule. (Arkansas Game, supra, 133 S.Ct. at p. 521.) “Flooding cases, like other takings cases, should be assessed with reference to the ‘particular | circumstancesof the case.” (/bid.) The Court’s broad discussion of temporary takings jurisprudence, including temporary physical takings, further highlightsthatits analysis was not limited merely to flooding cases. Ud. at pp. 518-522.) The landownersfurther argue that temporary entries should be treated the same as permanentoccupations. (PRI Answer 35-37.) But “the constitutional distinction between a permanent occupation and temporary physical invasion”is well settled. (Loretto, supra, 458 U.S.at p. 434 [citing PruneYard, supra, 447U.S. 74 (discussed infra) where the Court rejected a takings claim involving temporary and limited physical invasions].) The landowners cite a numberofcases for the proposition that a temporary entry may under somecircumstancesconstitute a taking (PRI Answer 35-37), but that is not in dispute. While a temporary invasionin its particular factual circumstances may constitute a taking underthe balancing test set forth in Penn Central and Arkansas Game,application ofthat test to the facts of this case establish conclusively that the environmentalactivities, as limited by the trial court’s order, do not constitute a taking. 15 B. The Proposed Geological Activities Are Not a Taking 1. The geological activities are not a categorical taking Asthe State set out in its opening brief, the geological activities, like the environmentalactivities, are not categorical takings but instead must be analyzed under the Penn Central and Arkansas Gamefactors. (AOB 27- 29.) In response, the landownersfirst contend the geological activities are takings under Jacobsen because the Court in that case, under the law asit existed in 1923, held that the borings and other subsurface precondemnationactivities contemplated in that case were takings. (PRI Answer 15, 18.) But, as noted above, takings law has evolved since Jacobsen, and these questions are now analyzed undera balancingtest that yields a different result in this case. (See Penn Central, supra, 438 U.S.at pp. 130-131; Arkansas Game, supra, 133 S.Ct. at pp. 518-522.) The landownersincorrectly assert that Jacobsen remains good law because it has been cited with approval in other California cases (Nichols Answer 13). City ofNeedles v. Griswold (1992) 6 Cal.App.4th 1881 does not cite Jacobsenfor the test to determine what constitutes a taking, but rather for the rule that a taking cannot be accomplished through a preliminary injunction issued outside an eminent domain proceeding. (/d. at p. 1895.) And Ranchita Cattle, 16 Cal.App.3d 383, was decidedprior to Penn Central and Arkansas Game, and thus does not reflect modern takings _ doctrine. Further, Ranchita Cattle concernedthe interpretation of an access agreement between the governmentand the landowner, and did not address the test for determining what constitutes a taking. (Ud. at pp. 385, 389.) The landowners also contendthat the geological activities are a categorical taking under several federal authorities. (PRI Answer 21, 28- 29.) The casesare distinguishable. Loretto and Hendler concern the occupation and continued use of property by structures and equipmentthat 16 were found to be “permanent.” (Loretto, supra, 458 U.S. at pp. at 428-434 {permanentinstallation of cable equipment for ongoing public use]; Hendler, supra, 952 F.2d at p. 1377 [permanentinstallation and _maintenance, and monitoring of groundwater monitoring wells]; see also Boise Cascade, supra, 296 F.3d at 1356 [clarifying that Hendler involved permanent occupation].) A permanent physical occupation is different from a temporary entry becauseit effectively destroys the landowners’ right “to possess, use and dispose of” the occupied portion of the property. (Loretto, supra, 458 U.S.at p. 435.) Here, there is no such physical occupation. The bentonite clay will be functionally equivalent to the native soil, and will not impact the owners’ use ofthe land,or their ability to alter the backfilled spaceor sell their property. (MA 94:26-96:6; 97:6-11; 122:7-26; 123:8-124:18; 210:25-212:24; LAA 182; 3AA 377.) Further, once the testing is complete, the State’s entries and use of the borings will conclusively end; there is no right of reentry and maintenance,as in the cited cases. The geological activities thus do not constitute a permanent physical occupation. The landowners contendthatthis result is contrary to “federal precedent,” citing Juliano, supra, 983 F.Supp. 319. (PRI Answer20-21; Nichols Answer 40-41.) That case held that certain monitoring wells and instruments amounted to a permanent physical taking. The Juliano caseis not binding onthis Court, and is not helpful in answering the questions presented. Asa threshold matter, Julianois distinguishable onits facts.’ In that case, a waste managementauthority began suitability testing for a landfill ’ As a group,sister-state and lower federal appellate cases are of limited assistance because the factual circumstancesof soil borings and geological investigations vary greatly, making generalization impossible. 17 on theplaintiffs’ property in 1992. (983 F.Supp.at p. 322.) Testing includedinstallation of monitoring wells and pieziometers (devices measuring pressure). Five years later, 24 monitoring wells andeight piezometers remained. (/d. at pp. 323, 328.) The authority was obligated to removethe well and meter casings, which were four inches in diameter and extended twoto three feet above the ground,if it did not acquire the property. (/d. at pp. 325, 328.) The authority would thenfill the holesleft by the well casing with a “pressure injection of cement bentonite grout.” (Ibid.) The district court foundthat the injection material, described only as “cement bentonite grout,” was “‘intended to exist or function for a long, indefinite time period’ [,]°and, quoting the dictionary definition of “permanent,” held that the authority’s actions would “constitute a permanentphysical taking.” (/bid.) In contrast, in this case, the State proposed to complete its soil borings within 14 days. (3AA 610-614 [borings are designated as “DH”or drill holes in table at 612-614].) Further, the Juliano court did not identify the evidence that was admitted concerning the attributes of the grout compound. However, in this matter, the evidence showedthat the bentonite clay used to seal the borings would function like the original soil, sustain plantlife, and could be plowed by farm equipment or even removed. (MA 94:26-96:6; 97:6-11; 122:7-26; 123:8-124:18; 210:25-212:24.) Onthis evidence, the proposed geological testing cannot reasonably be characterized as a permanent physical occupation. More fundamentally, Juliano misconstruedthe nature of the permanentphysical occupationthat results in a per se taking, making _ deference to its reasoning inappropriate. (See Thunderburk v. United Food & Com. Workers’ Union (2001) 92 Cal.App.4th 1332, 1340 [non-binding, but well-reasoned federal decision on issue of federal law entitled to deference].) The question is not whether there remain physicaltraces after 18 a temporary governmental invasion has ended—for example, debris after receded flooding ora filled hole. Rather, the question is whether“the government permanently occupies physical property|,]” effectively destroying the property owner’s right to possess,use, and dispose of property. (Loretto, supra, 458 U.S.at p. 435.) In Loretto, that destruction occurred because the building owner was required to accept the cable equipment’s ongoing presence anduse for the public’s benefit. (/d. at 434- 435; see also id. at p. 440, fn. 19 [noting there might be a different result if law required building ownerto provide cable installation and owner had powerto “repair, demolish, or construct” within the area].) Here, in contrast, once the State completes its temporary geologicaltesting, the landowners may possess, use, and dispose of their properties—including the backfilled space. There is no per se taking under these circumstances. Finally, the landowners’ citation to selected cases from sister states is similarly unhelpful. (PRI Answer 22-24.) The landowners highlight that some state courts, in the facts and circumstances of individual cases, and under their own state eminent domain laws and constitutions, have held that subsurface testing activities constitute takings. (County ofKane vy. Elmhurst National Bank (1982) 111 Il.App.3d 292, 299; Missouri Highway Transportation Commission v. Eilers (1987) 729 S.W.2d 471, 4743-474; Burlington Northern and Santa Fe Ry. v. Chaulk (2001) 262 Neb. 235, 244- 245.) Decisions ofsister state courts are persuasive only to the extent their reasoningis relevant and sound. See Acco Contractors, Inc. v. McNamara & Peepe Lumber Co. (1976) 63 Cal.App.3d 292, 296,citing People ex rel. Galvin v. Dorsey (1867) 32 Cal. 296.) These decisions add nothing to the analysis, as they rest in part on determinations that the proposedactivities are in violation of state statutes (see Filers; supra, 729 S.W.2d at pp. 473- 474; Burlington Northern, supra, 262 Neb. at pp. 244-245), and fail to address modern takings law (see Kane, supra, 111 Ill.App.3d at pp. 298- 19 299 [relying on Jacobson]; Eilers, supra, 729 S.W.2d at p. 473-474 [relying on Kane and Jacobson].) Moreover, the State notes that a numberofotherjurisdictions have held that these typesof activities are nottakings, particularly where, as in California, they are authorized by statute. (See, e.g., Orange Water & Sewer Authority v. Estate ofArmstrong (1977) 34 N.C.App. 162, 163; Melvindale v. Trenton Warehouse Co. (1993) 201 Mich.App.497, 499; Northglenn v. Grynberg (Colo. 1993) 846 P.2d 175, 182; Puryear v. Red River Authority of Texas (Tex. 1964) 383 S.W.2d 818, 820-821; see also Eminent Domain: Right to Enter Land for Preliminary Surveyor Examination, 29 A.L.R.3d 1104, 1115-1117.) No binding or persuasive authority leads to the conclusion that geological surveys authorized under California’s entry statutes are takings per se. Accordingly, where a landowner contendsthat the proposed surveys will effect a taking, a court must apply the constitutional balancingtest. 2. The geologicalactivities are not takings under Penn Central and Arkansas Game The landownershavenot attempted to analyze the Penn Centralor Arkansas Gamefactors, relying instead on their per se takings arguments. (PRI Answer 21-22; Nichols Answer 20-28.) As the State argued in its opening brief, the proposed geologicaltests are not takings under Penn Central and Arkansas Gamebecausethereis no evidencethat they will impactthe value or use of the properties; they will be limited in nature, duration, and location to minimize, if not eliminate, any risk ofdamage or interference with the use of the properties; and the clay grout will mimic the native soil and will not affect the owners’ ability to use their properties. (AOB 27-29.) 20 Il. THE ENTRY STATUTES PROVIDE CONSTITUTIONALLY VALID EMINENT DOMAIN PROCEEDINGS TO ACCOMPLISH THE PROPOSED ACTIVITIES EVEN IF THEY INVOLVE TAKINGS Even assuming for the sake of argument that the State’s proposed entries constitute a taking, the procedures within the entry statutes satisfy the constitutional requirementsofarticle I, section 19 of the California Constitution.® A. The Entry Statutes Are Entitled to a Presumption of Constitutionality The Constitution delegates to the Legislature the power to define what constitutes “eminent domain” proceedings. (Cal. Const., art. I, § 19.) The Legislature created procedures for precondemnationactivities that are distinct from the procedures for condemnation (which will occur only if the property is deemedsuitable after investigation). As set out in the State’s opening brief and in the dissent, the Legislature enacted the entry statutes specifically to comply with the just compensation clause. (AOB 32-34; Dis. Opn. 30-36.) Indeed, the Legislature enacted former section 1245.5 to include “special statutory procedure[s]” to provide for an expedited means for recovery for any damageorinterference, to expressly “overcome”the procedural constitutional concerns raised in Jacobsen. (3AA 710-728.) Since nothing in the Constitution prohibits the Legislature from dividing eminent domain proceedings into precondemnation and condemnation phases,the entry statues are entitled to a presumption ofconstitutionality. 8 “Private property may be taken or damagedfor a public use and only when just compensation, ascertained by a jury unless waived,hasfirst been paid to, or into court for, the owner. 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 bythe court to be the probable amountofjust compensation.” (Cal. Const., art. I, § 19, subd. (a).) 21 (See Mt. San Jacinto, supra, 40 Cal4th 648, 656 [upholding the constitutionality of the “quick take” proceedings, including associated deposit and withdrawalprovisions.) The landownersrespondthat the ordinary presumptionin favor of the constitutionality of statutes does not apply “when just compensationis . soughtunder the takings clause.” (PRI Answer 56; Nichols Answer 41-42.) Noneofthe cases they cite is on point. The landownerscite Justice Baxter’s dissent in Santa Monica Beach, Ltd. v. Superior Court (1999) 19 Cal.4th 952, 1006, for the proposition that deference should not be accordedto legislative judgments “when a claim for just compensation is sought under the takings clause.” (PRI Answer56.) But the dissenting view was not adopted by the majority, which deferred to the city’s determinationthat its rent control ordinance advanced a legitimate state purpose and thusits dedication requirement wasnot a: taking under the Nollan/Dolanline of cases. (Santa Monica Beach, supra, 19 Cal.4th at p. 972.) Further, the dissent addressed only whether a legislative body is entitled to deference in determining whetherits own actions constitute a taking, whichis a different question from whether the Legislature is entitled to deference in determining what procedures are constitutionally sufficient for effectuating a taking. In the latter context, this Court has heldthat the “strong presumption in favor of the Legislature’ s interpretation of a provision of the Constitution” applies. (M1. San Jacinto, supra, 40 Cal.4th at p. 656.) The landownerscite several cases for the proposition that statutory language defining eminent domain powersshould be construedagainstthe public entity. (Nichols Answer 41-42.) But those cases address only the boundaries of grants of the power to take through eminent domain,not the constitutional propriety of the procedures for accomplishing a taking. (See, e.g., Kenneth Mebane Ranches v. Superior Court (1992) 10 Cal.App.4th 22 276, 283 [flood control district could not exercise eminent domain powers outside its territorial boundaries absent express authority]; Skreden v. Superior Court (1975) 54 Cal.App.3d 114, 117 [district could condemn property becauseits statutory authority wasclear].) Here, the clear purposeofthe entry statutes is to provide constitutional procedures for accomplishing precondemnationactivities as proposed in this case. The State is entitled to a presumption, improperly rejected by the Court of Appeal, that the aims and meansofthestatute are constitutional. B. The Entry Statutes Comply with the Just Compensation Clause The entry statutes satisfy the requirements of the just compensation clause because they provide an eminent domain proceedingthat requires the deposit of the probable amount of compensation as determined by the court, provide for prompt release of such fundsto the landowner, and allow the landownerto obtain a jury trial to determine the amountofjust compensation. (AOB 34-41; Cal. Const.art I, § 19.) 1. Anentry petition is an eminent domain proceeding The landownersargue, based on section 1250.110, that the entry statutes fail to qualify as an “eminent domain proceeding” because they provide for a petition to be filed, not a complaint. (PRI Answer 51.) But the Constitution does not dictate the type of pleading that mustbefiled to commence an “eminent domain proceeding.” Rather, the Constitution leaves that determination to the Legislature. (Mt. San Jacinto, supra, 40 Cal.4th at p. 656.) In enacting the entry statutes, the Legislature fully intended that they function as a special proceeding to enable agencies to conduct suitability investigations preliminary to full condemnation, while 23 also ensuring that property owners receive the constitutional protection of compensation for any resulting damageto the property or interference with its possession and use. (Cal. Law Revision Comm. com., 19West’s Ann. § 1245.060.) Further, Section 1250.110 was enacted merely toclarify that a complaint alone, without a summons,is sufficient to confer subject matter jurisdiction. (Cal. Law Revision Comm. com., 19 West’s Ann. § 1250.110.) The provision does not meanthat a proceeding commenced by an entry petition is not an “eminent domain proceeding” under the Constitution. 2. The entry statutes provide for the deposit of an amount determined by the court to be the probable compensation Section 1245.030, subdivision (b) authorizesa trial court to determine the probable amount of compensation tobe paid to the ownerfor actual damageto the property and interference with its possession and use, and to increase the deposit under section 1245.040. Nevertheless, the landowners claim that the entry statutes do not provide sufficient “just compensation” for temporary entries because they do not allow for the recovery of“rental value” that is separate from, and additionalto, the value of any actual damageor interference with use. (PRI Answer 52-54: Nichols Answer44- | 48.) This argument implies that the landowners would be entitled to a greater recoveryin a full condemnation proceeding than in a precondemnation proceeding. This is not correct. In either case, the measure ofjust compensation is the value of damagesto, or interference with the property owners’ use or possession of the land. (Ricards, supra, 10 Cal.3d at pp. 389-390, fn. 4.) When a temporary easementdoes not cause an Owner any economicinjury, the owner“is entitled to recover only nominal damages.” (/d. at p. 390, fn. 4; see also Filice, supra, 221 Cal.App.2d at p. 266; City ofLos Angeles v. Fiske (1953) 117 Cal.App.2d 24 167, 173; 1 Matteoni & Veit, Condemnation Practice in Cal. (Cont. Ed. Bar 3rd ed. 2013) §4.80, p. 4-131.) A condemnee ““‘is entitled to receive the value of what he has been deprived of, and no more. To award him less would be unjust to him; to award him more would be unjust to the public.’” (Mi. San Jacinto, supra, 40 Cal.4th at p. 666.) The landowners seek to recover what they call “rental value” without any showing of actual damageor interference with the possession oruse. (See Opinion 34 [noting lack of evidence of any actual damage or interferencelikely to result from the entries].) The cases cited by the landowners (PRI Answer 53) do not suggest that there can be recovery of “rental value” without a showing ofinterference. In each of those cases, the rental value awarded, if any, was based uponthe value ofthe actual interference with the owner’s possession or use of the property—precisely whatis covered by the entry statutes. (See General Motors, supra, 323 U.S. 373, 375 [government wartime occupation of warehouse]; Kimball Laundry Co. v. United States (1949) 338 U.S. 1 [governmenttakeover of laundry plant for wartime public use]; San Joaquin Drainage Districtv. Goehring (1970) 13 Cal.App.3d 58, 66 [owner recovered only damages, not rental value].) . ; The landownersalso assert that Metropolitan Water Dist. ofSouthern California v. Campus Crusadefor Christ (2007) 41 Cal.4th 954 addressed only severance damages,and not valuation of a temporary easement. (Nichols Answer 17-20.) In fact, in Campus Crusade, the acquisitions included a seven-year temporary construction easement, which the landowneralleged damagedits use of the property. (/d. at p. 963.) In order to obtain compensation for that temporary easement and severance,this Court concluded the owner must show damagecaused by interference with the actual intended use ofthe property. (Campus Crusade, supra, 41 Cal.4th at p. 975; see AOBat 23, 38.) Where the ownerhad “notidentified 25. any intended use of the property during the relevant period, nor [had]it identified any specific loss attributable to the delay in construction,”the ownerwasnot entitled to compensation for the temporary entry. (/bid.; see also Orange County Flood ControlDist. v. Sunny Crest Dairy, Inc. (1978) 77 Cal.App.3d 742, 762-764 [rejecting recovery of two years’ rent during a businesstransition period, finding no evidence of a physical taking of the remainderor its impairmentof any permissible use].) The landowners desire compensation for what amounts to mere inconvenience. This is not compensable. (Department ofPublic Works v. Ayon (1960) 54 Cal.2d 217, 228-229.) In this Court’s words: Personal inconvenience, annoyance or discomfort in the use of property are not actionable types of injuries. [Citations] “It would unduly hinder and delay or even prevent the construction of public improvements to hold compensable every item of inconvenienceor interference attendant upon the ownership of private real property becauseof the presence ofmachinery, materials, and supplies necessary for the public work which have been placed onstreets adjacent to the improvement.” [Citation.] (bid.) The deposit is adequate for the activities involved, particularly given the lack of any evidence that the entries will have any impact on the use of the properties or their value. 3. The statutes provide for promptrelease of deposited funds. The landowners arguethat the entry statutes do not provide for “prompt release” because an owner maynotbe able to immediately withdraw the deposit at the time of possession. (PRI Answer 54-55.) But the Legislature specifically designed the entry statutes to provide a “simple and expeditious method”for the prompt release of the deposited funds. (Cal. Law Revision Comm. com., 19 West’s Ann. § 1245.060.) The Legislature’s determination that the provision’s release of fundsis 26 sufficiently “prompt”is entitled to deference. The availability to the owner of “the probable amount of the owner’s just compensation”satisfies the owner’s right to compensation at the time of possession, andthe fact that the ownerhas to apply to withdraw the funds does not amountto an unconstitutional delay in recovery. (Mt. San Jacinto, supra, 40 Cal.4th atp. 666.) Further, while some funds may not be immediately available for withdrawal, that is because such funds are deposited to cover potential damagesthat have not yet occurred and may never occur. There can be no “just compensation” for damages unless and until they occur. (City ofSan Diego v. Neumann (1993) 6 Cal.4th 738, 747-748 [just compensation does not encompass“conjectural or speculative” damages].) 4. The entry statutes allow the owner to obtain a jury trial to determine compensation The landowners acknowledgethat the entry statutes allow the owner to obtain a jury trial to determine the amount ofjust compensation, but incorrectly argue that this is not constitutionally sufficient. (PRI Answer 55-56.) First, the landowners contend that the Constitution requires a jury determination ofjust compensation prior to the taking. (PRI Answer 55.) But the second sentence of the just compensation clause expressly authorizes the Legislature to provide for pre-judgmentpossession. (Cal. Const., art. I, § 19, subd. (a).) Second, the landowners contend that the Constitution forbids requiring the ownerto file a separate action to obtain a jury trial. (PRI Answer55-56.) But the Constitution requires only that a jury trial be available, not that any particular procedure be provided for obtaining one. (Cal. Const., art. I, § 19, subd. (a) [just compensation must be “ascertained by a jury unless waived”].) 27 Atall times, an owner mayassert the right to a jury trial by filing any appropriate civil action to determine any damages. (§ 1245.060, subd. (a).) This satisfies the plain language of the Constitution. C. Public Policy Supports the State’s Continued Ability to Use the Entry Statutes as Intended by the Legislature The landowners mischaracterize the State’s public policy arguments, suggesting the State’s position is that the desire to reduce costs and increase governmentefficiency trumps constitutional considerations. (Nichols Answer 64-65; PRI Answer 58.) While the entry statutes do in fact promote efficiency, they do so within constitutional bounds,in the furtherance of the public interest. The statutes should continue to be available for determining project feasibility, before commencement of major infrastructure projects. Asthis Court has noted: “If the property owner can be insured just compensation,thereislittle, if any, justification for delaying public improvements and, thereby, increasing the tax burden on the public.” (M1. San Jacinto, supra, 40 Cal.4% 648, 658, fn. 5, citing 3 Cal. Law Revision Com. Rep.(1961) at p. B-29; see also Ayon, supra, 54 Cal.2d at pp. 228- 229.) In drafting the entry statutes, the Legislature succeeded in forging a constitutional balance respecting the interests of the government, the public, and property owners. This legislative determination is entitled to deference. (40 Cal.4th at p. 656.) 28 CONCLUSION This Court should reverse the Court of Appeal’s decision and hold that the State may proceed with its proposed environmental and geological investigations under the authority of the precondemnationstatutes. Dated: February 23, 2015 Respectfully submitted, KAMALAD. HARRIS Attorney General of California KRISTIN G. HOGUE Senior Assistant Attorney General ALBERTO L. GONZALEZ Supervising Deputy Attorney General JAMES C. PHILLIPS MICHAEL P, CAYABAN Deputy Attorneys General NELIN. PALMA Deputy Attorney General Attorneys for Appellant State of California, by and through the Department of Water Resources 29 CERTIFICATE OF COMPLIANCE I certify that the attached PETITION FOR REVIEW uses a 13 point Times New Romanfont and contains 8,376 words. Dated: February 23, 2015 Respectfully submitted, - KAMALA D. HARRIS Attorney General of California KRISTIN G. HOGUE Senior Assistant Attorney General ALBERTO L. GONZALEZ Supervising Deputy Attorney General JAMES C. PHILLIPS MICHAEL P. CAYABAN Deputy Attorneys General NELI N. PALMA . Attorneysfor Petitioner California Department of Water Resources DECLARATION OF SERVICE BY U.S. MAIL I declare: I am 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. I am familiar with the business practice 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, correspondenceplacedin 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 February 23, 2015, I served the attached: REPLY TO ANSWERS TO OPENING BRIEF by placing a true copy thereof enclosed in a sealed envelope in the internal mail collection system at the Office of the Attorney General at 1300 I Street, Sacramento, CA 95814, addressed as follows: SEE ATTACHED SERVICE LIST I declare under penalty of perjury under the lawsof the State of California the foregoingis true and correct and that this declaration was executed on February 23, 2015, at Sacramento, California. 9 if( 2? a “2 \ fj,’ / fe e " “ (i: a Michelle Schoenhardt TL.i Cn Lhpecheao(— Declarant Signature é SA2014313464 3200939 |.doc Case No. 8217738; Court of Appeal Cases C067765, C068469 and C067758 San Joaquin County Superior Court Case No. JCCP 4594 (Coordinated Proceedings Special Title (Rule 3.550) Department of Water Resources Cases) 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 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 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@pacbellnet 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 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 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 Attorneys for Amicus Curiae State Water Contractors Kendall H. MacVey Best Best & Krieger 3390 University Avenue, Fifth Floor Riverside, CA 92501 The Honorable John P. Farrell Francine Smith, Civil Supervisor San Joaquin Superior Court 222 E. Weber Avenue, Rm. 303 Stockton, CA 95202 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 Attorneys for Respondents: Melvin Edward and Lois Arlene Seebeck, Jr. Kristen Ditlevesen, Esq. Desmond, Nolan, Livaich & Cunningham Attorneys at Law 15" & S Building 1830 15" Street Sacramento, CA 95811 Specially Appeared Attorney for Respondents: Drosoula Tsakopoulos,et al. Matthew S. Keasling, Esq. Kate Wheatley, Esq. Taylor & Wiley 2870 Gateway Oaks Drive, Suite 200 Sacramento, CA 95833 Attorneys for Amicus Curiae State Water Contractors Stefanie Morris General Counsel 1121 L Street, Suite 1050 Sacramento, CA 95814 Third District Court of AppealHon. George NicholsonHon. Andrea Lynn HochHon. Cole BleaseCalifornia Court of Appeal914 Capitol MallSacramento, CA 95814