David, Goliath, and eminent domain

Stockton attorney Tom Keeling reports positive developments in the effort to keep DWR from doing exploratory drilling on private land in the Delta in order to gather information to build the peripheral tunnels.

In October, Delta landowners successfully opposed DWR’s motions for pre-judgment possession in eminent domain actions in four counties.  Responding to those rulings, DWR filed and served Amended Complaints in Eminent Domain for the purpose of acquiring easements for drilling.  As required by the rulings, DWR added as defendants everyone who, as a matter of public record, has an interest in the properties.  In amending its complaints, DWR dropped a dozen landowners who had been sued in the original complaints: two in San Joaquin County, eight in Sacramento County, and one each in Contra Costa and Yolo Counties.        

On behalf of the remaining landowner defendants, reclamation districts and others, Keeling and co-counsel Dante Nomellini, Jr. then responded to DWR’s Amended Complaints by filing demurrers (which are like motions to dismiss) in Sacramento County and San Joaquin County.  The demurrer in San Joaquin County was scheduled to be heard on February 5, but last week the Attorney General’s Office asked Keeling to withdraw the demurrer based on DWR’s agreement to file a further amended complaint that would address the deficiencies identified in the demurrer.  Under the circumstances, Keeling agreed to withdraw the demurrer. 

Then, on January 24, DWR informed Keeling and Nomellini that rather than amend its complaint in San Joaquin County, DWR would simply dismiss the lawsuit altogether.  By its action, DWR signals that it thinks landowner defendants in San Joaquin County would have prevailed.  Keeling and Nomellini cite DWR’s retreat in San Joaquin County, as well as DWR’s removal of many landowner defendants in Sacramento, Contra Costa and Yolo Counties, as further evidence that DWR’s effort can be successfully resisted.

The virtually identical Demurrer in Sacramento County is set for hearing on May 28.  DWR has yet to respond. 

In a related development, in November DWR began sending out new “Temporary Entry Permit” (TEP) letters, but these seek only a one-year entry period, not the two years DWR requested in letters send out in 2008 and 2009.  DWR has also narrowed the scope of proposed activities in the new requests.  DWR’s original set of TEP petition actions have remained mired in the Court of Appeal since 2011.   

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