To get the geotechnical information needed to build the peripheral tunnels, the Department of Water Resources (DWR) has been trying to use eminent domain to obtain drilling easements in the Delta.
Now a San Joaquin County judge has denied a motion by DWR for an order of “pre-judgment possession” in one of the eminent domain actions. Such motions are common where an agency wants to get a project going before the case has been decided. The order would have allowed DWR personnel and equipment onto the five affected properties within the next few weeks. DWR had insisted that it is critical that it be allowed to complete the drilling before the rainy season.
The hearing took place on September 25 in the San Joaquin County Superior Court. After a lengthy presentation, DWR’s motion was denied. Representing the landowners, Thomas Keeling successfully argued that DWR’s failure to comply with law governing who must be named as defendants in an eminent domain action prevented DWR from obtaining pre-judgment possession.
DWR also filed identical motions in its actions in Yolo, Sacramento and Contra Costa Counties. The Yolo County court has not yet ruled on the motion, which was argued on September 21. The Contra Costa hearing has not yet occurred.
A hearing in Sacramento on DWR’s motion for pre-judgment possession (which affects almost four times as many properties as the San Joaquin motion) was supposed to be held this week. However, on its own motion, the Sacramento Superior Court continued the hearing to October 10. That alone further frustrated DWR, given its rush to beat the rains.
Further, the court asked for supplemental briefing on questions of law and statutory interpretation that, in Mr. Keeling’s opinion, probably favor landowners rather than DWR.
The ruling in San Joaquin County – as well-reasoned as it is – may not be binding on other courts, which means that landowners could conceivably see inconsistent rulings from court to court.
DWR will most likely try again in San Joaquin County, but, according to Mr. Keeling, it would actually have to comply with the law.
This should serve as a reminder to Delta landowners that it IS possible to fight the State and win.
A wider audience for Over Troubled Waters
We’re thrilled to report that Restore the Delta’s documentary Over Troubled Waters has been selected to be part of the 9th Annual Artivist International Film Festival, to be held November 1-4 in Hollywood. We’re especially honored to participate in a film festival that accepts works from all around the globe.
The Artivist Film Festival will award $5,000 to the film or video that receives the most votes from their online community. The voting begins by November 1st, and the winner will be announced on December 1, 2012. Watch for an opportunity to vote!
Predictable as the weather
Nancy Vogel of the Department of Water Resources, posting to a new blog for the Bay Delta Conservation Plan (BDCP) reported on September 26 that “No one can say exactly how much water would be diverted under any of the nine BDCP alternative projects now being studied. That includes the proposal to shift the major Delta diversion point north to the Sacramento River and construct two 35-mile-long tunnels to carry water south to water project pumping plants.
“Will the project yield more or less water than the recent average of 4.7 million acre-feet under the current system?”
According to Vogel, the draft environmental documents that will be released in the next few months will show a potential range of water deliveries for the twin tunnels. (The implication is that any of the other alternatives will yield less water than the tunnels.) Deliveries, she said, will depend first on weather. Other strategies besides pumping restrictions will be in place to protect fish, so that pumping will be “at least as predictable as the weather.”
They seem to be backpedaling a bit here when it comes to assurances.
Environmental documents on the horizon
We’re now looking at December 20 for the release of the EIR/EIS for the BDCP. It was scheduled for September, then October . . .
This should make for nice light holiday reading.
Seeing Over Troubled Waters
Over Troubled Waters is showing in Antioch TONIGHT! The film starts at 7:00pm at El Capanil Theatre, Q & A Panel following the film. If you are in the area don’t miss this opportunity, FREE ADMISSION… bring your families, friends, and neighbors!
There will be a screening in Fresno this Thursday, October 4, 2012 at Fresno City College at 7:00PM. Free admission and open to the public.
Visit http://overtroubledwaters.org/buy-tickets/ for more information and additional screening dates.