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Proposition 98 safeguards property rights and won’t interfere with water projects, says the California Farm Bureau Federation

Posted by: Aqua Blog Maven on May 14, 2008 at 6:08 am

From the California Farm Bureau Federation:

Efforts to limit the use of eminent domain have intensified since a 2005 ruling by the U.S. Supreme Court that upheld the right of governments to take property from a private owner and give it to another private owner for commercial development. Uproar over the Kelo vs. City of New London decision prompted more than 40 states to reform their eminent domain laws. California is now seeking to join those states with the passage of Proposition 98, which will appear on the June ballot.

Also known as the California Property Owners and Farmland Protection Act, Prop. 98 is the latest attempt to pass reforms on eminent domain and restore private property protections for all California property owners, proponents of the measure say. They also say that the initiative would protect a property owner’s water rights and other natural resources from being taken through eminent domain.

Opponents, however, claim that the natural-resources clause will block future water development projects such as dams and reservoirs in California.

The California Farm Bureau Federation, which is a co-sponsor of Prop. 98 and strongly supports public water storage projects, asked one of the state’s prominent water attorneys, Stuart Somach, to give his legal opinion on that particular provision. His analysis concludes that Prop. 98 would not preclude the use of eminent domain to acquire property necessary for the construction of water storage or conveyance projects.

Specifically, Prop. 98 prohibits the “transfer of ownership, occupancy or use of private property or associated property rights to a public agency for the consumption of natural resources.” In his legal opinion, Somach wrote, “The relevant question is whether acquiring private property for the purpose of constructing a water storage or conveyance facility is ‘for the consumption of natural resources.’ We believe it is not.”

Aqua Blog Maven interjection: water storage or conveyance facilities are NOT ‘consumption of natural resources??? Click more to read more legal analysis….

“The prohibition on taking property ‘for the consumption of natural resources’ relates directly to the property to be ‘taken,’” Somach further wrote. “Where a parcel of property is acquired for the purpose of constructing a water storage or conveyance facility, the ‘public use’ to which the property is put is for a water storage project or conveyance facility. The ‘taking’ is not for the consumption of natural resources that may be appurtenant to the property acquired.”

In fact, Somach said the proposition’s language is quite specific about allowing eminent domain to be used for public works projects regardless of what they are, while limiting the acquisition through eminent domain of natural resources.

“The only thing (the proposition) should preclude is the acquisition of water itself, which would be required to either be obtained through the State Water Resources Control Board mechanisms or through purchase from a willing seller to a willing buyer,” he said.

“Basically, what is being prohibited are not projects that would consume natural resources but rather the condemnation of natural resources for consumption,” said Somach. “So if you were to condemn a parcel of land because it was a good site for a water storage or conveyance project, you could do that, but could not condemn water rights that might be appurtenant to that land.”

CFBF President Doug Mosebar said the Farm Bureau strongly favors water rights and water development, and the organization’s support of Prop. 98 fits with both.

“Proposition 98 was written with a lot of thought and the best legal advice,” he said. “It will protect property and water rights, while allowing government agencies to use eminent domain for legitimate public works such as water projects, roads and schools.”

Mosebar noted that other legal experts and water groups, including the Institute for Justice, Pacific Legal Foundation, California Water Association and Family Water Alliance, have all reviewed Prop. 98 and found that it protects property rights while allowing development of reservoirs and other needed public projects.

In a letter to the coalition sponsoring Prop. 98, John Hawks, executive director of the California Water Association, said not only does Prop. 98 provide “protection to water companies regulated by the California Public Utilities Commission,” but the initiative is also “complementary to the current water supply and water conveyance proposals in the state Legislature, since they are necessarily intended for beneficial public use.”

Institute for Justice, the law firm that litigated the Kelo case, said that water projects such as drainage ditches, sewers, reservoirs, dams, drinking water and irrigation have long been accepted as public uses; therefore, they would not be affected should Prop. 98 pass.

“What the act would prohibit, however, is the government taking property from a private owner in order to become a market participant,” the Institute said. “In other words, the government could not take a mine or stand of trees from a private landowner in order to exploit financially the minerals or timber.

“This kind of taking is just as unconstitutional as taking property from A and giving it to B so that B can profit,” the institute added.

Having studied the various analyses that have been done on Prop. 98, Somach said he believes some of the arguments generated against the measure are merely efforts to create controversy over the issue and stop the proposition from going forward.

(Ching Lee is a reporter for Ag Alert. She may be contacted at clee@cfbf.com.)

May 14, 2008 · Filed Under Water Legislation

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