Citations
- 1 Cal. 5th 151
Full opinion text
Opinion
CANTIL-SAKAUYE, C. J.
In an effort to improve the reliability of the water supply system in California as well as to address environmental and ecological concerns, the Department of Water Resources (hereafter, the Department) undertook to investigate the feasibility of constructing a new tunnel or canal in the Sacramento-San Joaquin Delta as a means of delivering fresh water from Northern California to Central and Southern California. As part of the preliminary steps in going forward with the project, the Department sought to conduct environmental and geological studies and testing on more than 150 privately owned parcels of land that the state, in the future, might seek to acquire for the project through negotiation or eminent domain.
In pursuing the proposed studies and testing, the Department proceeded through the specific statutory procedure established by the Eminent Domain Law (Code Civ. Proc., pt. 3, tit. 7, § 1230.010 et seq.) relating to precondem-nation entry and testing (Code Civ. Proc., §§ 1245.010-1245.060). The Department filed petitions in superior court relating to the privately owned properties, seeking a court order granting the Department authority to enter the properties and undertake various environmental and geological testing activities. The Department maintained that these activities were necessary to determine the suitability of each property for the project and to comply with the numerous state and federal environmental laws governing such a project.
After a four-day hearing, the trial court issued a detailed and lengthy order authorizing the Department to enter all of the private properties and conduct various environmental studies and testing under specified limitations. After a separate hearing, the trial court denied the Department’s request to conduct geological testing—testing that contemplated the drilling and refilling of deep test holes on certain properties in question—on the ground that the Department’s authority to conduct that drilling could be obtained only through a classic condemnation action rather than through the statutory precondemnation procedure.
Both the landowners and the Department sought review of the trial court’s rulings in the Court of Appeal. The Court of Appeal, in a two-to-one decision, upheld the trial court’s denial of the Department’s request to enter and to conduct geological testing, but reversed the trial court’s grant of authority to conduct environmental testing. The majority in the Court of Appeal concluded (1) that the procedure established by the precondemnation entry and testing statutes does not satisfy the demands of the takings clause of the California Constitution with regard to any precondemnation entry and testing activity that would constitute a taking or damaging of property within the meaning of the state takings clause, and (2) that both the geological testing sought by the Department and the environmental activities authorized by the trial court fell within that category. The Court of Appeal majority held that in order to conduct such activities, the Department was required to proceed to condemn a temporary easement through a classic condemnation action, rather than proceeding by means of the procedure established by the precondemnation entry and testing statutes.
The Department sought review of the Court of Appeal decision in this court. We granted review and posed three questions for briefing and argument: (1) Do the geological testing activities proposed by the Department constitute a taking? (2) Do the environmental testing activities authorized by the trial court’s order constitute a taking? (3) If so, do the precondemnation entry and testing statutes provide a constitutionally valid eminent domain proceeding for the activities?
For the reasons set forth below, we conclude that there is no need to determine under the first two questions whether the authorized environmental testing activities or the proposed geological testing activities constitute a taking or damaging of property for purposes of the state constitutional takings clause. (Cal. Const., art. I, § 19, subd. (a).) Assuming, without deciding, that both the environmental and the geological activities in question amount to a taking or damaging of property for which just compensation must be paid under the California takings clause, we conclude that in answer to our third question the procedure established by the precondemnation entry and testing statutes satisfies the requirements of the California takings clause when the procedure is reformed to comply with the jury trial requirement of that clause. As we explain, the precondemnation entry and testing statutes (1) require a public entity, before undertaking such entry and testing, to seek and obtain a court order specifically authorizing the activities that are to be conducted on the property and to deposit in court an amount that the court determines is the probable compensation for the authorized activities, and (2) permit the property owner to obtain damages in the same proceeding for any actual damage and substantial interference with the possession or use of the property caused by the public entity’s entry and testing activities. This procedure satisfies the California takings clause when reformed to permit the property owner to obtain a jury determination of damages in the proceeding if the property owner so chooses.
Accordingly, we conclude that the Court of Appeal judgment should be reversed in its entirety, both insofar as the Court of Appeal affirmed the trial court’s denial of the Department’s proposed geological testing and insofar as it reversed the trial court’s authorization of environmental testing.
I. Facts and Proceedings Below
In this case, the Department proposed to enter more than 150 privately owned properties in the Sacramento-San Joaquin Delta area (Delta) in order to conduct environmental and geological studies and testing needed to investigate the feasibility of adding new water conveyance facilities—such as tunnels or additional canals—in the Delta and to determine the suitability of potential alternative routes for the contemplated project. The proposed new facilities would become part of the Bay Delta Conservation Plan and are intended to improve the reliability of the water supply statewide as well as to restore the Delta ecosystem and native fish populations.
Because the alternative potential locations for the new facilities cross or lie beneath privately owned lands, the Department sought to enter the private properties in question to ascertain preliminary environmental and geological information about the properties. The Department maintains that the proposed entries and testing are necessary for two reasons: (1) to determine the feasibility and best potential location for the contemplated conveyance system, and (2) to assess the potential effects of the project on biological, environmental, geological, and archeological resources within the properties in order to comply with numerous applicable state and federal environmental laws, including the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.), the National Environmental Policy Act of 1969 (42 U.S.C. § 4321 et seq.), the California Endangered Species Act (Fish & G. Code, § 2050 et seq.), the federal Endangered Species Act of 1973 (16 U.S.C. § 1531 et seq.), the federal Clean Water Act of 1977 (Pub.L. No. 95-217 (Dec. 27, 1977) 91 Stat. 1566), and the Porter-Cologne Water Quality Control Act (Wat. Code, § 13000 et seq.).
Between 2008 and 2009, the Department filed more than 150 separate petitions in superior court pursuant to section 1245.030, seeking entry onto properties located in five separate counties—San Joaquin, Contra Costa, Solano, Yolo, and Sacramento. In June 2009, the Department filed a request to coordinate in a single proceeding the numerous entry petitions at issue here, and in March 2010, the superior court granted the request, coordinating the petitions in a single proceeding before the San Joaquin County Superior Court.
In September 2010, the Department filed a “Master Amended Petition” in which it sought authority to conduct what the petition characterized collectively as “environmental activities” with respect to all properties and “geological activities” with respect to 35 properties. The proposed environmental activities consisted of mapping and surveys relating to plant and animal species, habitat, soil conditions, hydrology, cultural and archeological resources, utilities, and recreational uses. The proposed geological activities consisted of drilling deep holes or borings to determine subsoil conditions. The Master Amended Petition attached declarations from environmental managers, planners, and surveyors employed by the Department, describing the scope and purpose of the proposed testing activities.
Thereafter, at a case management conference in October 2010, the trial court bifurcated the upcoming hearing on the Master Amended Petition, setting an initial hearing limited to the proposed environmental activities and a subsequent hearing for the proposed geological activities. The court indicated that it had reviewed the numerous declarations that had already been submitted on behalf of many landowners describing concerns with the Department’s proposed activities, and invited any property owner, prior to the upcoming hearings, to present additional evidence by declaration regarding any property-specific issues that could affect the scope of any order the court might ultimately issue. The court also directed the Department to be prepared to produce witnesses at the hearings who would testify in person with regard to the nature and scope of the proposed entries and activities and who would be subject to cross-examination by the court and landowners.
A. Environmental activities hearing and order
In December 2010, and January and February 2011, the trial court held a hearing on the proposed environmental activities. It considered the declarations filed on behalf of the Department and the landowners, and the in-person testimony of a number of Department employees, as well as suggestions, concerns and objections raised by the landowners and the Department to a series of tentative orders drafted by the court. On February 22, 2011, the trial court issued a detailed 33-page order granting the Department limited authority to enter each of the parcels at issue to conduct the various types of environmental testing sought by the Department. The order stated that “[t]he court has determined the nature and scope of the activities reasonably necessary to accomplish the purposes identified, taking due consideration of constitutional limitations and statutory procedures required for a taking of property. The court has provided suitable limitations to strike the best possible balance between the needs of [the Department] and the interests of the property owners.”
In brief summary, the order authorized Department employees to enter each property for a maximum of 25 to 66 days (depending on property size) over a one-year period in order to conduct the designated environmental survey, sampling, and testing activities (recreational, botanical, hydrologic, general, habitat, vernal pool, archeological and utility surveys, and mapping activities) under specific conditions and limitations set forth in the order with regard to each type of activity. The authorized environmental activities generally would be conducted by walking, visual observation, minor soil and plant sampling and testing, photography, and trapping and releasing small animals. The entries would be on foot where practicable, and any vehicle use would be restricted to existing roads.
The order required the Department to give a landowner 72-hour advance notice before each entry, prohibited any entry on agricultural land during harvest season or on hunting land during hunting season, limited the number of persons per entry (two to eight persons) by property size, specified the time of day the activities could be conducted (generally between 7:00 a.m. and 7:00 p.m.), and provided that most of the authorized activities were to be conducted concurrently in order to reduce the total number of days Department employees would be on the property. No equipment could be left on the property between entries with the exception of small traps that could be left for 14 days and small cloth targets for aerial mapping that could remain on the property for between 30 and 38 days (depending on property size). The order prohibited any inspection of or entry within 100 feet of an inhabited dwelling, as well as any entry into any other structures that are not open to the public. The order also contained a schedule of general conditions, relating to indemnification, confidentiality, disclosure of gathered information to landowner, and other matters.
Finally, the order set forth a schedule designating by property size the amount of probable compensation that the Department was required to deposit prior to entering any property to conduct the authorized environmental activities. Under the order, the amount of probable compensation to be deposited ranged from $1,000 per property for properties of 100 acres or fewer to $6,000 per property for properties of 3,501 to 8,500 acres.
B. Geological activities hearing and order
After issuing its order relating to the environmental activities, the trial court held a hearing over a number of days in February, March, and April 2011, concerning the proposed geological testing. In declarations and testimony, Department employees explained that geological tests were needed on 35 properties in order to determine the suitability of the subsurface of those properties for several alternative potential alignments of surface canals or underground water conveyance tunnels.
Two engineering geologists employed by the Department testified in some detail with regard to the testing protocol. For each property, the process would generally begin with a two- or three-day entry to determine, in consultation with the property owner and utility and reclamation district personnel, the best location for the drilling operations, taking into account existing uses of the property and the location of underground utilities. The geologists testified that the sites of the drilling initially suggested by the Department could be adjusted within the proposed alignment of the project, and that the goal would be to find locations for the drilling along existing roads and turnouts in order to minimize any damage or interference with the landowner’s ongoing uses of the property.
Once the optimal sites for drilling were determined, the Department would first conduct “cone penetrometer testing” (CPT) on each of the 35 properties. CPT involves pushing into the ground a long rod that emits signals to determine the subsurface composition of the tested land. The CPT creates a hole that is one and one-half inches in diameter and up to 205 feet in depth, and that is refilled after the rod is withdrawn. The CPT process generally requires four persons and up to four vehicles (including a five-ton or 25-ton CPT truck) and a portable toilet, and is generally completed in a single day. Thus, on properties that the Department proposed to conduct only CPT, the Department’s proposed geological activities generally would be completed in a total of no more than four working days, including the prelintinary identification of the site location.
With respect to 28 of the 35 properties, the Department geologists indicated that, in addition to the CPT process, the Department would need to drill additional, larger “soil borings” or “drill holes” that would generally be located within five feet of the CPT hole. The soil borings or drill holes would range from three and seven-tenths to eight inches in diameter, would reach up to 205 feet in depth, and would be refilled once the drilling and retraction of soil for sampling was completed. The geologists testified that the drilling of drill holes generally requires a five-person crew and larger and more equipment than the CPT (generally including a drilling rig, forklift, support trucks, 55-gallon storage drums, a “mudbox,” and a portable toilet). They further testified that in undertaking this type of drilling the Department would need to use an area of approximately 100 feet by 100 feet as a worksite for a period of between five and 10 days (depending upon the depth of the drilling), a period that would include the time for setting up and taking down the drilling rig as well as the actual drilling. Accordingly, with regard to the 28 properties on which both the CTP and drill holes would be conducted, the geological testing activities generally would require the Department to be engaged on each property for no more than a total of 14 working days.
The geologists further testified that, with respect to both the CPT and drill holes, the top two to five feet of the holes would be refilled with native topsoil, to restore the surface area as closely as possible to its original condition. In accordance with current California regulations, the lower depths of the CPT holes and the drill holes would be refilled with bentonite grout. As described by the geologists, bentonite grout hardens into a type of cement, but because it lacks the aggregate materials (sand and gravel) found in concrete, bentonite grout when hardened is similar in texture to the native subsurface material that it would replace, is soft enough to be shaved with a pen knife, would not interfere with or damage farm machinery, and would not adversely affect the filled land for agricultural or other purposes. The geologists explained that bentonite grout is used in order to provide stability and avoid groundwater contamination. An expert witness testifying on behalf of landowners raised no objection to the Department’s proposed use of bentonite grout and described such use as “textbook sealing.”
After considering the evidence regarding the factual nature and scope of the proposed geological activities as well as briefing by all parties regarding the constitutional issues raised by those proposed activities, the trial court issued an order denying the Department’s petition as it related to the proposed geological activities. The trial court’s order relied heavily upon this court’s 1923 decision in Jacobsen v. Superior Court (1923) 192 Cal. 319 [219 P. 986] (Jacobsen), which denied a public entity’s request to conduct somewhat similar drilling activities under an earlier precondemnation entry statute. (We discuss the Jacobsen decision in detail below, post, pp. 178-181.) The trial court acknowledged that the current precondemnation entry and testing statutes were enacted by the Legislature after the Jacobsen decision and include boring among the precondemnation activities explicitly covered by those statutes. Nonetheless, the court denied the order for the following reasons: the current statute does not explicitly state that it is intended to apply to the type of deep drilling involved in Jacobsen and the present case; Jacobsen concluded that such drilling activity would constitute a taking or damaging of property for purposes of the California taking clause; and because the precondemnation entry and testing statutes do not satisfy the requirements of the state takings clause, the precondemnation entry and testing statutes should not be interpreted to authorize this type of drilling activity.
C. Court of Appeal proceedings
Prior to the entry of the trial court’s geological testing order, the landowners initially filed two petitions for writs of mandate, prohibition, or other appropriate relief in the Court of Appeal, challenging the trial court’s environmental testing order and seeking a stay of that order. The appellate court initially summarily denied the writ petitions, but this court granted review and directed the Court of Appeal to order the Department to show cause why the writs should not issue.
In the meantime, after the entry of the trial court’s geological testing order, the Department appealed the trial court judgment insofar as it denied entry to conduct the proposed geological activities and the landowners appealed the judgment insofar as it authorized entry to conduct the environmental activities. The Court of Appeal stayed the environmental testing order and consolidated the writ petitions and appeals for hearing and decision.
After briefing and argument, the Court of Appeal, in a two-to-one decision, affirmed the trial court order insofar as it denied the Department’s petition to conduct geological activities, but reversed the trial court order insofar as it granted the Department authority to conduct the environmental activities. The majority in the Court of Appeal, relying heavily on this court’s 1923 decision in Jacobsen, supra, 192 Cal. 319, concluded that the current precondemnation entry and testing statutes would be constitutionally valid if the statutes were interpreted to authorize only those precondemnation entry and testing activities that are sufficiently “innocuous” and “superficial” that they do not constitute a taking or damaging of property within the meaning of the California takings clause. Because, in the majority’s view, the proposed geological activities “will result in permanent structures being placed in the ground on the affected landowners’ properties,” the majority concluded that such activities constituted a per se taking of property for purposes of both the federal and state takings clauses. And in light of the duration and scope of the environmental activities authorized by the trial court order—permitting entry and surveying throughout each property for between 25 to 66 days in a one-year period—the majority concluded that the environmental order effectively granted the Department “a temporary blanket easement for one year.” Such an easement, the Court of Appeal concluded, constituted a compensable property interest for purposes of the federal and state Constitutions’ takings clauses. The majority rejected the Department’s contention that even if the geological and environmental activities constitute a taking or damaging of property for purposes of the California takings clause, the procedural requirements established by the current precondemnation entry and testing statutes satisfy the demands of the state takings clause. The majority found the statutory procedure constitutionally deficient in several respects. It determined that the Department was required to institute a classic condemnation proceeding for a temporary easement in order to obtain the authority to undertake the precondemnation environmental and geological testing activities at issue here.
One Court of Appeal justice dissented, concluding that neither the environmental activities authorized by the trial court nor the geological activities proposed by the Department—because of their temporary nature and very limited economic impact—constituted a taking or damaging of property for purposes of the California takings clause. Furthermore, the dissenting justice concluded that, in any event, the procedure embodied in the precondemnation entry and testing statutes satisfies the requirements of the state takings clause.
The Department sought review of the Court of Appeal decision in this court. We granted review to decide the significant issues posed by this case.
II. Current Precondemnation Entry and Testing Statutes
Before discussing the specific issues raised in this case, we begin with an overview of the precondemnation entry and testing statutes contained in the Eminent Domain Law. (§§ 1245.010-1245.060.)
Section 1245.010 sets forth the general authority granted to public entities by the precondemnation entry and testing statutes. It provides: “Subject to requirements of this article, any person authorized to acquire property for a particular use by eminent domain may 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.” (Ibid.)
Section 1245.020 establishes the circumstances under which the property owner’s consent or, alternatively, a court order is required before a public entity can enter property to conduct precondemnation testing. The section provides: “In any case in which the entry and activities mentioned in Section 1245.010 will subject the person having the power of eminent domain to liability under Section 1245.060, before making such entry and undertaking such activities, the person shall secure: [¶] (a) The written consent of the owner to enter upon his property and to undertake such activities; or [¶] (b) An order for entry from the superior court in accordance with Section 1245.030.” (Ibid.) In this case, the Department has acknowledged that either the consent of the property owner or a court order is required under this provision before it may enter and conduct the proposed activities at issue here.
Section 1245.030 sets forth the procedure governing an order for entry. The section provides: “(a) The person seeking to enter upon the property may petition the court for an order permitting the entry and shall give such prior notice to the owner of the property as the court determines is appropriate under the circumstances of the particular case. [¶] (b) Upon such petition and after such notice has been given, the court shall 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 owner of the property for the actual damage to the property and interference with its possession and use. [¶] (c) After such determination, the court may issue its order permitting the entry. The order shall prescribe the purpose for the entry and the nature and scope of the activities to be undertaken and shall require the person seeking to enter to deposit with the court the probable amount of compensation.” (Ibid.)
Although section 1245.030 does not explicitly require the trial court to hold a hearing and afford the property owner an opportunity to present evidence relevant to the factors that the court is required to consider under section 1245.030, we conclude a hearing and an opportunity to be heard on a public entity’s entry petition is clearly contemplated by and implicit in the statutory scheme. The notice to the property owner required by section 1245.030 would make little sense if the owner had no ability to respond to the notice and make its views known prior to the issuance of any order, and the very next section—section 1245.040—explicitly provides that the court may modify any order entered under section 1245.030 “after notice and hearing” (§ 1245.040, subd. (a), italics added). In the present case, as we have seen, the trial court held extensive hearings on the Department’s petition and afforded the property owners the opportunity to participate in the hearings. We conclude the trial court did not err in so doing.
Section 1245.040 authorizes the trial court, after notice and hearing, to modify any order entered under section 1245.030 and to require the public entity to deposit additional funds if it determines the initial deposit is inadequate. The section provides: “(a) The court, after notice and hearing, may modify any of the provisions of an order made under Section 1245.030. [¶] (b) If the amount required to be deposited is increased by an order of modification, the court shall specify the time within which the additional amount shall be deposited and may direct that any further entry or that specified activities under the order as modified be stayed until the additional amount has been deposited.” (§ 1245.040.)
Section 1245.050 governs the deposited funds. It provides: “(a) Unless sooner disbursed by court order, the amount deposited under this article shall be retained on deposit for six months following the termination of the entry. The period of retention may be extended by the court for good cause. [¶] (b) The deposit shall be made in the Condemnation Deposits Fund in the State Treasury or, upon written request of the plaintiff filed with the deposit, in the county treasury. . . .” (Ibid.)
Finally, section 1245.060 addresses the property owner’s right to recover damages. The section provides: “(a) If the entry and activities upon property cause actual damage to or substantial interference with the possession or use of the property, whether or not a claim has been presented in compliance with [the California Tort Claims Act presentation requirements], the owner may recover for such damage or interference in a civil action or by application to the court under subdivision (c). [¶] (b) The prevailing claimant in an action or proceeding under this section shall be awarded his costs and, if the court finds that any of the following occurred, his litigation expenses incurred in proceedings under this article: [¶] (1) The entry was unlawful. [¶] (2) The entry was lawful but the activities upon the property were abusive or lacking in due regard for the interests of the owner. [¶] (3) There was a failure substantially to comply with the terms of an order made under Section 1245.030 or 1245.040. [¶] (c) If funds are on deposit under this article, upon application of the owner, the court shall determine and award the amount the owner is entitled to recover under this section and shall order such amount paid out of the funds on deposit. If the funds on deposit are insufficient to pay the full amount of the award, the court shall enter judgment for the unpaid portion. [¶] (d) Nothing in this section affects the availability of any other remedy the owner may have for the damaging of his property.” (Ibid.)
III. Do the Environmental and Geological Testing Activities That the Department Proposed to Conduct on the Landowners’ Properties Fall Within the Scope of the Current Precondemnation Entry and Testing Statutes?
We consider first the proper scope of the current precondemnation entry and testing provisions as a matter of statutory interpretation and legislative intent. In their briefing in this court, the landowners, relying upon the interpretation of an early California precondemnation entry statute in the 1923 Jacobsen decision (Jacobsen, supra, 192 Cal. 319), contend that the current entry and testing statutes are properly interpreted to authorize only innocuous entries and superficial testing. The landowners assert that the Department “overreached” and “urged a radical expansion” of the precondemnation entry and testing statutes in proposing to utilize the precondemnation statutory procedure to proceed with the type and amount of both environmental and geological activities sought to be conducted in this case. If, as the landowners maintain, the precondemnation entry and testing statutes were not intended to encompass the extensive environmental and geological activities proposed by the Department, the Court of Appeal ruling against both the environmental and geological activities could be upheld on that statutory basis alone, and there would be no need to reach any constitutional issue. For the reasons explained hereafter, however, we conclude that both the language and the legislative history of the precondemnation entry and testing statutes demonstrate that the statutes were intended to apply to the types of precondemnation activities at issue here.
To begin with, the plain language of the governing statute, on its face, appears to encompass the testing activities that the Department proposed to conduct. As set forth above {ante, p. 175), section 1245.010 explicitly authorizes a public entity that is authorized to acquire property by eminent domain to enter the 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.” Nothing in the statutory language indicates that the statute was intended to apply only to innocuous or superficial surveys or testing. The explicit fisting of “examinations, tests, soundings, borings, [and] samplings” {ibid., italics added) without qualification reasonably suggests that the Legislature contemplated that the statute would apply to all of the designated testing activities that are reasonably necessary to determine whether the public entity should utilize its authority to acquire the property for the stated public purpose by use of eminent domain.
As noted, the landowners contend that the relevant language of section 1245.010 cannot be read in isolation but must be understood in light of this court’s decision and holding in Jacobsen, supra, 192 Cal. 319. We agree that the Jacobsen decision provides a useful starting point for discerning the intended scope of the current precondemnation entry and testing statutes and accordingly we review that decision in some detail.
In Jacobsen, supra, 192 Cal. 319, the Petaluma Municipal Water District was considering acquiring privately owned land as a possible site for a reservoir that was needed to supply water to the residents of Petaluma. At the time, the land in question was being used for the cultivation of hay, grain, and other crops and for the operation of a dairy. The landowners initially granted the district permission to make some surface surveys and exantinations of the property, but objected when the district requested permission “to go upon their said lands with well-boring outfits, tools, machinery, and appliances for the purpose of boring holes and making excavations for the avowed object of ascertaining whether or not there was underneath the surface of . . . said lands rock strata or other formations suitable or necessary for the construction of dams and building of reservoirs . . . .” (Id. at p. 322.) The landowners maintained that the proposed activities “would result in substantial and irreparable injury to the . . . lands and crops and would be an invasion of their private property rights in their respective holdings.” (Ibid.)
The water district then filed an action against the landowners in superior court, seeking an injunction to prohibit the landowners from preventing the district’s employees from “entering upon or occupying” the property “for the purpose of making the excavations, borings, and subsoil exantinations” described in the complaint. (Jacobsen, supra, 192 Cal. at p. 322.) The complaint identified the precise location of the proposed test holes and test pits and stated that the test holes would be from three to eight inches in diameter and 150 feet or more deep and that the test pit excavations would measure about four feet by six feet and be up to 15 feet in depth. The complaint noted that the proposed activities would require the presence on the landowners’ property of four persons for a period of about 60 days with occasional visits from the district’s officials. The complaint further acknowledged that some of the locations in question contained growing crops of hay and grain that would be damaged or destroyed by the proposed activities. However, the complaint stated that upon completion of the activities the district “would restore the lands ... to their original condition by filling in said test holes and excavations and by removing their appliances from said lands.” (Id. at p. 323.) The trial court granted the injunction sought by the district, ordered the district to deposit $1,000 as security for any damage that might be caused to the property by the activities permitted by the order, and then stayed its order to give the landowners an opportunity to seek writ relief. (Id. at p. 324.)
The landowners sought writ relief in this court, maintaining that the trial court’s injunctive order was invalid as a violation of the state constitutional takings clause, then set forth in former article I, section 14 of the California Constitution (now art. I, § 19, subd. (a)). In analyzing the issue, the Jacobsen court observed at the outset that ‘“[i]t is conceded by the respondents [i.e., the district] in their briefs . . . that if the entry upon and exantination of the lands of the petitioners herein, as applied for and permitted in the above-mentioned action, would amount to the taking or damaging of petitioners’ property within the meaning of section 14 of article I of the state constitution, the said order of the court would be violative of that provision of the constitution.” (Jacobsen, supra, 192 Cal. at p. 324.) The court explained that the district’s position was that the activities at issue would not amount to a taking or damaging of property for purposes of the state takings clause, but instead were acts that were permitted under the terms of the sole then-existing entry statute, former section 1242 of the Code of Civil Procedure (as enacted 1872). At the time, former section 1242 read in full: ‘“In all cases where land is required for public use, the state, or its agents in charge of such 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 subject to the provisions of section twelve hundred and forty-seven. The state, 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 of the owners of the land, except for injuries resulting from negligence, wantonness, or malice.” (The Code Civ. Proc. of the State of California (Deering edit. 1923) § 1242, p. 674, italics added.)
In considering whether the activities at issue in that case constituted the taking or damaging of property within the meaning of the state takings clause, the court in Jacobsen first reviewed the history of the state takings clause, explaining that the relevant constitutional provision was amended at the 1879 Constitutional Convention to add the words ‘“or damaged” to the provision. (See Jacobsen, supra, 192 Cal. at pp. 326-327.) The court then reviewed the activities the district proposed to undertake on the landowners’ property and stated that the court ‘“entertain[ed] no doubt” that the proposed acts amounted to a taking or damaging of property under the state takings clause. (Id. at p. 328.) The court observed in this regard: ‘“[The district] proposes to enter upon the petitioners’ private lands, in advance or absence of any condemnation proceeding, with a force of employees and with mechanical structures operated by steam or gasoline enginery and with other appliances and implements suited to the execution of its intended purpose, which is that of making a number of test borings from three to eight inches in diameter and of a depth of 150 feet or more at various points upon petitioners’ said lands, and also of making at other places thereon excavations of an area of four by six feet and of a depth of fifteen feet, and of occupying so much of said lands as shall be needed for ingress and egress and for the accomplishment of the foregoing purposes, and of trampling down and destroying the growing grain of the petitioners over the area to be occupied during such operations, and of building fences around such test holes and excavations for the better protection thereof pending such operations.” {Ibid.) The court concluded: ‘“It is idle to attempt to argue that such entry, occupation, disturbance, and destruction of the properties of these petitioners would not constitute such an interference with their exclusive rights to the possession, occupation, use, and enjoyment of their respective holdings as would amount to a taking and a damaging thereof to the extent and during the period of such entry upon said lands and of the operations of the [district] thereon.” {Ibid.)
Finally, in response to the district’s contention that the proposed activities in that case were authorized by the terms of former section 1242—which, as we have seen, referred to the state’s entry of land to “make exantinations, surveys, and maps thereof’—the court in Jacobsen concluded that the statute could not properly be interpreted to apply to the district’s proposed conduct. The court stated in this regard: “The opening sentence of the section apparently contemplates the existence and pendency of [condemnation] proceedings as a basis for whatever entry upon or examination of the lands of private owners affected thereby is permitted by the succeeding clauses of the section. But however this may be, it is clear that whatever entry upon or examination of private lands is permitted by the terms of this section cannot amount to other than such innocuous entry and superficial examination as would suffice for the making of surveys or maps and as would not in the nature of things seriously impinge upon or impair the rights of the owner to the use and enjoyment of his 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.) As already noted, at that time former section 1242 did not require a public entity to obtain prior judicial authorization or deposit funds before entering and conducting exantinations, surveys, and mapping, and permitted a landowner to maintain an action for damages only for an injury resulting from the public entity’s negligence, wantonness, or malice.
The landowners in the present case contend that because the Jacobsen court concluded that the provisions of the entry statute at issue in that case—former section 1242—were properly interpreted to apply only to innocuous entries and superficial examinations of private property, the current precondemnation entry and testing statutes should similarly be interpreted to apply only when the activities listed in the statutes are innocuous or superficial in intensity or scope. As we explain, the post-Jacobsen legislative history of the current statutes clearly refutes the landowners’ proposed interpretation of the current statutes.
As we have seen, in Jacobsen the drilling and excavation activities were proposed by a water district that was investigating the suitability of the property in question for use as a site for a reservoir. In 1959, the Legislature enacted a new entry statute—former section 1242.5—which applied specifically and exclusively to precondemnation entry and exploration intended to determine the suitability of property for reservoir purposes. (Stats. 1959, ch. 1865, § 1, pp. 4423-4424.) In context, it is evident that the statute was a direct legislative response to Jacobsen.
As enacted in 1959, former section 1242.5 authorized a public entity that has the power to condemn land for reservoir purposes to survey and explore property to determine its suitability for such use by complying with the requirements set forth in the statute. Under the 1959 version of former section 1242.5—unlike the version of former section 1242 that was in effect at the time of Jacobsen—an entity empowered to condemn land for reservoir purposes was required to petition the superior court for permission to undertake such survey and exploration, and the superior court was required to ascertain whether the entry was sought in good faith for such purposes and to require the entity to deposit cash security “in an amount sufficient to compensate the landowner for any damage resulting from the entry, survey, and exploration.” (Stats. 1959, ch. 1865, § 1, p. 4423.)
Although the 1959 statute did not spell out the particular activities that were authorized under the statute, because the statute was directed specifically at exploration to determine a property’s suitability as a reservoir site, it is clear that the legislation was intended to apply to the kind of deep drilling and excavations that are inevitably required in evaluating whether property is suitable for such a purpose. (See Van Alstyne, Inverse Condemnation: Unintended Physical Damage (1969) 20 Hastings L.J. 431, 510 (Unintended Physical Damage) [“Section 1242.5 was designed to meet the special problem of substantial property damage likely to occur from the kinds of technical operations, including soil tests, trenching, and drilling operations, often necessitated by reservoir investigations” (fn. omitted)].) The Legislature evidently was of the view that the additional requirements imposed by the 1959 legislation—which compelled the public entity to obtain judicial authorization and to deposit an amount sufficient to compensate the property owner for any damage resulting from the entity’s activities prior to entering the property and conducting such activities—overcame the constitutional objections to a public entity’s undertaking of such extensive precondemnation testing activities that had animated the Jacobsen decision.
In 1969, the California Law Revision Commission published a report including a chapter entitled “Damages Arising from Entries for Survey and Examination” that dealt specifically with the subject at issue here. (Recommendation Relating to Sovereign Immunity: No. 10—Revisions of the Governmental Liability Act (Sept. 1969) 9 Cal. Law Revision Com. Rep. (1969) pp. 811-815 (1969 Law Revision Commission Report).) The report explicitly discussed the Jacobsen decision (id. at p. 811), and stated that “[t]he holding in the Jacobsen case has been partially overcome by a special statutory procedure, provided in 1959 by enactment of Section 1242.5 of the Code of Civil Procedure. Section 1242.5 is limited to public entities that have the power to condemn land ‘for reservoir purposes’ ” (1969 Law Revision Com. Rep., at pp. 811-812; see also A Study Relating to Sovereign Immunity (Jan. 1963) 5 Cal. Law Revision Com. Rep. (1963) p. 110, fn. 5 (1963 Van Alstyne Study) [“In the case of surveys and tests to determine the suitability of lands for reservoir purposes, the restrictive influence of the Jacobsen case . . . has been eliminated by a special statutory procedure established in Cal. Code Civ. Proc. § 1242.5, enacted in 1959.”]).
The 1969 Law Revision Commission report observed that, like investigations necessary to determine the suitability of potential reservoir sites, the necessary precondemnation exploration of potential sites for other public projects in addition to reservoirs may also “involve activities 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 of earth, use of explosives, or employment of vehicles or mechanized equipment.” (1969 Law Revision Com. Rep., 9 Cal. Law Revision Com. Rep., supra, at p. 814, italics added.) Noting that “[rjepresentatives of local public entities have suggested that the deposit-and-court-order system provided by Section 1242.5 be extended to all types of condemnors without limitation as to the purpose of the contemplated acquisition,” the report ultimately recommended that “Section 1242.5 should be expanded to cover entries for any purpose for which land may be acquired by condemnation.” (Ibid.) Furthermore, the report also recommended, as a clarifying companion measure, the addition of a new provision (Gov. Code, § 816) to the California Tort Claims Act, ‘“providing that, in connection with any entry upon private property to conduct surveys, explorations, or similar activities, a public entity is liable for ‘actual damage’ to property or for ‘substantial interference’ with the owner’s use or possession” (1969 Law Revision Com. Rep., 9 Cal. Law Revision Com. Rep., supra, at p. 815).
The following year, the Legislature amended section 1242.5 and added a new section 816 to the Government Code, as recommended in the 1969 Law Revision Commission report. As amended in 1970, section 1242.5 applied to all entities having the power of eminent domain and required all such entities, in the absence of the property owner’s consent, to obtain a court order and deposit an amount to compensate the landowner for any resulting damage before entering and undertaking any activities that would result in any actual damage or substantial interference with the owner’s possession or use of the property. As amended, section 1242.5 applied to all entries and activities specified in section 1242 as amended in the same bill (former § 1245.5, subd. (a), as amended by Stats. 1970, ch. 662, § 3, p. 1289), and thus specifically applied to entries ‘“to make studies, surveys, examinations, tests, soundings, or appraisals or to engage in similar activities reasonably related to the purpose for which the power may be exercised.” (Former § 1242, subd. (b), as amended by Stats. 1970, ch. 662, § 2, p. 1288.) The newly enacted section 816 of the Government Code explicitly provided that, notwithstanding the general provision of the California Tort Claims Act affording immunity to a public employee arising out of an entry upon property when the entry is expressly or impliedly authorized by law (Gov. Code, § 821.8), a public entity is liable for actual damage to property or for a substantial interference with the possession or use of property when such damage or interference arises from an entry pursuant to sections 1242 or 1242.5 of the Code of Civil Procedure to engage in the activities embodied in those sections (Gov. Code § 816, added by Stats. 1970, ch. 1099, § 3, p. 1957).
In 1975, as the culmination of a multiyear effort to update and reorganize California’s eminent domain statutes into a comprehensive statutory scheme, the Legislature enacted a new, lengthy, and detailed Eminent Domain Law. (Stats. 1975, ch. 1275, §§ 1-5, pp. 3409-3466.) The new Eminent Domain Law moved and revised the then-existing precondemnation entry and testing provisions of former sections 1242 and 1242.5 into a new, separate article of the Eminent Domain Law (Code Civ. Proc., tit. 7, ch. 4, art. 1), containing the current precondemnation entry and testing statutes—sections 1245.010 to 1245.060—that we have set forth above. (See ante, pp. 174-177.)
Although the legislative history of the 1959 and 1970 versions of former sections 1242 and 1242.5 makes it quite clear that those statutes were intended to encompass drilling or boring along with the other activities typically required to determine the suitability of property as a potential site for a contemplated reservoir or other public project (see ante, pp. 181-183), the prior statutes did not explicitly include “drillings” or “borings” as one of the activities specifically listed in the statute. As enacted in 1975, the current applicable statute specifically includes “borings” as one of the listed categories of activities to which the precondemnation entry and testing statutes apply. (§ 1245.010 [authorizing entry “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”].) In this regard, the 1975 California legislation closely tracks the comparable provision of the Uniform Law Commissioners’ Model Eminent Domain Code, a model code that had been adopted by the National Conference of Commissioners on Uniform State Laws a year earlier in 1974. (13 pt. 1 West’s U. Law Ann. (2002) U. Eminent Domain Code, § 301, subd. (a), p. 30 [“A condemnor . . . may enter upon real property and make surveys, examinations, photographs, tests, soundings, borings, and samplings, or engage in other activities for the purpose of appraising the property or determining whether it is suitable and within the power of the condemnor to take for public use . . . .”].)
In sum, the language of the current precondemnation entry and testing statutes does not limit the listed activities to activities that are only innocuous or superficial. The legislative history of the current statutes demonstrates a legislative intent to create a procedure under which a public entity that is considering acquisition of property for a public project can conduct the type of extensive investigatory testing and exploration that the Jacobsen decision concluded was not permitted under the entry statute in effect at that time. Lor these reasons, we conclude that the current precondemnation entry and testing statutes are properly interpreted to encompass the type and degree of precondemnation environmental and geological testing at issue here. Accordingly, we reject the landowners’ claim that the Department overreached in invoking the precondemnation entry and testing statutes in order to obtain authority to conduct the precondemnation activities proposed in this case.
Having concluded that the precondemnation statutes were intended to and do apply to these proposed activities, we turn to the constitutional question.
IV. Did the Court of Appeal Correctly Conclude That an Order Issued Pursuant to the Precondemnation Entry and Testing Statutes Would Violate the Takings Clause as Applied to (1) the Environmental Activities Authorized by the Trial Court and (2) the Geological Activities Proposed by the Department?
Both the United States Constitution and the California Constitution provide that when a public entity takes private property for a public use just compensation must be paid to the property owner. (U.S. Const., 5th amend, [federal takings clause]; Cal. Const., art. I, § 19, subd. (a) [state takings clause].) The United States Supreme Court has long held that the federal takings clause applies to the states through the Fourteenth Amendment. (Chicago, Burlington &c. R’D. v. Chicago (1897) 166 U.S. 226, 239 [41 L.Ed. 979, 17 S.Ct. 581].)
A. Federal Takings Clause
The federal takings clause, as embodied in the Fifth Amendment of the United States Constitution, provides simply and concisely: “nor shall private property be taken for public use without just compensation.”
In general, the United States Supreme Court has interpreted the federal takings clause to require a state to establish a procedure through which a property owner, whose property has been taken, can recover just compensation after a taking has occurred. The federal takings clause has not been construed to require a state to adopt any particular type of eminent domain procedure or to compel a public entity either to initiate an eminent domain proceeding or to pay just compensation before engaging in conduct that results in a taking of property within the meaning of the federal takings clause.
In Williamson Planning Comm’n v. Hamilton Bank (1985) 473 U.S. 172, 194-195 [87 L.Ed.2d 126, 105 S.Ct. 3108] (Williamson), the high court explained in this regard: “The Fifth Amendment does not proscribe the taking of property; it proscribes taking without just compensation. [Citation.] Nor does the Fifth Amendment 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.] If the 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.”
Furthermore, although the high court has made clear that just compensation under the federal takings clause is to be determined by what the property owner has lost, not by what the public entity has gained (see, e.g., Brown v. Legal Foundation of Wash. (2003) 538 U.S. 216, 235-236 [155 L.Ed.2d 376, 123 S.Ct. 1406] [“[T]he ‘just compensation’ required by the Fifth Amendment is measured by the property owner’s loss rather than the government’s gain”]), the governing decisions make clear that there is no single formula or standard for ascertaining an amount that constitutes just compensation. As the high court stated in U. S. v. Virginia Electric Co. (1961) 365 U.S. 624, 633 [5 L.Ed.2d 838, 81 S.Ct. 784]: “The guiding principle of just compensation is reimbursement to the owner for the property interest taken. ‘He is entitled to be put in as good a position pecuniarily as if his property had not been taken. He must be made whole but is not entitled to more.’ [Citation.] In many cases this principle can readily be served by the ascertainment of fair market value—‘what a willing buyer would pay in cash to a willing seller.’ [Citations.] But this is not an absolute standard nor an exclusive method of valuation.” (See, e.g., United States v. Commodities Corp. (1950) 339 U.S. 121, 123 [94 L.Ed. 707, 70 S.Ct. 547] [“This Court has never attempted to prescribe a rigid rule for determining what is ‘just compensation’ under all circumstances and in all cases. Fair market value has normally been accepted as a just standard. But when market value has been too difficult to find, or when its application would result in manifest injustice to owner or public, courts have fashioned and applied other standards.” (fn. omitted)]; United States v. Toronto Nav. Co. (1949) 338 U.S. 396, 402 [94 F.Ed. 195, 70 S.Ct. 217] [“Perhaps no warning has been more repeated than that the determination of value cannot be reduced to inexorable rules.”].)
As we have seen, the current precondemnation entry and testing statutes not only establish a statutory compensation procedure but also expressly preserve a property owner’s right to pursue and obtain damages in a statutorily authorized civil action or an ordinary inverse condemnation action. (§ 1245.060, subds. (a), (c), (d).) Taken as a whole, state law clearly provides “a ‘ “reasonable, certain and adequate” ’ ” procedure (Williamson, supra, 473 U.S. at p. 194) to enable a property owner to recover money damages for any injury caused by the activities authorized by the statutes. In their briefing, the landowners do not address the prerequisites to a federal takings claim, set forth in the Williamson decision (see 473 U.S. at pp. 196-197 [holding federal takings claim premature where property owner had not pursued available state inverse condemnation action]). Nor do they cite any decision that holds that the damages authorized by the precondemnation entry and testing statutes and California’s inverse condemnation principles are, on their face, inadequate to constitute just compensation under the federal takings clause for the type of precondemnation entry and testing activities authorized by the statutes. (Cf., post, pp. 203-207 [explaining that damages authorized by the precondemnation entry and testing statutes constitute just compensation for purposes of state takings clause].) Furthermore, because the landowners have mounted this challenge before the Department has undertaken any activities and before any determination has been made as to the damages to which the landowners are entitled under the relevant statute and California inverse condemnation principles, it cannot be determined at this point that the available California procedures have not “ ‘yield[ed] just compensation.’ ” (Williamson, supra, 473 U.S. at p. 194.) Accordingly, the landowners’ current constitutional challenge cannot rest on the federal takings clause.
B. California Takings Clause
The takings clause of the California Constitution, currently embodied in article I, section 19, subdivision (a), provides: “Private 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 Legislature may provide for possession by the condemnor following commencement of e