Rex Heinke Participates in Daily Journal Podcast on Landowner Rights Case

Rex Heinke, co-head of Akin Gump’s Supreme Court and appellate practice, was a featured guest once again on The Weekly Appellate Report, a podcast produced by California legal publication Daily Journal.

Heinke discussed the California Supreme Court’s balancing of landowner rights and government agency access in the recent case Property Reserve vs. Superior Court, in which the court ruled that the state could move forward with a plan by Gov. Jerry Brown that would potentially create massive tunnels to convey water from the Sacramento River to suppliers throughout California. Under the plan, the state would need to enter private lands to do this, but the court said temporary entrées into private land are within the government’s purview.

Heinke first talked about the petitioners in the case, who, he said, were owners of 150 parcels of private land on which the government and, more specifically, the California Department of Water Resources, wanted to conduct tests. He said the case centered on the state’s desire to determine the feasibility “of either a new tunnel or a new canal in the Sacramento/San Joaquin Delta, which would deliver fresh water from Northern California to Southern California.”

Heinke said there were two kinds of tests the state wanted to conduct—what the court called “environmental studies” and “geological testing.” The former, he said, consisted of doing maps and surveys of these parcels of land to determine what plants and animals were there and what the soil was like. For the geologic testing, the state wanted to drill and bore holes for purposes of determining whether a canal or tunnel could be built. Heinke said that, while the environmental tests were not considered too burdensome, with the trial court placing certain limits on access to the land, the geological testing was not permitted.

Heinke also talked about whether the tests, both geological and environmental, were permitted under eminent domain—both state and federal statute.  In addition, he outlined the steps one must follow under eminent domain to gain access to one’s land.

Finally, Heinke said the ruling was “a reasonable compromise between the competing interests of the property owners to not have the government interfere with their property without compensation.  On the other hand, [there are] the interests of the government in conducting these pre-condemnation proceedings to figure out whether it even has any interest in condemning the property. I think it’s a pretty practical commonsense decision.”

And finally, making a prediction, Heinke said he doesn’t think the case is likely to be heard by the U.S. Supreme Court, as there doesn’t appear to be any conflict in the case law.