Judge: State Can't Test On Private Property For Delta Tunnel Project

SACRAMENTO (CBS13) — Landowners scored a victory today as an appeals court ruled against the state doing testing on private property for the Delta tunnel project.

The state wants to build two 30-mile tunnels to send fresh water around the Delta to Central and Southern California. A lot of testing is needed on private property for the $25 billion project, and landowners say the state overstepped its bounds and didn't compensate them.

"You can't just demand access to property just because you think you might someday want to do a project there," said Sacramento farmer Russell van Loben Sels.

He says that's what the state tried to do years ago, because they want to build two tunnels through the Delta to divert water around it.

More than 100 Delta landowners like Russell went to court, saying the state's intrusive soil tests, which could happen day or night, amounted to taking of the land, and that the state needed to pay up.

But this week, after years of legal battles, an appeals court said the state can't go onto private property for testing unless they do it through the eminent domain process that gives landowners a jury trial to decide how much the state would pay people like Russell for using his land.

Russell says the state had the wrong attitude the whole time.

"Right from the beginning: 'This is the way it is guys; you're going to have to live with it,'" he said.

Nancy Vogel is with the Department of Water Resources, the agency behind the Delta tunnels project.

"We're disappointed," she said. "We were hoping not to have to use the eminent domain process."

She says the ruling favoring landowners isn't likely to slow their plans.

"Our lawyers are trying to decide whether to appeal, and I'm sure they'll make that decision soon," Vogel said.

As for Russell, he says it's less about the tunnels and more about the way the state tried to step on landowners.

"I think it's more about land right, private property rights," he said.