Collateral Damage

Jarvis Group “Faux” Eminent Domain Reform Would Sink
Water Projects in California
by Mike Madrid

Once a decade or so a special interest group or candidate for office commits a political snafu of such proportions that it sets a new standard for unintended consequences. Think Walter Mondale trying to connect with middle class voters in 1984 proclaiming to the American people “I will raise your taxes! I’m admitting it and the other guy isn’t.”

No surprise this came a few weeks before the greatest electoral landslide defeat in history against Ronald Reagan.

What was he thinking?

And just when it appeared as though the 2000’s were slipping away from us without such a mistake, a multi-million dollar misstep has occurred in the form of a faux “eminent domain reform measure” that is really an attempt to prevent rent control ordinances by enshrining it in the state constitution.

Jarvis Group “Faux” Eminent Domain Reform Would Sink
Water Projects in California
by Mike Madrid

Once a decade or so a special interest group or candidate for office commits a political snafu of such proportions that it sets a new standard for unintended consequences. Think Walter Mondale trying to connect with middle class voters in 1984 proclaiming to the American people “I will raise your taxes! I’m admitting it and the other guy isn’t.”

No surprise this came a few weeks before the greatest electoral landslide defeat in history against Ronald Reagan.

What was he thinking?

And just when it appeared as though the 2000’s were slipping away from us without such a mistake, a multi-million dollar misstep has occurred in the form of a faux “eminent domain reform measure” that is really an attempt to prevent rent control ordinances by enshrining it in the state constitution.

Just one year after voters rejected a similar scheme (Prop 90), special interests are once again promoting a bait and switch initiative they claim is only about eminent domain reform. Those of us following the deceptive “California Property Owners and Farmland Protection Act” (promoted by the Farm Bureau, Howard Jarvis Group and others) have all known that the measure goes far beyond simple eminent domain reform and contains far-reaching provisions that would eliminate rent control, eviscerate local land-use planning and jeopardize environmental protections – much like Prop. 90 would have.

But there is an additional, potentially fatal flaw in the measure, which is quickly being labeled as the “water bomb”. However, an initiative currently circulating signatures – the so-called California Property Owners and Farmland Protection Act (CPOFPA) – threatens existing water quality and delivery projects as well as all future water delivery and storage projects in the state. Here’s how.

Either intentionally or through negligence, the CPOFPA would make it illegal to use eminent domain to acquire land and water to develop public water projects. The initiative's proposed amendment to California Constitution Article 1, section 19(a) prohibits the taking of private property for "private use." Proposed section 19(b)(3)(ii) defines "private use" as including: 

transfer of ownership, occupancy or use of private property or associated property rights to a public agency for the consumption of natural resources or for the same or a substantially similar use as that made by the private owner; (Emphasis added.)

Section 19(b)(3)(ii)  expressly designates as a "private use" the transfer of property rights to a "public agency" for the "consumption of natural resources." Thus, it is clear that property transfers under eminent domain or threat of eminent domain to a public agency for the purpose of consumption of natural resources (i.e. – water projects) are prohibited.

All elements of a public water project involve the "consumption of natural resources”. By eliminating a necessary tool to develop new water delivery and storage systems, the CPOFPA puts in jeopardy a great number of water projects that we need to deliver clean drinking water and to secure new sources of water, including:

• Acquisition of land for reservoirs and surface storage
• Construction of projects to deliver water for domestic use, such as for drinking water, irrigation, commercial or industrial uses
• Right-of -way for pipelines (underground and above ground) and canals to deliver water to new homes and businesses
• Acquisition of new well-water sources
• Water rights needed to convey water to farms and agriculture
• Acquisition of land for pumping sites
• Right-of-way for new canal around the Delta
• Acquisition of water rights

The Governor, Republicans, Democratic leaders, business, labor and farmers are in the midst of a major push to try to increase water capacity in California, including through new water storage sources.  Water and legal experts believe the water-related provisions in the CPOFPA would literally “sink” all forms of future water projects, like new pipelines, water storage, well water sources, and other projects to secure and deliver clean drinking water to the public.

This measure strikes at the heart of Governor Schwarzenegger’s vision for supplying water to California in the future. It also turns Republican plans for water storage and delivery on its head.

Wait, it gets better.

Ironically, one of the primary funding sources for the CPOFPA is the California Farm Bureau Federation. They’ve contributed more that $200,000 to the signature gathering drive for this measure. The Farm Bureau has also long been one of the loudest voices advocating for additional water storage capacity in California.

Oops.

Normally we would file this under “picking your own poison” but we never thought we’d have to add “and pay for it too.”

What do you think?  The Comments section is open by clicking just below.  You can also read more on this story in today's Sac Bee

Comments

[Marko Mlikotin]

Mike.. since your organization certainly encourages diverse opinions, they might be interested in what the Insitute for Justice thinks -- especially since they represented Ms. Kelo before the U.S. Supreme Court.

ANALYSIS OF THE PUBLIC AND PRIVATE USE PROVISIONS IN THE
CALIFORNIA PROPERTY OWNERS AND FARMLAND PROTECTION ACT

August 22, 2007

A recent news article in the Sacramento Bee, quoting the opinion of a law firm retained by the proponents of a competing ballot initiative, suggests that the California Property Owners and Farmland Protection Act (“Act”) will prohibit the use of eminent domain for the construction or expansion of water projects. This interpretation is wrong.

The language of the Act retains the constitutional guarantee that private property can be taken for a public use. Nothing changes there. In addition, the Act specifically defines “public use” to include “public utilities.” Water projects such as drainage ditches, sewers, reservoirs, dams, drinking water and irrigation have long been accepted as public uses and there is considerable case law and historical evidence that confirms this fact. Water projects will not be affected should the Act pass.

What the Act would prohibit, however, is the government taking property from a private owner in order to become a market participant. 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 Rhode Island Supreme Court recently ruled on such a case and stopped such a taking.

The U.S. Supreme Court’s case in Kelo v. City of New London, which permits the government to take property from one private individual and transfer it to another for the purpose of economic development, has rightly highlighted this type of abuse in California. Traditionally, public use has meant projects owned and used by the government and its citizens. The Act would continue to allow that, including water projects.

Steven Anderson serves as Director for the Institute for Justice’s Castle Coalition. He educates and inspires property and business owners, elected officials and journalists in the fight to end eminent domain abuse. The Institute for Justice is a non-profit, public interest law firm that seeks to protect all Americans from the abuse of eminent domain. IJ litigated the Kelo case before the U.S. Supreme Court.