Environmental groups are lining up to oppose the Howard Jarvis Taxpayers Association’s eminent-domain initiative at the ballot box next year. But if the measure becomes law, they also say they could be among the first ones to use it.
The initiative would place such strict controls on eminent domain, environmental groups say, it could become a major tool in stopping water projects they don’t like. However, it might not be an effective tool against some of the GOP’s most coveted water projects because they wouldn’t rely on eminent domain.
Jarvis Association president Jon Coupal characterized the opposition’s “cursory legal analysis” as “flawed, to be charitable.” Meanwhile, other legal analyses are on the way. Multiple sources said the Legislative Counsel is looking at the issue, and that the Schwarzenegger administration is also seeking a legal opinion.
The Sierra Club is among several environmental groups lining up to fight the Jarvis measure because they say it contains numerous clauses that would make it difficult to enforce environmental laws. But if it became law, they might still use it.
“We’d consider it,” said Bill Allayaud, legislative director for the Sierra Club of California. “You look at every tool when you’re fighting something as environmentally destructive and fiscally irresponsible as a new dam.”
The issue first came to light in late August, when the law firm of Nielsen-Merksamer did a legal analysis for their client, the League of California Cities, which is sponsoring a competing measure. The regulatory takings clause was so strict that it could easily be used to bring a large water project to a crashing halt, according to the analysis by former chief assistant attorney general Richard Martland, who now works for Nielsen-Merksamer. On August 24, the Association of California Water Agencies sent out a letter raising concerns over the clauses in the initiative relating to “consumption of natural resources” and substantially similar use–clauses they say could be construed to block most uses of eminent domain.
“Other people are looking at it and concluded we’re right,” said Steve Merksamer.
He’s referring to people who aren’t with the Jarvis Association or their partners in the initiative effort, namely the California Farm Bureau Federation. The Farm Bureau put $25,000 into the initiative effort in June, and has also helped fund other Jarvis projects.
The Martland analysis caused them to go look back at the initiative, Coupal said. Not only did both group’s own legal teams look at it, Coupal said, but outside groups like the Pacific Legal Foundation did, as well. A Legislative Analysts Office analysis of the measure did not mention any problems with water projects, Coupal said, and also noted exceptions for “public utilities.”
They also had their own legal opinion, written by Stuart Somach, an attorney who has frequently represented counties and water districts on takings issues. Dated August 23, Somach’s analysis concluded the relevant clauses “does not preclude the use of eminent domain to acquire property necessary for the construction of water storage or conveyance projects.”
The more plausible explanation, Coupal said, is that environmental groups are
trying to “poison” the measure among conservative voters by saying it could make them more powerful.
“We all looked at it and said this in nonsense,” Coupal said. He added, “It is our opinion that it is an entirely manufactured issue.”
If the measure did become law, that theory could be tested very quickly, said one of Allayaud’s Sierra Club colleagues, water policy expert Jim Metropulos. “Someone would grab the opportunity and sue.”
However, a spokesman for the National Resources Defense Council said their main goal would be to never get to that point.
“I couldn’t speculate on what we would do if the initiative passed, especially since our intention is to fight the initiative,” said Craig Noble. That is because the initiative would do several other things that Democrats in general and environmentalists in particular wouldn’t like, including banning rent control.
The issue could potentially split Republicans. Schwarzenegger and Senator Dave Cogdill, R-Fresno, are pushing for surface-water storage/dam projects. Both have been quoted expressing concern about the initiative, which still needs about 700,000 signatures to get on the ballot.
“This measure is a dagger in the heart of the governor’s program,” Merksamer said.
Schwarzenegger has called a special session on water, which so far has consisted mainly of private negotiations. However, there is a short list of four or five projects that have long been on the GOP wish lists. The dam site at the top of this list, known as Temperance Flat, would likely not be affected, since it sits on federal land. The Contra Costa Water District also own most of the land that would be needed for the Los Vaqueros dam site.
Meanwhile, the Westlands Water District has bought up much of the land that would be needed for the Shasta site. The Delta Wetlands project–considered dead on arrival by many–would likely not be effected, either. Most of the land in question is owned by people who would love to sell, according to sources close to the situation, many of them speculators who bought the land for this express purpose.
This leaves the Sites Reservoir as the one project on the list that would likely get a bulls-eye on it if the Jarvis initiative passed. Versions of all of these projects except Shasta appear in the Schwarzenegger’s plan, which is a federal project.
Still, these projects have another problem, according to Pete Price, legislative advocate for the California League of Conservation Voters. They don’t have enough of a constituency, since they would mainly go to agricultural users who already gulp 80 percent of California’s water.
“Any of these surface water storage projects are mainly going to be ag water,” Price said. “The urban water districts don’t want these dams.”