Small Business Argues State Agency Owes Compensation for Physical Invasions of Land

Date: March 24, 2015

Karen Harned, Executive
Director of NFIB’s Small Business Legal Center,
made the following statement in response to
NFIB’s amicus brief filing in Property Reserve v. Department of Water
 In this case the California Supreme Court will decide
whether state agents violated either the state or federal Constitution in
repeatedly entering private property over the course of several months. The
Department of Water Resources maintains that it acted within the law because
these intrusions were carried out for the purpose of conducting environmental
and engineering studies, which were necessary as the State is considering plans
to build an underground aquifer between northern and southern California. Last
week the NFIB Small Business Legal Center and the Owners Counsel of America
filed a joint brief arguing that
any non-trivial physical invasion of property is a per se taking.

“It is well established
that any non-trivial invasion of private property constitutes a per se
taking—which means the government has an obligation to compensate landowners
when intruding upon their land. And in this case DWI’s invasions were far from
trivial; not only did the agency continuously enter private property over the
course of several months, but the agency was boring holes in the land. In
response they argue that the sky will fall if courts enforce the Constitution.
But constitutional principles cannot yield to the government’s expedient

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