By Kevin Yamamura

A proposed initiative limiting how governments seize private property has drawn concerns from Gov. Arnold Schwarzenegger and a Republican state senator that it could block construction of dams and a Delta canal.

A legal analysis issued this week by Richard Martland, a former state attorney general official, argues that the eminent domain initiative would prevent government from taking private land “for the consumption of natural resources,” including water storage. Martland wrote the analysis for initiative opponents, including environmentalists and local governments.

The initiative is backed by the Howard Jarvis Taxpayers Association and the California Farm Bureau Federation after a U.S. Supreme Court decision in 2005 allowed cities to transfer property from one private owner to another for redevelopment, enraging property rights groups.

Jon Coupal, president of the Howard Jarvis group, charged Tuesday that the Martland analysis was flawed because Coupal believes the initiative does not restrict large public works projects. Proponents have circulated petitions since June and plan to collect the necessary 694,354 signatures without changing the initiative language, he said.

Though the analysis was written for opponents, some state leaders, including one who backed an unsuccessful eminent domain change last year, say the initiative’s wording raises eyebrows and demands further legal interpretation.

“As I read it, there’s certainly reason for concern for what it means for the future of water projects in California, especially as it pertains to new water storage,” said state Sen. Dave Cogdill, R-Modesto, who backed an eminent domain initiative last year. “We’ll continue to monitor it, and hopefully we can find some resolution here.”

Cogdill carried legislation this year for Schwarzenegger that included a $5.9 billion bond for new water storage and conservation. The governor and legislative Republicans have made water storage one of their top priorities this year.

The Republican governor spent Tuesday in Los Angeles with U.S. Sen. Dianne Feinstein, D-Calif., at a meeting they convened to explore ways to improve the Sacramento-San Joaquin Delta and California’s water system.

Schwarzenegger Communications Director Adam Mendelsohn said, “We are very concerned about this issue and are analyzing the language carefully.” He added that anything that would undermine the state’s ability to build new water storage would be “a major problem.”

John Gamper, director of taxation and land use for the California Farm Bureau Federation, said the initiative is narrowly tailored to restrict government seizure of natural resources derived from a particular plot of land, not public water storage projects such as dams or a canal.

He added that the Farm Bureau, whose members clamor for new water storage in California, would never have drafted an initiative that undermines dams. He said the Martland analysis was “tortured logic.”

“Public facilities are clearly exempt and are clearly not included,” Gamper said. “That’s a public use. We’re talking about the transfer of private property for private use.”

The dispute hinges on a clause in the initiative that defines “private use” as the transfer of property “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.” Such “private use” property transfers would face new restrictions.

Proponents say that clause pertains only to instances where governments would seize private dams or land that contains resources such as natural gas reserves. But Martland said the clause is so broad that it would hamper public purchases of land for construction of new water storage.

“We don’t know if this is an effort to intentionally sabotage the development of new water or whether this is the mother of all drafting errors,” said Steve Merksamer, for whose firm Martland wrote the analysis. “But we do know that, as drafted, this is the dagger in the heart of new water projects.”

Merksamer said backers would have to resubmit their initiative and recollect signatures if they want to avoid damaging future water projects.

In 2005, the U.S. Supreme Court ruled that cities could seize property for redevelopment after a challenge arose over a Connecticut town’s plan to build an entertainment district along a waterfront.

The Howard Jarvis group last year backed a California initiative, Proposition 90, to curtail governments’ ability to seize property for use by another private owner. It also required governments to compensate private property owners, a provision critics said would result in reimbursement claims for losses associated with environmental laws.

Schwarzenegger did not announce his opposition to Proposition 90 until the final week of his re-election campaign. The initiative lost with 47.6 percent of the vote.

The Sacramento Bee: