Bergman Dacey Goldsmith

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Pacific Shores Property Owners Association v. Dep’t of Fish and Wildlife, 2016 Cal. App. LEXIS 40

NEW CASE UPDATE
Pacific Shores Property Owners Association v. Dep’t of Fish and Wildlife, 2016 Cal. App. LEXIS 40

California Court of Appeal Finds That the California Department of Fish and Wildlife Is Liable in Inverse Condemnation for Intentional Flooding and Reducing the Level of Flood Protection Historically Provided to Property Owners.

A California Court of Appeal unanimously ruled in Pacific Shores Property Owners Association v. Dep’t of Fish and Wildlife, 2016 Cal. App. LEXIS 40 that the California Department of Fish and Wildlife (“DFW”) was liable, under both a strict liability standard and a reasonableness standard, for a physical taking of plaintiffs’ properties that were historically protected through flood control of a coastal lagoon.

In Pacific Shores, a residential subdivision was adjacent to a coastal lagoon in Del Notre County (“County”). The residents relied upon a flood control process historically provided by the County to keep water levels low. DFW eventually assumed control over the flood control process. When DFW assumed control, it provided less flood control than what was historically provided by the County in order to protect the environmental resources of the lagoon. DFW’s decision to offer less flood control caused occasional flooding in the nearby residential subdivision. The property owners brought an action for inverse condemnation, alleging a physical taking.

DFW argued that it was not liable in inverse condemnation because it had no duty to provide flood protection where the plaintiffs were historically subject to flooding anyway. The appellate court disagreed. In affirming the trial court, the appellate court ruled that DFW was liable in inverse condemnation for a physical taking of the plaintiffs’ properties. The court ruled that DFW was liable, under a strict liability standard, for the damages it caused because it intentionally reduced the flood protection plaintiffs had historically enjoyed, and its primary purpose for doing so was not to provide flood protection, but to protect environmental resources. The court went one step further, holding that even if the reasonableness standard applied, DFW was still liable because plaintiffs contributed more than their fair share to DFW’s efforts to protect environmental resources.

The Pacific Shores court splits the thinnest of hairs. In one breath, the court emphasizes that the government has no duty to provide flood control. However, in the next breath, the court holds DFW responsible for intentionally breaching the historical status quo of a flood control program. While Pacific Shores pertains to the issue of flood control, creative property owners may jump at the opportunity to analogize to their own set of facts. Accordingly, public entities must tread carefully when effectuating environmental policy, especially when disturbing the status quo, even when, as in Pacific Shores, an entirely different public entity had set the status quo.

Should you like more information on how your entity can most effectively respond to the implications of Pacific Shores in your environmental planning or litigation, please contact Brian J. Bergman at (310)-470-6110 or [email protected].

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