The Monterey Peninsula Water Management District will decide whether to use Eminent Domain to force California American Water to sell its business at a special meeting Tuesday evening, October 10. The purpose is to create a public water utility that replaces the privately held Cal Am as the source of water for 40,000 customers on the Monterey Peninsula and along Highway 68.
Eminent Domain is the power of the government to take private property and convert it to public use. It is used quite often to build roads, parks and other infrastructure. In order to understand the law, I spoke with Mitch Winick, Dean of Monterey College of Law and Co-Host of the podcast“Sidebar.”
We sat in one of the school’s large classrooms. Rows of law books line the back wall. A large TV screen and a podium are at the front. Writing tables and chairs for students take up the center.
Winick told me the idea of Eminent Domain dates back to 1625 and a legal treatise written by a Dutch jurist who used the term “dominium eminens,” which translates to supreme lordship.
This interview has been edited for length and clarity.
Mitch Winick (MW): It goes back to the concept that the state, or in that case, the monarchy had the ultimate right to take care of everybody. And that was the concept of eminent domain, taking care of people within your domain.
Doug McKnight (DM): How did “dominium eminens” move from a legal concept in Europe to the United States?
MW: It came into the United States through the Fifth Amendment to the United States Constitution, thanks to James Madison. It comes into California through the 14th Amendment that applied the constitutional obligations to the states.
DM: Why did a founding father put eminent domain in the Constitution? Don’t most people in the United States consider private property sacred?
MW: This is what is so unique to America. In Europe, it is presumed that all land belongs to the realm, and it is only that which the king gives to an individual, that takes it from the state to the individual.
In the United States. All land belongs to the people. And it's only when the government obtains the right from the people to have the land that it goes the other direction.
And that's why this issue of eminent domain resonates so much or concerns people so much. Because now you have the government taking from an individual that which was already private.
DM: Assuming the Water District approves the use of eminent domain during its meeting but Cal Am says it is not going to sell, what does the District have to show in court in order to proceed.
MW: Number one, they have to show that this is necessary. I know that sounds pretty obvious, but they can't just do it on a whim.
Second, is it necessary that it be a public project? Okay. So I know it sounds like a small step, but is it something that the public needs to do? And that's where the argument, particularly locally, is going to be. Who can provide these services better? A public agency, the government or a private company, Cal Am. And that's the third standard. Is it the greatest public benefit with the least private detriment?
DM: What are your thoughts on the legal battle ahead?
MW: Having water service is critical to each of us. It is the essential element of life. So a decision like this is very important. I don't come down strongly on one side or the other. But I would encourage everybody who's going to be affected by this to educate themselves, read the underlying information, talk to their neighbors, ask good questions, and play a role in this, because ultimately we're the ones it affects.
The meeting is Tuesday night at 5:30 in the Irvine Auditorium at the Middlebury Institute of International Studies in Monterey. You can attend remotely by clicking on this link
Attend remotely here: https://mpwmd-net.zoom.us/j/89473928043?pwd=dlpsSFc3YlRQOUVZNU5RckJWNkVvZz09
