This eminent domain lawsuit arises from a 20-year effort by a rural irrigation district to take PG&E’s utility property for the purpose of running it as a public utility.  In that situation, the Eminent Domain Law requires a public agency to adopt a resolution finding that the proposed taking is a public necessity and the proposed use is a more necessary public use.  The statutes governing takings of utility property create only a rebuttable presumption of public necessity and more necessary public use, but the trial court ruled it would review the irrigation district’s findings on those factors only for substantial evidence and a gross abuse of discretion.

PG&E challenged the trial court’s ruling by writ petition.  Horvitz & Levy prepared an amicus curiae brief on behalf of San Diego Gas & Electric Co., which Southern California Edison joined.  With PG&E, we argued that reviewing public necessity and more necessary public use findings only for substantial evidence and a gross abuse of discretion would be fundamentally at odds with the statutory scheme: the trial court could not permit a utility to challenge such agency findings by extrinsic evidence in a “right to take” trial and, at the same time, review those agency findings only under deferential standards suited to appellate review.       

The Third District Court of Appeal agreed.  In a published opinion that closely tracks our briefing, the court issued a peremptory writ of mandate vacating the trial court’s orders.  The court held that PG&E’s challenges to the district’s resolution of necessity “are authorized by statute” and that “PG&E can succeed at trial by essentially disproving one of these findings by a preponderance of the evidence.”  The court further held that “PG&E need not demonstrate the District abused its discretion in adopting its resolution of necessity to successfully object to the District’s right to take its utility property.”