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: <br /> Services tri Mead Data Genual,, lnc. _tet <br /> 1991 U.S;. App:. LEXIS. 3fl233,, 40 <br /> i <br /> ;r <br /> - - ;- - - -End Footnotes <br /> - - - - - - - <br /> u We emphasize that the issue is not whether the Government had the rI.[�ht to <br /> i npose itself anti; its activities ..on, these plaintiffs. Whatever right the y <br /> plaintiffs had —p be let alone was overcame by the Government's need in the <br /> interest of publichealth artd safety ;to monitor the ground water contaiainaticiti. <br /> Indeed, plAwti€fs expressly concede that point. <br /> The issue ;before the could in Hendler I was whether on the facts be.fl'e it,. <br /> the Gove:rniilent �tooti am propert}t,by permanent physical ocbupation, trios <br /> cbligatinq it tp p1y plaintiffs ;lust compensation. The trim judge th[tUght nat.t <br /> absent more facts; we think- noth nq more needed to C*411 be shown. The :trial <br /> udge denied Ol intiffs motion for summary judgment on trtis paintt he should <br /> i have ;q.t9r ted.: it.. <br /> y <br /> r The Activities conduct. ed on the Land by the State of Cs.Iifprnia <br /> 1 : <br /> Finally, the gtresti;an. was r ai ed whether the activi ti$ of:the State.; t�f. <br /> California were attributable to the Federal Governlnertt. This lquettibil bears on <br /> two important issues.. One, Thither the Federal. Government caused a... is X able <br /> for the t>�tality :of activity. 'Thfs is important for determining the damages awed. <br /> dy the Government, and also for determining, should there be any d.astbt, bethe r <br /> the re was enough activity by the Government to constitute a taking. Secant* i t. <br /> , goes to the issue o.. what it is plaintiffs had to prove -- was it enoug.. rttt Shot <br /> total attivity or did they need to slaw which of the actors did what. <br /> r The triad: ju"dqe was of the ::view that it was necessary to establish that A <br /> common law agency relationship existed between the Government and the State of <br /> California' in order for the Government to bear responsibility for the stalte`s <br /> activities ' an the land.. He concluded that there was insufficient proof of such a. <br /> relationship. Mendler :I at 99-1017. <br /> K <br /> common law agency is one test for determining C*427 the ;Government'!. <br /> responsibility,; but it is not the only basis for establishing the Government's~ <br /> liability for the State's activities. The activities of the same undertaking. It <br /> is a basic principle of eminent domain of EPA and of California were two <br /> coordinate and coordinated parts law that government officials -- executiye <br /> branch officials -- derive their power to take private property for a public <br /> purpose by agiant of authority from the legislature. Once legislative authority <br /> is obtained, authorized members of the government may determine how and when the <br /> authority w1,11 be; exert-ised. See 1A J. Sack'man,, suprat at § 3.2. <br /> i enGovernment officials could not:, absent proper legislative authority,; lawfully <br /> ter plaintiffs ' property property and; begin drilling wells and installing equipment. <br /> Lltewise, any administrative order issued to allow such an entrance would have <br /> td be based on .proper legislative authority. In this case, such authority flaws <br /> fH3m CERCLA, and it was under :the authority of that federal statute that the EPA <br /> Order iwart issued. <br /> 3. • <br /> 1 <br /> +' -N 11 The Clailns Court fou td that` the EPA Order authorized access to plaintiffs: <br /> property fbr "EPA ciffic;ials and other authorized personnel, including state <br /> cfficial:s" 1*01 and th. t: .such authority was based an 42. :U:.:5.C.. 5 <br /> I <br /> LES <br /> F <br /> LEXIS: <br /> E <br />