Here’s the latest in a case we’ve been following.

In Idaho Power Co. v. Bean, No. 23CV12213 (July 9, 2025), the Oregon Court of Appeals reversed a trial court ruling which held that Oregon’s precondemnation entry statute, which requires “reasonable compensation” for physical damage or substantial interference with the owner’s possession or use, sets the bar too high and the U.S. and Oregon Constitutions require “just compensation” for any appropriation of a right to physically invade, not just for physical damage or substantial interferences.

The court of appeals held that “temporary precondemnation entries–at least insofar as they do not cause any ‘substantial interference with the property’s possession or use’ or ‘any physical damage’–are consistent with ‘longstanding background restrictions on property rights’ and ‘traditional common law privileges to access private property.'” Slip op. at 699. In short, the court concluded that the U.S. and Oregon constitutions permit exactly what Oregon’s statute allows.  

We’re not going into that much detail here, because we have a dog in the hunt: our shop filed an amicus brief in support of the property owner. 

That said, the background on the case is here. Importantly, for those of you who are wondering if and how this case may affect your own situation, here’s a description of the entries the power company is seeking:

As noted by the trial court, Idaho Power cannot say with certainty how many entries will be required for it to accomplish the various surveys, tests, and samplings that it must complete. On appeal, Idaho Power points to evidence that the necessary entries “may take as few as six days to complete, depending on the availability of field crews and other survey timing restrictions,” but the trial court found they “may amount to as many as thirty-two visits onto the property.”

Idaho Power’s entries on the Ranch will primarily involve driving pick-up trucks and sometimes a trailer onto the property with crews of anywhere from one to five persons. Four of the entries will involve “some ground disturbance.” The geotechnical drilling will involve a “small track vehicle.” The “small track vehicle” is somewhere between the size of an “F-350, but it’s not quite as big as a large excavator.” The geotechnical drilling involves a “drilling crew” drilling “boreholes approximately 6 to 8 inches in diameter,” which will be “backfilled.”

Slip op. at 703. 

The court concluded that these type of entries over the objection of the owner are not Cedar Point-type takings of the owner’s right to exclude, because Oregon owners never possessed the right to exclude these type of invasions. Start off at page 710 of the slip opinion for the court’s reasoning (“Temporary Precondemnation Entries are a Longstanding Background Restriction on Property Rights“). 

Why are entries ok? Because the statute has been around since at least 1862. And the Oregon Supreme Court in 1881 acknowledged the statutory power to enter. And this nineteenth century Oregon authority “is consistent with the law of other jurisdictions.” Slip op. at 710. And, as we noted here, the Iowa Supreme Court recently held the same under Iowa law.

But that isn’t to say that all precondemnation entries are just fine:

But we also understand—and Idaho Power does not dispute—that certain temporary precondemnation entries may constitute “takings” for which compensation is required under Article I, section 18, or the Fifth Amendment; the mere fact that a precondemnation entry is necessary does not mean a condemnor has legal carte blanche with respect to activities on a private property. Where such temporary precondemnation entries constitute a “substantial interference” with use or possession of property, or “physically damages” property a “taking” may have occurred. See Hawkins, 315 Or at 68 (1992) (“Most cases boil th[e] definition [of a taking] down to a test of whether there has been a ‘substantial’ interference with property rights.”)[.] 

Slip op. at 712.

But because the owner here had not shown substantial interference or physical damage, it was out of luck. It didn’t matter that the reasons for the utility entering the property here do not fall into the types of entries recognized by history and tradition, but “evaluate different subject matter than that that might have been evaluated by condemnor precondemnation at common law.” Slip op. at 714. But to the court, these are close enough: “[n]evertheless, the historical principle underlying the right to precondemnation entry remains just as salient.” Id. The law evolves, and the point of precondemnation entry is to help the condemner decide whether to take the property:

[M]odern circumstances may require evaluation of different subject matter, but the historical principles underpinning the right to precondemnation entry are no less applicable.

Id. 

The court expressed no opinion on the issue of whether the entries sought by the power company would be takings if the owner alleged that the entries resulted in physical damage or substantial interference with the owner’s use. Slip op. at 715. And the court ok’d imposing reasonable restrictions and conditions on precondemnation entries as long as they are designed to mitigate the risk of damage. 

Here’s how the court summed it up:

Ultimately, we conclude that the trial erred in concluding that ORS 35.220 was unconstitutional because it “allows a condemner to enter onto one’s property to conduct examinations, surveys, tests, and samples of the property without the consent of the owner and without just compensation.” As set forth above, not all precondemnation entries are takings under Article I, section 18, or the Fifth Amendment. That is, although the right to exclude undoubtedly is “a fundamental element of the property right,” as explained in Cedar Point, the government “does not take a property interest when it merely asserts a pre-existing limitation upon the land owner’s title.” 594 US at 158, 160 (internal quotation marks omitted). And where a taking has occurred—because property is physically damaged or a landowners’ possession and use is “substantially interfered” with—ORS 35.220 provides a property owner with the right to recover compensation either before or after entry.

Slip op. at 716.

After Cedar Point, more and more of these cases are cropping up. Not only in Iowa as noted above, but in California, and North and South Dakota. This won’t be the last, for sure.

Idaho Power Co. v. Bean, No. 23CV12213 (Or. App. July 9, 2025)