Search results for: precondemnation

Remember the Property Reserve case in which the California Supreme Court came up with a let’s say … creative solution to the conundrum of precondemnation entries?

For the uninitiated, these are where an entity with the power of eminent domain (the government or a delegee of the power) may enter private property to inspect and survey, to see whether the land is suitable for acquisition. Some of these intrusions on the owner’s right to exclude are relatively minor and not deemed takings, while other, more disruptive intrusions are takings in themselves. Some states require that the entering party provide some kind of compensation, while others let the entering party off the hook entirely

In Property Reserve, the California court held that the precondemnation entries for a big water infrastructure project were intrusive enough to constitute takings in themselves. But the court also held that even though this effected a taking, the entering party did not have to adhere to all of California’s eminent domain procedures, even though the California Constitution expressly requires a jury trial in takings cases. The precondemnation entry statute lacked any jury requirement. Uh oh.

But the Property Reserve court “saved” the precondemnation entry statute from unconstitutionality by judicially rewriting it, holding that it required a jury trial even though there is no such requirement in the statute. And that the entering entity had no obligation to exercise eminent domain for these takings, and could enter and wait for the owner to sue for inverse.

With that background, here’s the latest chapter of that fight.

In Department of Water Resource Cases, No. C103207 (Mar. 26, 2026), the Third Appellate District rejected the owner’s claim that to enter property there must be a project to which the entry is tied. You can’t come on my property because without a project and a plan with authorization and funding, this is just a fishing expedition. No held the court, the whole point of precondemnation entries is to see whether a project involving your property might be worthwhile. One of the major reasons for authorizing precondemnation entries is to allow a potential condemnor to evaluate whether the land is suitable for a future project or taking:

DWR need not commence a classic condemnation action, or comply with the “authorization and funding” requirements of Water Code sections 250 and 11580, before conducting precondemnation testing activities, irrespective of whether the activities will result in a taking or damaging of property. To conclude otherwise would be inimical to the purpose of the precondemnation entry and testing procedure, which is designed to “enable the public entity to determine whether or not the property is suitable and should be acquired for a public project.”

Slip op. at 3.

We were all set to dive in and offer up our deep analysis of the decision and its practical impacts, when our colleagues at Nossaman’s Eminent Domain Report beat us to the punch. In “Property Reserve Redux: Do Statutory Conditions on the Power to Condemn Apply to Precondemnation Entries?,” Robin Thornton writes that the court “rejected landowners’ arguments that the Department of Water Resources must meet additional statutory conditions (specifically, as noted at Water Code sections 250 and 11580), that require project authorization and funding, before it may invoke the precondemnation entry statutes.”

We recommend you read her post and analysis.

Department of Water Resource Cases, No. C103207 (Cal. Ct. App. Mar. 26, 2026)

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) 

Continue Reading Oregon App: Not All Precondemnation Entries Are Takings – It’s Gotta Be “Substantial”

The latest state supreme court decision involving a takings challenge to a statute permitting precondemnation entries, this time from Iowa.

In Summit Carbon Solutions, LLC v. Kasischke, No. 23-1186 (Nov. 22, 2024), the Iowa Supreme Court concluded that, at least on its face, Iowa’s entry statute for hazardous liquid pipelines, which permits entries for land surveys and requires the payment of actual damages, is not a taking of an owner’s right to exclude:

Kasischke recognizes that section 479B.15 requires “[t]he pipeline company [to] pay the actual damages caused by the entry, survey, and examination” but argues that the mere entry onto his property to conduct the survey is itself a taking of his right to exclude all others, for which he is also entitled to just compensation. Kasischke’s constitutional claim fails because the statute did not take away a property right that he owned. Rather, he has no right to exclude the surveyor because section 479B.15 is a lawful pre-existing limitation on his title to the land.

Slip op. at 10.

As that indicates, the argument floundered on the threshold “private property” question, with the court concluding that Cedar Point did not “establish a new per se rule” requiring compensation whenever there is a physical invasion, but instead reaffirmed the “background principle” exception from Lucas. See slip op. at 13 (““Second, many government-authorized physical invasions will not amount to takings because they are  consistent with longstanding background restrictions on property rights.” Indeed, “the government does not take a property interest when it merely asserts a ‘pre-existing limitation upon the land owner’s title.'”) (citations omitted).

Requiring owners to submit to precondemnation entries for surveys “is a longstanding background restriction and therefore a recognized exception to the Court’s per se taking jurisprudence.” Id. These statutes “are as old as the republic itself.” Id. Check out pages 14 through 15 of the opinion, where the court notes the early state court cases holding such entries were not takings, and also how legislatures and courts expanded the scope of the permissible entries during the 18th and 19th Centuries. “Today, all fifty states have statutes authorizing entries to private property for the purpose of conducting preliminary land surveys in exercising eminent domain.” Slip op. at 15. And Iowa is no different. 

The court distinguished the entries permissible under Iowa’s statute with the California labor regulation invalidated in Cedar Point, which authorized more intense and lengthy invasions. Slip op. at 16.

On one hand, the Iowa court’s decision isn’t all that surprising because this was a facial challenge. Most courts which have addressed the takings question have held that — at least facially — these statutes are not unconstitutional. For recent examples, see South Dakota and North Dakota.

But as those cases illustrate, the entries authorized by the statutes must be minimally invasive and superficial, and relatively innocuous. See, for example, North Dakota, and South Dakota (again). To use the famous phrasing of Justice Holmes, these entries can’t go “too far.” Which means that although the facial challenge failed here, it seems that as-applied challenges remain viable in the right cases.

Summit Carbon Solutions, LLC v. Kasischke, No. 23-1186 (Iowa Nov. 22, 2024)

Continue Reading Iowa: Statute Permitting Precondemnation Surveyor Entry Is “pre-existing limitation on … title”

This would not be authorized.

Here’s the latest in an issue that found new vitality after the U.S. Supreme Court’s decision in Cedar Point affirming that government-authorized physical entry to private property is presumptively a taking.

This is the “precondemnation entry” issue in eminent domain which several courts have addressed:

This is where a condemnor contemplates taking property and wants to get on site to check it out. Do things like surveys, examinations, tests, and sample-taking. Often, the owner of the property doesn’t mind: pay me a bit for my trouble, indemnify me in the event someone gets injured, and you can have limited access to do your business and then go on your way, condemner. But sometimes, an owner says no.

In Betty Jean Strom Trust v. SCS Carbon Transport, No. 30317 (Aug. 21, 2024), SCS is planning a CO2 pipeline though South Dakota, and several owners said no to SCS’s proposed precondemnation entries. The owners challenged the constitutionality of South Dakota’s entry statute, and challenged SCS’s power to take, alleging that it was not a common carrier with the delegated power of eminent domain. The trial court rejected these claims.

The South Dakota Supreme Court reversed. The court allowed some precondemnation entries, but held that anything beyond “minimally invasive superficial inspections that, at most, cause minor soil disturbances,” would be unconstitutional. The court also concluded that it is premature to conclude that SCS is a common carrier and the property owners should have an opportunity to undertake discovery and make a record about whether “SCS is holding itself out to the general public as transporting a commodity for hire.” Slip op. at 1.

The surveys SCS wanted to do involve these activities:

[¶8.] According to SCS, three different types of surveys would be conducted along the pipeline route. The most common would be “minimally invasive, nondestructive inquiries to assess the land . . . involv[ing] the use of ‘hand tools (e.g., spades, shovels, augers)’” that could result in “small soil disturbances at discrete locations.” The second type––geotech surveys—would “assess underlying soil and rock conditions and ‘utilize[] a track mounted drilling rig to create a small diameter hole into the soil to collect samples of subsurface soils and rocks.’” The small hole would be “backfilled with drill cuttings or with a cement/bentonite grout mixture.” However, SCS claims there would be “no impact to normal land use after drilling is complete and the hole is backfilled.”

[¶9.] Finally, “deep dig” surveys would be necessary for properties located within a floodplain to search for archaeological sites of cultural significance. These “involve the use of a backhoe to dig trenches typically 7 to 10 feet in length, 2 to 3 feet in width, and 6 to 10 feet deep.” SCS committed that “[o]nce this deep testing survey work is completed, any trenches will be backfilled and the ground will be graded to near existing conditions.” For all three survey types, SCS assured landowners that resulting property damage would be repaired or reimbursed. To this end, SCS obtained a $1 million performance bond, which was later increased to $5 million

Slip op. at 4-5 (footnote omitted).

Check out pages 10-22 for the court’s analysis of the factors that go into a determination whether a private entity is a common carrier which can exercise the delegated power of eminent domain, and how this is a fact issue. The court could have stopped there, because if SCS is not a common carrier it cannot exercise the power and enter anyone’s land. 

But the court viewed the allowable scope of entries as a “purely legal question[],” and decided to resolve the issue “to provide clarify and avoid protracted litigation on remand if SCS is determined to be a common carrier.” Slip op. at 22. Good. We wish more courts were not anal-retentive and were willing to resolve such legal issues after full briefing, even if some other intervening action might possibly render a decision unnecessary. Id. (“Thus, we conclude a resolution of these issues will promote judicial efficiency, irrespective of the ultimate resolution of the common carrier issues on remand.”).

To construe the statute, the court first applied the special rule of construction for eminent domain statutes: “eminent domain statutes are strictly construed in favor of the property owner.” Slip op. at 24. Eminent domain proceedings “must be conducted in strict accordance with governing statutes.” Slip op. at 25.

With that in mind, the court concluded that the terms “survey” and “examination” mean some kind of measurement of land and figuring out boundaries. This does not include soil sampling, or any activities that go beyond “innocuous” and “temporary” and which result in “minimal incidental damage, and little, if any, disturbance.” Id.

As one court put it, the “right to enter private property for the purpose of examination and survey confers no license to engage in the process of conducting archaelogical digs.” Id. (quoting Indiana State Highway Comm’n v. Ziliak, 428 N.E.2d 275, 279 (Ind. Ct. App. 1981)). Indiana Jones, take note.

The court rejected all of SCS’s arguments for a wider scope of activities. The court again relied on a canon of statutory construction, concluding that it should strive to avoid interpreting the statute in a way that would render it unconstitutional, and “SCS’s reading of the statute would authorize any number of invasive activities directly at odds with the owner’s right to possess their property.” Slip op. at 26.

Here’s the holding:

Instead, we conclude that “survey” and “examination,” in the context of SDCL 21-35-31, “cannot amount to other than such innocuous entry and superficial examination as would suffice for the making of surveys or maps and as would not in the nature of things seriously impinge upon or impair the rights of the owner to the use and enjoyment of his property[.]” Kane Cnty. v. Elmhurst Nat’l Bank, 443 N.E.2d 1149, 1154 (Ill. App. Ct. 1982). We will refer herein to such a minimally invasive inspection as a “standard survey.” Accordingly, we hold that the “geotech” and “deep dig” activities, involving heavy equipment for invasive drilling and digging, do not qualify as a “survey” or “examination.”

Slip op. at 26.

Having determined that the statute only allows relatively innocuous entries, the court asked whether this level of interference with the owners’ property rights amounts to a South Dakota or a federal taking. The court held no. True, Cedar Point concludes that “many” government-authorized invasions are takings, but not those which are “consistent with longstanding background restrictions on property rights.” Slip op. at 28.

The court first held that the entries are takings. Slip op. at 30. So the question is whether history and tradition demonstrates that excluding innocuous entries are or are not sticks in the owners’ bundles of rights. There’s a longstanding history of these things. Id. (“pre-condemnation ‘standard surveys’ are firmly established in the legal tradition of South Dakota in a variety of contexts.”). The statute has been around for “at least a century.” Id. True, enactment of the law does not automatically mean its a background principle (what we call the “no ipse dixiting rule”). But that must be tempered by a decision by the South Dakota Supreme Court a few years after the statute’s adopting that held the statute wasn’t a taking. That, and secondary sources such as treatises and Restatements concluded that minor intrusions are not takings.

Here’s the holding:

[¶65.] We thus conclude that the right to conduct pre-condemnation surveys is a longstanding background restriction on property rights. However, the scope of such surveys is limited. Indeed, we must “pause” when the proposed survey activities contemplate “a more invasive impact on individual property rights.”

Slip op. at 32. The court also concluded that minor entries do not violate owners’ rights under the South Dakota Constitution, even though state law recognizes greater property rights than the U.S. Constitution as long as owners can obtain a jury trial on any invasions that exceed the relatively innocuous entries allowed by the statute.

We expect more courts to address this issue as condemnors increasingly seem to be seeking even more intense entries and owners become even more willing to assert their rights and fight back. Stay tuned.

Betty Jean Strom Trust v. SCS Carbon Transport, LLC, No. 30317 (S.D. Aug. 21, 2024)

Continue Reading S Dakota: Only Way To Read Precondemnation Entry Statute Constitutionally Is Allowing “minimally invasive superficial inspections” and “minor soil disturbances”

Here’s the latest in an issue we’ve been following.

In SCS Carbon Transport LLC v. Malloy, No. 20230149 (May 30, 2024), the North Dakota Supreme Court held that that’s state’s statute which allows prospective condemnors to enter land to conduct surveys and the like before instituting eminent domain without liability is not unconstitutional, either on its face or as applied to SCS’s entries.

SCS is building a CO2 pipeline and decided it needed an interest in Malloy’s land. It asked if could enter to take a survey, but Malloy said no. So SCS sued, asserting its power under the statute, asserting it was planning on restoring the property to its “pre-examination” condition, and it was willing to pay compensation for any damage it caused:

In all cases when land is required for public use, the person or corporation, or the person’s or corporation’s agents, in charge of such use may survey and locate the same, but it must be located in the manner which will be compatible with the greatest public benefit and the least private injury and subject to the provisions of section 32-15-21. Whoever is in charge of such public use may enter upon the land and make examinations, surveys, and maps thereof, and such entry constitutes no claim for relief in favor of the owner of the land except for injuries resulting from negligence, wantonness, or malice.

N.D. Cent. Code § 32-15-06. (North Dakota’s statute is fairly typical of these things.)

Malloy counterclaimed, arguing the statute was unconstitutional under both the N.D. and U.S. constitutions, and sought an order prohibiting entry. The trial court granted SCS summary judgment, and the case went directly to the N.D. Supreme Court.

The court first rejected the owner’s argument that the trial court’s order, which did not set any limits on the “nature, extent, or duration” of SCS’s entries resulted in a taking. (A judicial taking.) The court concluded that the statute does not require a court to impose any such limitations or restrictions. By incorporating the terms of the statute, the trial court’s judgment did enough. While the Supreme Court recognized that trial courts have discretion to impose restrictions and conditions on entry, they are not required to. “The plain text of the statute does not describe any restrictions or conditions the court may or must consider.” Slip op. at 6. Thus, the trial court’s order conformed to the statutory requirements.

Next, the court concluded this was not unconstitutional, either on the face of the statute, or as applied here. Yes, Cedar Point did conclude that even relatively unintrusive physical invasions under color of state law are takings requiring compensation, but the Court there also noted that the power of prospective condemnors to enter property for pre-takings surveys and examinations is a longstanding traditional limitation on North Dakota property owner’s right to exclude:

Despite the significant textual differences between the state and federal constitutional provisions, in this case the constitutional question under each turns on essentially the same legal-historical question: did the people of North Dakota in 1889 understand the eminent domain power to take private property for public use to encompass a right of entry for pre-condemnation examinations and surveys? If yes, then the original public meaning of the 1889 constitution, continued in effect through today in relevant part, does not conflict with the entry statute. Under the Fifth Amendment, answering the same question in the affirmative would establish a longstanding background principle that property rights under state law do not include the right to bar entry to pre-condemnation surveyors.

Slip op. at 9. 

The court noted that the power to enter property has been a part of N.D.’s statutory scheme for a century-plus, and that “[t]his longstanding statutory authority is consistent with the common law and the law of other states.” Slip op. at 9. Even Judge Cooley recognized this limitation. See slip op. at 10. Thus, a potential condemnor’s ability to enter property is a “longstanding background restriction” on an owner’s unfettered rights.

The court noted that this power is not unlimited, and that the text of the statute requires that entries be undertaken with “the greatest public benefit and the least private injury,” and that the statute must be interpreted to allow “limited to the innocuous surveys and examinations consistent with these historical background principles[.]” Slip op. at 11.

In other words, condemnors, don’t take this opinion as carte blanche to come in any time for and do stuff that is more than “innocuous” –

A condemnor’s entry or occupation beyond this mission implicates constitutionally protected property rights. If the entry exceeds the duration or scope reasonably necessary to complete any necessary “examinations, surveys, and maps,” a temporary taking of the right to exclude may be implicated and a judicial remedy may be sought.

Id.

By analogy to traffic stops in Fourth Amenment cases, the court concluded that entries must not extend longer than the time required to fulfill the purpose of the entry: “A constitutionally permissible entry may not be longer or more invasive than necessary to complete the examination or survey need to confirm and minimize the scope of the anticipated taking of private property.” Id.

While it would be easy to be seduced by what appears to be a logical standard, we have to take pause because we find it hard to see this other than some kind of “please act in good faith, condemnors” standard. First, the entire purpose of precondemnation entries are to determine if the property might be suitable for the purpose of the anticipated taking. It seems like it would be difficult to not interpret that broadly. Can a big project be studied via “innocuous” entries? How are there any judicially-manageable standards to police the limits of this? Hard to see any. Second, unless the potential condemnor is cowboying it and not acting in good faith, won’t most entries be somewhat tailored to the scope of what is necessary by the potential condemnor?

We guess we should be thankful that the court left the door open to property owners having a claim in some situations. We’re just not certain what those situations might look like. 

Other courts have reached similar results (generally ok with entries, provided they are not “too invasive”). Let’s see what develops elsewhere.

SCS Carbon Transport LLC v. Malloy, No. 20230149 (N.D. May 30, 2024)

Continue Reading ND: “Minimally Invasive” Precondemnation Entries Are Not Unconstitutional

We don’t often post trial court orders — especially state trial court orders — but read on and you will understand why we made an exception here. Our thanks to an Oregon colleague for sending it our way.

Today’s case involves a pretty typical situation — a condemnor (or, “condemner” — for it is in Oregon that our scene lies) is contemplating taking property from someone, and wants and needs to figure out whether the property it is contemplating is suitable. It needs to get on site and check it out. Do things like surveys, examinations, tests, and sample-taking. Often, the owner of the property doesn’t mind: pay me a bit for my trouble, indemnify me in the event someone gets injured, and you can have limited access to do your business and then go on your way, condemner. 

But sometimes, an owner — as is her right — says no. In those cases, Oregon (as many states do) has a statute. In our case, Or. Rev. Stat. § 35.220, which paraphrased says, that a condemner may enter private property to conduct tests, take samples and the like, as long as the owner is provided notice. If an owner objects, the condemner may seek a court order “providing for entry upon the property and allowing such examination, survey, testing or sampling as may be requested by the condemner.”

Importantly, the statute also says that the owner is entitled to reasonable compensation for “[a]ny physical damage” resulting from the entry, and “[a]ny substantial interference with the property’s possession or use” that is caused by the survey, entry, &c. 

Now that we’ve laid the foundation, here’s how it played out in Idaho Power Co. v. Bean.

Idaho Power wants to run part of a transmission line over Bean’s property in rural Oregon. It will need an easement. But it also needs to conduct studies. As the court notes:

Petitioner must ensure that the project’s path complies with permitting and siting requirements, including that it does not conflict with any protected resources. To ensure compliance, Petitioner must conduct surveys. tests, and samples on Respondents’ property. These include three-toed woodpecker and northern goshawk surveys, rare plant inspection, gray owl and flammulated owl surveys, wetlands inspection, terrestrial visual encounter surveys, noxious weeds surveys, cultural resource surveys, enhanced archeological surveys, and historic properties management plan surveys, geotechnical drilling, land surveys, and an appraisal field visit.

…

Although Petitioner cannot say with certainty how many entries will be required for it to accomplish these various surveys, tests and samplings (Tr. 136-160), all totaled, it appears they may amount to as many as thirty-two visits onto the property. Exhibit 2. The visits will primarily involve driving pick-up trucks and sometimes a trailer onto the property with crews of anywhere from one to five persons. Id. Four of the entries will involve some ground disturbance. Id. Two to five entries would be with “pickup trucks and trailer” Tr. 147. The geotechnical drilling will involve a “small track vehicle,” Id. The “small track vehicle” is “probably larger than a F-350, but it’s not quite as big as a large excavator.” ld. The geotechnical drilling involves a “drilling crew” drilling “boreholes” approximately 6 to 8 inches in diameter. Exhibit 2, p. 4. The holes will be backfilled. Id. Petitioner acknowledges each entry will cause some interruption to the landowner.

Slip op. at 3-4.

The property owner said no. Next stop, a trial court in Union County, where the power company sought an order to show cause why it should not be allowed entry under section 35.220.

The owner made two arguments in opposition. First, it asserted it was entitled to compensation before the entries, and not after. Second, it argued the entries are takings under both the Oregon and U.S. Constitutions.

In this order, the court agreed that the statute permits the power company to enter the property against the will of the owner, as long as it provided notice (check). The owner is entitled to “reasonable compensation” for physical damage or substantial interference with possession or use. There’s no statutory definition of those terms, but the court used the ordinary meaning, and concluded that the entry “must cause actual harm to the land, crops or structures” on the property,” or cause a “hampering of their quiet enjoyment of their property and/or their ability to produce an income from their property.” Slip op. at 6.The entries seem to qualify.

So what about that compensation? The owners asserted they are entitled to up front compensation “in advance of Petitioner’s entry.” Slip op. at 7. Here, the court was presented with a problem: it concluded the statute only allows for post-hoc compensation because of the mechanics. Compensation is based on evidence of physical damage or substantial interference, and such evidence doesn’t exist until the condemner makes its entries. “That is a high bar. With the pre-condemnation entries contemplated here it would be very difficult to prove before the entry how the property would be physically damaged.” Id.

But the conclusion that the owners cannot get reasonable pre-entry compensation “does not end the inquiry, however.” Slip op. at 8. This takes us to the second argument, that the entries permitted by the statute are takings under the constitution(s), and thus require just compensation.

We won’t go into the details, but suggest you read the order starting at page 8. Not a lot there that’s terribly surprising, and takings mavens will recognize the key citations to the right to exclude being essential such as Cedar Point, and the notion that it doesn’t take much of an interference to be deemed a taking of that “essential” property stick.

Oregon courts have long held that “any destruction, restriction or interruption of the common and necessary use and enjoyment of the property of a person for public purpose constitutes a ‘taking’ thereof.” Morrision v. Clackamas County, 141 Or 564, 568 (1933). To the extent that ORS 35.220 allows a condemner to enter onto one’s property to conduct examinations, surveys, tests, and samples of t he property without the consent of the owner and without just compensation, it is unconstitutional Such action a mounts to a taking, under Article I, section 18 of the Oregon Constitution. This is because it deprives the property owner of that most essential  property right: the right to exclude others from one’s property. In order to comply with the Oregon Constitution, the condemner must pay “just compensation” before the pre-condemnation entry onto private property.

Slip op. at 9.

Yes, the statute says an owner is entitled to reasonable compensation for these invasions if it causes physical damage or substantial interference. “However, the Oregon Constitution does not set such a high bar before the property owner may receive ‘just compensation.'” Id.

But not all entries are takings. As Cedar Point noted, some government-authorized invasions are not takings “because they are consistent with longstanding background restrictions of property rights.” Slip op. at 10. Even the property owner here agreed that some of the entries were not takings. Thus, some of the desired entries here qualify (while some do not). Land surveys are ok, as well as “an appraisal field visit.” Id.

But for those entries that go beyond that, compensation is due. Just compensation, that is, for appropriating “a right of access to the Respondents’ property.”

By doing so the statute allows the condemner (Petitioner) to enter Respondents’ property, without Respondents’ consent, to examine, survey, test, and sample Respondents’ property. The statute appropriates a right to physically invade the Respondents’ property to conduct the various examinations, surveys, tests, and samples. Under Supreme Court precedent, this is a per se physical taking, which under the Fifth Amendment requires “just compensation.” Cedar Point Nursery, 141 S,Ct. at 2074. In conclusion, Petitioner may not enter Respondents’ property to conduct the surveys, tests and samples without paying “just compensation.”

Slip op. at 12.

That left the question of how much compensation? Try work it out, parties held the court. If that doesn’t work then the power company must institute eminent domain proceedings.

Worth your time to read the entire order.

If you wanted to see how the California Supreme Court addressed similar precondemnation entries (which it acknowledged as takings) check out this post (“California Supreme Court Rewrites Eminent Domain Entry Statutes To Give Government A Free Pass“).

Opinion re Pre-Condemnation, Idaho Power Co. v. Bean, No. 23CV12213 (Or. Cir., Union Cnty, Sep. 6, 2023)

Continue Reading Some Precondemnation Entries Are Takings Requiring An Up-Front Condemnation And Compensation

When a court’s opinion (even a trial court’s opinion) starts out with the epigram, “‘Freedom and property rights are inseparable, you cannot have one without the other.’- George Washington,” you know you are in for a ride.

So begins the opinion of the Clay County, Iowa District Court in Navigator Heartland, LLC v. Koenig, No. EQCV034863 (May 3, 2023). The issue was the validity under the Iowa Constitution of Iowa’s precondemnation entry statute, which allows pipeline condemnors to enter property for land surveys:

After the informational meeting or after the filing of a petition if no informational meeting is required, a pipeline company may enter upon private land for the purpose of surveying and examining the land to determine direction or depth of pipelines by giving ten days’ written notice by restricted certified mail to the landowner as defined in section 479B.4 and to any person residing on or in possession of the land. The entry for land surveys shall not be deemed a trespass and may be aided by injunction. The pipeline company shall pay the actual damages caused by the entry, survey, and examination.

Navigator wanted to enter Koenig’s land to conduct surveys in anticipation of condemnation. Koenig objected, and the court held a trial at which it heard testimony about the scope of the proposed entries. One witness:

identified the four types of surveys typically performed on each affected property; these include a civil survey, a biological/environmental survey, a cultural survey, and a geotechnical survey. Each of the four surveys are completed at separate times, thus at a minimum, surveyors would expect to enter onto the private land on at least four separate occasions. She additionally testified that Navigator typically hires third parties to perform each of the surveys. She conceded that her lay understanding of the Iowa Code §479B.15 does not limit the duration or number of times surveys may occur so long as they are confined to surveying purpose for the proposed pipeline path.

Opn. at 3.

The property owner argued that the statute effects a facial taking by requiring owners to open their properties to third parties without compensation: “Koenig asserts that Iowa Code §479B.15 strips landowners of their right to exclude by statutorily allowing pipeline companies to come onto private land to perform certain surveying operations, which amounts to a per se taking. Additionally, Koenig argues that the statute does not provide for just compensation in accordance with Article I section 18 of the Iowa Constitution.” Opn. at 6-7.

The court noted that until recently, Penn Central “had been the leading approach to determine whether a regulatory use restriction amounts to a taking.” Opn. at 8. But Cedar Point changed that, according to the court: if there’s a physical invasion, that’s a taking, after which the question becomes whether the government has provided compensation. 

But, the court also noted, “Cedar Point did not open the door for all government-authorized physical invasions to amount to takings[,]” if those invasions are “consistent with longstanding background restrictions on property rights.” Opn. at 9.

Thus, the critical question is: are these private pipeline precondemnation invasions consistent with those background principles? The court held no, they are not. “The Court observes important similarities between the facts of this case and Cedar Point.”

Like the private labor organizations in Cedar Point, Navigator presently seeks to repeatedly enter onto privately owned land despite a lack of consent from the landowner. While true the California statute in Cedar Point allowed labor organizations to enter on the property for up to 120 days per year three hours per day whereas Navigator is seeking to enter for no more than four days (ranging from thirty minutes to eight hours at a time); the Court is leery to enter into too much detailed comparison of the intrusive nature of the invasion because, as Cedar Point makes clear, the frequency and duration of the invasion is no longer relevant. Id. at 2074 (“the fact that a right to take access is exercised only from time to time does not make it any less a physical taking” and “the duration of an appropriation—just like the size of an appropriation—bears only on the amount of compensation.”)

Opn. at 10.

The court concluded that although survey access may be a “traditional privilege,” the Supreme Court’s lack of reference to such access or utility easements “leads to a conclusion.” Opn. at 11. And that conclusion? Survey access is more like the union easement in Cedar Point than the background access exceptions also noted in the opinion.

In looking to the language in Iowa Code §479B.15, the Court concludes that the standards established in Cedar Point are applicable. The statute is not a use restriction which can be analyzed under the Penn Central “Takings Test”. Rather, because the statute grants pipeline companies right to physically enter and occupy privately owned land, the statute appropriates a right to invade the landowner’s property. When such appropriation occurs, the Court follows the traditional rule “Because the government appropriated a right to invade, compensation is due.” Cedar Point, 141 S. Ct. at 2076.

The Court finds that Iowa Code section 479B.15 appropriates Koenig’s right to exclude others from his privately owned land. Without Iowa Code §479B.15, Koenig would have had the right under Iowa law to exclude the pipeline company and any third-party surveyors from hi property. Because the statute amounts to a government authorized physical invasion, and additionally appropriates Koenig’s right to exclude, the Court is convinced Iowa Code §479B.15 effects a per se taking for which just compensation is required. 

Opn. at 12.

The court also concluded that the statute does not provide just compensation. Yes, the statute requires the pipeline company entering private property to pay “actual damages” caused by the invasion or occupation, but does not, on its face, require just compensation for the invasion if there’s no physical damage resulting:

However, if no physical damage is done to the private property, does Iowa Code §479B.15 still require compensation to the landowner for the government-authorized taking? §479B.15 says no and any other interpretation of such is unreasonable. At the end of trial Navigator argued that the distinction between “actual damages” and per se damage is a distinction without a difference. Navigator’s counsel argued that Koenig’s “actual damage” is any damage that he may claim. The Court does not find such interpretation to be reasonable because the damage has to be “actual” and cannot be subjective. It has to be reasonably ascertainable. The statute requires such.

Opn. at 16 (footnote omitted).

A property owner may not be able to easily ascertain the extent of the economic damages caused by a precondemnation survey entry. The damages caused may be pretty subjective, and similar to pain and suffering in tort law. “Therefore, a clear and common sense reading of Iowa Code §479B.15 is that, if by going onto private property to survey, a pipeline company causes actual damage to the property, compensation is required to cover the damages. However, because non actual damages resulting from the government authorized taking are subjective and not readily ascertainable, the Court cannot interpret the meaning of ‘actual damages’ within the statute to cover a per se taking in and of itself. To find otherwise would deprive ‘actual damages’ of all its ordinary meaning.” Opn. at 17.

Finally, the court concluded that the usual presumption of constitutionality does not save the statute, because there’s no reasonable alternative construction the court might give it.

All we can say is wow.

Trial Ruling on Defendant’s Counterclaim re: Constitutionality of Iowa Code § 479B.15, Navigator Heartland...

Continue Reading Iowa Trial Court: Pipeline Precondemnation Entry Statute Is Facially Unconstitutional

Check out the North Dakota Supreme Court’s opinion in Cass County Joint Water Resource District v. Aaland, No. 20200171 (Mar. 24, 2021). It’s a quick read, and worth your time.

North Dakota has one of those “precondemnation entry” statutes allowing a (potential) condemnor to enter private property to check it out to see if this property is suitable for the anticipated public use. Indeed, North Dakota’s statute is modeled on California’s pre-1963 entry statute (the one analyzed by the California Supreme Court in the somewhat-recent decision in Property Reserve):

In all cases when land is required for public use, the person or corporation, or the person’s or corporation’s agents, in charge of such use may survey and locate the same, but it must be located in the manner which will be compatible with the greatest public benefit and the least private injury and subject to the provisions of section 32-15-21. Whoever is in charge of such public use may enter upon the land and make examinations, surveys, and maps thereof, and such entry constitutes no claim for relief in favor of the owner of the land except for injuries resulting from negligence, wantonness, or malice.

N.D.C.C. § 32-15-06.

Here, the District’s proposed entries “to conduct examinations, surveys, and mapping” to see if the land was suitable for a flood control project were opposed by the owners. The trial court agreed with the District that these were relatively small, innocuous, and nonpermanent invasions, so they were covered by the statute. Entries granted.

Not so fast, held the N.D. Supreme Court, even though one of its more recent decisions (on which we posted here (ND: Entry Statutes Are Not Takings, Even If There’s A Physical Invasion“) might indicate otherwise. The test borings in that case were small, eventually replaced on the land, and were compensated and therefore qualified as minimally invasive (“innocuous”) entries covered by the statute. But not so here:

For sixteen and one-half months, [the trial court’s] order granting right to entry gave the District access to the land to make examinations, surveys, and maps thereof. As part of the 2017 order, the District was allowed to perform geomorphic examiations, which required the installation of survey monuments on the properties. The District conceded at oral argument that these monuments were in fact installed pursuant to the 2017 order.

Slip op. at 4. Total time the District could access the owners’ properties was certainly not permanent: 35 months. The survey monuments were there longer (nearly 3 years).

That was enough to convince the N.D. Supreme Court that these type of entries were not “innocuous” and qualified as more permanent (even though, factually speaking, the entries were not permanent).

In short, Loretto solved the question:

[The statute] permits entry upon the land to make examinations, surveys, and maps thereof, which is “preliminary to the condemnation action itself.” Under the 2017 order, the District was afforded sixteen and one-half months to perform its examinations and surveys. Placement of survey monuments on the Landowners’ properties for as long as three years is not an “innocuous entry” and would seriously impinge upon or impair the rights of the Landowners to the use and enjoyment of their properties. A physical occupation of this duration goes beyond the minimally invasive examination and testing permitted under N.D.C.C. § 32-15-06. Accordingly, we reverse the district court’s May 2020 orders granting the District a right of entry onto the Landowners’ properties.

Slip op. at 6.

In other words, these entries are not privileged, and are … takings (Are you listening, SCOTUS?).

Cass County Joint Water Resource District v. Aaland, No. 20200171 (N.D. Mar. 24, 2021)

Continue Reading N. Dakota: We Understand The Right To Exclude – Non-Permanent Precondemnation Entries Went Too Far

A very quick one today from the North Dakota Supreme Court. In Cass County Joint Water Resource District v. Aaland, No. 20200272 (Sep. 15, 2020), the court rejected a property owner’s request for a stay pending appeal of a trial court’s order allowing the district to enter the owner’s property “to conduct examinations, surveys, and mapping, including geomorphic examinations requiring installation of survey monuments.” The District had tried to negotiate an easement, but the owner didn’t want to play.

The Supreme Court rejected the request, concluding that the owner didn’t show irreparable injury because he could always bring an after-the-fact inverse condemnation claim to remedy whatever injuries the entries caused. The court also concluded that a stay would harm the District, because it would delay the project, even though actual construction of the project has already been enjoined by a federal court. While the district might not be able to start building, it can do other preliminary things like the entries.

That’s it. The Order is only a couple of pages long. Perfect for Monday reading.

Cass Cnty Joint Water Res. Dist. v. Aaland, 20200171 (N.D. Sep. 15, 2020)

Continue Reading No Injunction To Halt Precondemnation Entry, Since Owner Can Sue Later For Inverse

Been meaning to post this one for a while, because it’s on a topic that is frequently on the mind of eminent domain lawyers, but isn’t often covered by the courts: liability for inequitable precondemnation activities.

In City of Albuquerque v. SMP Properties, LLC , No. A-1-CA-35261 (Sep. 26, 2018),  the New Mexico Court of Appeals 

City of Albuquerque v. SMP Properties, LLC, No. A-1-CA-35261 (N.M. App. Sep. 26, 2018)

Continue Reading NM App: Inequitable Precondemnation Activities