Here's the latest in a case (and issue) we've been following.
In Puntenney v. Iowa Utilities Board, 928 N.W.2d 829 (Iowa 2019), the Iowa Supreme Court answered a question that has been making its way around: what "public" does the "public use" requirement cover? For the Iowa Constitution, for example, does a taking have to be of direct benefit to the people of Iowa?
The court there addressed the issue by not answering the the question directly, but by concluding that the Iowa public is indirectly served by the taking of private property for a pipeline, even though there are no "onramps" or "offramps" for the oil in Iowa. The taking would have the other, usual, butterfly effect Iowa benefits: some jobs, cheaper gas, and the like. Kentucky and West Virginia courts have reached the opposite conclusion (the taking must directly serve the people of the state), but Ohio and Illinois go the other way.
The property owners have filed a cert petition, which asks the U.S. Supreme Court to address these Questions Presented:
Does a state’s exercise of eminent domain satisfy the “public use” requirement of the Fifth Amendment’s Takings Clause if the only benefits experienced within that state are incidental?Can a state satisfy the “public use” requirement of the Fifth Amendment’s Takings Clause merely by labeling the taking with a traditional category of public use, without engaging in the “public purpose” analysis outlined by Kelo v. City of New London, 545 U.S. 469 (2005)?
The petition points out the lower courts' disarray about when a taking violates the Public Use requirement, especially after Kelo.
The Iowa Utilities Board did not file an opposition, but the pipeline recently did, arguing that the lower court split is about "pretext," and this isn't a pretext case. While the latter assertion is true (the property owners are not claiming that the stated reason for the taking is one thing, but the real reason for the taking is something else), the lower courts' inability to settle on any consistent public use standards involves more than just the rules for pretext (see this recent brief for examples), but also includes questions about direct vs indirect benefits, and as we note above, what "public" is served by the taking (a question that is really a "denominator" problem - how can you measure whether a taking has only incidental public benefits if you don't know which public you are looking at?). And, is it enough to overcome overwhelming private benefit as long as there is a smidgen of incidental public benefits, however "public" is defined?
In the end, the Iowa Supreme Court fell back on the idea that this was really a common carrier taking and thus just fine, because this is a "classic" public use. For several lower courts, the mere invocation of a classic public use isn't enough (others, it is), and they read Kelo (esp the concurring opinion) to require a more in-depth review of the public and private benefits before reaching a conclusion on the constitutionality of a taking.
Will this case be the one to strike lightning on that issue? We shall see.
Petition for Writ of Certiorari, Puntenney v. Iowa Utilities Board, No. 19-447 (Sep. 30, 2019)
