At first, the Iowa Supreme Court's opinion in Juckette v. Iowa Utilities Board, No. 21-1788 (June 16, 2023) looks like a promising read. The issue -- is a utility expanding its use of an express road easement to install electric lines a taking? -- is one that we've been following.
But by the time you get to the end of the short opinion (10 pages), you realize the court didn't decide much, other than yeah, the utility has the statutory authority to use the easement this way. The court can't reach a decision on whether that's a taking for public use. Not because there's some problem with the case or the way it was presented, but because one of the Justices on the seven-member court sat it out and the remaining six couldn't agree. Affirmed by an equally divided court, 3-3.
This apparently is not that unusual in Iowa, as the national media noted recently. This story ("Iowa Supreme Court split 3-3 on abortion ruling - How rare is a deadlock?") notes it is rare, "with only 18 cases ending in a non-decision deadlock in the last 15 years." To us, more than one a year seems like a lot, not rare.
Well, at least the six who showed up agreed on one issue: the utility met the statutory requirements of building utilities in a public road easement.
Here's the short story. Juckette's-predecessor-in-title granted the county an easement for a "road right-of-way." That road is now a county highway. Flash forward a few decades and the electric utility wants to build new lines to "satisfy the demands created by Microsoft's new data center." Slip op. at 8. On some properties it exercised the delegated power of eminent domain. But on Juckette's land, it didn't because it thought it could just use the road easement. As the court noted, based on a decision of the Iowa Supreme Court, Keokuk Junction Railway v. EIS Indus., 618 N.W.2d 352 (Iowa 2000), "the utility "would have been obligated to pay Juckette compensation to build electric transmission lines in the road right-of-way." But in 2004, the Iowa Legislature adopted a statute that authorized utilities to go ahead and build in a public road right-of-way.
The utility petitioned the Iowa Utilities Board to let it do just that. The Board agreed that the utility met the statute's requirements and that the electric project is in the public interest. The legislature had essentially overruled the Iowa Supreme Court's Keokuk decision. But wasn't Keokuk a constitutional ruling, meaning that the statute could not supersede the obligation to pay compensation? The Board (correctly) concluded that as an agency, it lacked the jurisdiction to determine constitutional matters, and declined to address the argument.
Next stop, the courts. The trial court affirmed the Board's application of the statute, and rejected the owner's claim that this is nonetheless a taking and compensation is required. Next stop, the Iowa Supreme Court to resolve all questions.
Or so the parties thought. That court affirmed the statute-allows-this ruling. It also agreed that the Board's determination of public use and necessity under the statute (a certificate of public convenience for you PUC mavens) resolved the question of whether this is a public use of the property for takings purposes.
The owners asserted this was a taking to benefit Microsoft, not the public. The court noted, "it does seem that the most immediate need for the project is to satisfy the demands created by Microsoft's new data center. But record evidence shows that MidAmerican's planned improvements will also benefit current and future customers other than just Microsoft." Slip op. at 8-9. But we don't have to resolve which side is right, because the Board already did so: the public use inquiry required by the constitution is undertaken and determined by the Board.
On the other issue -- is expanding the scope of a granted easement to include additional uses a taking -- the court split 3-3.
The only question is whether that construction could result in a taking that requires compensation under the Fifth Amendment to the United States Constitution and article I, section 18 of the Iowa Constitution. As to this question, we are evenly divided. Christensen, C.J., and McDermott and May, JJ., would find that that construction could result in a taking; Waterman, McDonald, and Oxley, JJ., disagree. As a result, the district court is affirmed by operation of law. Iowa Code § 602.4107 (2023); Effler, 769 N.W.2d at 884.
Slip op. at 9-10.
Too bad.
Juckette v. Iowa Utilities Board, No. 21-1788 (Iowa June 16, 2023)
