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)
