Idaho Power Company v. Bean

Temporary pre-condemnation entries onto land authorized under ORS § 35.220 do not violate the Takings Clause of the Oregon Constitution, Article I § 18, nor the Fifth Amendment of the United States Constitution, because such entries are “consistent with longstanding background restrictions on property rights” under Cedar Point Nursery, 594 U.S. 139, 158 (2021).

In 2022, the Oregon Energy Facility Siting Council issued Idaho Power a site certificate for a high-voltage transmission line from Boardman, Oregon, to Hemingway, Idaho. Idaho Power, a public utility under ORS § 772.205(2), has authority under ORS § 35.220 to enter private property temporarily to inspect and conduct surveys before condemnation proceedings. 516 Ranch filed suit, objecting to Idaho Power’s pre-condemnation entry onto its land. The Union County Circuit Court found that ORS § 35.220 violated the Takings Clauses of both the Oregon and United States Constitutions by interfering with 516 Ranch’s right to exclude.

Idaho Power appealed. Following the analysis in Cedar Point Nursery v. Hassid, the Oregon Court of Appeals concluded that in Oregon (and across the country), temporary pre-condemnation entries are “consistent with longstanding background restrictions on property rights.” See 594 U.S. 139, 158 (2021). The government, therefore, “does not take a property interest when it merely asserts a pre-existing limitation upon the land owner’s title.” See id. at 160. Specifically, Oregon has historically allowed the government to enter property for a "preliminary examination and survey before the location of [a] road.” Oregonian R’y Co. v. Hill, 9 Or 377, 381 (1881). While this case involves a power line, not a road, the same principle in Cedar Point Nursery applies. Crucially, if the condemnor causes damage, ORS § 35.220 provides an owner the right to recover damages; the Court did not address this issue here. The Court reversed and remanded.