696 July 9, 2025 No.

611

IN THE COURT OF APPEALS OF THE

STATE OF OREGON

IDAHO POWER COMPANY,

Petitioner-Appellant,
v.
Douglas Baldwin BEAN,
Mallory Hardt Bean and Madeline Baldwin Bean,
Partners doing business as 516 Ranch Partnership,
an Oregon general partnership; and For The Girls LLC,
an Oregon limited liability company,
Respondents-Respondents.
Union County Circuit Court
23CV12213; A182676

Wes Williams, Judge.

Argued and submitted May 28, 2025.
Sara Kobak argued the cause for appellant. Also on the
briefs were Andrew J. Lee and Schwabe, Williamson &
Wyatt, PC.
Brent H. Smith argued the cause and filed the brief for
respondents.
Christina M. Martin and Austin W. Waisanen, Wyoming,
filed the brief amicus curiae for Pacific Legal Foundation.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Denise G. Fjordbeck, Assistant
Attorney General, filed the brief amicus curiae for Oregon
Department of Education.
Before Tookey, Presiding Judge, Kamins, Judge, and
Jacquot, Judge.
TOOKEY, P. J.
Reversed and remanded.
Cite as 341 Or App 696 (2025) 697
698 Idaho Power Company v. Bean

TOOKEY, P. J.
Petitioner, Idaho Power Company (Idaho Power), is
building a transmission line that will span approximately
293 miles and transfer electricity generated in Boardman,
Oregon to Idaho Power’s Hemingway substation in Owyhee
County, Idaho. Respondents, 516 Ranch, own property that
lies on the proposed path of that transmission line. Idaho
Power is appealing a general judgment denying its petition
under ORS 35.220 for precondemnation entries onto 516
Ranch’s real property.
The trial court determined that ORS 35.220—a
statute that allows Idaho Power to enter 516 Ranch’s
property to conduct necessary precondemnation examina-
tions, surveys, tests, and sampling—was unconstitutional
because it violated the Takings Clause of Article I, section
18, of the Oregon Constitution and the Takings Clause of
the Fifth Amendment to the United States Constitution.1 As

1
ORS 35.220 provides, in full:
“(1) Subject to the requirements of this section, a condemner may enter
upon, examine, survey, conduct tests upon and take samples from any real
property that is subject to condemnation by the condemner. A condemner
may not enter upon any land under the provisions of this section without
first attempting to provide actual notice to the owner or occupant of the prop-
erty. If the condemner has not provided actual notice, written notice must
be posted in a conspicuous place where the notice is most likely to be seen.
The posted notice must give the condemner’s name, address and telephone
number and the purpose of the entry. A condemner may conduct tests upon
or take samples from real property only with the consent of the owner or pur-
suant to an order entered under subsection (2) of this section. All testing and
sampling must be done in conformity with applicable laws and regulations.
Testing and sampling results shall be provided to the owner upon request.
“(2) If the owner of property objects to examination or survey of the prop-
erty under this section, or does not consent to the terms and conditions for
testing or sampling of the property, the condemner may file a petition with
the court seeking an order providing for entry upon the property and allow-
ing such examination, survey, testing or sampling as may be requested by
the condemner. The court may enter an order establishing reasonable terms
and conditions for entry and for any examination, survey, testing or sampling
of the property requested by the condemner. Reasonable compensation for
damage or interference under subsection (3) of this section may be estab-
lished in the proceeding either before or after entry is made upon the prop-
erty by the condemner.”
“(3) An owner is entitled to reasonable compensation for:
“(a) Any physical damage caused to the property by the entry upon or
examination, survey, testing or sampling of the property, including any
Cite as 341 Or App 696 (2025) 699

explained below, we conclude that the trial court erred when

it determined that ORS 35.220 was unconstitutional.
Specifically, the trial court concluded that the pre-
condemnation entries that Idaho Power sought were “tak-
ings” for which 516 Ranch was due “just compensation.”
The trial court reached that conclusion because, in its view,
the requested entries interfered with 516 Ranch’s “right to
exclude” and were not consistent with “longstanding back-
ground restrictions on property rights” or “traditional com-
mon law privileges to access private property.”
The trial court further concluded that ORS 35.220
was unconstitutional “to the extent [it] allows a condemner
to enter onto one’s property to conduct examinations, sur-
veys, tests, and samples of the property without the consent
of the owner and without just compensation.”
We conclude that the trial court erred when it
determined that the precondemnation entries Idaho Power
sought were “takings” under Article I, section 18, and the
Fifth Amendment; that is because, as explained below, tem-
porary 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.”
Importantly, in this case, the trial court determined
that 516 Ranch had failed to show that the temporary pre-
condemnation entries Idaho Power sought would result in

damage attributable to the diffusion of hazardous substances found on the

property; and
“(b) Any substantial interference with the property’s possession or use
caused by the entry upon or examination, survey, testing or sampling of the
property.
“(4) If a condemner is required to pay compensation to an owner in a
proceeding under subsection (2) of this section, and the condemner thereafter
seeks condemnation of the same property, the owner is not entitled to any
payment of compensation in the condemnation action that would result in the
owner receiving a second recovery for the same damage or interference.
“(5) Nothing in this section affects any liability under any other provi-
sion of law that a condemner may have to an owner or occupant of property by
reason of entry upon or examination, survey, testing or sampling of property.”
700 Idaho Power Company v. Bean

either “[a]ny physical damage” or “[a]ny substantial interfer-

ence with the property’s possession or use.” Consequently,
the trial court erred when it concluded that ORS 35.220 was
unconstitutional as applied in this case.2 We reverse and
remand.
We note, however, that under ORS 35.220, if the tem-
porary precondemnation entries Idaho Power seeks do result
in “physical damage” to the property or “substantial interfer-
ence” with 516 Ranch’s use or possession of the property, 516
Ranch is entitled to compensation under ORS 35.220.
I. BACKGROUND
As context for our discussion of the facts of this
case and the trial court’s ruling, we begin by describing the
operation of ORS 35.220, which allows a condemnor to insti-
tute an action to obtain an order allowing the condemnor to
enter private property that is subject to condemnation for
certain purposes prior to condemnation. We then turn to a
description of the historical facts and the instant litigation.
A. ORS 35.220
In 2003, the legislature adopted ORS 35.220 to “pro-
vide a single statutory source that outlines both the authority
for pre-condemnation rights of entry for all condemning bodies
and the procedures for landowners to obtain a judicial deter-
mination of liabilities and damages.” See Exhibit O, House
Committee on Judiciary, HB 3372, Apr 1, 2003 (Oregon Law
Commission, Eminent Domain: Pre-condemnation Entry on
Property for Examination, Survey, and Testing Report (HB
2
In their briefing, neither party uses the term “as-applied challenge” or “facial
challenge” when discussing the trial court’s constitutional ruling on ORS 35.220.
During oral argument, 516 Ranch explained that, in the trial court, “the record
[it] attempted to develop was definitely an as-applied challenge.” And Idaho Power
acknowledged at oral argument that 516 Ranch’s challenge to the constitutionality
of ORS 35.220 “may be better characterize[ed]” as an as-applied challenge.
Because the question in a facial challenge is whether there is any set of cir-
cumstances in which ORS 35.220 could be valid, see City of Portland v. Sottile,
336 Or App 741, 744, 561 P3d 1159 (2024) (a facial challenge “requires a [party]
to establish that no set of circumstances exists under which” the law would be
valid), and, as discussed below, the parties appear to agree that ORS 35.220 is
valid with respect to “land surveys” and an “appraisal field visit,” we understand
this to be an as-applied challenge; that is, if it was a facial challenge, the statute
would be valid, because it is undisputedly valid regarding the land surveys and
appraisal field visit.
Cite as 341 Or App 696 (2025) 701

3372), Nov 22, 2002). Under ORS 35.220(1), a condemner may

“enter upon, examine, survey, conduct tests upon and take
samples” from any property that is subject to condemnation,
provided that the notice provisions of the statute are adhered
to. If a landowner objects or does not consent—as 516 Ranch in
this case has done—under ORS 35.220(2), the condemner may
seek a court order providing for entry onto the property and
“allowing for such examination, survey, testing or sampling as
may be requested by the condemner.” In such a proceeding, the
court “may enter an order establishing reasonable terms and
conditions for entry and for any examination, survey, testing
or sampling of the property requested by the condemner.”
Pursuant to ORS 35.220(3), a landowner is entitled
to “reasonable compensation” for “[a]ny physical damage
caused to the property by the entry upon or examination,
survey, testing or sampling of the property” or “[a]ny sub-
stantial interference with the property’s possession or use
caused by the entry upon or examination, survey, testing or
sampling of the property.” The right to such compensation
under ORS 35.220(3) may be established either “before or
after entry is made on the property by the condemner.”
Additionally, ORS 35.220(5) provides that nothing
in ORS 35.220 “affects any liability under any other provi-
sion of law that a condemner may have to an owner or occu-
pant of property by reason of entry upon or examination,
survey, testing or sampling of property.”
Thus, ORS 35.220 provides that a landowner
will receive notice prior to precondemnation entries, ORS
35.220(1); provides a condemner with a mechanism to obtain
a court order if the landowner objects or does not consent to
entry, with conditions to be set by the court, ORS 35.220(2);
and provides the landowner with the right to obtain redress
for “any physical damage” or “substantial interference” with
the property’s possession or use, without precluding the
landowner from resorting to any other remedies that may
be available under the law, ORS 35.220(3), (5).
B. Historical Facts
Idaho Power is a public utility, ORS 772.205(2), and
is statutorily authorized to “enter upon lands within this
702 Idaho Power Company v. Bean

state in the manner provided by ORS 35.220,” for the pur-

pose of “examining, locating and surveying the line thereof
and also other lands necessary and convenient for the pur-
pose of construction of service facilities, doing no unneces-
sary damage thereby,” ORS 772.210(1).
Idaho Power is building a 500-kilovolt transmission
line that will span approximately 293 miles. The line will
transfer electricity generated in Boardman, Oregon to Idaho
Power’s Hemingway substation in Owyhee County, Idaho. The
transmission line project is (aptly) known as the Boardman to
Hemingway Transmission Line (B2H) project. Idaho Power
initiated the B2H project in 2007, and in 2023, the Oregon
Supreme Court affirmed the Oregon Energy Facility Siting
Council’s final order approving the site certificate for the B2H
transmission line. Stop B2H Coalition v. Oregon Department
of Energy, 370 Or 792, 795, 525 P3d 864 (2023).
516 Ranch owns approximately 12,000 acres of
ranch and timber land in Union County, Oregon (the Ranch).
The Ranch lies on the proposed path of the B2H project. On
the Ranch, 516 Ranch raises cattle, harvests timber, and
allows hunting for a fee. The Ranch is home to native plant
and animal species and significant cultural and archeologi-
cal sites.
Construction on the B2H project was scheduled to
start in 2023—the same year that the trial court issued
the judgment now on appeal. As the trial court found,
Idaho Power “must ensure that the project’s path complies
with permitting and siting requirements, including that it
does not conflict with any protected resources.” (Emphasis
added.) To ensure compliance, Idaho Power “must conduct
surveys, tests, and samples on [516 Ranch’s] property.”
(Emphasis added.) The “surveys, tests, and samples” that
Idaho Power must conduct include “three-toed woodpecker
and northern goshawk surveys, rare plant inspection, gray
owl and flammulated owl surveys, wetlands inspection, ter-
restrial visual encounter surveys, noxious weeds surveys,
cultural resource surveys, enhanced archeological surveys,
and historic properties management plan surveys, geotech-
nical drilling, land surveys, and an appraisal field visit.”
Cite as 341 Or App 696 (2025) 703

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 com-
plete, 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 per-
sons. Four of the entries will involve “some ground distur-
bance.” 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 exca-
vator.” The geotechnical drilling involves a “drilling crew”
drilling “boreholes approximately 6 to 8 inches in diameter,”
which will be “backfilled.”
Idaho Power sent letters to 516 Ranch requesting
access to the Ranch to conduct the necessary precondemna-
tion surveys, testing, and sampling. Although historically
516 Ranch had consented to some entries by Idaho Power in
connection with the B2H project, 516 Ranch did not consent
to further entries by Idaho Power.3
C. The Instant Litigation
Idaho Power then filed the instant action pursuant
to ORS 35.220. See ORS 35.220 (“If the owner of property
objects to examination or survey of the property under this
section, * * * the condemner may file a petition with the court
seeking an order providing for entry upon the property and
allowing such examination, survey, testing or sampling as
may be requested by the condemner.”). After some litigation,
516 Ranch consented to Idaho Power’s entry for the purpose of
“land surveys” and an “appraisal field visit,” as reflected in a
limited judgment entered by the trial court. 516 Ranch contin-
ued to object, however, to the other precondemnation activities
3
516 Ranch asserts that that they did not consent to further entries by
Idaho Power after one of Idaho Power’s subcontractors “entered the ranch in an
unmarked truck without notice, drove off-road, and left a gate open, creating a
risk that cattle would escape their pastures.”
704 Idaho Power Company v. Bean

Idaho Power sought to conduct on the Ranch. 516 Ranch

argued that those activities were a “per se taking of private
property because the requested entries interfered with [the]
Ranch’s right to exclude and were not consistent with ‘long-
standing background restrictions on property rights’ or ‘tradi-
tional common law privileges to access private property.’ ”4
The trial court agreed with the Ranch. It first
acknowledged that ORS 35.220(3) permits a property owner
to “recover reasonable compensation before entry” if a pre-
condemnation entry by a condemnor will cause either “sub-
stantial interference with the property’s possession or use” or
“any physical damage” to the property but determined that
that standard had not been met here. The court explained
that 516 Ranch was “unable to mount enough proof to estab-
lish a ‘substantial interference’ with the property’s posses-
sion or use caused by the entry upon or examination, survey,
testing or sampling of the property,” and “[w]ith the pre-con-
demnation entries contemplated here it would be very dif-
ficult to prove before the entry how the property would be
physically damaged.”
Nevertheless, the trial court concluded that the
“precondemnation entries amount to a ‘taking’ under the
Oregon and/or United States Constitutions for which ‘just
compensation’ is required.” In so concluding, it reasoned
that this is not a case involving “a permanent physical occu-
pation,” but rather what Idaho Power seeks is “a series of
temporary entries to conduct examinations, surveys, tests,
and samples.” That “series of temporary entries,” the trial
court concluded, deprived 516 Ranch of “that most essen-
tial property right: the right to exclude others from one’s
property.” Further, the trial court noted that it is not the
case that “all forms of entry amount to a taking,” insofar
as there are “traditional common law privileges to access
private property which do not amount to a ‘taking.’ ” But,
the trial court concluded, the entries Idaho Power sought,
“in the aggregate,” amount to a taking under the Oregon
Constitution and the United States Constitution.
4
Regarding the “land surveys” and “appraisal field visit” that 516 Ranch
consented to, 516 Ranch agreed that a “land survey and an appraisal field visit
within the scope of ORS 35.220” is “consistent with longstanding background
restrictions on property rights.”
Cite as 341 Or App 696 (2025) 705

As a result of those determinations, the trial court

concluded that to “the extent ORS 35.220 allows a con-
demner to enter onto one’s property to conduct examina-
tions, surveys, tests, and samples of the property without
the consent of the owner and without just compensation, it
is unconstitutional.”
In reaching its conclusion that the precondemna-
tion entries at issue in this case constituted a “taking,” the
trial court relied on Cedar Point Nursery v. Hassid, 594 US
139, 143-44, 141 S Ct 2063, 210 L Ed 2d 369 (2021), which,
as explained below, held that a California regulation that
granted labor organizations a “right to take access” to an
agricultural employer’s property in order to solicit support
for unionization constituted a “per se physical taking under
the Fifth and Fourteenth Amendments.”
After reaching its conclusion regarding the constitu-
tionally of ORS 35.220, the trial court ordered Idaho Power
to “attempt to agree” with 516 Ranch with respect to the com-
pensation to be paid for its entries, and if no agreement could
be reached, then Idaho Power could commence “an action to
condemn the property” under ORS 35.245.5
The trial court then entered a general judgment
denying Idaho Power’s petition for precondemnation entry
onto the Ranch.6 This appeal by Idaho Power followed.7
5
ORS 35.245 provides:
“(1) If the condemner is unable to agree with or locate the owner of the
property under ORS 35.235, then an action to condemn property may be com-
menced in the circuit court of the county in which the property proposed to be
condemned, or the greater portion thereof, is located.
“(2) An action may be commenced against the person in whose name the
record title appears. There may be included as defendants any lessee or other
person in possession and all other persons having or claiming an interest in
the property.”
6
The general judgment denied the petition for precondemnation entry onto
the Ranch “except as otherwise granted in the court’s limited judgment”—i.e.,
the limited judgment noted above allowing entry for the purpose of an appraisal
field visit and land surveys.
7
We note that amicus curiae the Oregon Department of Transportation has
filed a brief in support of Idaho Power, in which it contends that the trial court
erred in denying Idaho Power entry to the Ranch. Amicus curiae Pacific Legal
Foundation has filed a brief in support of 516 Ranch, contending that “back-
ground principles of Oregon property law do not include a prospective condemn-
er’s repeated access to private property for pervasive information gathering.”
706 Idaho Power Company v. Bean

II. ANALYSIS
On appeal, Idaho Power argues that the trial court
erred in denying its petition to conduct precondemnation sur-
veys under ORS 35.220 because “the right to precondemna-
tion entry for necessary surveys is a longstanding limit on
property rights.” And because ORS 35.220 “is consistent” with
the “privilege for a condemning body to conduct precondem-
nation surveys to determine suitability for eminent domain,”
and provides for a means of redress for property owners, ORS
35.220 “does not authorize any per se physical takings with-
out just compensation.” Thus, Idaho Power contends that ORS
35.220 is not unconstitutional as applied in this case.
As 516 Ranch sees it, the trial court did not err in
denying Idaho Power’s petition for precondemnation access
to the Ranch under ORS 35.220. 516 Ranch asserts that ORS
35.220 creates a “right for Idaho Power to invade 516 Ranch’s
property and takes 516 Ranch’s right to exclude Idaho Power
from its property,” and that such entries “amount to per se
physical takings.” We understand 516 Ranch to argue that
the type of precondemnation entries at issue here—which
516 Ranch characterizes as “studies of birds, plants, ani-
mals, noxious weeds, wetlands, cultural resources and geo-
technical drilling over as many as thirty-two visits”—are
not “ ‘consistent with longstanding background restrictions
on property rights’ ” or a “ ‘traditional common law [privilege]
to access private property.’ ” (Quoting Cedar Point Nursey,
594 US at 158, 160; brackets in 516 Ranch’s brief.).8
8
In advancing its arguments on appeal, 516 Ranch also contends that the
“longstanding background restriction on property rights is for land surveys and
an entry for the purpose of making the preliminary examination and survey,
conducted only for a reasonable time.” 516 Ranch contends that, in deciding this
case, “this court ought to answer” certain questions—e.g., “Are 15 years of entries
followed by thirty-two more entries consistent with an entry * * * for the purpose
of making the preliminary examination and survey” and “conducted only for a
reasonable time?”
But we do not understand the trial court to have based its ruling on a determi-
nation that the precondemnation entries at issue here were “unreasonable” either
in type or duration—indeed, the trial court’s opinion does not reference the prior
“15 years of entries” to which 516 Ranch refers on appeal or whether the future
entries Idaho Power seeks are “reasonable” or “unreasonable.” To the extent 516
Ranch contends that any specific entry is unreasonable, that is an argument bet-
ter made to and ruled on by the trial court in the first instance on remand.
Additionally, 516 Ranch argues that “what Idaho Power seeks is a temporary
investigative easement for which it must pay just compensation.” We disagree. As
Cite as 341 Or App 696 (2025) 707

“We review the trial court’s ruling regarding the

constitutionality of a statute for an error of law.” State v.
Betnar, 214 Or App 416, 419, 166 P3d 554 (2007). As presented
to us, we understand the legal question in this appeal to
be whether necessary precondemnation examinations, sur-
veys, tests, and sampling, authorized by ORS 35.220, which
do not amount to “substantial interference” with a property
owner’s use or possession of the property, do not “physically
damage” the property, and do not involve a “permanent
physical occupation” of property, amount to uncompensated
per se physical takings of private property in violation of the
takings clauses in the Oregon Constitution and the United
States Constitution.9 If they do, then ORS 35.220 is uncon-
stitutional, at least with regard to the entries in this case
and as applied here, because it permits such entries without
requiring compensation be paid to a property owner.
As explained below, under Cedar Point Nursery,
answering that legal question requires consideration of
whether such entries are “consistent with longstanding
background restrictions on property rights.”
We begin our analysis by describing the Takings
Clause of the Oregon Constitution and the United States
Constitution, before turning to the question whether neces-
sary and temporary precondemnation entries onto a prop-
erty owner’s land that do not cause “substantial interfer-
ence” or “physically damage” property are “consistent with
longstanding background restrictions on property rights.”
We then explain why the trial court erred in ruling that
ORS 35.220 was unconstitutional.
A. “Takings” and Cedar Point Nursery
The Takings Clause of the Oregon Constitution—
found in Article I, section 18—provides:
explained in this opinion, given the trial court’s determinations, we understand
Idaho Power to seek temporary precondemnation entry in a manner that will not
“physically damage” or “substantially interfere” the Ranch’s use and possession.
As explained below, that is a type of entry that is “consistent with longstanding
background restrictions on property rights.”
9
That is because, as noted, the trial court determined 516 Ranch had not
established that the entries at issue will “substantially interfere” with 516
Ranch’s use or possession of the property, “physically damage” the property, and
do not involve “permanent physical occupation.”
708 Idaho Power Company v. Bean

“Private property shall not be taken for public use, nor

the particular services of any man be demanded, without
just compensation; nor except in the case of the state, with-
out such compensation first assessed and tendered[.]”
The Takings Clause of the Fifth Amendment, appli-
cable to the states through the Fourteenth Amendment,
provides:
“[N]or shall private property be taken for public use,
without just compensation.”
There is “no unitary test for what constitutes a
‘taking’ of property under either Article I, section 18, or the
Fifth Amendment.” Walton v. Neskowin Regional Sanitary
Authority, 372 Or 331, 343, 550 P3d 1 (2024), cert den, 145
S Ct 1136 (2025). But both the Oregon Supreme Court and
the United States Supreme Court have “drawn some bright
lines.” Id. The Oregon Supreme Court has “consistently found
a taking when government has intentionally authorized a
physical occupation of private property that substantially
has interfered with the owner’s rights of exclusive posses-
sion and use.” Id. Ultimately, under Oregon’s constitution,
“[m]ost cases boil th[e] definition [of a taking] down to a test
of whether there has been a ‘substantial’ interference with
property rights.” Hawkins v. City of La Grande, 315 Or 57,
68, 843 P2d 400 (1992). The United States Supreme Court
“has ruled that a permanent physical occupation of property
authorized by the government is a taking.” Walton, 372 Or
at 343-344 (internal quotation marks omitted).
This case requires the consideration of a kind of per
se physical taking recognized by the United States Supreme
Court in Cedar Point Nursery. In that case, the Court con-
sidered whether a California regulation that granted “labor
organizations a ‘right to take access’ to an agricultural
employer’s property in order to solicit support for unioniza-
tion * * * for up to three hours per day, 120 days per year”
constituted a “per se physical taking under the Fifth and
Fourteenth Amendments.” 594 US at 143-44. The Court
explained that it did; it explained that the “access regula-
tion appropriates a right to invade the growers’ property
and therefore constitutes a per se physical taking.” Id. at
149. More specifically, the “regulation appropriate[d] for the
Cite as 341 Or App 696 (2025) 709

enjoyment of third parties the owners’ right to exclude.”10

Id. The right to exclude is “universally held to be a funda-
mental element of the property right, and is one of the most
essential sticks in the bundle of rights that are commonly
characterized as property.” Id. at 150 (internal quotation
marks omitted).
Nevertheless, the Court explained that “many gov-
ernment-authorized physical invasions will not amount
to takings because they are consistent with longstanding
background restrictions on property rights.” Id. at 160.
That is, “the government does not take a property interest
when it merely asserts a pre-existing limitation upon the
land owner’s title.”11 Id. (internal quotation marks omitted).
Those “background limitations * * * encompass traditional
common law privileges to access private property.” Id.
Neither party asserts that the standard set forth in
Cedar Point Nursery, which concerned the Takings Clause of
the Fifth Amendment, is not also applicable under Article I,
section 18, nor do we perceive of any reason why it would
not be. Nor does either party develop an argument that
our application of that standard should differ under the
Fifth Amendment and Article I, section 18. Consequently—
because neither party has developed an argument that our
application of the standard set forth in Cedar Point Nursery
should differ under the Fifth Amendment and Article I, sec-
tion 18—our analysis in this opinion regarding the consti-
tutionality of ORS 35.220(5) is the same with regard to both
the Fifth Amendment and Article I, section 18.

10
In some circumstances when a regulation restricted a landowner’s ability
to use their own property, the Court had applied the balancing test enunciated
in Penn Cent. Transp. Co. v. City of New York, 438 US 104, 124, 98 S Ct 2646, 57
L Ed 2d 631 (1978). In Cedar Point Nursery, however, the Court explained that
“[w]henever a regulation results in a physical appropriation of property, a per se
taking has occurred, and Penn Central has no place.” 594 US at 149.
11
The Court also explained two other limitations on its holding in Cedar
Point Nursery. First, “[i]solated physical invasions, not undertaken pursuant to
a granted right of access, are properly assessed as individual torts [of trespass]
rather than appropriations of a property right.” 594 US at 159. Second, “the gov-
ernment may require property owners to cede a right of access as a condition of
receiving certain benefits, without causing a taking.” Id. at 161. Those aspects of
the Cedar Point Nursery decision are not at issue in this appeal.
710 Idaho Power Company v. Bean

B. Temporary Precondemnation Entries are a Longstanding

Background Restriction on Property Rights
In light of Cedar Point Nursery, a central question in
this case is whether temporary precondemnation entries by
a condemnor are “consistent with longstanding background
restrictions on property rights.” We conclude that they are,
at least insofar as they do not cause “physical damage” or
“substantial interference” with use and possession of the
property.
Oregon law has long recognized the right to pre-
condemnation entry for purposes of “examining, locating
and surveying.” Section 21 of the General Laws from 1862
provided:
“A corporation organized for the construction of any rail-
road, macadamized road, plank road, clay road, canal or
bridge shall have the right to enter upon any land between
the termini thereof, for the purpose of examining, locating
and surveying the line of such road or canal or the site of
such bridge, doing no unnecessary damage thereby.”
The Code of Civil Procedure and Other General Statutes of
Oregon, title I, § 21 (Salem 1863). And in 1881, the Oregon
Supreme Court referred to the “power of the legislature to
authorize an entry upon private property without compen-
sation, for the purpose of making the preliminary examina-
tion and survey before the location of [a] road.” Oregonian
R’y Co. v. Hill, 9 Or 377, 381 (1881).
That nineteenth century Oregon authority is consis-
tent with the law of other jurisdictions. See, e.g., Montana Co.
v. St. Louis Mining & Milling Co., 152 US 160, 167-69, 172,
14 S Ct 506, 38 L Ed 398 (1894) (describing Massachusetts
case concluding that entry for purpose of making surveys
“with a view of ascertaining the boundaries of a tract of
land devoted to public purposes,” and with “no compensa-
tion being provided for such apparent trespass,” was con-
stitutional); Bonaparte v. Camden & A.R. Co., 3 F Cas 821
(CCDNJ 1830) (“An entry on private property for the sole
purpose of making the necessary explorations for location,
is not taking it, the right remains in the owner as fully as
before; no permanent injury can be sustained, nothing is
Cite as 341 Or App 696 (2025) 711

taken from him, nothing is given to the company.”). Indeed,

“statutes authorizing entry to conduct surveys are as old as
the republic itself.” Summit Carbon Sols., LLC v. Kasischke,
14 NW3d 119, 128 (Iowa 2024), as amended (Jan 27, 2025)
(citing Bethany R. Berger, Property and the Right to Enter,
80 Wash & Lee L Rev 71, 101 n 187 (2023) (observing
Pennsylvania’s survey entry law was first enacted in 1782)).
In 1883, Thomas Cooley’s treatise on constitutional
law summarized the then prevailing understanding of prop-
erty rights with regard to precondemnation entries:
“No constitutional principle, however, is violated by a stat-
ute which allows private property to be entered upon and
temporarily occupied for the purpose of a survey and other
incipient proceedings, with a view to judging and deter-
mining whether or not the public needs require the appro-
priation, and, if they do, what the proper location shall be;
and the party acting under this statutory authority would
neither be bound to make compensation for the temporary
possession, nor be liable to action of trespass.”
Thomas M. Cooley, A Treatise on the Constitutional
Limitations Which Rest Upon the Legislative Power of the
States of the American Union 694 (5th ed. 1883); accord SCS
Carbon Transp. LLC v. Malloy , Tr. of Harry L. Malloy Tr.
No. 2 Dated May 25, 2008, 7 NW3d 268, 278 (ND 2024), as
amended (Jan 9, 2025) (relying on same treatise to describe
the “prevailing understanding of property rights at the time
of [North Dakota] statehood”); Summit Carbon Sols., 14
NW3d at 129 (relying on an earlier edition of this “famous
constitutional treatise” for this same “principle”).
As the Supreme Court of Iowa recently recognized,
“[t]hroughout the 1800s, courts across the country routinely
held that entry onto private property for the purpose of con-
ducting a survey was not a taking.” Summit Carbon Sols.,
14 NW3d at 128. And “[t]hroughout the twentieth century,
technological advances led to surveys for new purposes, such
as finding appropriate routes for electrical power lines.” Id.
at 129. Today, “all fifty states have statutes authorizing
entry to private property for the purpose of conducting pre-
liminary land surveys in exercising eminent domain.” Id.;
see Palmer v. Atlantic Coast Pipeline, LLC, 293 Va 573, 582,
712 Idaho Power Company v. Bean

582 n 2, 801 SE2d 414 (2017) (citing statutes from all 50

states, including ORS 35.220, “codify[ing] the common law
privilege of a body exercising eminent domain authority to
enter private property to conduct preliminary surveys with-
out trespass liability”).
Ultimately, like the Iowa Supreme Court, we “do
not read Cedar Point Nursery as upending centuries of sur-
vey-access laws in all fifty states,” nor has any other court of
which we are aware. Id.
The historical principle underlying the right to pre-
condemnation entry is that “ ‘[t]he right of eminent domain
is virtually useless to an entity without the right to survey,
and that right must be available before the beginning of
condemnation proceedings.’ ” Root v. Kamo Elec. Co-op., Inc.,
699 P2d 1083, 1090-91 (Okla 1985) (quoting State ex rel.
Rhodes v. Crouch, 621 SW2d 47, 48 (Mo 1981)). The pre-
condemnation right of entry enables “the prospective con-
demnor to determine whether the public needs require that
the property or a part thereof be taken, and, if so, what the
proper location of the project should be with respect to the
property, and thus to facilitate an intelligent, economical
condemnation proceeding.” Oglethorpe Power Corp. v. Goss,
253 Ga 644, 645, 322 SE2d 887, 889 (1984) (internal quota-
tion marks and brackets omitted).
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 interfer-
ence” with use or possession of property, or “physically dam-
ages” property a “taking” may have occurred. See Hawkins,
315 Or at 68 (1992) (“Most cases boil th[e] definition [of a tak-
ing] down to a test of whether there has been a ‘substantial’
interference with property rights.”); see also SCS Carbon
Transp. LLC, 7 NW3d at 278 (“Because survey access is a
longstanding background restriction, Landowners cannot
demonstrate that they have a constitutionally protected
Cite as 341 Or App 696 (2025) 713

interest in excluding limited, innocuous intrusion by pre-con-

demnation surveyors.” (Emphasis added.)); Kane County v.
Elmhurst Nat. Bank, 111 Ill App 3d 292, 298, 443 NE2d 1149,
1153 (1982) (“A taking may not be allowed under the guise
of a preliminary survey; the right of entry does not include
the right to make permanent appropriation or cause more
than minimal or incidental damage to property; and the
entering party is free of liability only to the extent that the
entry or occupation is temporary, or the infliction of damage
is incidental and incipient or preliminary.” (Internal quota-
tion marks omitted.)). But in such circumstance, a property
owner is entitled to compensation under ORS 35.220(3). Id.
(property owner may recover either before or after precon-
demnation entry for “[a]ny physical damage caused to the
property by the entry upon or examination, survey, testing
or sampling of the property,” or “[a]ny substantial interfer-
ence with the property’s possession or use caused by the
entry upon or examination, survey, testing or sampling of
the property” (emphases added)); see also ORS 35.220(5)
(providing that nothing in ORS 35.220 “affects any liability
under any other provision of law that a condemner may have
to an owner or occupant of property by reason of entry upon
or examination, survey, testing or sampling of property”
(emphases added)).
C. The Trial Court Erred in Concluding that ORS 35.220
is Unconstitutional
We turn back to the issues in this case: Whether
the trial court erred in concluding that the temporary pre-
condemnation entries that Idaho Power sought were per se
physical “takings” under Article I, section 18, and the Fifth
Amendment, for which 516 Ranch was due “just compen-
sation,” because they were not consistent with 516 Ranch’s
“right to exclude,” and were not consistent with “longstanding
background restrictions on property rights” or “traditional
common law privileges to access private property.” And, as
a consequence, whether the trial court erred in concluding
that ORS 35.220 was unconstitutional because it allowed “a
condemner to enter onto one’s property to conduct examina-
tions, surveys, tests, and samples of the property without
the consent of the owner and without just compensation.”
714 Idaho Power Company v. Bean

We conclude that the trial court erred. The trial

court reached the conclusion that it did regarding the con-
stitutionality of ORS 35.220, although it also determined
that 516 Ranch had not proven that the precondemnation
entries at issue in this case would “physically damage” 516
Ranch’s property, “substantially interfere” with 516 Ranch’s
use or possession of its property, and that the entries did not
involve “a permanent physical occupation” of 516 Ranch’s
property. Because we understand such temporary precon-
demnation entries to be privileged at common law, ORS
35.220, which allows such entries without compensation,
passes constitutional muster as applied in this case.
In concluding that the trial court erred, we recog-
nize that the type of precondemnation entries at issue in
this case—which 516 Ranch characterizes as “studies of
birds, plants, animals, noxious weeds, wetlands, cultural
resources and geotechnical drilling over as many as thir-
ty-two visits”—function to evaluate different subject mat-
ter than that that might have been evaluated by condemnor
precondemnation at common law. Nevertheless, the histori-
cal principle underlying the right to precondemnation entry
remains just as salient. Then, as now, the precondemnation
right of entry enables “the prospective condemnor to deter-
mine whether the public needs require that the property or
a part thereof be taken, and, if so, what the proper loca-
tion of the project should be with respect to the property,”
facilitating an “intelligent, economical condemnation pro-
ceeding.” Oglethorpe Power Corp., 253 Ga at 645. That is,
modern circumstances may require evaluation of different
subject matter, but the historical principles underpinning
the right to precondemnation entry are no less applicable.
Coast Range Conifers v. Board of Forestry, 339 Or 136, 142,
117 P3d 990 (2005) (“Our goal in [understanding the mean-
ing of Article I, section 18], is to identify the historical prin-
ciples embodied in the constitutional text and to apply those
principles faithfully to modern circumstances.”).
We emphasize that our analysis of whether the entries
at issue in this case constitute “takings” for which compen-
sation is required is limited by the trial court’s determina-
tions that Idaho Power does not seek “a permanent physical
Cite as 341 Or App 696 (2025) 715

occupation” of 516 Ranch’s property, and that 516 Ranch had

not proven “substantial interference” with the property’s
use or possession or how the property would be “physically
damaged” by the entries. As a result, this appeal presents no
opportunity to consider, for example, whether the precondem-
nation activities proposed by Idaho Power might constitute a
taking for which compensation is required for those reasons.
See Kane County, 111 Ill App 3d at 299 (order “authorizing soil
borings and a geologic study without the landowners’ consent
or a prior condemnation proceeding would be invalid even if
statutorily authorized” because “[s]uch drilling and excava-
tion, even where subsequent backfilling has been required,
has been properly recognized as a substantial interference
with the landowners’ property rights rather than a mini-
mally intrusive preliminary survey causing only incidental
damage”); see also Strom, 11 NW3d at 93 (“[I]nvasive geotech
and deep-dig surveys” were takings, insofar as the “deep-dig”
surveys will involve “the use of heavy equipment and sub-
stantial disturbance of the Landowners’ property” and with
regard to “geotech surveys, the resulting holes will be filled
with ‘drill cuttings or with a cement/bentonite grout mixture’
resulting in a permanent physical occupation of a portion of
Landowners’ property, which undeniably constitutes a tak-
ing.”).12 We express no opinion on that issue.
Finally, in concluding that ORS 35.220 passes con-
stitutional muster as applied in this case, we highlight that
the trial court can set “reasonable terms and conditions for
entry and for any examination, survey, testing or sampling
of the property.” ORS 35.220(2). Those terms and conditions
can operate to ensure the precondemnation entries Idaho
Power engages in are conducted in a reasonable manner, to
minimize interference with 516 Ranch’s property rights and
mitigate the risk of damage associated with Idaho Power’s
precondemnation entries.13

12
Indeed, on appeal, 516 Ranch highlights testimony that the damage caused
by the entries is “hard to figure, but it’s not nothing.” If such damage is proven,
516 Ranch is entitled to compensation under ORS 35.220.
13
By way of example concerning the types of “reasonable terms and condi-
tions” a court can order under ORS 35.220(2), we note that, regarding entry for
the “land surveys” and “appraisal field visit,” the trial court ordered, among other
terms and conditions, that:
716 Idaho Power Company v. Bean

Ultimately, we conclude that the trial erred in con-

cluding 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 com-
pensation.” 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 undoubt-
edly 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.
Reversed and remanded.

“Petitioner shall provide at least 48 hours’ notice prior to entry via phone call
and text message and such notice should provide the full name of the contact
person, approximately how many people will be entering 516 Ranch’s prop-
erty, for what purpose, and a description of what vehicles will be entering 516
Ranch’s property;
“Petitioner shall leave gates in the condition in which they are found and
Petitioner shall not share any gate lock combinations with third parties
beyond its own agents;
“Petitioner shall engage in noxious weed mitigation measures; [and]
“Petitioner’s entry shall be limited to the project site boundary for the Morgan
Lake Alternate route and access roads for that route.”