RENDERED: APRIL 19, 2024; 10:00 A.M.

TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2023-CA-0458-MR

ISAAC W. BERNHEIM 

FOUNDATION APPELLANT 

v. 

APPEAL FROM BULLITT CIRCUIT COURT

HONORABLE RODNEY DARREL BURRESS, JUDGE

ACTION NO. 19-CI-00762

LOUISVILLE GAS AND ELECTRIC 

COMPANY; EAST KENTUCKY 

POWER COOPERATIVE, INC.; AND 

KENTUCKY HERITAGE LAND 

CONSERVATION FUND BOARD APPELLEES 

OPINION

AFFIRMING

**   **  **

BEFORE: THOMPSON, CHIEF JUDGE; COMBS AND MCNEILL, JUDGES.

MCNEILL, JUDGE: Isaac W. Bernheim Foundation (“Bernheim”) appeals from 

an interlocutory judgment finding Louisville Gas and Electric Company (“LG&E”) 

has the right to condemn Bernheim’s property for a natural gas pipeline. Finding 

no error, we affirm. 
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LG&E is a public utility that provides natural gas service in Bullitt 

County, Kentucky. To increase supply and facilitate expansion, LG&E is 

constructing an underground natural gas pipeline. Part of the pipeline runs through 

property owned by Bernheim, 494 acres of land known as the Cedar Grove 

Wildlife Corridor (“Simon Tracts”). LG&E attempted to purchase an easement 

from Bernheim but when negotiations were unsuccessful, initiated a condemnation 

proceeding under the Eminent Domain Act of Kentucky (KRS1 278.502).

Bernheim owns a nature preserve in Bullitt and Nelson Counties. In 

2018, Bernheim purchased the Simon Tracts with grant money from the Kentucky 

Heritage Land Conservation Fund (“Fund”).

2

 As a condition of the grant, 

Bernheim was required to convey to the Commonwealth “a conservation easement 

in perpetuity over all land acquired, in whole or in part, with fund proceeds.” 418 

KAR3 1:050 § 6(1). Another stipulation was that the land must be maintained for 

the conservation purpose for which it was acquired. 418 KAR 1:050 § 6(1)(b); 

KRS 146.560(2).

1 Kentucky Revised Statutes. 

2 The grant from the Kentucky Heritage Land Conservation Fund provided half the purchase 

price and a grant from the Imperiled Bat Conservation Fund, administered by the United States 

Fish and Wildlife Service, supplied the balance. 

3 Kentucky Administrative Regulations. 
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In the condemnation action, Bernheim challenged LG&E’s right to 

take, arguing it lacked authority to condemn property that is statutorily dedicated to 

public conservation use and encumbered by a government-held conservation 

easement.4 Following an evidentiary hearing, the circuit court found in LG&E’s 

favor, granting it an interlocutory judgment pursuant to KRS 416.610. This appeal 

followed. 

“Since this case was tried before the circuit court without a jury, we 

review the trial court’s factual findings under a clearly erroneous standard and the 

legal issues de novo.” God’s Center Foundation, Inc. v. Lexington Fayette Urban 

Cnty. Government, 125 S.W.3d 295, 300 (Ky. App. 2002). On appeal, Bernheim 

does not raise the standard challenges to a condemnor’s right to take, such as 

necessity, public use, and reasonable compensation, but instead makes several 

arguments concerning LG&E’s right to take based upon the existence of the 

Commonwealth’s conservation easement. Specifically, Bernheim argues: (1)

LG&E cannot condemn property that has been put to a prior public use; (2)

LG&E’s power to condemn is limited to private property; (3) the previous Court of 

Appeals’ decision did not determine the issues on appeal; and (4) KRS 382.850(2) 

4 Bernheim made other challenges to LG&E’s right to take below, but does not raise them on 

appeal; therefore, we do not recite them here. 
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does not make a government conservation easement pursuant to KRS Chapter 146 

a legal fiction. 

As alluded to above, this is the second time this case has been on 

appeal. In Kentucky Heritage Land Conservation Fund Board v. Louisville Gas 

and Electric Company, 648 S.W.3d 76, 78 (Ky. App. 2022), discretionary review 

denied (Aug. 10, 2022), a panel of this Court held that sovereign immunity did not 

preclude LG&E from condemning property subject to a state-owned easement. In 

that appeal, the Kentucky Heritage Land Conservation Fund Board (“Board”) was 

the appellant, and Bernheim filed a brief in support of the Board’s position. The 

Board made essentially the same arguments Bernheim now makes, and our Court 

considered and rejected them. We believe Kentucky Heritage is dispositive of the 

issues in this appeal; nevertheless, to be thorough, we address Bernheim’s 

arguments individually. 

Bernheim first argues condemnation is prohibited by the prior public 

use doctrine. It cites the general rule that “land devoted to one public use cannot 

be taken for another public use in the absence of express legislative authority for 

the taking.” Jefferson Cnty. By and Through Hollenbach v. South Central Bell Tel. 

Co., 555 S.W.2d 629, 632 (Ky. App. 1977). Bernheim claims the Simon Tracts are

already devoted to public use because they were purchased with public funds and 

must be maintained for public conservation purposes. Thus, LG&E cannot 
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condemn the property for another public use because it lacks express legislative 

authority. Bernheim acknowledges we previously “rejected the argument . . . that 

LG&E lacked the power of condemnation under the ‘prior public use’ doctrine[.]” 

In the prior appeal, we held that “the plain language of KRS 382.850(2) authorizes 

a statutory right of eminent domain to prevail over a conservation easement 

because a conservation easement is assumed not to exist upon the exercise of a 

statutory right of eminent domain. If it is assumed that the Board’s conservation 

easement does not exist, then there is no prior public use to impede the exercise of 

LG&E’s right of eminent domain.” Kentucky Heritage, 648 S.W.3d at 89.

Nevertheless, it claims we “misapprehended th[e] significant 

distinction” that the prior public use arises not from KRS 382.850(2), but from 

KRS 146.560 and 146.570. Bernheim seeks to avoid our prior holding by 

sidestepping KRS 382.850(2). Its argument goes like this: KRS Chapter 146 

requires property acquired with Fund monies to be maintained in perpetuity for 

public conservation purposes – a public use. However, the statute does not 

reference KRS Chapter 382 or require that this be done through a conservation 

easement. Because KRS Chapter 146 was enacted after KRS Chapter 382, this 

omission must be intentional. The public use arising under KRS Chapter 146 is 

different than the one arising under a conservation easement. Thus, KRS Chapter 

382 is simply not relevant. Since KRS Chapter 146 does not explicitly allow
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condemnation of land or property interests acquired under its provisions, LG&E 

lacks express legislative authority for the taking. 

Though creative, we find its argument unconvincing. The simple fact

is the conservation easement exists; thus KRS 382.850(2), which governs 

conservation easements, applies. The General Assembly mandated the Board 

administer the Fund and gave them authority to promulgate regulations to 

accomplish its purpose.5 Pursuant to 418 KAR 1:050 § 6(1), Bernheim conveyed 

to the Commonwealth a conservation easement when it purchased the Simon 

Tracts with Fund proceeds. The regulation explicitly states “[t]he conservation 

easement shall meet the requirements of KRS 382.800 through 382.860 and ensure 

that lands acquired shall be maintained in perpetuity for the purposes established 

in KRS 146.560.” 418 KAR 1:050 § 6(1)(b).

As much as Bernheim would like to distance KRS Chapter 146 from 

KRS Chapter 382, the regulation explicitly links the two. The land LG&E seeks to 

condemn is burdened by a conservation easement and KRS 382.850(2) is 

applicable. “Under KRS 382.850(2), a conservation easement ‘shall not operate to 

impair or restrict any right or power of eminent domain created by statute, and all 

such rights and powers shall be exercisable as if the conservation easement did not 

5 Technically, KRS 146.560 states the Energy and Environmental Cabinet “may promulgate 

upon recommendation of the board in accordance with the provisions of KRS Chapter 13A 

administrative regulations as are deemed necessary . . . .” KRS 146.560(2) (emphasis added). 
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exist.’” Kentucky Heritage, 648 S.W.3d at 85-86. “If it is assumed that the 

Board’s conservation easement does not exist, then there is no prior public use to 

impede the exercise of LG&E’s right of eminent domain.” Id. at 89.

Bernheim next asserts LG&E’s power to condemn is limited to private 

property. It notes LG&E’s authority to condemn comes from KRS 278.502 and 

KRS 416.540-416.680, the Eminent Domain Act of Kentucky. The Act 

specifically defines “condemn” as to “to take private property for a public use 

under the right of eminent domain[.]” KRS 416.540(1) (emphasis added). 

Bernheim further argues KRS 382.850(2) does not enlarge the power of eminent 

domain. Therefore, because the Act limits condemnation to private property and 

KRS 382.850(2) does not expand that power, Bernheim claims LG&E lacks 

statutory authority to condemn a publicly held conservation easement. 

We considered and rejected this argument in Kentucky Heritage. 

There, we held 

[w]hile LG&E may not have the general power to 

condemn public property under KRS 278.502 and KRS 

416.540(1), KRS 382.850(2) expresses the Legislature’s 

intention that a conservation easement cannot be used to 

impede the exercise of any statutory power of eminent 

domain that the Legislature has otherwise conferred by 

statute. If the existence of the conservation easement is 

disregarded, as KRS 382.850(2) instructs, then LG&E 

would undoubtedly have the power to condemn the 

property at issue.
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Kentucky Heritage, 648 S.W.3d at 88. If the conservation easement is disregarded, 

the Simon Tracts are simply private property – any public property interest 

disappears. 

Bernheim next maintains Kentucky Heritage did not determine the 

issues in this appeal. It rightly notes Kentucky Heritage was limited to whether 

sovereign immunity precludes “commencement of condemnation proceedings 

against the holder of a conservation easement.” Kentucky Heritage, 648 S.W.3d at

78-79. But it then reads too much into that language. Focusing on the word 

“commencement[,]” it contends KRS 382.850(2) allows “commencement of an 

action for condemnation as against [a] government-held easement but is 

insufficient to allow [the] taking of that interest absent some statutory 

authorization.” 

Although we did not reach the issue of LG&E’s right to take in 

Kentucky Heritage, we interpreted KRS 382.850(2) as subjecting “a conservation 

easement held by a governmental entity . . . [to] eminent domain.” Id. at 86. KRS 

382.850(2) provides “[a] conservation easement . . . shall not operate to impair or 

restrict any right or power of eminent domain . . . and all such rights and powers 

shall be exercisable as if the conservation easement did not exist.” The statute 

authorizes the exercise of “all . . . rights and powers [of eminent domain].” Id. It 

does not limit exercise to just the commencement of condemnation proceedings. 
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In sum, while Kentucky Heritage did not specifically address the relevant issue in 

this appeal – whether LG&E has the right to take Bernheim’s property – its 

interpretation of KRS 382.850(2) foreclosed Bernheim’s argument that a 

government-held easement cannot be condemned.

Relatedly, Bernheim contends Kentucky Heritage is not the law of the

case concerning LG&E’s right to condemn the conservation easement. “The law 

of the case doctrine means issues decided in earlier appeals should not be revisited 

in subsequent ones.” Armstrong v. Estate of Elmore, 647 S.W.3d 214, 217 (Ky. 

2022) (internal quotation marks and citation omitted). It “designates the principle 

that if an appellate court has passed on a legal question . . . the legal questions thus 

determined by the appellate court will not be differently determined on a 

subsequent appeal in the same case.” Inman v. Inman, 648 S.W.2d 847, 849 (Ky.

1982).

Again, while we agree Kentucky Heritage did not determine LG&E’s 

right to take Bernheim’s property, its statutory interpretation of KRS 382.850(2) 

settled the legal arguments Bernheim advances on appeal. Thus, while our 

previous opinion is not the law of the case as to LG&E’s right to take, its analysis

of KRS 382.850(2) is. We note that even if Kentucky Heritage’s statutory 

interpretation were not the law of the case, we would be persuaded by its reasoning 

and analysis. Regardless, as it pertains to Bernheim’s arguments on appeal, we 
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hold that KRS 382.850(2) removes any “issue of the Commonwealth’s ownership 

interest in the conservation easement . . . as an obstacle to the pursuit of 

condemnation proceedings by a party with a statutory right of eminent domain.” 

Kentucky Heritage, 648 S.W.3d at 86.

Finally, Bernheim argues KRS 382.850(2) does not make a 

government conservation easement under KRS Chapter 146 a legal fiction. Again, 

Bernheim disagrees with this Court’s interpretation of KRS 382.850(2) in 

Kentucky Heritage that “[b]y employing the legal fiction that a conservation 

easement does not exist upon the exercise of a statutory power of eminent domain, 

the General Assembly expressed its intention that a conservation easement held by 

a governmental entity is subject to the exercise of any statutory power of eminent 

domain.” Kentucky Heritage, 648 S.W.3d at 86. Because the sole issue on appeal 

was sovereign immunity, it argues this Court “did not delve into the thorny 

constitutional questions raised by a suggestion that the General Assembly could, 

by legislative fiat, actually extinguish a conservation easement held by the 

Commonwealth of Kentucky.” Bernheim suggests that KRS 382.850(2) should 

instead be read as a savings clause, doing “nothing more than ordering the 

relationship of eminent domain powers to the existence of such an easement.”

The Board made a similar argument in Kentucky Heritage, claiming 

“KRS 382.850(2) merely preserves the right of eminent domain and subjects 
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conservation easements to the right of eminent domain[.]” 648 S.W.3d at 86. But 

as we noted there, such an interpretation “does not give full effect to the provision 

in KRS 382.850(2) that any statutory right of eminent domain ‘shall be exercisable 

as if the conservation easement did not exist.’” Id. “[A] statute should be 

construed, if possible, so that no part of its provisions are rendered meaningless.” 

Bob Hook Chevrolet Isuzu, Inc. v. Commonwealth Transp. Cabinet, 983 S.W.2d 

488, 492 (Ky. 1998) (citation omitted). 

We believe our analysis in that appeal is conclusive:

In KRS 382.850(2), the use of the phrase, “all such rights 

and powers shall be exercisable as if the conservation 

easement did not exist[,]” appears to be a unique 

modification of the Uniform Conservation Easement Act 

(UCEA). The text of the UCEA does not address the 

issue of whether a conservation easement can be 

condemned through eminent domain. However, the 

preface to the 2007 version provides that “the Act neither 

limits nor enlarges the power of eminent domain[,]” 

instead leaving “the scope of that power” to “the 

adopting state’s eminent domain code and related 

statutes.” See Nat’l Conf. of Comm’rs on Unif. State L., 

Prefatory Note at 4 to Uniform Conservation Easement 

Act (1981) (amended 2007). Unlike other jurisdictions, 

the Kentucky General Assembly did not adopt any 

language from the preface to the UCEA concerning the 

enlargement of eminent domain. . . .

This Court cannot endorse an interpretation that 

simply ignores a portion of the statutory text. . . . [T]he 

General Assembly specifically added these words to the 

statute contrary to the language set out in the preface and 

text of the Uniform Conservation Easement Act and 

comparable statutes enacted by other jurisdictions. The 
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Legislature is presumed to be aware of existing laws 

when enacting a new statute. Pearce v. University of 

Louisville, by and through its Bd. of Trustees, 448 

S.W.3d 746, 760 (Ky. 2014).

Kentucky Heritage, 648 S.W.3d at 86-87. 

Finally, Bernheim submits that if we hold LG&E does not have the 

right to take the conservation easement, we should hold “[LG&E] has no good 

faith basis to take the underlying property encumbered by the conservation 

easement, as the conservation easement specifically prevents the development of 

gas pipelines on the subject property.” Because we hold the circuit court did not 

commit any error in granting the interlocutory judgment, we need not address this 

argument. 

Based upon the foregoing, Bullitt Circuit Court’s interlocutory 

judgment is affirmed. 

ALL CONCUR. 
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BRIEFS FOR APPELLANT:

Randal A. Strobo

David A. Spenard

Julia D. Taylor

Louisville, Kentucky

Tom FitzGerald

Ashley Wilmes

Frankfort, Kentucky

BRIEF FOR APPELLEE

LOUISVILLE GAS AND ELECTRIC 

COMPANY:

Monica H. Braun

Steven B. Loy

Mary Ellen Wimberly

Lexington, Kentucky