IN THE SUPREME COURT OF IOWA

No. 14–0774

Filed April 10, 2015

CLARKE COUNTY RESERVOIR COMMISSION,

Appellee,

vs.

LINDA SUE ABBOTT, et al.,

Defendants,

EDWIN D. & DELORIS A. ROBINS REVOCABLE TRUST (SHEILA A. 

HARNED, LANNY ROBINS, DOUGLAS E. ROBINS) AND KYLE ROBINS,

Appellants.

Appeal from the Iowa District Court for Clarke County, 

Sherman W. Phipps, Judge. 

Landowners appeal district court’s declaratory judgment under 

Iowa Code section 6A.24(2). REVERSED AND REMANDED. 

David L. Brown of Hansen, McClintock & Riley, Des Moines, for 

appellants. 

Ivan T. Webber of Ahlers & Cooney, P.C., Des Moines, for appellee. 
2

WATERMAN, Justice.

This appeal presents two interrelated questions of first impression. 

The first question is whether a joint public-private commission organized 

under Iowa Code chapter 28E (2013) may exercise eminent domain 

powers. The second question is whether a declaratory judgment of 

public use under Iowa Code section 6A.24(2) obtained by such an entity 

may be affirmed on mootness grounds after the private members 

withdrew from the commission during the appeal. In this case, the 

Clarke County Reservoir Commission (the Commission) filed a 

declaratory judgment action seeking a ruling that its proposed project to 

build a public reservoir for drinking water was a public use that would 

allow the Commission to condemn private land. Landowners whose 

property was to be condemned for the project challenged the

Commission’s authority to proceed because the Commission included 

private members that lacked eminent domain authority. The district 

court rejected the landowners’ challenge and entered judgment declaring 

the project is for a public use. The landowners appealed. The 

Commission argues the appeal was rendered moot when the private 

members withdrew. 

The sovereign power to take private property from citizens without 

their consent is limited by our State and Federal Constitutions and 

legislative enactments. Property owners are entitled to strict compliance 

with legal requirements when a government entity wields the power of 

eminent domain. These legal requirements help protect against abuse of 

the eminent domain power. We strictly construe statutes delegating the 

power of eminent domain and note the absence of a clear legislative 

authorization for a joint public-private entity to condemn private 

property. 
3

For the reasons elaborated below, we hold a 28E commission with 

members lacking the power of eminent domain cannot itself exercise the 

power of eminent domain or serve as an acquiring agency seeking a 

declaratory judgment under section 6A.24(2). We determine the 

postjudgment withdrawal of the private members did not render this 

appeal moot because the district court erred by entering judgment in 

favor of an improper acquiring agency. We therefore reverse the district 

court’s declaratory judgment that the Commission, as then constituted, 

was a proper acquiring agency and remand the case for further 

proceedings. 

I. Background Facts and Proceedings. 

On March 7, 2003, six agencies located in Clarke County filed a 

28E agreement1 with the Iowa Secretary of State, creating the Clarke 

County Reservoir Commission. The initial members of the Commission 

were the Osceola Waterworks Board of Trustees; the Southern Iowa 

Rural Water Association; Clarke County; and the cities of Osceola, 

Murray, and Woodburn. Section II(a) of the 28E agreement describes the

purpose of the Commission: 

To make decisions in the locating, planning, and design of a 

new reservoir and regional recreation facility in Clarke 

County, Iowa. Multiple sites . . . will be investigated and 

pursued for feasibility and funding as multi-purpose 

reservoirs for flood control, erosion control, recreation and 

water supply purposes as agreed by the Commission. 

1A 28E agreement, also called a Joint Exercise of Governmental Powers 

pursuant to Iowa Code chapter 28E, allows “state and local governments in Iowa to 

make efficient use of their powers by enabling them to provide joint services and 

facilities with other agencies and to cooperate in other ways of mutual advantage.” Iowa 

Code § 28E.1. 

 
4

The agreement also gave the Commission the power and responsibility to 

acquire funds for the new reservoir, pay any necessary expenses, and 

manage the new reservoir after its creation. 

The Commission requested a report from H.R. Green, a 

professional engineering and technical consulting company, to determine

the future water needs for the Clarke County area from 2008 to 2058. 

Mark Duben, a professional engineer, certified the results of that report 

to the Commission on March 6, 2008. The study showed that the area 

would require three million gallons per day (mgd) by 2037 and 4.4 mgd 

by 2058. At the time, the Iowa Department of Natural Resources rated 

the area’s current water source, West Lake, for a capacity of 1.37 mgd. 

The study evaluated the feasibility of four alternative construction 

projects to meet the projected water shortfall: (1) a new reservoir, (2) a 

pipeline to buy water from the Des Moines Waterworks, (3) a pipeline to 

buy water from the Rathbun Regional Water Association, and (4) a 

groundwater well field. 

In August, the Commission amended its 28E agreement to add 

three additional organizations to its membership: the Clarke County 

Conservation Board, the Clarke County Soil and Water Conservation 

District, and the Clarke County Development Corporation. The Clarke 

County Development Corporation is a section 501(c)(6) corporation, a 

private entity that lacks the power of eminent domain. The amendment

also modified the language of section V(e), giving the Commission the 

power

to acquire by purchase, gift, lease, use of eminent domain 

powers or otherwise real property and easements to be held 

in the name of the Commission, to hold and use for the 

purposes of the Commission and to dispose of property in 

the same manner as a city when no longer needed for the 

Commission. The Commission may acquire real property in 
5

its own name or the Commission may request a Sponsor 

having the power of eminent domain to bring an eminent 

domain action to acquire real property on behalf of or for the 

use of the Commission, which the Sponsor shall do, 

provided, however, the Commission shall fully reimburse the 

Sponsor for all costs of acquisition including not only 

damages paid to the property owner but also all other 

administrative and related costs incurred by the Sponsor to 

complete acquisition through use of eminent domain.

The amendment further created section XI(a) of the agreement, which 

states:

The Commission shall acquire all necessary real, personal, 

and intangible property necessary for the public purposes 

set forth in this Intergovernmental Agreement, which shall 

be held in the name of the Clarke County Reservoir 

Commission. Such property may be acquired by sale, 

exchange, or by the exercise of the power of eminent domain 

as provided above.

H.R. Green updated its study in 2010 and again in 2014 to 

address regulatory changes that downgraded West Lake’s rated capacity 

to .9 mgd and adjust for expected development that had not occurred. 

The updated studies concluded that Clarke County’s water needs would 

remain approximately 3 mgd by 2037. The 2014 study called for

development of new sources of water with a capacity of 2.2 mgd to meet 

needs and comply with state and federal regulations. After considering

the feasibility of all the alternatives H.R. Green presented, the 

Commission decided to move ahead with plans to build a new reservoir. 

The Commission held a public hearing regarding its intent to go 

forward with the reservoir by condemning land needed for the project. 

On December 6, 2012, the Commission adopted a “Resolution 

Authorizing Public Improvement Which May Require Acquisition of 

Agricultural Land,” Resolution No. 2012-3. On March 5, 2013, the 

Commission filed a declaratory judgment action in the district court for 

Clarke County, seeking a declaration of public use, public purpose, or 
6

public improvement under Iowa Code section 6A.24(2). The Commission 

served notice on the owners of fifty-four tracts of land required to 

complete the project. 

On March 27, defendant, Edwin D. & Deloris A. Robins Revocable 

Trust (Robins Trust), owner of one of the parcels of land to be 

condemned, filed an answer to the petition.2 The Robins Trust filed an 

amended and substituted answer on May 22. The amended answer 

alleged eleven affirmative defenses, including that the “[p]laintiff does not 

have the legal authority to initiate this condemnation proceeding under 

Iowa Code Section 6A.4.” The amended answer also alleged the 

“[p]laintiff’s real or intended purpose of the proposed lake is primarily for 

recreational use. The plaintiff’s allegation of the proposed lake’s purpose 

as a drinking water source is a false artifice.” On January 10, 2014, the 

Robins Trust filed a motion for summary judgment on grounds that the 

Commission lacks the power of eminent domain because one of its 

members, the Clarke County Development Corporation, is a private 

entity lacking that power. The Commission filed a resistance, responding

that the 28E agreement contemplated that the Commission would 

exercise eminent domain power directly. On March 3, 2014, the district 

court denied the motion for summary judgment and ruled that although 

the Clarke County Development Corporation lacked the power of eminent 

domain, the 28E agreement granted the Commission itself the power of 

eminent domain. 

The case proceeded to a two-day bench trial commencing March 10

on the issue of whether the reservoir was a public use. The Commission 

2Nineteen landowners filed answers to the initial petition. Only the Robins Trust 

and Kyle Robins are parties to this appeal. We refer to the appellants collectively as the 

Robins Trust. 

 
7

called four witnesses. Duben testified about the report he prepared with 

H.R. Green verifying the water needs of the Clarke County area. He 

testified that the site was selected to provide the greatest capacity while 

keeping adequate distance from a confined animal feeding operation and 

a prairie remnant located in the watershed. He also testified that the 

Commission modified the Clarke County Water Supply Plan on 

September 12, 2013, to remove all plans for recreational activities. 

Without recreation areas, the 2013 water supply plan cost six million 

dollars less than the 2011 plan and required less land to complete. A

financing expert, Scott Stevenson, testified that funding the project was 

feasible. Dan Lovett, an environmental engineer, testified that the 

Commission considered and rejected alternatives to the reservoir because 

of their greater environmental impact and expense. Finally, David Beck, 

project manager for the Commission, testified regarding the 

Commission’s attempts to notify all landowners and plans to pay for the 

reservoir. The landowners called no witnesses. On April 8, the district 

court ruled for the Commission, concluding the project qualified as a 

public use within the meaning of Iowa Code section 6A.22(2). 

The Robins Trust filed its notice of appeal on May 6 and its 

appellate proof brief on July 24. The sole issue raised on appeal was 

that the district court erred by ruling the Commission with private 

members had eminent domain powers. On August 22, the Commission 

filed a motion to supplement the record and dismiss the appeal as moot.

Attached to the motion is the “Amended and Restated Intergovernmental 

Agreement” filed with the Secretary of State on August 18 showing that

the Clarke County Conservation Board, the Clarke County Development 

Corporation, and the Clarke County Soil and Water Conservation District 
8

had withdrawn as members of the Commission.3 Based on this 

reorganization, all current members of the Commission are public 

entities with the power of eminent domain. The Robins Trust resisted 

the motion to dismiss on legal grounds, but did not dispute the fact that 

the Commission no longer included any private members. We retained 

the appeal and ordered the motion to dismiss submitted with the appeal. 

II. Standard of Review. 

The parties agree that our standard of review is for correction of 

errors at law. Iowa R. App. P. 6.907. “We review the district court’s 

interpretation of a statute for correction of errors at law.” Star Equip., 

Ltd. v. State, 843 N.W.2d 446, 451 (Iowa 2014). We review constitutional 

questions de novo. Id. Our review of an appeal from a declaratory 

judgment action is determined by how the case was tried in district 

court. City of Riverdale v. Diercks, 806 N.W.2d 643, 651 (Iowa 2011). 

The Commission filed this declaratory judgment as an action at law. The 

district court ruled on a motion for summary judgment filed by the 

Robins Trust and ruled on objections during the bench trial—indications

the proceeding was treated as a law action in district court. Accordingly, 

our review of the declaratory judgment is for correction of errors at law. 

See id.

III. Analysis. 

We are asked to decide whether the district court’s declaratory 

judgment on public use must be reversed because the Commission was 

not a proper party under Iowa Code section 6A.24. The Robins Trust 

3Normally on appeal we cannot consider matters outside the trial court record. 

There is an exception to this general rule for mootness issues. “Matters that are 

technically outside the record may be submitted in order to establish or counter a claim 

of mootness.” In re L.H., 480 N.W.2d 43, 45 (Iowa 1992)). 

 
9

argues that allowing a private entity to exercise the public power of 

eminent domain jointly with public entities violates chapter 28E of the 

Iowa Code, the Federal and State Constitutions, and our caselaw and 

that the remedy is to vacate the declaratory judgment. The Commission 

argues that the issue is moot because all members of the Commission 

lacking the power of eminent domain withdrew from the Commission 

during the pendency of this appeal. Alternatively, the Commission 

argues it could exercise the power of eminent domain even if its 

membership at that time included private entities lacking that power. To 

place these issues in context, we begin with an overview of the power of 

eminent domain. Next, we address whether the Commission’s 

postjudgment reorganization rendered the issue moot. Because we 

conclude the issue is not moot, we then turn to the question of whether a 

28E entity with both public and private members can validly exercise the 

power of eminent domain. We answer that question “no.”

A. Eminent Domain. The power to take private property for 

public use “is an attribute of sovereignty which may be delegated only by 

express authorization of the legislature.” Hardy v. Grant Twp. Trs., 357 

N.W.2d 623, 625 (Iowa 1984). “Statutes that delegate the power of 

eminent domain ‘should be strictly construed and restricted to their 

expression and intention.’ ” Hawkeye Land Co. v. Iowa Utils. Bd., 847 

N.W.2d 199, 208 (Iowa 2014) (quoting Hardy, 357 N.W.2d at 626). 

The Iowa Constitution limits the power of eminent domain by 

providing, “Private property shall not be taken for public use without just 

compensation first being made . . . .” Iowa Const. art. I, § 18. Similarly, 

the Fifth Amendment to the Federal Constitution provides, “private 

property [shall not] be taken for public use without just compensation.” 

U.S. Const. amend. V. The twin threshold requirements of public use 
10

and just compensation are “ ‘designed to bar Government from forcing 

some people alone to bear public burdens which, in all fairness and 

justice, should be borne by the public as a whole . . . .’ ” Perkins v. Bd. of 

Supervisors, 636 N.W.2d 58, 69–70 (Iowa 2001) (quoting Armstrong v.

United States, 364 U.S. 40, 49, 80 S. Ct. 1563, 1569, 4 L. Ed. 2d 1554, 

1561 (1960)). Justice O’Connor underscored the constitutional necessity 

that any taking be for a “public use” with “just compensation”: 

These two limitations serve to protect the security of 

Property, which Alexander Hamilton described to the 

Philadelphia Convention as one of the great obj[ects] of 

Gov[ernment]. Together they ensure stable property 

ownership by providing safeguards against excessive, 

unpredictable, or unfair use of the government’s eminent 

domain power—particularly against those owners who, for 

whatever reasons, may be unable to protect themselves in 

the political process against the majority’s will. 

Kelo v. City of New London, 545 U.S. 469, 496, 125 S. Ct. 2655, 2672, 

162 L. Ed. 2d 439, 462 (2005) (O’Connor, J., dissenting) (citation and 

internal quotation marks omitted). The public-use requirement is to 

prevent abuse of the power for the benefit of private parties. See id. at

504–05, 125 S. Ct. at 2676–77, 162 L. Ed. 2d at 467. 

Accordingly, we have long recognized the importance of strict

compliance with statutory requirements for the exercise of eminent 

domain:

Thus, where the right of eminent domain is invoked, the 

provisions of the law granting the right must be complied 

with. In some instances the statute or franchise authorizing 

the construction of the work prescribes a special procedure 

to facilitate acquiring property by condemnation; where such 

is not the case, condemnors are bound, of course, to proceed 

according to the provisions of the general laws. In any case, 

the extent to which the power of eminent domain may be 

exercised is limited to the express terms or clear implication 

of the statute in which the grant is contained. Where, 

therefore, the state, a municipality, or other agent in charge 

of a public use, seeks to acquire, against the consent of the 

owner, private property for public use, the provisions of the 
11

authorizing law must be strictly complied with, and this 

must appear on the face of the proceedings for taking the 

land. In other words, the statutory procedure must be 

followed. 

Bourjaily v. Johnson County, 167 N.W.2d 630, 633–34 (Iowa 1969) 

(internal quotation marks omitted). See also Hawkeye Land Co., 847 

N.W.2d at 218–19 (narrowly construing definition of “public utility” 

entitled to use eminent domain provision of railroad-crossing statute); In 

re Condemnation of Land for Valley View Park Aquatic/Roadway, 687 

N.W.2d 103, 105 (Iowa 2004) (citing Bourjaily and strictly construing

Iowa Code section 6B.57 to hold service on cotrustee for named and 

unnamed trusts that jointly owned land did not constitute notice to 

trusts unnamed in petition). We see no reason to retreat today from our 

long-standing approach mandating strict compliance with statutory 

requirements in eminent domain proceedings. 

B. The Declaratory Judgment Issue. Iowa Code chapter 6A, 

entitled “Eminent Domain Law,” codifies requirements for condemning 

private property for public use. Section 6A.24 provides for judicial review 

of eminent domain authority. See Iowa Code § 6A.24. This provision 

permits an “acquiring agency” to petition the court for a ruling that the 

proposed taking of private property is for a “public use, public purpose, 

or public improvement”: 

An acquiring agency that proposes to acquire property 

by eminent domain may file a petition in district court 

seeking a determination and declaration that its finding of 

public use, public purpose, or public improvement necessary 

to support the taking meets the definition of those terms. 

Id. § 6A.24(2) (emphasis added). Chapter 6B, entitled “Procedure Under 

Eminent Domain,” defines “acquiring agency” as “the state of Iowa and 

any person or entity conferred the right by statute to condemn private 
12

property or to otherwise exercise the power of eminent domain.” Id.

§ 6B.1(2). 

The Commission filed its petition under section 6A.24(2) and 

sought a judicial declaration that the proposed reservoir met the publicuse requirement for eminent domain. The Robins Trust, by motion for 

summary judgment, raised a threshold challenge in district court,

arguing the Commission was not a proper acquiring agency because it 

included private members that lacked eminent domain authority. The 

district court denied that motion and ruled the Commission was a proper 

party. The landowners also litigated and lost the issue whether the 

reservoir was for a public use. We next address the Commission’s 

argument that this appeal is moot. 

C. Mootness. At the time the district court entered its declaratory 

judgment, the Commission still included private members. As noted, the 

private members withdrew after the Robins Trust filed its notice of 

appeal. The Commission argues the declaratory judgment is valid 

because the postjudgment reorganization rendered moot the challenge to 

its authority to exercise eminent domain powers. The Robins Trust 

argues the Commission was not a proper party plaintiff or acquiring 

agency under section 6A.24(2) when it filed and obtained the declaratory 

judgment, which constitutes a fatal procedural flaw that taints the 

proceedings and requires the judgment to be vacated. The Robins Trust 

contends the Commission cannot cure this flaw belatedly by the 

postjudgment withdrawal of the private members. Paradoxically, we 

cannot determine whether the appeal is moot without deciding whether 

the alleged defects in the status of the Commission as the acquiring 

agency are fatal to the judgment or rather can be cured on appeal.
13

“An appeal is moot if it no longer presents a justiciable 

controversy because [the contested issue] has become 

academic or nonexistent. The test is whether the court’s 

opinion would be of force or effect in the underlying 

controversy. As a general rule, we will dismiss an appeal 

when judgment, if rendered, will have no practical legal effect 

upon the existing controversy.” 

In re Guardianship of Kennedy, 845 N.W.2d 707, 710–11 (Iowa 2014) 

(quoting In re M.T., 625 N.W.2d 702, 704 (Iowa 2001)). “Mootness is not 

a question of power but rather one of restraint.” Rush v. Ray, 332 

N.W.2d 325, 326 (Iowa 1983). 

In Lewis Investments, Inc. v. City of Iowa City, we rejected a 

mootness challenge raised on appeal in a condemnation action. 703 

N.W.2d 180, 183–84 (Iowa 2005). In that case, the city sought to 

condemn a residential building as a public nuisance. Id at 182. The 

owner filed an action seeking a temporary and permanent injunction, 

alleging lack of due process because it was denied an evidentiary hearing 

before an independent body before the city declared the building a public 

nuisance. Id. at 183. The district court denied the temporary injunction, 

and the city proceeded with the condemnation. Id. We permitted the 

owner to file an interlocutory appeal of the injunction ruling. Id. at 183.

Meanwhile, the condemnation hearing was held, and the compensation 

commission awarded $259,000 to the owner for the property. Id. The 

city deposited that amount with the sheriff, secured the property, and 

cleaned it up in anticipation of sale. Id. Based on those events, the city 

moved to dismiss the appeal from the injunction ruling as moot. Id. We 

rejected the mootness claim, noting the property had not yet been sold to 

a third party and that the court could still restore the parties to their 

former positions. Id. at 184. We distinguished caselaw in which a 

challenged roadway had been completed before submission of the appeal.

Id. at 183–84 (distinguishing Welton v. Iowa State Highway Comm’n, 227 
14

N.W. 332, 333 (Iowa 1929)). Similarly, the proposed reservoir challenged 

by the landowners in this case has not been built, nor has the property 

been acquired by the Commission through eminent domain. It is not too 

late to decide the issue presented in this appeal. 

All of the current members of the Commission have the power of 

eminent domain by statute.4 But, the Commission included private 

members at the time it filed its petition seeking a declaration of public 

use under Iowa Code section 6A.24, at the time the district court ruled 

on summary judgment, at the time the case was tried to the court, and 

at the time the district court entered its declaratory judgment. The 

Robins Trust argues the Commission was improperly constituted at the 

critical phases of these proceedings and that resulting taint cannot be 

cured retroactively by the postjudgment reorganization.

Under Iowa Code section 6A.24(2), a declaratory action may only 

be filed by “an acquiring agency.” The fighting issue below is whether the 

Commission had eminent domain authority while it included private 

members. Can we avoid deciding that issue by holding the postjudgment 

withdrawal of the private entities cured the alleged defect in the 

proceedings? 

The Commission has cited no authority, and we found none, 

holding that an appeal of a ruling in favor of an improper party 

exercising eminent domain powers can be rendered moot by substituting 

a proper party during the appeal. We are unable to conclude that the 

issue appealed by the Robins Trust—whether the Commission as 

4Clarke County’s power of eminent domain is provided by Iowa Code section 

6A.4(1). The cities’ power is provided by section 6A.4(6). The power of the waterworks 

board is found in section 388.4(2). The Rural Water Association’s eminent domain 

power is provided by section 357A.11(5). 

 
15

constituted in district court had the power of eminent domain—is now a 

“merely academic issue,” the resolution of which “would have no effect on 

the underlying dispute.” See In re Trust No. T-1 of Trimble, 826 N.W.2d 

474, 482 (Iowa 2013) (rejecting mootness challenge in appeal from failure 

to provide accounting, even though belated accounting was completed

before submission of appeal, because resolution of right to accounting

affected claim for recovery of attorney fees). 

We conclude that the appeal is not moot and proceed to address 

the merits of the issue raised by the Robins Trust. 

D. Whether a 28E Entity with Both Public and Private 

Members Can Properly Bring an Action Under Iowa Code Section 

6A.24(2). Generally, a 28E agreement 

purports to authorize any political subdivision of the State of 

Iowa and certain agencies of the state or federal government 

to join together to perform certain public services and by 

agreement create a separate legal or administrative entity to 

render that service. 

Goreham v. Des Moines Metro. Area Solid Waste Agency, 179 N.W.2d 449, 

453 (Iowa 1970). The statute allows for the joint exercise of powers:

Any power or powers, privileges or authority exercised 

or capable of exercise by a public agency of this state may be 

exercised and enjoyed jointly with any other public agency of 

this state having such power or powers, privilege or 

authority, and jointly with any public agency of any other 

state or of the United States to the extent that laws of such 

other state or of the United States permit such joint exercise 

or enjoyment. Any agency of the state government when 

acting jointly with any public agency may exercise and enjoy 

all of the powers, privileges and authority conferred by this 

chapter upon a public agency. 

Iowa Code § 28E.3. Further, private entities may enter into 28E 

agreements with public entities “for joint or cooperative action” pursuant 

to the agreement. Id. at § 28E.4. Yet, chapter 28E does not expressly 
16

address whether or how private entities may participate in a 28E 

agreement exercising a public power that the private entity lacks. 

The Robins Trust relies on two cases to support its contention that 

the Commission with private members cannot exercise the power of 

eminent domain. The first is Goreham, a case considering whether a 28E 

agency composed entirely of public members could issue revenue bonds. 

179 N.W.2d at 451. After examining the nature of 28E agreements and 

noting the constitutional avoidance doctrine, we concluded that

this legislation must be interpreted with reference to the 

power or powers which the contracting governmental units 

already have. The pre-existing powers contain their own 

guidelines. The legal creation of a new body corporate and 

politic to jointly exercise and perform the powers and 

responsibilities of the cooperating governmental unit would 

not be unconstitutional so long as the new body politic is 

doing only what its cooperating members already have the 

power to do. 

Id. at 455. In Barnes v. Department of Housing and Urban Development,

we answered a question certified to us by the United States District 

Court for the Northern District of Iowa regarding the approval 

requirements for regional housing authorities established under chapter 

28E. 341 N.W.2d 766, 766–67 (Iowa 1983). We noted that “[c]hapter 

28E . . . does not confer any additional powers on the cooperating 

agencies; it merely provides for their joint exercise.” Id. at 767. We 

concluded “the powers exercised by those municipalities in connection 

with this project are not independent powers arising under chapter 28E 

but a joint exercise of powers already vested in the members.” Id. at 768.

Neither Goreham nor Barnes, however, involved eminent domain or a 

28E entity with private members lacking the power to be exercised 

jointly. The cases are instructive but not controlling. 
17

We recently reiterated that only proper parties may exercise 

eminent domain powers. In Hawkeye Land Co., the Iowa Utilities Board 

(IUB) allowed an independent transmission company, ITC Midwest, to 

utilize a statutory pay-and-go procedure to run electrical transmission 

lines across a railroad over a property owner’s objection—a form of 

eminent domain. 847 N.W.2d at 201. The owner of the railroad-crossing 

easement appealed, and the district court affirmed the IUB’s 

determination. Id. The pay-and-go procedure in Iowa Code section 

476.27 was only available to a “public utility.” Id. at 213. We held that 

ITC Midwest did not meet the definition of a public utility and, therefore,

was the wrong party to use the eminent domain statute. Id. at 219. Our 

conclusion led us to reverse the district court and remand for an order 

vacating the IUB’s decision. Id. Similarly, if we determine that the 

Commission, as constituted in the district court, was not a proper party 

to bring an action for a declaration of public use, we must reverse the 

district court’s declaratory judgment. 

The Commission relies on Weiss v. City of Denison, in which a 

school district and a city entered into a 28E agreement, and then the city 

used its power of eminent domain to acquire land it transferred to the 

school district. 491 N.W.2d 805, 807–08 (Iowa 1992). We concluded 

that the city acted properly, condemning the land by its own power of 

eminent domain and after having done so, was free to transfer the 

property to the 28E entity. Id. Although Weiss remains good law, the 

case is inapposite because here the Commission itself filed the action 

seeking the declaration of public use, rather than having one of its public 

members do so. 

The Commission argues that the 28E agreement itself grants the 

Commission the power of eminent domain. We disagree. Only the 
18

legislature has the authority to delegate the power of eminent domain, 

and the members of the Commission cannot grant or delegate their own 

powers of eminent domain to the Commission but, rather, may only 

exercise their individual powers jointly. Barnes, 341 N.W.2d at 768; 

Goreham, 179 N.W.2d at 455. The Commission further argues we should 

liberally construe chapter 28E to achieve efficiency. The legislature’s 

directive to construe chapter 28E liberally, however, is to promote 

governmental efficiency:

The purpose of this chapter is to permit state and local 

governments in Iowa to make efficient use of their powers by 

enabling them to provide joint services and facilities with 

other agencies and to cooperate in other ways of mutual 

advantage. This chapter shall be liberally construed to that 

end. 

Iowa Code § 28E.1. The Commission’s argument begs the question 

whether private entities may exercise eminent domain powers jointly with 

public entities in a 28E agreement. We will not infer such powers when 

chapter 28E is silent on that point. See Hawkeye Land, 847 N.W.2d at 

208, 219 (strictly construing statutes delegating the power of eminent 

domain and holding only parties expressly authorized by the legislature 

could utilize statutory procedure to acquire property over owner’s 

objection). We may not read new powers into chapter 28E in the guise of 

interpretation. A contrary holding would effectively enable private 

entities to exercise eminent domain powers through a 28E entity. Private 

entities are not accountable to voters. “Liberty requires accountability.”

Dep’t of Transp. v. Ass’n of Am. R.R.s, ___ U.S., ___, 135 S. Ct. 1225, 

1234, ___ L. Ed. 2d ___, ___ (2015) (Alito, J., concurring). Delegating 

governmental powers to quasi-public entities raises constitutional 

questions. Cf. id. at ___, 135 S. Ct. at 1239–40, ___ L. Ed. 2d at ___

(describing constitutional problems with delegating governmental powers 
19

to private entity, but concluding Amtrak is a government entity for 

purposes of developing standards for use of private railroad tracks). If 

the legislature wanted to grant eminent domain powers to 28E entities 

that include private members, it could have said so explicitly. Policy 

arguments in favor of granting eminent domain powers to joint privatepublic entities should be directed to the legislature. 

No statute expressly allows a private entity to exercise the power of 

eminent domain jointly through a 28E agreement. As we concluded in 

Goreham and Barnes, a 28E agreement confers no new powers on the 

entities involved, but only allows for the joint exercise of existing powers. 

Barnes, 341 N.W.2d at 768; Goreham, 179 N.W.2d at 455. We hold that 

a 28E entity with private members lacks the power of eminent domain. 

Therefore, we conclude that the Commission did not have the power of 

eminent domain at the time the district court entered its declaratory 

judgment. Accordingly, it was not a proper acquiring agency under Iowa 

Code section 6A.24(2). The district court erred by allowing the 

declaratory action to proceed to judgment with a plaintiff that was not a 

proper acquiring agency. This error requires us to reverse the 

declaratory judgment. See Hawkeye Land, 847 N.W.2d at 219 (reversing 

district court judgment and remanding for order vacating IUB decision 

that erroneously allowed improper party to use pay-and-go railroadcrossing statute); In re Condemnation of Land for Valley View Park 

Aquatic/Roadway, 687 N.W.2d at 106 (reversing judgment apportioning 

condemnation award due to failure to name proper parties); cf. In re 

Clement Trust, 679 N.W.2d 31, 38–39 (Iowa 2004) (vacating final 

judgment on claims for which plaintiff lacked standing); Wilson v. City of 

Iowa City, 165 N.W.2d 813, 824–25 (Iowa 1969) (modifying district 
20

court’s decree to declare void resolutions of city council invalidated by 

votes of disqualified council member).

We reject the Commission’s argument that the appeal should be 

dismissed because the withdrawal of its private members removes any 

question that the Commission, as reorganized now, has eminent domain 

powers. Dismissal of the appeal would leave in place the district court’s 

existing declaratory judgment. That declaratory judgment could have 

ongoing significance. The legislature knows how to excuse strict 

compliance with statutory requirements when it chooses. For example, 

Iowa Code section 6B.57 addresses an acquiring agency’s good-faith 

failure to comply with requirements to notify property owners:

If an acquiring agency makes a good faith effort to 

serve, send, or provide the notices or documents required 

under this chapter to the owner and any contract purchaser 

of private property that is or may be the subject of 

condemnation, or to any tenant known to be occupying such 

property if notices or documents are required to be served, 

sent, or provided to such a person, but fails to provide the 

notice or documents to the owner and any contract 

purchaser, or to any tenant known to be occupying the 

property if applicable, such failure shall not constitute 

grounds for invalidation of the condemnation proceeding if 

the chief judge of the judicial district determines that such 

failure can be corrected by delaying the condemnation 

proceedings to allow compliance with the requirement or 

such failure does not unreasonably prejudice the owner or 

any contract purchaser. 

Iowa Code § 6B.57. The legislature, however, has not enacted such a

provision to excuse defects in the composition of an acquiring agency. 

We will not write such a provision into the statute in the guise of 

interpretation. 

Finally, the Commission argues that even if we hold it was an 

improper party below, the district court’s declaratory judgment of public

use will remain binding on the defendants who litigated and lost that 
21

issue under the doctrine of issue preclusion or claim preclusion in future 

proceedings. We disagree. Issue preclusion, a form of res judicata, is 

based on a prior judgment. See Soults Farms, Inc. v. Schafer, 797 N.W.2d 

92, 103–04 (Iowa 2011). So, too, is claim preclusion. See Fennelly v. A-1 

Mach. & Tool Co., 728 N.W.2d 181, 186 (Iowa 2007). A judgment, once 

reversed or vacated, no longer has preclusive effect. Id. (noting reversal 

of prior judgment defeated its preclusive effect). Nor does the law-of-thecase doctrine apply to preclude the parties from relitigating the publicuse issue or require them to do so on remand. The law-of-the-case 

doctrine applies to issues raised and decided on appeal. See Cawthorn v. 

Catholic Health Initiatives, 806 N.W.2d 282, 286 (Iowa 2011); see also 

Wolfe v. Graether, 389 N.W.2d 643, 651 (Iowa 1986) (contrasting 

res judicata and law of the case).5 The only issue raised by the Robins 

Trust in this appeal was the composition of the Commission. We are 

reversing the declaratory judgment on that ground alone. The Robins 

Trust in this appeal did not otherwise challenge the district court’s 

public-use determination, and we do not reach that issue. 

IV. Disposition. 

For the foregoing reasons, we reverse the declaratory judgment of 

the district court and remand the case for further proceedings consistent 

with this opinion. 

REVERSED AND REMANDED. 

All justices concur except Wiggins, J., who dissents. 

5We are not dealing here with the law-of-the-case implications of a district court 

ruling that was not appealed. See, e.g., Nutting v. Zieser, 482 N.W.2d 424, 425–26 (Iowa 

1992) (noting how decision interpreting dram statute was “saddled with the law of the 

case implications of the district court’s unappealed ruling”). Rather, the Robins Trust 

appealed the declaratory judgment, which we reverse on this appeal. 

 
22

#14–0774, Clarke Cnty. Reservoir Comm’n v. Robins Revocable Trust

WIGGINS, Justice (dissenting).

I agree with the majority’s analysis of our eminent domain law, but 

disagree with the court’s resolution. The majority’s mootness analysis is 

unnecessary because this case does not implicate the mootness doctrine.

The majority is correct in its conclusion that when the Clarke 

County Reservoir Commission began its condemnation proceeding it did 

not have the authority under Iowa law to do so because it was not a 

properly constituted acquiring agency under Iowa Code section 6A.24(2) 

(2013). I also agree with the majority’s analysis stating that “we have 

long recognized the importance of strict compliance with statutory 

requirements for the exercise of eminent domain.” However, in its 

analysis the majority chooses to talk about these principles in terms of 

mootness, and then remands the case for further proceedings. I find this 

analysis and outcome unnecessary under this record. I would simply 

reverse the decision without remanding the case back to the district 

court on the ground the condemnation proceeding was flawed from the 

beginning.

The Code provides: “The procedure for the condemnation of private 

property for works of internal improvement, and for other public projects, 

uses, or purposes, unless and except as otherwise provided by law, shall 

be in accordance with the provisions of this chapter.” Iowa Code 

§ 6B.1A. Section 6B.2A provides the procedure for commencing a 

condemnation proceeding: 

An acquiring agency shall provide written notice of a public 

hearing to each owner and any contract purchaser of record 

of agricultural land that may be the subject of 

condemnation. The authority under this chapter is not 

conferred and condemnation proceedings shall not begin

unless a good faith effort is made to mail and publish the 
23

notice as provided in this section on the owner and any 

contract purchaser of record of the property subject to 

condemnation.

Id. § 6B.2A(1) (emphasis added).

When the Commission began the condemnation by mailing the 

notice of public hearing it was not an acquiring agency. Thus, an 

acquiring agency did not send a notice of public hearing under section 

6B.2A. Therefore, any action by the Commission after the flawed notice 

is invalid. Accordingly, the Commission cannot cure this defect by 

reconstituting the commission, because a valid acquiring authority was 

required to serve notice under section 6B.2A. 

The majority does not reach this issue, presumably because the 

parties did not argue this issue in this manner. On remand, I do not 

think the acquiring agency can cure this defect. The prudent way to 

proceed would be to start the proceedings with a proper acquiring 

agency, rather than attempting to fix the defect in the proceedings and 

spend the time and resources pursuing another appeal. By starting over, 

the acquiring agency lifts the uncertainty created by this defect and the 

condemnation can occur sooner rather than later. Consequently, I think 

we should find the condemnation proceeding is invalid and reverse the 

judgment of the district court.