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  • Order, Duke Energy Indiana, LLC v. Bellwether Properties, LLC, No. 21A-CT-01848 (Ind. June 23, 2023)

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    Order, Duke Energy Indiana, LLC v. Bellwether Properties, LLC, No. 21A-CT-01848 (Ind. June 23, 2023)

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    Order, Duke Energy Indiana, LLC v. Bellwether Properties, LLC, No. 21A-CT-01848 (Ind. June 23, 2023)

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    Order, Duke Energy Indiana, LLC v. Bellwether Properties, LLC, No. 21A-CT-01848 (Ind. June 23, 2023)

    Uploaded by

    RHT
    Order, Duke Energy Indiana, LLC v. Bellwether Properties, LLC, No. 21A-CT-01848 (Ind. June 23, 2023)

    Copyright:

    © All Rights Reserved
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    of 2

    In the

    Indiana Supreme Court


    Duke Energy Indiana, LLC, Court of Appeals Case No.
    Appellant(s), 21A-CT-01848
    Trial Court Case No.
    v.
    53C01-1506-CT-1172
    Bellwether Properties, LLC, individually FILED
    and on behalf of all others similarly Jun 23 2023, 2:10 pm

    situated, CLERK
    Indiana Supreme Court
    Appellee(s). Court of Appeals
    and Tax Court

    Order
    This matter has come before the Indiana Supreme Court on a petition to transfer
    jurisdiction, filed pursuant to Indiana Appellate Rules 56(B) and 57, following the issuance of a
    decision by the Court of Appeals. The Court has reviewed the decision of the Court of Appeals,
    and the submitted record on appeal, all briefs filed in the Court of Appeals, and all materials
    filed in connection with the request to transfer jurisdiction have been made available to the
    Court for review. Each participating member has had the opportunity to voice that Justice’s
    views on the case in conference with the other Justices, and each participating member of the
    Court has voted on the petition.
    Being duly advised, the Court DENIES the petition to transfer.
    6/23/2023
    Done at Indianapolis, Indiana, on ___________ .

    Loretta H. Rush
    Chief Justice of Indiana

    Rush, C.J., and Massa, Goff, and Molter, JJ., concur.


    Slaughter, J., concurs with separate opinion.
    Slaughter, J., respecting the denial of transfer.

    I join my colleagues in voting to deny the petition to transfer filed by


    Plaintiff, Bellwether Properties, LLC, and write separately to explain why.

    Bellwether claims that Defendant, Duke Energy Indiana, LLC, took its
    property when Duke notified Bellwether that its proposed construction of
    a warehouse on its own property would interfere with an electrical-
    transmission-line safety clearance the utility regulatory commission
    imposed on Duke, a regulated Indiana utility. In response to Duke’s
    notice, Bellwether modified its proposed construction plans to
    accommodate Duke’s existing transmission line and the commission-
    mandated safety clearance. Bellwether’s theory of this case is that Duke’s
    notification—not the commission’s regulation—effected a physical
    invasion of Bellwether’s property for which Duke owes just compensation
    under federal and state law. Bellwether specifically disavowed that its
    property was the subject of a regulatory taking.

    I am content to let the court of appeals’ decision stand. Duke Energy


    Ind., LLC v. Bellwether Props., LLC, 192 N.E.3d 1003 (Ind. Ct. App. 2022). In
    my view, the court was correct that Duke did not physically invade
    Bellwether’s property and that this case should be analyzed, if anything,
    as a regulatory taking. Id. at 1007. The court was also correct that Indiana’s
    prevailing takings law follows the federal standard. Id. at 1006. On this
    latter point, we invited the parties to file supplemental briefs addressing
    whether Indiana should adopt its own takings standard different than the
    federal standard. I am grateful to the parties for the quality of their
    submissions. But based on those submissions and the parties’ arguments, I
    have concluded that this case is not the right vehicle for revisiting
    Indiana’s longstanding takings standard.

    In a future case, I remain open to adopting an Indiana-specific takings


    standard—one consistent with the text, history, and structure of article 1,
    section 21 of our state constitution and with broader protections for
    property owners than federal law. See, e.g., Richard A. Epstein, Takings:
    Private Property and the Power of Eminent Domain (1985).

    Indiana Supreme Court | Case No. 21A-CT-1848 | June 23, 2023 Page 1 of 1

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