Kentucky Appellate Court Affirms Eminent Domain Prevailing Over Conservation Easement

My hometown of Louisville, Kentucky is known for many delightful persons, places, and things: bourbon, the Kentucky Derby, and “The Greatest” heavyweight boxing champion, among others. A lesser-known and equally notable treasure of the community is the Bernheim Forest and Arboretum, a 16,000-acre arboretum, forest, and nature preserve located 24 miles south of the city.

Recently, Bernheim Forest and eminent domain law came crashing together in litigation relating to conservation easements, discussed in Isaac W. Bernheim Found. v. Louisville Gas & Elec. Co., No. 2023-CA-0458-MR, 2024 Ky. App. LEXIS 38 (Apr. 19, 2024).

At issue in Bernheim was whether land subject to a conservation easement could be acquired by eminent domain pursuant to Kentucky statutory law. The trial court found that it could, and the appellate court affirmed, finding that “[t]he plain language of Ky. Rev. Stat. Ann. § 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.”

This case has had an unusual procedural background, some of which I discussed on the Eminent Domain Podcast at Episode 101. From discussions with colleagues, I understand that the treatment of conservation easements in eminent domain matters is evolving. It will be interesting to see how other jurisdictions treat this issue.