               IN THE SUPREME COURT OF IOWA
                                  No. 14–0774

                               Filed April 10, 2015

                           Amended June 22, 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 agreement 1 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 public-

use 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.

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 Ct. App. 1992). The court

in Weiss 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 private-

public 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 railroad-

crossing 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-the-

case doctrine apply to preclude the parties from relitigating the public-

use 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.
