Can a private company in Arizona use eminent domain to take land for an interstate electric transmission line?

Plain-English summary

State Senator Frank Pratt asked the Attorney General whether a private developer could use Arizona's public-works eminent domain statutes to build a transmission line connecting an Arizona substation to a California substation. The context was the proposed Ten West Link, a 500 kV interstate line that would link the Arizona Public Service Delaney substation to the Southern California Edison Colorado River substation, with DCR Transmission, LLC as project sponsor.

Attorney General Mark Brnovich answered yes, in principle. A.R.S. § 12-1142(A) delegates condemnation power to three classes of takers: a "federal agency," a "state public body," and an "authorized corporation." The third category, defined in § 12-1141(1), is not limited to public entities. A private corporation can qualify as an "authorized corporation" if all four elements are met:

1. It is a corporation or association.
2. It is engaged or about to engage in a public works project.
3. The project is for a public use.
4. The project's construction and ongoing operation are subject to regulation or supervision by a federal agency or a state public body.

The "public works project" requirement in § 12-1142(A) is independent. The project must be defined in § 12-1141(5) as "a work or undertaking which is financed in whole or in part by a federal agency … or by a state public body."

The AG declined to apply that framework to the Ten West Link specifically, treating that question as a fact-bound inquiry outside the AG's opinion authority under A.R.S. § 41-193(A)(7). The opinion gives general guidance only.

Currency note

This opinion was issued in 2019. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Historical context: what the opinion meant in 2019

For utility developers planning interstate or intrastate transmission

The opinion confirmed a path to condemnation that did not require designation as an Arizona public service corporation. A private special-purpose entity formed to develop a transmission project could exercise § 12-1142(A) eminent domain so long as it slotted into the "authorized corporation" definition and the project itself qualified as a "public works project." For Ten West Link, the project sponsor was a non-public-service-corporation utility under Arizona's line-siting statutes, but that did not foreclose use of § 12-1142(A).

For landowners along proposed transmission corridors

The flip side: the opinion confirmed that affected landowners could not block condemnation simply by pointing out the developer was private. The constitutional and statutory tests still applied (public use, supervision by a federal agency or state public body, public-works financing), and the courts (not the AG) would resolve whether they were met for any particular project.

For state legislators considering eminent-domain reform

The opinion mapped out the reach of § 12-1142(A) plainly. If lawmakers wanted to narrow private condemnation, the levers were either tightening the "authorized corporation" definition in § 12-1141(1) or imposing additional procedural requirements at the state-utility-regulator level.

Common questions

Q: Who can use Arizona's public-works eminent domain statutes (§§ 12-1141 to -1162)?
A: Three classes of entities under § 12-1142(A): a federal agency, a state public body (defined as Arizona, a county, city, town, etc.), or an "authorized corporation." Private entities can qualify only as authorized corporations.

Q: What makes a private corporation an "authorized corporation"?
A: Four elements under § 12-1141(1): it must be a corporation or association; it must be engaged or about to engage in a public works project; the project must be for a public use; and the project's construction and operation must be subject to regulation or supervision by a federal agency or state public body. The supervision element is the key gatekeeper for purely private projects.

Q: What's a "public works project"?
A: § 12-1141(5) defines it as "a work or undertaking which is financed in whole or in part by a federal agency … or by a state public body." Note: it has to be financed at least partly by a public entity, not just regulated by one.

Q: Did the AG say the Ten West Link could use eminent domain?
A: No. The AG expressly refused to apply the framework to the Ten West Link specifically, calling that a question of fact outside the scope of an AG opinion under § 41-193(A)(7). The opinion gives general legal guidance only.

Q: Why is the "the state" in § 12-1141(7) limited to Arizona, not just any state?
A: Because the statute uses the definite article "the." The AG cited a Webster's dictionary entry showing that "the" refers to something previously mentioned or clearly understood from context. In an Arizona statute, "the state" means Arizona.

Q: Does this give private developers unlimited condemnation power?
A: No. Two checks: (1) the federal- or state-agency supervision requirement filters out unsupervised private projects; (2) the constitutional and statutory definitions of "public use" (Ariz. Const. art. II, § 17 and A.R.S. § 12-1136(5)) still apply, meaning courts can refuse condemnation if the use does not qualify as public.

Background and statutory framework

The Arizona public-works eminent domain statutes, A.R.S. §§ 12-1141 to -1162, are the primary statutory delegation for "public works" condemnation in Arizona. The statute on delegation is § 12-1142(A): "A federal agency, state public body or authorized corporation may institute condemnation proceedings under this article for acquisition of real property necessary for a public works project."

Two requirements:

1. Authorized entity. Federal agency, state public body, or authorized corporation.
2. Authorized purpose. Acquisition must be necessary for a public works project (a publicly financed work).

The "authorized corporation" path is the only one available to a private taker. The four-element definition in § 12-1141(1) builds in a regulatory check: even a private corporation must be subject to ongoing supervision by a federal agency or state public body. This avoids unbounded private condemnation.

For interstate electric transmission, FERC oversees rates and certain operational aspects, the relevant California ISO directs project sponsorship, and Arizona's line-siting statutes apply. Whether that combined regulatory web satisfies the supervision element of § 12-1141(1) for a given project is a fact question; the opinion does not resolve it for Ten West Link.

The AG's reluctance to apply the framework concretely is rooted in § 41-193(A)(7), which authorizes the AG to "render a written opinion upon any question of law." Whether DCR Transmission, LLC actually satisfies the four elements requires evidence about its corporate form, financing, regulatory subjugation, and the project's progress, all factual.

Citations and references

Statutes:
- A.R.S. §§ 12-1141 to -1162 (public works eminent domain)
- A.R.S. § 12-1141 (definitions)
- A.R.S. § 12-1142(A) (delegation of condemnation power)
- A.R.S. § 12-1136(5) (statutory "public use" definition)
- A.R.S. § 41-193(A)(7) (AG opinion authority)
- Ariz. Const. art. II, § 17 (constitutional "public use" requirement)

Cases:
- City of Phoenix v. Harnish, 214 Ariz. 158 (App. 2006), eminent domain power vests in the State and is delegated only by statute
- Janson on Behalf of Janson v. Christensen, 167 Ariz. 470 (1991), statutory language is the best indicator of meaning
- Arizona ex rel. Brnovich v. Maricopa Cty. Cmty. Coll. Dist. Bd., 243 Ariz. 539 (2018), words get their ordinary meaning unless context suggests otherwise

Source

• Landing page: https://www.azag.gov/opinions/i19-005-r19-002
• Original PDF: https://www.azag.gov/sites/default/files/2025-06/I19-005.pdf

Original opinion text

To:

Hon. Frank Pratt

Arizona State Senate

Question Presented

Can a private developer use Arizona's public works eminent domain statutes, Arizona Revised Statutes §§ 12-1141 to -1162, if it is necessary to build a transmission line that connects an Arizona substation with a California substation?

Summary Answer

Yes. A private developer can use Arizona's public works eminent domain statutes, A.R.S. §§ 12-1141 to -1162, if it is necessary to build a transmission line that connects an Arizona substation with a California substation, as long as (1) the private developer qualifies as an "authorized corporation" and (2) the project qualifies as a "public works project." The Attorney General is unable to opine on whether A.R.S. § 12-1142(A) authorizes a particular private developer to use the power of eminent domain for a particular project because that inquiry would involve a question of fact rather than a question of law.

Background

The request for this opinion supplied the following background facts and conclusions, which do not constitute factual findings or conclusions by the Attorney General. See A.R.S. § 41-193(A)(7) (authorizing the Attorney General to "render a written opinion upon any question of law relating to [the] offices" of authorized requestors (emphasis added)).

The Delaney to Colorado River 500 kV Transmission Line or Ten West Link Project is a proposed 500 kV transmission line that connects the Arizona Public Service Delaney substation to the Southern California Edison Colorado River substation, providing a 500 kV interstate interconnection for the transmission of electricity between Arizona and California. In 2015, the California Independent System Operator Corporation selected DCR Transmission, LLC as the project sponsor to develop, permit, finance, construct, own, operate, and maintain the Ten West Link Project. While DCR Transmission, LLC is considered a "utility" under Arizona's line siting statutes, it is not a "public service corporation" or a "public service agency."

The opinion request appears to concern whether DCR Transmission, LLC is authorized under A.R.S. § 12-1142(A) to exercise the power of eminent domain as necessary to construct and operate the Ten West Link Project. As explained below, the Attorney General is not authorized to opine on that specific issue, which involves particularized questions of fact rather than a question of law. Instead, this opinion provides more general guidance on the question identified above: whether a private developer can use Arizona's public works eminent domain statutes, A.R.S. §§ 12-1141 to -1162, if it is necessary to build a transmission line that connects an Arizona substation with a California substation.

Analysis

"The power of eminent domain is inherently vested in the State." City of Phoenix v. Harnish, 214 Ariz. 158, 161, ¶ 12 (App. 2006). This power, however, is not inherently vested in the political subdivisions of the State. Id. Political subdivisions "may only exercise those powers that are statutorily delegated to them." Id. The requirement of statutory delegation applies with equal force to private parties seeking to exercise the power of eminent domain.

Thus, whether private developers may condemn property under Arizona's public works eminent domain statutes involves a matter of statutory construction. The "best and most reliable index of a statute's meaning is its language." Janson on Behalf of Janson v. Christensen, 167 Ariz. 470, 471 (1991). The words of a statute "are to be given their ordinary meaning unless it appears from the context or otherwise that a different meaning is intended." Arizona ex rel. Brnovich v. Maricopa Cty. Cmty. Coll. Dist. Bd., 243 Ariz. 539, 541, ¶ 7 (2018). Where the language is plain and unambiguous, courts follow the text as written. Mid Kansas Fed. Sav. & Loan Ass'n of Wichita v. Dynamic Dev. Corp., 167 Ariz. 122, 128 (1991); see also Balestrieri v. Hartford Acc. & Indem. Ins. Co., 112 Ariz. 160, 163 (1975).

A. Statutory Analysis

The statutory delegation to condemn property under the public works eminent domain statutes is set forth in A.R.S. § 12-1142(A). It provides in part: "A federal agency, state public body or authorized corporation may institute condemnation proceedings under this article for acquisition of real property necessary for a public works project." Id. This statute has two requirements. First, the entity seeking to exercise the power of eminent domain must be authorized under the statute—that is, the entity must be a "federal agency," a "state public body," or an "authorized corporation." Second, the power of eminent domain must be used for an authorized purpose. In the words of the statute, the acquisition of real property must be "necessary for a public works project." These two requirements are addressed below.

1. Authorized Entities

Section 12-1142(A) delegates the power of eminent domain to three classes of entities: a "federal agency," a "state public body," and an "authorized corporation." Section 12-1141 defines each of these terms.

A "federal agency" means "the United States, the federal emergency administration of public works or any other agency or instrumentality, corporate or otherwise, of the United States." A.R.S. § 12-1141(3).

A "state public body" means "the state or a county, city, town, municipal corporation, authority or any other subdivision, agency or instrumentality thereof, corporate or otherwise." A.R.S. § 12-1141(7). Because "state public body" is defined using the definite article "the state" instead of the indefinite article "a state," the ordinary meaning of "the state" in the context of this statute clearly refers to the state of Arizona, not to any state generally.

Finally, an "authorized corporation" means:

a corporation or association engaged or about to engage in a public works project, as defined in this article, for a public use, but the construction of the public works project and its conduct thereafter by the corporation or association is subject to regulation or supervision by a federal agency, as defined in this article, or a state public body, as defined in this article, whether by virtue of an agreement, provision of law or otherwise.

A.R.S. § 12-1141(1). To qualify under this definition, an entity must satisfy four elements. It must be (1) a corporation or association, (2) engaged or about to engage in a public works project, (3) for a public use, and (4) the project's construction and conduct thereafter must be subject to regulation or supervision by a federal agency or a state public body. Because A.R.S. § 12-1142(A) includes an "authorized corporation" which (by definition) is not limited to public entities, it is clear that a private developer may exercise the power of eminent domain under this law if that developer otherwise qualifies under the statute.

2. Authorized Purpose

Not only must the power of eminent domain be exercised by an authorized entity, it must also be "necessary for a public works project." A.R.S. § 12-1142(A). While the statute does not define what is "necessary," it does provide a definition for a "public works project." Id. § 12‑1141(5). This term means "a work or undertaking which is financed in whole or in part by a federal agency ... or by a state public body." The same definitions of "federal agency" and "state public body" set forth above apply to the "public works project" requirement.

B. Application of A.R.S. § 12-1142(A) to the Ten West Link Project

Consistent with the statutes set forth above, a private developer can use Arizona's public works eminent domain statutes, A.R.S. §§ 12-1141 to -1162, if it is necessary to build a transmission line that connects an Arizona substation with a California substation, as long as the power of eminent domain is (1) exercised by an authorized entity and (2) the project qualifies as a "public works project."

The opinion request includes details regarding a particular private developer seeking to construct a particular project to build a transmission line that connects an Arizona substation with a California substation. To the extent that the opinion request asks the Attorney General for an opinion about whether this particular private developer can exercise the power of eminent domain under A.R.S. § 12-1142(A) for this particular project, the Attorney General is unable to render such an opinion. Under A.R.S. § 41-193(A)(7), the Attorney General may "render a written opinion upon any question of law" relating to the office of a member of the Legislature. Whether A.R.S. § 12-1142(A) authorizes DCR Transmission, LLC to use the power of eminent domain for the Ten West Link Project involves questions of fact beyond the scope for which an Attorney General opinion is authorized under A.R.S. § 41-193(A)(7).

Conclusion

A private developer can use Arizona's public works eminent domain statutes, A.R.S. §§ 12-1141 to -1162, if it is necessary to build a transmission line that connects an Arizona substation with a California substation, as long as (1) the private developer qualifies as an "authorized corporation" and (2) the project qualifies as a "public works project." The Attorney General is unable to opine on whether A.R.S. § 12-1142(A) authorizes DCR Transmission, LLC to use the power of eminent domain for the Ten West Link Project, because that inquiry involves particularized questions of fact rather than a question of law.

Mark Brnovich

Attorney General