Landowners say forced pipeline surveys are unconstitutional

An Iowa law that allows hazardous liquid pipeline companies to access private property for land surveys violates the state’s constitution, several landowners are arguing in state court.

That argument is a response to lawsuits that Navigator CO2 Ventures filed against them last month that claim the landowners have barred the company’s agents from conducting the surveys and, in two instances, threatened them with physical harm.

The company seeks a judge’s order to compel the landowners to comply with the law, which says, in part: “a pipeline company may enter upon private land for the purpose of surveying and examining the land” without fear of being charged with trespassing.

Those surveys are a crucial part of plotting a route of the proposed pipeline and determining at what depth it should be buried. But landowners in Butler, Clay and Woodbury counties are challenging the law and want a judge to nullify it.

“Inherent in any landowner’s property rights is the right to exclude others from their land,” wrote Brian Jorde, an Omaha, Nebraska attorney who is representing at least three of the four sets of landowners, according to court records.

He argues that a section of the state constitution pertaining to eminent domain guarantees those property rights.

That section also requires “just compensation” when private property is taken for public use. The law that allows the pipeline surveys does not include a requirement for such compensation, and so it should be voided, Jorde argues.

Navigator has declined to comment on pending litigation.

A court hearing for one of the cases — involving William and Vicki Hulse in Woodbury County — is set for Monday, court records show. The hearing will determine whether Navigator’s request to access their property is granted.

However, Jorde has asked for the hearing to be delayed until at least late December. It’s unclear when a judge will rule on that request.

Navigator seeks a court order that grants it access to the Hulses’ property with the assistance of the sheriff’s office.

The Hulses seek an injunction that would prohibit the company from going onto the property and a ruling that the survey law violates the constitution.

Navigator is one of three companies to propose liquid carbon dioxide pipelines in Iowa. They would transport the captured compound — a notable greenhouse gas — from ethanol plants to other states to be pumped deep into the ground.

Detractors of the pipelines say their construction would damage farmland and that potential leaks pose a safety hazard. They also argue the use of eminent domain to build the pipelines is improper.

The companies are attempting to negotiate with landowners for paid easements to install the pipelines on their properties. Navigator declined recently to disclose the amount of voluntary easements is has obtained for its roughly 800-mile route.

Another pipeline company, Summit Carbon Solutions, recently heralded its progress in obtaining easements. It surpassed the 50% mark for its roughly 680-mile route and is the furthest along in the permitting process with the Iowa Utilities Board.

“I think we’re going to see some significant jumps in our numbers,” said Jesse Harris, the company’s public affairs director.

Summit said Wednesday it has easement agreements with 800 landowners that pay an average of about $57,000 apiece. It plans to start construction as early as July 2023, pending approval of its permit by the board.

The board has not yet scheduled a hearing for the permit, but Harris anticipates that it will be in March.

There is no statutory requirement for the companies to obtain a certain number or percentage of voluntary easements for their projects to be approved. If the board approves the projects, the company can use eminent domain to obtain easements for the remainder.