Iowa Court: Pipeline Survey Law Unlawful

LINCOLN, Neb. (DTN) -- It is unconstitutional for pipeline companies to enter private land to survey without compensating landowners in Iowa, a district judge in the state ruled Wednesday.

One of three companies planning to build a carbon-dioxide pipeline in Iowa sued Clay County landowner Martin Koenig, who refused to allow Navigator CO2 officials on his property to conduct additional site surveys.

Koenig had filed a counter claim to stop the company from entering his land without permission or compensation. Iowa law calls for compensation of "actual" damages but not for what could be considered a "taking" if pipeline companies enter property without permission.

Officials with Navigator CO2 told DTN they will appeal the ruling, calling it a "deviation" from existing precedent.

"Similar survey statutes have been recently reviewed and deemed constitutional by courts in surrounding states," the company said.

"We remain committed to engaging in open and transparent communication with landowners and interested stakeholders. The vast majority of our surveys have been completed through voluntary collaboration with landowners and tenants. We remain committed to upholding the highest standards of safety and integrity in all of our operations. Navigator plans to appeal the ruling and believes that further review will uphold the constitutionality of the statute, aligning with the conclusions reached by courts in neighboring jurisdictions."

Currently, there are three major pipeline projects under development in Iowa, including those proposed by Navigator, Summit Carbon Solutions and Wolf Carbon Solutions.

The projects face stiff opposition from local communities and outside environmental groups.

Navigator has been signing up a few ethanol plants in Minnesota, Nebraska and South Dakota, while crossing Iowa into Illinois where Navigator's planners will sink their carbon. Navigator has more than 30 ethanol plants and other agricultural industrial facilities signed up.

In March, the Iowa House of Representatives voted to tighten rules for carbon pipelines across the state, https://www.dtnpf.com/….

"The United States Supreme Court has consistently emphasized that 'the right to exclude is 'one of the most treasured' rights of property ownership," Third Judicial District Judge John M. Sandy wrote in the ruling.

"The right to exclude is 'universally held to be a fundamental element of the property right,' and is 'one of the most essential sticks in the bundle of rights that are commonly characterized as property.' Because of the 'central importance to property ownership' of the right to exclude, courts have long treated 'government-authorized physical invasions as takings requiring just compensation.'"

Koenig's attorneys argued Iowa law was unconstitutional because it allows for a "per se taking" without just compensation.

The court said the Iowa law provides just compensation to landowners for actual damages caused -- in this case by pipeline company representatives -- but doesn't provide compensation for per se takings or for entering personal property without permission.

"Though the statute is 'cloaked with a presumption of constitutionality,' the court finds that Iowa Code Section 479B.15 results in a per se government taking without providing just compensation, in violation of Article I section 18 of the Iowa Constitution and the Fifth Amendment of the United States Constitution," the judge said in the ruling.

"The court can find no other reasonable interpretation in which Iowa Code Section 479B.15 passes 'constitutional muster.' Consequently, the court finds that Iowa code Section 479B.15 should be declared unconstitutional and plaintiff's request for an injunction should be denied."

That section of Iowa law governs hazardous liquid pipelines and storage facilities.

It requires companies to provide a 10-day written notice to property owners before conducting surveys. It also allows companies to seek injunctions to gain entry to certain lands.

Brian Jorde, an attorney with the Domina Law Group, who argued the case for Koenig, said in response to DTN's request for comment, "Our position is the law is unconstitutional and therefore void and all surveys should cease unless they have obtained express permission from the landowner."

Read more on DTN:

"Carbon Pipelines Seek Iowa Permits as Protestors Disrupt Industry Conference," https://www.dtnpf.com/…

Todd Neeley can be reached at todd.neeley@dtn.com

Follow him on Twitter @DTNeeley

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