Landowners challenge use of eminent domain for Bakken pipeline

Pipes intended for use in the Dakota Access pipeline being stored in Jasper County, Iowa during 2015. Photo provided by Wallace Taylor, used with permission.

The Iowa Utilities Board issued a permit for the Dakota Access (Bakken) pipeline on April 8, after declaring that Dakota Access LLC “has substantially complied with the requirements” of the board’s March 10 order. The same day, a group of agricultural landowners filed a lawsuit challenging the board’s use of eminent domain for the pipeline, intended to carry oil roughly 400 miles across eighteen counties from northwest to southeast Iowa. Litigation grounded in environmental concerns about the pipeline is expected later this year.

Follow me after the jump for more details on the land use lawsuit and ongoing efforts to block the pipeline at the federal level.

The Des Moines-based Davis Brown law firm announced the lawsuit on behalf of nine farmland owners in a statement on April 11. Excerpt:

The lawsuit, filed in Polk County District Court, argues that Dakota Access, a subsidiary of Energy Transfer Partners and Phillips 66, does not qualify as a utility and therefore should not have the ability to use eminent domain to forcibly access Iowa landowners’ property to build a pipeline to transport Bakken oil across the state.

In March, the Iowa Utilities Board decided that Dakota Access did have the right to use eminent domain and could proceed under certain conditions. Our clients will argue that the Iowa Utilities Board has misinterpreted Iowa law, specifically the 2006 law designed to protect Iowa farmland. This will be the first opportunity for our clients to seek judicial review of Dakota Access’ eminent domain application. In addition to our own suit in Polk County, we expect that many similar eminent domain lawsuits will arise as land is condemned in the impacted counties.

Here’s the full text of that 2006 law, which had strong bipartisan support in both chambers. In fact, Iowa House and Senate members overrode a veto from Governor Tom Vilsack to enact this bill, one of very few times the legislature has done so in recent decades.

On April 13, attorney Bill Hanigan and several of the plaintiffs discussed their lawsuit against the Iowa Utilities Board. Radio Iowa’s Dar Danielson reported,

“We believe that in order for a private company to condemn Iowa farmland it must be one of two things: it has to either be A, that is a public utility under the jurisdiction of the Iowa Utilities Board. Or B, it has to be a private utility not under the jurisdiction of the Iowa Utilities Board. However, in all cases it must be a utility,” Hanigan says.

From William Petroski’s story in the Des Moines Register,

Hanigan told reporters at a news conference Wednesday in Des Moines there are no plans to seek a statewide court injunction to block the pipeline project throughout Iowa. Instead, his clients will ask judges to prevent construction on individual parcels of farmland in six counties until the eminent domain issue can be addressed by the Iowa Supreme Court. The counties include Boone, Buena Vista, Calhoun, Cherokee, Wapello and Webster.

Hanigan said he doesn’t expect to take action to seek injunctions in the six counties until Dakota Access, a unit of Dallas-based Energy Transfer Partners, tries to condemn his clients’ land under authority granted last month by the Iowa Utilities Board. He doesn’t anticipate that will happen for at least 40 days.

While court proceedings are pending, Hanigan said he has no objections to Dakota Access starting construction on sections of the 346-mile-long pipeline in 18 Iowa counties where landowners have signed voluntary easements to permit construction. Dakota Access says it has obtained easements on about 85 percent of the 1,295 parcels of land along the route in Iowa. That leaves about 195 parcels of land which could face eminent domain proceedings.

Rod Boshart reported for the Cedar Rapids Gazette,

“This is not a good deal,” said LaVerne Johnson, a Boone County farmer who is one of nine landowners bringing legal action in Polk County contending the Iowa Utilities Board should not have granted eminent domain authority to a Texas developer that doesn’t qualify as a utility.

“It is outrageous that a private company that has no benefit for any Iowan could take my farmland for their use,” added Keith Puntenney, another impacted owner of land in Boone and Webster counties and president of the Private Property Rights Fund. […]

“Our lawsuit is not about delay. We’re in it to win it and we think that the law supports our position,” said Hanigan of a case of first impression focusing on a 2006 legislative change in challenging the use of eminent domain by a private entity seeking to take farmland involuntarily for a private purpose.

“The issue of eminent domain is far, far from over. Instead, it is finally just getting started,” he added. “We expect that with these county-level injunctions, our clients will blaze a trail for other landowners and their lawyers to follow.”

Side note: Puntenney is also the Democratic challenger to State Senator Jerry Behn in Iowa Senate district 24, covering Boone, Greene, and Hamilton counties and part of Webster County.

Attorney Doug Gross, who has represented some landowners opposing the Bakken pipeline, discussed possible legal arguments against the use of eminent domain in a March 11 interview with WHO Radio’s Gary Barrett. My transcript, beginning around the 5:40 mark:

I think the most important issue here is really whether or not the Dakota Access Pipeline is a public use. I mean, this is a private company, that’s carrying private oil, that’s not being off-loaded in any way in Iowa, to anyone. So it’s basically just a burden in Iowa, it’s not a benefit. So making a public [think he meant private] profit-making opportunity a public use seems to be a stretch to us, and I think that would be largely what you would do if you wanted to contest this in district court.

[…] With the Kelo case, the U.S. Supreme Court back in ’06, issued the Kelo case in Connecticut, where they basically allowed a public government to condemn private property for a private development. And as a result of that, there was laws passed in Iowa, including one [6A.21] that deals specifically with agricultural land and tries to protect it from that. And it creates a pretty high statutory burden for what’s considered a public use when you’re going to try to condemn ag land. And that’s really not been fully contested yet, and I think that needs to be contested, and I think you’ll likely have that case decided in court here in first impression in Iowa.

Asked whether the Bakken pipeline raises different legal issues from electric lines or other pipelines crossing Iowa, Gross responded,

Yeah, a lot. I mean, when you think about it. Because I mean, with electric lines, that are gathering–there’s a lot of controversy associated with the transmission lines–but those that are being proposed that would gather electricity, obviously, are gathering electricity from wind power that is generated in Iowa, so you could make at least an easier argument that it’s a public use. But here you have oil that’s being extracted out of the ground in North Dakota, and being taken across Iowa in huge amounts, diagonally across our state, potentially impacting both the productivity of the land, as well as the drainage of that land, and potentially environmental impact on that land, with no conceivable public use in Iowa whatsoever. There’s not–it’s not like it’s an interstate with an off-ramp, or an on-ramp. There’s none of that here. So as a result, I think the argument that there is indeed a public use with this pipeline is a real stretch, and I think the [Iowa Utilities] board was wrong on that, and I think that challenge to the District Court is very likely with regard to that.

Asked why some landowners have not agreed to provide easements for the pipeline to cross their land, Gross explained,

When you have land, and you have land in your family for 100 years or more, like a lot of these farmers do, it’s almost spiritual. I mean, you take care of that land, you care about it, you’ve cared for it, previous generations have cared for it. And to have someone come in and dig a big trench, you know, 50 feet wide, and then have that pipeline go underneath it, and potentially disrupt your drainage district you spent hundreds of thousands of dollars trying to develop, it’s highly disruptive. I got, I’ve got a gas pipeline under my farm, and there’s still a big indentation there, and it still doesn’t yield as well, and you never could build on top of it, if you wanted to build something on it. So it impacts the land forever. So it’s not just the money. […] But for most of these farmers, at least that we’re working with, it’s not really a money issue. I mean, it if was, it’d be over with. This is an issue about whether or not they ought to have the right to protect the land that’s been in their family for 100 years or more.

While the legal challenge to the Iowa Utilities Board’s eminent domain authority may be the most promising angle for stopping the Bakken pipeline from being built, activists still hope to block federal approval. The Army Corps of Engineers has not yet issued a permit that Dakota Access must receive before beginning construction. (Other conditions the Iowa Utilities Board has placed on its permit are listed in the board’s April 8 press release, enclosed at the end of this post.) The Corps has scheduled three public meetings later this month to address concerns raised by Native American tribes, who say the pipeline would threaten their water supply as well as sensitive cultural sites. For more details, see this post at the Last Real Indians website.

For now, the Corps is set to consider the environmental impact of Bakken segments that would cross tribal lands. However, former State Representative Ed Fallon and other prominent pipeline opponents have urged President Barack Obama to require the Corps to issue a “full Environmental Impact Statement, that is comprehensive to include climate change and cultural resources,” for “the entire 1134-mile [Bakken] pipeline route.” I enclose below the full text of their letter to the president. Members of the public can echo that call by submitting comments to the Army Corps of Engineers.

Any relevant comments are welcome in this thread.

Wednesday, April 13, 2016

Dear President Obama,

Your rejection of the Keystone Pipeline was truly historic, and we again commend you for that bold act of foresight and leadership. Your decision sent a strong statement about the importance of protecting land, water and property rights. It also conveyed the message that climate change is a clear and present danger demanding America’s full commitment to ending our reliance on fossil fuels as quickly as possible. Again, we thank you.

With that frame of reference, we ask you in the strongest possible terms to exert the same clarion leadership with regards to the proposed Bakken Pipeline. Over the past twenty months farmers, ranchers, landowners, tribal leaders, property-rights advocates, environmentalists, attorneys, local elected officials and climate activists in Iowa, North Dakota, South Dakota and Illinois have done everything possible to stop Dakota Access from building the pipeline.

In Iowa on March 10, despite overwhelming public opposition to the use of eminent domain for a private company (74% in a poll last year), and despite eroding public support for the pipeline itself (support dropped from 57% in 2015 to 47% in a recent poll), the Iowa Utilities Board (IUB) issued Dakota Access a permit to build the pipeline, granting it the authority to use eminent domain. But that permit came with six conditions that Dakota Access had to meet before it could begin construction.

On April 9, the IUB determined that those conditions had been met, but made it clear that Dakota Access could not begin construction until the Army Corps of Engineers completes work on “issues that include endangered species, environmental issues, cultural resources and historical preservation.” [Bakken pipeline set to get a green light, Des Moines Register, April 9, 2016]

Two critical items are missing from the Corps’ intended course of action:

(1) Failure to properly consult with the Standing Rock Sioux Tribe on the pipeline’s impacts;

(2) A comprehensive Environmental Impact Statement (EIS) that includes the pipeline’s impact on climate change.

Regarding the failure to properly consult, as mandated by section 106 of the National Historic Preservation Act (NHPA), revised regulations 36 CFR Part 800, the Corps is mandated to initiate consultation with tribes whose historic properties may be affected by the pipeline route. This includes consulting and coordinating with the aforementioned tribes on the identification of historic and tribal properties that may be adversely affected by pipeline construction and route. This entire process has not occurred properly.

Regarding the Environmental Impact Statement, letters to the Corps from the Environmental Protection Agency on March 11, Department of Interior on March 29, and the Advisory Council on Historic Preservation on March 15, all make it clear that the Corps’ efforts have fallen short.

Specifically, the Department of Interior’s letter to the Corps requests an “EIS to fully evaluate the potential impacts of the proposed Dakota Access Pipeline on the Standing Rock Sioux Reservation.” We concur.

A full Environmental Impact Statement, that is comprehensive to include climate change and cultural resources, is warranted for the entire 1134-mile pipeline route.

We respectfully request that you and your Administration make clear to the Corps that nothing less than a full EIS is demanded and expected.

Again, thank you for your strong leadership on renewable energy, climate change and a range of pressing environmental concerns. We are confident that your voice in this matter will further define your legacy as a President who acted with great foresight not just on the Keystone XL Pipeline but on the Bakken Pipeline as well.

Sincerely,

Ed Fallon, Director, Bold Iowa
Jane Kleeb, Director, Bold Nebraska & Bold Alliance
Dallas Goldtooth, Coordinator, Indigenous Environmental Network
Frank James, Director, Dakota Rural Action

April 8 press release from the Iowa Utilities Board:

Iowa Utilities Board issues pipeline permit
Board finds Dakota Access in compliance with its March 10 order

(Des Moines) – The Iowa Utilities Board has found that Dakota Access has substantially complied with the requirements of the Board’s March 10, 2016, order and has issued a hazardous liquid pipeline permit to Dakota Access, LLC, in Docket No. HLP-2014-0001. With its decision today the Board also issued an “ORDER ACCEPTING COMPLIANCE FILINGS AND ISSUING PERMIT.”

However, Dakota Access has made certain commitments that must be completed before construction can commence. Consistent with the company’s own commitments, construction may not commence until certain documents are filed with the Board. Dakota Access has committed that it will file with the Board permits and approval documents from the U.S. Army Corps of Engineers and Iowa Department of Natural Resources prior to commencing construction. The company has also committed to file final versions of the Storm Water Pollution Prevention Plan and Unanticipated Discovery Plan prior to commencing construction.

The Board ruled that Dakota Access may continue to engage in environmental staking and clearing trees and shrubbery with hand-held tools, but only on parcels where all of the following conditions are true: (a) Dakota Access has a voluntary easement; (b) Dakota Access has received permission from the landowner to engage in these activities; and (c) Dakota Access has given the county inspector for that county and the landowner reasonable advance notice of the timing and location of the activities.

In today’s order, the Board reviewed the compliance filings and the comments filed by the parties that were required in the Board’s March 10, 2016, order. As described in that order, the compliance filings are required in order to support and sustain the Board’s finding that the proposed pipeline will promote the public convenience and necessity, as required by Iowa Code § 479B.9. The compliance filings provided by the parties included, but were not limited to:
• A revised Agricultural Impact Mitigation Plan (AIMP);
• Proof of general liability insurance in the amount of at least $25 million;
• Unconditional and irrevocable parent company guarantees of Dakota Access for
remediation of damages from a leak or spill;
• A timeline showing the construction notices that will be given and describing the
information to be included with the notices;
• Modified condemnation easements; and
• A statement accepting the terms and conditions of the Board’s March 10 order.
(More)
With today’s decision, the Board ordered:
• Pursuant to Iowa Code chapter 479B, the permit for a hazardous liquid pipeline
requested by Dakota Access is issued.
• Pursuant to Iowa Code § 479B.13, Dakota Access is vested with the right of eminent domain to the extent necessary and as prescribed and approved by the Board, as shown on the revised Exhibit H documents filed in the record of this case.
• Within seven days of the date of today’s Board order, Dakota Access must file for the record:
a. A final revised AIMP incorporating the ministerial changes described in the order;
b. A final description of the notice timeline incorporating the ministerial change
described in the order; and
c. A final set of condemnation easement descriptions incorporating the ministerial
change described in the order.
d. A revised statement of easement rights for parcel H-LE-28 with all vegetation
trimming rights removed (except in the case of an emergency).
e. A list of the county inspector or inspectors for each county, with contact
information.
• Those landowners for whose property that revised Exhibit H documents were filed on April 5, 2016, may file comments on those documents within seven days of the date of today’s Board order.
• Dakota Access must file its permit, approvals, or other authorization from the U.S. Army Corps of Engineers as it agreed to do in its Reply Brief, filed February 2, 2016.
• Dakota Access may continue to engage in environmental staking and clearing trees and shrubbery with hand-held tools, but only on parcels where certain conditions are met.
• Within 180 days after completion of the construction of the new pipeline, Dakota Access must file maps that accurately show the location of the pipeline as constructed. The map will be part of the record in this case and will represent the final route as authorized by the permit.
• The Board retains subject matter jurisdiction of this docket for purposes of receiving and acting upon such additional filings as may be appropriate.
Due to the potential for the Board’s involvement in rehearing and/or judicial review, the Board Members will not have any additional comments in relation to today’s order.
Today’s Board order is available on the Board’s web site at, https://iub.iowa.gov. All documents in this case are found in the Board’s Electronic Filing System at https://efs.iowa.gov/efs/.

You need to signin or signup to post a comment.