Nancy Dugan lives in Altoona, Iowa and has worked as an online editor for the past 12 years.
The Iowa Utilities Board announced on October 4 it was canceling the remainder of its 2023 monthly public board meetings, previously set for October 9, November 7, and December 12. The board’s news release cited a “high volume of docket calls,” as well as “the risk of ex parte communications under Iowa law.” Screenshots of the board’s October and November calendars, captured on the morning of October 17, document the board’s schedule in the coming weeks.
The board may be scrambling, in part, due to vacancies in two attorney positions, one for Utility Attorney 1, posted on October 11, and the other for Utility Attorney 2, posted on October 10. It is not known whether these positions are due to staff attrition or staff expansion. An October 12 email to the board’s general counsel, Jon Tack, inquiring about the vacancies went unanswered.
BOARD WARNS AGAINST “MISINFORMATION”
The board also issued an October 11 Order Addressing Remainder of Hearing, with the following admonition:
Based upon statements from multiple landowners and the failure of most intervenors to attend the hearing, it appears that one or more individuals or organizations were providing inaccurate information about the proceeding requirements to landowners. Such actions are harmful to the interests of landowners and should be reevaluated by those individuals. To the extent that improper or inaccurate advice is being provided by organizations represented by counsel, those attorneys have a duty to correct and prevent such misinformation.
It appears the board is casting blame on unnamed “individuals or organizations” for any information about the proceeding that may have confused landowners, as Jared Strong reported for Iowa Capital Dispatch on October 12.
“How a person or entity seeks to participate in a proceeding before the IUB is a decision the IUB cannot assist the landowner with,” spokesperson Don Tormey told Iowa Capital Dispatch. “The IUB may provide an explanation between the different options of participation, but the decision is entirely the landowner’s.”
MAILING OFFERED LANDOWNERS “FREE, VOLUNTARY MEDIATION”
Strong’s October 12 article linked to an online questionnaire the board reportedly sent in June to landowners along Summit’s proposed pipeline route. Bleeding Heartland has obtained a portion of a physical mailing sent to those landowners, dated July 2023, which contains more extensive information about the mediation process, including the following.
The Iowa Utilities Board is not a party to the negotiation, but is responding to landowners who have communicated with the Board that they find have questions or concerns about Summit’s requests for voluntary easements.
Page from Iowa Utilities Board mailing, dated July 2023
The board provided four ways for landowners to respond to the mailing, one of which was to call the board office. One landowner did just that.
“I FEEL…IT IS BEING FORCED UPON US TO NEGOTIATE”
During the August 24 hearing, tenant farmer Tom Konz, testifying on behalf of an O’Brien County landowner on the path of the proposed pipeline, documented Summit’s heightened interest in negotiations immediately after Konz had arranged to testify at the evidentiary hearing:
So we met with them before that and laid everything out. Got absolutely no response from them at all. That black piece of paper, if you flip it over and you fill it out – I ended up filling it out two days after the deadline. And I had called in after – I think it was around August 4th or 5th and asked I think it was Liz from Iowa Utilities Board if there’s any way that we could be part of this hearing.
And it was absolutely amazing the response we got from Summit after that. I think they’ve been on my yard just about every day since then.
So, to me, that’s wrong. They did not want me here, but it shouldn’t take coming in front of this Board to get a response from them. And we weren’t asking for a lot.
Iowa Utilities Board chair Erik Helland discusses aspects of the proposed pipeline with O’Brien County resident Tom Konz during the August 24 hearing (screenshot from YouTube video uploaded by Bold Nebraska)
Konz also confirmed he had been in renewed negotiations with Summit immediately after requesting to appear at the evidentiary hearing:
I don’t remember exactly how it was, but how it was laid out and the way you see in your picture there with the negotiations we’ve had over the last two weeks since we filed for this to be here, we’ve asked them to flip that. I’d prefer them to put it against the fence line so we don’t have ground on both sides that isn’t in this easement.
Sierra Club attorney Wally Taylor and Konz subsequently engaged in the following exchange:
Q. Would it be your preference not to have the pipeline there at all?
A. I would rather not have it.
Q. Do you feel like you have no choice?
A. I feel after July, when we got all the eminent domain papers a month before this hearing, that it is being forced upon us to negotiate.
Tom Konz answers questions from attorneys during the August 24 hearing (screenshot from YouTube video uploaded by Bold Nebraska)
The first known public document identifying Konz as a witness at the evidentiary hearing was the August 17 Weekly Digest produced by the board. In that document, Konz is scheduled to testify on August 24. It is possible that Konz informed Summit directly of his intent to testify.
WHO IS PRESENT AT MEDIATION?
During the September 12 hearing, Sierra Club’s Taylor asked Micah Rorie, vice president of land and right of way for Summit, who attended the mediations.
Q. And who was – I’ll rephrase that. Without mentioning any names, what – who was involved in that? I mean, you and a landowner, I assume?
Q. And a mediator?
Q. Anybody else?
A. No, no. There’s two parties and a mediator.
Rorie’s answer seems to indicate that some landowners who opt to participate in mediation may not be represented by independent counsel, although this remains an unknown. The board brochure sent to landowners during the summer stated, “Free, voluntary mediation is being offered to you, as a landowner, if you wish to use the service to negotiate a voluntary easement for Summit to access your land.”
The board’s general counsel Tack previously told Bleeding Heartland that North Carolina-based attorney Frank Laney is conducting the mediations. The board has not disclosed how many such negotiations have occurred, or how many have led to voluntary easement agreements between landowners and Summit Carbon Solutions.
The Iowa Utilities Board is governed by statute (sections of the Iowa Code) and administrative rules. The portion of Iowa Administrative Code regarding the board’s ex parte communications reads as follows:
199—7.22(17A,476) Ex parte communication. Ex parte communication is prohibited as provided in Iowa Code section 17A.17. Parties or their representatives shall not communicate directly or indirectly with the board or presiding officer in connection with any issue of fact or law in a contested case except upon notice and an opportunity for all parties to participate. The board or presiding officer shall not communicate directly or indirectly with parties or their representatives in connection with any issue of fact or law in a contested case except upon notice and an opportunity for all parties to participate.
The evidentiary hearing is set to resume in Fort Dodge on November 6 at 10 a.m.
Appendix: Brochure the Iowa Utilities Board mailed to landowners along Summit Carbon Solutions’ proposed CO2 pipeline route.