Nancy Dugan lives in Altoona, Iowa and has worked as an online editor for the past 12 years.
Internal Iowa Utilities Board documents provide little insight into the board’s decision to hire Carolina Dispute Settlement Services and North Carolina attorney Frank Laney to conduct mediation sessions on Summit Carbon Solutions’ CO2 pipeline project.
The records the board provided in response to Bleeding Heartland’s request do reveal, however, that the board hoped for a stronger response to mediation from landowners along Summit Carbon’s proposed path.
According to Iowa Utilities Board general counsel Jon Tack, the board did not enter into a written contract with Carolina Dispute Settlement Services or Laney. “The Iowa Utilities Board does not have a contract with Frank Laney or Carolina Dispute Settlement Services and will ensure any payments do not exceed State of Iowa procurement limitations,” Tack told Bleeding Heartland via email on October 30.
The board and Laney have stated in separate email responses that Laney and Carolina Dispute Settlement Services have no affiliation with board chair Erik Helland. Both Helland and Carolina Dispute Settlement Services offer Medicaid mediation. Bleeding Heartland inquired about a possible affiliation after reviewing a pdf file posted to Helland’s business website, formerly known as 49th Summit Solutions and now operating as Blueprint Resolutions, which repeatedly mentioned North Carolina mediation practices.
Additionally, Donald Tormey, the board’s director of communications, told Bleeding Heartland on November 1 that Summit Carbon Solutions had no role in the choice of mediator. To date, the board has not responded to a follow-up question asking if Bruce Rastetter, Justin Kirchhoff, or any other Summit Agricultural Group employee or representative had any input on the selection of a mediator.
UTILITIES BOARD CHAIR INTRODUCES STAFF TO NORTH CAROLINA FIRM
The first email provided in response to Bleeding Heartland’s request for all correspondence between Helland, Laney, and Carolina Dispute Settlement Services begins with a June 19 email from Helland to Diann Seigle, executive director of Carolina Dispute Settlement Services, and board staff:
Diann,
I would like to connect you and Carla, our Queen of Getting Things Done. Jenny can you help coordinate a time Diann, Carla, myself, and Hunter to flesh out what this looks like.
This initial email does not explain how, when, and why the board first contacted Carolina Dispute Settlement Services to arrange for mediations between landowners and Summit.
On June 20, Seigle responded via email:
Can I invite Frank Laney as well? He is my co instructor. He was staff mediator for the 4th circuit court of appeals and is a NCDRC Commissioner here – he has created and implemented most of the state mediation programs operating in NC courts.
Former Iowa Utilities Board staff member Carla Pope responded on June 20:
Yes, feel free to invite Frank. If you send us his email address, we can add him to the meeting invitation.
DISCUSSION TURNS TO IOWA MEDIATORS
The next series of June 22 emails are between Helland and Pope. Helland’s final email in this chain copied Tack, but the other two Iowa Utilities Board members—Sarah Martz and Joshua Byrnes—were not part of the communication.
This exchange abruptly pivots to the hiring of Iowa attorneys and reveals high expectations regarding the response to mediation. Pope wrote to Helland,
Also, that gets us 12 sessions per mediator before we hit the cap, which is one more than we predicted. With 20 mediators, that allows us to perform 240 mediations, which if my estimates are correct, will exceed demand.
In the same email chain, Helland shared a link to the website of Iowa Mediation Service, which offers farm mediation. It is not known why the board did not hire that mediation service; Pope asked whether the organization had “a relationship with the Farm Bureau,” noting that “one of their board members is a Farm Bureau employee.”
One month later, on July 24, Pope emailed all board members and other staff providing a status update. The email read in part:
In addition, Summit is in active negotiations on 78 parcels on the language of the legal terms of the contract, and 55 parcels where the landowner is agreeable to signing an easement and the terms of the easement agreement, but have presented a compensation counteroffer that far exceeds the fair market value.
Similar language appeared in the footnote of a spreadsheet of mediation activity the board provided to Bleeding Heartland. Asked whether that information is a part of the public record, or if Summit Carbon Solutions provided it exclusively to the board, Tormey responded as follows:
Iowa Code section 17A.17(1)(a) prohibits the IUB from communicating with any party as to any issue of law or fact in the contested case. The IUB has fully complied with that prohibition at all times in this case. All decisions have been and will be made based upon evidence in the record of this docket.
In a follow-up July 24 email, Pope wrote to Helland,
My question is, given the small number thus far, would you be interested in hiring Frank Laney to perform virtual mediation with these landowners? I’m not sure if we offer it to the Jorde landowners. Two of the five have said they would give virtual testimony. If they would agree to a mediation agreement, perhaps we could get the virtual testimony down to a couple at the hearing.
Let me know your thoughts.
Documents the board provided to Bleeding Heartland do not include any written reply from Helland.
BYRNES AND MARTZ LOOPED OUT
Pope emailed Laney on July 28, copying Helland and other board staff. Once again, board members Martz and Byrnes were not included in the correspondence. The email reflects the dismal response to the board’s offer of mediation and seeks to arrange for Laney to conduct virtual mediation sessions.
Hi Frank,
I would like to schedule a time to talk with you about an idea. I have 11 landowners who are interested in mediation – 2 of those have overlapping parcels. A few of those landowners live out of state. If possible, we would like to hire you to perform these mediations remotely. I would like to discuss timing, cost, etc., for this idea.
Pope emailed Summit Carbon Solutions attorney Bret Dublinske on August 7:
Good morning Mr. Dublinske,
Please review the list of landowners that have requested mediation. We have procured the services of Frank Laney, an experienced mediator on land matters, to perform virtual mediation for the attached list of landowners. Please provide the name or names and contact information of persons that Mr. Laney can contact from Summit to enter into negotiations through a mediator.
Dublinske wrote back on August 11 to provide the name of Micah Rorie, Summit vice president of land and right of way.
The following week, Laney copied Pope on an email introducing himself, apparently to landowners who requested mediation. In that August 13 message, he wrote, “The Board wants our mediations to be completed by September 15.” Laney also noted, “I am being paid by the Board, so there is no cost to you for our mediation.”
That statement appears to conflict with board chair Helland’s comments about mediation costs during a June 6 status conference, where he floated the idea:
I might also offer and add – and, Jon, please step in if I misstate this – costs for this process are not attributed back to taxpayers. Costs are ultimately attributed back through the Board on an hourly basis to the utility. This will not cost the taxpayers or come from the General Assembly. We, as a Board, do not receive a general appropriation from the General Assembly.
“IT IS CORRECT TO SAY BOTH”
Bleeding Heartland sought comment from the board regarding that potential discrepancy. Tormey responded via email on November 1:
The mediator is being paid by the IUB. Expenses relating to this docket are paid, pursuant to law, by Summit or other parties to the Docket No. HLP-2021-0001, as assessed by the IUB. It is correct to say both that the IUB is paying the mediator and that Summit is paying for the mediation.
Nonetheless, landowners reading Laney’s August 13 communication, as well as the board’s July mailing inaccurately identifying mediation as “free,” may have believed the board was solely responsible for the mediation costs.
Laney emailed Pope on August 14 to clarify,
If it was not clear, I sent it [the August 13 message] blind copy to all the owners that I have emails for. Sent them blind so they do not know who else is mediating.
I will call in a little while to update you on my phone calls on Friday.
It is not known what phone calls Laney was referring to in his August 14 message. What is clear is that Summit Carbon Solutions and Dublinske knew who else was mediating.
As mentioned above, the board provided a spreadsheet of mediation activity in response to Bleeding Heartland’s records request. The latest date in the far-right column (“Mediation Status”) is September 13, though it’s not clear whether the final mediation occurred on that day.
Bleeding Heartland asked Tack to “review this spreadsheet to ensure that mediations or mediation discussions arranged through phone conversations or other verbal means, whether by Summit Carbon, its legal representatives, or the board, are included.” The board’s general counsel replied via email on October 30,
I have provided the spreadsheet as I found it in our records. I am not aware of any other record responsive to this request. I will not alter, update, or create a new record for purposes of this response as I am to provide the record as it exists.
MORE UNANSWERED QUESTIONS ABOUT THE SUMMIT MEDIATIONS
Bleeding Heartland also sought comment from Laney on whether he had ever been involved in mediation with Smithfield Foods or its former subsidiary, Murphy-Brown, LLC, which has since been absorbed into Smithfield. The question is relevant because Smithfield (owned by Chinese firm WH Group) has been involved in mediations related to hog confinement lawsuits in North Carolina in recent years. Through its Brazilian ethanol business, now known as FS, Summit Agricultural Group is also in partnership with Chinese firm Hunan Dakang, a subsidiary of Shanghai Pengxin Group.
Since Summit Agricultural Group and Smithfield have a business partnership, any mediation work Laney or Carolina Dispute Settlement Services might have done on behalf of Smithfield or Murphy-Brown could have represented a conflict of interests. Bleeding Heartland asked, “Please clearly answer whether either Mr. Laney or Carolina Dispute Settlement Services have been involved in mediations or other forms or arbitration or settlement matters with either Smithfield or Murphy Brown.”
Laney replied via email on November 1,
Frank Laney mediated over 4000 cases over a period of 25 years for the US Court of Appeals for the Fourth Circuit. He does not remember every case, but he does not recall mediating any cases with Smithfield or Murphy Brown. The records of his cases are in the public case files of the court. His work for the 4th Circuit was confidential and beyond this, he is not permitted to offer further information. Frank Laney does not provide arbitration or other settlement services other than mediation.
In response to Bleeding Heartland’s question about the spreadsheet of mediation activity, Laney responded,
The mediations that he [Laney] has conducted for the IUB are confidential and he may not comment on the mediations, or any Board records related to them without express permission from the Board for him to do so.
To date, the board has not responded to requests to clarify whether it sought to determine if any conflicts of interest exist between Carolina Dispute Settlement Services and Summit, and also between Laney and Summit.
In an October 30 objection filed with the board, Dr. G. Bryan Bailey, Trustee of the Ray V. Bailey Trust in Milford, documented his experiences after signing up for mediation:
It was with the hope of finding such a resolution, as well as finalizing mutually acceptable compensation figures, that I “signed up” for the mediation option offered by the IUB as part of these proceedings. However, that turned out to be a totally disappointing experience, and for me, it was a complete and utter waste of a lot of valuable time.
Robert and Judith Ritter of Dows filed an October 19 objection with the board, stating the following about their two parcels on the path of the proposed pipeline:
We had returned the postcards from you on 7-21-23, asking for mediation on one parcel and to testify on the other parcel. To date we have not heard anything on any mediation.
The status of the mediation process is unclear. In an October 30 email, Tack indicated that the number of mediations resulting in the signing of an easement is “unknown.” But it appears that Summit and its legal representatives know how many mediations led to an easement being signed.
As previously noted, Tormey explained, “Iowa Code section 17A.17(1)(a) prohibits the IUB from communicating with any party as to any issue of law or fact in the contested case.” One unanswered question is whether the securement of easements in the Summit matter is an issue of law or fact. Dublinske stated the following during the June 6 status conference:
And, again, that’s what serves that 70 percent of voluntary. We don’t expect them to admit it, but we think that also serves, frankly, the 30 percent that are not currently voluntary and we hope to keep getting that number favoring the voluntary more and more all the time.
The Summit evidentiary hearing resumes at 10 a.m. on November 6 at the Cardiff Event Center in Fort Dodge.