April 16, 2016
A group of nine Iowa landowners is suing the Iowa Utilities Board over the state’s decision to authorize the use of eminent domain authority to gain access to land for the proposed Bakken oil pipeline. The pipeline, if built, will run through 18 counties in the state, entering the northwest corner of Iowa and exiting the southeast corner. Eminent domain is the power of the government to take private property and convert it to public use in return for fair-market compensation.
LAWSUIT: A group of Iowa landowners is suing the Iowa Utilities Board. The IUB has given permission to a Texas company to use the power of eminent domain to gain access to land to build a crude oil pipeline 346 miles across Iowa.
The lawsuit was filed April 8 in Polk County District Court against the IUB on behalf of the Northwest Iowa Landowners Association and individual landowners. Attorney Bill Hanigan of the Davis Brown Law Firm in Des Moines is representing the property owners. The suit contends Dakota Access LLC, which plans to run the underground pipeline through 346 miles of Iowa, does not qualify as a utility and should not have the authority to use eminent domain to take private property and convert it into public use in return for fair-market compensation. Dakota Access is a subsidiary of Phillips 66 and a company called Energy Transfer Partners, based in Dallas, Texas.
Suit contends state regulators misinterpreted eminent domain law
A statement issued by the Davis Brown law firm April 11 said the lawsuit contends the Iowa Utilities Board has misinterpreted Iowa law, specifically a 2006 state law designed to protect farmland. The court petition filed by the group of landowners says the IUB’ decision to grant eminent domain would violate the U.S. Constitution’s Fifth Amendment, which requires a public use, public purpose or public improvement to justify the taking of private land. The lawsuit also contends the Iowa Constitution limits the use of eminent domain and protects the landowners’ rights to possess and protect their own property.
The Davis Brown statement also says “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.”
It may be June before pipeline construction gets started
The planned pipeline will transport up to 570,000 barrels of crude oil each day from North Dakota’s Bakken oil fields through South Dakota and Iowa to a distribution hub at Patoka in southern Illinois. Dakota Access announced last week it is preparing to begin construction on the $3.78 billion project in all four states and it has started building tank farms in North Dakota. The pipeline construction project is expected to employ over 2,000 workers in Iowa alone. It is estimated it will take about nine months to complete the entire 1,130 mile project which will run through the four states.
The Iowa Utilities Board voted 3 to 0 on March 10 to approve plans for the pipeline on its 346 mile route through Iowa. Included in that decision, the IUB granted Dakota Access the right to use eminent domain to obtain easements on farmland and other land. The state board then voted April 8 to allow construction on the pipeline to begin in Iowa as soon as the U.S. Army Corps of Engineers approves permits and as soon as Dakota Access files two additional plans. An official with the Corps says it might be June before the construction starts, as federal agencies are reviewing the plans.
About 15% of the Iowa tracts don’t have voluntary easements
Dakota Access officials said last Friday their company has acquired voluntary easements for 85% of the 1,295 tracts of land along the Iowa section of the pipeline route. Thus, the owners of about 195 parcels of land haven’t agreed to grant easements to allow the pipeline on their properties.
The plaintiffs held a news conference in Des Moines April 13. Participants in the news conference included landowners Keith Puntenney, LaVerne Johnson, Cyndy Coppola and others. Lawyer Hanigan of the Davis Brown firm predicted that the 2006 state law designed to protect Iowa farmland in eminent domain proceedings will be a “game changer” as the case progresses through Iowa’s court system. Again, he noted that Dakota Access is a private company, not a utility, and that the underground pipeline would not have any Iowa distribution points.
Will wait until Dakota Access tries to condemn clients’ land
Hanigan told reporters at the news conference 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 are Boone, Buena Vista, Calhoun, Cherokee, Wapello and Webster.
Also, Hanigan said he doesn’t expect to take action to seek injunctions in the six counties until Dakota Access (the pipeline company) tries to condemn his clients’ land under the eminent domain authority granted last month by the Iowa Utilities Board. He doesn’t think that will happen for at least another 40 days.
While court proceedings are pending, Hanigan says he doesn’t object to Dakota Access starting construction on sections of the 346-mile long pipeline in Iowa where landowners have signed voluntary easements to permit construction. “Our lawsuit is not about delay. We are in it to win it, and we think the law supports our position,” he says.
At the news conference, several Iowa landowners whose land is in the path of the proposed pipeline spoke in support of the lawsuit. Boone County farmer LaVerne Johnson, who is part of the group of landowners filing the lawsuit, said the pipeline would cross his land within 50 feet of his home. He considers the pipeline project to be an abuse of the eminent domain law and said he will not sell his farm or allow a voluntary easement at any price.
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