Judge says pipeline survey lawsuit should go to trial

By Jared Strong, Iowa Capital Dispatch

A district court judge has denied a request from a carbon dioxide pipeline company to grant it access to private property in Woodbury County without holding a trial, according to court records.

As such, a trial scheduled for Tuesday was set to proceed.

Navigator CO2 Ventures sued William and Vicki Hulse last year to gain access to their rural Moville farmland for a land survey. They were among four sets of landowners that Navigator sued who have barred surveyors from doing the work.

The surveys help determine the path and depth of potential pipelines. Navigator is among three companies that have proposed the projects in Iowa. Its proposal would bisect the state from northwest to southeast — and branch out in certain areas — to carry captured carbon dioxide to Illinois for underground sequestration or other commercial purposes. The company recently submitted a new permit for the work in Illinois that would add a second sequestration site.

Iowa law allows pipeline companies to survey land without the threat of trespassing charges after they hold informational meetings about the projects and give written notice to landowners and tenants.

Each of the lawsuits varies slightly based on the specific circumstances of the notifications. Some of those who are required to be notified declined certified mailings from Navigator and others said they didn’t receive them.

Generally, the cases hinge on whether Navigator followed the procedures dictated by Iowa law and whether that law is constitutional.

The cases are an early battle between landowners who oppose the pipeline projects and the companies that have proposed them. There is also a potential for legal challenges to the companies’ use of eminent domain to get easements from unwilling landowners. An Iowa House bill that would limit eminent domain — and impose other new restrictions for carbon dioxide pipeline companies — advanced from a committee and is eligible for consideration by the full chamber.

Navigator had sought summary judgment for its request for a court injunction against the Hulses — eliminating the need for a trial — because the facts of the case that it says are undisputed do not require a trial to decide.

“The court acknowledges certain evidence in the record that tends to support Navigator’s contention,” wrote District Judge Roger Sailer last week when he denied the company’s request. “However, on summary judgment, the court is not permitted to assess the credibility of any evidence or to weigh any of the evidence in the record. Rather, the court is required to view all of the evidence in the light most favorable to the Hulses and to draw all reasonable inferences in the Hulses’ favor.”

Sailer did not address the constitutionality of the land survey law last week because it was inconsequential to his decision about the summary judgment, but the issue is set to be a key feature of the trial.

Brian Jorde, the Omaha, Nebraska, attorney who is representing the Hulses and other landowners, has argued that the survey law amounts to an unconstitutional taking of land because there is not a sufficient process to compensate landowners for damage that might result from the surveys.

The Hulses “are at the mercy of Navigator to be judge and jury as to if damages occurred,” Jorde said in court records.

Another challenge of the law failed in 2015 in Boone County when a judge decided that damage from survey work by Dakota Access would likely be minimal and that a survey “is not a permanent physical invasion or occupation” of the land.

Part of the Hulses’ land is enrolled in the federal Conservation Reserve Program, which pays landowners to leave farm ground untouched for a decade or more. Landowners who violate those agreements can be forced to repay money they have received from the program.

They further argue that they were not sufficiently notified of the surveys as required by law. William Hulse suffers from dementia and lives at the Iowa Veterans Home in Marshalltown. He has not received a land survey notification there, Jorde wrote in a recent court filing. The person who leases their farmland also wasn’t notified, and Vicki Hulse has rejected certified mailings from Navigator, Jorde has said.

The trial is set to start at 9 a.m. Tuesday. Navigator seeks an injunction to get access to the Hulses’ land with the potential assistance of the county sheriff’s office.

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