Judge: Iowa’s pipeline land survey access law is unconstitutional

By Jared Strong, Iowa Capital Dispatch
State law that allows hazardous liquid pipeline companies access to private land for surveys is unconstitutional because it doesn’t provide compensation for intangible damages suffered by landowners, a district court judge has ruled.

“The damages resulting from a landowner’s loss of his right to exclusive use of his property are subjective in the same way that pain and suffering damages are as it relates to a victim of a tortious injury,” wrote Judge John Sandy, in his Wednesday ruling.

Because Iowa law does not compensate landowners for the duress they incur when they are forced to allow land surveyors on their properties without consent, it violates their constitutionally protected right to exclude people from their properties, Sandy said.

The ruling is the result of a lawsuit Navigator CO2 Ventures filed against landowner Martin Koenig in Clay County that sought a court-ordered injunction to conduct survey work on his land.

Those surveys will help determine the path and depth of Navigator’s proposed carbon dioxide pipeline, which would span more than 800 miles in Iowa. The pipeline would transport captured carbon dioxide from ethanol plants and other facilities for underground sequestration in Illinois or for other commercial purposes.

The lawsuit is one of four that have been filed by Navigator against landowners who have prevented the company from conducting the surveys. Another carbon dioxide pipeline company, Summit Carbon Solutions, has filed similar suits against several landowners.

Those landowners — represented by the same attorneys as Koenig — have all argued that the survey law is unconstitutional. Wednesday’s court ruling was the first to decide those arguments.

“Our client is thrilled,” attorney Brian Jorde said Wednesday of Koenig.

Iowa law allows the companies to conduct the surveys after holding informational meetings about their projects when they provide 10-day notifications of the surveys by certified mail to the affected landowners.

“The entry for land surveys … shall not be deemed a trespass and may be aided by (court) injunction,” the law says.

The law says companies must compensate landowners for actual damage they cause during the survey work, which satisfies a constitutional requirement that land cannot be taken for certain purposes without appropriate compensation, Navigator has argued.

“We believe the ruling is a deviation from existing precedent,” the company said Wednesday. “Similar survey statutes have been recently reviewed and deemed constitutional by courts in surrounding states.”

Navigator said it will appeal the Wednesday decision.

A Boone County landowner unsuccessfully challenged the Iowa law in 2015 amid land surveys for the Dakota Access oil pipeline.

In that case, another district court judge said: “The activity is not a permanent physical invasion or occupation of (the owner)’s property.”

Jorde has argued the law is deficient in properly compensating landowners because the companies decide the amount of compensation that is necessary for property damage.

In his Wednesday ruling, Sandy went further and said the mere forced entry onto private land deserves compensation, regardless of physical damage.

His rationale relies on a 2021 U.S. Supreme Court ruling about a California regulation that gave labor unions access to agricultural properties to solicit employees. The court decided in a 6-3 opinion that granting such access to the labor organizations amounts to a temporary taking of land.

Sandy noted that past decisions about Iowa survey law happened before that ruling.

He wrote that the law “results in a per se government taking without providing just compensation, in violation of … the Iowa Constitution and the Fifth Amendment of the United States Constitution. The court can find no other reasonable interpretation in which (the law) passes ‘constitutional muster.’”

Sandy also denied Navigator’s request for an injunction.

In a parallel case in Woodbury County involving Navigator and another set of landowners, a judge is poised to rule on the constitutionality of the law. It’s unclear whether Wednesday’s decision will have any effect on that case.

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