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Floyd County Supervisors pass resolution opposing use of eminent domain for private Summit pipeline project

By Bob Steenson,

The Floyd County supervisors passed a resolution Monday morning expressing their resolve that the Iowa Utilities Board should not have the authority to approve the use of eminent domain to benefit private companies – specifically Summit Carbon Solutions and its proposed carbon dioxide transfer pipeline.

The resolution was drafted by Tim Whipple of Ahlers & Cooney law firm in Des Moines, an attorney representing Floyd and six other counties before the Iowa Utilities Board (IUB) regarding the pipeline project proposal.

The pipeline project would have a significant impact in Floyd County, including the originally proposed pipeline that would cross the county from east to west – going through a part of Charles City – as well as later-added lateral lines to capture carbon dioxide from additional ethanol plants.

Rep. Charley Thomson, R-Charles City, who was attending the board meeting remotely, said members of the Iowa Legislature tried to pass legislation during the session this year to speed up the process of determining when a project qualifies as a public use that would make using eminent domain possible, but that legislation did not pass.

“The IUB was never intended to be an eminent domain determining board, in the sense of determining what is public use and what is not,” Thomson said.

While eminent domain was originally justified to allow taking private property for public projects such as roads, bridges and public utilities, a Supreme Court ruling in the “Kelo case” in 2005 broadened that to include privately owned projects that are related to a public purpose or benefit. Property owners whose property is taken must be fairly compensated, as determined by a public board.

Thomson, an attorney, said “it’s entirely possible” that the current Supreme Court could roll back that decision “if and when this issue reaches them.”

Supervisor Chair Mark Kuhn said attorney Whipple had filed a 91-page brief with the IUB as part of the current permit hearing, outlining why the counties he represents do not believe that the Summit project has met the requirement of being “to promote public convenience and necessity.”

The resolution passed Monday, Kuhn said, “is a statement by the Floyd County Board of Supervisors that in fact we object to the use of eminent domain for private economic gain for a private entity, and we urge the Iowa Utilities Board not to grant Summit the use of eminent domain for this project.”

Kuhn said he wanted to be clear that the resolution does not address anyone who has voluntarily decided to sign an easement with Summit for the project.

“This is just for eminent domain,” he said. “We’re opposed to the taking of property. We’d like to remove that authority from the IUB and protect private property owners.”

Thomson said that the persons who have not signed with Summit have in effect already lost the full rights to their property, “because who wants to buy it or or invest in it if it’s in the path of the Summit pipeline. You just don’t know what’s going to happen to it. So it’s a defacto taking. It’s a certain diminution in its value, but yet you have no remedy because it’s in front of the IUB.”

The resolution passed unanimously.

Supervisor Dennis Keifer said, “I think we need to let the Iowa Utilities Board know where we stand regarding private land rights for private landowners and the threat of eminent domain for the use of a privately owned company, which is what this is.”

Thomson urged the Board of Supervisors to remember that objecting to the use of eminent domain isn’t the only way they can impact the pipeline project.

“There are quite a few other areas over which the county Board of Supervisors has authority and under which the supervisors should and have objected to this pipeline. For example, the safety of of the pipeline, the ability of the county Board of Supervisors to set reasonable setback requirements and regulate the pipeline,” he said.

“I just want it on the record that nothing by passing this resolution, you’re not waiving or stepping back from any of those,” Thomson said.

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