Landowners claim early court victory in pipeline fight

Source: By Jared Strong, Iowa Capital Dispatch • Posted: Wednesday, October 12, 2022

A Woodbury County landowner was successful in fending off — at least for now — a pipeline company’s attempt to get access to her farm for a land survey. She said she hopes a judge’s recent decision is the first of many victories in a longer-term battle to prevent the use of eminent domain to build the carbon dioxide pipeline.

“I am elated, just absolutely elated,” said Vicki Hulse, who with her husband, Bill, owns a 151-acre farm, much of which is enrolled in a federal conservation program.

The Hulses were among four groups of landowners sued by Navigator CO2 Ventures in August for preventing the company from surveying their land to help determine the path and depth of its proposed pipeline. It would bisect the state from northwest to southeast with about 800 miles of pipe and transport captured carbon dioxide from ethanol plants.

State law allows the surveys after pipeline companies hold public meetings and give written notice to landowners. But several of the landowners are arguing that the law is unconstitutional because it violates their property rights.

Navigator is seeking injunctions to force the surveys — with the aid of law-enforcement officers, if necessary. It has attempted to expedite the process by asking for temporary injunctions, which would allow them to conduct the surveys before the lawsuits conclude. The company claims further delays will jeopardize the project.

“There may be some measure of economic damage, although (Navigator) presents no quantitative or qualitative evidence in this regard,” wrote District Judge Roger Sailer in his rejection of a temporary injunction on Friday. “Will that damage be irreparable? That is questionable at best.”

He said a temporary injunction is “an extraordinary remedy” that is inappropriate for the current situation because it would, in effect, leave no reason for the litigation to continue. The survey would be conducted.

“Once it occurred, there could be no undoing it,” Sailer wrote.

Andy Bates, a spokesperson for Navigator, declined to comment on the ruling and did not say whether the company will appeal the decision.

The company has four suits pending in three counties. Two of the other proceedings — in Butler and Clay counties — have pending requests for temporary injunctions with court hearings set for Wednesday, according to court records.

Vicki Hulse said she hopes that the judges in the other cases will use Sailer’s rationale and deny those requests, too. One of the cases is set for trial in April 2023.

Navigator has argued that it needs immediate court orders for the survey work before the ground freezes, otherwise it might have to delay the work to spring. The company says the law is clear: “A pipeline company may enter upon private land for the purpose of surveying and examining the land to determine direction or depth of a pipeline by giving ten days’ written notice.”

It continues: “The entry for land surveys … shall not be deemed a trespass and may be aided by injunction.”

Sailer said the word “may” indicates that the injunctions are not automatic and that judges have discretion over whether to issue them. He did not weigh the constitutionality claims raised by the Hulses’ attorney for his Friday ruling.

Vicki Hulse said their small farm has been in the family for nearly a century, and Bill Hulse grew corn and soybeans and raised cows. He stopped farming about six years ago because of Parkinson’s disease, which stole his strength.

Bill Hulse now also suffers from dementia and lives at the Iowa Veterans Home in Marshalltown, Vicki Hulse said. His Parkinson’s is a result of contact with Agent Orange during his military service in the Vietnam War, she said.

Most of the Hulses’ farm is enrolled in the federal Conservation Reserve Program and hosts a variety of wildflowers to boost bee and other pollinator populations. Those who disturb their CRP ground can be forced to repay all of the payments they have received for the program.

That potential penalty is among the arguments Vicki Hulse will make as she attempts to block the pipeline company’s plans. She said the use of eminent domain to complete the project is wrong.

“This is just the first step to preventing that,” she said of the judge’s Friday ruling. “There’s a long ways to go.”

Another pipeline company, Summit Carbon Solutions, has also sued three sets of landowners over their alleged refusal to allow the surveys for its project. A court hearing for a temporary injunction in one of the cases is set for Oct. 24.

Hulse said she has not told her husband — because of his declining health — about the litigation or that they might be forced to give Navigator an easement to build the pipeline through their farm. She said he would have been a strong voice of opposition.

“He’d probably be more vocal than I am, rallying and doing all kinds of stuff,” Hulse said.

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