Pipeline survey law enforcement varies by Iowa county

Source: By Jared Strong, Iowa Capital Dispatch • Posted: Tuesday, January 31, 2023

Three Lee County residents say land surveyors for a carbon dioxide pipeline company went onto their properties without giving required notice of the surveys but that law enforcement officers have so far declined to charge the surveyors with trespassing.

Navigator CO2 Ventures is one of three companies that intend to build pipelines to carry captured carbon dioxide from ethanol plants in Iowa for out-of-state sequestration or other commercial uses.

About 58 miles of its proposed pipeline network would be laid in Lee County. The total length in Iowa is about 810 miles, with a primary line bisecting the state from northwest to southeast.

From Lee County, in Iowa’s southeast corner, the pipeline would cross into Illinois.

The projects have prompted significant debate about property rights, primarily centered on whether the private companies should be allowed to use eminent domain to force easements with landowners. But some residents have also tried to prevent the companies from surveying their land.

Those surveys help determine the precise path and depth of the pipe, and Iowa law allows the surveys after companies have held informational meetings about their projects and have given landowners and tenants a 10-day notice of the surveys.

That part of the law is being challenged on two fronts in court: Some landowners have asked judges to decide that the law is unconstitutional. Also, a surveyor is charged with trespassing in northwest Iowa.

A motion to dismiss that charge is pending in district court in Dickinson County. In that case, a tenant and landowners rejected all mailed land-survey notices from Summit Carbon Solutions, and the sheriff’s office charged a surveyor with trespassing in August because a survey crew returned to the property after the tenant had turned another away.

The Lee County residents — who oppose the project — say their situation is different: They received notice of a required informational meeting but heard nothing about the surveys before they saw crews digging on their properties.

“Farmers take a lot of pride in their land, and we don’t feel they should have the right to come on our land and do what they want to do,” said Mark Meierotto, who farms near West Point. “We have never gotten notified about a survey.”

Navigator says notice was mailed to property owners

Andy Bates, a spokesperson for Navigator, said a survey notice was sent by certified mail to Meierotto on Jan. 26, 2022, but that the company has no signed receipt of its delivery.

“Transparency, communication, and respect of landowner rights are core to Navigator’s mission,” Bates wrote in an email. “We have, and continue to, work with landowners to obtain voluntary survey permissions, along with gathering the necessary contact information so landowners can be kept abreast of the work of the survey crews if they so wish.”

Another landowner in the area, Ray Menke, said he provided his phone number to Navigator during one of the informational meetings to help schedule a land survey but wasn’t called and didn’t receive written notice. He said a survey crew went onto his property in spring 2022, and Menke told them to leave. He agreed to let them come back to finish the work about a week later because of the state law that allows the surveys.

“They’re gonna be on there anyway,” Menke reasoned. “I just wanted to be with them.”

Another landowner in the area, Andrew Johnson, has pursued trespassing charges for the surveyors, who he says have gone onto his property at least three times. Johnson said he also has not received written notice of the surveys.

“They just keep coming back, and I’ve told them not to come,” Johnson said. “I’ve called their supervisors. I’ve actually spoken to them. They told me that they’ll stay away, and then two days later, here they are, they’re right back where they were.”

The last such attempt was in November, Johnson said, and members of the sheriff’s office investigated the incident and spoke with the survey crew. He said there are other landowners beyond those who spoke to Iowa Capital Dispatch who have had similar troubles.

Lee County Sheriff Stacy Weber did not respond to requests to comment for this article.

Bates said Johnson and Menke were both mailed notices of surveys via certified mail in January 2022 and that the company has signed receipts indicating they were delivered three days after they were sent.

Prosecutor tells property owner the law creates ‘injustice’

County Attorney Ross Braden declined to comment, but Braden explained his legal dilemma to Johnson in an email in December. He cited Iowa Code that says: “The entry for land surveys shall not be deemed a trespass.”

“I don’t believe the legislators (when this code section was enacted) gave enough consideration to the rights of private property land owners, which, in my personal opinion, is an injustice, but that is what was adopted as the law,” Braden wrote, according to a copy of the email that was provided to Capital Dispatch.

Braden did not rule out a trespassing charge and said he would work to ensure that Johnson is compensated for damage to his land from the digging. The law says the companies must pay for damage caused by the survey work.

“Sheriff Weber and I had a discussion … with the representatives from Navigator, in which Sheriff Weber was very stern with them as to their poor practices of notification and lack of communication with not just yourselves, but other property owners as well,” Braden wrote. “We’ve demanded better communication from their people in the field to notify land owners.”

The Iowa Utilities Board, which governs the pipeline permitting process, has not received any reports or complaints from landowners about a lack of notification for the Navigator surveys, said Don Tormey, an IUB spokesperson.

Surveyor charged in Dickinson County

In northwest Iowa, the Dickinson County Sheriff’s Office filed a trespassing charge because it was unclear whether a landowner and tenant had been properly notified of the survey work.

“If you’ve been asked to leave, you’re supposed to leave, otherwise it’s trespassing,” Dickinson County Sheriff Greg Baloun has said.

Dickinson County Attorney Steven Goodlow, who is prosecuting that charge, has argued that Summit should have obtained a court-ordered injunction to gain access to a property from which its surveyors were barred. Final arguments about whether the case should be dismissed concluded this month, and a judge’s decision is pending.

Iowa law allows the pipeline companies to seek injunctions to get access to land. Court records associated with Summit’s injunction requests in regard to a handful of landowners show that the company sent at least two survey notices to the landowners via certified mail before seeking the injunctions.

“To be 100% clear, there was no trespass involved in this situation,” Summit spokesperson Courtney Ryan said of the Dickinson County incident.

A northwest Iowa lawmaker introduced several bills last week that would change the rules for the pipeline companies. One would prohibit the companies from conducting land surveys without landowner permission. It has been assigned to a subcommittee but has not yet been scheduled for a hearing.

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