A security guard passes time with his cellphone as crews and equipment behind him bore under the Mississippi River in Lee County, Iowa.  PHOTO/EMERY STYRON

 

By Emery Styron
news@corridorbusiness.com

“I’m just a little old tater in a great big frying pan,” Lee County landowner Hugh E. Tweedy said of his losing battle to keep Dakota Access LLC from using eminent domain to run its crude oil pipeline through his property. The land is in a trust for his adult children, but he doubts they’ll ever pick up the check for the easement waiting at the sheriff’s office.

Iowa City residents Richard and Cheryl Lamb are no happier with the $160,000 they received for the pipeline’s route across the center of their Boone County farm.

“It’s an enormous gash on the land,” said Mr. Lamb, a retired ACT manager.

Mr. Tweedy and the Lambs are two of 14 plaintiffs in a suit challenging the Iowa Utilities Board’s decision last spring to allow Dakota Access to use the power of eminent domain to secure easements for state’s 342-mile portion of the project. The 1,172-mile pipeline crosses Iowa from its northwest to southeast corner, cutting a similar diagonal path across the Lambs’ farm near Ames.

Oral arguments begin Dec. 15 in the suit filed in Polk County District Court. Whatever the verdict, “it is almost a given,” the case will be appealed to the Iowa Supreme Court, said Des Moines attorney Bill Hanigan, who is representing the plaintiffs. Supreme courts in other states have ruled in favor of landowners in similar cases, but a divergence of opinion among the states could ultimately motivate the U.S. Supreme Court to consider the case, he said.

This suit turns on “the takings clauses” in the U.S. and Iowa constitutions, and a 2006 Iowa law intended to protect farmland. The federal and state constitutions prohibit the government from appropriating private property except for a public purpose and just compensation.

“Our objection is not over compensation, but whether this is a public purpose,” Mr. Hanigan said. “In respect to the 2006 bill, we believe to take farmland for private use, you have to be a utility. Crude oil is not a utilities commodity and consumers or utilities can’t use crude oil.”

In its March 10 decision, the IUB noted that Section 479B of the Iowa Code allows it to grant permits for the construction, operation and maintenance of hazardous liquid pipelines if “the board determines that the proposed services will promote the public convenience and necessity.” The statute also states that a “pipeline company granted a permit shall be vested with the right of eminent domain, to the extent necessary and as prescribed and approved by the board.”

Dakota Access argues that need was verified in the open market by shippers who had signed “take or pay” contracts for 90 percent of the pipeline’s volume. The company also contends the statute defining “pipeline” as “an interstate pipe or pipeline” means the public convenience and necessity standard cannot be interpreted to require that the pipeline must provide service to the public in Iowa.

“The use of eminent domain is an option of last resort for the company,” Vicki Granado, spokesperson for Texas-based Energy Transfer Partners, the project’s owner, told the CBJ. “It is only used in cases where an agreement cannot be negotiated. As a company, we are proud of our efforts which have yielded a track record of negotiating easement agreements with at least 90 percent of the landowners whom we have worked.”

Mr. Hanigan countered that the term “voluntary” as it applies to easements “should be in quotation marks,” as the threat of condemnation induces many landowners to accept company offers.

The Lambs have filed a separate lawsuit challenging the amount they received for the easement.

“It’s sickening, really, to see what they’ve done,” Mr. Lamb said, noting the farm has been in his wife’s family since the 1870s. “We’ve tried everything we could to be good stewards. This is contrary to everything we’ve tried to accomplish.”

He said most of the topsoil was put back in place, but the layers below created by centuries of decaying prairie grass “are all mixed together.” He expects a drop in the land’s productivity for decades.

Mr. Tweedy celebrates the fact that he was able to keep the pipeline work below ground where it crossed the back 40 acres of his property.

“I’ll take a small victory in that it’s line-bored under,” said the former Libertarian candidate for state representative. “It’s not in my DNA to be forced to do anything.”

A few miles east of Mr. Tweedy’s farm, protesters camped for weeks near the site where Dakota Access bored a tunnel for the pipeline beneath the Mississippi River. Mr. Tweedy said the boring machinery ran 24 hours per day. Like the Lambs, he joined protests against the pipeline.

“Initially I wasn’t so much anti-pipeline as I was anti-eminent domain,” he said. “After looking at this, I think it is risky business. The benefit-to-risk ratio just does not add up – a 30-inch pipeline under every major waterway in Iowa at pressure of 1,700 pounds per square inch.”

Ms. Granado said pipeline safety “is our top priority” and that “design, construction and operation of the Dakota Access Pipeline will meet or exceed where possible all state and federal safety standards.” The company’s lines are monitored 24 hours per day, 365 days per year by control centers with the capability to remotely shut lines within minutes, she said.

The pipeline begins in the Bakken oil fields of North Dakota and crosses South Dakota, entering the state in Lyon County in far northwest Iowa. The route terminates at Patoka, Illinois, where it will connect to an existing pipeline carrying crude oil to the Gulf of Mexico.

Construction is “well underway” in Iowa and more than 70 percent complete overall, Ms. Granado said, despite ongoing protests by the Standing Rock Sioux and hundreds of other Native American tribes over alleged desecration of sacred sites and threats to water quality in the Dakotas.