Owners of two farms in Cherokee County in northwest Iowa filed lawsuits on May 20 to try to block a Texas company from seizing their land for the Dakota Access oil pipeline. The lawsuit could have far-reaching implications. There are 1,295 properties along the 346-mile route for the proposed pipeline to cross Iowa, and voluntary easements haven’t been obtained on about 168 of the Iowa land parcels.
Construction of the pipeline began last week in North Dakota, South Dakota and Illinois. However, the Iowa Utilities Board hasn’t authorized construction to start yet in Iowa because the pipeline company hasn’t obtained federal permits from the U.S. Army Corps of Engineers. Dakota Access LLC, a part of Dallas-based Energy Transfer Partners, has filed applications to use eminent domain to get access to the Cherokee County farmland owned by Marvin and Bonnie Zoch and Marian and Verdell Johnson. The two families have each filed a separate lawsuit.
Asking court to suspend eminent domain proceedings
Eminent domain is the power of the government to allow the taking of private property and convert it to public use in return for fair-market compensation to the landowner.
The two lawsuits in Cherokee County are asking the court to suspend the condemnation proceedings of eminent domain on the Zoch and Johnson properties. Bill Hanigan, a lawyer with the Davis Brown law firm in Des Moines, is representing the two farmland owners. He says his clients are asking the court to suspend the condemnation proceedings on their properties until the court can decide whether Dakota Access is entitled to use eminent domain to access the landowners’ property.
Does law prohibit use of eminent domain in this case?
The suit contends that state and federal law prohibits the taking of the farmers’ property in this case because Dakota Access is not a public utility. “It is a private company and therefore should not have the authority to forcibly access Iowa landowners’ property across the state to build this pipeline,” says Hanigan.
A separate lawsuit was filed recently in Polk County District Court in central Iowa by landowners who say the Iowa Utilities Board made a mistake in granting use of eminent domain. The Polk County lawsuit also contends that since Dakota Access is a private company and not a public utility, it should not be able to use power of eminent domain to secure land for the pipeline.
Landowners notified of county compensation meetings
Hanigan says a Cherokee County compensation committee is scheduled to meet June 13 to begin valuing the farmland for seizure by Dakota Access. “Landowners have begun receiving notices of the county compensation meetings,” he says. “Unless suspended, the meetings will result in Dakota Access taking possession of the farmland. We are asking Iowa’s courts to suspend these actions until after a full hearing on the merits of each landowner’s case.
“We expect additional lawsuits will be filed in additional counties in the coming weeks,” he says.
The 30-inch pipeline would transport up to 570,000 barrels of crude oil each day from North Dakota’s Bakken oil fields to a distribution point at Patoka in southern Illinois. Dakota Access says the project would employ 2,000 to 4,000 workers in Iowa. The pipeline would stretch 1,150 miles through North Dakota, South Dakota, Iowa and Illinois.
Pipeline firm wants to start construction immediately
Dakota Access has asked the Iowa Utilities Board for permission to immediately begin construction of the pipeline in Iowa at its own risk in areas along the Iowa path of the pipeline in areas that aren’t under the jurisdiction of the Army Corps of Engineers. The three-member IUB is studying the request and hasn’t yet made a decision.
An attorney for the IUB says Dakota Access had previously promised construction wouldn’t begin on the Iowa portion of the pipeline until the company had secured all the necessary state and federal permits. But the pipeline company now argues that additional regulatory delays will push the work on the project into 2017, which would interfere with planting next spring by farmers in Iowa.
Army Corps of Engineers hasn’t yet issued permits
The Army Corps of Engineers has not yet issued permits for the construction of the pipeline over the Missouri River and the Mississippi River. Last week, the Corps said its permitting process could take at least another two months.
Dakota Access indicates it has voluntary easements for up to 88% of the 1,259 Iowa parcels held by 910 landowners along the 346 mile route through 18 counties in Iowa.
Discovery of Native American site is being studied
Another question mark was added to the future of the proposed pipeline in recent weeks. Discovery of an archaeological site that may have cultural significance to Native Americans could further delay construction of the $3.8 billion Bakken crude oil pipeline if government officials require the route to be moved.
Iowa State Archaeologist John Doershuk says his office has received information indicating a possible Native American site in northwest Iowa that, if confirmed, could result in relocation of the proposed pipeline. He says details on this should start falling into place soon, as his office “studies this situation and confirms the site characteristics and ownership/jurisdiction relative to the planned pipeline construction activities.”