Landowners make case to halt Bakken pipeline

Judge to rule soon on stay while use of eminent domain is contested

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By Rod Boshart, Gazette Des Moines Bureau

DES MOINES — With work on a North Dakota segment of the interstate Bakken oil pipeline already on hold over a lawsuit, opponents in Iowa asked a judge Friday to halt the project here until a dispute is resolved over whether a private company can use government-sanctioned powers to condemn and seize privately owned farmland along the route.

Bill Hanigan, a Des Moines attorney representing owners of 15 parcels in seven counties, asked District Judge Jeffrey Farrell to issue a temporary stay on Dakota Access’ controversial pipeline slated to cut diagonally across 18 counties Iowa until their lawsuit challenging the project can be heard.

The suit argues Dakota Access shouldn’t be allowed to force landowners to sell easements by condemning the land against their will in a way that runs contrary to a 2006 Iowa law.

However, Bret Dublinske, a Des Moines attorney for Dakota Access, argued the landowners’ claims are without merit and the company should be able to proceed under a state permit and eminent domain authority granted by the Iowa Utilities Board.

He also asked the judge to impose a bond of up to $10 million for the landowners to defray losses the company would incur if the Iowa leg is delayed.

The project is a $3.8 billion, 1,168-mile underground pipeline slated to transport up to 570,000 barrels of crude oil daily from North Dakota’s Bakken region to a distribution hub at Patoka, Ill. The project will place 346 miles of pipeline in Iowa, crossing the state on a diagonal from northwest to southeast.

Hanigan argued during Friday’s hearing that state regulators “made a mistake” in granting a permit to an out-of-state company that does not qualify as a utility seeking to build a pipeline that does not constitute a public benefit qualifying for the “state police power” of eminent domain.

“We believe that Dakota Access is not too big to be stayed,” Hanigan told the judge, in countering company claims it stands to lose hundreds of millions of dollars if the project cannot remain on track to be completed by year’s end.

Dublinske countered that Dakota Access meets the standards set out in Iowa law, that the challengers have failed to exhaust administrative remedies and purposefully delayed bringing legal action to create a false emergency under bogus claims that landowners constitutional rights are being violated.

“They have shown no good cause” to halt a project that Dublinske contended is half completed and is “crucially important to Iowa and Iowans” who are “totally dependent” on oil refined outside of the state.

He also told the judge that the landowners in the path are making “an extraordinary stretch” to build a case they face “irreplaceable harm” if the project proceeds.

Utilities board legal counsel David Lynch told the judge the board was staying neutral in the court proceedings because the matter might come back to regulators if the challenge in Polk County District Court proves successful.

He said the process likely would take “at least a couple of weeks” if the judge issues a temporary stay so petitioners can further challenge the board’s action.

Dublinske said time is of the essence since construction crews likely would be ready to begin clearing, grading and doing other work in the contested counties. “You can’t operate a pipeline with 15 holes in it,” he said in arguing Dakota Access would face a “stand down” cost of $1.3 million or “move around” costs of $535,000 at each of the 15 parcels at issue in the lawsuit.

“I’m going to work on getting a decision out on this as quick as I can,” Farrell said at the close of a hearing that attracted more than a dozen pipeline workers wearing orange shirts and a like number of landowners and opponents.

In North Dakota, a segment being constructed near Bismark is on hold at least until Wednesday, the sheriff there has said.

The Standing Rock Sioux Tribe is suing the Army Corps of Engineers for allowing the pipeline to be bored beneath the Missouri River, close to the tribe’s source of drinking water.

Protests there have grown substantially over the past week as about 1,500 people are gathered. Twenty-eight people have been arrested so far.

On Friday, North Dakota Gov. Jack Dalrymple issued an emergency declaration, allowing state agencies responding to the protest to get extra funding.

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The Bismark Tribune contributed to this report.

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