Eminent domain sought for one-third of Iowa land on Bakken pipeline

FREMONT - Bill Alexander gets emotional walking out to the farm fields where the proposed 1,134-mile, 30-inch-in-diameter Bakken crude oil pipeline would run down the middle of the property.

Alexander fears oil spills, long-term damage to nutrient-rich soil and turning his back on the livelihood that's supported four generations of his wife Pam's family, future generations and their retirement.

'People say the pipeline will create jobs,” said Pam Alexander. 'This land has been giving people jobs already, but that doesn't seem to matter.”

The Alexanders said they rejected easement bids that scaled from $5,900 an acre to $16,000. They won't negotiate. They aren't selling.

But they might not have a choice.

Resistance has been vocal to the pipeline that would cross 343 miles through 18 Iowa counties - much of it fertile farm ground - but official filings suggest most landowners already are on board.

On Thursday, protesters presented 1,000 new letters to state regulators from landowners, environmentalists, personal property activists and others. Earlier in the week, the Sierra Club filed critical testimony from climate change experts at Iowa State University, the State Archaeologist and water and land scholars.

Letters of opposition outnumber support four-to-one. And supporters, such as trade unions and business groups, are questioned for being from out of state or having a financial gain in the estimated $3.78 billion project, including $1.1 billion in Iowa.

Two-thirds of landowners signed

Despite the outcry, between 63 and 69 percent of landowners have signed easements - an agreement to cross their land - with pipeline developer Dakota Access, the subsidiary of Texas-based Energy Transfer Partners, according to information from the company and the Iowa Utilities Board. The board must decide whether the hazardous liquid pipeline will promote public convenience and if it is a necessity.

The pipeline would pump up to 570,000 barrels of oil per day from the Bakken and Three Forks region of North Dakota through South Dakota and Iowa to a terminal in Patoka, Ill. Dakota Access said it will bring at least 4,000 construction jobs to Iowa, and $55 million a year in property tax revenue, plus additional sales and income taxes.

Dakota Access needs 50-foot-wide permanent easements and a temporary construction easement of up to 150 feet for the pipeline. The pipe would be buried at least three feet deep, and at least four feet deep for agricultural land.

The eased land would be returned to farmers but could be less productive, and would have limited future use, such as for development, landowners such as the Alexanders said.

Dakota Access is asking the Utilities Board to allow eminent domain to take, at market value, up to 475 parcels from resistant landowners, which is about 37 percent of the needed 1,295 Iowa parcels, according to the board.

A Dakota Access spokeswoman said additional agreements are being signed daily, and the company still needs to sign 31 percent more of the Iowa land it requires to reach its goal.

Public hearings to consider eminent domain and the pipeline as a whole are scheduled to begin Nov. 12 for public comment and Nov. 16 for evidence. The board intends to schedule specific parts of the hearing by county, so affected landowners don't have to attend the entire hearing, board spokesman Donald Tormey said.

‘Done Deal'

Some believe the pipeline either is a foregone conclusion, despite the lack of a ruling, or Dakota Access is trying to create that impression.

Stacks of pipes - enough for hundreds of miles of pipeline - are stockpiled east of Newton in a parcel registered to Jim LaPlant, chief executive of the Central Iowa Water Association.

LaPlant did not return a message seeking comment for this story.

Dakota Access said it intends to buy the pipe from the procurement company that brought it in. It also has announced awarded construction contracts, including to Michels Pipeline, which has a field office in Cedar Rapids, and commitments exceeding $200 million to Caterpillar, John Deere and Vermeer for heavy construction and related equipment.

'Dakota Access wants to create an impression this is a done deal,” said State Rep. Dan Kelley, D-Newton. 'It is easier for Dakota Access to negotiate those contracts with the public impression this is a done deal.”

'We respect the IUB's process and look forward to the public hearings that have been set for November, which will provide us another opportunity to present our plans to ensure the safe construction and operation of our pipeline,” Dakota Access spokeswoman Vicki Granado said,

The company intends to begin construction in first quarter 2016, with the pipe to be operational by the end of the year.

Board won't be swayed

The Utilities Board said Dakota Access is taking a gamble.

'The board has not yet heard the evidence or made a decision on the permit application, so this is not a 'done deal,” board spokesman Tormey said. 'The company has apparently made a business decision to purchase and stockpile the pipe, but that act will not affect the board's decision in any way, and Dakota Access does so at their own risk.”

The board hopes to rule on eminent domain and the permit request in December or January. County compensation commissions would handle eminent-domain proceedings, Tormey said.

The Andersons and other landowners said land agents negotiating for their easements have tried to perpetuate the notion the project is a foregone conclusion.

'They told us if we didn't sell, it would be taken by eminent domain,” said Dick Lamb, who owns family farmland in Boone County but lives in Iowa City. 'They are treating this as a presumption that they have the right to take our land and we have to defend why we want to keep it.”

Lamb is part of a lawsuit filed in Cherokee contesting the Utilities Board's authority to grant eminent domain powers to a private developer. A decision is expected later this month.

Additional regulatory approvals

Even if the Utilities Board rules in favor of Dakota Access, the company has several other hurdles.

Rock Island, Ill., St. Louis and Omaha districts of the Army Corps of Engineers are being asked to permit the pipeline to pass under waterways, in compliance with the Clean Water Act and the National Environmental Policy Act. Seventeen crossing initially were identified for review, but as more detailed information has been developed, approximately 100 crossings within the Rock Island district alone were specified as needing review by the Corps, said Donna Jones, regulatory section chief at the Rock Island district.

The Corps requested Dakota Access provide additional information more than a year ago about endangered species and cultural resources, Jones said. The two parties keep regular contact, and information is coming in, but the agency is still waiting for the rest, she said. The Corps will have 60 days to review and finalize a decision once the submission is complete, she noted.

Most of the 1,500 to 2,000 permit requests per year are granted, although this is much larger in scope than most, she said.

'Given their urgency to get the project started, yes, it is unusual to not get their information,” Jones said. 'But there is a lot of work to get done in order to develop the information.”

The pipeline path is proposed to pass through three miles of state-owned land in Story County belonging to Iowa State University, and another short section in Buena Vista County.

The Story County land is used for research, demonstration and educational purposes and managed by the ISU Research and Demonstration Farms system and Allee Memorial Demonstration Farm in Buena Vista, according to Warren Madden, ISU vice president for business and finance.

'ISU is awaiting Iowa Utilities Board action and has no official position on the proposed project,” he said in a statement, noting any action would be subject to approval by the Iowa Board of Regents and review by the Iowa Attorney General's Office.

Josh Lehman, a spokesman for the Regents, said the board hasn't received any official information and will wait to make any judgment.

Iowa State campus groups have urged the university to block the pipeline.

Steve Gent, Iowa Department of Transportation director of traffic and safety, said each affected location under Iowa DOT jurisdiction has been reviewed and found acceptable. Once Dakota Access have approval from the IUB, the Iowa DOT will approve the utility crossing permits, so pipeline installation can occur.

There are 34 crossing DOT needs to permit. Any traffic disruptions would be minimal because the DOT would require 'directional borings” under the roadway, which won't affect pavement.

The Iowa Department of Natural Resources would need to grant a construction permit for 1,500 feet in the Big Sioux Wildlife Area, 100 feet for Big Sioux River, 410 feet to go under the Des Moines River in Boone County, and 2,490 feet to build under the Mississippi River, Iowa DNR spokesman Kevin Baskins said.

The Iowa DNR also would need a permit from the U.S. Fish and Wildlife, which the Iowa DNR is seeking, Baskins said. Dakota Access may be required to pay mitigation costs if trees need to be removed, he said.

'We haven't issued anything yet,” he said.

Tormey of the Utility Board said eminent domain can't be used on public land.