Government

Attorneys dispute merits on controversial Iowa pipeline project

Supreme Court to decide Dakota Access outcome

FILE PHOTO - A vehicle drives next to a series of pipes at a Dakota Access Construction site near the town of Cannon Ball, North Dakota, U.S., on October 30, 2016. REUTERS/Josh Morgan/File Photo
FILE PHOTO - A vehicle drives next to a series of pipes at a Dakota Access Construction site near the town of Cannon Ball, North Dakota, U.S., on October 30, 2016. REUTERS/Josh Morgan/File Photo

DES MOINES — Iowa landowners’ constitutional rights were violated when a Texas company used state-approved authority to seize their property to build an underground oil pipeline that had no public use because the interstate project did not service Iowans directly, a lawyer argued Wednesday.

Bill Hanigan, a Des Moines lawyer representing landowners in six counties, asked the Iowa Supreme Court to reverse a district court decision by ruling the state abused its eminent domain “police power” in allowing invalid land takings. Because of that, he asked the seven justices to view the pipeline and oil passing through it as a continual trespass necessitating a remedy for the aggrieved landowners.

However, attorneys for the state and Dakota Access said the project was properly granted a permit and use of eminent domain condemnation proceedings because it met the statutory provisions and regulatory authority delegated to the Iowa Utilities Board to build the 1,172-mile pipeline through 18 Iowa counties.

Bret Dublinske, a Des Moines lawyer representing Texas-based Dakota Access, told the justices the company as a common carrier complied with IUB requirements in cases where voluntary easements could not be negotiated. Because of that, he argued that claims — brought by landowners and the Sierra Club’s Iowa chapter opposing the pipeline project — were without merit and the lower-court decision should stand.

“For the last 15 months,” Dublinske said during Wednesday’s oral arguments, “the Dakota Access pipeline has been in the ground, has been completed and has been operating in commercial service providing product to refiners and processors who rely on it.”

He said the project was approved by numerous state regulatory agencies and federal permitting authorities. The Iowa case, he added, was largely a bilateral dispute between the company and a few Iowa landowners who delayed their legal challenge until “the bulldozers were at their property lines and millions of dollars were invested.”

“The Dakota Access pipeline is now an established fact, and this case is largely if not entirely a moot one,” Dublinske said.

He said the project followed a “straightforward road map” the Iowa Legislature established for interstate crude oil pipelines.

However, Justice Brent Appel noted there was a difference between the statutory and the constitutional questions being raised by the dispute, saying, “It seems to me there’s a case that public use is narrower than public necessity and convenience and that it does require some kind of direct impact within the state of Iowa.”

At another point in Wednesday’s hearing, Chief Justice Mark Cady noted the case “presents a question of broad public importance, and the public needs a decision here,” not necessarily just for Dakota Access.

In the lower-court decision, District Court Judge Jeffrey Farrell ruled against claims from the landowners that they had not been afforded due process and that state regulators erred in granting a private company the authority to condemn land for a line that does not directly serve Iowans. The judge noted that farmers along the route still will have the use of their land even if the project disrupted their operations.

But Hanigan said Iowa’s Constitution does not provide for a partial taking in situations involving out-of-state companies not recognized by state law as common carriers — a definition Dublinske disputed.

“The question in this case is whether a private crude oil pipeline which provides no direct service to Iowans whatsoever and provides only incidental benefits is a public use under this state’s constitution,” Hanigan said in discussing what he called a precedent-setting case being closely watched by Iowa industry.

“This state has no oil wells, it has no oil refineries,” he said. “This pipeline has no on ramps, it has no off ramps in this state and as it crosses this state providing no service. That is the test. Iowans have no direct use.”

Cecil Wright II, an attorney for the Iowa Utilities Board, said the three-member panel had substantial evidence that the pipeline met the criteria of providing a service to oil-dependent Iowans as a public convenience and necessity that is safer than rail shipments.

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However, Sierra Club attorney Wally Taylor of Cedar Rapids countered that oil shipped by pipe or rail is equally dangerous. He argued that IUB officials ignored relevant evidence for a project transporting oil for a private business from the Bakken oil fields in North Dakota to an Illinois shipping terminal with no direct benefits to Iowans.

l Comments: (515) 243-7220; rod.boshart@thegazette.com

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