Iowa pipeline battle moves back to the courtroom

Appeal expected regardless of outcome

More than 100 protesters marched in wintry conditions Thursday from the Polk County Courthouse through downtown Des Moin
More than 100 protesters marched in wintry conditions Thursday from the Polk County Courthouse through downtown Des Moines streets to nearby Cowles Commons to rally in opposition to an underground oil pipeline project being built to link the Bakken oil fields in North Dakota with a shipping hub in Illinois by passing in a diagonal 346-mile line through 18 Iowa counties. (Rod Boshart, The Gazette)

DES MOINES — Competing attorneys gave a district judge reasons Thursday why he should allow a controversial oil pipeline already buried underground in Iowa to remain in tact, or invalidate the state authority used to take farm easements and give owners option to seek damages or have the pipe removed from their land.

Meanwhile, more than 100 opponents crowded into an overflow courtroom and then marched to a nearby downtown park for a rally in protest of the project, which has been in the national news spotlight.

The Des Moines attorney representing Texas-based Dakota Access, Bret Dublinske, argued claims — brought by landowners and the Sierra Club’s Iowa chapter opposing the pipeline project — were without merit. He said the company had met Iowa Utilities Board requirements for a state permit and authority to use eminent domain for condemnation proceedings in cases in which voluntary easements could not be negotiated.

“The pipeline in Iowa is now 100 percent in the ground,” Dublinske told Polk County District Judge Jeffrey Farrell, rendering further legal issues “moot” based upon previous court rulings, other relevant case law and provisions of the Iowa code and state Constitution that were satisfied during the permitting process.

Iowa Utilities Board legal counsel David Lynch said the three-member panel had substantial evidence that the proposed pipeline met the criteria of providing a service to oil-dependent Iowans as a public convenience and necessity that was safer than rail shipments. He said the court should provide some “finality” to the ongoing dispute.

However, Sierra Club attorney Wally Taylor said board officials ignored relevant evidence refuting the service and public-use aspects of a project that was 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.

Taylor argued the board was wrong in using “a very narrow scope of authority” in evaluating the hazardous liquid pipeline and acted in a “capricious, arbitrary and unreasonable” manner in issuing a permit to Dakota Access and granting eminent-domain authority to secure a diagonal route through 18 Iowa counties.

“We believe the agency was wrong in this case,” said Taylor, and argued the court should “simply not be a rubber stamp” for action that violated Iowans’ property rights.

Bill Hanigan, a Des Moines attorney representing land owners in six counties, said Dakota Access should not have been 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 and recent court rulings in other states.

Judge Farrell noted that farmers along the pipeline route still will have the use of their land even if the project disrupted their operations this year and maybe into next year as well. But Hanigan said Iowa’s constitution does not provide for a partial taking for situations involving out-of-state companies not recognized as common carriers under state law.

Dublinske said the Sierra Club does not have standing as an intervenor in the legal case and Farrell should reject the landowners’ faulty legal arguments. Hanigan, however, predicted the case would end up in the Iowa Supreme Court and maybe the U.S. Supreme Court before the matter is settled.

If the landowners prevail, Hanigan said, the pipeline should be viewed as a trespass, and oil passing through the pipe would be a continual trespass that could result in monetary compensation or removal depending on future rulings by judges in the counties where condemnations were wrongly ordered.

The project by Dakota Access, a subsidiary of Dallas-based Energy Transfer Partners L.P., 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. That includes 346 miles of pipeline in Iowa, crossing the state on a diagonal from northwest to southeast.

No oil has been transported yet because the Army Corps of Engineers has halted the project in North Dakota due to concerns by the Standing Rock Sioux Tribe, which opposes allowing the pipeline to be bored beneath the Missouri River — close to the tribe's source of drinking water.

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