Landowners Continue Their Legal Challenge to Dakota Access Pipeline

August 24, 2016 | Kristine A. Tidgren


August 29: The Polk County District Court denied the landowners' request for a stay. Read the order here.

August 26: IUB denied the landowners' request for a stay. The temporary stay, however, will remain in place through Monday to allow the landowners an opportunity to file a new action with the district court.

Just next door to the location of next week’s Farm Progress show (and across Iowa), Dakota Access is working to construct its pipeline to transport crude oil from the Bakken oil fields in North Dakota to a refining station in Illinois. Last March, the Iowa Utilities Board (IUB) granted Dakota Access a hazardous liquid pipeline permit, clearing the way for the company to construct their 346-mile pipeline across Iowa. This order also granted Dakota Access eminent domain authority over parcels in the pipeline’s path for which Dakota Access could not negotiate voluntary easements. Since this time, condemnation hearings have been held throughout the state, with some appeals from damage appraisals already pending in courts. Dakota Access began actual construction of the pipeline in June, and the company still expects to complete the project in late 2016.

While the crews are working, the owners of 15 parcels* of farmland that are subject to condemnation by Dakota Access continue their legal challenge to the project. Last May, the landowners filed an action seeking judicial review of the IUB decision in the Polk County District Court. They argue that Dakota Access is not a “public utility” and that the company should not be granted the authority to use eminent domain to build a private pipeline across Iowa farmland. Specifically, the landowners argue that Iowa Code § 6A.21 prevents the condemnation of “agricultural land” for “private development purposes.” They also argue that Dakota Access’s use of eminent domain against them is unconstitutional. With the judicial review action still pending, but work on the pipeline underway, the landowners on August 9 filed with the Polk County District Court an emergency motion to stay enforcement of the IUB’s March 10, 2016, order. After an August 19 hearing, the trial court denied the motion, ruling that the landowners were first required to exhaust their administrative remedies by requesting their stay from the IUB. The court ruled that the owners could not short-cut proper procedural channels merely because the IUB had already ruled against them by granting Dakota Access the permit.

In response to the court’s order, the landowners on August 22 filed with the IUB an emergency motion to temporarily halt construction of the pipeline across their property. Yesterday, the IUB issued an order scheduling an August 25, 2016, public hearing on the motion and prohibiting Dakota Access from working on the landowner’s property through Monday, August 29.  During this period, the IUB will decide whether to grant a longer stay (halting construction only with respect to the moving landowners) while the judicial review process concludes. In reaching its decision, the IUB will consider the impact of such a stay on Dakota Access, as well as the possibility of irreparable harm to the landowners if the stay is not granted. If the IUB denies the stay, the landowners will likely go back to the district court for a second bite at the apple (this time having exhausted their administrative remedies). The landowners have vowed to continue their legal challenge to Dakota Access' exercise of eminent domain against them to the Iowa Supreme Court if necessary. Such an action could help shape Iowa law regarding the contours of "public convenience and necessity," the legal standard that must be met before eminent domain authority is appropriate.

We’ll keep you posted!

*A recent IUB order says there may be 18 parcels at issue.