We’ve been keeping you informed about a Texas company’s proposal to build a crude oil pipeline across Iowa to transport oil from North Dakota to Illinois. Dakota Access has formerly requested a hazardous liquid pipeline permit from the Iowa Utilities Board and has been seeking to acquire voluntary easements from landowners along the pipeline’s proposed route.
The pipeline has met firm opposition from many landowners. Yesterday saw a new development in this saga. Three landowners filed a petition in the Iowa District Court for Cherokee County, asking the court to declare that the Iowa Utilities Board does not have the authority under Iowa law to grant Dakota Access the right to condemn agricultural land.
To obtain the permit, Dakota Access would need to prove that the proposed line would “promote the public convenience and necessity.”[i] Once proven, the company would typically be granted the right to eminent domain “to the extent necessary.”[ii] The petition filed against the Iowa Utlities Board yesterday argues that the Dakota Access pipeline would not qualify as a utility and that Iowa Code §6A.21 deprives the Iowa Utilities Board of the authority to grant Dakota Access eminent domain rights over agricultural land.
The petitioners assert that the answer to this question is crucial as they seek to negotiate with agents from Dakota Access. They state that the agents have led them to believe that if they do not immediately consent to an easement, the Iowa Utilities Board will permit the private developer to utilize eminent domain to condemn the petitioner’s agricultural land. In other words, they assert that Dakota Access agents have stated that eminent domain is a foregone conclusion, thereby stripping the landowners of any true bargaining power. The petitioners seek clarity over whether this is true. Do they have an option to resist the agents’ request for a voluntary easement? If eminent domain is off the table, the petitioners allege they would be truly engaged in an arms-length negotiation for a voluntary easement with Dakota Access. The petitioners allege that failure to have clarity on this issue risks immediate and irreparable injury associated with the permanent grant of an easement under the threat of eminent domain.
This is an interesting legal question. Iowa Code §6A.21(1)(c) does state that for the purposes of Iowa condemnation law, "Public use" or "public purpose" or "public improvement" "does not include the authority to condemn agricultural land for private development purposes unless the owner of the agricultural land consents to the condemnation."
Iowa Code §6A.21(2), however, states that "the limitation on the definition of public use, public purpose, or public improvement does not apply to … utilities, persons, companies, or corporations under the jurisdiction of the Iowa utilities board … or to any other utility conferred the right by statute to condemn private property or to otherwise exercise the power of eminent domain.”
It is Iowa Code §479B that allows the Iowa Utilities Board to vest "pipeline companies" with the right to eminent domain “to the extent necessary” after the pipeline company has proven that its project promotes the “public convenience and necessity.”
We will keep you posted as this lawsuit unfolds.
You can read the petition here.
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