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Iowa Supreme Court Sides With Summit

22 Nov 2024

LINCOLN, Neb. (DTN) -- The Iowa Supreme Court on Friday sided with Summit Carbon Solutions in an appeal filed by a Hardin County landowner who has fought the company from gaining access to his property to conduct a survey ahead of the construction of a carbon pipeline.

In May 2023, a district court in Hardin County ruled in Summit's favor saying Iowa law "makes clear" that survey access is a "long-recognized" right of entities to enter private property for pre-condemnation surveys without being held liable for trespass.

Hardin County landowner Kent Kasischke appealed the ruling to the Iowa Supreme Court, arguing that the Iowa law allowing such surveys was unconstitutional under the takings clauses of the Fifth Amendment to the U.S. Constitution and the state constitution.

Summit Carbon Solutions continues to work through permitting and other processes ahead of constructing what would be a 2,000-mile carbon pipeline connected to 57 ethanol plants across North Dakota, South Dakota, Minnesota, Iowa and Nebraska.

"The supreme courts of North Dakota and South Dakota have already reached the same conclusion as to this proposed pipeline," the Iowa Supreme Court said in its ruling that affirmed the district court's decision.

"The record supports the district court's finding that proper notice was given. We further hold that the supercritical carbon dioxide to be transported in the pipeline is a 'hazardous liquid' within the meaning of section 479B.2. The district court therefore correctly ruled that the plaintiff is a pipeline company allowed to obtain temporary access for its surveyors onto private property."

Brian Jorde, an attorney representing Kasischke and other landowners in Iowa, told DTN the legal fight in Iowa is not finished.

"The court determined that when an Iowa landowner purchases property, they do so without the ability to constitutionally prevent unwanted third parties from intruding upon their property for certain purposes," Jorde said in a statement.

"The key question not addressed by the court was what limitations exist as to 'survey' and 'examination.' Because that issue was not explicitly addressed by the court, we will have to go back to the court in another case to have this determined and explore if Summit's interpretation of 'survey' and 'examination' is constitutional or not. This will address the egregious 'deep testing' and trenching and soil boring 'surveys.'"

The South Dakota Supreme Court recently ruled that surveys or examinations of property that included more than minimal soil disturbance were not allowed.

Jorde said his clients are hopeful the Iowa Supreme Court will make a similar determination that "Iowa landowners deserve the same protections" as property owners in South Dakota. Iowa landowners, he said, have no guardrails as to the level of "invasive" activity a pipeline company can conduct.

In response to the Iowa court's decision, Summit Carbon Solutions said the ruling was important to ensure infrastructure projects can move forward while respecting landowner rights.

"We appreciate the court's decision and will continue working collaboratively with landowners, treating them with respect as we move forward on this important project for Iowa's future," said Lee Blank, CEO of Summit Carbon Solutions.

In South Dakota, voters rejected a state law that would have dictated how counties regulate carbon pipelines in the state, https://www.dtnpf.com/….

The Iowa Supreme Court said the state of Iowa has long allowed statutory access to private property to conduct land surveys dating back to 1843.

"If we were to hold that section 479B.15 is facially unconstitutional, we would call into question the constitutionality of many similar Iowa statutes allowing temporary access for private as well as government surveyors and examiners," the court said.

The district court in Hardin County also ruled that Summit is a pipeline company within the meaning of state law, according to the ruling, meaning it has property access rights. The Iowa Supreme Court affirmed that decision.

"Kasischke admitted in pleadings at the outset of this litigation that Summit is a 'pipeline company,'" the court said in its ruling.

"He changed his position at trial to deny that Summit is a pipeline company based on his new position that the carbon dioxide is not transported in a liquid state in the pipeline."

Read more on DTN:

"SD Supreme Court Sides With Landowners," https://www.dtnpf.com/…

"Pipeline Project Greenlighted in Iowa," https://www.dtnpf.com/…

Todd Neeley can be reached at todd.neeley@dtn.com

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