The Iowa Supreme Court heard oral arguments Tuesday night in a case challenging a land survey access law.
Iowa Code allows hazardous liquid pipeline and storage companies to survey private land if they first hold public information meetings and send ten days’ notice to landowners through restricted, certified mail.
In 2022, Summit Carbon Solutions sued Kent Kasischke in Hardin County for refusing access to his land to conduct a preliminary survey. The Ames-based company wants to capture carbon dioxide emissions from ethanol plants in five states and transport it through pipelines to store underground in North Dakota.
Last year, the Iowa District Court for Hardin County ordered that Kent Kasischke could not interfere with Summit’s land survey on his property. Kasischke appealed to the Iowa Supreme Court.
One of his three arguments is that Iowa’s law authorizes an unconstitutional taking of private property under the Iowa and United States Constitutions.
“The statute’s unconstitutional, period, because it doesn't provide for just compensation. It doesn't provide for due process of law or jury trial to get to just compensation,” said Brian Jorde, the attorney representing Kasischke.
Eminent domain is the process for an entity, usually the government, to take private property in exchange for “just compensation.” Jorde argued that Summit did not yet have the right to use eminent domain in 2022 when it filed an injunction against Kasischke.
“Would a reasonable landowner believe that when they purchase property, they are subservient to the desire of any possible company to want to kick the tires even if they don’t have eminent domain powers?” Jorde said.
Ryan Koopmans, representing Summit in the case, said American courts have long recognized survey access laws and that Summit satisfied each requirement laid out by the Iowa Legislature.
“The Legislature has the authority to give eminent domain power. They have the authority to allow for surveys,” Koopmans said.
If the Iowa Supreme Court decided that the law was unconstitutional, Koopmans said it would be an “on or off switch” for all other Iowa statutes that allow survey access for private and governmental entities.
“Either we all get survey access, or none of us do,” Koopmans said. “The Legislature set out a process for getting eminent domain doing surveys. If we don't have it, then Iowa DOT doesn't have it, railroads don't have it, electric utilities don't have it.”
The Iowa Utility Association, Iowa Association of Electric Cooperatives, Liquid Energy Pipeline Association and the American Petroleum Institute filed briefs in support of Iowa’s survey access law.
Beyond the question of whether the law is constitutional, Kasischke argues that Summit does not qualify as a hazardous liquid pipeline company as defined by Iowa Code. The definition for “hazardous liquid” includes crude oil, refined petroleum products, liquefied petroleum gases, anhydrous ammonia, liquid fertilizers, liquefied carbon dioxide, alcohols and coal slurries.
Kasischke claims that Summit failed to show that it is transporting carbon dioxide in a liquified state. Summit said in the brief that Kasischke used a hyper-technical interpretation that ignores the Iowa Legislature’s intent.
Several Iowa Supreme Court judges asked Koopmans about the distinction between liquified and supercritical states.
“To all of us, it's a liquid. To the very intelligent, perhaps to the chemist, it's something different. And this Court, and the U.S. Supreme Court, has always said that terms should be interpreted in their ordinary or customary, not scientific, meaning,” Koopmans said.
Kasischke’s other argument is that Summit is not entitled to injunctive relief because it did not give proper notice to survey Kasischke’s land.
Summit points to U.S. Postal Service tracking data that shows restricted certified mail was sent to Kasischke’s home address on three separate occasions and that he signed the first one.
Before oral arguments Tuesday night, around 60 pipeline opponents clad in red gathered on the front steps of the Iowa Capitol. “We’re Not Gonna Take It” by Twisted Sister faded out while Patty Beyer, a Cherokee County landowner walked up to the mic.
“Three years ago, Summit announced that it was building a carbon pipeline, and that it would be up and running [by now],” Beyer said. “It’s 2024 and Summit still has a pipeline to nowhere, nothing in the ground. And our opposition is stronger than ever.”
Beyer said hundreds of landowners in the state have refused notices and access to land surveys, which she described as “unwanted, intrusive and unconstitutional.”
“We’re here to stand with Kent and every single landowner’s property rights,” Beyer said.
Landowners from Wright, Dickinson, Butler and Emmet spoke in opposition to Summit and other carbon dioxide pipeline projects. Some of them described finding land surveyors with trucks and large drills in their crop fields.
Vicki Hulse, from Woodbury County, said she refused access and was sued by Navigator, another pipeline company that has since dropped its project. The district court judge dismissed the case.
“I've been through this, and I know that if we stand together, we can stop Summit's surveys,” Hulse said.
