The Iowa Supreme Court on Friday upheld a lower court’s ruling that sided with Summit Carbon Solutions in a land survey case.
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. It also requires companies to pay for damages caused by a survey.
In 2022, Summit sued Kent Kasischke in Hardin County for refusing access 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 Kasischke could not interfere with Summit’s land survey on his property. Kasischke appealed to the Iowa Supreme Court, which heard oral arguments on Oct. 8.
Kasischke’s attorney, Brian Jorde, argued that Iowa’s law is unconstitutional because it allows the taking of private property without just compensation through eminent domain.
The court's ruling
The Iowa Supreme Court’s opinion said the state's law does not trigger an unconstitutional taking, in part because it does not allow a “permanent physical invasion of private property.”
The justices said they agreed with Summit’s argument that “survey access is a longstanding background restriction,” adding that “statutes authorizing entry to conduct surveys are as old as the Republic itself.”
They cited cases involving survey work to explore locations for railroads, roads and powerlines.
“Today, all 50 states have statutes authorizing entry to private property for the purpose of conducting preliminary land surveys in exercising eminent domain,” they wrote.
The justices also found Summit complied with the law’s notice requirements and definition of a pipeline company, which were challenged by Kasischke.
At the end of the opinion, the justices noted that other legal questions affecting Summit’s project were not part of this appeal and could still be raised at a later date.
“We note that other legal challenges to this proposed pipeline in the chapter 17A judicial review proceeding are not presented in this appeal, including whether the IUB validly determined this proposed pipeline serves the 'public convenience and necessity,' whether this pipeline company is a 'common carrier' entitled to utilize eminent domain, and whether this pipeline operated by a private developer meets the constitutional requirement of a 'public use' under the takings clauses in Article I, Section 18 of the Iowa Constitution and the Fifth Amendment to the U.S. Constitution.”
“Those questions could be adjudicated by our court after the district court rules in the chapter 17A case, and a disappointed litigant appeals, but we cannot and do not reach those questions today,” the justices wrote.
