A carbon dioxide pipeline company did not properly notify a pair of northwest Iowa landowners before it sought to survey their farmland, a state district court judge has concluded.
In a recent ruling, Judge Roger Sailer rejected Navigator CO2 Ventures’ request for an injunction to facilitate the Woodbury County land survey, but he also said the state’s survey law is constitutional.
It was the third ruling on the constitutionality of the law that has arisen from two pipeline companies’ lawsuits against landowners to compel the surveys, which are important to determine the path and depth of the potential projects.
Sailer and another judge upheld the law, which allows the surveys after the companies hold informational meetings and give a 10-day notice via certified mail. A third judge, who was the first to issue a ruling on the matter, said it’s unconstitutional.
Several other similar lawsuits are pending with different judges, and they all feature roughly the same arguments. Navigator and Summit Carbon Solutions say they followed the law and should be enabled access to private property with the assistance of law enforcement, if necessary. Landowners — many of whom have rejected the certified mailings from the companies — say they weren’t properly notified and contend the surveys amount to an illegal taking of their land.
The litigation isn’t likely to have much of an effect on the companies’ abilities to obtain permits to construct their pipelines. State law does not require all survey work to be complete before the Iowa Utilities Board approves the permits, said Don Tormey, a spokesperson for the board.
The recent ruling
The Woodbury County case involves farmland near Moville owned by William and Vicki Hulse.“The court finds no merit in the argument that notice was never delivered to (Vicki Hulse) because the evidence clearly shows that Navigator sent it to her and that she purposefully refused to accept it,” Sailer said in his recent ruling.
However, William Hulse lives at the Iowa Veterans Home in Marshalltown and suffers from Alzheimer’s disease and dementia. Navigator did not send a notification of the survey to him there, but an attorney for the company argued during a trial in March that because Vicki Hulse has power of attorney to make decisions for him, notifying her was the same as notifying him.
“The court is unconvinced,” Sailer wrote.
The judge said the survey law requires notice to be sent to William Hulse where he resides, even if he is incapable of comprehending the notice. He denied Navigator’s request for an injunction because of that.
Andy Bates, a Navigator spokesperson, said the company does not have immediate plans to send new notices to the Hulses about a land survey.
“The vast majority of our surveys have been completed without incident or litigation,” he said, “and we continue to complete survey work in a collaborative manner with landowners and local officials.”
Conflicting rulings
About a month ago, a judge who presided over a similar case in Clay County decided that the survey law is unconstitutional because it doesn’t prescribe compensation for the duress landowners suffer when they are forced to allow surveyors onto private property.“The damages resulting from a landowner’s loss of his right to exclusive use of his property are subjective in the same way that pain and suffering damages are as it relates to a victim of a tortious injury,” District Judge John Sandy wrote.
The crux of the argument relies on a 2021 U.S. Supreme Court ruling that said a California regulation that allowed labor unions to go onto agricultural properties to solicit employees resulted in a temporary taking of land that deserves compensation.
Sailer and another judge in a Hardin County case considered that ruling when they upheld the state’s survey law. Both judges cited an exception in the Supreme Court ruling for well-established limits to property rights.
The high court cited examples such as nuisance abatements and criminal law enforcement. It did not list land surveys.
Sandy relied on that lack of inclusion for his ruling that the law is unconstitutional.
“Notably absent from the explicit examples provided by (the Supreme Court ruling) were survey access, utility and or railroad easements, etc.,” he wrote. “The lack of inclusion leads to conclusion.”
However, Sailer and District Judge Amy Moore disagreed. The law is an acceptable part of “longstanding background restrictions on property rights” and is a “pre-existing limitation upon the landowner’s title,” Sailer wrote.
“The court finds that the Hulses have not met their heavy burden of rebutting, beyond a reasonable doubt, the presumption of constitutionality,” he wrote.
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