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By Staff | May 22, 2015

The proposed Rock Island Clean Line power transmission line and Dakota Access oil pipeline are prompting a re-examination of how private for-profit companies acquire right-of-ways to build utility infrastructure across Iowa.

At issue is the proper use of eminent domain. The state, cities and municipalities have the right to use eminent domain to build highways, airports and infrastructure for public use. Few have any problem with that.

Private enterprise, however, is private enterprise and why should one commercial entity be able to usurp the rights of private individuals using a public structure such as eminent domain power?

The answer is that use should be very limited. I support both the RICL and Dakota Access oil pipeline being built. I think that we need both. We need to get wind power generation and oil from the Dakotas to consumers.

Both projects are commercially viable and will be lucrative investments for the companies developing them. As such they can make commercial deals for the easements that they need without government interjecting itself into the negotiation taking property from private landowners based on agricultural land valuations. This is wrong

Neither RICL nor Dakota Access is going to farm this land. They will plant poles and harvest huge profits transmitting power and flowing oil. The easements are forever. If a private company like the Holiday Inn Express bought farmland on the edge of a community to build a motel they would pay a commercial price for it.

As a private company, the concept of them using eminent domain would be ridiculous. Similarly, RICL and Dakota Access are for-profit concerns and they can afford to pay commercial values for the land they use. The commercial value may be a multiple of the ag value.

This is not unprecedented. The fiber optic cable company that laid an 800-mile long fiber optic line from Chicago to New Jersey did so without using eminent domain. It made private deals with landowners. The most direct route was important to them as speed of transmission was lost if the line twisted or turned.

The idea that they have no flexibility to reroute power or oil pipelines is a false narrative that they use to justify superior rights over private property owners.

Not one wind turbine that you see dotting the rural landscape is there because of eminent domain. The wind power companies made private deals with every landowner to put wind turbines on their farms … much better deals than RICL or Dakota Access are offering for their power or pipeline easements.

That’s because RICL and Dakota Access believe they can get their routes by force through use of eminent domain and pay landowners un-negotiated values for heretofore lifelong control of their property. The approval for being granted use of eminent domain power comes through the Iowa Utilities Board.

While both RICL and Dakota Access claim that they will get most of their easements without eminent domain power, they plan to get them by use of the threat of eminent domain. If the landowners won’t capitulate to their offer then they will take the land anyway through use of eminent demand so why fight them? Then again, why not?

We won’t get any less through eminent domain and that way the state and the Iowa Utilities board will have to screw landowners first before RICL and Dakota Access can do it.

As of last report, RICL only had 15 percent of 1,540 easements that it needed … after 20 months of work. Landowners are not impressed with the compensation offered.

For a private company seeking easements from property owners to prove they have both a viable project and a working relationship with those landowners, most easements should be acquired through private negotiation.

The process that some politicians refer to for the IUB granting eminent domain power does not spell this out.

Even the process for citing livestock CAFOs has a matrix to provide guidelines. The eminent domain process is not structured with minimum benchmarks and should be.

Bills introduced into both houses of the Iowa legislature would require that out-of-state companies acquire 75 percent of the easements that they need privately before use of eminent domain could be considered by the IUB.

If these private commercial companies are allowed to use the threat of eminent domain against landowners then they can proceed as they are, dictating the price of easements in what is a wholly one-sided negotiation.

What the eminent domain bills under consideration in the legislature do is spell out the benchmarks that RICL and Dakota Access has to achieve to get eminent domain power.

I thought 90 percent was the better target, but 75 percent is at least something more reasonable. Carolyn Sheridan, a spokesperson for a group representing landowners noted, “If this project were to be approved, the use of eminent domain to take private property would be the largest taking of private property in Iowa’s history.”

Meeting benchmarks that private companies must meet to gain use of eminent domain power need to become part of the process.

RICL and Dakota Access should not be able to use eminent domain power to make billions of dollars more from what are already lucrative commercial enterprises by trampling over private property rights.

Both RICL and Dakota Access can afford to pay fair commercial value for easements and the only way that won’t happen is if the IUB gives them eminent domain power which would be akin to receiving a huge state subsidy payment at the expense of Iowa land owners whose rights the state should protect.

If you are an Iowa legislator and this is a hard decision for you, you should not be there.

David Kruse is president of CommStock Investments Inc., author and producer of The CommStock Report.

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