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Balking over pipeline access

By Staff | Aug 20, 2015

-Farm News photo by Jesse Major Shirley Gerjets, of Rockwell City, refuses to sign anything that would grant Dakota Access an easement to use her property.

jcurtis@messengernews.net

ROCKWELL CITY – A non-jury trial pitting Dakota Access LLC against Calhoun County that had been scheduled to take place Tuesday has been pushed back by more than a month.

The new date is 9 a.m. on Sept. 17 in Calhoun County, according to Iowa Courts Online.

A motion for the continuance was filed Friday on behalf of Dakota Access.

Also on Friday, Judge Joel E. Swanson granted the motion and set the new date.

Dakota Access LLC wants to build an oil pipeline across Iowa farmland. To that end, it is pursuing an injunction against Calhoun County, arguing that a resolution adopted by the county was “clearly a shot at the Dakota Access pipeline.”

The resolution, which was passed by the Calhoun County Board of Supervisors June 30, mandated new “requirements for construction of a hazardous liquid pipeline over, across, or beneath county drainage districts.”

Those new requirements, described in a brief filed in late July by attorneys for Dakota Access LLC, are “in some cases simply impossible, impractical, financially infeasible, or deny the opportunity to use best practices.”

According to the lawsuit, Dakota Access didn’t know the county would impose new rules and regulations.

“No effort was made to ensure Dakota Access would be present to discuss whether the contents of the resolution were even feasible,” the lawsuit states.

“Instead, Calhoun County waited. On June 29, 2015, the Calhoun County Board of Supervisors posted a notice that didn’t give much notice at all. It said that the next day, June 30, the Supervisors would have a call with their drainage-district attorney about ‘Dakota Pipeline Resolution and Application for Construction.’ That’s it. That’s all it said on the subject,” the lawsuit states.

The underground pipeline would carry crude oil from North Dakota through South Dakota, Iowa and on to Illinois.

In the Fort Dodge region, the pipeline would cross less than a mile in far northeast Sac County. It would cross about 31 miles in Calhoun County and about 19 miles in Webster County.

Webster County passed a resolution on June 25 that is nearly identical to the Calhoun County resolution addressed in the lawsuit seeking the injunction.

There are angry farmers whose land is in the path of the proposed Dakota Access pipeline who back the Calhoun County Supervisors’ resolution.

Shirley Gerjets is one.

“I’m glad the supervisors did what they did,” she said last week at her farm in rural Rockwell City. “But, of course, they turned right around and filed this lawsuit against the county.”

Gerjets owns one of the more than 60 parcels that haven’t yet had easements granted for the pipeline. She said it shouldn’t be legal for Dakota Access to use her land.

Gerjets has no doubt that her yield will go down if the pipeline is built. She said the money she was offered for an easement is not worth it.

“There’s no limit on it. It’s your whole farm. There’s nothing to the farmers’ benefit. What they are paying is one payment – diddly crap. If it’s going to interfere with yield for 30 years, they should be paying by the year.”

Don Rasmussen, who also owns land near Rockwell City, said he doesn’t want Dakota Access to build on his property.

“I believe they shouldn’t be allowed to come through,” he said.

“There’s too much risk and they aren’t doing anything for you.”

Rasmussen is concerned that the oil could affect his water, tile drainage and his yield.

“It basically says you don’t have any rights,” he said. “They aren’t telling what they’re going to do.”

For that reason, he refuses to negotiate with the company.

Gerjets said Dakota Access is trying to negotiate with her, but that it hasn’t actually sent a representative to speak to her.

She is firm in her resolve: “Why should a Texas company be allowed to take our land?”

Eminent Domain

In Cherokee County, three landowners filed a lawsuit against the Iowa Utilities Board on July 27 questioning its authority to grant eminent domain for the planned 1,134-mile Dakota Access pipeline. The lawsuit filed in Cherokee County District Court, was filed on behalf of Marian D. Johnson, of Cherokee County; Brent Jesse, of Buena Vista County; and Richard Lamb, who owns land in Boone County.

Dakota Access plans to use eminent domain, if need be, to access property for the pipeline, according to the lawsuit.

July 27 was the deadline set by the IUB for petitions to intervene in the pipeline process.

Monday is set as the date on which Dakota Access LLC can file its final Exhibit H, that is, easement. Each county through which the pipeline would run requires multiple easements from the private property owners.

As of early August, Dakota Access had not secured all of those easements.

A spokeswoman for the company has previously said the company had purchased easements from nearly 60 percent of landowners.

But the deadline to acquire those easements can be extended by Dakota Access, according to the procedural schedule set by the IUB.

“These dates are predicated on the idea that Dakota Access will be ready to file its Exhibit H in August of 2015,” the IUB order states. “However, the actual filing date for that exhibit is a matter that is within the discretion of Dakota Access; if the company believes that a later filing date would be better, then these dates will have to be adjusted.”

The Cherokee County lawsuit states, “Petitioners … are led to believe that if they do not immediately consent to an easement that the Respondent (IUB) will permit the private developer to utilize eminent domain and condemn the Petitioners’ agricultural land for its hazardous liquid interstate pipeline.

When eminent domain is used, an independent panel would determine the value of the property. The company would then pay the landowner that amount and take ownership of the property.

The landowners are represented by Bill Hanigan, of Davis Brown Law Firm, and Richard Cook, of Herrick, Ary, Cook, Cook, Cook & Cook.

“Our Clients are rightfully upset. This is their land,” said Cook in a prepared statement. “And a Texas company just gets to come here and take it? That is not what the Legislature had in mind.”

The underground pipeline would carry 450,000 barrels of crude oil per day.

“Out-of-state companies shouldn’t be allowed to use Iowa law to take farmland from Iowans and install a hazardous pipeline and then not be subject to our laws about safety,” Hanigan said in the same statement.

The proposed pipeline would affect 18 Iowa counties and hundreds of Iowa landowners.

“Petitioners require clarity from the court as to whether they ultimately have a choice – are they negotiating with the interstate pipeline company at arm’s length, or are the threats of eminent domain substantiated and therefore the petitioners must ultimately acquiesce?” the lawsuit asks.

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