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Can Dakota Access get Iowa access?

By Staff | Feb 13, 2016

Don Rasmussen, of rural Rockwell City, looks through the paperwork he has been sent about the Dakota Access pipeline that would run through two miles of his property. Rasmussen refuses to sign anything granting the easement on his property.

The fate of a proposed oil pipeline through Iowa may be decided following a series of hearings held Monday through Thursday at the Iowa Utility Board’s meeting room in Des Moines to deliberate on the issues in the Dakota Access pipeline case.

The IUB must decide on whether to issue the pipeline permit, and whether to allow the use of eminent domain.

“The Board may or may not make a decision during these deliberation meetings,” according to a statement issued by the board prior to the hearings. “If the Board reaches a decision during these meetings, a decision is not final until the written board order is issued.”

The meetings are only for deliberations by the board, addressing issues raised in previous hearings and in filed documents. No evidence will be taken, and the public will not have the opportunity to address the board during the meeting. No signs or placards will be allowed, the board said.

The IUB is a quasijudicial body whose members are appointed by the governor to six-year terms.

SHIRLEY?GERJETS, of Rockwell City, points toward her crops where Dakota Access wants to run a pipeline. Gerjets said she refuses to sign anything that would grant Dakota Access an easement to use her property.

Each of the three board members collect an annual salary of more than $100,000.

The proposed pipeline would be built by Dakota Access LLC, a unit of Dallas-based Energy Transfer Partners, with 346 miles of its 1,134-mile total length in Iowa.

The pipeline would cut northeast to southwest through 10 counties within the Farm News coverage area – Lyon, Sioux, O’Brien, Cherokee, Buena Vista, Calhoun, Webster, Boone Story and Polk.

Dakota Access says the $3.78 billion infrastructure project will transport approximately 450,000 barrels per day, with a capacity as high as 570,000 barrels per day, of domestically produced light sweet crude oil from the Bakken and Three Forks production areas in North Dakota to Patoka, Illinois, where shippers will be able to access multiple markets including Midwest, East Coast and Gulf Coast regions.

That number includes a $1.04 billion investment in the Iowa leg alone.

Opponents of the Bakken Pipeline raise their fists at a hearing in November held at the Boone County Fairgrounds. Speakers both for and against the pipeline drew loud cheers and applause from their respective supporters in the audience during the eight hour hearing.

Some landowners

complain

Laverne Johnson, who lives in Boone County near Pilot Mound, has been fighting the pipeline since he first learned it would come through his land.

Johnson refused to allow surveyors onto his property to survey the route of the line, and was taken to court by Dakota Access to get an injunction.

Under Iowa code a pipeline company may enter private land to survey and examine it, if it meets certain requirements, even without permission of the landowner.

Johnson contends this violates his constitutional rights, although a district court judge disagreed and allowed the company access in an Aug. 7, 2015, ruling.

“This is an Iowa law that should be repealed,” Johnson said last week.

Johnson said he made it clear to the company representatives that if they were allowed on his land, it would only be over his objections.

“If a judge allows you, I still haven’t allowed you to come on the land,” he said. “The answer is no. I don’t want anything to do with you. I told you that over a year ago. The answer’s still no.”

Keith Puntenney, an attorney and a rural landowner, explained.

“The first reason is, for a lot of us is this is a legacy issue,” Puntenney said. “These are farms that have been in families, in my case 50 years, and for a lot of people 150 years, passed down from generation to generation.”

Puntenney is one of the founders of the Private Property Rights Coalition, a group formed to fight the Dakota Access pipeline.

Johnson doesn’t want to sign a lease in perpetuity, allowing the company access to his land forever in exchange for a one-time payment.

“If they wanted to be fair about it, they’d give you some up front money and then pay you like the windmill people do,” he said.

“That pipeline comes within 100 feet of my buildings, 100 feet of my well. I’m not about to do that and obligate my grandchildren. That farm’s been in the Johnson name since 1896.”

Kevin Lambert, of Dayton, said he is concerned about the possibility of a leak and the impact the pipeline may have on yields.

“My biggest concern with the pipeline is if there’s an oil leak, the insurance liability,” he said. “And the destruction of the tile that I have in the ground.”

Johnson said no matter how carefully soil is replaced, it can’t be put back in the original condition. Plus the pipeline will be warm all year, and impact crops.

Landowners have raised environmental questions.

Not only are fossil fuels the wrong investment in Puntenney’s view, he also believes the pipeline will push out more renewable forms of energy from his area.

Puntenney said he doesn’t think any company will include his land in a future wind farm with the pipeline there, due to safety issues.

“They coming through – I can stand on my land and look at the 110 wind turbines. I would like, when they expand that wind field, to put wind turbines on my land,” he said. “That’s going to prevent any kind of wind turbine field from coming on my property.”

Dakota Access reports that 80 percent of the route now has voluntary easements in Iowa.

This leads the opponents to wonder why the pipeline simply couldn’t go around them.

“Some of my neighbors signed with them. They could go around me,” Johnson said. “But they’re still hammering on eminent domain.”

“That’s the crux of this,” Puntenney said. “Look at the route. They could go around us. Some people don’t care, but we do. … All they have to do is go through those areas, they could completely ignore us.”

“I don’t feel like our voices are being heard,” Lambert said. “It seems like whatever they want to do, they just do it, starting with the survey. I never gave them permission to survey our land. They did it anyway. That’s when I really got upset.

“I understand eminent domain for betterment of the community, and for your country, but this is just a private company coming through our land, and for personal gain.”

Puntenney claimed the company has been difficult to work with.

“If Dakota Access had approached this in the way that, say, the DOT does, or the railroads, where they had held public meetings and got input, and tried to work with the farmers, this whole thing could have been done in a better fashion with much less damages to everybody,” he said.

Public hearings

in November

The IUB held public hearings for weeks beginning Nov. 12 to hear arguments and evidence for and against the pipeline. The first day was a chance for the public to air concerns.

There were 134 people signed up to speak in favor of the pipeline, with 144 opposed. Two of the opposing speakers were from out of state, while 77 of the speakers in favor were from out of state.

Speakers were limited to two minutes each.

The majority of supporters were laborers, union men and women, union officials and other industry leaders.

The majority of opponents were landowners, farmers, educators and environmentalists.

Tom Smith, of Rolfe, is the manager of the John Deere construction equipment dealership in Fort Dodge. He said the pipeline would provide good jobs, and not a year goes by when he doesn’t sell, rent or fix equipment working on a pipeline in Iowa.

Property rights – and the threat of eminent domain – drew the highest emotions at the emotionally charged hearing.

Supporters say pipelines are much safer than transporting oil any other way. And because oil is needed in addition to renewable energy, it makes more sense to use the pipelines. Pipelines are safe, and will create good construction jobs, plus all the economic activity that comes with that.

In fact, it would be “environmental malpractice” to send oil by any method other than a pipeline, said Bill Gearhard, of Iowa City, with the Midwest Alliance for Infrastructure Now. Trucks and trains create much more carbon pollution when moving the same amount of oil, he said, and the risk of crashes is high.

The entire process started off with public meetings in all counties that the pipeline would go through in December 2014.

The purpose of the meeting was to provide information, and answer basic questions – not for the public to raise objections or speak in favor of the project, company officials said.

Further legal challenges

The injunction for a survey on Johnson’s land wasn’t the only legal challenge related to the issue.

Three landowners from Cherokee County, affiliated with the Private Property Rights Coalition, filed a lawsuit against the IUB in July 2015, seeking to stop Dakota Access from using eminent domain.

The suit was dismissed Oct. 20, with a judge ruling the farmers couldn’t bring the case to trial until exhausting administrative remedies first.

The landowners said they need clarity from the court about whether they will be forced to transfer the land eventually.

Dakota Access offered to purchase easements at above market rates, but any offer made after the eminent domain decision would be much lower, they argued.

Dakota Access filed a lawsuit against one of the counties in the route also in July.

The company claimed a measure detailing requirements for pipelines, passed by Calhoun County June 30, placed impractical and infeasible restrictions on the company.

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

The suit was settled out of court after lengthy negotiation between the two. The suit was dropped in mid-September, and Calhoun County passed an updated resolution changing the wording of its ordinance Oct. 13.

A virtually identical measure had been passed by Webster County, and other counties, based on a template created by the Iowa Drainage District Association, but did not draw a separate lawsuit.

Preparing for the work

Webster County has been preparing for the pipeline.

MHF Engineering was hired to do preliminary work on tile systems, to discover where the pipeline needs to go and how deep.

The pipeline must be at least 2 feet from drainage tile or ditches.

Some of the drainage tiles were put in more than 100 years ago by hand, Supervisor Keith Dencklau said.

In future improvements it might be necessary to put them in deeper. This predesign work will ensure that the pipeline won’t be in the way of any new developments.

Work has already started, and Dakota Access is responsible to pay for the work. It agreed to pay ahead of time, whether or not the pipeline is ultimately approved.

The county also made an agreement with ISG Engineers of Mankato, Minnesota, to oversee construction if the pipeline is approved.

ISG will oversee construction in multiple counties along the route.

Iowa law requires the pipeline company to pay for the engineers to be on hand for inspections, but ISG will be working for the county, not the company. The cost will be paid by Dakota Access to Webster County, and then passed through the county to ISG.

How can a

Dallas-based company get eminent

domain

powers

in Iowa?

One of the reasons is that a pipeline company is a common carrier, said Dakota Access spokesperson Vicki Granado.

“That’s the way pipeline companies are classified,” she said. “We do not own the oil. We are a transporter. We have customers we transport for. They sign long-term agreements with us, and we transport the oil.”

Dakota Access has significant contracts already in place for use of the pipeline, she said, but the company will leave about 10 percent of its capacity uncontracted. Then any other oil supplier could approach the company to use some of that capacity.

“That’s part of the regulations that we work under. So it is considered a common carrier, because there is enough capacity for anyone to ship on this pipeline,” she said.

Granado said Energy Transfer Partners uses eminent domain as a last resort, and works to find voluntary easements as a first priority.

“We have a track record as a company of over 90 percent voluntary easements on our projects,” she said.

As of Feb. 4, the company had voluntary easements for 80 percent of the properties along the route in Iowa. Total signed easements along the entire four-state route was more than 86 percent, Granado said.

“I think that goes to show that the impacted people, the majority of them are working with us, or in the process of working with us,” she said.

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