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Judge hears landowners’ challenge to Dakota Access pipeline

By Staff | Dec 22, 2016

Dakota Access pipeline protesters march from the Polk County Courthouse to a public meeting space to hold a rally Thursday in Des Moines . The protests came after a judge heard arguments in a lawsuit filed by several Iowa landowners who challenge forceful taking of their land for the pipeline and challenge the state's permit process.

By JOE SUTTER and

THE ASSOCIATED PRESS

DES MOINES – A group of Iowa landowners forced to allow a Texas oil company to put a crude oil pipeline under their farmland is asking the state courts to throw out what they consider “illegal easements” through their land and some say if they win they want the pipeline dug up and removed.

A district court judge in Des Moines heard arguments Thursday in the lawsuit challenging the Dakota Access pipeline.

About a dozen landowners seek to overturn the project permit approved by the Iowa Utilities Board and they claim it was illegal for the board to take farmland when the pipeline provides no public service to Iowans.

The pipeline attorney argued the project is completed, making the case moot. He says Iowa law gives the utilities board authority to issue pipeline permits.

An attorney for the Iowa Sierra Club argued against the pipeline, claiming the IUB never proved the pipeline would serve “public convenience and necessity,” so the pipeline’s permit should be revoked.

A decision is expected before the end of the year, according to a spokesperson from the Davis Brown law firm representing the landowners.

“We anticipate an appeal is inevitable and will be heard sometime next year,” Cara Seidl, Davis Brown marketing director, said.

After the hearing a protest march and rally were held at Cowles Commons.

The courthouse was packed, according to Cyndy Coppola, who owns land in Calhoun County and is a part of the suit.

“The courtroom wasn’t nearly big enough,” she said. “They wouldn’t let anyone stand in the courtroom, so there were many people out in the hall waiting. That was very heartwarming.”

Coppola said an appeal will happen no matter what the court rules, and she’s not too confident this case will go in her favor at this level.

“We’re not holding our breath,” she said.

Still, it was a relief for the landowners and other various opponents of the pipeline to have the chance to be heard, said Keith Puntenney, of Boone, who owns land in Webster County south of Harcourt.

“I think the word to describe this is we’re ecstatic,” Puntenney said. “We finally got to where we wanted to be; we finally got our entire case heard before a judge, not just pieces of it.”

Puntenney believes the case will go to the Iowa Supreme Court, but at any point in the process it could also be remanded back to the IUB.

He said the fact that a fuller environmental review has been called for in a river crossing in North Dakota should raise questions about the crossings in Iowa.

“What about the other water crossings? Shouldn’t they equally be reviewed by a full environmental impact assessment?” Puntenney asked. “If that one should be reviewed, you have 11 major rivers, and all kinds of other water crossings through 74 watersheds, none of which had an EIA done.”

The case has national implications, he said, dealing with interstate commerce, transportation of hazardous liquids, and eminent domain rights.

Not only do some landowners want the pipeline removed if they lose the suit, there’s a possibility if oil is put into the pipeline that could be considered trespassing, Puntenney said.

“There is Texas case law on this,” he said. “Then all the shippers who put oil in the pipeline can be sued for trespass, as well as the pipeline for putting the pipeline in.”

The rally after the hearing included speakers from the Standing Rock Sioux reservation in North Dakota, where a protest camp has been in place for months, Coppola said.

“People from all over the state came to this,” she said. “I am amazed at how many people who aren’t landowners, but who are worried about protecting the environment, are showing up and taking the time to have their voices heard.”

The suit was filed on behalf of the landowners by attorney Bill Hanigan, with Davis Brown, on May 27.

In August, the landowners sought an order from the Iowa Utilities Board and the district court forcing work to stop on their land until after the suit could be heard. The request was denied by both entities.

Construction began on the contested properties shortly afterwards.

Before the suit was filed on May 27, an earlier suit was filed on April 8 in Polk County challenging the use of eminent domain. The Davis Brown firm announced it would file lawsuits in each county where eminent domain was being used.

Judges in Cherokee and Calhoun counties said in June that county-by-county filings wouldn’t be heard, and all cases must go through Polk County.

The Polk County suit filed April 8 was dismissed May 13.

Three landowners from Cherokee County, who are now part of the Polk County suit, filed a lawsuit against the IUB in July 2015 seeking to stop Dakota Access from using eminent domain.

The suit was dismissed Oct. 20, 2015, with a judge ruling the farmers couldn’t bring the case to trial until exhausting administrative remedies first.

The IUB approved the pipeline in March 2016.

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