Landowners claim quick court victory in pipeline fight
A Woodbury County landowner has successfully fended off – at least for now – a pipeline company’s attempt to gain access to her farm for a survey. She said she hopes a judge’s recent ruling is the first of many victories in a longer-term battle to prevent the use of eminent domain to build the carbon dioxide pipeline.
“I’m thrilled, absolutely thrilled,” said Vicki Hulse, who along with her husband, Bill, owns a 151-acre farm, much of which is on a federal conservation program.
The Huls were among four landowner groups sued by Navigator CO2 Ventures in August for preventing the company from surveying their land to help determine the path and depth of its proposed pipeline. It would divide the state from northwest to southeast with about 800 miles of pipeline and transportation capturing carbon dioxide from ethanol plants.
State law allows investigations after pipeline companies hold public meetings and give written notice to landowners. But several of the landowners argue the law is unconstitutional because it violates their property rights.
Navigator is seeking injunctions to force investigations — with the help of law enforcement officers, if necessary. He tried to speed up the process by asking for temporary injunctions, which would allow them to carry out the investigations before the end of the prosecution. The company says further delays will jeopardize the project.
“There may be some measure of economic damage, although (Navigator) presents no quantitative or qualitative evidence in this regard,” District Judge Roger Sailer wrote in his rejection of a temporary injunction Friday. “Will this damage be irreparable? It’s questionable at best.
He said a temporary injunction is “an extraordinary remedy” which is inappropriate for the current situation as it would in fact leave no reason for the litigation to continue. The investigation would be carried out.
“Once that happened, there could be no undoing,” Sailer wrote.
Andy Bates, spokesman for Navigator, declined to comment on the decision and did not say whether the company would appeal the decision.
The company has four pending lawsuits in three counties. Two of the other proceedings — in Butler and Clay counties — have pending applications for temporary injunctions with court hearings set for Wednesday, according to court records.
Vicki Hulse said she hopes the judges in the other cases will use Sailer’s rationale and dismiss those claims as well. One of the cases is due for trial in April 2023.
Navigator argued that he needed immediate court orders for survey work before the ground freezes or he may have to postpone work until the spring. The company says the law is clear: “A pipeline company may enter private land for the purpose of surveying and examining the land to determine the direction or depth of a pipeline by giving ten days written notice. .”
It continues: ‘Entry for land surveys… will not be considered trespassing and may be facilitated by an injunction.’
Sailer said the word “may” indicates that injunctions are not automatic and judges have discretion to issue them. He did not weigh the constitutionality claims raised by the Huls’ lawyer for his decision on Friday.
Vicki Hulse said their small farm had been in the family for nearly a century and Bill Hulse grew corn and soybeans and raised cows. He quit farming about six years ago because of Parkinson’s disease, which robbed him of his strength.
Bill Hulse now also has dementia and lives at the Iowa Veterans Home in Marshalltown, Vicki Hulse said. Her Parkinson’s disease was the result of contact with Agent Orange during her military service in the Vietnam War, she said.
Most of the Huls farm is on the federal conservation reserve program and is home to a variety of wildflowers to boost populations of bees and other pollinators. Those who disrupt their CRP floor may be forced to repay any payments they received for the program.
This potential penalty is among the arguments Vicki Hulse will make when she tries to block the pipeline company’s plans. She said the use of eminent domain to carry out the project was wrong.
“It’s just the first step in preventing that,” she said of the judge’s decision on Friday. “There is a long way to go.”
Another pipeline company, Summit Carbon Solutions, has also sued three landowner groups for their alleged refusal to allow drilling for its project. A court hearing for a temporary injunction in one of the cases is set for October 24.
Hulse said she didn’t tell her husband — due to his declining health — about the litigation or they might have to give Navigator an easement to build the pipeline through their farm. She said it would have been a strong voice of opposition.
“He would probably be more vocal than me, rallying around and doing all kinds of things,” Hulse said.