Pipeline company seeks court decision on land survey injunction

Navigator CO2 Ventures is arguing in court that a state law that allows pipeline companies to survey land is constitutional and the company has complied with its provisions.

The company is seeking a court order, without going to trial, to require a landowner to allow access to surveyors.

Navigator has sought court-ordered injunctions against four sets of landowners who have denied the company access to their properties. The surveys will help determine the path and depth of its proposed carbon dioxide pipeline.

Those landowners contend that the state law that allows the surveys — with the aid of an injunction, if necessary — amounts to an unconstitutional taking of land without compensation.

The law says companies that seek to build hazardous liquid pipelines can conduct the surveys without fear of trespassing charges after they hold informational meetings about the projects and give written notice to landowners and tenants. It further says the companies must pay for any damage caused by the surveys.

The law has been challenged before.

In a 2015 court case in Boone County, a landowner was unsuccessful in arguing that forced land surveys by Dakota Access — which built an oil pipeline across the state — were unconstitutional.

“Entry onto (the owner)’s land by Dakota Access would entail walking across a corner of his land for a few hours to see if there are things that would affect the direction or depth of a pipeline and the possible use of hand tools to determine types and classes of soil,” District Judge John Haney wrote when he granted the company an injunction. “Any material which might be disturbed would be returned to its original location. The activity is not a permanent physical invasion or occupation of (the owner)’s property.”

Navigator has cited that decision in its pursuit of summary judgment in its case against William and Vicki Hulse of Woodbury County. It was set to go to trial next week, but the trial has been delayed indefinitely pending a decision about Navigator’s request.

The company argues that the critical facts of the case are undisputed and that a trial is unnecessary for a judge to decide whether to issue the injunction.

“It is not an unconstitutional taking, and defendants’ arguments have no merit,” wrote Brian Rickert, a Des Moines attorney who represents Navigator.

Final written arguments in the case are due next week, after which District Judge Roger Sailer is set to rule on the company’s motion.

It is the first of four pending cases against landowners that was set to go to trial. The others in Butler and Clay counties are set for April and May. The company has not filed motions for summary judgment in those cases, court records show.

Navigator has sought to deal swiftly with the cases to avoid delays to its project.

Another carbon dioxide pipeline company, Summit Carbon Solutions, has expanded the number of court-ordered injunctions it seeks for land surveys. It filed suit against three sets of landowners in September, and the cases are set for trial in April, May and June.

Summit recently filed a motion for summary judgment for the Dickinson County case that is set for trial in April, concerning the Daniel L. Wahl family trust.

The company sued a further six landowners in December but seeks to dismiss one case because it was filed against the wrong landowner in Clay County, court records show. Another case in Webster County was dismissed because the landowner gave Summit permission to do the survey work, the company said.

Trials for the four other cases have not yet been set.

The survey law is also the subject of a pending criminal case in which one of Summit’s surveyors is charged with trespassing. That is set for trial in March.

There is pending legislation in the Iowa Senate that would eliminate the companies’ ability to conduct the surveys without permission of landowners.