Judges in two states differ on pipeline land surveys

By: - May 5, 2023 4:33 pm

There are conflicting rulings about whether carbon dioxide pipeline companies can conduct land surveys without permission. (Photo by Getty Images)

A North Dakota judge has granted a carbon dioxide pipeline company access to private land for surveys and denied claims that the state’s law that allows that access is unconstitutional, according to court records.

That is different than a recent ruling in Iowa, in which a judge said the state’s law about similar surveys violates constitutional property rights.

Navigator CO2 Ventures, which wants to build a carbon dioxide pipeline of more than 800 miles in Iowa, seeks to use the North Dakota decision to persuade a district court judge in Iowa to grant it access to private land in Woodbury County to survey it.

But the laws in each state are dissimilar in that the North Dakota law applies directly to eminent domain and Iowa’s law is part of its hazardous pipeline permitting process, which doesn’t necessarily include eminent domain.

“The challenged statute is markedly different,” attorney Brian Jorde wrote in his objection to using the North Dakota ruling as a guide for the Woodbury County case in Iowa.

The North Dakota case involves another carbon dioxide pipeline company, Summit Carbon Solutions. Navigator’s proposed project does not include that state.

In the North Dakota case, Judge Daniel Narum ruled that even though Summit “does not propose making any payments for holes it may drill … the court concludes the proposed examinations and surveys are allowable … because they are ‘minimally invasive’ and ‘limited’ and do not constitute a long-term physical intrusion on landowner property.”

The North Dakota attorney general also argued that the law is constitutional: “The right to access lands for surveys, examinations, and other lawful reasons is undisputedly woven into the fabric of North Dakota property law,” according to court records.

The Woodbury County case in Iowa has gone to trial and is awaiting a judge’s decision. Separately, in Clay County in Iowa, a judge who considered similar arguments decided that the state’s survey law is unconstitutional because it provides no compensation for the duress landowners suffer when they are forced to allow someone onto their properties.

Iowa law requires compensation for actual damages caused by the surveys but not for intangible, emotional damages.

Navigator is attempting to use an earlier ruling from Clay County to bolster its case in Woodbury County. That ruling agreed with Navigator that it had complied with Iowa law in notifying the landowner of the survey. However, the same judge said this week that the law is unconstitutional.

It’s unclear when the Woodbury County case will conclude. Navigator and Summit have other, similar cases that are pending in Iowa court.

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Jared Strong
Jared Strong

Senior reporter Jared Strong has written about Iowans and the important issues that affect them for more than 15 years, previously for the Carroll Times Herald and the Des Moines Register.