BUSINESS

Iowa couple locked in legal battle to stop company from surveying their farm for carbon capture pipeline

Donnelle Eller
Des Moines Register

Vicki Hulse says she's fighting Navigator CO2 Ventures' plan to build a carbon capture pipeline across her northwest Iowa farm because her husband, Bill, a Vietnam veteran in poor health, no longer can.

Hulse blocked a Navigator surveyor from entering her and her husband's 151-acre property in late June. The company wants to determine the land's suitability as a possible route for its $3 billion pipeline. Hulse told the surveyor and the sheriff's deputies with him he would be trespassing if he set foot on her land.

Now Navigator is seeking an injunction that would force Hulse and her husband, who lives at the Iowa Veterans Home in Marshalltown, to grant its agent access. Hulse has countersued, seeking to stop Navigator from entering the couple's land.

Bill and Vicki Hulse are challenging Navigator CO2 Ventures' right to come onto their northwest Iowa farm to survey it, which could make way for a carbon-capture pipeline to be built across it.

The Hulses' attorneys also are challenging the constitutionality of a state law that allows the developers to survey land before they've gotten regulators' approval to build the pipeline — or have been granted eminent domain powers to force unwilling landowners to sell easements allowing access for the project. If successful, the Hulses' challenge could delay developers' efforts to build pipelines in Iowa, a Drake University law professor says.

Woodbury County District Court Judge Roger Sailer, who heard arguments in the case Friday, is expected to enter a ruling this week.

Navigator and two other companies seeking to build carbon capture facilities, Summit Carbon Solutions and Wolf Carbon Solutions, have proposed to liquefy carbon dioxide emissions from ethanol, fertilizer and other industrial agriculture plants in Iowa under pressure and transport them through hundreds of miles of pipelines to either Illinois or North Dakota, where they'll be sequestered deep underground. Pipeline supporters say the projects will enable ethanol and other energy-intensive agricultural industries to remain viable as the nation seeks to cut net greenhouse emissions in half by 2030 to address climate change.

Iowa is the nation's leading producer of both ethanol and the corn used to manufacture it. About half the state's annual harvest is used to make the biofuel.

More:Iowa politics, ag heavyweight Bruce Rastetter sets sights on $4.5 billion carbon capture pipeline

The projects, however, have been controversial, garnering thousands of objections, many focused on the possible use of eminent domain to force unwilling landowners to sell access to their land for the pipelines' construction. Residents also have voiced concern about the pipelines' safety and the impact construction would have on farmland and underlying drainage systems.

Hulse said her and her husband's farm has been in his family for nearly 100 years, and they each worked two jobs for years to buy it after her father-in-law died. A third-generation farmer, Bill Hulse raised pigs and cows and grew corn and soybeans for decades while working at a Sioux Citycar dealership full-time.

Her husband now struggles with dementia and Parkinson's disease linked to the U.S. military's use of the herbicide Agent Orange to defoliate forests during the Vietnam War and uses a wheelchair. She said her husband, 71, is unaware of the fight being waged over their family farm.

Vicki Hulse, 66, said she feels compelled to fight against the pipeline.

"I’m standing up for my husband and for what is right," she said.

Couple assert the 'right to exclude' the uninvited surveyors

A view of Bill and Vicki Hulses' farm. The couple are fighting in court to stop Navigator CO2 Ventures from coming onto their land to survey it as part of the route for a planned carbon capture pipeline.

Omaha, Nebraska-based Navigator said Iowa law allows a company to survey land in the proposed pathway of a pipeline without it "being deemed trespass." The law requires developers to first hold public meetings about their projects in the affected counties ― a mandate Navigator has met ― and provide landowners proper notice before coming on their land to survey it.

The Hulses' attorneys said in their counterclaim that the state law violates Iowa's Constitution for two reasons: The state Constitution says “private property shall not be taken for public use without just compensation first being made,” and it protects landowners’ property rights from unwarranted government intrusion. The state, her attorneys wrote, wants to appropriate their clients’ right to exclude others from their property for the benefit of the pipeline company.

"The right to exclude is ‘one of the most treasured’ rights of property ownership,” wrote Hulse attorney Brian Jorde of Domina Law Group in Omaha. Navigator "has no right to invade" the Hulses' land "absent the culmination of a formal condemnation proceeding," which is part of the eminent domain process.

More:Builders vow CO2 pipelines will be safe. Worried Iowans point to a Mississippi rupture.

According to the Hulses' attorneys, Iowa law and the rules adopted by the Iowa Utilities Board require this process for projects like Navigator's: The Utilities Board first must decide if the company should be granted a permit to build the hazardous liquid pipeline. If the three-member board approves, it will then determine whether the company should be granted eminent domain powers to force unwilling landowners to accept compensation for easements.

Summit is the only pipeline developer so far to file for a permit. No date has been set yet for a public hearing.

Hulses' attorneys have asked Sailer to declare the law invalid.

"Iowa’s Constitution is the supreme law of the land and any law inconsistent therewith is void," their attorneys wrote.

Entry to land 'only for a crucial and carefully limited purpose,' Navigator says

Steve and Karmin McShane paint a sign in opposition to a carbon capture and sequestration pipeline in Linn County.

In an answer to the Hulses' countersuit, attorneys for Navigator, which declined the Des Moines Register's request for comment on the pending litigation, denied the couple's contentions that the state law violates Iowa's Constitution and that allowing surveyors' entry on private land constitutes a taking.

The Iowa code "provides pipeline companies a right to enter land without first having it taken by eminent domain, but only for a crucial and carefully limited purpose, and only after having provided ample information and notice to the landowner," wrote Navigator's attorneys, led by Brian Rickert of BrownWinick Law in Des Moines.

The company said it needs to survey the land in the pipeline's path for wetlands, waterways, areas of cultural significance and the presence of protected species, among other things.

"All these surveys are necessary to ensure the pipeline ultimately proposed in the application for construction has been thoroughly considered and designed to minimize the collective impact while serving the public convenience and necessity," the company said in its response.

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It listed 26 states that allow surveyors access to land for similar work "without it being deemed a trespass." The Hulses' attorneys' "reasoning would see all these laws struck down," Navigator said, "Yet courts across the country consistently 'uphold the constitutionality of statutes authorizing government bodies to enter private property to conduct preliminary surveys,'” reasoning “that surveys are temporary intrusions which do not substantially interfere with the owner’s property rights or enjoyment of the land, and therefore, are not a taking in the constitutional sense.”

Navigator said the company hasn't yet filed a permit request to build its pipeline in part because individual landowners are "engaging in tactics designed to delay the project." The company said the Hulses' attorneys, who are working with other pipeline opponents, have filed similar cases in Clay and Butler counties.

While Hulses' attorneys say an Iowa court has not considered the constitutionality of the state law granting pipeline companies access to perform surveys, Navigator said the Boone County District Court "squarely rejected" an identical challenge in 2015 in connection with the Dakota Access crude oil pipeline.

The Boone County court concluded the entry allowed under the state law is "limited, impermanent, and reasonable based upon the Legislature’s stated purpose and goals, and therefore could not be construed as a taking," Navigator's attorneys said.

The Hulses face a “heavy burden” to “prove the statute unconstitutional beyond a reasonable doubt,” Navigator's attorneys said.

Any decision in the Hulses' case is likely to be appealed to the Iowa Supreme Court, said Jennifer Zwagerman, an associate law professor at Drake and director of its Agricultural Law Center. Depending on how many landowners have blocked pipeline surveyors, the legal battle could slow the projects, Zwagerman said.

"The companies need the surveys before they can finalize their presentation before" the Iowa Utilities Board, she said.

Vicki Hulse said she hopes her suit stops the pipelines, both on her property and others'.

"That's what I'm standing up for," she said.

More:Acknowledging 'strong feelings on both sides,' Iowa corn association backs carbon capture pipelines

Donnelle Eller covers agriculture, the environment and energy for the Register. Reach her at deller@registermedia.com or 515-284-8457.