Navigator could begin pipeline route surveys on South Dakota private land

Dominik Dausch
Farm Forum

The 30-day interlude before Navigator CO2 Ventures, a Nebraska-based company with designs to build a $3 billion hazardous liquid carbon dioxide pipeline in South Dakota, could enter private property without permission is now over.

Navigator CO2 Ventures filed a request with the Iowa Utilities Board to build a carbon capture pipeline across Iowa. The 810-mile pipeline would cross 33 counties in the state, including Polk and Story in central Iowa.

On Sept. 27, Navigator submitted a siting permit application for their Heartland Greenway CO2 project to the South Dakota Public Utilities Commission, fulfilling a prerequisite in South Dakota Codified Law 21-35-31 that could allow them to conduct land surveys without needing the express permission of landowners on the route of their 1,300-mile pipeline, 111 of which will run through Brookings, Moody, Minnehaha, Lincoln and Turner counties.

One day later, Navigator also sent letters to a number of affected landowners, providing them with at least a month's notice of when they plan to enter their properties, fulfilling the other prerequisite of the law.

Brian Jorde, an attorney representing a number of landowners who received letters from Navigator, told Farm Forum on Friday the company is operating under the assumption South Dakota's eminent domain laws - that an entity can take private property for public uses - work in their favor and may file lawsuits against landowners who attempt to bar surveyors from accessing their property.

According to SDCL 21-35-31, people or organizations to whom eminent domain applies may examine and survey sites for their facilities as necessary. Jorde, however, said this provision does not explicitly apply to Navigator.

"Their interpretation is similar to Summit [Carbon Solutions] in that they only have to send a 30-day notice and they can do drilling and trenching and other invasive efforts on landowner's property," the Omaha, Nebraska-based attorney said.

More: What will sway PUC's decision to permit SD's first CO2 pipeline? Here's what we know.

Jorde previously filed injunctions against Summit Carbon Solutions, another carbon capture company that plans to construct a 2,000-mile pipeline through South Dakota, North Dakota, Iowa, Minnesota and Nebraska. Summit sued three sets of Iowan property owners in September for immediate access to their lands, according to the Iowa Capital Dispatch, while Navigator filed similar injunctions against four sets of landowners in August. Summit has withdrawn at least one request for temporary access as of Oct. 20.

Jorde said Navigator's legal counsel reached out to him and indicated they will not survey land owners under his representation, but he added the development is a warning to landowners to seek legal counsel.

"So far, Navigator is, on this very limited, narrow issue, they've approached it better than Summit did," Jorde said. "Frankly, I think that they've seen all the mistakes that Summit has seen and they're not trying to fall into the same traps."

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

Navigator representatives declined to comment on the pending litigation between their company and affected landowners, but said the timing of certain surveys will vary based on weather conditions and time of year.

"In addition to feedback from landowners, there are a variety of technical details that are gathered from the surveys, which are critical and necessary to help guide in the ultimate routing of the pipeline," Navigator wrote in a statement to Farm Forum. "There are crews that evaluate constructability, environmental/biological, and cultural aspects of the land throughout the different phases of survey work.