Pipeline vs. farmer: Iowa Supreme Court to decide if Summit has right to access farmland

It's unconstitutional for Summit Carbon Solutions to survey private property for its $8 billion carbon capture pipeline before winning eminent domain powers, an attorney for a north Iowa farmland owner argued to the Iowa Supreme Court in a special evening session Tuesday.

Brian Jorde, an attorney for Kent Kasischke, said in a filing to the court that Summit’s entry onto his client's Hardin County property constituted taking private property without compensation, violating the U.S. Constitution’s Fifth Amendment that protects "the citizen from seizure of their property."

Summit "wants to go out and kick the tires on a car it can't legally purchase and do so at a dealership it can't access," Jorde told the court's seven justices Tuesday, in the packed Historic Supreme Court Courtroom at the Iowa State Capitol.

Chief Justice Susan Christensen said the court hadn't heard arguments in their old chambers since 2003, when it moved to a new location a couple blocks away.

The Ames company proposes building a 2,500-mile pipeline to capture carbon dioxide at dozens of ethanol plants in Iowa and four other states, liquefy the gas under pressure, and transport it to North Dakota to be sequestered deep underground.

Summit seeks to build about 1,000 miles of the pipeline across Iowa, including Kasischke's farmland.

Summit attorney Ryan Koopmans said the company followed Iowa law, properly notifying the landowner the company planned to survey the property.

"It is about as simple as it can be," Koopmans said. Unless Kasischke's attorney "can prove that the statute is unconstitutional under any application, under any set of facts, they lose that challenge."

In a filing, Summit's attorneys wrote that Kasischke never enjoyed the right to exclude "prospective condemnors" from surveying his land. It “is clear that the common law recognizes, and state and federal courts have consistently upheld, the privilege to enter private property for survey purposes before exercising eminent domain authority,” Bret Dublinske wrote in a brief filed with the court.

Koopmans said finding the law unconstitutional would impact public and private projects. It would "be an on or off switch. Either we all get survey access or none of us do," he said, noting that Iowa's survey law dates back to 1851, six years before its constitution was ratified.

"If we don't have it, then the Iowa DOT doesn't have it. Railroads don't have it. Electric utilities don't have it" for projects, Koopmans said, adding that those groups would have to ask to condemn Iowa landowners' property to accomplish a "short survey."

Before the Supreme Court heard arguments, about 100 pipeline opponents rallied at the Capitol steps to support Kasischke and filled the court's chamber and an "overflow room."

How did the pipeline controversy reach this point?

Summit, a spinoff of Bruce Rastetter’s Summit Agricultural Group, seeks to build a pipeline across parts of Nebraska, Minnesota and South Dakota, in addition to Iowa and North Dakota.

The project has sparked opposition from landowners in Iowa and other states as well as city and county officials, state lawmakers and others, concerned about the pipeline’s safety, its effect on farmland and adversely impacting residential and commercial development.

They also oppose Summit’s use of eminent domain to force unwilling landowners to sell access to their land for the project. While regulators are weighing the project in other states, the Iowa Utilities Commission agreed to give Summit a permit this summer to build the hazardous liquid pipeline and grant it eminent domain powers.

Summit says the pipeline is safe and critical to lowering ethanol’s carbon emissions, making it viable for use in developing the next generation of sustainable renewable fuel and helping the nation cut greenhouse gas emissions that contribute to climate change. It also allows ethanol to qualify for billions of dollars in federal tax credits.

Iowa is the nation’s largest corn grower, with about half of the annual crop used to make ethanol.

Here's what to know about the case the justices are weighing:

What legal action led to the Iowa Supreme Court appeal?

In 2022, Summit sought an injunction, forcing Kasischke to allow the company to survey his land as it considered the route for the proposed underground pipeline. Summit said it needs to survey landowners' property to determine the "direction and depth of the proposed pipeline."

Kasischke filed a counterclaim, saying the company failed to provide him with adequate notice, that the state law is unconstitutional and that Summit isn't a pipeline company. A district court judge ruled in Summit's favor last year.

What are some issues that the Iowa Supreme Court will consider?

In addition to weighing the constitutionality of Iowa's law allowing companies to survey property, the justices will consider whether Summit qualifies as a pipeline company and whether Kasischke received proper notice, under state law.

Jorde wrote that Summit doesn't qualify as a pipeline company because the project would move liquefied carbon dioxide in a "supercritical state," moving it under high pressure and high temperatures. Iowa's law outlines moving carbon dioxide in a liquid state. He said the district court judge speculated that the state Legislature intended for carbon dioxide to be moved in a supercritical state.

Dublinske, a Summit attorney, said in a filing the most common way to move carbon dioxide in the 5,000 miles of existing CO2 pipelines is in a supercritical state.

"The hyper-technical interpretation that Kasischke proposes ignores the Iowa Legislature’s intent, not to mention industry practice and common sense," Dublinske wrote.

"To us, it's a liquid," Koopmans told justices. "To the very intelligent, perhaps to a chemist, it's something different. … This court and the U.S. Supreme Court has always said that terms should be interpreted in their ordinary or customary" way, "not their scientific meaning."

Both attorneys answer tough questions about notice provided Kasischke and his tenant

Summit said it sent three letters to Kasischke, notifying the landowner that it planned to survey his property. Jorde said a letter sent to the addressee could have been signed by anyone. And "the tenant was never served, period," Jorde said.

But Christensen, the chief justice, said the "first receipt has your client's signature on it, and then your client refused the second and third." Kasischke told the district court the return receipt for the first letter “appears to be” his signature.

And there were questions about whether there was a tenant. The district court judge wrote in her order that Kasischke was "not credible, disingenuous and at best, evasive," when asked about a tenant, Christensen said.

"Frankly, I haven't the foggiest idea how she would come up with that," Jorde said, adding that the tenant provided sworn testimony he had a cash lease to rent the farmland. Summit never asked Kasischke if he had a tenant, Jorde said. "The burden was on them" to notify the tenant.

The Hardin County district judge sided with Summit, saying the company provided the landowner with adequate notice.

What's next in the Summit Carbon Solutions pipeline case?

Several landowners and groups have appealed the Iowa Utilities Commission's decision to give Summit a permit and eminent domain powers.

North Dakota regulators are reconsidering their denial of Summit's permit request, and Summit has said it plans to again submit a request in South Dakota after it was denied last year.

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

This article originally appeared on Des Moines Register: Pipeline vs. farmer: Iowa Supreme Court to decide if Summit has right to access farmland