Some Iowa landowners were confused by Summit Carbon Solution eminent domain process

On Thursday, Bluestem posted South Dakotans First: property rights coalition plans to lobby for eminent domain restrictions, a South Dakota Searchlight story about membership organizations and individual landowners uniting to restrict the eminent domain process being used in South Dakota.

It's not just ethanol carbon pipeline projects that are moving citizens to organized. Joshua Haiar also reported "South Dakotans First also plans to support the people living near and opposed to the newly proposed state prison location south of Harrisburg."

I'd missed this item in the Searchlight's sister venue Iowa Capital Dispatch about Iowa Utilities Board filings.

Some landowners were confused by Summit eminent domain process
Jared Strong

Landowners who are subject to eminent domain requests by a carbon dioxide pipeline company have had trouble navigating the state process that allows them to testify against the requests, according to Iowa Utilities Board filings.

Several people who requested to “intervene” in Summit Carbon Solutions’ permit process recently discovered that their intervenor status subjected them to different requirements and meant they weren’t scheduled to testify during a weekslong evidentiary hearing for the permit.

“We did not understand the Iowa Utility Board process and thought we had to sign up as intervening landowners to be able to testify,” wrote Nancy and Brad Miller, of rural Hartley.

Their status as intervenors meant that they needed to file written testimony before the hearing, whereas they merely intended to testify in a similar fashion to dozens of non-intervening landowners at the beginning of the hearing. Intervenors get an expanded role in the permit process and can, for example, cross-examine witnesses.

The Millers requested in late September — about a month into the evidentiary hearing — to withdraw their intervenor status and to testify.

“We understand we have the right to present our objection to the use of eminent domain on our … property and protect our livelihood,” the Millers wrote.

Summit seeks to build a 2,000-mile pipeline system through five states to transport captured carbon dioxide to North Dakota for underground sequestration. It is requesting eminent domain to gain land easements from unwilling landowners for about a quarter of its 687-mile route in Iowa.

Its permit process with the IUB has been ongoing for more than two years and is near its conclusion. An evidentiary hearing for the permit request that collects evidence and testimony and allows for cross-examination began Aug. 22 but suspended last week, when scheduling conflicts didn’t allow it to continue.

The board had intended to conclude in September but has repeatedly said it missed that goal because of the latitude it has given to pipeline opponents during cross-examinations.

“Due to continuing conduct by attorneys in this proceeding, which, either by design, lack of preparation, or inability to comply with procedural requirements, the board has been unable to complete the hearing to date,” the IUB said in its Wednesday order.

IUB blames others for miscommunications

Also in that order, the board said Summit’s hearing would resume in November with testimony from non-intervening landowners. The board granted the Millers’ request to withdraw as intervenors along with a request from another landowner.

“Based upon statements from multiple landowners and the failure of most intervenors to attend the hearing, it appears that one or more individuals or organizations were providing inaccurate information about the proceeding requirements to landowners,” the board said. “Such actions are harmful to the interests of landowners and should be reevaluated by those individuals.”

Jess Mazour, of the Sierra Club of Iowa, believes that was directed at her organization and was meant to deflect criticism that the board hasn’t done enough to ensure landowner participation.

The Sierra Club has been heavily involved in the permit process and has worked to help landowners participate, she said, and it didn’t advise landowners like the Millers to request to be intervenors.

She said the Sierra Club has recently contacted intervening landowners who haven’t filed written testimony and weren’t scheduled to testify, and suggested they request to withdraw as intervenors.

“They actually do want to testify, but they saw other landowners filing a petition to intervene and thought they had to,” Mazour said. “No one instructed them.”

Mazour estimates that landowners of more than 200 parcels that are subject to eminent domain are not scheduled to testify, and she blames a lack of communication by the IUB.

Summit was required by law to send landowners a mailed notice about the hearing. An IUB spokesperson said it’s the landowner’s decision how to proceed after that.

“How a person or entity seeks to participate in a proceeding before the IUB is a decision the IUB cannot assist the landowner with,” spokesperson Don Tormey said. “The IUB may provide an explanation between the different options of participation, but the decision is entirely the landowner’s.”

The board sent a questionnaire to those landowners in June to gauge their interest in mediation for easement agreements with Summit and how they might want to participate in the hearing, whether in-person or remotely via video conferencing. Those who responded to the survey and said they wanted to participate were later contacted by IUB staff, Tormey said.

“The board has provided considerably more outreach, flexibility, access, and information than would be typical for a hearing before an administrative body or court,” the IUB said Wednesday.

Tormey noted that the questionnaire was not required by law.

A Woodbury County landowner told the Iowa Capital Dispatch that she mistakenly requested to be an intervenor because she was misdirected by IUB staff.

“I’ve never seen anything so confusing,” said Carole Hennings, of rural Moville. “I originally registered as an intervenor because I walked into the IUB office, and they said, ‘Oh, here, just sign this, and we’ll get you set up to be an intervenor.’ I asked them, ‘Does that mean I can testify?’ And they said ‘yes.’ Well, that wasn’t true.”

Hennings asked this week to withdraw her intervenor status and hopes to testify at the hearing next month.

The IUB plans to resume witness testimony on Nov. 6-8 and will set aside up to three days for Summit’s rebuttal testimony, ending Nov. 17.

This Iowa Capital Dispatch article is published online under Creative Commons license CC BY-NC-ND 4.0.

Photo: Verle Tate (left), a Wright County landowner, testified Aug. 29, 2023 at the Summit Carbon Solutions evidentiary hearing. (Screenshot from IUB livestream).

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Oct 13, 2023

Some Iowa landowners were confused by Summit Carbon Solution eminent domain process

IUB blames others for miscommunications

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