South Dakota landowners are suing to stop Summit Carbon Solutions from using a 2016 South Dakota law that allows pipeliners and other builders of purportedly public infrastructure projects to enter and survey private land before the projects are permitted. Those litigious landowners may want to follow a parallel lawsuit in Iowa against CO2 pipeliner Navigator Heartland Greenway. Iowa Third Judicial Circuit Judge Roger L. Sailer just told Navigator they have to wait a while before barging in to survey William and Vicki Hulse’s land:
Navigator sued the Moville, Iowa, landowners in August after they twice denied the company’s agents access to their land, which lies in the pipeline’s proposed route, in late June to perform cultural and environmental surveys. The company sought the temporary injunction to order the Hulses to grant access to the land and have a sheriff’s deputy present, if needed, to ensure surveyors could complete their task.
…The Hulses filed a counterclaim that included the constitutional challenge and asked for their own injunction prohibiting Navigator’s agents from entering their property until the constitutionality issue has been decided….
[Navigator attorney Brian] Rickert had argued Navigator would suffer irreparable harm if it could not finish the remaining surveys before winter and finalize the pipeline route.
Though Navigator has a statutory right to conduct the survey and may suffer some harm, the claim was “questionable at best,” Sailer said, citing the counter argument of the Hulses’ attorney, Brian Jorde, who had said the company still is in the early stages of the lengthy process to gain a permit from state regulators and has hundreds of surveys yet to complete along the proposed route [Nick Hytrek, “Woodbury Judge Denies CO2 Pipeline Company’s Injunction Request to Survey Private Property in Moville,” Sioux City Journal via NE Iowa News, updated 2022.10.09].
Jorde’s win for the Hulses at this stage is not a slam dunk. Judge Sailer does not endorse the landowners’ primary claim, that the Iowa statute authorizing Navigator’s entry for survey without landowner permission is unconstitutional. Judge Sailer says both sides offer “compelling arguments…: Economic development and environmental benefit on the side of Plaintiff; and protection of ‘one of the most treasured rights of property ownership’ against government invasion on the side of Defendants.” The judge is keeping Navigator off the Hulses’ land for now only because issuing the injunction Navigator seeks would moot the whole case:
This is not a typical Motion for Temporary Injunction, seeking to prevent or compel some action during the pendency of the underlying case until the Court can reach the merits at trial. In this case, if the Court grants Plaintiff’s Motion for Temporary Injunction, Plaintiff will have the right of entry they seek, they will enter on Defendants’ land, the land survey will be completed, and Plaintiff will be whistling down the road with no need for further litigation, whereas Defendants will be left holding an empty bag without ever having the opportunity to litigate the merits. The underlying Petition would certainly be rendered moot. Defendants’ counterclaim for injunctive relief would certainly be rendered moot. And there is some question as to whether Defendants’ counterclaim for declaratory relief on constitutionality could survive as a justiciable controversy. As the Court put it at the hearing, if this temporary injunction is granted, you can’t put the toothpaste back in the tube [Judge Roger L. Sailer, Order Re: Plaintiffs Motion for Temporary Injunction, Navigator Heartland Greenway LLC vs. William P. Hulse and Vicki Hulse, Iowa District Court for Woodbury County, 2022.10.07].
Summit has filed similar lawsuits against Iowa landowners, and Jorde is also lawyering for South and North Dakota landowners against Summit and its CO2 pipeline.
Ted Turner s rumored to be the largest landowner in South Dakota and Nebraska. What happens when his private land is invaded without consent? Unlike the judge I fail to see environmental advantages to installing high pressure pipelines that eventually, if not sooner, will leak.