The Iowa Supreme Court hears oral arguments in Summit Carbon Solutions, LLC v. Kent Kasischke on Tuesday, Oct. 8, 2024, at the historic Iowa Supreme Courtroom at the State Capitol. (Pool photo by Cody Scanlan/Des Moines Register)
The Iowa Supreme Court affirmed a lower court’s decision that Summit Carbon Solutions is allowed temporary access to properties for surveying, because it is a pipeline company that would be transporting a hazardous liquid.
The case involved Kent Kasischke, a Hardin County landowner who refused to let Summit surveyors on his land to survey for their proposed pipeline that would transport carbon dioxide, primarily sequestered from ethanol plants, to underground storage in North Dakota.
The Iowa Supreme Court heard oral arguments on the case in early October.
Kasischke argued Iowa Code section 479B.15, which allows a pipeline company to enter private land to survey, was unconstitutional because the invasion of property required compensation.
Justice Thomas Waterman, who issued the court’s decision, said Kasischke’s argument “fails.”
“He has no right to exclude the surveyor because section 479B.15 is a lawful pre-existing limitation on his title to the land,” the decision said.
According to the decision, this is consistent with rulings in “at least four” district courts, including the Iowa District Court for Hardin County that originally ruled in the case, and with Supreme Court decisions in North Dakota and South Dakota.
The decision in South Dakota, while it upheld the constitutionality of a similar statute in the state, was touted as win by those opposed to the pipeline because it said the company must prove it is a common carrier and said surveying was only constitutional if they were “minimally invasive superficial inspections that, at most, cause minor soil disturbances.”
A press release from the Iowa Easement Team and Bold Alliance, groups opposed to the pipeline that supported Kasischke, and his attorney, Brian Jorde, said the Friday Iowa Supreme Court’s decision “sidesteps” questions around surveying.
“Right now Iowa has no guardrails as to the level of invasive activity a pipeline company can do to private property as they can claim anything they want to do falls under ‘survey’ or ‘examination,’” the press release said.
Jorde, who has represented numerous landowners in cases against Summit, said “we will have to go back to the Court” to address the limitations, with a hope that Iowans will be granted the “same protections” as South Dakotans.
As part of its ruling, the Iowa Supreme Court affirmed the district court’s decision that Summit Carbon Solutions is a pipeline company and fits the definition under Iowa Code by transporting a hazardous liquid.
Kasischke argued the supercritical carbon dioxide that would be transported in the pipeline was not a liquid.
Waterman’s written decision said the court relied on testimony from the district court trial for its decision, though he noted that since the district court trial, the Iowa Utilities Commission (then the Iowa Utilities Board) “determined that supercritical carbon dioxide is a liquefied carbon dioxide.”
The CEO of Summit Carbon Solutions, Lee Blank, said in a statement Friday the Iowa Supreme Court’s decision was a “win for infrastructure projects across the state and the nation.”
“It underscores the importance of balancing landowner rights with the need to advance critical infrastructure that benefits communities, agriculture, and the broader economy,” Blank said.
The press release said the ruling “confirms” the company has met “all statutory requirements” and it supports infrastructure “vital to enhancing economic competitiveness and ensuring energy and agricultural sustainability.”
Opponents of the pipeline project said in their press release, the ruling “did not conclude” the proposed 2,500 mile pipeline is a public use, nor that the company is a common carrier.
However, Summit was granted use of eminent domain in August when the Iowa Utilities Commission approved its permit.
A final element of the case was whether or not Kasischke had a tenant on the property who would have impacted Summits’ efforts to provide adequate notice of their plans to survey his property.
Waterman wrote the court agreed with the district court’s credibility analysis calling Kasischke’s testimony on the issue “evasive and not credible.”
Jorde and the Iowa Easement Team called this “puzzling and disappointing, but a minor issue to the appeal.”
The Iowa justices affirmed that Summit complied with notice requirements and the district court’s ruling and injunction.
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