William Petroski

bpetrosk@dmreg.com

Twenty-two percent of the Dakota Access oil pipeline in Iowa has already been welded and lowered into trenches, and three-fourths of the route has been cleared, pipeline lawyers have told Iowa utility regulators.

The Iowa Utilities Board voted 3-0 Thursday to reject a plea by Iowa landowners to block pipeline construction on 17 parcels of their property until a judge can rule on a lawsuit challenging the use of eminent domain to condemn land for the project and other issues. Those 17 parcels represent only a fraction of the 1,295 parcels of land along the 346-mile pipeline route in Iowa. The landowners' request for a stay on construction now heads to Polk County District Court, where a motion is expected to be filed no later than Friday.

The state board heard arguments from both sides Thursday. Hundreds of union members employed on the pipeline project rallied in support of continued construction outside the Iowa Utilities Board's office prior to the hearing. Scores of them wearing orange and yellow safety vests jammed the board's hearing room as legal issues were debated.

Chairwoman Geri Huser said the board ultimately concluded the landowners are unlikely to prevail in their lawsuit and halting the pipeline construction would harm Houston-based Dakota Access LLC, which is building the pipeline. She said she recognized the landowners were in a difficult situation involving the timing of the project, but she added that it was caused by their own decisions.

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Bret Dublinske of Des Moines, a lawyer representing Dakota Access, told state regulators the landowners’ motion for a stay on the construction work was simply a backdoor move to seek reconsideration of the board’s earlier decision to approve the project through 18 Iowa counties.

"Procedurally, everything they have done has been wrong. They should be out of options. They should not be allowed another bite of the apple.” Dublinske said.

But Bill Hanigan of Des Moines, an attorney representing the landowners, argued they were likely to succeed in court, saying the Iowa Utilities Board was wrong in approving the use of eminent domain for the pipeline project.

“The central issue in this case is the question of whether a private entity which provides no services to Iowa ... may use police powers to take private property from citizens for its private purposes and private profits," Hanigan said.

The Iowa Utilities Board earlier this week ordered a halt on construction on those 17 parcels until Monday to allow time for legal issues to be debated. Huser said Thursday the temporary halt will remain in place until Monday to allow time for landowners to file their motion in court. But Dakota Access lawyers said in documents filed with the board that construction crews have already cleared land on about three-fourths of the Iowa pipeline route and grading has been accomplished on about half of the route, including the separation of topsoil.

In South Dakota, 93 percent of the pipeline has already been constructed. In North Dakota, the project is 63 percent finished, and in Illinois it is 62 percent complete, Dakota Access lawyers said

"Good progress has been made in Iowa," said Dublinske, who contended the landowners are pressing their case "far too late in the game.".

Hanigan urged state regulators to consider the landowners' rights. “You have to look at all the laws ... and that includes due process," he said.

The entire $3.8 billion pipeline, which will transport up to 570,000 barrels of oil daily from North Dakota to Illinois, is scheduled to be in operation in November. Delaying work on the 17 parcels could cause project-wide delays costing millions of dollars, Dakota Access argued.

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Lawyers for owners of the 17 land parcels have raised constitutional issues over the Iowa Utilities Board’s authority to allow forced condemnation of farmland for a privately owned pipeline project. In addition, the Iowa chapter of the Sierra Club has challenged the board’s decision to approve the pipeline project. A trial on the issues is scheduled for December in Polk County District Court, but the pipeline could already be transporting crude oil by then from North Dakota's Bakken oil patch.

However, a separate case is pending in federal court in Washington, D.C., in which a judge is expected to rule by Sept. 9 on a request for an injunction by the Standing Rock Sioux tribe to stop the pipeline project. The tribe, which has a reservation in South Dakota and North Dakota, is suing the U.S. Army Corps of Engineers, alleging violation of the National Historic Preservation Act during the pipeline permitting process.

Outside of regulatory agencies and courtrooms, activists opposed to the pipeline in Iowa say they plan to step up their fight. Ed Fallon, a former state legislator from Des Moines and an anti-pipeline leader, said protesters intend to engage in civil disobedience Wednesday at a yet-to-be-announced site in rural Boone County, where construction on the pipeline is underway. Fallon said more than 1,000 people have signed a petition in supporter of pipeline protesters and more than 300 have pledged to risk arrest to stop the project, although he doesn't expect that many will show up next week.