Summit Carbon Solutions, LLC, Appellee, vs. Kent Kasischke, Appellant.
No. 23-1186
In The Iowa Supreme Court
Submitted October 8, 2024—Filed November 22,
Appeal from the Iowa District Court for Hardin County, Amy M. Moore, Judge.
A landowner appeals a judgment allowing a pipeline surveyor access to his private property under
Waterman, J., delivered the opinion of the court, in which all justices joined.
Brian E. Jorde (argued) and Christian T. Williams of DominaLaw Group pc llo, Omaha, Nebraska, for appellant.
Ryan G. Koopmans (argued) of Koopmans Law Group, LLC, Des Moines; Bret A. Dublinske, Brant M. Leonard, Kristy Dahl Rogers, and Nicci M. Ledbetter of Fredrikson & Byron, P.A., Des Moines; and Brian D. Boone and Michael R. Hoernlein of Alston & Bird LLP, Charlotte, North Carolina, for appellee.
Jason W. Grams and Theodore T. Appel (until withdrawal), of Lamson, Dugan & Murray, LLP, West Des Moines, for amici curiae Liquid Energy Pipeline Association and American Petroleum Institute.
Tara Z. Hall of Dentons Davis Brown PC, Des Moines, and Colin Smith, of Sullivan & Ward, West Des Moines, for amici curiae Iowa Utility Association and Iowa Association of Electric Cooperatives.
Waterman, Justice.
This appeal presents our court‘s first, limited, foray into legal challenges to a proposed underground carbon dioxide pipeline. A Hardin County landowner refused to allow a surveyor for the pipeline developer to enter his private property. The district court ordered the landowner to allow the surveyor temporary access pursuant to
On our review, we hold that the district court correctly rejected this facial challenge to
I. Background Facts and Proceedings
Summit Carbon Solutions, LLC, (Summit) is developing a multistate pipeline system to transport carbon dioxide captured at corn ethanol production facilities to North Dakota, where it will be sequestered underground. The project is touted as ameliorating climate change by removing carbon dioxide from the atmosphere that would otherwise contribute to global warming. The project‘s supporters argue it will enhance the marketability of corn ethanol fuel and thereby raise corn prices, a key contributor to the Iowa economy. Summit proposes to build a network of underground pipelines extending over 2,000 miles across five states: Iowa, Minnesota, Nebraska, South Dakota, and North Dakota. The proposed pipeline would cover over 700 miles in Iowa across thirty counties, including Hardin County, where Kent Kasischke owns land in its path.
On September 13, 2021, Summit conducted an informational meeting in Hardin County about its proposed pipeline, as required by
Summit sought access to land along the proposed route to complete preliminary civil, environmental, archaeological, and soil surveys and investigations. Kasischke denied Summit access to his land. Summit sought to compel access under
After the informational meeting or after the filing of a petition if no informational meeting is required, a pipeline company may enter upon private land for the purpose of surveying and examining the land to determine direction or depth of pipelines by giving ten days’ written notice by restricted certified mail to the landowner as defined in
section 479B.4 and to any person residing on or in possession of the land. The entry for land surveys shall not be deemed a trespass and may be aided by injunction. The pipeline company shall pay the actual damages caused by the entry, survey, and examination.
On July 14, Summit sent a second letter to Kasischke by restricted certified mail again requesting access to his property. This letter threatened legal action if Kasischke continued to refuse access to surveyors. The letter was again sent in an envelope marked as “USPS CERTIFIED MAIL” with the notation “RESTRICTED DELIVERY.” Kasischke refused to accept delivery of this letter.
On September 19, Summit filed a petition for injunctive relief to compel access under
On March 17, 2023, Summit moved for summary judgment on grounds that
Iowa law makes clear that survey access is a long-recognized background restriction on private property. . . . Nationally, all fifty states have a statutory allowance for entities to enter private property for pre-condemnation surveys without trespass liability. Based upon the foregoing, the court finds that
section 479B.15 falls well within the background restrictions identified in Cedar Point, which renders its holding inapplicable to Mr. Kasischke‘s challenge.
(Citation omitted.)
On May 16, the district court conducted a bench trial on the remaining issues of Summit‘s compliance with the statute. During this trial, Kasischke orally moved to amend his answer to deny for the first time that Summit is a pipeline company within the meaning of
Kasischke testified about his interactions with Summit. In his direct testimony, he denied ever receiving the March 12, 2022 letter. On cross-examination, he acknowledged the return receipt “appeared” to bear his signature. He denied refusing delivery of the July 14 letter but admitted he had discussed with neighbors the strategy
Kasischke submitted the affidavits of two chemical engineers who opined that carbon dioxide in its supercritical state differs from its liquid state. One of these experts explained:
Another way to look at this is that Summit or CSC can require facilities injecting into their pipeline at various points as supercritical fluid at temperatures and pressures above the critical point, but once the temperature along the pipeline falls to below about 88 ℉, the material i[s] no longer supercritical but a liquid . . . , and would make that segment of pipeline if within Iowa I believe a pipeline company.
(Emphasis added.) He “conclude[d] the proposed pipeline system will be largely operated in liquid phase.” Summit submitted an affidavit from its chief operating officer, who described the process of transforming carbon dioxide into its supercritical state as “pressurized above its critical point, which results in converting the [carbon dioxide] to a fluid state.”
On July 11, the district court ruled for Summit on all remaining issues. The court questioned the credibility of Kasischke‘s experts because “neither affiant identifie[d] their education, training, background or experience” and “both affidavits are nearly identical to one another, despite the fact that neither affiant attests to any familiarity with the other.” The court credited Summit‘s expert and “based upon the evidentiary record, the Iowa Legislature‘s purpose in enacting
it would be nonsensical to hold that companies transporting carbon dioxide through pipelines at higher temperatures and higher pressures than carbon dioxide in its liquid phase are exempt [from
chapter 479B ] . . . regardless of the fact that carbon dioxide being transported may not always meet a scientifically precise definition of “liquefied” at every moment in the transportation process.
The district court noted that federal courts and regulators have determined that supercritical carbon dioxide is a hazardous liquid under the federal Pipeline Safety Act (PSA).
The district court found that the letters sent to Kasischke satisfied the statutory notice requirements while noting “Mr. Kasischke‘s clearly evasive and implausible testimony regarding Summit‘s mailings.” The court found that there was no tenant on Kasischke‘s property at issue who required additional notice. The court observed that “it [is] highly improbable that [Kasischke] could not have produced at least a modicum of written evidence, whether in the form of a lease agreement, payment record, or other documentation, to support his assertion that a leasehold exists.” Finally, the court ruled that Summit did not need to show irreparable harm because the statute itself permitted injunctive relief. The district court entered judgment enjoining Kasischke from interfering with Summit‘s “entry upon his land for the purpose of surveying and examining the land to determine the direction or depth of its proposed pipeline.”
Kasischke appealed, and we retained the case.
We review constitutional challenges to statutes de novo. Kluender v. Plum Grove Invests., Inc., 985 N.W.2d 466, 469 (Iowa 2023). “[W]e presume statutes are constitutional, ‘imposing on the challenger the heavy burden of rebutting that presumption.’ ” In re Guardianship of L.Y., 968 N.W.2d 882, 892 (Iowa 2022) (quoting Santi v. Santi, 633 N.W.2d 312, 316 (Iowa 2001)). “[I]n a facial challenge, the challenger must prove that a statute is ‘totally invalid and therefore, incapable of any valid application.’ ” Kluender, 985 N.W.2d at 470 (emphasis omitted) (quoting Bonilla v. Iowa Bd. of Parole, 930 N.W.2d 751, 766 (Iowa 2019)). “A facial challenge asserts the law always operates unconstitutionally and not just as applied in particular circumstances,” making it the most difficult challenge a plaintiff can mount. League of United Latin Am. Citizens of Iowa v. Pate, 950 N.W.2d 204, 209 (Iowa 2020) (per curiam). Facial challenges are disfavored because they “run contrary to the fundamental principle of judicial restraint.” Kluender, 985 N.W.2d at 470 (quoting Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 450 (2008)). If there is any set of facts where the statute could be held constitutional, we will reject the facial challenge. See id.
“We review rulings on statutory interpretation for correction of errors at law.” EMC Ins. Grp., Inc. v. Shepard, 960 N.W.2d 661, 668 (Iowa 2021). We review rulings granting summary judgment for correction of errors at law. Id.
We review de novo a district court‘s order issuing an injunction. City of Okoboji v. Parks, 830 N.W.2d 300, 304 (Iowa 2013). ” ‘Although the trial court‘s factual findings are not binding’ in an action seeking an injunction, ‘we give weight to the court‘s assessment of the credibility of the witnesses.’ ” Id. (quoting Opat v. Ludeking, 666 N.W.2d 597, 603 (Iowa 2003)).
III. Analysis
We first address Kasischke‘s facial constitutional challenge to
A. Whether Section 479B.15 Is Facially Unconstitutional Under the Takings Clauses.
The district court rejected Kasischke‘s facial challenge to
The Takings Clause of the
At least four Iowa district court judges have adjudicated facial constitutional “takings” challenges to
To determine whether a statute unconstitutionally takes property, we apply a three-step test: “(1) Is there a constitutionally protected private property interest at stake? (2) Has this private property interest been ‘taken’ by the government for public use? and (3) If the protected property interest has been taken, has just compensation been paid to the owner?” City of Eagle Grove v. Cahalan Invs., LLC, 904 N.W.2d 552, 560 (Iowa 2017) (quoting Kingsway Cathedral, 711 N.W.2d at 9). The fighting issue in this case is limited to prong two: whether private property has been taken.
A taking traditionally occurs in one of three ways:
(1) a per se taking arising from a permanent physical invasion of property, (2) a per se taking arising from regulation that denies the owner all economically beneficial ownership, and (3) a regulatory taking based on the balancing of the three Penn Central factors.
Brakke v. Iowa Dep‘t of Nat. Res., 897 N.W.2d 522, 545 (Iowa 2017) (citing Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 124 (1978)); see also Horne v. Dep‘t of Agric., 576 U.S. 350, 360 (2015) (identifying the same three types of takings). Kasischke does not argue that
Cedar Point Nursery concerned a California regulation that required growers to allow “access by union organizers to the[ir] premises . . . for the purpose of meeting and talking with employees and soliciting
A dispute over access arose between Cedar Point Nursery and the United Farm Workers Union. Id. at 145. Cedar Point Nursery sued, claiming the regulation constituted a per se taking under the
Cedar Point Nursery‘s holding is expressly limited by three exceptions. “First, . . . [i]solated physical invasions, not undertaken pursuant to a granted right of access, are properly assessed as individual torts [of trespass] rather than appropriations of a property right.” Id. at 159. “Second, many government-authorized physical invasions will not amount to takings because they are consistent with longstanding background restrictions on property rights.” Id. at 160. Indeed, “the government does not take a property interest when it merely asserts a ‘pre-existing limitation upon the land owner‘s title.’ ” Id. (quoting Lucas, 505 U.S. at 1028–29). “Third, the government may require property owners to cede a right of access as a condition of receiving certain benefits, without causing a taking.” Id. at 161.
Summit argues that survey access is a longstanding background restriction and therefore a recognized exception to the Court‘s per se taking jurisprudence. We agree. “The law has . . . long recognized a right to enter land to survey it for eminent domain or other public purposes.” Bethany R. Berger, Property and the Right to Enter, 80 Wash. & Lee. L. Rev. 71, 101 (2023). In fact, statutes authorizing entry to conduct surveys are as old as the republic itself. Id. at n.187 (observing Pennsylvania‘s survey entry law was first enacted in 1782). Throughout the 1800s, courts across the country routinely held that entry onto private property for the purpose of conducting a survey was not a taking. See, e.g., Bonaparte v. Camden & A.R. Co., 3 F. Cas. 821, 831 (C.C.D.N.J. 1830) (No. 1,617) (“An entry on private property for the sole purpose of making the necessary explorations for location [of a railroad], is not taking it . . . .“); Walther v. Warner, 25 Mo. 277, 289 (1857) (“We are not to be understood, however, as denying to the Legislature the power of authorizing an entry upon private property, without compensation, for the purpose of making the preliminary examinations and surveys before the location of the road.“); Bloodgood v. Mohawk & Hudson R.R., 18 Wend. 9, 12 (N.Y. 1837) (“The law contemplates and authorizes an entry and possession for the purposes of survey and examination, and
Throughout the twentieth century, technological advances led to surveys for new purposes, such as finding appropriate routes for electrical power lines. See, e.g., Wood v. Miss. Power Co., 146 So. 2d 546, 549 (Miss. 1962) (“[T]he Power Company had the right . . . to enter upon the appellant‘s land and make such examination and survey as was necessary for the proper location of the proposed transmission line.“). As the purposes for these surveys expanded, legislatures and courts continued to allow access to private property. See, e.g., State v. Simons, 40 So. 662, 662 (Ala. 1906) (“The entering upon the premises for the purposes of ‘examinations and surveys . . .’ [is] not a violation of the constitutional provision which requires that just compensation shall first be paid before property is condemned and taken . . . .“); Penn v. Carolina Va. Coastal Corp., 57 S.E.2d 817, 820 (N.C. 1950) (“[P]reliminary surveys [for determining location of toll road] . . . are insufficient to constitute a taking . . . .“); Cleveland Bakers Union Loc. No. 19 Pension Fund v. State, 443 N.E.2d 999, 1002 (Ohio Ct. App. 1981) (“The overwhelming majority of courts . . . have held that entry onto private property . . . for the purpose of conducting preliminary surveys and appraisals, does not amount to a ‘taking’ for which compensation must be awarded.“). Today, all fifty states have statutes authorizing entry to private property for the purpose of conducting preliminary land surveys in exercising eminent domain. Palmer v. Atl. Coast Pipeline, LLC, 801 S.E.2d 414, 418 & n.2 (Va. 2017).
Iowa, too, has long authorized statutory access to private property to conduct land surveys. In 1843 (prior to Iowa‘s statehood), our territorial law permitted surveyors to enter private property to determine routes for roadways.
If we were to hold that
The California regulation struck down in Cedar Point Nursery is quite different from the limited access allowed for surveyors. The California regulation required access for union organizers to private property for three hours daily for 120 days (four, thirty-day periods) per calendar year. Cedar Point Nursery, 594 U.S. at 144;
Two of our neighboring states have rejected facial constitutional challenges to statutes allowing surveyor access for this carbon dioxide pipeline project. In SCS Carbon Transport LLC v. Malloy the North Dakota Supreme Court held that the state‘s access statute was not an unconstitutional taking. 7 N.W.3d at 271–72.3 Rather, “[t]he entry statute codifies a background principle of state property law as a limitation on the bundle of sticks that state law defines as property rights.” Id. at 277. Because the entry was consistent with longstanding background restrictions, the court held that the entry authorized by the statute was not a taking. Id.
In Betty Jean Strom Trust v. SCS Carbon Transport, LLC, the South Dakota Supreme Court reached the same conclusion in rejecting a takings challenge to that state‘s surveyor access statute. See 11 N.W.3d at 93–94.4 The court held
that “limited pre-condemnation standard surveys are a longstanding background restriction on property rights” and therefore do not violate the
We hold that land surveys allowed in
B. Whether Summit Is a “Pipeline Company” Within the Meaning of Chapter 479B.
Kasischke argues that the district court erred by ruling that Summit is a pipeline company within the meaning of
We read the statute as a whole. Doe v. State, 943 N.W.2d 608, 610 (Iowa 2020). The legislature codified the purpose of
It is the purpose of the general assembly in enacting this law to grant the utilities board the authority to implement certain controls over hazardous liquid pipelines to protect landowners and tenants from environmental or economic damages which may result from the construction, operation, or maintenance of a hazardous liquid pipeline or underground storage facility within the state, to approve the location and route of hazardous liquid pipelines, and to grant rights of eminent domain where necessary.
Kasischke‘s own expert chemical engineer testified by affidavit that “the proposed pipeline system will be largely operated in liquid phase.” Summit‘s Chief Operating Officer, who has over twenty-five years of experience in the pipeline and energy infrastructure industry, described supercritical carbon dioxide as “pressurized above its critical point, which results in converting the [carbon dioxide] to a fluid state.” He opined that supercritical carbon dioxide is a fluid and flows as a liquid would. His description is well supported. See, e.g., Sarah Anne Lishman, Deep in the Heart of Texas: How Carbon Sequestration Will Affect Valuation of the Subsurface, 45 Saint Mary‘s L.J. 283, 303 (2014) (describing carbon dioxide in pipelines as being in a “supercritical liquid state“); Arnold W. Reitze Jr., Federal Control of Carbon Capture and Storage, 41 Env‘t L. Rep. News & Analysis 10796, 10801 (2011) (describing supercritical carbon dioxide as a “supercritical fluid“).
Transporting carbon dioxide in its supercritical state is the industry standard. See Robert R. Nordhaus & Emily Pitlick, Carbon Dioxide Pipeline Regulation, 30 Energy L.J. 85, 86–87 (2009) (explaining that operators typically transport carbon dioxide through pipelines in its supercritical state); Keegan Cassady, Note, Better Late Than Never? Combating Climate Change Through Carbon Capture Utilization and Storage, 27 Drake J. Agric. L. 273, 285 (2022) (“[M]ost carbon is transported in a supercritical liquid state . . . .“). Under federal pipeline regulations implemented under the PSA, “[c]arbon dioxide means a fluid consisting of more than 90 percent carbon dioxide molecules compressed to a supercritical state.”
We note that after the district court‘s ruling in this case, the IUB determined that supercritical carbon dioxide is a liquefied carbon dioxide, which in turn is a hazardous liquid within the meaning of
Supercritical fluid “is a material that can either be liquid or gas, used in a state above the critical temperature and critical pressure where gases and liquids coexist.” Fortunati, Luzi, Puglia, & Torre, Extraction of Lignocellulosic Materials from Waste Products in Multifunctional Polymeric Nanocomposites Based on Cellulosic Reinforcements 22 (Elsevier 2016). As supercritical fluids exhibit properties of both gases and liquids,
Iowa Code chapter 479B governs. Carbon dioxide in pipelines is usually compressed to above the critical point as these supercritical properties are the most favorable for both transport and sequestration. Therefore, by using the term [” ]liquefied carbon dioxide,” the Iowa legislature covered the most common method of transporting carbon dioxide within the definition ofIowa Code chapter 479B .
Id. (emphasis added). The IUB also relied in part on standards promulgated by the American Society of Mechanical Engineers (ASME).
Furthermore, ASME has determined that for its standards, which are included in PHMSA‘s rules, supercritical carbon
We have deferred to the IUB‘s interpretation of technical terms in
where the General Assembly clearly delegates discretionary authority to an agency to interpret or elaborate a statutory term based on the agency‘s own special expertness, the court may not simply substitute its view as to the meaning or elaboration of the term for that of the agency but, instead, may reverse the agency interpretation or elaboration only if it is arbitrary, capricious, unreasonable, or an abuse of discretion—a deferential standard of review.
Renda v. Iowa C.R. Comm‘n, 784 N.W.2d 8, 11 (Iowa 2010) (quoting Arthur E. Bonfield, Amendments to Iowa Administrative Procedure Act, Report on Selected Provisions to Iowa State Bar Association and Iowa State Government 62 (1998)); see also NextEra Energy Res. LLC v. Iowa Utils. Bd., 815 N.W.2d 30, 50 (Iowa 2012) (Mansfield, J., concurring specially) (“Historically, we have deferred to the Iowa Utilities Board‘s interpretation of the complex and technical laws that it administers.“). “Liquified carbon dioxide” is a technical term within the special expertise of the IUB. See, e.g., Puntenney, 928 N.W.2d at 836 (concluding that ” ‘public convenience and necessity’ is a term of art within the expertise of the IUB“). The term is not defined in
Nevertheless, the IUB‘s interpretation is at issue in a contested case pending before another district court in a
We affirm the district court‘s ruling that Summit is a pipeline company with access rights under
C. Whether Summit Complied with the Statutory Notice Requirements.
The district court found Summit complied with
The district court heard Kasischke‘s live testimony and found he was evasive and not credible in denying he received notice. We give weight to the district court‘s credibility determination. Parks, 830 N.W.2d at 304. Summit documented that it sent three letters to him by restricted certified mail. We agree with the district court‘s finding that Kasischke received the requisite written notice. Kasischke admitted the receipt for the March 2022 letter had what appeared to be his signature. His signature is sufficient to prove receipt. Kasischke claimed he never rejected the second letter sent to him on July 14. However, the tracking information shows the letter was rejected, which constitutes receiving notice. See, e.g., Long v. Crum, 267 N.W.2d 407, 411 (Iowa 1978) (holding that notice was effectuated upon proof of refusal of acceptance).
We find the letters themselves were sent by restricted certified mail:
The words “restricted certified mail” mean any form of certified mail as defined in subsection 1 which carries on the face thereof, in a conspicuous place where it will not be obliterated, the endorsement “Deliver to addressee only” and for which the post office provides the mailer with a return receipt showing the date of delivery, the place of delivery, and person to whom delivered.
Kasischke relies on Buss v. Gruis, arguing strict compliance with
We agree with the district court‘s finding that Kasischke had no tenant leasing the property at issue who required additional notice. No such tenant came forward to testify, and Kasischke provided no supporting evidence of any lease, rent payment, or other proof. On our de novo review, we find Kasischke‘s testimony about a tenant not credible.
We affirm the district court‘s determination that Summit complied with the statutory notice requirements.
D. Whether Section 479B.15 Authorized Issuance of This Injunction Without Proof of Irreparable Harm.
The district court granted Summit‘s requested injunction under
We reiterate that “a statute might override the equitable requirements or impose other guidelines for courts to follow in determining whether to issue an injunction.” Worthington v. Kenkel, 684 N.W.2d 228, 232, 234 (Iowa 2004) (holding that to obtain an injunction under
- It is a pipeline company.
Iowa Code § 479B.2 . - It held an information meeting in the county where access to private property is requested.
Id. § 479B.4 . - It petitioned the IUB for a pipeline permit.
Id. § 479B.5 . - It sent notice to the property owners and tenants (if any) by restricted certified mail.
Id. § 479B.15 . - It provided ten days’ notice before entering.
Id.
Summit satisfied the foregoing statutory requirements for injunctive relief under
IV. Disposition
For the foregoing reasons, we affirm the district court‘s judgment and injunctive relief.5
Affirmed.