The Des Moines Register reported that a Clay County district judge ruled that a state law allowing pipeline companies to survey property owners’ land without permission is unconstitutional, delivering a victory to landowners who have been battling against proposed carbon capture pipeline projects.
The ruling came after Navigator CO2 Ventures sued Martin Koenig last year, saying he had repeatedly blocked the Omaha, Nebraska, company from surveying his land near Sioux Rapids in northwest Iowa. Navigator, one of three companies that want to build a carbon capture pipeline across Iowa, said state law allows a pipeline company to enter private property to survey the land to determine the “direction or depth of pipelines” after holding a public hearing and giving the landowner 10 days’ notice.
Navigator complied with the requirements, then sought an injunction to force Koenig to provide access. Koenig countersued, claiming the state law was unconstitutional.
Navigator said in an email Wednesday it would appeal the ruling to the Iowa Supreme Court. The company said it “believes that further review will uphold the constitutionality of the statute, aligning with the conclusions reached by courts in neighboring jurisdictions.”
One of those jurisdictions is New York. Section 404 of New York’s Eminent Domain Procedure Law gives the condemnor, its officer, agents or contractors when acquiring real property or when engaged in work connected with a proposed public purpose, the right to enter upon any real property for the purpose of making surveys, test pits and borings, or other investigations and also temporarily occupy during construction.
The key to the Iowa ruling was determining whether a landowner should be compensated for losing the right to exclude someone from their property. Judge Sandy wrote that the U.S. Supreme Court has consistently emphasized that the “right to exclude is ‘one of the most treasured’ rights of property ownership” and “universally held to be a fundamental element of the property right.”
Because of the “central importance to property ownership” of the right to exclude, courts have long treated “government-authorized physical invasions as takings requiring just compensation,” Sandy wrote.
He noted that Koenig maintained the Iowa Code is unconstitutional because the “statute allows for a per se taking without just compensation,” stripping landowners of their right to compensation.
Additionally, the state law “does not provide for just compensation,” as required under the Iowa Constitution.
The Court stated that “when the government physically occupies private property, such physical appropriations are the ‘clearest sort of taking,’” adding that “the government must pay for what it takes.”
New York’s EDPL Sec. 404 does not provide for compensation. It has been unsuccessfully challenged in the past. King v Power Authority, 44 AD2d 74 (3d Dept 1974), aff’d. 38 NY2d 756 (1974). Perhaps, it is time to challenge New York’s law on this point.