Standing their ground

Steve Hickenbottom and his family have put a lot of sweat into their farm.

Hickenbottom has talked about some of the extensive renovations done to the 380 acres of farmland in Wapello County, which the family purchased in 1980.

“My dad, my mom, my brother, my uncle and I filled these ditches you could bury a bulldozer in,” he said. “We fixed the thing up. We tiled it, we terraced it to ‘T’ level, that’s an erosion control level the USDA sets up.

“It’s pretty hard to just walk away from this, but the damage I could leave to my heirs I think is beyond what I can stand to do.”

Hickenbottom believes if a proposed crude oil pipeline is allowed to be built across his land, it will no longer be safe or suitable as a heritage to his grandchildren.

“I have a son who could be the fourth-generation. I have granddaughters who could be the fifth generation on this farmland,” he said. “I don’t think I can, in good conscience, leave it to them with that pipeline in there.”

Hickenbottom is one of the perhaps 200 remaining landowners in Iowa who have not signed an agreement with Dakota Access LLC to allow the Bakken Oil Pipeline to cross their land.

The Texas-based company plans a 30-inch line 346 miles through 18 counties in Iowa. The total length of the project is 1,134 miles.

Dakota Access says the $3.78 billion infrastructure project will transport approximately 450,000 barrels per day, with a capacity as high as 570,000 barrels per day, of domestically produced light sweet crude oil from the Bakken and Three Forks production areas in North Dakota to Patoka, Illinois, where shippers will be able to access multiple markets including Midwest, East Coast and Gulf Coast regions.

That number includes a $1.04 billion investment in the Iowa leg alone.

The company plans to use the power of eminent domain to get across those remaining land parcels where they need an easement.

Hickenbottom is one of those.

He is also one of the plaintiffs in a lawsuit filed last week by attorney Bill Hanigan against the Iowa Utilities Board, which claims Dakota Access isn’t eligible to use eminent domain at all.

The IUB approved an order on March 10 which explicitly gave Dakota Access that right.

Dakota Access has said it only uses eminent domain when it has to, and prefers to reach a voluntary agreement.

The company said it has agreements on about 85 percent of the 1,200 parcels through Iowa.

At a press conference this week explaining the lawsuit, Hickenbottom said there’s been a lot of pressure from the beginning.

“The first time I met with a land agent, he came there by himself. Before he left, he had threatened me with eminent domain, with a smile on his face,” Hickenbottom said. “They didn’t make appointments. … They said you need to sign or we’re going to take it by eminent domain.

“Then they started making phone calls four, five, six times a day on my cellphone. I’m not a negotiator. I didn’t call Dakota Access and say please come put through a pipeline through my land, and pay me some money.

“They came to me. They’ve been very forceful. They’ve been very rude.”

Ken Anderson also claimed he’d had an odd conversation with a Dakota Access representative.

“This is my interpretation of what the guy was telling me. He called and asked for Francis Prendergast, which was my grandfather,” Anderson said. “He said, ‘I talked to Francis the other day about an easement for the oil pipeline.’

“I stopped him right there and said, ‘If you talked to my grandpa, I’d like to know how you talked to him, because he passed away in January 2006. Could you please tell me how you contacted him, because I’d like to talk to him and ask him some questions,’ and the guy hung up on me.”

Documentation continually was sent to Francis Prendergast, Anderson said.

Anderson oversees Prendergast Enterprises Inc., a family farm corporation with about 3,000 acres southwest of Fort Dodge in Webster and Calhoun counties.

The farm ground in the pipeline path has been in the family since the late 1970s or early 1980s, Anderson said. The family also owns a Century Farm.

He said one reason he doesn’t trust a pipeline company is he’s had bad experiences with large companies doing construction work in the past – and that they didn’t follow the rules of the construction easement.

“Back in January of this year MidAmerican put up 20 utility poles and they didn’t have any kind of easement to be driving up and down on our farm. I contacted the board of supervisors, the sheriff’s department – the county attorney wouldn’t even talk to me about it – I emailed my representative at the state level and the Iowa Utility Board. They don’t seem to want to press charges for trespassing or fine them for any kind of violation,” Anderson said.

“Other construction easements we’ve given permission for, the construction workers have driven across the field out of the easement area, and you confront them tomorrow. They say it won’t happen again. Well, two days later you see them driving across your planted field again,” he said. “The construction workers leave trash all over the field, and I’m the one stuck picking it up.”

LaVerne Johnson, of Pilot Mound, would not allow surveyors on his land as part of the pipeline process.

Dakota Access got an injunction from the courts to be able to enter.

Under Iowa code a pipeline company may enter private land to survey and examine it if it meets certain requirements, even without the permission of the landowner.

“All the while they were taking me to court, they continued to run people from out of state up to survey my land,” Johnson said. “We even had a pickup down there that looked at our property through binoculars, so that when we would leave, within a few minutes there would be somebody there to survey.

“One day Michael, my cousin, and I said we’re going to check this out. We put his pickup in the machine shed, and I left. Within half an hour there were people there from Texas to survey.”

“My Uncle Charlie’s dad bought this farm July 11, 1896,” Johnson said. “It’s my official residence. … The working easement is 46 feet away from my dwelling, plus they’re going to put a valve 200-some feet south of my grain bins. Now the explosion radius says a pipeline, a 30-inch pipeline under 800 pounds of pressure has about a 600 foot radius. So if it goes through and something happens, maybe I’ll go out in a blaze of fire.”

Dakota Access says the pipeline will be operated under a maximum of 1,440 pounds per square inch.

That’s a concern, as well, for Rick Gerjets, of Rockwell City.

“It’s not all about money. A lot of it has to do with safety, with leaks,” he said. “Once you get a leak like that on your farm, it doesn’t get repaired probably ever.”

Cyndy Coppola, Anderson’s aunt, who also represents Prendergast Enterprises, said she was also concerned about safety.

“There have been approximately 300 pipeline accidents in the United States alone since 2000,” she said. “The most recent one being the Keystone pipeline on April 2. A bystander found it. They don’t know how long it was going. It took them a few days to get it turned off.”

Anderson agreed.

“It’s not about the money,” he said. “We just don’t want it on our land. That pipeline will leak, and I don’t want to gamble that it happens on my land.”

“God put us on this earth to take care of it,” said Arlene Larson Bates, of Story County.

Bates said her legacy on her family farm started in 1907. She opposed the pipeline, not just because she fears it would put the state’s drinking water at risk, but because it offers no benefit to Iowa.

“We have given easements to two power companies, one natural gas pipeline, and Interstate 35,” she said. “All of them helped our community. This Bakken pipeline will not help us.”

The lawsuit filed last week claims farmland cannot be taken by a private company, like Dakota Access, and that eminent domain in this case violates both the Iowa and the U.S. constitutions.

The IUB’s March 10 ruling addresses the issue of eminent domain at length, and argues that Dakota Access fits into one of the exceptions laid out in the statute.

“The Fifth Amendment limits government takings to those that are for a public use. It has long been recognized that the public use requirement does not strictly limit takings to those in which the property condemned is to be used by the public at large,” the board wrote.

Iowa code gives the IUB authority to grant or deny hazardous liquid permits, based on whether the project “will promote the public convenience and necessity,” the board wrote. The law also states that a pipeline company granted a permit will also be granted eminent domain, in chapter 479B.

The law means that if a pipeline meets the requirements for a permit, it also qualifies for eminent domain, the board wrote.

The board acknowledges that code section 6A specifically doesn’t allow eminent domain on agricultural land for private use, including recreational trails, housing development or industrial enterprise.

“There appears to be no real issue that the hazardous liquid pipeline proposed by Dakota Access is an industrial enterprise development,” the board wrote.

But the next sentence of the code says that prohibition does not apply to “companies, or corporations under the jurisdiction of the Iowa Utilities Board in the department of commerce or to any other utility conferred the right by statute to condemn private property or to otherwise exercise the power of eminent domain.”

Even if Dakota Access is not a utility, as the lawsuit claims, it is still a company under the IUB’s jurisdiction, and thus is eligible, the board wrote.

Dakota Access spokesperson Vicki Granado has previously said one of the reasons Dakota Access qualifies for eminent domain is it’s a common carrier.

Dakota Access doesn’t produce the oil or even own it; it merely transports oil for other companies, which buy capacity on the pipeline.

The company will leave about 10 percent of its capacity uncontracted, so any oil supplier could approach the company to use some of that capacity, Granado said.

She said Energy Transfer Partners, the parent company, uses eminent domain as a last resort, and works to find voluntary easements as a first priority.

“We have a track record as a company of over 90 percent voluntary easements on our projects,” she said.