UPDATES & ANALYSIS

Pipeline statute giving surveyors access to private property is constitutional, Iowa Supreme Court holds

by Rox Laird | November 26, 2024

Iowa’s statute governing hazardous underground pipelines that allows pipeline developers to enter private property to conduct surveys against a landowner’s will is not an unconstitutional taking, the Iowa Supreme Court held in a Nov. 22 decision.

Kent Kasischke refused to allow Summit Carbon Solutions to enter his property to survey for a proposed underground pipeline that would transport carbon dioxide from Iowa ethanol plants to North Dakota for disposal deep underground. Kasischke argued that forcing him to allow the company onto his property under Iowa Code section 179B.15 violates the “takings” clause of the Fifth Amendment to the U.S. Constitution and Article I, section 18 of the Iowa Constitution.

The Iowa Supreme Court disagreed. In a unanimous Nov. 22 decision in Summit Carbon Solutions v. Kasischke written by Justice Thomas Waterman, the Court held that Iowa Code section 479B.15 is a lawful pre-existing limitation on Kasischke’s title to the land.

The key question before the Court: Has the private property interest claimed by Kasischke been “taken” by the government for public use?

Kasischke argues the right of entry authorized by 179B.15 amounts to a taking of his right to exclude Summit’s surveyors from entry onto his property. And he argues the U.S. Supreme Court’s 2021 decision in Cedar Point Nursery v. Hassid established a new “per se takings” rule that when the government by regulation “appropriates a right to physically invade private property, it has exercised a physical taking.”

The per se taking in Cedar Point Nursery, involving a California regulation that required growers to allow union organizers access for the purpose of soliciting employees’ support, is limited by certain exceptions. That includes an exception for government-authorized physical invasions that are consistent with longstanding background restrictions on property rights or that assert a pre-existing limitation upon the land owner’s title.

That is the case in Iowa, which has “long authorized statutory access to private property to conduct land surveys,” Justice Waterman wrote. “In 1843 (prior to Iowa’s statehood), our territorial law permitted surveyors to enter private property to determine routes for roadways,” and Iowa law dating back to 1851 allowed surveys on the property of others for railroads.

“If we were to hold that section 479B.15 is facially unconstitutional, we would call into question the constitutionality of many similar Iowa statutes allowing temporary access for private as well as government surveyors and examiners,” he wrote, ranging from surveys for natural gas pipelines and power lines to the state geologist authority to “enter and cross all lands within the state.”

Moreover, the California regulation struck down in Cedar Point Nursery is different from the limited access allowed for surveyors, Justice Waterman wrote, because the California regulation required access to private property for union organizers for three hours a day for 120 days per year whereas access under the Iowa’s statute is for a one-time limited purpose of surveying the proposed route to determine the pipeline’s direction and depth.

The Court also disagreed with Kasischke’s argument that Summit Carbon Solutions does not meet the statutory definition of a pipeline company, citing testimony from the district court that carbon dioxide pressurized to its supercritical state, converting it to liquid, is a hazardous liquid within the meaning of Iowa Code chapter 479B. The Court also held that Summit complied with the statute’s notice requirements in Kasischke’s case.

Tags: Iowa Supreme Court 2024-25