Attorneys tussle over land survey provisions for pipelines

A company that wants to build a sprawling carbon dioxide pipeline in northwest Iowa should have obtained a court order before attempting to survey private land from which it had been previously barred, a Dickinson County prosecutor argued Thursday.

At issue is a trespassing charge against Stephen James Larsen, 28, of Arlington, South Dakota, who was part of a land survey crew from Summit Carbon Solutions that attempted to evaluate farmland east of Spirit Lake in August.

Summit intends to build about 680 miles of pipe in the northwestern half of the state to transport carbon dioxide from ethanol plants to North Dakota for underground sequestration. The company is surveying land to help determine the pipeline’s path and depth.

State law allows pipeline companies to gain access to private land after they have held informational meetings in affected counties and have given 10 days’ notice through certified mail to landowners and tenants.

“The entry for land surveys … shall not be deemed a trespass and may be aided by (court) injunction,” the law says.

Alan Ostergren, a Des Moines attorney who is defending Larsen, said it’s unnecessary to get a court order to be protected against a criminal trespassing charge by the survey law.

“If you if you think of this as a sword and a shield in the same sentence, the shield is: The entry is not deemed a trespass,” Ostergren said Thursday during a district court hearing. “The sword is: The pipeline company gets the ability to go to court and get legal process to aid its entry.”

Ostergren is asking a judge to dismiss the trespassing charge against Larsen outright. The case had been set for trial, but the trial was delayed and has not been rescheduled.

Assistant County Attorney Steven Goodlow, who is prosecuting the case, argued Thursday against dismissal because the landowners and tenant refused to accept certified letters that were meant to give notice of the land survey.

Court records show Summit sent five letters in March and July. The company attempted to survey the land in April and August. In April, tenant Jeff Jones told a survey crew to leave the property and never return.

Goodlow argued the warning — in combination with the refusal to accept survey notices — meant Summit needed to get a court injunction to survey the land without risking a trespassing charge.

“My concern for property owners — landowners — is do they have to repeatedly, basically stand guard at the gate to continue to turn away the survey crews when they told them not to come back?” Goodlow said Thursday in court, according to a recording of the hearing provided by the Dickinson County News. He continued later: “What prevents them from coming back over and over and over again, and without any recourse? They’re trying to protect the property.”

District Associate Judge Shawna Ditsworth did not decide Thursday whether to dismiss the charge. She gave a deadline of next week for the defense to submit additional information and the prosecution a deadline of Jan. 12. It’s unclear when Ditsworth might rule on the dismissal request.

Larsen was cited Aug. 24 for trespassing when he and four others in his crew went to Jones’ farmland and were first approached by Jones’ father. The other surveyors left and were not charged with a crime. Jones said Larsen declined to provide their identities.

Summit sued three sets of landowners in September to get injunctions to perform the land surveys. Those cases are pending.

Landowners sued by Summit and by another pipeline company, Navigator CO2 Ventures, argue that the forced surveys are unconstitutional infringements of their property rights. The first trial to test that argument is currently set for February.

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