Keith Puntenney, Laverne I. Johnson, Richard R. Lamb, Marian D. Johnson, Northwest Iowa Landowners Association, Iowa Farmland Owners Association, Inc., and the Sierra Club Iowa Chapter v. Iowa Utilities Board, and Office of Consumer Advocate and The Main Coalition, and Dakota Access, LLC

• Court: Supreme Court of Iowa
• Decided: May 31, 2019
• Docket: 17-0423
• Status: Published

Opinion

IN THE SUPREME COURT OF IOWA No. 17–0423

Filed May 31, 2019

KEITH PUNTENNEY; LAVERNE I. JOHNSON; RICHARD R. LAMB, Trustee of the Richard R. Lamb Revocable Trust; MARIAN D. JOHNSON by her Agent VERDELL JOHNSON, NORTHWEST IOWA LANDOWNERS ASSOCIATION; IOWA FARMLAND OWNERS ASSOCIATION, INC.; and the SIERRA CLUB IOWA CHAPTER,

Appellants,

and

HICKENBOTTOM EXPERIMENTAL FARMS, INC. and PRENDERGAST ENTERPRISES, INC,

Petitioners,

vs.

IOWA UTILITIES BOARD, A Division of the Department of Commerce, State of Iowa,

Appellee,

OFFICE OF CONSUMER ADVOCATE and THE MAIN COALITION,

Intervenors-Appellees,

DAKOTA ACCESS, LLC,

Appellee.

Appeal from the Iowa District Court for Polk County, Jeffrey D.

Farrell, Judge. 2

Landowners appeal a district court decision denying a petition for

judicial review of a decision by the Iowa Utilities Board authorizing a

company to use eminent domain to build a crude oil pipeline. AFFIRMED.

William E. Hanigan and Jason R. Lawrence of Davis, Brown, Koehn,

Shors & Roberts, P.C., Des Moines, for appellants Richard R. Lamb;

Marian D. Johnson by Agent, Verdell Johnson; Northwest Iowa

Landowners Association; and Iowa Farmland Owners Association, Inc.

Wallace L. Taylor of Law Offices of Wallace L. Taylor, Cedar Rapids,

for appellants Keith Puntenney, LaVerne I. Johnson, and Sierra Club Iowa

Chapter.

Bret A. Dublinske and Brant M. Leonard of Fredrikson & Byron,

P.A., Des Moines, for appellee Dakota Access, LLC.

David J. Lynch (until withdrawal), Cecil I. Wright II, and Benjamin J.

Flickinger, Des Moines, for appellee Iowa Utilities Board.

Mark R. Schuling and John S. Long, Des Moines, for intervenor-

appellee Office of Consumer Advocate.

Matthew C. McDermott and Espnola F. Cartmill of Belin McCormick,

P.C., Des Moines, for intervenor-appellee The Main Coalition.

David Bookbinder, Washington, D.C., and Scott L. Long of Long &

Gilliam, Des Moines, for amicus curiae Niskanen Center. 3

MANSFIELD, Justice.

The Bakken Oil Field has made North Dakota the second leading oil-

producing state in our country. Almost all of America’s oil-refining

capacity, however, is located elsewhere in the nation. For this reason, an

underground crude oil pipeline was proposed that would run from western

North Dakota across South Dakota and Iowa to an oil transportation hub

in southern Illinois. Following a lengthy administrative proceeding, the

Iowa Utilities Board (IUB) approved the construction of this pipeline in

Iowa and approved the use of eminent domain where necessary to

condemn easements along the pipeline route.

Several landowners and an environmental organization sought

judicial review. They contended the pipeline did not serve the “public

convenience and necessity” as required by law, see Iowa Code § 479B.9

(2016); did not meet the statutory standard required for a taking of

agricultural land, see id. §§ 6A.21(1)(c), .22(1); and did not meet the

constitutional definition of “public use” set forth in article I, section 18 of

the Iowa Constitution and the Fifth Amendment to the United States

Constitution. Two of the landowners also raised claims personal to them.

The district court denied the petitions for judicial review, and the

petitioners have appealed.

On appeal, we conclude that the IUB’s weighing of benefits and costs

supports its determination that the pipeline serves the public convenience

and necessity. We also conclude that the pipeline is both a company

“under the jurisdiction of the [IUB]” and a “common carrier,” and therefore

is not barred by Iowa Code sections 6A.21 and 6A.22 from utilizing

eminent domain. See id. §§ 6A.21(2), .22(2)(a)(2). In addition, we conclude

that the use of eminent domain for a traditional public use such as an oil

pipeline does not violate the Iowa Constitution or the United States 4

Constitution simply because the pipeline passes through the state without

taking on or letting off oil. Lastly, we determine that the IUB’s resolution

of the two individual landowner claims was supported by the law and

substantial evidence. For these reasons, we affirm the district court’s

judgment.

I. Background Facts and Proceedings.

In October 2014, Dakota Access, LLC (Dakota Access) filed

documents with the IUB disclosing its intent to construct an underground

crude oil pipeline from western North Dakota to Patoka, Illinois, an oil

transportation hub. The pipeline would traverse Iowa from the northwest

corner to the southeast corner of the state, passing through eighteen

counties over a distance of approximately 343 miles.

In December 2014, as required by law, Dakota Access held

informational meetings, attended by IUB representatives, in each of the

eighteen counties. See id. § 479B.4. The following month, Dakota Access

filed a petition with the IUB for authority to construct the pipeline. See id.

§§ 479B.4–.5. In the petition, Dakota Access sought “the use of the right

of eminent domain for securing right of way for the proposed pipeline

project.” See id. § 479B.16. Various parties requested and were granted

permission to intervene, including landowners, trade unions, business

associations, and environmental groups.

On June 8, the IUB filed a procedural schedule for the case in which

it identified three issues for consideration:

(a) whether the proposed pipeline will promote the public convenience and necessity, (b) whether the location and route of the proposed pipeline should be approved, and (c) whether and to what extent the power of eminent domain should be granted . . . . 5

The hearing on Dakota Access’s application took place in November

and December 2015. On the first day, the IUB received public comments

from over 200 people both in support of and against the pipeline. An

eleven-day evidentiary hearing followed. During that hearing, sixty-nine

witnesses testified. After the conclusion of the hearing, the IUB received

posthearing briefs.

On March 10, 2016, the IUB issued a 159-page final decision and

order. First, it addressed whether the pipeline would promote the public

convenience and necessity. The IUB concluded that the public

convenience and necessity test should be treated “as a balancing test,

weighing the public benefits of the proposed project against the public and

private costs or other deteriments as established by the evidence in the

record.” It also concluded that it could consider “public benefits outside

of Iowa” for an interstate oil pipeline. In addition, the IUB noted that

climate change is “a very important issue,” but that the pipeline

“represents, at most, a change in the method of crude oil deliveries that

are already taking place and that will continue to take place regardless of

whether this pipeline is built.” The IUB further found that “the increased

safety associated with pipeline transport of crude oil is significant” as

compared to existing rail transportation of that oil.

Continuing, the IUB also found overall economic benefits to Iowa

from the construction and operation of the pipeline. And while it observed

that it would be impossible to build and operate a pipeline without any

environmental impact, it found that the route was “selected in a manner

intended to minimize adverse environmental impacts” and specifically “to

minimize the possibility of leaks.” It added that “Dakota Access has taken

reasonable steps to reduce the safety risks associated with the proposed

pipeline.” 6

The IUB required that the parent companies of Dakota Access

provide unconditional financial guarantees of the pipeline’s liabilities and

made a series of modifications to the agricultural impact mitigation plan.

Among other things, the IUB required that the pipeline be installed at a

minimum depth of forty-eight inches where reasonably possible, that all

tiling be repaired and restored, and that Dakota Access provide a GPS map

to the landowner of any tiling found during construction.

Ultimately, the IUB found that the pipeline would promote the public

convenience and necessity. It did so primarily for two reasons:

First, the proposed pipeline represents a significantly safer way to move crude oil from the field to the refinery when compared to the primary alternative, rail transport. The most credible evidence in this record, based on data from the U.S. Department of Transportation, shows that the spill incident rate for transport of crude oil by rail transport is three to four times higher than the incident rate for pipeline transport on a ton-mile basis. The oil is going to be produced and shipped as long as the market demands it; given that reality, shipping by the safest available method makes sense.

Second, in the IUB’s view, there would be considerable economic benefits

“associated with the construction, operation, and maintenance of the

proposed pipeline.” On the other side of the ledger, the IUB noted that there were

potential adverse environmental and agricultural impacts from the

pipeline as well as effects on the landowners whose land would be

trenched. Yet, with certain precautionary measures in place, it found that

the benefits outweighed the costs associated with the project.

Regarding the pipeline’s route through Iowa, the IUB observed that

Dakota Access had used a software program that evaluated alternative

routes and “developed a route that would avoid those land areas where the

pipeline could impact critical structures or habitat.” It found that a zigzag 7

route that contained right angles and followed division lines (as proposed

by some landowners) would create additional safety issues.

The IUB then turned to the eminent domain issues. It found that

sections 6A.21 and 6A.22 gave authority to a pipeline company under the

IUB’s jurisdiction to condemn an easement for “public use.” It concluded

that this statutory public-use requirement had been met. In addition, it

determined that constitutional objections to the exercise of eminent

domain were resolved by the statutory public-use determination.

The IUB also considered a series of objections by landowners to the

exercise of eminent domain over their specific properties. In several

instances, it sustained the objections in whole or in part. Thus, in one

case, it required that the route be relocated to avoid additional buildings

that were being constructed for a turkey farm. In response to another

landowner’s plea, the IUB directed the preservation of certain fruit trees

that were roosting places for several species of bats. The IUB also refused,

on legal grounds, to allow the condemnation of property that was owned

by governmental entities such as counties.

The IUB was not persuaded, however, by landowner Keith

Puntenney’s objection. Puntenney requested that the pipeline’s path be

diverted because he wanted to install three wind turbines on his property

in the area of the proposed route. But the IUB concluded that there was

no “firm plan” to install wind turbines and “it has not been shown that the

pipeline would necessarily interfere with the possible future installation of

wind-driven turbine generators.” As to landowner LaVerne Johnson, the

IUB did not agree that the pipeline could not cross his tiling system,

although it did require that the pipeline be bored under his tiling system

including the main concrete drainage line. 8

Following the IUB’s final decision and order, several motions for

clarification and rehearing were filed. On April 28, the IUB issued an order

denying these motions.

On May 26 and May 27, several petitions for judicial review were

filed in the Polk County District Court. The petitioners included

Puntenney, Johnson, the Sierra Club, and a group of landowners known

as the Lamb petitioners. The petitions were later consolidated for hearing.

Meanwhile, in June, Dakota Access began construction of the

pipeline in Iowa. On August 9, the Lamb petitioners asked the district

court to stay any construction activity on their property. The stays would

have been limited to construction on the fifteen parcels of land owned by

the Lamb petitioners and would not have extended statewide. In their

expedited relief request, the Lamb petitioners argued, “Until the pipeline

trench is actually dug, petitioners’ claims are not moot,” and added that

“if they do not receive a stay before [Dakota Access’s] pipeline trench is

dug, any remedy will be inadequate.”

On August 21, the district court denied the request for stay because

the Lamb petitioners had failed to seek relief first from the IUB. See id.

§ 17A.19(5)(c). The Lamb petitioners returned to the IUB, which denied

the stay. On August 29, the district court denied the Lamb petitioners’

renewed request for a stay. No request was made to this court for

interlocutory review of the denial of the stay.

On February 15, 2017, following briefing and argument, the district

court denied the petitions for judicial review. Regarding the question of

public convenience and necessity, the court concluded that the IUB had

“balanced the pros and cons of the project and entered a reasonable

decision based on the evidence presented.” It added that the decision was

“supported by substantial evidence.” 9

On the eminent domain question, the district court reasoned that

Iowa Code sections 6A.21 and 6A.22 conferred condemnation authority on

common-carrier pipelines under the jurisdiction of the IUB. It also found

that the condemnations were for a public use, thus meeting the

requirements of the Fifth and Fourteenth Amendments and article I,

section 18 of the Iowa Constitution. Finally, it overruled the specific claims

advanced by Puntenney and Johnson as to the exercise of eminent domain

over their properties.

Puntenney, Johnson, the Sierra Club, and the Lamb petitioners

appealed. We retained the appeal.

II. Standard of Review.

When an administrative review proceeding is before us, we “apply

the standards set forth in section 17A.19(10) and determine whether our

application of those standards produce[s] the same result as reached by

the district court.” Hawkeye Land Co. v. Iowa Utils. Bd., 847 N.W.2d 199,

207 (Iowa 2014) (alteration in original) (quoting Auen v. Alcoholic

Beverages Div., 679 N.W.2d 586, 589 (Iowa 2004)).

Accordingly, “we review constitutional issues in agency proceedings

de novo.” Id. at 208 (quoting NextEra Energy Res. LLC v. Iowa Utils. Bd.,

815 N.W.2d 30, 44 (Iowa 2012)); see also Iowa Code § 17A.19(10)(a).

Regarding an agency’s interpretation of a statute:

If the legislature clearly vested the agency with the authority to interpret specific terms of a statute, then we defer to the agency’s interpretation of the statute and may only reverse if the interpretation is “irrational, illogical, or wholly unjustifiable.” If, however, the legislature did not clearly vest the agency with the authority to interpret the statute, then our review is for correction of errors at law. 10

NextEra, 815 N.W.2d at 37 (citations omitted) (quoting Doe v. Iowa Dep’t

of Human Servs., 786 N.W.2d 853, 857 (Iowa 2010)); see also Iowa Code

§ 17A.19(10)(c), (l).

Here, we think the legislature clearly vested the IUB with the

authority to interpret “public convenience and necessity” as used in Iowa

Code section 479B.9. We reach this conclusion for several reasons.

First, we believe “public convenience and necessity” is a term of art

within the expertise of the IUB. See Renda v. Iowa Civil Rights Comm’n,

784 N.W.2d 8, 14 (Iowa 2010) (referring to “a substantive term within the

special expertise of the agency”).

In addition, the Iowa Code itself indicates that the legislature wanted

the IUB to have leeway in determining public convenience and necessity.

Section 479B.9 states,

The board may grant a permit in whole or in part upon terms, conditions, and restrictions as to location and route as it determines to be just and proper. A permit shall not be granted to a pipeline company unless the board determines that the proposed services will promote the public convenience and necessity.

(Emphasis added.) The phrase “unless the board determines” seemingly

affords the IUB deference. Otherwise, if the matter were to be left to

judicial determination, the statute would say something like, “unless the

proposed services will promote the public convenience and necessity.”

Additionally, we have previously held that it is not a judicial function

to determine whether a service will promote the public convenience and

necessity. See Application of Nat’l Freight Lines, 241 Iowa 179, 186, 40

N.W.2d 612, 616 (1950) (“We have held several times that the

determination whether the service proposed will promote the public

convenience and necessity is a legislative, not a judicial, function. . . . It

is not for the district court or this court to determine whether the 11

commission has acted wisely nor to substitute its judgement for that of

the commission.”)

On the other hand, we do not defer to the IUB’s interpretation of

Iowa Code sections 6A.21 and 6A.22. Chapter 6A is a general eminent

domain law that applies to all state agencies, and the term “public use” is

not “uniquely within the subject matter expertise of the agency”—here the

IUB. Renda, 784 N.W.2d at 14.

Lastly, we review the IUB’s factual findings under a substantial

evidence standard. See Iowa Code § 17A.19(10)(f). “The agency’s decision

does not lack substantial evidence merely because the interpretation of

the evidence is open to a fair difference of opinion.” NextEra, 815 N.W.2d

at 42 (quoting ABC Disposal Sys., Inc. v. Dep’t of Nat. Res., 681 N.W.2d

596, 603 (Iowa 2004)).

III. Standing of the Sierra Club.

We must first consider two threshold matters—standing and

mootness. Dakota Access challenges the standing of the Sierra Club. The

Sierra Club is a nonprofit environmental organization. The Sierra Club is

asserting the interests of two of its members—Mark Edwards and Carolyn

Raffensperger. Edwards lives in Boone and worked for the Iowa

Department of Natural Resources as a trail coordinator for thirty years.

He submitted an affidavit expressing concern that the pipeline will damage

Iowa’s waterways, contribute to climate change, and destroy Native

American burial grounds and cultural sites.

Raffensperger lives in Ames. Her home sits about one mile from the

pipeline. She submitted an affidavit voicing concern for her own safety

and the immediate environment around her property as well as her belief

that the pipeline will contribute to climate change, damage Native

American cultural sites, and pollute Iowa waterways. 12

Dakota Access does not dispute that the Sierra Club can assert the

interests of its members for standing purposes. See Citizens for Wash.

Square v. City of Davenport, 277 N.W.2d 882, 886 (Iowa 1979). However,

Dakota Access points out that Sierra Club has not shown that any of its

members owns property on the pipeline route. Accordingly, Dakota Access

maintains that the Sierra Club lacks standing.

We disagree. In Bushby v. Washington County Conservation Board,

we adopted the United States Supreme Court’s standard for standing in

environmental disputes. 654 N.W.2d 494, 496–97 (Iowa 2002) (“The

United States Supreme Court has held that plaintiffs in cases involving

environmental concerns establish standing if ‘they aver that they use the

affected area and are persons “for whom the aesthetic and recreational

values of the area will be lessened” by the challenged activity.’ ” (quoting

Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167, 183, 120

S. Ct. 693, 705 (2000))).

Here, Sierra Club met the Bushby standard. Sierra Club members

Raffensperger and Edwards submitted affidavits describing their use and

enjoyment of the rivers, streams, soil, and other natural areas and

aesthetics. They described their concerns that the construction and

operation of the pipeline would have adverse environmental impacts on

those areas that they use and enjoy.

Raffensperger’s and Edwards’s concerns are not entirely

speculative, remote, and in the uncertain future as Dakota Access

suggests. Sierra Club presented the IUB with actual evidence of pipeline

accidents that have resulted in millions of dollars in cleanup and damages.

Nothing in the Iowa Code limits standing in pipeline proceedings to

individuals whose property is in the direct path of the pipeline. Section

479B.7 allows any person “whose rights or interests may be affected by 13

the proposed pipeline” to file objections. Iowa Code § 479B.7. Section

17A.19 authorizes any “person or party whose is aggrieved or adversely

affected by agency action” to seek judicial review. Id. § 17A.19. The Sierra

Club has standing.

IV. Mootness.

Dakota Access next argues that the appeal is moot. This presents a

closer issue. The pipeline was actually completed two years ago in May

2017 at a cost of approximately $4 billion. Since then it has been regularly

carrying crude oil from North Dakota to Illinois. Its capacity is 450,000

barrels of oil per day. The record does not indicate how much Dakota

Access actually paid for easements to bury the pipeline underground in

Iowa, but the projected cost was $85 million. Where the pipeline was

buried during construction, land restoration has already taken place.

Iowa Code section 17A.19 states in part, “The filing of the petition

for review does not itself stay execution or enforcement of any agency

action.” Id. § 17A.19(5)(a). In short, it places the burden on the party

contesting agency action to obtain a stay. As noted above, the Lamb

petitioners’ application for a stay from the district court was denied nearly

three years ago. They did not seek a stay from this court, nor did they ask

to expedite this appeal when it was filed over two years ago. 1

Ninety years ago, this court ruled that an eminent domain appeal

challenging the taking of the plaintiff’s twenty-tree apple orchard was moot

once the road in question had been built. Welton v. Iowa State Highway

Comm’n, 208 Iowa 1401, 1401, 227 N.W. 332, 333 (1929). We explained,

It is substantiated by uncontroverted affidavit that, subsequent to the decision of the district court in this case, and in the absence of an order staying appellees’ actions, the road

1Filingan appeal does not result in an automatic stay of a trial court ruling. See Iowa R. App. P. 6.601(1). 14 in controversy was established, and the land in question, including the claimed orchard, was taken and used by the appellees for primary road purposes, and that the road has been fully constructed and paved through the premises involved in this action; that the appellant has perfected an appeal to the district court of Mahaska county, from the award of the condemnation commissioners, as to the amount of his damages, by reason of the taking of the identical property involved in this action, and which cause was assigned for trial in the district court of Mahaska county, to begin on the very day of the submission of this cause to this court. It will thus be observed that, during the pendency of the appeal, the defendant did not obtain a restraining order from this court, as was done in the Hoover Case, supra. This court has the power, upon application being made, to grant a restraining order to maintain the status quo of the parties during the pendency of an appeal, and, when no other means of protection is afforded by the law, there is no hesitancy in granting the order.

It is apparent from the uncontroverted affidavit that the orchard has been taken for highway purposes and the paving laid. No order which we can now make can preserve to appellant his orchard.

Id. (emphasis added) (citations omitted).

Welton arguably should control here. As in Welton, the petitioners

lost on the merits and then did not try to obtain a stay from this court

while a substantial construction project went forward. See id.

Similarly, in Porter v. Board of Supervisors, we held it was too late

for us to enjoin condemnation proceedings once a drainage ditch had been

installed:

We call attention also to the fact that it was stated in oral argument, and not denied, that the construction had already taken place and that the canal or ditch was in operation. There was no stay of proceedings nor application in this court for an order to stay construction. Under these circumstances the construction of the ditch became an established fact before the case was submitted to us for decision.

238 Iowa 1399, 1404, 28 N.W.2d 841, 844 (1947).

On the other hand, in Lewis Investments, Inc. v. City of Iowa City,

we held that an appeal from an order condemning a property as a nuisance 15

so the city could rehabilitate it was not moot, because the only thing that

had happened was that the city had paid its deposit and taken possession

of the property. 703 N.W.2d 180, 184 (Iowa 2005). We observed that

the city’s ultimate goal—transfer of the property to a private individual for rehabilitation or demolition—has not become an accomplished fact like the road in Welton. There is nothing in the record to show that the property has been transferred or that substantial improvements have been made to the property that would place it beyond the power of this court to restore the parties to their former positions. Therefore, we hold the appeal is not moot.

Id. In short, Lewis Investments was distinguishable from Welton because

no work had been performed on the property.

The petitioners counter that the case is not moot because the courts

could order relief other than a tear-out of the entire pipeline. For example,

the pipeline could be partially removed and rerouted around the

petitioners’ properties. Another possibility is that the petitioners could

obtain trespass damages. It is noteworthy that most property owners

along the route chose to make voluntary easement agreements with

Dakota Access to allow the pipeline to go underneath their farmland;

hence, their rights and status might not be affected by a decision in this

case. The petitioners also counter that a lawsuit of these constitutional

and practical dimensions should not become moot simply because Dakota

Access chose to proceed with construction while the petitioners’ judicial

review proceeding was still pending.

One case worth considering is Grandview Baptist Church v. Zoning

Board of Adjustment, 301 N.W.2d 704 (Iowa 1981). In Grandview Baptist,

a church obtained a permit from the building commissioner to build a steel

storage building. Id. at 706. Within days, a contractor built the building

and several neighboring property owners appealed the granting of the

permit to the zoning board of adjustment. Id. The board ruled that the 16

structure was not proper and had to be removed. Id. Both the district

court and our court upheld the board’s action. Id. at 708–09.

In our decision, we rejected the church’s argument that it was too

late for our court to do anything about the building. Id. at 709. We

elaborated,

The objectors timely appealed to the board, but before their appeal was heard the building had been constructed. The Church claims the objectors are estopped because the Church has vested rights in the building.

Under such circumstances the Church cannot successfully invoke the doctrine of vested rights so as to deprive the objectors of the fruits of their appeal. Otherwise the right of appeal would be meaningless.

Id.

We are not persuaded that Grandview Baptist controls here. There

the contractor put up the storage building based on an administrator’s go-

ahead before any hearing could occur. Id. at 706. The church then lost

at the board of adjustment and at every subsequent stage of the

proceedings. Id. The “right of appeal” referred to in Grandview Baptist

Church was the right to appeal an individual’s granting of a permit to the

board of adjustment, not the right to appeal an agency action to the district

court or a district court ruling to the Iowa Supreme Court. See id. at 709.

Iowa Code section 414.11 governs city board of adjustment appeals

and states that an appeal from the city administrative officer to the board

of adjustment

stays all proceedings in furtherance of the action appealed from, unless the officer from whom the appeal is taken certifies to the board of adjustment after the notice of appeal shall have been filed with the officer that by reason of facts stated in the certificate a stay would in the officer’s opinion cause imminent peril to life or property. 17

This is different from section 17A.19(5)(a), which provides that an appeal

does not stay administrative action.

Nonetheless, after careful consideration, we do not believe the

present appeal is moot. “The key in assessing whether an appeal is moot

is determining whether the opinion would be of force or effect in the

underlying controversy.” Perkins v. Bd. of Supervisors, 636 N.W.2d 58, 64

(Iowa 2001). We are not persuaded that a decision in this case would lack

force or effect. Although dismantling of the pipeline would not be feasible,

the IUB still has authority to impose other “terms, conditions, and

restrictions” to implement a ruling favorable to the petitioners. Iowa Code

§ 479B.9; see also Standing Rock Sioux Tribe v. U.S. Army Corps of Eng’rs,

301 F. Supp. 3d 50, 61–64 (D.D.C. 2018) (dismissing National Historic

Preservation Act claims as mooted by the construction of the Dakota

Access pipeline, but proceeding to determine other claims on the merits).

V. Public Convenience and Necessity.

Section 479B.9 gives the IUB authority to issue a permit for a

pipeline that “will promote the public convenience and necessity.” Iowa

Code § 479B.9. Chapter 479B begins,

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.

Id. § 479B.1.

Regarding the meaning of “public convenience and necessity,” our

court has held, 18 The words are not synonymous, and effect must be given both. The word “convenience” is much broader and more inclusive than the word “necessity.” Most things that are necessities are also conveniences, but not all conveniences are necessities. . . . The word “necessity” has been used in a variety of statutes . . . . It has been generally held to mean something more nearly akin to convenience than the definition found in standard dictionaries would indicate. So it is said the word will be construed to mean not absolute, but reasonable, necessity.

Thomson v. Iowa State Commerce Comm’n, 235 Iowa 469, 475, 15 N.W.2d

603, 606 (1944) (quoting Wis. Tel. Co. v. R.R. Comm’n, 156 N.W. 614, 617

(Wis. 1916)). In its order, the IUB looked to Thomson for guidance as well

as an Illinois case construing the same phrase, which held,

The word connotes different degrees of necessity. It sometimes means indispensable; at others, needful, requisite, or conducive. It is relative rather than absolute. No definition can be given that would fit all statutes. The meaning must be ascertained by reference to the context, and to the objects and purposes of the statute in which it is found.

Wabash, Chester & W. Ry. v. Commerce Comm’n ex rel. Jefferson Sw. R.R.,

141 N.E. 212, 215 (Ill. 1923). The IUB also relied on our decision in S.E. Iowa Cooperative Electric Association v. Iowa Utilities Board, which

approved the IUB’s use of a balancing test in a related context and its

determination that “the substantial benefits [of the project] outweighed the

costs.” 633 N.W.2d 814, 821 (Iowa 2001).

In our view, the IUB’s balancing approach to public convenience and

necessity should be upheld because it is not “irrational, illogical, or wholly

unjustifiable.” Iowa Code § 17A.19(10)(l). The approach is consistent with

our prior caselaw and is supported by legal authority elsewhere. See Fed.

Power Comm’n v. Transcon. Gas Pipe Line Corp., 365 U.S. 1, 23, 81 S. Ct.

435, 447 (1961) (indicating that “ ‘public convenience and necessity’

connotes a flexible balancing process, in the course of which all the factors

are weighed prior to final determination”). 19

Puntenney, Johnson, and the Sierra Club challenge the IUB’s

determination of public convenience and necessity on several grounds.

First, they urge that the pipeline does not serve the public because

shippers wanted it. But shippers wanted it as a way of reducing

transportation costs. Given that petroleum products are commodities sold

in a competitive market, lower costs for crude oil transportation tend to

keep prices of crude oil derivatives lower than they otherwise would be.

Iowa is a heavy user of petroleum products. Iowa consumes the

equivalent of 85.2 million barrels of oil per year but produces no oil itself.

Iowa is fifth in the country in per capita energy use. Iowa ranks eighth in

the country in per capita gasoline consumption. Iowa’s percentage of gross

domestic product from manufacturing ranks near the top in this country,

and Iowa ranks sixth highest nationally in energy consumption per capita

in its industrial sector. The record indicates that the Dakota Access

pipeline will lead to “longer-term, reduced prices on refined products and

goods and service dependent on crude oil and refined products.” We agree

with the IUB that these are public benefits, even though the pipeline also

provides benefits to the shippers of crude oil. See S.E. Iowa Coop. Elec.,

633 N.W.2d at 820 (stating that “cost savings are a legitimate

consideration”). 2

Next, Puntenney, Johnson, and the Sierra Club contend that drilling

in the Bakken Oil Field has declined, demonstrating a reduced need for

pipeline transportation. But according to the evidence before the IUB,

actual crude oil production from the Bakken Oil Field has only declined

2The Sierra Club makes a forceful environmental argument against the Dakota Access pipeline. But this environmental argument against the pipeline to a degree bolsters the economic argument for the pipeline. That is, the Sierra Club criticizes the pipeline for making it “easier” to bring Bakken Oil Field oil to the market. Another way of saying “easier” is “cheaper” or “more economical.” 20

about 10%, from approximately 1.2 million barrels per day to

approximately 1.1 million barrels per day. At the time of the hearing, the

demand for the pipeline was still there. As the IUB pointed out, shippers

had executed long-term “take or pay” contracts, committing to pay for

pipeline use whether they shipped oil or not.

Additionally, Puntenney, Johnson, and the Sierra Club maintain

that rail transportation is safer than the pipeline transportation that would

replace it. Various data were presented to the IUB on this issue. However,

the IUB found, and the data support, that on a volume-distance basis (i.e.,

per barrel-mile), pipeline transportation of oil is safer than rail

transportation of oil.

Lastly, Puntenney, Johnson, and the Sierra Club challenge the IUB’s

reliance on secondary economic benefits resulting from the construction

and operation of the pipeline in Iowa. For example, the IUB observed that

the pipeline would result in at least 3100 construction jobs in Iowa, at

least twelve long-term jobs for Iowans, and more than $27 million annually

in property tax revenue. As the Puntenney petitioners point out, Dakota

Access, the IUB, and the district court cited no authority that these types

of benefits can be taken into account in making a public-convenience-and-

necessity determination. Yet the Puntenney petitioners cited no authority

that these benefits cannot be considered. See N. Plains Res. Council v.

Surface Transp. Bd., 668 F.3d 1067, 1094–95 (9th Cir. 2011) (noting that

the Surface Transportation Board considered “new jobs created by the

construction and operation of the new rail line”); Pliura Intervenors v. Ill.

Commerce Comm’n, 942 N.E.2d 576, 585 (Ill. App. Ct. 2010) (considering,

among other things, “increased revenues for local economies” resulting

from a pipeline extension); Accokeek, Mattawoman, Piscataway Creeks

Cmtys. Council, Inc. v. Md. Pub. Serv. Comm’n, 133 A.3d 1228, 1240 (Md. 21

Ct. Spec. App. 2016) (treating “monetary benefits from construction

employment and longer-term tax payments” as benefits relevant to the

public-convenience-and-necessity determination). We are not persuaded

that the IUB acted improperly in factoring these benefits into the public-

convenience-and-necessity determination.

For the foregoing reasons, upon our review of the record, we

conclude the IUB’s legal determinations with respect to public convenience

and necessity were not “[b]ased upon an irrational, illogical, or wholly

unjustifiable application of law” and its factual determinations were

supported by “substantial evidence.” Iowa Code § 17A.19(10)(f), (l).

VI. Statutory Limits on the Exercise of Eminent Domain.

The Lamb petitioners argue that Dakota Access’s exercise of eminent

domain over farmland would violate Iowa Code sections 6A.21 and 6A.22.

Section 6A.21(1)(c) limits the authority to condemn agricultural lands by

defining “public use,” “public purpose,” or “public improvement” in a way

that requires landowner consent. Id. § 6A.21(1)(c). Hence, section

6A.21(1)(c) reads, “ ‘Public use’ or ‘public purpose’ or ‘public improvement’

does not include the authority to condemn agricultural land for private

development purposes unless the owner of the agricultural land consents

to the condemnation.” Id.

But section 6A.21 also carves out exceptions. See id. § 6A.21(2).

One of them is that “[t]his limitation also does not apply to utilities,

persons, companies, or corporations under the jurisdiction of the Iowa

utilities board.” Id.

The Lamb petitioners argue vigorously that Dakota Access is not a

“utility.” That, however, is not the full wording of the exception. We agree

with the IUB and the district court that Dakota Access is a “compan[y] . . .

under the jurisdiction of the [IUB],” id., via the permit process laid out in 22

chapter 479B. Therefore, landowner consent is not required by section

6A.21 prior to condemnation.

The Lamb petitioners urge us to apply the canon of ejusdem generis

to section 6A.21(2). Hence, they ask us to interpret “persons, companies,

or corporations” as related to the immediately preceding word, “utilities.”

Their argument is difficult to follow. If the Lamb petitioners are saying

that the phrase “persons, companies, or corporations” refers to kinds of

utilities, then the word “utilities” would be sufficient by itself and the

remaining language would become unnecessary. That would contravene

an established principle of statutory construction. See id. § 4.4(2) (setting

forth the presumption that “[t]he entire statute is intended to be effective”).

On the other hand, if the Lamb petitioners are saying that the phrase

“persons, companies, or corporations” refers to entities other than utilities

that are nonetheless under the jurisdiction of the IUB, then Dakota Access

seemingly falls in that category.

The IUB also advances an alternative ground for rejecting the Lamb

petitioners’ argument. It notes that section 6A.22(2) authorizes “[t]he

acquisition of any interest in property necessary to the function of . . . a

common carrier.” Id. § 6A.22(2)(a)(2). In the IUB’s view, Dakota Access

qualifies as a common carrier.

There is no dispute that most of the pipeline capacity has been

contracted to shippers in advance; however, 10% is required to be made

available for walk-up business. That is all the Federal Energy Regulatory

Commission requires of a common carrier. See, e.g., Navigator BSG

Transp. & Storage, 152 F.E.R.C. ¶ 61,026, at 61,127 (July 10, 2015); Shell

Pipeline Co., 146 F.E.R.C. ¶ 61,051, at 61,238 (Jan. 29, 2014). The IUB

maintains it is enough here. 23

Based on the record before us, and our own common-carrier

precedents, we agree with the IUB. It would be unrealistic to require a

$4 billion pipeline to depend entirely on walk-up business, just as it would

be unrealistic to require an airline to refuse all advance bookings for a

flight. The key is whether spot shippers have access, and the federal

agency with expertise in the matter has concluded that 10% is sufficient.

We have said that “a common carrier need not serve all the public all the

time.” Wright v. Midwest Old Settlers & Threshers Ass’n, 556 N.W.2d 808,

810 (Iowa 1996) (per curiam). A common carrier may combine “other

vocations” and still be considered a common carrier. Id. at 811. Long ago

we held that a trucker who transported films and advertising for members

who had signed an alleged association agreement was still a common

carrier where he also transported films and advertising for theaters that

had not signed the agreement. State ex rel. Bd. of R.R. Comm’rs v.

Rosenstein, 217 Iowa 985, 989–93, 252 N.W. 251, 254–55 (1934).

Significantly, Dakota Access does not involve a situation where service

“has been limited to those under contract.” State ex rel. Bd. of R.R.

Comm’rs v. Carlson, 217 Iowa 854, 857, 251 N.W. 160, 161 (1933)

(emphasis added). 3

The Lamb petitioners insist that the Dakota Access pipeline is not a

common carrier because it does not serve “the Iowa public.” Yet adding

Mid-American Pipeline Company v. Iowa State Commerce Commission, we said 3In

that a grant of eminent domain authority to a private company to construct a pipeline exclusively for its own use was “for a strictly private purpose” and “beyond legislative authority.” 253 Iowa 1143, 1146–47, 114 N.W.2d 622, 624 (1962) (noting that “Northern intends to handle only its own products by pipe line and is not a common carrier of such products”). Those are not the facts here. Again, Dakota Access serves a variety of customers and 10% of pipeline capacity is available on a walk-up basis. See also Crawford Family Farm P’ship v. TransCanada Keystone Pipeline, L.P., 409 S.W.3d 908, 922–24 (Tex. App. 2013) (determining that a pipeline would be a common carrier because there was a “reasonable probability” it would ship crude petroleum for one or more customers who would retain ownership of the oil). 24

the modifier “Iowa” would be a gloss on the statute for which there is no

basis in the statute itself. For these reasons, we find no violation of

sections 6A.21 and 6A.22.

VII. Constitutional Authority for the Exercise of Eminent

Domain.

This brings us to the most significant issue in the case, whether the

use of eminent domain for the Dakota Access pipeline as authorized by

Iowa Code section 479B.16 violates article I, section 18 of the Iowa

Constitution or the Fifth and Fourteenth Amendments to the United States

Constitution.

Section 479B.16 addresses the use of eminent domain for pipelines.

It provides in part,

A pipeline company granted a pipeline permit shall be vested with the right of eminent domain, to the extent necessary and as prescribed and approved by the board, not exceeding seventy-five feet in width for right-of-way and not exceeding one acre in any one location in addition to right-of-way for the location of pumps, pressure apparatus, or other stations or equipment necessary to the proper operation of its pipeline.

Iowa Code § 479B.16.

Article I, section 18, the takings clause in the Iowa Constitution, states in part,

Private property shall not be taken for public use without just compensation first being made, or secured to be made to the owner thereof, as soon as the damages shall be assessed by a jury, who shall not take into consideration any advantages that may result to said owner on account of the improvement for which it is taken.

Iowa Const. art. I, § 18. The Fifth Amendment to the United States

Constitution similarly provides that “private property [shall not] be taken

for public use, without just compensation.” U.S. Const. amend. V. 25

We have said that we consider federal cases interpreting the Federal

Takings Clause “persuasive in our interpretation of the state provision,”

but “not binding.” Kingsway Cathedral v. Iowa Dep’t of Transp., 711

N.W.2d 6, 9 (Iowa 2006); see also Harms v. City of Sibley, 702 N.W.2d 91,

97 (Iowa 2005).

The Lamb petitioners deny that the Dakota Access pipeline furthers

a constitutionally valid public use. They contend that the indirect

economic benefits of an infrastructure project, such as jobs created or tax

revenues generated, cannot be considered in determining public use. They

also contend that an oil pipeline that crosses Iowa but does not pick up or

drop off oil within the state does not constitute a public use. We will

address these arguments in order.

We begin by considering the United States Supreme Court’s

interpretation of the Fifth Amendment in Kelo v. City of New London, 545

U.S. 469, 125 S. Ct. 2655 (2005). In Kelo, the Court addressed the

question of “whether a city’s decision to take property for the purpose of

economic development satisfies the ‘public use’ requirement of the Fifth

Amendment.” Id. at 477, 125 S. Ct. at 2661. There, an economic

development plan was intended to remedy decades of economic decline

that led to the City of New London being designated a “distressed

municipality.” Id. at 473–75, 125 S. Ct. at 2658–60. A majority of the

Court found that the City of New London could compel private

homeowners to turn over their homes to a private developer because the

city’s plan served a “public purpose.” Id. at 484, 125 S. Ct. at 2665. The

Court noted, “For more than a century, our public use jurisprudence has

wisely eschewed rigid formulas and intrusive scrutiny in favor of affording

legislatures broad latitude in determining what public needs justify the

use of the takings power.” Id. at 483, 125 S. Ct. at 2664. 26

Justice O’Connor filed a dissenting opinion in which Chief Justice

Rehnquist and Justices Scalia and Thomas joined. Id. at 494, 125 S. Ct.

at 2671 (O’Connor, J., dissenting). She characterized the majority as

holding

that the sovereign may take private property currently put to ordinary private use, and give it over for new, ordinary private use, so long as the new use is predicted to generate some secondary benefit for the public—such as increased tax revenue, more jobs, maybe even esthetic pleasure.

Id. at 501, 125 S. Ct. at 2675. In her view, a secondary benefit alone was

not enough for a governmental transfer of property from one private entity

to another to qualify as a taking for a public purpose. Id. She reasoned

that almost any lawful use of private property will generate some

secondary benefit and, thus, if “positive side effects” are sufficient to

classify a transfer from one private party to another as “for public use,”

those constitutional words would not “realistically exclude any takings.”

Id. Although she did not agree that economic development alone could

justify a taking, Justice O’Connor did acknowledge there were three

categories of legitimate public use:

Our cases have generally identified three categories of takings that comply with the public use requirement, though it is in the nature of things that the boundaries between these categories are not always firm. Two are relatively straightforward and uncontroversial. First, the sovereign may transfer private property to public ownership—such as for a road, a hospital, or a military base. Second, the sovereign may transfer private property to private parties, often common carriers, who make the property available for the public’s use—such as with a railroad, a public utility, or a stadium. But “public ownership” and “use-by-the-public” are sometimes too constricting and impractical ways to define the scope of the Public Use Clause. Thus we have allowed that, in certain circumstances and to meet certain exigencies, takings that serve a public purpose also satisfy the Constitution even if the property is destined for subsequent private use. 27

Id. at 497–98, 125 S. Ct. at 2673 (citations omitted).

The Kelo decision has proved controversial, not least because the

development that justified the taking of Ms. Kelo’s home never occurred.

See Alberto B. Lopez, Kelo-Style Failings, 72 Ohio St. L.J. 777, 779–80

(2011). Several state supreme courts have held that public use must mean

something more than indirect economic benefits. See, e.g., Sw. Ill. Dev.

Auth. v. Nat’l City Envtl., L.L.C., 768 N.E.2d 1, 10–11 (Ill. 2002); County of

Wayne v. Hathcock, 684 N.W.2d 765, 783 (Mich. 2004); City of Norwood v.

Horney, 853 N.E.2d 1115, 1123 (Ohio 2006); Bd. of Cty. Comm’rs of

Muskogee Cty. v. Lowery, 136 P.3d 639, 647 (Okla. 2006).

Thus, in Southwestern Illinois, the Illinois Supreme Court held that

a regional development authority could not exercise eminent domain to

take a recycling facility’s property and convey it to a private racetrack for

a parking lot. 768 N.E.2d at 4, 11. The court concluded the purported

benefit of positive economic growth in the region was not enough to satisfy

public use as required under the Illinois Constitution. Id. at 10–11. The

court also found shorter lines to enter parking lots and the fact that

pedestrians might be able to cross from parking areas to event areas in a

safer manner unpersuasive as sufficient factors to satisfy the public-use

requirement. Id. at 9.

In Southwestern Illinois, the racetrack estimated the condemned

land, which was to be used for open-field parking, would lead to an

increase of $13 to $14 million in revenue per year. Id. at 10. The Illinois

court recognized that such profit could trickle down and bring revenue

increases to the region. Id. Yet it reasoned, “[R]evenue expansion alone

does not justify an improper and unacceptable expansion of the eminent

domain power of the government.” Id. at 10–11. 28

Similarly, in Hathcock, the Michigan Supreme Court held a private

entity was not entitled to exercise eminent domain to build a business and

technology park. 684 N.W.2d at 783–84. The Michigan court determined

that something beyond economic benefits was required to show public use

under the Michigan Constitution. Id. at 783. The court there relied on its

own jurisprudence and its interpretation of the Michigan constitutional

founders’ intent. Id. at 785–87. The court, tracking O’Connor’s dissent in

Kelo, concluded,

[T]he transfer of condemned property to a private entity, seen through the eyes of an individual sophisticated in the law at the time of ratification of our 1963 Constitution, would be appropriate in one of three contexts: (1) where “public necessity of the extreme sort” requires collective action; (2) where the property remains subject to public oversight after transfer to a private entity; and (3) where the property is selected because of “facts of independent public significance,” rather than the interests of the private entity to which the property is eventually transferred.

Id. at 783. While the Michigan Constitution’s takings clause is not

identical to ours, it resembles ours in prohibiting takings of private

property “for public use without just compensation therefore being first

made.” Mich. Const. art. X, § 2 (1963) (amended in 2006, after Hathcock,

to define “public use” as more than “for the purpose of economic

development or enhancement of tax revenues”).

Adopting Hathcock’s reasoning, the Ohio Supreme Court held that

economic factors could be considered in determining whether property

may be appropriated but could not alone satisfy the public-use

requirement of the Ohio Constitution. Norwood, 853 N.E.2d at 1123. In

Norwood, a struggling city (much like New London in Kelo) entered into a

contract with a private developer to redevelop a neighborhood. Id. at 1124.

The plans called for over 200 apartments and condominiums, over 29

500,000 square feet of office and retail space, and two large public-parking

facilities. Id. at 1124. The city estimated the redeveloped area would bring

in $2 million in annual revenue to the city. Id.

Several property owners, however, refused to sell for the planned

development, and the city therefore tried to exercise eminent domain to

take the properties. Id. at 1124–26. The Ohio Supreme Court declined to

follow the majority opinion in Kelo, stating that the Hathcock opinion and

the dissenting opinions in Kelo were better models for interpreting the Ohio

Constitution. Id. at 1140–41.

Though the Ohio Constitution may bestow on the sovereign a magnificent power to take private property against the will of the individual who owns it, it also confers an “inviolable” right of property on the people. When the state elects to take private property without the owner’s consent, simple justice requires that the state proceed with due concern for the venerable rights it is preempting.

Id. at 1137–38.

Along the same lines, the Oklahoma Supreme Court determined that

economic development alone was not a public purpose to justify the

exercise of eminent domain under the Oklahoma Constitution. See Bd. of

Cty. Comm’rs of Muskogee Cty., 136 P.3d at 647. In Board of County

Commissioners, the city wanted to install three water pipelines, two of

which would serve only a proposed privately-owned electric generation

plant and which would improve and expand existing public service. Id. at

642–43. The private energy company had agreed to build the third public

pipeline only if the company first obtained all rights-of-way to construct

the energy plant and the accompanying first two water pipelines. Id. at

643.

The court reasoned that although one pipeline would serve the

public, the purpose of the takings was for the construction and operation 30

of the privately owned energy company. Id. at 649. Further, the court

said that although the construction of the energy plant would enhance

economic development through taxes, jobs, and investment, those

economic benefits alone would not suffice to satisfy the public use

requirement. Id.

These state constitutional decisions would not necessarily have

disappointed the Kelo majority. The Kelo majority themselves noted that

“nothing in our opinion precludes any State from placing further

restrictions on its exercise of the takings power.” Kelo, 545 U.S. at 489,

125 S. Ct. at 2668 (majority opinion). It added that “many States already

impose ‘public use’ requirements that are stricter than the federal

baseline,” and “[s]ome of these requirements have been established as a

matter of state constitutional law.” Id.

Since Kelo was decided, we have twice quoted from Justice

O’Connor’s dissent. In Clarke County Reservoir Commission v. Robins, we

noted,

Justice O’Connor underscored the constitutional necessity that any taking be for a “public use” with “just compensation”:

These two limitations serve to protect the security of Property, which Alexander Hamilton described to the Philadelphia Convention as one of the great obj[ects] of Gov[ernment]. Together they ensure stable property ownership by providing safeguards against excessive, unpredictable, or unfair use of the government’s eminent domain power—particularly against those owners who, for whatever reasons, may be unable to protect themselves in the political process against the majority’s will.

862 N.W.2d 166, 171–72 (Iowa 2015) (alteration in original) (quoting Kelo,

545 U.S. at 496, 124 S. Ct. at 2672 (O’Connor, J., dissenting)). We went

on to state, “The public-use requirement is to prevent abuse of the power 31

for the benefit of private parties.” Id. And in Star Equipment, Ltd. v. State,

we observed,

Four dissenters noted in the context of the Federal Takings Clause: “We give considerable deference to legislatures’ determinations about what governmental activities will advantage the public. But were the political branches the sole arbiters of the public-private distinction, the Public Use Clause would amount to little more than hortatory fluff.”

843 N.W.2d 446, 459 n.11 (Iowa 2014) (quoting Kelo, 545 U.S. at 497, 125

S. Ct. at 2673).

Like our colleagues in Illinois, Michigan, Ohio, and Oklahoma, we

find that Justice O’Connor’s dissent provides a more sound interpretation

of the public-use requirement. If economic development alone were a valid

public use, then instead of building a pipeline, Dakota Access could

constitutionally condemn Iowa farmland to build a palatial mansion,

which could be defended as a valid public use so long as 3100 workers

were needed to build it, it employed twelve servants, and it accounted for

$27 million in property taxes. 4

Having said that, this case is not that one. Instead, this case falls

into the second category of traditionally valid public uses cited by Justice

O’Connor: a common carrier akin to a railroad or a public utility. See Kelo, 545 U.S. at 498, 125 S. Ct. at 2673. This kind of taking has long been

4In fairness to the Kelo majority, they did not say that any economic development benefit would meet the public-use test. If the economic benefits of merely building a project qualified as a public use, then the legislature could empower A to take B’s house just because A planned to erect something new on the lot. Even the Kelo majority did not go that far. See Kelo, 545 U.S. at 487, 125 S. Ct. at 2667 (“Such a one-to-one transfer of property, executed outside the confines of an integrated development plan, is not presented in this case.”). But as Justice O’Connor noted in dissent, it is problematic to have a fact-based public-use test that allows economic development benefits to suffice in some cases, depending on whether the economic development benefit derives from “a multipart, integrated plan rather than . . . an isolated property transfer.” Id. at 503–04, 125 S. Ct. at 2676. 32

recognized in Iowa as a valid public use, even when the operator is a

private entity and the primary benefit is a reduction in operational costs.

Back in 1870, when our constitution was only thirteen years old,

this court held that a taking for a private railroad was a taking for a public

use within the meaning of article I, section 18. Stewart v. Bd. of

Supervisors, 30 Iowa 9, 19–21 (1870). We said this proposition was

“elementary and unquestionable.” Id. at 21. We quoted with approval “the

leading American case,” where it was written:

The right of eminent domain does not, however, imply a right in the sovereign power to take the property of one citizen and transfer it to another, even for a full compensation, where the public interest will be in no way promoted by such transfer. But if the public interest can be in any way promoted by the taking of private property, it must rest in the wisdom of the legislature, to determine whether the benefit to the public will be of sufficient importance to render it expedient for them to exercise the right of eminent domain and to interfere with the private rights of individuals for that purpose. . . . In all such cases the object of the legislative power is the public benefit derived from the contemplated improvement, whether such improvement is to be effected directly by the agents of the government, or through the medium of corporate bodies, or of individual enterprise.

Id. (quoting Beekman v. Saratoga & Schenectady R.R., 3 Paige Ch. 45, 73

(N.Y. Ch. 1831)). More recently, in S.E. Iowa Cooperative Electric

Association, we held that cost savings alone were a sufficient statutory

“public use” to justify the construction of a new electrical transmission

line. 633 N.W.2d at 820. We explained that “the public is served” when

they can “obtain service at a lower cost.” Id. 5

5The 1857 Constitutional Convention turned down language that would have expressly allowed the use of eminent domain for “private roads.” 1 The Debates of the Constitutional Convention of the State of Iowa 207 (W. Blair Lord rep., 1857), www.statelibraryofiowa.org/services/collections/law-library/iaconst. A private road, though, was defined by a member of the convention as “a way leading from a public highway to a person’s dwelling for his convenience merely.” Id. That is not analogous to the Dakota Access pipeline. Notably, our legislature has long given private property owners the ability to use eminent domain to connect their land-locked lands to existing 33

In sum, because we do not follow the Kelo majority under the Iowa

Constitution, we find that trickle-down benefits of economic development

are not enough to constitute a public use. To the extent that Dakota

Access is relying on the alleged economic development benefits of building

and operating the pipeline, we are unmoved. But here there is more. While

the pipeline is undeniably intended to return profits to its owners, the

record indicates that it also provides public benefits in the form of cheaper

and safer transportation of oil, which in a competitive marketplace results

in lower prices for petroleum products. As already discussed, the pipeline

is a common carrier with the potential to benefit all consumers of

petroleum products, including three million Iowans.

The Lamb petitioners assert that even these benefits are not enough,

because no Iowa business or consumer will actually use the pipeline to

deliver or receive crude oil. This approach is too formalistic. Iowa has

some of the most advanced and productive farming in the world. But our

economy, including our agricultural economy, depends on other states to

produce crude oil and refine that crude oil into petroleum products. If our

consideration of public use were limited as the Lamb petitioners propose,

it would be very difficult ever to build a pipeline across Iowa carrying any

product that isn’t produced in Iowa. Yet Iowa is crisscrossed with

pipelines. 6

In Enbridge Energy (Illinois), L.L.C. v. Kuerth, the Illinois Appellate

Court took a more nuanced view, which we find persuasive. 99 N.E.3d

public roads so long as the resulting road is open to the public, see Iowa Code § 6A.4(2), and we have upheld the constitutionality of that legislation. See In re Luloff, 512 N.W.2d 267, 273–74 (Iowa 1994). 6As we have previously noted, the Dakota Access pipeline is intended to replace transportation of crude oil through Iowa by rail. If those railroads are a valid public use, then why would a pipeline not be a public use when it serves the same function? 34

210, 218 (Ill. App. Ct. 2018). There the court rejected an appeal by certain

landowners and upheld a grant of eminent domain authority for an oil

pipeline project. Id. at 213–14, 218. The court reasoned, “The

fundamental flaw of landowners’ argument is that they focus entirely upon

who uses the pipeline rather than who benefits from it.” Id. at 218. The

court added,

Oil, natural gas, and other energy sources are essential to modern American life and must be transported from production facilities to refineries and ultimately to consumers. Pipelines are necessary for this transportation and are often safer and more efficient than transportation by train or truck.

Id. Further, the court noted, “[T]he public use requirement can still be

met even if the public does not have the right to enter or use the

condemned property.” Id. The court went on,

In this case, despite landowners’ arguments to the contrary, the trial court was not required to examine who would be using the pipeline, the extent of any particular company’s use of the pipeline, whether those companies were part of the public, or who would financially benefit from the proposed pipeline. This is because the legislature has determined that pipelines are in the public interest and that it is efficient for private companies, rather than the government, to construct and maintain these pipelines. . . .

....

[T]he only evidence landowners presented was evidence showing that private companies would own and benefit from a proposed pipeline. However, as we emphasize again, who owns or benefits from a proposed pipeline is not relevant evidence to rebut the applicable presumptions. Because landowners did not introduce any relevant evidence to show that the public, in the aggregate, would not be the primary beneficiary of the pipeline, they utterly failed to meet their burden to rebut the presumptions of public use and necessity.

Id. at 220–21 (citations omitted).

This reasoning applies here. The record indicates that the Dakota

Access pipeline will lead to “longer-term, reduced prices on refined 35

products and goods and service dependent on crude oil and refined

products.”

In a similar vein, the Ohio Court of Appeals confronted and then

ultimately rejected the following argument from a landowner:

She claims the pipeline has no “off ramps” in Ohio, which means 100% of the product will be shipped and consumed outside of Ohio. Ohio will only get an economic benefit, which is insufficient to satisfy public use. Furthermore, there is no indication the propane or butane shipped to Marcus Hook will come back to Ohio for heating or gasoline use. Appellant asserts the benefit to Appellee, a private company, is certain while the benefit to Ohio is speculative. Appellant also argues the intended purpose of allowing private companies to appropriate land when they are a common carrier was to build intrastate energy infrastructure, not to authorize the building of interstate infrastructure or interstate transportation of Ohio’s resources.

Sunoco Pipeline L.P. v. Teter, 63 N.E.3d 160, 171–72 (Ohio Ct. App. 2016).

Notwithstanding Norwood, the court found this argument unpersuasive.

Id. at 172–73. It reasoned,

Appellee is a common carrier, not a megastore or a private enterprise that would only be providing economic benefit to Ohio. The reason the General Assembly gave common carriers a rebuttable presumption is because common carriers, as defined by statute, provide our citizens with necessities such as electricity and water. The products, propane and butane, being transported are used to heat homes and as an additive to gasoline. Propane and butane are also used in the production of many products our society uses every day. Thus, the transportation of propane and butane provides more than economic benefit to Ohio, it provides some of the necessities of life.

Id. at 173–74. Oil is, if anything, more of a necessity than the

hydrocarbons that were involved in Sunoco Pipeline.

The Lamb petitioners rely on Mountain Valley Pipeline, LLC v.

McCurdy, 793 S.E.2d 850 (W. Va. 2016). There a company sought to build

a natural gas pipeline to carry almost exclusively natural gas produced by

its own affiliates from West Virginia to a terminus in Virginia. Id. at 852. 36

The West Virginia Supreme Court found that this was not a public use

within the meaning of a West Virginia statute. Id. at 855, 862–63. The

court explained,

MVP has been unable to identify even a single West Virginia consumer, or a West Virginia natural gas producer who is not affiliated with MVP, who will derive a benefit from MVP’s pipeline. . . . MVP is a private company seeking to survey property for the ultimate purpose of exercising the right of eminent domain. . . . In fact, the only benefit to West Virginia that has been asserted by MVP in this appeal is the benefit to producers and shippers of the natural gas that is located in West Virginia. Significantly, however, the owners of that natural gas are affiliates of MVP.

Id. at 860–61 (footnotes omitted).

The Mountain Valley Pipeline court cited Bluegrass Pipeline

Company, LLC v. Kentuckians United to Restrain Eminent Domain, Inc. 478

S.W.3d 386 (Ky. Ct. App. 2015). 793 S.E.2d at 862. In Bluegrass Pipeline,

the Kentucky Court of Appeals concluded that a pipeline transporting

natural gas liquids through Kentucky on the way to the Gulf of Mexico was

not in “public service” and could not exercise eminent domain. 478 S.W.3d

at 388, 391–92. Among other things, the court took note that

the NGLs in Bluegrass’s pipeline are being transported to a facility in the Gulf of Mexico. If these NGLs are not reaching Kentucky consumers, then Bluegrass and its pipeline cannot be said to be in the public service of Kentucky.

Id. at 392.

These cases can be distinguished. The West Virginia case involved

a private pipeline, not a common carrier. See Mountain Valley Pipeline,

793 S.E.2d at 860–61. The Kentucky case turned in part on the court’s

view that “the legislature only intended to delegate the state’s power of

eminent domain to those pipeline companies that are, or will be, regulated

by the [Kentucky Public Service Commission].” Bluegrass Pipeline Co., 478

S.W.3d at 392. But more importantly, we have a different view of “public 37

use” under the Iowa Constitution. We do not believe a common carrier of

a raw material that is essential to Iowa’s economy but isn’t produced or

processed in Iowa is prohibited from exercising eminent domain when so

authorized by the general assembly. The public use concept is not that

restrictive. See Transcon. Gas Pipe Line Corp. v. Calco Enters., 511 S.E.2d

671, 676 (N.C. Ct. App. 1999) (“The concept is flexible and adaptable to

changes in society and governmental duty.”). The Iowa Constitution does

not hang on the presence of spigots and on-ramps.

Accordingly, we hold that there was no violation of article I, section

18 of the Iowa Constitution. For the reasons already stated, we also find

no Fifth Amendment violation. We recognize that a serious and warranted

concern about climate change underlies some of the opposition to the

Dakota Access pipeline. Maybe, as a matter of policy, a broad-based

carbon tax that forced all players in the marketplace to bear the true cost

of their carbon emissions should be imposed. The revenues from this

broad-based tax could be used to offset other taxes. But policy making is

not our function, and as a legal matter we are satisfied that the Dakota

Access pipeline meets the characteristics of a public use under the Iowa

and United States Constitutions.

VIII. Puntenney’s and Johnson’s Individual Claims.

Puntenney lives in Boone and owns farmland in Webster County,

which is used for growing soybeans and corn. Before the IUB, Puntenney

submitted a map showing that the pipeline route was going to cut through

the very southwest corner of his property and that it could be rerouted,

without becoming any less “straight,” so as not to go through his property.

Puntenney contends the pipeline should have been rerouted around his

property, especially in light of his plans to install wind turbines. 38

The record shows that the pipeline generally runs on a straight line

from northwest Iowa to southeast Iowa but is not entirely straight because

of the software employed by Dakota Access to account for environmental

features (such as critical habitat, fault lines, state parks, national forests,

and historic sites), engineering considerations (such as existing pipelines

and power lines), and land use considerations (such as homes, other

buildings, dams, airports, cemeteries, and schools).

Puntenney contends that by not requiring Dakota Access to go

around his property, the IUB violated Iowa Code section 479B.1, which

only confers “rights of eminent domain where necessary.” (Emphasis

added). According to Puntenney, it was not necessary for the pipeline to

traverse his property.

We do not read the statute that way. Obviously, with a pipeline that

bisects the entire state, it is never going to be strictly “necessary” for that

pipeline to cut across any particular landowner’s property. Diversions will

always be possible. In our view, the demands of this statute are met if the

pipeline company demonstrates that the pipeline requires the exercise of

eminent domain and demonstrates why the particular route it has

proposed is superior. Both criteria were met here. See Green v. Wilderness

Ridge, L.L.C., 777 N.W.2d 699, 704 (Iowa 2010) (deciding in a private

condemnation action that the legislature intended a flexible approach and

that “it is unlikely that the legislature intended to mandate that the land

to be condemned must always be the shortest route”).

Puntenney also contends the IUB acted arbitrarily in not relocating

the proposed pipeline to accommodate his plans to install wind turbines,

even as it directed a rerouting for the benefit of a turkey farmer. But the

IUB explained why. The turkey farmer was further along. He was talking

turkey about putting up new buildings. Puntenney, on the other hand, 39

had merely conceived the idea of installing wind turbines and had no

specific plan. Moreover, the record did not show that the pipeline would

interfere with any later plans to erect wind turbines, especially when it

only ran under the very southwest corner of Puntenney’s property. 7

Lastly, Puntenney contends that he was not allowed to testify to his

concerns about the impact of the pipeline on his drainage tile. However,

Puntenney was allowed to file written objections that detailed his tiling

concerns. He was also asked specifically about tiling in his live testimony.

And he was asked open-ended questions in his live testimony. For

example, the chairperson of the IUB asked Puntenney, “Can you tell the

Board exactly what you’re looking for in terms of relief beyond moving the

pipeline off of your property?” Puntenney did not request the chance to

testify further.

Johnson is a corn and soybean farmer in Boone County, who like

Puntenney sought the rerouting of the pipeline to avoid his property.

Johnson said he feared the pipeline would destroy the drainage tile and

concrete pipe he had installed on his land. The IUB did not order

rerouting, but it did grant relief to Johnson: it directed Dakota Access to

install the pipeline below Johnson’s entire drainage system, including the

twenty-four-inch concrete main that was already buried up to twenty-two

feet deep. A Dakota Access witness explained that it would not be feasible

to divert the line as Johnson had requested because in the area of

proposed diversion there were a forest, a creek, and a county drain line.

Dakota Access would have to cut out trees, cross a creek, and encumber

another drain line. The IUB concluded, “[T]here appears to be no

7Puntenney also compares his situation to that of another landowner who was

granted relief. But that landowner was only granted partial relief. Dakota Access was directed to negotiate with that landowner to avoid one parcel that it had conceded it could avoid and to relocate the route over three other parcels (without avoiding them entirely). 40

reasonable alternative to granting eminent domain along the route

proposed by Dakota Access and boring under the 24-inch main appears

to be the least intrusive alternative.” This finding is supported by

substantial evidence.

IX. Conclusion.

For the foregoing reasons, we affirm the judgment of the district

court.

AFFIRMED.

All justices concur except Wiggins, J., who concurs in part and

dissents in part, joined by Appel, J., and McDonald, J., who dissents. 41

#17–0423, Puntenney v. IUB

WIGGINS, Justice (concurring in part and dissenting in part).

I dissent from the majority’s conclusion that the use of eminent

domain does not violate the Iowa Constitution. I agree with the majority

that incidental economic benefits alone are not enough for a taking to

qualify as “for public use” under article I, section 18. However, I disagree

that the Dakota Access pipeline fits within the “common carrier exception”

for purposes of the Iowa Constitution. I also find fault in Dakota Access’s

use of eminent domain because it is unrelated to the purpose of the

applicable eminent-domain-authorizing statute.

One way a taking complies with article I, section 18’s public use

requirement is where “the sovereign . . . transfer[s] private property to

private parties, often common carries, who make the property available for

the public’s use.” Kelo v. City of New London, 545 U.S. 469, 497–98, 125

S. Ct. 2655, 2673 (2005) (O’Connor, J., dissenting). Inherent in this “use-

by-the-public” method of compliance is that the condemning sovereign’s

public be able to use the taken property. Various courts have recognized

that

[t]he sovereign’s power of eminent domain, whether exercised by it or delegated to another, is limited to the sphere of its control and within the jurisdiction of the sovereign. A state’s power exists only within its territorial limits for the use and benefit of the people within the state. Thus, property in one state cannot be condemned for the sole purpose of serving a public use in another state.

Mountain Valley Pipeline, LLC v. McCurdy, 793 S.E.2d 850, 862 (W. Va.

2016) (quoting Clark v. Gulf Power Co., 198 So. 2d 368, 371 (Fla. Dist. Ct.

App. 1967)); accord, e.g., Adams v. Greenwich Water Co., 83 A.2d 177, 182

(Conn. 1951) (noting “no state is permitted to exercise or authorize the

exercise of the power of eminent domain except for a public use within its 42

own borders” and collecting cases); Square Butte Elec. Coop. v. Hilken, 244

N.W.2d 519, 525 (N.D. 1976) (“[A]lthough other states may also be

benefited, the public in the state which authorizes the taking must derive

a substantial and direct benefit . . . , something greater than an indirect

advantage . . . .”); see Gralapp v. Miss. Power Co., 194 So. 2d 527, 531 (Ala.

1967).

Recently, other states have relied on that principle when considering

whether a pipeline running across the state constituted a public use. See

Mountain Valley Pipeline, 793 S.E.2d at 860–62 (West Virginia high court

finding a natural gas pipeline was not for a public use because West

Virginians could not use and did not directly benefit from the pipeline or

the natural gas it was to transport); see also Bluegrass Pipeline Co. v.

Kentuckians United to Restrain Eminent Domain, Inc., 478 S.W.3d 386, 392

(Ky. Ct. App. 2015) (finding pipeline was not “in the public service of

Kentucky” because the product in the pipeline was being transported to a

facility in the Gulf of Mexico and not reaching Kentucky consumers); cf. In

re Condemnation by Sunoco Pipeline, L.P., 143 A.3d 1000, 1019 (Pa.

Commw. Ct. 2016) (upholding finding of public benefit of pipeline because

the intrastate pipeline would enhance delivery options for natural gas and

liquids in Pennsylvania).

Additionally, I would find Dakota Access’s takings do not qualify as

“for public use” because the primary purposes of the takings and their

incidental economic and public safety benefits are unrelated to the

purpose of the statute authorizing the use of eminent domain. In this case, the statute authorizing the use of eminent domain is not Iowa Code chapter 6A but rather chapter 479B. The purpose of chapter 479B is “to protect landowners and tenants from environmental or economic damages which may result from the construction, operation, 43

or maintenance of a hazardous liquid pipeline.” Iowa Code § 479B.1 (2016). The primary purported purposes of Dakota Access’s pipeline are (1) so a private business can build a private pipeline to “transport crude oil from sources in North Dakota to a hub in Illinois” and (2) to answer the oil industry’s desire for a pipeline. However, the purpose of chapter 479B is neither to facilitate private transportation of crude oil (or other hazardous liquids) nor to acquiesce to a particular industry’s desire for a particular method of transporting its product. Thus, the primary purported purposes of the pipeline are unrelated to the purpose of exercising eminent domain as contemplated in chapter 479B. Likewise, the Iowa Utility Board’s (IUB) finding that the pipeline promotes public safety does not correspond with the purpose of chapter 479B. The IUB found the pipeline promotes public safety because the risk of an oil spill is lower when the oil is transported by pipeline than when it is transported by rail. But the public safety purpose of chapter 479B is not to lower the risk of damages resulting from the transportation of oil generally. It is to protect against damages resulting “from the construction, operation, or maintenance” of an oil pipeline. Id. In sum, I conclude the Dakota Access pipeline does not fit within the common carrier exception for purposes of the Iowa Constitution because the Iowa public cannot use and does not derive a direct benefit from it. Further, even taking into account the purported incidental and secondary benefits to Iowans, the use of eminent domain in this case does not accord with the purpose for which eminent domain may be exercised as stated in the pertinent statute authorizing the use of eminent domain. I would hold the Dakota Access’s takings violate article I, section 18 of the Iowa Constitution. Appel, J., joins this concurrence in part and dissent in part. 44

McDONALD, Justice (dissenting).

The Iowa Utilities Board (IUB) approved construction of the pipeline.

The IUB authorized Dakota Access to use the eminent domain power to

condemn easements. Dakota Access exercised the eminent domain power

as granted. The appellants accepted the condemnation awards. Dakota

Access built the pipeline. Oil is flowing through the pipeline. No further

relief is available. What’s done, is done. The case is moot.

The leading case is Welton v. Iowa State Highway Commission, 208

Iowa 1401, 227 N.W. 332 (1929). In Welton, we concluded a challenge to

the construction of a highway was moot when construction was completed:

[S]ubsequent to the decision of the district court in this case, and in the absence of an order staying appellees’ actions, the road in controversy was established . . . [. T]he appellant has perfected an appeal to the district court of Mahaska county, from the award of the condemnation commissioners, as to the amount of his damages . . . . [D]uring the pendency of the appeal, the defendant did not obtain a restraining order from this court . . . .

It is apparent from the uncontroverted affidavit that the orchard has been taken for highway purposes and the paving laid. No order which we can now make can preserve to appellant his orchard.

Id. at 1402–03, 227 N.W. at 333.

Similarly, in Porter v. Board of Supervisors, we concluded the

completion of a drainage ditch was an established fact that precluded

relief:

We call attention also to the fact . . . that the construction ha[s] already taken place and that the canal or ditch [i]s in operation. There was no stay of proceedings nor application in this court for an order to stay construction. Under these circumstances the construction of the ditch became an established fact before the case was submitted to us for decision. 45

238 Iowa 1399, 1404, 228 N.W.2d 841, 844 (1947).

As in Welton and Porter, the construction and operation of the

pipeline is an established fact—what’s done cannot be undone. The

appellants previously conceded their claims were moot once the pipeline

was completed and placed into service. In the district court, the appellants

sought a stay. In support of their application for stay, the appellants

conceded “if they d[id] not receive a stay before [Dakota Access’s] pipeline

trench [wa]s dug, any remedy w[ould] be inadequate.” The district court

denied the application for stay. The appellants did not seek interlocutory

appeal, did not seek a stay from this court, and did not seek to expedite

the appeal. In the meantime, the “trench [was] actually dug.”

The completion of the pipeline and the appellants’ acceptance of the

condemnation awards are established facts that render their claim moot.

See Campbell-Ewald Co. v. Gomez, 577 U.S. ___, ___, 136 S. Ct. 663, 669

(2016) (“If an intervening circumstance deprives the plaintiff of a ‘personal

stake in the outcome of the lawsuit,’ at any point during litigation, the

action can no longer proceed and must be dismissed as moot.” (quoting

Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 72, 133 S. Ct. 1523,

1528 (2013))); Standing Rock Sioux Tribe v. U.S. Army Corps of Eng’rs, 301

F. Supp. 3d 50, 63 (D.D.C. 2018) (“The specter of mootness raised in

Standing Rock’s earlier filings has now come to pass—construction is

complete and oil is flowing through the pipeline.”); Gunnar v. Town of

Montezuma, 228 Iowa 581, 584, 293 N.W. 1, 3 (1940) (stating a case is

moot if “the threatened action has become an accomplished fact”). For

these reasons, I would dismiss the appeal.