Pipeline files suit against Calhoun County

By: 
Erin Sommers Graphic-Advocate Editor

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The Calhoun County Board of Supervisors does not have authority to require permits for a proposed oil pipeline that would cross the county, pipeline officials said in a lawsuit filed last month.
“According to the Supervisors, they have the power to become a mini-Utilities Board because the Iowa Code states that anyone proposing to construct a pipeline through a drainage district must get an easement, and that in granting that easement, the district can attach ‘necessary’ conditions,” Dakota Access LLC attorneys said in a brief filed July 24. “This provision, however, is not nearly as expansive as the Supervisors appear to believe. It allows reasonable conditions to be attached to an easement – not the creation of a full-fledged regulatory scheme. And those conditions have to be directly related to protection of the facilities of the drainage district, not wide-ranging terms on fees, liability limitations, compensation, access to the easement, etc.”
Dakota Access LLC filed the civil lawsuit with the Calhoun County District Court Clerk’s office. The lawsuit argues that a resolution the supervisors passed last month violates state code, and asks a judge to issue an injunction to stop the county from implementing the resolution and requiring permits to construct the pipeline. County officials passed the resolution, which was drafted by the Iowa Drainage Ditch Association, as a way to keep a closer eye on construction. The pipeline would cross 33 Calhoun County drainage tiles and ditches. The resolution calls for Dakota Access to pay for a $7,500 permit for each crossing.
The resolution, “establishing a pipeline permitting, land acquisition and land restoration scheme that is inconsistent with the pipeline permitting, land acquisition, and land restoration scheme established by the legislature and the Iowa Utilities Board,” Dakota Access’s attorneys wrote. “(T)he requirements imposed by the resolution will interfere with the safe and efficient construction and operation of the pipeline; are in some cases simply impossible, impractical, financially infeasible, or deny the opportunity to use best practices; will make it unduly burdensome to meet the schedule set forth by the Utilities Board for the permitting proceeding, and will jeopardize the project timeline, resulting in the addition of tens of millions of dollars to the cost of construction.”
The resolution tries to give the Board of Supervisors the same authority and duties state code gives to the utilities board, attorneys wrote. Dakota Access officials criticized the board not only for approving the resolution, but also the manner in which it was passed.
“In February of this year, Dakota Access representatives met with the Iowa Drainage District Association, a meeting that included representatives from Calhoun County and the attorney who represents the Calhoun County drainage districts,” a supporting brief said. “Nothing in that meeting – or since – would have given Dakota Access any idea that the drainage districts would seek to separately and extensively regulate the pipeline. Instead, Calhoun County waited. On June 29, 2015, the Calhoun County Board of Supervisors posted a notice that didn’t give much notice at all. It said that the next day, June 30, the Supervisors would have a call with their drainage-district attorney about ‘Dakota Pipeline Resolution and Application for Construction.’ That’s it. That’s all it said on the subject.”
Dakota Access officials said they were not asked to attend the meeting.
The supervisors on Tuesday hired Des Moines law firm Carney and Appelby to represent them in the lawsuit. Attorney Jim Carney said he would be filing a notice of appearance with the court and a response prior to a hearing set for Aug 11 in Calhoun County.
The Graphic-Advocate will update this story as more information becomes available. 

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