Pipeline Trial Testimony Focuses On Survey Notifications

District Judge Roger Sailer is set to decide whether Navigator CO2 Ventures should get an injunction to carry out a Woodbury County land survey. (Photo by Jared Strong/Iowa Capital Dispatch)

The process Navigator CO2 Ventures used to notify landowners of their intentions to survey private properties was scrutinized Tuesday in the first of several expected court trials to determine whether the surveys should proceed.

The case concerns Woodbury County farmland of William and Vicki Hulse.

“It’s against my property rights that they can come on my property anytime they want against my will,” Vicki Hulse testified Tuesday.

She lives in Moville and has land north of that town that is in the proposed path of a carbon dioxide pipeline Navigator seeks to build. It’s one of three such projects that would transport captured carbon dioxide away from ethanol plants for out-of-state sequestration or other commercial uses.

The companies are allowed by Iowa law to survey land — without the fear of being charged with trespassing — to help determine the potential pipeline routes and depths. They are required to hold informational meetings and send 10-day notices of the surveys to landowners and their tenants before doing the work.

Navigator hired other companies to send notifications to the landowners and to survey the land, said Ann Welshans, director of right of way for the company, when she testified Tuesday. She said there are a total about 5,800 parcels of land in the project path, including nearly 4,000 in Iowa.

Navigator sued four sets of landowners in Iowa last year who have blocked its access to their properties. Welshans said she doesn’t know how many others have also resisted the survey work, but said they represent a small minority.

Brian Jorde, an Omaha, Nebraska attorney who is representing the Hulses and other landowners, sought Tuesday to minimize Welshans’ testimony because she often didn’t have first-hand knowledge of the notices that went to landowners.

Navigator did not call a witness from the company that it directed to send the notices.

“You may tell people what to do, but you have no knowledge if they did, correct?” Jorde asked.

“Correct,” Welshans said, adding that the company relied on the tracking numbers provided by the U.S. Postal Service for certified mailings as proof of service or refusal.

The cases hinge on whether Navigator complied with state pipeline survey law and whether that law is constitutional.

The law does not specifically address whether landowners need to accept the certified mailings to be notified, and Jorde argued that those who refuse the mailings couldn’t know what information they contained.

He further argued that state law requires the mailings to display the words “deliver to addressee only” on the outside of their envelopes. Welshans acknowledged that the envelope that went to the Hulses did not have those words.

Vicki Hulse testified that she did not remember rejecting certified notices from Navigator.

However, Daniel Rogers, who works for a company that was hired by Navigator to facilitate the survey work, testified Tuesday that Hulse told him she had rejected them.

Their conversation came after surveyors had completed part of their work but were told to leave the property.

Rogers said he tried to set a time with Hulse to finish the work but she refused. He said he showed her a sample of the survey notice letter that the company had attempted to mail to her.

The company did not send a separate mailing to William Hulse, who lives at the Iowa Veterans Home in Marshalltown.

Vicki Hulse testified that her husband has dementia and would be unlikely to understand the notice. Due to his condition, she has power of attorney to make decisions for him.

Because of that, notifying Vicki Hulse has the same effect of notifying William Hulse, Welshans said.

“As a power of attorney, we would send everything to Mrs. Hulse,” Welshans said.

The company was not initially aware that the Hulses have a tenant who farms part of their land. Such agreements are not typically part of the public record, and Navigator most often relies on landowners to reveal them.

The company learned of the tenant as part of the lawsuit against the Hulses and sent the notice in January. However, the tenant was not notified of the informational meeting, which happened in October 2021.

District Judge Roger Sailer gave the attorneys a total of about 10 days to submit any further written arguments for the case before he decides whether to issue the company an injunction that grants them access to the Hulses’ land. It’s unclear when that decision might come.

Sailer recently rejected Navigator’s request to decide the case without a trial but acknowledged “certain evidence in the record that tends to support Navigator’s contention.”

Jorde argued there are too many unanswered questions about the company’s survey process to determine that Navigator complied with state law in regard to the Hulses.

“We’re talking about what you can prove, and you can’t prove how, when, why or who,” Jorde said Tuesday.

by Jared Strong, Iowa Capital Dispatch March 7, 2023