Filed with the Iowa Utilities Board on August 22, 2016, HLP-2014-0001

STATE OF IOWA
DEPARTMENT OF COMMERCE
UTILITIES DIVISION
BEFORE THE IOWA UTILITIES BOARD

IN RE:

DOCKET NO. HLP-2014-0001

DAKOTA ACCESS, LLC

EXPEDITED RELIEF REQUESTED
INTERVENORS’ EMERGENCY
MOTION TO STAY ENFORCEMENT OF
THE IOWA UTILITIES BOARD’S
MARCH 10, 2016 FINAL DECISION AND
ORDER GRANTING DAKOTA ACCESS,
LLC, A HAZARDOUS PIPELINE
PERMIT, TO THE EXTENT THE ORDER
ALLOWS DAKOTA ACCESS, LLC TO
EXERCISE EMINENT DOMAIN OVER
INTERVENORS’ FARMS

COMES NOW INTERVENORS through their undersigned counsel moving the Board to
stay enforcement of it’s Final Decision and Order granting Dakota Access, LLC, a hazardous
pipeline construction permit, to the extent the order allows Dakota Access, LLC to exercise, or to
have exercised, eminent domain over intervenors’ farms, and SEEKING EXPEDITED RELIEF,
alleging as follows:
1.

On August 22, 2016 the District Court for Polk County issued an order (CVCV

051997; the “District Court Order”) in the intervenors’ petition for judicial review of the
Board’s March 10, 2016 Final Decision and Order (“Final Order”) granting Dakota Access, LLC
a hazardous liquid pipeline permit and granting Dakota Access, LLC the power of eminent
domain over intervenors’ farmlands as identified in the Final Order.
2.

The District Court’s Order denies the intervenors’ motion seeking a stay of

enforcement of the Board’s Final Order with respect to the intervenor’s farmland, and that of

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 Filed with the Iowa Utilities Board on August 22, 2016, HLP-2014-0001

certain identified members of intervenors Northwest Iowa Landowner’s Association (“NILA)
and Iowa Farmland Owners Association (“IFOA”).
3.

Intervenors Richard R. Lamb and his trust, Keith Puntenney, Laverne I. Johnson,

Marian Johnson by her agent Verdell Johnson and NILA were intervenors in the contested case
proceeding resulting in the Final Order.
4.

Intervenor Lamb’s farmland was identified in the Final Order on p. 128 (parcel:

H-BO-033 (IA-BO-136)).
5.

Intervenor Puntenney’s farmland was identified in the Final Order on p. 148

(parcel H-WE-004 (IA-WE-078)).
6.

Intervenor Laverne Johnson’s farmland was identified in the Final Order on pp.

126 - 127 (parcels: H-BO-047 (IA-BO-028) and H-BO-048 (IA-BO-033)).
7.

Intervenor Marian Johnson’s farmland was identified in the Final Order of p. 135

(parcels: H-CH-019 (IA-CH-025) and H-CH-020 (IA-CH-026)).
8.

Intervenor NILA is an unincorporated association that represented the interests of

several of its members in the contested case proceeding below. It now joins this motion on
behalf of its following members:
a. Hickenbottom Experimental Farms, Inc., whose farmland was identified in the Final
Order on p. 147 (parcel H-WA-016 (IA-WA-061.300)).
b. William R. and Anne C. Smith, whose farmland was identified in the Final Order on p.
134 (parcels H-CH-015 (IA-CH-080)).
c. Gary D. and Linda L. Hammen, whose farmland was identified on Attachment 1 to the
Final Order p. 4 (parcel H-CA-012 (IA-CA-062.001)).

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 Filed with the Iowa Utilities Board on August 22, 2016, HLP-2014-0001

d. Gary D. Hammen as Trustee of the Hammen Family Trust, whose farmland was
identified on Attachment 2 to the Final Order p. 2 (parcel H-CA-001 (IA-CA-060.000)).
e. Grandma’s Place, L.C. whose farmland was identified in the Final Order on pp. 141 - 42
(parcel H-MA-013 (IA-MA-196)).
f. AIM Acres, L.C., whose farmland was identified in the Final Order on pp. 141 - 42
(parcel H-MA-007 (IA-MA-198)).
g. Judith Anne Lamb Revocable Trust, whose farmland was identified on p. 128 of the Final
Order (parcel H-BO-032 (IA-BO-134)).
9.

Intervenor Iowa Farmland Owners Association (“IFOA”) is a corporation that

represented the interests of its members in the contested case proceeding resulting in the Final
Order. It now joins this motion on behalf of its following members:
a. Prendergast Enterprise, Inc, whose farmland was identified in the Final Order on pp. 133
- 34 (parcel: H-CA-041 (IA-CA-157.501)).
b. Arlene Bates and Leona O. Larson, whose farmland was identified in the Final Order on
pp. 146 - 47 (parcel H-ST-003 (IA-ST-070.500)).
c. Lowman Brothers, Inc., whose farmland was identified in the Final Order on pp. 145 - 46
(parcel H-ST-006 (IA-ST-026)).
d. Walnut Creek Limited Partnership, whose farmland was identified in the Final Order on
pp. 145 - 46 (parcels H-ST-002 (IA-ST-025) and H-ST-007 (IA-ST-027)).
10.

Intervenors seek relief immediately in this Court because time is of the essence:

Dakota Access has condemned almost all of intervenors’ farmlands in condemnation
proceedings subject to immediately commencing construction upon intervenors’ farmlands. The
construction will involve digging a trench approximately eight-feet across a seventy-five-feet

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 Filed with the Iowa Utilities Board on August 22, 2016, HLP-2014-0001

wide easement upon intervenors’ entire farmlands. Once that trench is dug, intervenors cannot
be returned to the status quo quiet use and enjoyment of their properties.
11.

If the Board does not soon grant this motion and enter a stay, then Dakota Access

will have trenched the intervenors’ farmlands and the intervenors may be without remedy other
than money damages. See Nichols v. City of Evansdale, 6B7 N.W.2d 562 (Iowa 2004). Because
intervenors are otherwise entitled to the same money damages under Chapter 6B, the Board’s
denial of this motion will deny the intervenors of their Due Process rights under the United
States Constitution and the Constitution of the State of Iowa. The District Court will be required
to exercise its review under Iowa Code Chapter 17A, but without a power to affect a different
result.
12.

Intervenors are likely to prevail when the District Court finally decides their

claims because:


The Board’s determination that the Bakken Pipeline would make Iowans safer is
arbitrary, capricious, unsupported by substantial evidence, and wholly irrational;



The Board’s determination that the construction and operation of the Bakken Pipeline
would confer significant economic benefits on Iowa and Iowans is statutorily barred and
therefore arbitrary and caprcious;



The exercise of eminent domain authority granted to Dakota Access by operation of
Iowa Code §§ 479B.9 and 479B.16 is both facially unconstitutional and unconstitutional
as applied to intervenors;



The exercise of eminent domain authority granted to Dakota Access by operation of
Iowa Code §§ 479B.9 and 479B.16 is barred by the later-enacted Iowa Code §§ 6A.21
and 6A.24.

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 Filed with the Iowa Utilities Board on August 22, 2016, HLP-2014-0001

With this motion, intervenors are submitting a brief advancing the above arguments. The brief
may contain additional arguments than those summarized above.
13.

Intervenors will suffer irreparable harm if a stay is not granted because

intervenors have a due process right to have the Board, and if necessary the District Court,
consider their constitutional claims that Dakota Access’s proposed exercise of eminent domain
over their farmland is unconstitutional. If Dakota Access is allowed to proceed with condemning
intervenors’ farmlands and constructing the Dakota Access Pipeline (“DAPL”) across
intervenors’ farmlands, intervenors’ constitutional right to be heard by the Board and the District
Court on their constitutional challenges will be rendered trivial and moot, as irreparable harm
will be done to intervenors’ farmlands and neither the Board nor the Court will have an adequate
way to restore intervenors to the status quo, where construction of the DAPL on their farmlands
never took place. With this motion, intervenors are submitting a brief advancing the above
arguments. The brief may contain additional arguments than those summarized above.
14.

The granting of a stay to intervenors will not cause substantial harm to other

parties because any construction delays a stay causes to Dakota Access will not be a proximate
cause of the Bakken Pipeline not operating, and because Dakota Access stands in the shoes of a
state actor unmotivated by the profit motive. With this motion, intervenors are submitting a brief
advancing the above arguments.

The brief may contain additional arguments than those

summarized above.
15.

The public interest relied on by the Board is not sufficient to justify the Board’s

actions because the findings of public interest were arbitrary, capricious, unsupported by
substantial evidence, and wholly irrational, and the public interest is always in favor of enforcing
citizens’ constitutional rights under the Federal and Iowa Constitutions. With this motion,

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 Filed with the Iowa Utilities Board on August 22, 2016, HLP-2014-0001

intervenors are submitting a brief advancing the above arguments. The brief may contain
additional arguments than those summarized above.
WHEREFORE, Intervenors move the Board for an order staying the enforcement of the
Board’s March 10, 2016 Final Decision and Order granting Dakota Access, LLC a hazardous
liquid pipelines permit to the extent that Order grants Dakota Access, LLC the power of eminent
domain over intervenors’ farmlands as identified in that Order.
Dated this 22nd day of August, 2016.
Respectfully Submitted,
/s/ William E. Hanigan
William E. Hanigan, AT0003284
DAVIS, BROWN, KOEHN, SHORS &
ROBERTS, P.C.
215 10th Street, Suite 1300
Des Moines, Iowa 50309-3993
Telephone: (515) 288-2500
Facsimile: (515) 243-0654
Email: billhanigan@davisbrownlaw.com
ATTORNEY FOR RICHARD R. LAMB, trustee of
the RICHARD R. LAMB REVOCABLE TRUST,
MARIAN D. JOHNSON by her agent VERDELL
JOHNSON, KEITH D. PUNTENNEY, LAVERNE
I. JOHNSON, NORTHWEST IOWA
LANDOWNERS ASSOCIATION and the IOWA
FARMLAND OWNERS ASSOCIATION, INC.
CERTIFICATE OF SERVICE
I hereby certify that the foregoing document was electronically filed with the Iowa
Utilities Board using the EFS system which will send notification of such filing (electronically)
to the appropriate persons.
/s/ William E. Hanigan

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 Filed with the Iowa Utilities Board on August 24, 2016, HLP-2014-0001

STATE OF IOWA
DEPARTMENT OF COMMERCE
IOWA UTILITIES BOARD
IN RE:
DAKOTA ACCESS, LLC

)
)
)

Docket No. HLP-2014-0001

DAKOTA ACCESS’ RESISTANCE TO MOTION TO STAY ENFORCEMENT OF
BOARD’S MARCH 10, 2016 ORDER AS TO
CONSTRUCTION ON CERTAIN PARCELS
INTRODUCTION ...............................................................................................................1
FACTUAL AND PROCEDURAL BACKGROUND.........................................................3
ARGUMENT .......................................................................................................................7
I.

PETITIONERS’ CLAIMS ARE MOOT BECAUSE DAKOTA ACCESS IS
STATUTORILY ENTITLED TO POSSESSION OF THEIR PROPERTIES
AND HAS BEGUN CONSTRUCTION ON THEIR PROPERTIES. ...............….8

II.

PETITIONERS CANNOT MEET ANY OF THE FOUR ELEMENTS FOR
A STAY. ................................................................................................................11
A.

The Petitioners Cannot Show Likelihood of Success on the Merits as the
Board’s Thorough 174-Page Final Order is Legally Sound and Well
Supported by the Record...............................................................................12
1.

Iowa Code Section 6A.21(2) Plainly and Unambiguously Excepts
Dakota Access from the Limitations on the Exercise of Eminent
Domain in Code Section 6A.21(1).. ..................................................13

2.

The Board is Free to Consider Economic Benefits Among Other
Factors in Determining whether the Project Meets the Public
Convenience and Necessity; Petitioners’ Argument Misrepresents
Iowa Code § 6A.22 and Fails to Grasp the Role of § 479B.16. .........23
a.

The Board Considered Economic Benefits in Determining
whether to Grant a Pipeline Permit, Not in Determining
whether to Authorize Eminent Domain Authority; The
Legislature has Already Dictated to the Board when it Must
Authorize Eminent Domain Authority. .....................................24

b.

The Limitations on Consideration of Economic Factors do not
Apply to Common Carriers Like Dakota Access .......................26

 Filed with the Iowa Utilities Board on August 24, 2016, HLP-2014-0001

3.

The Substantial Evidence and Petitioners’ Own Arguments Regarding
Safety Demonstrate that Petitioners Have No Likelihood of Success
Under the Iowa Administrative Procedures Act.................................28

4.

Petitioners Constitutional Arguments Fail as a Matter of Law ..........35
a.

Public Use is Determined in the First Instance by the
Legislature, and the Iowa Legislature Clearly Found Pipelines
like DAPL to be a Public Use. ...................................................35

b.

The Board Should Reject Petitioners’ Invitation to Follow an
Inapplicable Illinois Case and a Dissenting Opinion from the
U.S. Supreme Court; The Iowa Supreme Court and U.S.
Supreme Court have Already Addressed the Arguments
Petitioners Advance and Should be Followed by this Board. ...40
i.

Petitioners’ Reliance on SWIDA is Misplaced
because SWIDA is Distinguishable and Contrary to
Iowa Supreme Court Precedent ................................40

ii.

The Majority Holding of Kelo is Applicable to this
Case, and Justice Kennedy’s Concurrence is Part of
that Majority Holding. ..............................................44

iii.

Petitioners Suggestion that this Board Should
Disregard the Majority Holding of Kelo but Follow
its Dissent under the Iowa Constitution is Without
Merit and is Contrary to Iowa Supreme Court
Precedent. .................................................................46

B.

Petitioners’ Motion Should be Denied because Petitioners cannot
Demonstrate Irreparable Harm .....................................................................50

C.

The Issuance of a Stay Causes Extreme Harm to Dakota Access and Other
Parties to the Proceeding. ...............................................................56

D.

Petitioners’ Motion Should be Denied because the Public Interest Supports
Denial of the Stay...........................................................................60

E.

Although the Board Should not Reach the Issue, if a Stay is Issued
Petitioners Should be Required to Post a Bond. ...........................61

CONCLUSION ..................................................................................................................62
ii

 Filed with the Iowa Utilities Board on August 24, 2016, HLP-2014-0001

INTRODUCTION
Having waited more than five months since the Board’s Final Order was issued, after the
entire condemnation process under Iowa Code Chapter 6B has concluded on their parcels, and
after being reminded by a third court for a fourth time that they cannot collaterally attack the
Final Order and must follow the provisions of the IAPA in seeking a stay of agency action,
Petitioners come before the Board under the guise of an “emergency” that is wholly of their own
making. Petitioners’ intentional delay not only undercuts their own argument that they are in
danger of irreparable harm (which they’ve apparently been ignoring for five months) 1, but that
delay has also aggravated the harm to Dakota Access that will occur if a stay is entered. As the
Iowa District Court for Polk County observed in denying Petitioners’ identical motion to stay
earlier this week,
The only factor that has changed since the board's March 10, 2016, decision is the factor
regarding the impact a stay may have on Dakota... the only reason this factor has changed
is due to petitioners' failure to file a motion for stay before Dakota started any work. If it
had filed a motion in March or April or May before any work was done, Dakota's interest
would be the same as it was during the course of the hearing process before the board.
Lamb, et al. v. IUB, et al., Case No. CVCV051997, Ruling on Petitioners’ Motion for Stay at 6 –
7 (Polk County, Aug. 22, 2016) (“Polk County Order”) 2
The Petitioners’ intentional delay not only exacerbates the harm to Dakota Access, it has
rendered their claims moot. Beyond the procedural infirmities of the Motion, Petitioners also

1

See, e.g., McLeodUSA Telecomm. Services, Inc. v. Qwest Corp., 361 F. Supp. 2d 912, 920 (N.D. Iowa 2005) (“a
movant’s delay in seeking relief or objecting to the actions the movant seeks to enjoin “‘belies any claim of
irreparable injury pending trial.’”) (quoting Hubbard Feeds v. Animal Feed Supplement, 182 F.3d 598, 603 (8th Cir.
1999)); Circle R, Inc. v. Smithco Mfg., Inc., 919 F. Supp. 1272, 1302 (N.D. Iowa 1996) (“delay in seeking a remedy
is an important factor in the ‘irreparable harm’ inquiry, and argues against the need for a preliminary
injunction.”);Quaker Oats Co. v. QO Chemmicals, Inc., No. C 93-262, 1995 WL 17217909, at *9 (N.D. Iowa June
15, 1995) (“the court finds that QO's claim of irreparable harm is contradicted by its failure to seek preliminary
injunctive relief since the inception of this action until three weeks before the current Supply Agreement expired”)
(and collecting cases).
2

Attached as Attachment A.

1

 Filed with the Iowa Utilities Board on August 24, 2016, HLP-2014-0001

cannot meet a single element of the requisite four-part test. As the Iowa Supreme Court has
observed of administrative matters, “the majority of ‘disputes are won or lost at the agency
level.’” S. E. Iowa Co-op. Elec. Ass'n v. Iowa Utilities Bd., 633 N.W.2d 814, 818 (Iowa 2001)
(quoting N.W. Bell Tel. Co. v. Iowa Utilities Bd., 477 N.W.2d 678, 682 (Iowa 1991)). As a
result, Petitioners have a particularly high burden to show a likelihood of success on the merits.
In this case, the well-reasoned 174-page Final Order and the plain language of Iowa Code
Chapter 479B and Sections 6A.21 and 6A.22 ensure that there is no chance of success on the
merits. The Board had an opportunity to review its own decision on reconsideration, on
compliance with conditions and the issuance of the actual permit, and again as parties argued
over permission to begin construction. The Board has left no stone unturned.
Similarly, Petitioners cannot show irreparable harm. Neither of the two harms they cite
are cognizable or irreparable. Looking at the balance of harms, it is clear that the magnitude of
harm to Dakota Access, its suppliers, workers in Iowa, its customers, and non-Petitioner
landowners is much greater than to these few individual opponents of the project. It is
particularly relevant on this point that Petitioners’ undue delay has aggravated the harms, leaving
the Petitioners seeking a stay with unclean hands. Finally, the public interest determination
where a pipeline is involved is a decision the Iowa legislature has committed to the Board, which
found public interest benefits from the pipeline justified granting a permit. Delay at this point
merely keeps the public from obtaining those benefits – economic benefits, safety benefits,
energy benefits, and benefits to agricultural and manufacturing shipping among others.
The pending motion is related to eminent domain, but the entire point of the long history
of eminent domain for large infrastructure projects is that the common good for the general

2

 Filed with the Iowa Utilities Board on August 24, 2016, HLP-2014-0001

public should not be vetoed by the objections of a vocal but very small minority. In this case,
approximately 95% of the land rights needed have been obtained by voluntary agreement.
Ultimately, the Board should see the Motion for Stay for what it is: an exceedingly
untimely motion to reconsider. Given an opportunity to make a unique and individual case for
these particular 15 parcels that would show why they are differently situated from the broader
decisions the Board has previously made in this case, Petitioners did no such thing. They merely
argue that the Board’s painstakingly detailed 174-page Final Order was incorrect. Other parties
made that claim as the Board’s rules and Iowa statute requires: within 20 days. Petitioners
provide no argument or evidence that these 15 parcels would suffer harms any different from any
of the other 1,280 parcels through which the pipeline will cross. A Motion to Stay cannot be
allowed to function merely as a backdoor for a belated Motion to Reconsider – doing so renders
the deadline for reconsideration meaningless.
As Dakota Access explains more fully below, there is no basis for granting the Motion to
Stay, and it must be denied.
FACTUAL AND PROCEDURAL BACKGROUND
As the Board is aware, the Dakota Access Pipeline project (“DAPL” or “the Project”) is a
1,172 mile interstate common carrier crude oil pipeline. Announced in July 2014 and scheduled
for operation in late 2016, it represents a nearly $4 billion investment in critical energy
infrastructure – vastly enhanced capacity to more safely and efficiently ship American crude oil
from North Dakota, across South Dakota and Iowa, to a transport hub in Illinois. There it can be
stored or moved to other lines for transport to refineries in the Great Lakes region or to Gulf
Coast states. The construction and operation of the Project will generate billions of dollars in
construction-period economic activity and thousands of construction-period jobs in Iowa, as well

3

 Filed with the Iowa Utilities Board on August 24, 2016, HLP-2014-0001

as long-term tax revenues and jobs once the pipeline is operational. The Project is fully
subscribed: shippers have executed long-term contracts for the full initial contract capacity of the
line and are counting on the scheduled in-service date.
The procedural posture of this case is important to understanding why a stay should not
be granted. On March 10, 2016, the Board issued its Final Order granting the Petition for a
permit to Dakota Access to build the Dakota Access Pipeline under Iowa Code chapter 479B –
including through the use of eminent domain. 3 The Board’s 174-page Final Order was the
conclusion of a process that began in October 2014 with the Board’s docket being opened and
materials being sent to landowners in advance of required county informational meetings. That
process ultimately included numerous reviews of the project by the Board’s expert technical
staff, the filing of thousands of comments in support of and opposed to the project, filing of
thousands of pages of pre-filed testimony and exhibits, and a hearing that began November 12,
2015 and ran into early December, generating an approximately 3,500 page transcript.
Based on that massive record and extensive post-hearing briefing, the Board found that
the Dakota Access pipeline would generate approximately $800 million in economic benefits
during construction 4, would create new jobs and tax revenues, would enhance the nation’s
energy security, would improve public safety by minimizing the amount of North Dakota oil

3

In re Dakota Access LLC, Docket No. HLP-2014-0001 “Final Decision and Order” (IUB, March 10, 2016) (“Final
Order”) (This document is attached to Petitioners’ Petition as Exhibit 2). Iowa was the last state to approve the
application for the project. North Dakota, South Dakota and Illinois all addressed similar issues of public use,
public interest, public benefit, or public purpose and all also found the Project met those tests for approval. See
Findings of Fact, Conclusions of Law and Order, Case No. PU-14-842 (N. Dak. Pub. Serv. Commn. Jan. 20, 2016)
(available at http://www.psc.nd.gov/database/documents/14-0842/134-040.pdf); Final Decision and Order, Case No.
HP14-002 (S. Dak. Pub. Utils. Commn. Dec. 14, 2015) (available at
https://puc.sd.gov/commission/orders/hydrocarbonpipeline/2015/hp14-002decision.pdf); December 16, 2015 Order,
Case No. 14-0754 (Ill. Commerce Commn. Dec. 16, 2015) (available at
https://www.icc.illinois.gov/docket/files.aspx?no=14-0754&docId=237581).
4

Note that this was a figure conceded by the pipeline opponents. See Final Order at 46.

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 Filed with the Iowa Utilities Board on August 24, 2016, HLP-2014-0001

from being transported through Iowa (and elsewhere) on trains and trucks – and as a result it
would “promote the public convenience and necessity.”
The process before the Board has continued since the March 10 Final Order. Following
that Order, compliance filings were made by Dakota Access, responses were filed by numerous
parties, the Board required Dakota Access to make revisions to certain items and re-submit them,
and on April 8, 2016, the Board issued its Order Accepting Compliance Filings and Issuing
Permit. In addition, several parties filed timely Motions for Rehearing and/or Reconsideration
following the Board’s Final Order. None of the Petitioners asking for relief in the present
Motion chose to timely take that option to raise the issues they complain about today. Moreover,
on June 7, 2016, following a Motion by Dakota Access and responses from several parties, the
Board ordered that construction could begin – two and a half months before the present Motion
to Stay was filed. All necessary permits and approvals from other agencies with jurisdiction over
the Project, including the utilities commissions in North Dakota, South Dakota and Illinois, the
Iowa Department of Natural Resources and the United States Army Corps of Engineers, have
been received. While Petitioners try and argue that “no reasonable agency” would reach the
decision the Board made on the record before it, the fact is that every other relevant agency has
in fact reached the same decision. Petitioners’ argument, then, must be that everyone is irrational
except for a small handful of Petitioners who happen to have been zealous pipeline opponents
from the beginning of the Project.
In its Final Order, the Board, as required by the statutory mandate in Iowa Code §
479B.16, granted Dakota Access the right to use eminent domain to obtain the small percentage
of remaining properties needed to complete the pipeline. The overwhelming majority (over
95%) of the individual landowners along the route entered into voluntary easement agreements.

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 Filed with the Iowa Utilities Board on August 24, 2016, HLP-2014-0001

Pursuant to Iowa Code Chapter 6B, Dakota Access filed Condemnation Applications in each
county in which condemnation was sought, and the Chief Judges of the Second, Third, Fifth, and
Eighth Judicial Districts approved Dakota Access’s Condemnation Applications and issued
Orders Appointing Compensation Commissioners in each county. Thereafter, Dakota Access
properly served its Notices of Assessment scheduling compensation commission hearings
pursuant to Iowa Code Section 6B.8, and compensation commission hearings have been taking
place since June 11, 2016. Dakota Access has already acquired easements over all of
Petitioners’ properties, and to date has acquired easements over all but four 5 of the
approximately 1,295 parcels that the project traverses in Iowa. Pursuant to Iowa Code § 6B.25 6,
following each compensation commission hearing, Dakota Access has deposited the amount of
the award with the sheriff and is therefore entitled to immediate possession of the property to
begin construction. Among the parcels at issue in the Motion to Stay, condemnation was
completed on some as far back as June 27, 2016 – eight weeks before the present Motion was
filed.
In Iowa, construction began in June of 2016. Dakota Access has surveyed the entire 347mile route and staked nearly all of the route. Construction crews have cleared approximately
75% of the route in Iowa, and approximately 50% of the route in Iowa has been graded
(including separation of topsoil). Several counties are fully trenched and several others are over
50% trenched. Roughly 22% of the pipe has been physically welded and lowered into the ditch
where restoration activities are occurring. Comparatively, construction is approximately 93%
5

The remaining four parcels will be acquired through a compensation commission hearing on August 24, 2016, at
which time 100% of the land in Iowa for the Project will be acquired.
6

Iowa Code § 6B.25 provides, in relevant part, “Upon the filing of the commissioner’s report with the sheriff, the
applicant may deposit with the sheriff the amount assessed in favor of a claimant, and the applicant, except as
otherwise provided, may take possession of the land condemned and proceed with the improvement.” Dakota
Access has condemned and deposited the necessary funds with the sheriff on all of the individual Petitioners’
parcels.

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 Filed with the Iowa Utilities Board on August 24, 2016, HLP-2014-0001

complete in South Dakota, 63% complete in North Dakota and roughly 62% complete in Illinois.
The project engineers and managers have developed and are executing an efficient plan and have
positioned work crews and hundreds of pieces of heavy equipment and thousands of pipe
sections throughout the state based on a plan and a parcel-by-parcel “march list.” Changing that
plan is no small endeavor: there are literally thousands of “moving pieces” including personnel
and equipment, and order is important based on the types of work to be done and coordinated.
Changes or “move arounds” as Petitioners seek to require are costly and create project-wide
delays. No matter how complete the Project may be in the other states, or in Iowa, the objectors
are counting on the fact that a pipeline cannot operate with 15 pieces missing. The Board should
not give this handful of objectors – in addition to all of the process they have already been given
-- a veto over the Board’s Final Order and over the benefits the Dakota Access Pipeline
provides.
ARGUMENT
Board Rule 7.28(2) provides, “In determining whether to grant a stay, the board shall
consider the factors listed in Iowa Code section 17A.19(5)(c).” Iowa Admin. Code 199 – 7.28(2)
Iowa Code § 17A.19(5)(c) in turn provides,
If the agency refuses to grant an application for stay or other temporary remedies, or
application to the agency for a stay or other temporary remedies is an inadequate remedy,
the court may grant relief but only after a consideration and balancing of all of the
following factors:
(1) The extent to which the applicant is likely to prevail when the court finally disposes
of the matter.
(2) The extent to which the applicant will suffer irreparable injury if relief is not granted.
(3) The extent to which the grant of relief to the applicant will substantially harm other
parties to the proceedings.
(4) The extent to which the public interest relied on by the agency is sufficient to justify
the agency's action in the circumstances.

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 Filed with the Iowa Utilities Board on August 24, 2016, HLP-2014-0001

(Emphasis added.)
“[T]he applicant for a stay during judicial review has the burden to establish the
prerequisites for a stay…” Grinnell College v. Osborn, 751 N.W.2d 396, 403 (Iowa 2008). For
the reasons set forth below, the Petitioners fail to establish any of the elements for a stay.
I.

PETITIONERS’ CLAIMS ARE MOOT BECAUSE DAKOTA ACCESS IS
STATUTORILY ENTITLED TO POSSESSION OF THEIR PROPERTIES AND
HAS BEGUN CONSTRUCTION ON THEIR PROPERTIES.
One consequence of Petitioners’ inexcusable delay in filing their Motion for Stay is that

Petitioners’ request for a stay is moot, because Dakota Access already has a statutory, present
possessory right to their properties. As set forth above, Dakota Access has completed the
condemnation process on all of Petitioners’ properties. Pursuant to Iowa Code § 6B.25, “Upon
the filing of the commissioners' report with the sheriff, the applicant may deposit with the sheriff
the amount assessed in favor of a claimant, and the applicant, except as otherwise provided, may
take possession of the land condemned and proceed with the improvement.”
With respect to all Petitioners, Dakota Access has completed the compensation
commission hearings, the commissioners have filed their reports with the sheriffs, and Dakota
Access has deposited with the Sheriff the amount assessed in favor of the claimant.
Accordingly, Dakota Access has a present possessory right to the property, provided by statute.
Not only does Dakota Access have that right, it has actually begun construction activities on
most of the properties, and will begin activities on the remaining parcels this month. At present,
approximately half of the Petitioners’ parcels have already been staked and cleared of trees and
brush in the easement area, or are undergoing clearing activities at this time. As a result,
Petitioners are not seeking a stay for the customary purpose of maintaining the status quo; the
status quo is that Dakota Access has a possessory land right – an easement that it can use at any

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time for purposes of construction and operation of its pipeline. Petitioners’ motion is properly
understood as one to upset the status quo, to divest Dakota Access of rights it has already been
granted by lawful process and presently can use.
While Petitioners’ rely on Lewis Investments, Inc. v. City of Iowa City, 703 N.W.2d 180,
184 (Iowa 2005), the facts of this case are significantly different. In Lewis, the City had
condemned a fee interest in a single residential property as a public nuisance, with the intention
of conveying the property to a third party. Because the City had not yet transferred the property
to a third party, the Court held that the landowner’s appeal was not moot, explaining, “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.” Id. at 184.
The Lewis Court contrasted the facts before it with the facts of Welton v. Iowa State
Highway Commission, 227 N.W. 332 (1929) – a case where the road for which condemnation
was sought was already constructed at the time of the appeal. In that case, the Iowa Supreme
Court held the appeal moot. The facts of this case place it somewhere between Lewis and
Welton. However, the critical language from Lewis, and Petitioners’ own arguments regarding
irreparable harm, demonstrate that this case is closer to Welton, and the Petitioners’ request for
Stay is therefore moot.
In Lewis, the Court held that the appeal was not moot because, “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.” Id. at 184 (emphasis added). In the present case, Dakota Access has
taken possession of the property, and has begun construction activities. While surveying or

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staking the right of way may not be significant alterations, the cutting-down of trees and brush,
mowing of crops, and clearing of the right of way represent substantial alterations to the land for
purposes of installing the pipeline. As such, substantial improvements have been made to the
property, unlike the facts of Lewis. Here, the parties cannot be restored to their prior position.
Petitioners’ own arguments support this conclusion. In support of their Motion,
Petitioners’ claim that the harm they will suffer if construction begins on their properties will be
“irreparable.” Petitioners cannot argue that construction activities will cause “irreparable” harm
to their land, while simultaneously arguing that it does not result in substantial alterations “made
to the property that would place it beyond the power of this court to restore the parties to their
former positions.” Id.
Lewis is also distinguishable on its specific facts. In Lewis, the property was a standalone – a stay on disposition of that property would have no impact beyond that property.
Additionally, the planned sale to a third-party was the intent of the condemnation. In the present
case, DAPL is an interconnected project. Because the Project is substantially underway and the
pieces are interrelated, the Board should look at the Project, rather than the single property as in
Lewis, to determine whether there has been substantial activity relative to the intended purpose.
That said, the facts here also indicate that for most of the Petitioners’ parcels, there has been
activity relevant to the purpose – pipeline construction. This again is different from Lewis where
the objective was a sale that had not yet occurred.
Accordingly, because Dakota Access has taken possession and begun construction
activities on Petitioners’ properties, all Petitioners’ Motion for Stay is moot. The landowners
where construction activities have begun cannot be restored to their prior position. Dakota
Access, which has relied on the compensation commission awards, lack of a stay request for

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more than five months, and denials of stay motions in six prior cases in planning and engaging in
construction – including on Petitioners’ parcels – also cannot be restored to its prior position
because the clock cannot be turned back to before Petitioners’ improper delay to allow different
planning without substantial harm to Dakota Access. The Motion for Stay should be denied for
this additional reason.
II.

PETITIONERS CANNOT MEET ANY OF THE FOUR ELEMENTS FOR A
STAY.
Even if the Board overlooks the procedural inadequacies of Petitioners’ Motion,

Petitioners wholly fail to meet their burden to establish the four elements necessary to obtain a
stay of agency action. Petitioners cannot meet the high burden to show a likelihood of success
on their claims. Petitioners’ constitutional and statutory arguments are contrary to the plain and
unambiguous language of the applicable statutes and existing Iowa and U.S. Supreme Court
precedent, and their attempt to analyze the Board’s Final Order under their own algebraic risk
analysis formula misses the point of the substantial evidence standard of review. In addition,
Petitioners fail to demonstrate harm that is irreparable, cannot refute that a stay poses the risk of
millions of dollars in harm to Dakota Access and additional harms to other interested parties, and
cannot even dispute that a stay will delay the numerous public interest benefits which the Board
found in issuing its Final Order. The Board has already reconsidered its Final Order, and
rejected the arguments against it. But the support for that Order has only grown: since the Final
Order, every effort to stay that Order has been denied (and all but the Polk County case
dismissed), and the harms to Dakota Access from a stay have only grown. Accordingly, as set
forth below, Petitioners’ Motion must be denied.

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A.

The Petitioners Cannot Show Likelihood of Success on the Merits as the
Board’s Thorough 174-Page Final Order is Legally Sound and Well
Supported by the Record.

Petitioners fail to meet their high burden to demonstrate a likelihood of success on the
merits, particularly in this case where Petitioners are required to show they are likely to prevail
in overturning agency action – an already high standard. The Iowa Supreme Court has
explained,
We afford considerable deference to the agency's expertise, especially when the decision
involves the highly technical area of public utility regulation. Equal Access Corp. v.
Utils. Bd., 510 N.W.2d 147, 151-52 (Iowa 1993); Northwestern Bell Tel. Co., 477
N.W.2d at 682. Accordingly, we typically defer to the agency's informed decision as long
as it falls within a “zone of reasonableness.” Equal Access Corp., 510 N.W.2d at 151-52.
Consequently, the majority of “disputes are won or lost at the agency level.”
Northwestern Bell Tel. Co., 477 N.W.2d at 682 (citation omitted).
S. E. Iowa Co-op. Elec. Ass'n, 633 N.W.2d at 818.
On review, the Board’s conclusions in the Final Order should be affirmed if they are
“supported by substantial evidence, considering the record in its entirety.” Id. With respect to
the substantial evidence standard, the Iowa Supreme Court has held,
Evidence is substantial if a reasonable person would consider it sufficient to support the
agency's conclusions. Second Injury Fund of Iowa, 539 N.W.2d at 180; Northwestern
Bell Tel. Co., 477 N.W.2d at 682. Thus, even if we find the record could support a
different conclusion, we must affirm the agency's decision if it is supported by substantial
evidence. Northwestern Bell Tel. Co., 477 N.W.2d at 682; Eaves v. Bd. of Med. Exam'rs,
467 N.W.2d 234, 237 (Iowa 1991).
Id. Furthermore, with regard to the constitutional claims, the standard is also high for success,
because statutes benefit from a presumption of constitutionality –
Because statutes are cloaked with a strong presumption of constitutionality, a party
challenging a statute carries a heavy burden of rebutting this presumption. The challenger
must show beyond a reasonable doubt that a statute violates the constitution.
Additionally, such party must negate every reasonable basis upon which the statute could
be upheld as constitutional.

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Bowers v. Polk County Bd. of Supervisors, 638 N.W.2d 682, 688 (Iowa 2002) (citations omitted).
In addition, as the Board noted in its Final Order, a judicial body is required to avoid
reaching constitutional issues if a statutory construction will resolve the case. See Final Order at
117 (citing Hawkeye Land Co. v. IUB, 847 N.W.2d 199, 210 (Iowa 2014)); see also Hawkeye
Land Co. v. Franklin County Wind LLC, 834 N.W.2d 873 (Table), text at 2013 WL 2371355, *4
(Iowa App. May 30, 2013) (noting, “we attempt to avoid unnecessary constitutional questions.”);
State v. Quintero, 480 N.W.2d 50, 51 (Iowa 1992) (“[W]e have consistently refrained from
answering constitutional questions when the issue can be otherwise resolved. This has long been
our rule.”).
As is explained below, this case can be resolved entirely on statutory construction, and it
is highly unlikely that Petitioners can prevail on that statutory construction. In short, the Board’s
thorough process and extensive order show a decision that is far from arbitrary – with regard to
the eminent domain rights at issue in the pending motion, the Board’s decision was compelled by
statute – and is strongly supported by substantial evidence on the record. As a result, this factor
compels denial of the Motion for Stay.
1.

Iowa Code Section 6A.21(2) Plainly and Unambiguously Excepts
Dakota Access from the Limitations on the Exercise of Eminent
Domain in Code Section 6A.21(1).

Petitioners attempt to argue that the limitations on the exercise of eminent domain over
agricultural land in Iowa Code § 6A.21 somehow applies to Dakota Access, asking the Board to
ignore the express language that appears in the statutory exception applicable to Dakota Access,
and to add language to that statutory exception that does not appear anywhere within it. The
Board should decline Petitioners’ invitation, as the Board and Iowa District Courts in Cherokee
and Calhoun County have done before.

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Iowa Code § 6A.22(1) provides the general rule that an “acquiring agency” may
“condemn any private property through eminent domain” if condemnation will be used “for a
public purpose, public use, or public improvement.” Iowa Code § 6A.21(1) then provides an
additional limitation on the use of eminent domain with regard to agricultural land, and states,
“‘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.” Iowa Code § 6A.21(1)(c). However, the very next
subsection of Code § 6A.21 provides an exception to 6A.21(1)’s limitation. Iowa Code
§ 6A.21(2) provides:
The limitation on the definition of public use, public purpose, or public improvement
does not apply to the establishment, relocation, or improvement of a road pursuant to
chapter 306, or to the establishment of a railway under the supervision of the department
of transportation as provided in section 327C.2, or to an airport as defined in section
328.1, or to land acquired in order to replace or mitigate land used in a road project when
federal law requires replacement or mitigation. This limitation also does not apply to
utilities, persons, companies, or corporations under the jurisdiction of the Iowa utilities
board in the department of commerce or to any other utility conferred the right by
statute to condemn private property or to otherwise exercise the power of eminent
domain.
Iowa Code § 6A.21(2) (emphasis added).
There can be no serious question that Dakota Access is “under the jurisdiction of the
Iowa utilities board.” The only way to construct and operate a hazardous liquids pipeline in
Iowa is by way of making application to the Board for issuance of a permit. See Iowa Code
§ 479B.3 (prohibiting the construction, maintenance, or operation of a pipeline except in
accordance with Chapter 479B). The rules, both technical and substantive, for such an
application are found in Code chapter 479B (providing the IUB authority over the permitting of
the pipeline), and in administrative rules promulgated by the IUB under the authority granted by
Code chapter 479B. See, e.g., 199 Iowa Admin. Code chapter 9 (“Restoration of Agricultural

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Lands During and After Pipeline Construction”) and 199 Iowa Admin. Code ch. 13 (“Hazardous
Liquid Pipelines and Underground Storage”).
The Board has authority to impose conditions on the route, and it did in this case impose
numerous and expansive conditions upon the granting of Dakota Access’ application including,
among others, construction requirements, financial assurance requirements, land restoration
requirements, requirements to address cultural and environmental resources, and modifications
of the specific routing of the pipeline through Iowa. See generally Iowa Code chapter 479B.9
(authorizing the IUB to grant a permit “in whole or in part” and to impose “terms, conditions,
and restrictions” on the route). The IUB retains jurisdiction for the life of the pipeline to entertain
complaints and, if applicable, impose civil penalties on Dakota Access for any violation of a
condition of the IUB’s rules or orders governing the permitting of the pipeline. See Iowa Code
§ 479B.21. The IUB’s Chapter 9 land restoration rules continue to govern even after a permit is
granted to govern construction, restoration, and future damages, and the Board retains
jurisdiction over (and has a specific procedure for) entertaining complaints for any alleged
violation of those rules. See 199 Iowa Admin. Code § 9.7. 7
Similarly, any sale or transfer of the permit – no matter how far into the future – remains
subject to Board jurisdiction, and the Board maintains jurisdiction to grant extensions or
renewals of the pipeline permit, which is for a limited term. See Iowa Code § 479B.14. While
the Board may share jurisdiction over certain aspects of the pipeline with other agencies (for
example, the federal Pipeline and Hazardous Material Safety Administration for certain safetyrelated requirements or the Federal Energy Regulatory Commission for common carrier shipping
tariffs), the construction and operation of the pipeline remain subject to the Board’s authority.
7

The Board continues to assert its jurisdiction, issuing rulings since the permit was issued on the scope and
requirements on Dakota Access’ pre-construction activities, and opening complaint dockets. See, e.g., Benner v.
Dakota Access, IUB Docket FCU-2016-0009.

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This is particularly true as to those areas that touch on the issue of eminent domain over
agricultural land under Chapter 6A:
•

The IUB decides whether and to what extent to confer eminent domain authority on
Dakota Access (Iowa Code § 479B.16);

•

The IUB has jurisdiction over when easement negotiations occur and what
information must be available to landowners as a condition precedent to such
negotiations (Iowa Code § 479B.4, 199 Ia. Admin. Code § 13.3);

•

The IUB reviews detailed information on each eminent domain parcel and the rights
requested in that process (199 Ia. Admin. Code § 13.2(1)(h), Final Order at 122-151);
and

•

The IUB prescribes practices to mitigate agricultural land impacts, land restoration,
and crop damages (Iowa Code §§ 479B.20, .27, 199 Ia. Admin. Code ch. 9, Final
Order at 74-90).

Perhaps more to the point, Petitioners’ judicial review case arises from an approximate
18-month contested case proceeding, culminating in an approximate 3 ½ week hearing before
the Board. As the Board found in the Final Order,
The argument about whether Dakota Access is a utility, whether private or
public, ignores the fact that the exception in Iowa Code § 6A.21(2) includes
“companies[] or corporations” under the jurisdiction of the Board. Dakota Access
is a company; the question that remains is whether it is subject to the Board’s
jurisdiction.
The Board considers that the use of the term “jurisdiction” in Iowa Code §
6A.21(2) includes the jurisdiction granted the Board under Iowa Code chapter
479B 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 the proposed pipeline.
Since the language in this section includes Board jurisdiction over entities other
than utilities, it is reasonable to interpret this language as also including the
jurisdiction granted the Board over the routing and construction of hazardous
liquid pipeline companies. Since the Board determines that the exception in Iowa
Code § 6A.21(2) includes jurisdiction over Dakota Access, the Board determines
that it has the authority to grant the power of eminent domain to Dakota Access,
to the extent found necessary, pursuant to Iowa Code § 479B.16.
Final Order at 121 (emphasis added).

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Faced with the indisputable fact that Dakota Access is “under the jurisdiction of the Iowa
Utilities Board,” Petitioners here concede that fact, and instead argue that the Board does not
have “enough” jurisdiction over Dakota Access. According to Petitioners, Dakota Access is not
“under the jurisdiction of the Iowa Utilities Board” because it is also under the jurisdiction of
other agencies with respect to certain aspects of the Dakota Access pipeline, such as the federal
Pipeline and Hazardous Material Safety Administration for certain safety-related requirements or
the Federal Energy Regulatory Commission for common carrier shipping tariff issues.
Petitioners’ argument is without merit for a number of reasons. First, Iowa Code
§ 6A.21(2) unambiguously states that the limitations on condemnation of agricultural land do not
apply to “persons, companies, or corporations under the jurisdiction of the Iowa utilities board.”
The statute does not say “exclusive” or “sole” jurisdiction of the Iowa Utilities Board.
Petitioners make the bold (and unsupported) claim that “[s]trict construction of Iowa Code
§ 6A.21 requires that the IUB have sole and exclusive jurisdiction over Dakota Access and the
DAPL…” It is difficult to understand how Petitioners can argue to the Board that eminent
domain statutes “must be strictly construed,” and then in turn tell the Board that it should read
the words “sole and exclusive” into the statute when they do not appear in the statute. Reading
words into a statute that do not appear in that statute is in direct conflict with strict construction.
See, e.g., Sims v. NCI Holding Corp., 759 N.W.2d 333, 339 (Iowa 2009) (“We will not read into
the statute a mandate which is not present in the plain language.”); State ex rel. Miller v. Midwest
Pork, L.C., 625 N.W.2d 694, 699 (Iowa 2001) (quoting State v. Guzman–Juarez, 591 N.W.2d 1
(Iowa 1999)) (“To adopt the defendant’s interpretation of this statute would require us to read
something into the law that is not apparent from the words chosen by the legislature. This we
will not do.”).

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Second, Petitioners’ argument ignores the extensive areas of Board jurisdiction noted
above, and blatantly misstates the nature of the Board’s continuing jurisdiction. Petitioners
allege that “the Board lacks any jurisdiction or even influence over the continued safe
construction, operation, or maintenance of interstate crude oil pipelines such as DAPL” and that
the Board “cannot protect landowners and tenants from any resulting environmental or economic
damages…” This is simply a misstatement of the law. Contrary to Petitioners’ argument, the
Board does have jurisdiction over the continued safe construction and operation of the pipeline.
As set forth above, the Board has prescribed extensive and detailed requirements for the
construction of the pipeline, and the Board maintains jurisdiction to docket and hear complaints
(and actually has been docketing and hearing complaints) from landowners regarding
construction. In the Order setting this hearing, the Board clearly believed it had authority to
require substantial reporting from Dakota Access. In addition, 199 Iowa Admin. Code § 9.7
establishes a procedure for county boards of supervisors to institute construction-related
complaints to the Board, and for the Board to order corrective action and/or civil penalties.
Further, the Board retains jurisdiction to monitor compliance with its Order, and to take adverse
action on Dakota Access’s permit, in addition to its continuing authority over the decision
whether to grant renewals or extensions of the permit. Conversely, Petitioners’ argument that the
Board must have sole and complete authority over an entity for the 6A.21 exception to apply
would render the exception meaningless: there are no entities, even “public utilities” under §
476.1, over which the Board has “sole and exclusive” authority. Natural gas pipelines, providers
of electricity and electric transmission companies are also subject to Federal Energy Regulatory
Commission jurisdiction for many of their activities; telephone companies are subject to Federal
Communications Commission jurisdiction. Many of the above may be subject to Federal Trade

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Commission and Environmental Protection Agency regulation, as well as the authority of many
other federal, state and local entities. Petitioners’ attempt to narrow the meaning of “under the
jurisdiction of the Iowa utilities board” to the point of an absurd result.
In addition, Petitioners’ reliance on Kinley Corp. v. Iowa Utilities Board, 999 F.2d 354
(8th Cir. 1993) is misplaced and ignores the fact that the legislature enacted chapter 479B after
Kinley. In Kinley, the Eighth Circuit held that a state statute regarding certain safety standards
for an interstate jet fuel pipeline was preempted by the federal HLPSA. The Kinley decision did
not, as Petitioners suggest, strip the IUB of all jurisdiction over all aspects of interstate pipelines.
Moreover, Code Chapter 479B is not somehow invalid under the Kinley decision – it was
enacted in 1995, after, and with knowledge of, the Kinley decision.
Further, the legislature’s intent to exempt companies like Dakota Access from the
limitations in Section 6A.21(1) is further bolstered by the very Amendments to Code Chapters
6A and 6B relied on by Petitioners. In 2006, the legislature enacted House File 2351 – a bill
which made several changes to Code Chapters 6A and 6B. Among other additions, new Section
6A.22 includes specific limitations and definitions regarding condemnation for “redevelopment
purposes” and to “eliminate slum or blighted conditions.”
At the same time the legislature chose to enact Section 6A.22 to place limitations on the
use of eminent domain, it also amended Code § 6A.21(2) to broaden the exception applicable to
companies like Dakota Access. Prior to 2006, the exception read: “[t]his limitation also does not
apply to utilities or persons under the jurisdiction of the Iowa utilities board in the department of
commerce…” (emphasis added). The 2006 Amendments added “companies or corporations” to
the exception, such that the exception now reads, “this limitation also does not apply to utilities,
persons, companies, or corporations under the jurisdiction of the Iowa utilities board…”

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(emphasis added). Accordingly, while adding restrictions to the use of eminent domain in 2006,
the legislature actually considered and chose to broaden the exception applicable to Dakota
Access in Section 6A.21(2), making clear that the entities exempted because they are subject to
Board jurisdiction are not limited to “utilities.” Any corporation under the Board’s jurisdiction
now qualifies.
Moreover, several landowners, including some of the Petitioners, have attempted on
multiple occasions to convince courts since the issuance of the Board’s Final Order to stay
hearings and/or construction on the basis that 6A.21(1)’s limitations apply to Dakota Access. All
have been rejected. The Iowa District in and for Cherokee County rejected these same
arguments from a group of landowners including Petitioners Richard Lamb and Marian Johnson,
who sought to have the court stay the Board’s hearing. That court found the claims were not yet
ripe because those petitioners had not exhausted their administrative remedies before the Board. 8
This ruling inherently required that court to find that the Board has jurisdiction over Dakota
Access, its permit, and its pipeline. See Lamb at 8-9 (“As all of Petitioners’ potential wrongs are
provided for in [Iowa Code ch. 479B], intended for review by IUB, and are subject to application
for judicial review following IUB’s decision, the wrongs are adequately addressed through the
administrative process.”)
Following the issuance of the Board’s Order, Petitioner Marian Johnson and two other
landowners in Cherokee County filed suit against Dakota Access seeking to stay their
compensation commission hearing and the subsequent construction of the pipeline on their
properties, again arguing that Code Section 6A.21(1)’s limitations applied to Dakota Access.
The Cherokee County Court again rejected those petitioners’ arguments, denied their Motion for
8

See Lamb v. IUB, Ruling on Respondent and Intervener’s Joint Motion to Dismiss, Cherokee County No.
CVCV024420 (Oct. 20, 2015) (attached as Attachment B).

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Stay, and dismissed their case, finding that the IUB had jurisdiction and the parties must seek
relief, if any, under Chapter 17A. 9 Weeks later, Petitioners Gary and Linda Hammen, Hammen
Family Trust, and another landowner filed individual cases against Dakota Access seeking to
stay their compensation commission hearing and the subsequent construction of the pipeline on
their properties, again arguing that Code Section 6A.21(1)’s limitations applied to Dakota
Access. The Calhoun County Court rejected those petitioners’ arguments, denied their Motion
for Stay, and dismissed their case on the same basis that Judge Whittenberg dismissed the
Johnson case in Cherokee County, noting in its Order dismissing the case that, “[Judge
Whittenberg] also found that the Board had adequately addressed the question of whether Dakota
Access is excepted from the agricultural land condemnation restrictions of Section 6A.21…” 10
Indeed, by the very act of sending the case back to this Board, Judge Farrell’s Order implicitly
accepts that this Board has jurisdiction over Dakota Access and the Project.
In sum, the issue underlying the § 6A.21(2) exemption – jurisdiction of the Board over
Dakota Access – has already been decided by this Board and multiple Iowa courts in challenges
to this very project. Several of the Petitioners have been party to those other challenges that have
been rejected by the courts; none of those rulings were timely appealed. The Petitioners should
not be heard to collaterally attack those decisions on this same § 6A.21 issue, nor does this Board
have authority to undermine those orders. The Petitioners’ argument ignores the IUB’s extensive
and continuing jurisdiction, ignores the recent amendments to Chapter 6A that broaden the
exception applicable to Dakota Access, and asks the Board to read language into that exception

9

See Johnson v. Dakota Access, LLC, Ruling on Petitioners’ Application for Supplemental Relief and Respondent’s
Motion to Dismiss, Cherokee Case No. EQCV024957 (June 13, 2016). (Attached as Attachment C).

10

See Hammen v. Dakota Access, LLC, Order Denying Petitioners’ Requests for Stays; Order Dismissing Cases,
Calhoun County Case No. EQCV501984 (June 21, 2016 and July 11, 2016) (attached as Attachment D).

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that does not appear on the face of the statute. As such, the Board should reject Petitioners’
argument that Dakota Access is not under the jurisdiction of the Board.
Alternatively, Dakota Access is also a “utility” for purposes of § 6A.21(2). The term
“utility” is not defined in § 6A.21, but it is noteworthy that the term the legislature chose in §
6A.21(2) is “utility” rather than “public utility.” 11 Since the legislature used the terms “public
utility,” “private utility,” and “common carrier” separately in § 6A.22(2), it is clear that the
legislature knows how to be specific when it chooses to do so. The use of the broader term
“utility” must therefore be assumed intentional and given effect. The logical reading in context
is that “utility” here encompasses at least all of the public utilities, private utilities and common
carriers referenced in the paragraph providing the general right of eminent domain (§ 6A.22) –
that it is a shorthand reference to the list of utilities already discussed in longer form within the
same part of the statute.
Independent of that analysis, however, it should be noted that the legislature uses the term
“utility” in numerous places in the Iowa Code, and in every instance it is clear that it means
something broader than “public utility” as that term is defined in Iowa Code § 476.1. See, e.g.,
Iowa Code chapter 28J (regarding port authorities; appears to equate “utility company” with
“common carrier”); Iowa Code § 306.47 (referring to utilities relocation includes both public and
private utilities); § 306A.4 (discusses facilities where IUB determines the route as being
utilities); § 306A.13 (defining “utility” as including pipelines and numerous other things not
included in § 476.1); § 314.11 (use of bridges by “utility companies” and describing those as
including pipelines). Further, the context of the entire sentence is important: it removes the
limitation for a “utility” that is also conferred the right by statute to condemn. In Iowa Code §
479B.16, the Iowa Legislature gave a “pipeline company granted a permit” the authority to

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exercise eminent domain. The intent of the Legislature to grant hazardous liquids pipelines the
authority to condemn, in the same chapter where the Legislature clearly contemplated that such
pipelines would traverse agricultural lands (as shown by, among others, sections 479B.20, .31,
and .33) is compelling evidence that the Legislature intended a pipeline like Dakota Access to be
a “utility” for purposes of § 6A.21(2).
Accordingly, Petitioners’ claim that the IUB lacked jurisdiction to grant, and Dakota
Access lacks jurisdiction to exercise, eminent domain authority under Iowa Code § 6A.21 is
without merit under the plain and unambiguous language of that code section, and therefore
should be rejected.
2.

The Board is Free to Consider Economic Benefits Among Other
Factors in Determining whether the Project Meets the Public
Convenience and Necessity; Petitioners’ Argument Misrepresents
Iowa Code § 6A.22 and Fails to Grasp the Role of § 479B.16.

Petitioners argue throughout their Brief that the Board’s conclusion that the Dakota
Access pipeline promotes the public convenience and necessity is arbitrary and capricious
because the Board considered, among other factors, economic benefits. According to Petitioners,
the Board is “statutorily prohibited” from considering economic benefits. Petitioners’ argument
in this regard is mistaken on at least two fronts: (1) The Board considered economic benefits in
determining whether to issue the pipeline permit, not in determining whether to authorize
eminent domain authority – a decision the legislature has already made; and (2) The very Iowa
Code Section relied upon by Petitioners plainly and unambiguously states that the limitation on
consideration of economic factors does not apply to the acquisition of property by a common
carrier like Dakota Access.

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a.

The Board Considered Economic Benefits in Determining
whether to Grant a Pipeline Permit, Not in Determining
whether to Authorize Eminent Domain Authority; The
Legislature has Already Dictated to the Board when it Must
Authorize Eminent Domain Authority.

The first reason Petitioners’ argument regarding economic benefits is mistaken is simple
– the Board did not consider economic benefits in determining whether to authorize eminent
domain, it considered them in determining whether it should grant a permit to Dakota Access.
The Board’s Final Order is organized into main parts, with subparts addressed under each such
main part. The Order begins with Part I: “Will the Proposed Pipeline Promote the Public
Convenience and Necessity” – a standard that Petitioners go to great lengths in their Brief to
argue is a separate and different standard than the “public use” standard applicable to eminent
domain decisions. The sub-part “Economic Benefits” appears and is discussed by the Board in
Part IV of the Order – “State Issues.” The Board’s consideration of the public convenience and
necessity standard – i.e., whether to grant a pipeline permit – concludes with Part VII of the
Order – “Final Analysis of the Public Convenience and Necessity.” In Part VII, the Board
concludes, “The Board finds that, subject to the terms and conditions the Board has adopted in
this order, the proposed pipeline will promote the public convenience and necessity and,
pursuant to Iowa Code § 479B.9, a permit is granted and will be issued to Dakota Access…”
It is not until the Board has decided that threshold issue – whether the pipeline promotes
the public convenience and necessity – that it moves on to consider eminent domain. Part VIII
of the Order – Board’s Authority to Grant Eminent Domain – spans three sub-parts and 35 more
pages, and makes no mention of economic benefits. Simply stated, the Board’s analysis of
eminent domain authority does not rely upon any consideration of economic benefits.

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While the plain language of the Final Order itself makes clear that the Board was not
considering economic benefits in its analysis of eminent domain, another source also makes this
clear – Iowa Code § 479B.16. Pursuant to Iowa Code § 479B.16, the legislature has mandated
to the IUB that, “[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…” Iowa
Code § 479B.16 (emphasis added). Accordingly, the Board’s considerations in determining
whether to issue a permit are separate and apart from its’ decision-making process on eminent
domain – the legislature has dictated to the Board that it must grant eminent domain authority
where a pipeline permit is issued, but can determine what conditions are placed on that authority.
In sum, Petitioners’ argument that the Board impermissibly considered economic benefits
is mistaken in the first instance because it’s simply incorrect – the Board did not rely upon
economic benefits in determining whether to grant eminent domain authority, and rather
followed the requirements of the legislature in Iowa Code § 479B.16. Put differently, the Board
did not make a determination on eminent domain rights at all; the Iowa Legislature made the
determination that those vest upon Dakota Access obtaining a permit. As a result, the Board also
did not consider economic benefits in conferring eminent domain rights; to the extent permit
considerations lead to eminent domain rights the Iowa Legislature made that determination. 12
The Board merely considered the extent to which use of such a right was necessary and any
conditions they would attach. As a result, Petitioners’ complaint is not with the Board, nor with
any court. If Petitioners do not like Iowa Code § 479B.16, their recourse is with the Iowa
Legislature.

12

Noteworthy in this regard is that pipeline opponents sought legislation after the announcement of this Project that
would have limited the use of eminent domain for oil pipelines; the legislation did not pass which should give the
Board pause in reading additional restrictions into the existing law. That opponents believed it necessary suggests a
concession that § 479B.16 and Chapter 6A allow the use of eminent domain for this Project.

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b.

The Limitations on Consideration of Economic Factors do
not Apply to Common Carriers Like Dakota Access.

Petitioners attempt to mislead the Board in suggesting that Code Section 6A.22 prohibits
consideration of economic factors in this case. Iowa Code § 6A.22(2)(a) provides a list of the
takings that statutorily constitute a “public use”, “public purpose,” or “public improvement.”
Most notably for this case, Iowa Code § 6A.22(2)(a) provides in relevant part,
2. a. “Public use”, “public purpose”, or “public improvement” means one or more of the
following:
(1) The possession, occupation, and enjoyment of property by the general public
or governmental entities.
(2) The acquisition of any interest in property necessary to the function of a
public or private utility, common carrier, or airport or airport system…
As described more fully below, even though Petitioners may dispute whether Dakota
Access is a “utility,” there is no dispute that Dakota Access is indeed a “common carrier.” As
such, it qualifies as a public use under subsection (2)(a).
Iowa Code § 6A.22(2)(b) provides an additional limitation on the exercise of eminent
domain authority that is not applicable to the list of takings that constitute a public use, public
purpose, or public improvement under subsection (2)(a). Iowa Code § 6A.22(2)(b) provides,
b. Except as specifically included in the definition in paragraph “a”, “public use” or
“public purpose” or “public improvement” does not mean economic development
activities resulting in increased tax revenues, increased employment opportunities,
privately owned or privately funded housing and residential development, privately
owned or privately funded commercial or industrial development, or the lease of publicly
owned property to a private party.
(emphasis added).
The critical language of subsection (2)(b) is the initial clause – “Except as specifically
included in the definition in paragraph “a”…” The reference to “paragraph ‘a’” in subsection
(2)(b) refers to the prior subsection – (2)(a), which provides the list of takings that do qualify as a

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“public use,” “public purpose,” or “public improvement.” Subsection (2)(b) then makes clear
that “except” for the takings that do qualify listed in subsection (2)(a), certain economic factors
are not sufficient to demonstrate public use. As noted above and explained more fully below,
subsection (2)(b)’s limitation does not apply to Dakota Access, because it is a common carrier –
which subsection (2)(a) expressly includes as a public use.
While Petitioners accurately quote a portion of subsection (2)(b) on page 10 of their
Brief, they then inaccurately represent to the Board that the reference to “paragraph a” in
subsection (2)(b) refers to subsection (2)(a)(5)(a), instead of the subsection to which it actually
refers – subsection (2)(a). Footnote 5 on Page 10 of Petitioners’ Brief states that the reference to
“paragraph a” in subsection (2)(b) “relates to the condemnation of blighted or slum properties.”
Subsection (2)(a) does not relate to slum or blighted conditions. Rather, subsection (2)(a)(5)(a)
relates to slum or blighted conditions. The reference to “paragraph a” in subsection (2)(b) is to
the preceding subsection, (2)(a), not to subsection (2)(a)(5)(a). At best, Petitioners’ have
inaccurately described the statute. 13
Regardless of Petitioners’ motive, it is clear that subsection (2)(b)’s limitation applies to
takings “except as specifically included in the definition in paragraph ‘a.’” Because the
“definition” in subsection (2)(a) includes, “The acquisition of any interest in property necessary
to the function of a public or private utility, common carrier, or airport or airport system…”, and
Dakota Access is a common carrier, the additional limitation in subsection (2)(b) does not apply
to Dakota Access.

13

Two of Petitioners’ counsel’s own law partners have authored a treatise confirming the reading of the statute
Dakota Access sets forth herein. See 17 Ia. Prac., Real Estate Law and Practice § 14:4 (2015-2016 ed.) (noting that
the definition of “public use,” “public purpose,” or “public improvement” in subsection 2(a) “is limited to one or
more of five specific categories” and that, “the statute explicitly provides that economic development activities that
fail to qualify under one of the five specific categories do not meet the statutory definition…”) (emphasis added).

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Thus, although the Board did not even consider economic benefits in determining
whether to grant eminent domain authority, Iowa Code § 6A.22 does not prohibit the
consideration of economic benefits for a project like Dakota Access, which is a pipeline
constructed by a common carrier. (While Dakota Access finds this incontrovertible, to the extent
there is any challenge to Dakota Access being a common carrier that is addressed further under
Constitutional issues, below.)
3.

The Substantial Evidence and Petitioners’ Own Arguments
Regarding Safety Demonstrate that Petitioners Have No
Likelihood of Success Under the Iowa Administrative Procedures
Act.

Petitioners devote a section of their Brief to attacking the Board’s conclusion that
transporting crude oil by pipeline is a safer way to move oil than the primary alternative, rail
transport. However, in doing so, Petitioners’ attempt to cherry-pick a few sentences or pieces of
sentences from a 174 page Order, refer to only some of the evidence presented regarding pipeline
safety, and seek to require the Board to follow their self-created “risk analysis framework” not
dictated by any rule or source of law, and which does not itself define what particular “risk” is
being quantified (e.g., incidents, volume, injuries, financial impacts, etc.). In short, Petitioners’
argue that the Board could not conclude that transporting oil by pipeline is safer than rail because
demand for oil, the capacity of the pipeline, production levels in the Bakken, or a speculative
future spill of unknown origin or size, could create more risk to Iowans. While Petitioners toss
out administrative law buzzwords like “arbitrary and capricious,” the claim at heart is a
substantial evidence claim: that the Board lacked substantial evidence to reach its conclusions on
risk. An argument that the Board, or even the reviewing court, could reach a different
conclusion falls woefully short of requiring reversal under the substantial evidence standard
(and, further, in no way shows that the decision reached was arbitrary).

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A reviewing court (and essentially the Board is reviewing its own prior decision for
purposes of the likelihood of success prong) is required to affirm the Board’s conclusions if they
are “supported by substantial evidence, considering the record in its entirety.” S. E. Iowa Co-op.
Elec. Ass'n, 633 N.W.2d at 818.
Evidence is substantial if a reasonable person would consider it sufficient to support the
agency's conclusions. Second Injury Fund of Iowa, 539 N.W.2d at 180; Northwestern
Bell Tel. Co., 477 N.W.2d at 682. Thus, even if we find the record could support a
different conclusion, we must affirm the agency's decision if it is supported by substantial
evidence. Northwestern Bell Tel. Co., 477 N.W.2d at 682; Eaves v. Bd. of Med. Exam'rs,
467 N.W.2d 234, 237 (Iowa 1991).
Id.

In the present case, the Board reviewed thousands of pages of exhibits and written

testimony and heard hours of oral testimony during an approximate 3 ½ week hearing on issues
relating to pipeline safety and its relative safety when compared to rail transport. In
summarizing its findings after 107 pages of discussion of the individual issues, the Board first
noted,
Iowa Code § 479B.9 contemplates that the Board will apply a balancing test to determine
whether the project will promote the public convenience and necessity, determining
whether the benefits outweigh the costs. South East Iowa Co-Op. Elec. Ass’n v. Iowa
Utilities Board, 633 N.W.2d 814, 821-22 (Iowa 2001). When balancing these costs and
benefits, the Board considers all of the evidence and arguments presented by the parties
relating to each of the issues, but in this analysis the focus will be on those factors that
have been shown to be most significant.
Final Order at 108.
With respect to the comparative safety of pipeline versus rail transport, the Board’s
summary notes,
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. This

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public benefit carries significant weight in the statutory balancing test for determining
whether the proposed pipeline will “promote the public convenience and necessity.”
(Iowa Code § 479B.9).
Id. at 109.
The Board’s summary is well-supported in the record. Dakota Access presented
hundreds of pages of testimony and exhibits from a pipeline safety expert who was the former
head of the federal Pipeline and Hazardous Materials Safety Administration and a national
energy economist who previously lead the U.S. Energy Information Agency, among others. In
addition, several adverse parties, including Petitioner IFLOA, presented their own evidence and
arguments regarding the comparative safety of pipeline versus rail transport. Notably, the
Board’s Final Order summarizes much of that evidence, and finds:
The Board finds that the increased safety associated with pipeline transport of crude oil is
significant. Sierra Club’s comparison of the total amount of oil leaked by pipelines and
railcars during 2013 is too simplistic. It compares crude oil shipments by rail to all
hazardous liquids transported by pipelines and fails to consider the relative volumes of
crude oil transported or the distance over which the oil was being transported. To the
extent pipelines carry more oil over greater distances the Sierra Club comparison
overstates the relative safety of rail transport.
Similarly, the testimony of IFOA witness Wehrman-Andersen is based upon the total
miles of railroad track and pipeline in the United States (see Exh. Wehrman-Andersen 1
at p. 2) and fails to account for the amount of oil being shipped by each transportation
mode or the distance the oil is being shipped. Further, those calculations overstate the
safety of shipping by railroad by including miles of railway over which crude oil is never
shipped.
The most valid comparison in this record of the relative safety of rail transport versus
pipeline transport considers the shipping method, the amount of crude oil shipped, and
the distance it is shipped. It is clear from the USDOT data in Exhibit GC-1 that
significantly more oil is shipped more miles by pipeline than by rail, so it is not
surprising that the total amount of oil leaked by pipelines is higher. However, on a more
equal comparison basis (accounting for both volume of oil carried and the distance it was
carried) pipelines are shown to have between one-third and one-fourth the incident rate of
railway transport of petroleum products. (Id.) As one report stated, “[b]y any measure –
number of incidents, fatalities and spilled fluids recovered, pipelines are the safest and
most effective form of energy transportation.” (Exh. GC Direct at 8, quoting Vern
Grimshaw & Dr. John Rafuse, Assessing America’s Pipeline Infrastructure: Delivering
on Energy Opportunities.)
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This safety advantage is a substantial benefit of the proposed pipeline. Again, the amount
of Bakken oil produced will be a function of marketplace demand, and once that oil is
produced it must be shipped to the refineries, primarily by rail or by pipeline. The
pipeline may or may not reduce rail shipments of crude oil, but oil that is shipped by
pipeline is significantly less likely to be spilled than oil shipped by rail. Therefore, if it is
built, this pipeline will reduce the overall risk of crude oil spills, in Iowa and elsewhere.
The project’s potential impact on safe shipping of crude oil is a factor that merits
significant weight in the Board’s balancing test.
Id. at 31 – 33.
The above summary from the Board not only points out that it had substantial evidence
before it to make its conclusion regarding the comparative safety of pipeline transportation, it
also points out the flaws in Petitioners’ present argument. First, Petitioners set forth no reason
why the evidence presented by Dakota Access could not be relied upon by the Board, nor do
Petitioners’ demonstrate that Dakota Access’s expert witnesses were not credible or sufficiently
knowledgeable to support their opinions.
Second, the Board’s analysis of the evidence from parties opposed to the project
highlights the problems in Petitioners’ proposed “risk analysis framework.” As a threshold
matter, the Board is not required to engage in the wholly made-up algebra problem that
Petitioners’ propose – rather, it is required to engage in a balancing test, weighing all factors in
determining whether the benefits outweigh the costs. S.E. Iowa Co-Op. Elec. Ass’n , 633 N.W.2d
at 821 – 22.
Nonetheless, the algebra problem proposed in Petitioners’ Brief contains its own
problems. First, and perhaps most notably, Petitioners’ algebra problem attempts to quantify risk
– which by its very nature is speculative. Petitioners cannot argue that more risk inevitably
results in more harm, because unrealized risk does not result in harm. Further, Petitioners’
algebra problem simply relies upon general statements regarding risk without taking into account

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any of the evidence before the Board regarding the safety features of this pipeline. As
Petitioners fail to mention, Stacey Gerrard and Chuck Frey both presented extensive testimony
before the Board regarding new safety regulation and the safety features of this pipeline,
including all the safety features that go above and beyond required safety regulations. (See, e.g.,
Dakota Access Ex. SG Direct, 5:20 – 17:2; Dakota Access Ex. SG Reply 4:4 – 5:15; 10:8 – 20;
12:17 – 13:4; Dakota Access Ex. CF Reply 2:1 – 21; Dakota Access Ex. CAF-5).
In addition, Petitioners’ algebra problem does not identify what risk is being quantified.
As the Board’s summary points out, risk can be measured on different bases (miles, ton miles,
years) and can be defined differently (spills, volume of spills, financial impacts, injuries, deaths,
etc.). Petitioners’ argument does not identify any particular risk. However, the Board’s analysis
describes those various risks, and relied upon expert evidence that “[b]y any measure – number
of incidents, fatalities and spilled fluids recovered, pipelines are the safest and most effective
form of energy transportation.” Final Order at 32. Petitioners fail to demonstrate how the
Board’s reliance on that evidence was arbitrary and capricious in weighing the relative safety of
pipeline versus rail transport. It is telling that at page 17 of their Brief, Petitioners – while
calling them “conclusions” – attempt to introduce additional facts in the record that they had
every opportunity to put forth in testimony, at the hearing, or to infer in timely post-hearing
briefs. What they cannot do is seek to revise the evidence more than five months after the Final
Order.
In sum, Petitioners’ suggestion that the Board was required to measure risk within a
particular “risk analysis framework” proposed by Petitioners in weighing the relative safety of
pipeline versus rail transport is without merit. Rather, the Board is required to engage in a
balancing test, weighing all factors in determining whether the benefits outweigh the costs. S.E.

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Iowa Co-Op. Elec. Ass’n, 633 N.W.2d at 821-22. The Board clearly did so, having an
extraordinary record before it and thoroughly addressing the arguments made by all parties,
choosing to rely on expert evidence it found most credible in reaching its conclusion 14. As such,
Petitioners’ argument that the Board’s conclusion regarding the relative safety of pipeline versus
rail transport should be rejected.
Petitioners’ safety argument also suffers a glaring Constitutional defect. Petitioners seek
to limit the analysis of the increased safety from pipeline shipping only to Iowa as a “closed
system” – that is, Petitioners consider oil in the pipeline a risk to Iowa without considering the
increased safety from less oil on above-ground rail on the entire rail system (and similarly do not
consider any risks of pipeline shipping if a replacement pipeline were built elsewhere). The
Board correctly noted that “if it is built, this pipeline will reduce the overall risk of crude oil
spills, both in Iowa and elsewhere.” Final Order at 32-33 (emphasis added). This is both the
morally and legally correct analysis. As Iowa is entirely dependent on transported hydrocarbons
for its 220,000 bpd usage, it would be untoward to ignore safety improvements along the paths
that make Iowa’s petroleum usage possible – whether or not those accrue entirely to Iowa. Iowa
helps create the demand; Iowa has an obligation to make the transportation system safer. A new
underground pipeline, built to standards that exceed modern regulations, does just that. It is also,
however, the analysis the law requires. The Dakota Access pipeline is an interstate project,

14

Petitioners’ reliance on Alaska Dept. of Envtl. Conservation v. E.P.A., 540 U.S. 461, 498 (2004) is misplaced. As
a threshold matter, the EPA there found that the ADEC’s decision was without factual basis because there was no
evidence for the ADEC to rely upon in determining the cost of Low NOx. Here, the Board had a great deal of
evidence – Petitioners just wish the Board had found theirs more credible. The case is also highly distinguishable: it
involved very prescriptive provisions of rules under the Clean Air Act; here the Board is given much wider latitude
in weighing the totality of benefits in determining whether to grant a permit for a pipeline. In addition, it cannot be
ignored that in Alaska Dept., the Court is affirming an agency decision. That court’s deference to the EPA supports
deference to the IUB’s Final Order in the present case.

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subject to the Commerce Clause (and Dormant Commerce Clause). Contrary to several of
Petitioners’ arguments, the Board correctly noted in the Final Order that looking at a costbenefit analysis solely through an Iowa-centric lens violates the Commerce Clause. See Final
Order at 21 (citing Application of Nebraska Public Power District, etc., 354 N.W.2d 713, 718
(S. Dak. 1984)).
The IUB, while correct in its result, understates the magnitude of the constitutional
problem in trying to look solely to in-state benefits and costs to grant a permit or the right of
eminent domain for an interstate project. A federal court in South Dakota reached a similar
result, striking down a state law that limited eminent domain to railroads the provided in-state
shipping, and solely for products that were produced, mined, grown or consumed in the state.
Dakota & Minn. E. R.R. Corp. v. South Dakota, 236 F. Supp. 2d 989, 1015-16 (D.S.D. 2002). 15
That court concluded that the law “overtly discriminated against interstate commerce,” holding
that “[s]uch an economic protectionist stance is precisely what is forbidden by the dormant
Commerce Clause.” Id. This is not surprising: providing state-granted advantages like permits or
eminent domain in a way that favors in-state rather than out-of-state or interstate economic
interests, or that burden interstate commerce, or that would create economic Balkanization if
numerous states had the same approach is a practice that is routinely rejected. See, e.g., National
Solid Wastes Management Ass'n v. Meyer, 165 F. 3d 1151 (7th Cir. 1999). 16 As the Meyer court

15

Aff’d in part, vacated in part, remanded sub nom Dakota, Minn & E. R.R. Corp. v. S. Dakota, 362 F.3d 512 (8th
Cir. 2004).
16

See, e.g., Healy v. Beer Inst., 491 U.S. 324, 336 (1989)( the practical effect of a statute is “evaluated not only by
considering the consequences of the statute itself, but also by considering . . . what effect would arise if not one, but
many or every, State adopted similar legislation.”), C&A Carbone, Inc. v. Town of Clarkstown, N.Y., 511 U.S. 383,
390 (1994)(states may not “discriminate against an article of commerce by reason of its origin or destination out of
State”); Or. Waste Sys. v. Dep’t of Envtl. Quality, 511 U.S. 93, 99 (1994)( “‘discrimination’ simply means
differential treatment of in-state and out-of-state economic interests that benefits the former and burdens the latter. . .
If a restriction on commerce is discriminatory, it is virtually per se invalid.” West v. Kansas Nat. Gas Co., 221 U.S.
229, 255 (1911); cf. Pliura Investors v. Illinois Commerce Comm’n, 942 N.E.2d 576, 584 (Ill. App. 3d

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emphasized, “it is essential to ask whether the interaction of many extraterritorial laws similar to
Wisconsin’s would serve as a clog on interstate commerce.” Id. at 1153. There can be no
question that if every state looked to its own risks without consideration of whether any other
state benefits, beneficial interstate infrastructure projects – oil pipelines, gas pipelines, anhydrous
ammonia pipelines, electric transmission lines – would rarely if ever get completed. The
discrimination in favor of wholly in-state projects, and the burden on interstate projects, that
would result from looking solely at an in-state cost-benefit analysis to justify a permit or eminent
domain would create a Constitutional violation.
Finally, and of critical importance for deciding this motion, even if Petitioners were
correct on their safety argument – and they decidedly are not – it would make no difference. The
Board’s Final Order did not rely solely on safety. In addition to the substantial economic
benefits, the Board also found the pipeline would promote energy security (Final Order at 27);
and the Board acknowledged that the capacity of the pipeline represents oil shipments that would
not compete with grain and other Iowa products (Final Order at 35). As such, Petitioners’
Motion for Stay should be denied.
4.

Petitioners Constitutional Arguments Fail as a Matter of Law.
a.

Public Use is Determined in the First Instance by the
Legislature, and the Iowa Legislature Clearly Found
Pipelines like DAPL to be a Public Use.

Petitioners go to great lengths in an attempt to create a distinction between the “public
convenience and necessity” standard required for the Board to issue a permit, and the “public
use” requirement for the exercise of eminent domain under the Iowa and United States
Constitutions. Petitioners rely on an inapplicable Illinois case – Southwestern Illinois
2010)(rejecting pipeline opponents’ argument that the utility commission did not have authority to consider
“regional, national, or global benefits” in determining public convenience and necessity).

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Development Authority v. National City Environmental, L.L.C., 768 N.E.2d 1 (Ill. 2002) for the
proposition that there is a distinction between the concepts of “public use” and “public purpose.”
Petitioners then declare that “‘Public purpose’ is a standard very similar, if not identical, to
‘public convenience and necessity’” – without citing any authority for that proposition.
Regardless of whether there is a conceptual distinction between the two standards,
Petitioners’ argument misses the point, for two reasons: (1) the Iowa legislature has declared that
when a crude oil pipeline is issued a permit under the public convenience and necessity standard,
it is a public use for purposes of eminent domain; and (2) the Iowa legislature has also separately
declared that the acquisition of any interest in property necessary to the function of a common
carrier constitutes a public use. Iowa Code § 479B.16 (requiring that a pipeline granted a permit
under the public convenience and necessity standards “shall be vested with the right of eminent
domain.”); Iowa Code § 6A.22(2) (“‘Public use’ [or] ‘public purpose’. . . means one or more of
the following: . . . The acquisition of any interest in property necessary to the function of a public
or private utility, common carrier, or airport . . . .”).
The public use requirement is similar under the United States and Iowa Constitutions.
See U.S. Constitution, Amend. 5, Iowa Constitution, Art. 1 § 18. Accordingly, the analysis of
whether a condemnation is for a public use or public purpose is the same under either state or
federal law. See Milligan v. City of Red Oak, Iowa, 230 F.3d 355, 359 (8th Cir. 2000). In either
instance, as the Iowa Supreme Court has explained,
It is initially for the legislature to determine whether private property is being
taken for a public use. Simpson v. Low–Rent Hous. Agency of Mount Ayr, 224
N.W.2d 624, 627 (Iowa 1974); see also Hawaii Hous. Auth., 467 U.S. at 239, 104
S.Ct. at 2329, 81 L.Ed.2d at 196. Courts should not substitute their judgment for
the legislature’s judgment as to what constitutes a public use unless the use is
palpably without reasonable foundation. Id. at 241, 104 S.Ct. at 2329, 81 L.Ed.2d
at 197.

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CMC Real Est. Corp. v. Iowa Dept. of Transp., 475 N.W.2d 166, 169 (Iowa 1991). As a result,
“the public use requirement of the Takings Clause is coterminous with the regulatory power” and
the regulatory determination that a use is a public use “should not be disturbed by the court
‘unless it is clear, plain and palpable it is private in character.’” Milligan, 230 F.3d at 359 (citing
Nat’l R.R. Passenger Corp. v. Boston & Me. Corp., 503 U.S. 407, 422 (1992); Vittetoe v. Iowa S.
Utils. Co., 123 N.W.2d 878, 880 (Iowa 1963)). “Legislation calling for condemnation enjoys the
same presumption in its favor as when the constitutionality of [any other] statute is challenged.”
Milligan, 230 F.3d at 859 (citing Abolt v. City of Ft. Madison, 108 N.W.2d 263, 268 (Iowa
1961)).
In the present case, the legislature has unambiguously made the determination that crude
oil pipelines are a public use. Iowa Code Chapter 479B expressly applies to crude oil pipelines,
see § 479B.2(2), and where a permit is requested and the Board has granted such a permit, the
legislature has mandated to the IUB that the applicant “shall be vested with the right of eminent
domain”. Iowa Code § 479B.16 (emphasis added). Accordingly, Petitioners’ argument that the
public convenience and necessity standard and the public use standard are different is irrelevant
– the Iowa legislature has already determined that a pipeline company that receives a permit
from the Board is a public use.
Moreover, in the condemnation statute itself the legislature has again defined a pipeline
like the Dakota Access pipeline as a public use: “‘Public use’ [or] ‘public purpose’. . . means one
or more of the following: . . . The acquisition of any interest in property necessary to the function
of a public or private utility, common carrier, or airport . . . .” Iowa Code 6A.22(2) (emphasis
added). Dakota Access has explained above why it is properly considered a “utility” for

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purposes of the statute, but in this case such a finding is not necessary – there is no dispute that
Dakota Access is a common carrier.
Dakota Access files common carrier tariffs with the Federal Energy Regulatory
Commission, held two “open seasons” which allowed any interested shipper to obtain capacity
on the Dakota Access pipeline without discrimination, and 10% of the capacity will be reserved
for any “walk-up” shippers. See Dakota Access, LLC and Energy Transfer Crude Oil Company,
LLC, Docket OR-14-42-000, Declaratory Order (FERC, Dec. 24, 2014). 17 Some of the
Petitioners in this case, represented by the same counsel, have already conceded that Dakota
Access is a common carrier in related proceedings. See Marian Johnson v. Dakota Access,
LLC, Cherokee County No. EQCV024957, Petitioners’ Brief Supporting its Resistance to
Respondent’s Motion to Dismiss 18 at 24 (arguing, “Although it is not a utility, Dakota Access is
a pipeline company under § 479B.2(4), and a “common carrier” under the federal Insterstate
Commerce Act.”) (emphasis added).
To the extent Petitioners attempt to argue that they have conceded Dakota Access is a
common carrier only for purposes of federal law, that suggestion is disingenuous for several
reasons. First, Petitioners set forth no reason why an Iowa court or this Board should not apply
the same definition that federal courts apply. To the contrary, the Iowa Supreme Court often
looks to federal law in construing and applying state law. 19 Second, Petitioners’ suggestion that

17

Attached as Attachment E.

18

Attached as Attachment F.

19

See, e.g.,City of Sioux City v. Jacobsma, 862 N.W.2d 335, 340 (Iowa 2015) (“we often look to federal cases when
interpreting the state due process clause.”); State ex rel. Miller v. Pace, 677 N.W.2d 761, 767 (Iowa 2004) (noting,
in context of securities law dispute, “we look to federal decisions for guidance in interpreting our state statute.”);
Pub. Fin. Co. v. Van Blaricome, 324 N.W.2d 716, 725 (Iowa 1982) (noting that when construing the Iowa
Consumer Credit Code, “we look to federal courts' interpretations of the analogous Federal Fair Debt Collection
Practices Act.”); Iowa Annual Conf. of United Methodist Church v. Bringle, 409 N.W.2d 471, 473 (Iowa 1987)

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a common carrier must serve everyone in Iowa, rather than relevant shippers that seek to utilize
the pipeline, is contrary to the Iowa common law definition of “common carrier.” The Iowa
Supreme Court has explained that the distinctive characteristic of a common carrier is that it
holds itself out as ready to engage in the transportation of goods or persons for hire, and that it
need not serve all the public all the time:
Iowa law has defined a common carrier as “one who undertakes to transport,
indiscriminately, persons and property for hire.” Employers Mut. Cas. Co. v. Chicago &
North Western Transp. Co., 521 N.W.2d 692, 693 (Iowa 1994). We have ruled that the
distinctive characteristic of a common carrier is that it holds itself out as ready to
engage in the transportation of goods or persons for hire, as public employment, and
not as a casual occupation. Kvalheim v. Horace Mann Life Ins. Co., 219 N.W.2d 533,
535 (Iowa 1974). A common carrier holds itself out to the public as a carrier of all goods
and persons for hire. We, however, have also recognized that a common carrier need
not serve all the public all the time.
Wright v. Midwest Old Settlers and Threshers Ass'n, 556 N.W.2d 808, 810–11 (Iowa 1996)
(emphasis added); see also Circle Exp. Co. v. Iowa State Com. Commn., 86 N.W.2d 888, 893
(Iowa 1957) (“the distinctive characteristic of a common carrier is that he holds himself out as
ready to engage in the transportation of goods for hire, as a public employment, and not as a
casual occupation, and that he undertakes to carry for all persons indifferently, within limits of
his capacity and the sphere of the business required of him.”) (citations omitted, emphasis
added); cf. In re Arbitration of Sprint Commc’ns Co., L.P. v. Ace Commc’ns Group, Docket No.
ARB-05-2, “Order on Rehearing” (IUB, Nov. 28, 2005) at 4 (setting forth test noting “a carrier
that offers its service only to a defined class of customers can still be considered a common

(noting that in interpreting the Uniform Class Action Rule, “we look to federal authorities construing similar
provisions…”).

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carrier if it holds itself out to serve all within that class indiscriminately,” citing United States
Telecom Ass'n v. FCC, 295 F.3d 1326, 1329 (D.C. Cir. 2002)).
In sum, Petitioners assert that the Dakota Access pipeline is not a public use, but in both
Iowa Code Section 479B.16 and Section 6A.22(2), the legislature has declared a pipeline like
Dakota Access to be a public use. With respect to Section 479B.16, Petitioners attempt to argue
it is unconstitutional, but that argument fails for the reasons set forth below. With respect to
6A.22(2), Petitioners do not even challenge its constitutionality – which alone is fatal to their
argument that Dakota Access is not a public use. Because Petitioners’ fail to demonstrate why
the Board should substitute its judgment for that of the legislature, Petitioners’ argument that the
Dakota Access pipeline is not a public use necessarily fails.
b.

The Board Should Reject Petitioners’ Invitation to Follow
an Inapplicable Illinois Case and a Dissenting Opinion
from the U.S. Supreme Court; The Iowa Supreme Court
and U.S. Supreme Court have Already Addressed the
Arguments Petitioners Advance and Should be Followed
by this Board.
i.
Petitioners’ Reliance on SWIDA is Misplaced because
SWIDA is Distinguishable and Contrary to Iowa Supreme Court
Precedent.

In support of their argument that Iowa Code § 479B.9 and Iowa Code § 479B.16 should
be declared unconstitutional, Petitioners rely on Southwestern Illinois Development Authority v.
National City Environmental, L.L.C., 768 N.E.2d 1 (Ill. 2002) (hereinafter, “SWIDA”). The
distinguishability of SWIDA is apparent from the outset – that case involved a quick-take 20of the
entire property for the expansion of a parking lot adjacent to an automotive racetrack. It did not
involve, as this case does, the taking of limited underground easements for the installation of a

20

A “quick-take,” is an expedited procedure authorized by statute in many states whereby the condemning authority
is able to take possession of the property and begin its improvement before the issue of just compensation for the
taking is determined. It is not a procedure used in Iowa law.

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linear energy infrastructure project following a contested case proceeding before the expert
agency and a condemnation process dictated by Iowa statute. Of critical importance, the entire
statutory scheme at issue in SWIDA is entirely different from that in Iowa, and that distinction is
dispositive here. SWIDA is neither binding on nor relevant to the decision before this Board.
The alleged benefits of the parking lot in SWIDA were also generic – general economic
development, the elimination of blight, and promotion of public safety. The Court did not, as
Petitioners suggest, rule that the taking was unconstitutional because a private entity was going
to use the property. Rather, the Court found that the generic benefits asserted by SWIDA were
minimal, and that the procedure used by SWIDA was not consistent with its mission mandated
by the legislature. The Court held,
While the activities here were undertaken in the guise of carrying out its legislated
mission, SWIDA's true intentions were not clothed in an independent, legitimate
governmental decision to further a planned public use. SWIDA did not conduct or
commission a thorough study of the parking situation at Gateway. Nor did it formulate
any economic plan requiring additional parking at the racetrack. SWIDA advertised that,
for a fee, it would condemn land at the request of “private developers” for the “private
use” of developers. In addition, SWIDA entered into a contract with Gateway to
condemn whatever land “may be desired by Gateway.” Clearly, the foundation of this
taking is rooted not in the economic and planning process with which SWIDA has been
charged. Rather, this action was undertaken solely in response to Gateway's expansion
goals and its failure to accomplish those goals through purchasing NCE's land at an
acceptable negotiated price. It appears SWIDA's true intentions were to act as a default
broker of land for Gateway's proposed parking plan.
Id. at 10.
Nothing about SWIDA is similar to this case. Dakota Access is not a government entity
that simply declared some generic benefits and executed a quick-take of Petitioners’ property
without further process. Dakota Access engaged in an 18-month contested case proceeding
before the Board. Consistent with the legislature’s mandate, it followed a process that began in
October 2014 with materials being sent to landowners in advance of required county
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informational meetings, and included numerous reviews of the project by the Board’s technical
staff, the filing of thousands of comments in support of and opposed to the pipeline, filing of
thousands of pages of testimony and exhibits, and a hearing that began November 12, 2015 and
ran into early December, generating an approximate 3,500 page transcript.
In the Board proceeding, Dakota Access submitted thousands of pages of exhibits and
testimony from expert witnesses, including safety experts, rail transport experts, energy
economists, engineers, soil scientists, and others. Based upon the extraordinary record before it,
the Board found that Dakota Access would create numerous tangible benefits, including
approximately $800 million in economic benefits during construction, the creation of new jobs
and tax revenues, enhancements to the nation’s energy security, improvements to public safety
by minimizing the amount of North Dakota oil from being transported through Iowa (and
elsewhere) on trains and trucks, the potential for decreased rail congestion for grain shipments,
and others. The Board issued a thorough, 174 page Final Order in which it laid out all the
arguments for and against the project, and determined that the project promotes the public
convenience and necessity based upon the evidence.
Following the Board proceeding, Dakota Access undertook the process prescribed by the
legislature in Chapter 6B. Its condemnation applications were approved by the Chief Judges of
the Districts for each county in which condemnation was sought. Those Chief Judges appointed
compensation commissions to preside over the hearings and determine just compensation.
Dakota Access obtained denials of motions for stay and dismissal of five separate cases filed by
landowners represented by the same counsel representing Petitioners herein, seeking to stay their
condemnation hearings on the same arguments presented here. In sum, the Board did not, as

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Petitioners’ suggest, simply refer to some generic benefits, disregard procedure, and “act as a
default broker of land” for Dakota Access.
The Connecticut Supreme Court noted SWIDA’s distinguishability on a similar basis in
an opinion later affirmed by the United States Supreme Court. See Kelo v. City of New London,
843 A.2d 500, 535 (Conn. 2004), (“In our view, the facts of Southwestern Illinois Development
Authority merely demonstrate the far outer limit of the use of the eminent domain power for
economic development. Indeed, that decision did not strike the statute allowing the agency to use
eminent domain; it merely assailed the agency's exercise of that power within a particularly
egregious set of facts.”), aff'd sub nom. Kelo v. City of New London, Conn., 545 U.S. 469 (2005).
At the end of the day, a pipeline carrying oil that the United States economy is highly
dependent on – that fuels combines and other farm equipment as well as fire trucks and
ambulances, that heats homes, that is a comp 21onent of everyday materials and specialized
chemicals – is not the same as a parking lot next to a racetrack, or even the commercial and retail
uses in Kelo. The United States Department of Homeland Security considers pipelines (but not
parking lots or office buildings) “critical infrastructure” – again, this is strong evidence that such
pipelines serve a public purpose.
Accordingly, because SWIDA is clearly distinguishable and contrary to Iowa statutes and
Iowa Supreme Court precedent, as well as United States Supreme Court precedent discussed
below, the Board should reject Petitioners’ argument that the holding of SWIDA should be
followed in the present case.

21

See https://www.dhs.gov/transportation-systems-sector (“Pipeline Systems consist of more than 2.5 million miles
of pipelines spanning the country and carrying nearly all of the nation's natural gas and about 65 percent of
hazardous liquids, as well as various chemicals.”)

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ii.
The Majority Holding of Kelo is Applicable to this Case,
and Justice Kennedy’s Concurrence is Part of that Majority
Holding.
Petitioners cannot decide whether Kelo is applicable or not. On the one hand, Petitioners
suggest this case is similar to Kelo because according to them, it involves “economic
development.” On the other hand, Petitioners argue that the facts of Kelo render it
distinguishable from this case, and therefore the “majority opinion in Kelo is irrelevant.”
However, Petitioners then suggest that Justice Kennedy’s concurrence and the dissent remain
relevant. In sum, Petitioners would like to pick and choose some things about Kelo they would
like this Board to apply, but certainly not the part that actually became law – the majority
opinion. The amount of bizarre mixing and matching of elements of Kelo, and exclusion of the
Court’s actual majority opinion, only further demonstrates the weakness of Petitioners’
constitutional arguments. In the end, contrary to Petitioners’ request this Board does not have
the option of adopting the Kelo dissent. This Board is required to follow the majority holding of
the United States Supreme Court. The Petitioners spend several arguments and nearly ¼ of their
Brief arguing from the Kelo dissents and concurrences – which only highlights that actual, valid,
current law does not support their position.
Petitioners are correct about one thing – the facts of Kelo are not similar to the facts of
this case. In Kelo, an economic development corporation took entire residences in order to
transfer them to a real estate developer who would build office, retail, and hotel buildings on the
property. Kelo v. City of New London, Conn., 545 U.S. 469, 474 (2005). Here, Dakota Access is
a common carrier taking limited easements for building an underground pipeline to transport
crude oil (which the evidence before the Board demonstrated that Iowans consume more of on a
per capita basis than 44 other states). It is doing so following the Board’s Final Order, which

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found numerous benefits to the state and beyond. In Kelo, the United States Supreme Court
approved an extensive taking based solely on economic development.
Petitioners argue that the “majority opinion in Kelo has been statutorily pre-empted by
the Iowa legislature” is also incorrect. To be clear, Petitioners are correct that the 2006
Amendments appear to be intended to place limitations and establish a framework for when
economic development and efforts to eliminate slum or blighted conditions may constitute a
public use. Unfortunately for Petitioners, as pointed out above, at the same time the legislature
enacted the 2006 amendments, it made sure to provide that projects like the Dakota Access
pipeline are exempted from those limitations. When the legislature enacted Section 6A.22 to
place limitations on the use of eminent domain, it also amended Code § 6A.21(2) to broaden the
exception applicable to companies like Dakota Access. In addition, in enacting Section 6A.22
itself, the legislature chose to expressly define public use to include takings by common carriers
like Dakota Access. Iowa Code § 6A.22(2)(a) (“‘Public use’ [or] ‘public purpose’. . . means one
or more of the following: . . . The acquisition of any interest in property necessary to the function
of a public or private utility, common carrier, or airport . . . .”).
Petitioners further argue that “although he joined the majority opinion, [Justice
Kennedy’s] concurrence places sharp limits on the majority opinion.” Petitioner’s Brief at 32.
Quite to the contrary, Justice Kennedy expressly noted that he was not declaring any more
demanding standard or limit, noting, “This is not the occasion for conjecture as to what sort of
cases might justify a more demanding standard…” Id. at 493. More to the point, acknowledging
that Justice Kennedy joined the majority opinion admits that whatever “limits” Justice Kennedy
purportedly proposed, the taking based solely on economic development in Kelo was within

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those limits. The present taking by Dakota Access is by a common carrier, and is based upon
economic, safety, and energy security benefits, among others.
Petitioners’ argument regarding Justice Kennedy’s concurrence is also circular, because it
falls back on Petitioners’ own arguments regarding their interpretation of Iowa statutes and their
disagreement with the decision reached by the Board on the evidence presented at hearing.
Petitioners’ argue that the taking by Dakota Access is unconstitutional under Justice Kennedy’s
concurrence because the IUB’s decision that pipelines are a safer mode of transport is
“pretextual,” and that its consideration of economic benefits is improper because it “statutorily
cannot consider” them. As set forth above, the statute regarding consideration of economic
benefits does not apply in this case (and does not say what Petitioners wish it said), and
Petitioners disagreement with the Board’s conclusion based on the evidence it heard falls
woefully short of requiring reversal under the substantial evidence standard. Accordingly,
Petitioners’ suggestion that the taking involved in this case is unconstitutional under Justice
Kennedy’s concurrence (and that the majority opinion of the United States Supreme Court
should be disregarded altogether), is without merit.
iii.
Petitioners Suggestion that this Board Should Disregard
the Majority Holding of Kelo but Follow its Dissent under the
Iowa Constitution is Without Merit and is Contrary to Iowa
Supreme Court Precedent.
Petitioners’ Brief speaks in platitudes about why this Board should adopt the Kelo
dissent. It must, because the Kelo dissent is not the law. Further, Petitioners’ argument ignores
the context of Kelo – the taking of peoples’ homes based solely on economic development. As
noted above, this case involves a taking for purposes of building an interstate energy
infrastructure project, which four separate state regulatory agencies, including the Board, have
found will benefit the residents of their state and the country. And, again, it cannot be ignored

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that the majority decision determined that the taking in Kelo was consistent with the
Constitution.
More to the point, Petitioners’ invitation to this Board to “stand as the protector of the
equal rights of all Iowans” (Petitioners’ Brief at 38) by disregarding U.S. Supreme Court law in
favor of vague language in a dissenting opinion would turn legal reasoning upside down and be
in clear disregard of the Iowa Legislature’s plain instructions and prior pipeline cases at the Iowa
Supreme Court. In addition to the legislature’s clear definitions in Iowa Code § § 479B.16 and
6A.22(2), the Iowa Supreme Court has considered whether a pipeline company may condemn
private property consistent with the Iowa and U.S. Constitutions, and indicated that it can if it is
a common carrier, like Dakota Access. In Mid-American Pipeline I, the Iowa Supreme Court
ruled against a finding of public use for two reasons – which are instructive and both of which
are notably absent here. Mid-America Pipeline Co. v. Iowa State Com. Commn., 114 N.W.2d 622
(Iowa 1962). First, the Board had not made any determination of the public convenience and
necessity, an oversight since cured by statute. See Iowa Code § 479B.9. 22
The other, and more critical in this case, was that “Northern [Gas] intends to handle only
its own products by pipeline and is not a common carrier of such products.” Mid-American
Pipeline I, 114 N.W.2d at 624. As a result, the court held that the pipeline was a “strictly private
purpose and use.” Id. The Board has had opportunity to interpret Mid-American Pipeline I and
followed the logical reading: that a pipeline contemplated by the legislature is a private use
where “such pipeline company intends to transport only its own products in the pipeline.” In re
The Petition of Northern Pipeline Company of Delaware, Inc. (“Northern Pipeline”), Docket P-

22

This requirement was subsequently noted in dicta to be potentially unconstitutional in Mid-American Pipeline II.
See Mid-American Pipeline Co. v. Iowa State Com. Commn., 125 N.W.2d 801, 803 (Iowa 1964).

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749, “Order Granting Pipeline Permit and Vesting the Company with the Use of the Right of
Eminent Domain” at 16 (IUB, May 31, 1979).
We have found the common carrier status of the N.P.L means that potential thirdparty shippers have the right to demand and receive service. N.P.L holds itself
out to serve the shipping public indiscriminately. It will have adequate capacity
to do so. The fact that potential third-party shippers are few in number does not
detract from the public use aspect as supported by the authorities cited on brief
and out prior decisions. Thus the “public occupation” test referred to. . . by the
first Mid-America case has been met.
Northern Pipe Line, P-749 at 18. The evidence shows that the same is true in the present case.
Here Petitioners never claim – and they cannot -- that Dakota Access carries product only for
itself. In fact some Petitioners have conceded before another state court that Dakota Access is a
common carrier.
The Board’s decisions – both its precedent in Northern Pipe Line, and its current Final
Order granting eminent domain to Dakota Access – are particularly important because, as the
Iowa Supreme Court has stated, “the legislature intended to entrust the Board with the decision
whether a public use existed.” South East Iowa Co-op Elec. Ass’n v. Iowa Utils. Bd., 633 N.W.2d
814, 819-20 (Iowa 2001) (discussing eminent domain under Iowa Code chapter 478, but citing
prior Board pipeline dockets as finding economic benefits as sufficient grounds for a pipeline
permit). That is, constitutional law states that the Legislature in the first instance can determine
what is a “public use” that allows a taking; the Iowa Supreme Court has then permitted the
Legislature to delegate that authority to an expert agency like the Iowa Utilities Board.
Accordingly, the holding of the Board in its Final Order (at pp. 114-121) is entitled to the
presumption of constitutionality.
As set forth above, “Courts should not substitute their judgment for the legislature’s
judgment as to what constitutes a public use unless the use is palpably without reasonable
foundation.” CMC Real Est. Corp. v. Iowa Dept. of Transp., 475 N.W.2d 166, 169 (Iowa 1991).
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In addition, “Legislation calling for condemnation enjoys the same presumption in its favor as
when the constitutionality of [any other] statute is challenged.” Milligan, 230 F.3d at 859 (citing
Abolt v. City of Ft. Madison, 108 N.W.2d 263, 268 (Iowa 1961)). Petitioners’ arguments fail to
provide any reason, let alone a sufficient one, for why the Board should ignore its legislative
mandate and substitute its judgment for the judgment of the legislature in Section 479B.16.
Perhaps more importantly, Petitioners do not even challenge the constitutionality of Section
6A.22(2) – which provides that the acquisition of property by a common carrier, like Dakota
Access, is a public use. Petitioners’ failure to challenge 6A.22(2) is alone fatal to their
arguments. Accordingly, Petitioners have no likelihood of success on the merits of their
arguments that the Board’s granting of eminent domain or Dakota Access’s exercise of that
power is unconstitutional.
In the end, the “public use” test is not nearly as stringent a requirement as the Petitioners
seek to suggest. As the Board is aware, private companies have long used eminent domain – it is
central to how critical networks of utilities infrastructure have been developed, particularly rural
or interstate services. See, e,g., S.E. Iowa Co-op Elec. Ass’n. 633 N.W.2d 814. Such
infrastructure development has long been considered a “public use” except where it is solely for
the transport of product for the private use of the owner. Here, the Board has made findings that
the Project – which serves numerous shippers as a common carrier – provides both energy as
well as economic, safety, and energy security benefits to Iowans and the public generally.
Therefore, following the statute and authorizing use of eminent domain in this case was
Constitutional.

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B.

Petitioners’ Motion Should be Denied because Petitioners cannot
Demonstrate Irreparable Harm.

In support of their irreparable harm argument, Petitioners argue that they will suffer
irreparable harm because (1) they have a due process right to be heard on their challenge to the
condemnation before Dakota Access takes possession of their properties; and (2) their interest in
their property is “unique,” and therefore the harm they could suffer is “irreparable.” Neither of
Petitioners’ arguments satisfy the irreparable harm test. Petitioners have had, and continue to
have adequate remedies – they’ve just chosen not to utilize them or to utilize them appropriately
(even when required to do so, and even when reminded by multiple courts).
As a threshold matter, Petitioners argue that the Board should grant their requested stay
“until such time as petitioners can exercise their constitutional right to be fully heard in
challenging Dakota Access’s proposed condemnation of their land,” and that “Petitioners will
suffer irreparable harm if Dakota Access is allowed to condemn their land before they can fully
and finally litigate their several challenges to Dakota Access’s eminent domain authority.”
(Petitioners’ Brief at 40, 41). As noted above, this argument is moot – Dakota Access has
already condemned and taken possession of all other Petitioners’ properties. Thus, the
Petitioners cannot claim they will suffer irreparable harm if they’re condemned, because they
already have been condemned. Further, Petitioners’ suggestion that a stay in this case is
necessary because they will be deprived of their due process rights or because they have a
“unique” property interest that will be lost if not allowed to litigate their claims is disingenuous.
Due process does not guarantee a party that their claims will be heard or that they will be
decided favorably to that party; it guarantees a party an opportunity to be heard. Blumenthal Inv.
Trusts v. City of W. Des Moines, 636 N.W.2d 255, 264 (Iowa 2001) (“The requirements of
procedural due process are simple and well established: (1) notice; and (2) a meaningful

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opportunity to be heard.”). Thus, a party whose claims were heard but decided adversely to that
party, or a party who was provided an opportunity to be heard and failed to utilize that
opportunity cannot claim to have been deprived of due process. Unfortunately for Petitioners,
that is precisely the case for them.
Pursuant to the processes outlined in Chapters 479B and 6B, Petitioners were first
provided notice of county informational meetings in the fall of 2014, and were again provided
notice of the Board’s hearing. Petitioners cannot argue that they were deprived of an opportunity
to be heard – many of the Petitioners were formal intervenors in the Board proceedings,
presented extensive testimony and other evidence at hearing, and filed post-hearing briefs.
Moreover, a group of the Petitioners, represented by the same counsel representing Petitioners
herein, filed a post-hearing Brief presenting the very constitutional claims they advance here.
Those Petitioners who chose to exercise their right to be heard did present their
constitutional arguments to the Board 23, and the Board addressed those arguments in the Final
Order. In analyzing those arguments, the Board noted that “if a case can be resolved on
statutory grounds, the Court w[ill] not reach constitutional arguments” 24 and that, “[i]n
determining whether a taking by eminent domain satisfies the public use requirement, courts will
defer to the wisdom of the legislature.” Final Order at 118 (quoting Kelo, 545 U.S. at 487 – 88).
The Board concluded that because the Iowa legislature in Code Section 479B.16 required that
the Board “shall” grant eminent domain authority to a pipeline company issued a permit, its
action was constitutionally sound. In short, Petitioners were not deprived of an opportunity to be

23

Dakota Access notes that those Petitioners were already extended additional process, as the Board allowed them
to intervene after the deadline to do so.

24

Petitioners claim that every eminent domain case requires a Constitutional analysis – but they cite absolutely
nothing for this absurd proposition. The Board correctly identified the mandate from the Iowa Supreme Court to
avoid Constitutional issues where possible; the plain language of § 479B.16, § 6A.21 and § 6A.22 makes that simple
in this case.

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heard before the Board – some of them simply failed to exercise that opportunity, and the
remainder were heard and their arguments were rejected.
In addition, in the nearly two years that Petitioners have had to file a declaratory
judgment action regarding the constitutionality of § 479B.16, they’ve failed to do so. Similarly,
in the approximately five months since the Board’s Final Order was issued, they’ve failed to
seek a stay from the agency. Instead, although they had previously been reminded by the Iowa
District Court for Cherokee County that they must follow the procedures outlined in Iowa Code
Chapter 17A, see Lamb at 8-9, Petitioners attempted to collaterally attack the Board’s Final
Order, in several separate actions, relying on the same arguments they present here.
The first of the courts to address those arguments for a second time rejected the
petitioners’ arguments, denied their Motion for Stay, and dismissed their case, finding that the
IUB had jurisdiction and the parties must seek relief, if any, under Chapter 17A. 25 Weeks later,
the Calhoun County Court rejected petitioners’ arguments, denied their Motion for Stay, and
dismissed their case on the same basis that Judge Whittenberg dismissed the Johnson case in
Cherokee County. In addition, in the roughly three months since Petitioners began being served
with notices of their compensation commission hearings, they’ve failed to bring a certiorari or
other appropriate action to challenge Dakota Access’s eminent domain authority. 26
In short, Petitioners have not been denied an opportunity to be heard. They have had an
opportunity to bring a declaratory judgment action regarding the constitutionality of § 479B.16

25

See Johnson v. Dakota Access, LLC, Ruling on Petitioners’ Application for Supplemental Relief and Respondent’s
Motion to Dismiss, Cherokee Case No. EQCV024957 (June 13, 2016). (Attached as Attachment C).

26

As set forth above, some Petitioners did bring actions to challenge Dakota Access’s condemnation authority.
However, instead of bringing them via certiorari or judicial review under 17A, seeking a stay from the agency, or
seeking a stay from this Board, they chose to attempt to collaterally attack the Final Order without proceeding under
Chapter 17A and their cases were therefore dismissed. Petitioners’ choice to gamble on a procedure that had a slim
chance of winning given the plain language of Section 17A.19’s “exclusive remedy” provision is not equivalent to
being deprived of an opportunity to choose one of the proper methods for seeking relief.

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for more than two years; they were provided an opportunity to participate in the Board
proceeding and many of them participated extensively in that proceeding; they had the right to
file a motion for rehearing and/or reconsideration and failed to do so; they have had the right to
challenge their condemnation proceedings by certiorari or other appropriate means under Iowa
law for more than three months; they have had a right to seek a stay from the agency for more
than five months and have chosen to ignore the requirements of Iowa law and instead file
motions for stay in various state courts, all of whom have denied their Motions. As the latest of
those courts to deny the request for stay put it:
The court understands that petitioners are worried about Dakota clearing and trenching
their land prior to having a hearing. Their claim boils down to due process. However,
they must follow process too. Process is important and is in place for a reason. The
legislature established a specific protocol that parties can use to request a stay. Petitioners
did not comply with that protocol. They cannot skip a step in the process and now claim
justification by an emergency. Any emergency is of their own making.
Polk County Order at 8. Nonetheless, the Board is giving them yet another opportunity in this
hearing on the Motion for Stay.
Accordingly, Petitioners’ claim that they have not had an opportunity for their arguments
to be heard is without merit, and does not constitute irreparable harm supporting the issuance of
a stay.
Further, Petitioners’ argument that they will suffer irreparable harm because their
property interest is “unique” is also without merit. To the contrary, the Iowa Supreme Court has
previously held that money damages can be a sufficient remedy –in a case where the damage was
the presence of an underground pipeline – and therefore can preclude irreparable harm. In
Nichols v. City Of Evansdale, 687 N.W.2d 562, 572 (Iowa 2004), the City conveyed property to
Nichols without reserving any easements for existing underground sewer mains on the property.
When Nichols was later unable to erect a home on the portion of the property under which the

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sewer mains ran, he brought suit against the city requesting, among other relief, injunctive relief
requiring the city to relocate the sewer mains. On appeal, the Supreme Court rejected Nichols’
request for injunctive relief, finding, “[f]oremost, the Nichols can be adequately compensated by
damages.” Id. at 572.
Similarly, the Iowa Supreme Court has upheld the denial of a temporary injunction in
cases involving the potential for far more invasive actions regarding property. In Lewis
Investments, 703 N.W.2d 180, the City declared the plaintiff’s residential property a public
nuisance and initiated condemnation proceedings. The Iowa Supreme Court described the
background facts, which are similar to those involved here, as follows:
After an unsuccessful attempt by the city to purchase the property, the city filed a
condemnation application on June 5, 2003. Prior to the condemnation hearing scheduled
for August 26, 2003, Lewis filed an application in the district court to enjoin the hearing.
The plaintiff disputed that the property was a public nuisance. Specifically, Lewis argued
that before a city may condemn property as a public nuisance, the city must offer the
property owner an evidentiary hearing before an independent body to determine whether
the property is actually a public nuisance. The district court denied Lewis's request for a
temporary injunction…
Subsequently, the condemnation hearing was held, and the compensation commission
awarded Lewis $259,500 for the property. On September 10, 2003, the city deposited a
check in this amount with the sheriff. Since that date, the city has cleaned up the property
and secured the premises in anticipation of selling the property. Lewis appealed the
condemnation award to the district court.
Id. at 182 – 83.
The Iowa Supreme Court affirmed the District Court’s refusal to grant a temporary
injunction, finding that Lewis could not demonstrate irreparable harm because he had an
adequate remedy at law to challenge the City’s action – a certiorari action. Thus, in Lewis the
Court found that taking an entire residential property did not constitute irreparable harm and
should not be enjoined. It is therefore difficult to imagine how the taking of an underground

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easement across an agricultural property in this case – where post-construction the Petitioner still
owns and can farm the land – amounts to “irreparable” harm.
Finally, to the extent Petitioners may be claiming that the construction itself will result in
irreparable harms to the land, that is also not a valid argument. First, absent some foundation
that Petitioners are experts in soil science or construction, what they subjectively believe about
impacts to the soil and drain tile is not evidence. The Iowa Utilities Board, as the expert agency,
has determined that harms to the land from pipeline construction can be – and are required to be
– fully mitigated. In its Administrative Rules, the Board has required drain tile, for example,
when cut to place a pipeline, to be repaired “to its original or better condition.” See 199 Ia.
Admin. Code § 9.4(2)(d). 27 This obviously presumes that such repair is possible – and much of
Chapter 9 of the Board’s Rules provides precise requirements for how that can be done (as well
as how soils are to be handled to avoid harms). These rules, promulgated by the Board pursuant
to legislative mandate (see Iowa Code § 479B.20), were based on a formal process for taking of
evidence and expert input, which was then reviewed by the Board’s expert staff. These rules
provide specific requirements for removal, separation, and storage of topsoil and subsoil,
backfilling procedures, temporary and permanent repair of drain tile, restoration of compaction
and rutting, and restoration of terraces, waterways, and other erosion control devices, among
other requirements. See generally, 199 Iowa Admin. Code § 9.4.
Furthermore, before determining that the Dakota Access pipeline would serve the public
convenience and necessity, the Board heard hours of testimony from engineers, soil scientists,
and expert witnesses on drain tile (among other witnesses) regarding the repair and restoration of
agricultural land and drain tile systems. Following those hours of testimony, the Board issued its

27

Https://www.legis.iowa.gov/docs/iac/chapter/05-25-2016.199.9.pdf

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Final Order requiring Dakota Access to submit a detailed Agricultural Impact Mitigation Plan
(AIMP) whose entire purpose is to fully mitigate the impacts of installation of the pipeline. In
this case, not only is any impact on the land reparable, it will be repaired both physically – as
Dakota Access is required to do under the Final Order and the AIMP, but also financially
through a payment of just compensation for the easement and for any damages to crops or
productivity under both Iowa Code §§ 479B.17, 479B.20, 479B.29 and 479B.30 and 199 Iowa
Admin. Code Chapter 9. In addition, both before the Board in the hearing in this docket and
before Judge Farrell the Petitioners conceded that their properties all have extensive tile systems;
they cannot both argue that their soils have been developed over 1000 years and will be harmed
by disturbance and that they have recently installed an extensive network of drain tiles at varying
depths. Those arguments are inconsistent. This is a particularly bad case in which to make an
argument for irreparable harm; pipeline construction is heavily regulated specifically to avoid
where possible and remediate where necessary any harms that occur.
Finally, Petitioners use the term “unique” to describe their land, but make no effort to
demonstrate what is unique to these particular parcels. The failure to do so is fatal to their claim
for irreparable harm; they are harmed no differently than any other parcel where the statute and
rules presume that the harms can be fully mitigated.
Accordingly, Petitioners’ Motion must be denied for the additional reason that they
cannot demonstrate irreparable harm.
C.

The Issuance of a Stay Causes Extreme Harm to Dakota Access and Other
Parties to the Proceeding.

As set forth in the affidavit of Joey Mahmoud 28, delay in construction or requiring
Dakota Access to “move around” Petitioners’ parcels will cause extreme financial harm to
28

Attachment G.

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 Filed with the Iowa Utilities Board on August 24, 2016, HLP-2014-0001

Dakota Access. Construction of this massive infrastructure project is already approximately
50% complete, and Dakota Access has already begun construction activities on nearly every
parcel in Iowa, including most of Petitioners’ parcels. (Mahmoud Aff. at ¶¶ 7, 10). Pursuant to
Dakota Access’s contracts with its general contractors, for days during which no construction is
taking place due to delays, the cost to Dakota Access is approximately $1.3 million per day.
(Mahmoud Aff. at ¶11; Rooney Aff. 29 at ¶ 5). In addition, if construction is stayed on
Petitioners’ parcels and Dakota Access is therefore not able to construct according to its
schedule, Dakota Access’s only other alternative is to move around the parcels owned by the
Petitioners. The cost to Dakota Access for each such move is approximately $535,000.
(Mahmoud Aff. at ¶ 15; Rooney Aff. at ¶ 4). Finally, Dakota Access has entered into agreements
with nine shippers who have agreed to utilize the pipeline to ship crude oil. Each day of delay
results in an additional day during which the Project is not yet operational, and Dakota Access
loses the revenues that would have been generated by shipping customer product during that day.
(Mahmoud Aff. at ¶ 16). Shippers need to know and be able to rely on the availability of
shipping; the cost of delay in the in-service date is $83.3 million per month. Id. These are
objective facts based in contractual arrangements – not mere beliefs.
In sum, granting the injunctive relief requested by Petitioners will very likely cause
millions of dollars – if not hundreds of millions of dollars – to Dakota Access. This is
considerably more than the value of the narrow strip of Petitioners’ land that Dakota Access
seeks to access. That construction is nearly 50% complete makes very real the potential for
substantial damages to Dakota Access if timely construction on parcels that have already been
acquired is delayed or stopped.

29

Attachment H.

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 Filed with the Iowa Utilities Board on August 24, 2016, HLP-2014-0001

Moreover, Petitioners’ choice to delay their request for stay makes it all the more likely
that Dakota Access will suffer significant expenses related to delay, as it leaves Dakota Access
with no ability to overhaul its construction schedule at this point to avoid Petitioners’ parcels. As
Judge Farrell pointed out in denying Petitioners’ Motion for Stay,
The only factor that has changed since the board's March 10, 2016, decision is the factor
regarding the impact a stay may have on Dakota... the only reason this factor has changed
is due to petitioners' failure to file a motion for stay before Dakota started any work. If it
had filed a motion in March or April or May before any work was done, Dakota's interest
would be the same as it was during the course of the hearing process before the board.
Polk County Order at 6 – 7.
Instead, Petitioners intentional delay only exacerbates the harms to Dakota Access, who
cannot now alter its construction schedule to avoid arriving at the Petitioners’ properties during
the pendency of judicial review and incurring the substantial costs to move around those parcels.
Petitioners’ argument that the Board should not consider harms to Dakota Access is
without merit and contrary to law. Board Rule 7.28 and Iowa Code § 17A.19(5) require the
Board to consider and balance “The extent to which the grant of relief to the applicant will
substantially harm other parties to the proceedings,” and Petitioners cite no authority whatsoever
for their argument that the Board can permissibly ignore that statutory factor when it comes to
harm to Dakota Access and other parties in this case.
The harms resulting from a stay do not stop with Dakota Access, either. As reflected in
the affidavits of union officials accompanying this resistance 30, a stay or delay in construction
causes hardship to other Iowa farmers, as well as to the contractors, tradesmen, laborers, and
others engaged to work on the project. Dakota Access began construction in Iowa in June of
2016. Based upon that starting date, construction is likely to last into late October or November
of 2016. (Mahmoud Aff. at ¶ 12). Any further delay of the start of construction – an inevitable
30

Attachments I, J, and K.

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result if the currently scheduled compensation commission hearings are enjoined and required to
be re-scheduled at a much later date, is highly likely to push required construction activities into
the winter months, making construction in the winter very likely and the execution of final
grading and restoration into the spring of 2017 very likely. Id. Such a delay would result in
impacts to a second growing season in Iowa, which potentially harms not only the landowners
involved in this proceeding, but many other landowners in the county and the state that have
entered into voluntary easements with Dakota Access and desire to have the construction process
limited to one growing season. Id.
A stay or delay of construction will also cause significant hardship to the thousands of
workers who make a living through their work on the project. Each day of wages is critically
important to these men and women and their families, and the prospect of delaying or staying
work altogether on the project subject them and their families to extreme financial harm. (Maher
Aff. at ¶ 13; Davis Aff. at ¶¶ 8, 12; Gross Aff. at ¶¶ 6, 9). Beyond wages, the workers rely upon,
and require a steady number of hours of work to remain eligible for health and retirement
benefits, which they stand to lose if work on the project is stopped. (Maher Aff. at ¶¶ 16 – 17;
Davis Aff. at ¶¶ 4 – 7; Gross Aff. at ¶ 8). If the work is stopped, layoffs are inevitable, and
because these workers accepted an opportunity to work on the DAPL project, many of the
opportunities to work on other projects have since passed. (Maher Aff. at ¶¶ 11, 14).
In sum, a stay of construction will cause extreme harm not only to Dakota Access, but
also to other Iowa farmers and landowners, and to the men and women (and their families) that
rely on the construction work on the project to continue to earn a living. These harms to the
other parties to this case are real and potentially devastating. As set forth below, a stay of
construction also harms the general public.

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D.

Petitioners’ Motion Should be Denied because the Public Interest Supports
Denial of the Stay.

The Board has already considered the public interest, and decidedly found that the
building of the Project is in the public interest. The numerous benefits in Iowa and beyond –
energy, economic activity, safer transport of oil – are established by the Board’s Final Order. A
stay of construction denies the public those benefits. This includes the nearly $1 billion in short
term economic benefits within the state of Iowa, substantial long term economic benefits to the
state itself in the form of property taxes, and the influx of thousands of short term jobs.
As set forth in the Affidavits of Maher, Davis, and Gross, Iowa workers and Iowa
communities are already experiencing some of the positive economic benefits of the project.
Thousands of workers, including workers from local union halls, are employed on the project,
and workers who have traveled to work on the project are spending large sums in local
communities for lodging, food, recreation, and entertainment. (Davis Aff. at ¶ 9; Gross Aff. at ¶¶
6, 11; Maher Aff. at ¶¶12, 15).
The public interest benefits found by the Board – economic benefits to the state in the
form of thousands of jobs, economic stimulus in local communities, and tax revenues;
enhancements to our national energy security provided by the project; and the safety benefits to
Iowans and others in the region from transporting oil by pipeline rather than rail, are important
and well-supported. Petitioners set forth no reason for why the Board should now reverse course,
and deprive the public of those benefits by issuing a stay of construction that threatens the
project.

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E.

Although the Board Should not Reach the Issue, if a Stay is Issued
Petitioners Should be Required to Post a Bond.

The Iowa Supreme Court has held that where a party seeks a stay of agency action which
creates the potential for substantial financial harm to other parties to the proceeding, a bond must
be required. In Teleconnect Co. v. Iowa State Com. Commn., 366 N.W.2d 511, 512–13 (Iowa
1985), the Iowa State Commerce Commission, through a rule-making proceeding pursuant to its
statutory authority, enacted rules requiring all intrastate long distance carriers to pay set access
charges to local operating companies in order to compensate for their cost of providing long
distance access. Teleconnect was a reseller of long distance service in Iowa and was therefore
subject to the rules, which would require it to pay access charges. Following the rulemaking
proceeding, Teleconnect filed a petition for judicial review under Chapter 17A, and requested
that the district court stay the effective date of the rules as applied to Teleconnect, while it
litigated whether the rule change was appropriate.
The district court granted the stay without requiring Teleconnect to post a bond. On
interlocutory appeal, the Iowa Supreme Court reversed, and found that the district court erred in
not requiring a bond. Specifically, the Court held,
Secondly, the stay was issued without bond. We think a bond should have been required.
With substantial sums accumulating under the access charges ordered, those companies
to whom they would be due deserve the protection of suitable bond. Such an undertaking
before issuance of a stay should be required in these circumstances in the same manner as
for an injunction under Iowa R. Civ. P. 327.
Id. at 514.
The same is true here. If the Board were to grant Petitioners a stay, Dakota Access is
likely to lose millions, if not hundreds of millions of dollars. Therefore, just as in Teleconnect,
Dakota Access “deserve[s] the protection of a suitable bond.” This is particularly true where, as
here, the stay was issued without the benefit of a hearing or any consideration of the four

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statutorily-mandated factors. See, e.g., Iowa R. Civ. P. 1.1508 (requiring a bond of 125 % of the
non-movant’s potential losses as a condition to issuing a temporary injunction).
Accordingly, in order to protect Dakota Access from the extreme losses caused by the
elimination of its present possessory right to the properties at issue – for which the State may
ultimately be liable if the Petitioners’ cannot cover the loss – without a hearing and outside the
Board’s own rules, the Petitioners should be required to post a suitable bond.
CONCLUSION
Petitioners seek an expedited, extraordinary remedy to address a timing issue that is
solely of their making. Their inexcusable delay alone would be reason to deny a stay, and it has
increased the likelihood of harm to Dakota Access. Even more problematic, Petitioners claims
are moot. In the end, however, the most important reason to deny the stay is that Petitioners
simply cannot meet the required factors. Requests for stays of condemnation and construction
have already been denied by various Iowa courts a half-dozen times; the time for appeals have
run on all of those decisions. Petitioners have no likelihood of success on the merits. The
Board’s Final Order is entitled to substantial deference on a complex matter placed solely in its
purview by the legislature, and the Final Order is thorough, well-reasoned, and based on an
extraordinary record. It has been re-examined on Reconsideration, through the Compliance
Process, and in determining the start of construction. Petitioners have not raised a single
argument that could not have been made on Reconsideration, and have made no arguments about
the unique circumstances they face that would make this motion anything more than an untimely
motion to reconsider. Petitioners’ arguments from Iowa Code § 6A.21 and 6A.22 have already
been rejected by both the Board and other Iowa courts. Petitioners’ constitutional arguments
need not be reached, but ultimately fare no better. The alleged harm – harm to their land – is

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both presumed by Iowa law to be reparable, and has been found by the Iowa Supreme Court to
be compensable by money damages. Finally, Dakota Access and the wider public would suffer
substantial harms if this 1% of landowners on the route in Iowa can delay a project that has been
approved and is well under way. These harms are precisely why a bond is required; Petitioners
have made no provision for such a bond.
For all of these reasons, there is no legal basis for the extraordinary remedy of a stay, and
the Motion for Stay must be denied.
Respectfully submitted this 24th day of August, 2016.

By: /s/ Bret A. Dublinske
Bret A. Dublinske
Lisa M. Agrimonti
Brant M. Leonard
FREDRIKSON & BYRON, P.A.
505 East Grand Ave, Suite 200
Des Moines, IA 50309
Telephone: 515.242.8904
Facsimile: 515.242.8950
E-mail: bdublinske@fredlaw.com
and
Keegan Pieper
Associate General Counsel
Dakota Access, LLC
1300 Main Street
Houston, Texas 77002
ATTORNEYS FOR DAKOTA ACCESS, LLC

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 Filed with the Iowa Utilities Board on August 24, 2016, HLP-2014-0001

CERTIFICATE OF SERVICE
The undersigned hereby certifies that on this 24th day of August, 2016, he had the foregoing
document electronically filed with the Iowa Utilities Board using the EFS system which will
send notification of such filing (electronically) to the appropriate persons.
/s/ Bret A. Dublinske
Bret A. Dublinske

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