Landowners facing lawsuits over surveyor access for Summit Carbon pipeline in North Dakota, South Dakota
Summit Carbons Solutions has described its five-state, 2,000 mile carbon capture pipeline as being a $4.5 billion project. The project aims to capture greenhouse gas emissions and pipe the CO2 to western North Dakota for underground storage. But some landowners in the path of pipeline are unwilling to even let pipeline survey crews onto their property.
Howard Malloy says he was asked politely on several occasions to allow a survey crew onto his land in North Dakota to look at a possible route for a carbon capture pipeline.
He says after talking with some neighbors about the Summit Carbon Solutions pipeline, he told that pipeline company, 'no' to voluntary access easement.
"If you don't sign it, they sue you, so it's not that voluntary," Malloy told Agweek.
Malloy is one of several landowners in North Dakota and South Dakota who have refused to let survey crews from Summit Carbon Solutions onto their property and are being sued by the company.
Iowa-based Summit is seeking landowners easements as it tries to find a route for a 2,000 mile carbon capture pipeline running through five states. The pipeline would benefit the 32 ethanol plants along the route, lowering their carbon footprint and providing access to low-carbon fuel markets where their ethanol could be sold at a premium price.
Malloy's property is 175 acres of farmland north of Mandan, North Dakota, which he rents out. It is irrigated with water pumped from the Missouri River.
Summit needs to cross the Missouri River to reach sites farther west where the carbon is planned to be stored underground.
Malloy said he was ready to negotiate with Summit on some protection for possible damages to his land when he was served with a lawsuit on Aug. 25.
"Summit is pushing hard," Malloy said on Tuesday, Sept. 6.
He and other landowners are pushing back. He has signed on with Domina Law Group, a firm in Omaha, Nebraska, representing landowners in all five states on the Summit route: Iowa, Minnesota, Nebraska, North Dakota and South Dakota.
Those being sued by Summit have 21 days to respond, which attorney Brian Jorde said would be just days away.
While the bigger issue on carbon pipelines is the potential use of eminent domain to gain right-of-way access, Jorde argues that "even the survey would be considered a taking" of private property and therefore unconstitutional.
It is not clear how many landowners have been sued in North Dakota and South Dakota.
"The more people they sue the better because it gets people fired up," Jorde said.
Among those fired up in South Dakota is Dennis Wolf, who farms in McPherson County. He has been put off by what he says are "bullying tactics" by Summit. His parents own the farmland Summit wants to access but he has power of attorney. Hey says his father, who has Parkinson's disease and was unable to communicate, was served with paper in the nursing home in Eureka.
He described the communication with Summit, including the threat of eminent domain, as being "theatening."
"I don't like being threatened," he said.
In a Sept. 2 email, Jorde wrote that Summit had agreed that legal cases over surveying easements would be consolidated for four of the eight counties in South Dakota — Edmunds, Brown, McPherson and Spink.
Jorde emailed clients that a hearing was expected to be set in September at Aberdeen, but no date had been set. A hearing has been set in a Lake County, at Madison, South Dakota, on Oct. 31.
In letters to South Dakota landowners dated June 4, 2022, Summit references state law 21-35-31, which gives entities seeking a pipeline permit access to property to survey it, even if the property owners have refused access.
In a statement to Agweek, Jesse Harris, director of public affairs for Summit Carbon Solutions, said this:
"While the overwhelming majority of the survey work conducted up to this point has involved the landowner voluntarily offering the company permission to access their land, there have been a limited number of instances where South Dakota law has been invoked to allow this critical work to continue. In the unlikely event the survey work impacts or damages a landowner’s property, Summit Carbon Solutions is bonded to pay for any and all repairs.
"Our project represents a nearly $800 million investment in South Dakota that will open new economic opportunities for ethanol producers, strengthen the marketplace for corn growers, and generate tens of millions of additional property taxes to help local communities support our schools, hospitals, roads, and more. Based on those benefits, more than 300 South Dakota landowners have signed 500 voluntary easements with the company."
But in McPherson County in northern South Dakota, Sheriff Dave Ackerman said his office has been called about a half-a-dozen times by landowners wanting Summit survey crews to leave.
Ackerman says no arrests have been made but Summit has been notified that it needs landowner permission to enter private property. More landowners are posting "no trespassing" signs on their property, Ackerman said.
"The pipeline company has been understanding and when they have been asked to leave, they do," McPherson said. “Everybody can hopefully remain peaceful and safe."
In North Dakota, state law says "when land is required for public use" a survey crew is allowed to access it.
"This isn't public," Malloy said of the project.
Carbon pipeline opponents argue that the projects aren't for public use and only benefit private corporations, who also stand to gain from federal tax incentives for carbon sequestration.
Summit Carbon Solutions has yet to apply for a pipeline permit in North Dakota.
Malloy says he is in favor of using North Dakota's geology that allows for storing carbon underground, but it should be for carbon created within the state, not for other states. Tharaldson Ethanol at Casselton is the only North Dakota plant that has signed on to Summit's Midwest Carbon Express pipeline.
Malloy also says the project is too close to the northern edges of Mandan and Bismarck, which are the growth areas of the two cities.
Malloy figures his farmland will someday be turned in a residential development, but a carbon pipeline would be problematic.
"It would make it difficult to develop from a liability standpoint," he said, with liquid carbon dioxide being a hazardous material. "It would devalue my property for sure."
Mikkel Pates contributed to this report.