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Farmers’ Rights vs. Eminent Domain

Is it reasonable to take a farmer’s most valuable asset to build a better tomorrow?

Ethan Boender is a young man of few words. But when the route of the Dakota Access Pipeline affected precious farmland in his community, he found the words to voice his concern. 

“Dear Future President,” wrote the then-13-year-old in December 2016. “I farm with my dad in Oskaloosa, Iowa. Even though none of our farm ground has the pipeline going through it, almost all of my friends’ families do. The government built it on these farmers’ land without really giving them a choice.”

The underground pipeline, which carries oil nearly 1,200 miles from North Dakota to Illinois refineries, runs diagonally for almost 350 miles across 18 counties in Iowa. Mahaska County, where Oskaloosa is located, hosts the second-longest stretch of the pipeline, with more than 30 miles being installed. 

Keith-Brink
Keith Brink
“The pipeline didn’t bother me until it was coming through two of my best fields,” says Keith Brink, who has known the Boenders for nearly 20 years. “I think that’s how you feel about everything in life. It doesn’t bother you until it affects you.” 

Before the soil was disturbed, Brink had two high-yielding fields of corn. “Now, there is a poor-producing strip going through them for who knows how long, and it bothers me. You wouldn’t like to see a big scratch down the side of your car. That’s how I feel about my fields,” he says. 

Yet, Brink knew if he didn’t go willingly, the power of eminent domain would decide for him. “If I tried to fight it, I may have gotten half of what I was offered originally,” he says. “I finally gave in and said yes, but I’m concerned. If farmers feel like they don’t have a choice and continue to give in, what will be left for the next generation?”

Between 2007 and 2012, the National Resource Inventory estimates that 1,812,700 acres of agricultural land was converted to developed land. That’s an average annual rate of 362,540 acres per year, which equates to nearly an acre a minute or more than 40 acres every hour. From 1982 to 2012, Iowa converted 287,800 acres of agricultural land to developed land. 

eminent-domain

The Dakota Access Pipeline cuts through Iowa missing the farmland of Mark and Stacy Boender (pictured far right). Their children (from left to right) are Amelia, 12, Anton, 8, Ethan, 15, Allison, 6, and Elijah, 9. Stacy’s father Fred Van Den Brock stands behind Anton. Two neighboring farmers directly affected by expropriation projects include Jack Rempe (in the second row behind Ethan) and Keith Brink (in the back row behind Fred).

Losing a Valuable Asset 

As one controversial project comes to a close in Mahaska County, another – the South Central Regional Airport – has its sights set on more farmland in the area. The new construction is slated to take 582 acres for replacing the Pella and Oskaloosa Municipal Airports and consolidating services.

The existing properties, which cover 729 acres, would be sold once the new airport is operational. All proceeds would be reinvested in the shared facility. 

“We’re trying to replace two airports with one – not only for what we need now, but also for the future,” says Jim Hansen, chairman of the South Central Regional Airport Agency (SCRAA). The SCRAA was formed in March 2012 through a 28E Agreement by the city of Oskaloosa, the city of Pella, and Mahaska County to plan, build, and govern the project. 

If the proposed $30-million-plus project moves forward, two Century Farms and one Heritage Farm will be permanently erased from family histories. 

Jack-Rempe
Jack Rempe
Jack Rempe says losing a little over 90 acres that has been in his family for more than 100 years is not negotiable. “Our farm is not for sale,” says the fifth-generation farmer. “This land is our legacy, and I plan to pass it on to the next generation.”

Not only does this project take ground that has been handed down from one generation to the next nearly two thirds of the 582 acres is classified as dream dirt.

“Over 35%, or approximately 200 acres, is identified as prime farmland. An additional almost 29%, or about 160 acres, is identified as prime farmland if drained,” says Kevin Funni, USDA district conservationist. “This is a very sizable area of some of the most productive farmland not just in Iowa, but in the world.”

He adds, “The loss of this land’s potential agricultural use to meet future human needs for food should not be underestimated or overlooked. Once this prime farmland has been relandscaped, its service in global human food production will be lost forever.”

A Fight Over Flight 

The notion to build a new airport began nearly two decades ago when a feasibility study assessed the future needs of the Pella airport. Designated as a Category B-II facility, the study concluded that the airport did not have the infrastructure necessary to support Category C aircraft in the long term. It also recommended the city involve other nearby communities, which is when Oskaloosa entered the discussion.

Through the years, various options were considered as the Category C aircraft coming in and out of the Pella airport continued to increase. Today, planes in this category use the airport almost daily; the latest estimate is between 300 and 500 flights per year. The difference between the two categories centers around an aircraft’s approach speed (category) and wingspan (design).

Although the FAA says it has no restrictions on the number of flights per year, it does generate a discussion about increasing the airport’s category if that number exceeds its current design. “To justify using federal funds to meet different design standards, the FAA looks to see if the airport currently has, or is forecasted within five years to have, 500 annual operations of a particular type of aircraft,” says FAA spokesperson Elizabeth Isham Cory.

For many businesses, writes James Mueller, the mayor of Pella, aviation access is just as important as road transportation and is necessary for them to remain competitive.

Headquartered in Pella, Vermeer Corporation admits it benefits from a well-run, local airport. Yet, the company says the existing Pella airport is sufficient for its current needs as well as its needs in the foreseeable future. It does, however, acknowledge the recommendation for a new Category C airport to meet some area business needs, augment the future growth and development of Pella, and alleviate the safety concerns.

“If an appropriate site can be acquired, with strong preference that it be from willing seller(s) and financing can be satisfactorily secured, we would support a new airport,” says Elizabeth Sporrer, corporate communications, Vermeer. 

The proposed airport, Rempe believes, is strictly a want and not a need. “There are alternatives to taking prime farmland and these historic farms,” he says.

For example, why can’t one of the existing airports be upgraded? It’s not economically feasible, according to an assessment of the Pella airport, which concluded it would be just as expensive to upgrade as it would to build a new facility. The Oskaloosa airport, says the assessment, is confined by its location. 

Another suggestion is to take advantage of other airports in the area like the Ottumwa Regional Airport, the Newton Municipal Airport, and the Des Moines International Airport – all of which are within 50 miles of Pella’s current airport.

“I understand these businesses want to land their aircraft and be home in 10 minutes,” says Mark Groenendyk, a Mahaska County supervisor. “However, my concern is that we are building this airport for convenience rather than necessity. The only way to find out if this project is worth its weight is to let the people vote on it.”

Owning property is one of the most fundamental rights granted to a citizen. “When we choose to minimize a person’s right to own property for convenience, what else are we eroding?” Groenendyk questions.

A Stacked Deck 

As a caretaker of the land, Rempe is key to safeguarding the next generation’s right to farm. Yet, if he isn’t willing to sell his land, the power of eminent domain will come into play. 

“Our goal is to treat everyone as fairly as possible but to continue to move this project forward as best we can,” says Hansen. “We hope eminent domain doesn’t have to play a role.”

The rules, as they stand right now, says Kelly Keady, are skewed in favor of the government. “The deck is stacked against the property owner,” says the attorney with Biersdorf & Associates. “Unfortunately, some of the laws in Iowa are still projecting 1960s court cases to 2018 cases, meaning a lot of the case law hasn’t been developed,” he says.

“Economic sustainability of the region requires a blend of services to be available for both citizens and their businesses,” comments David Krutzfeldt, the mayor of Oskaloosa, at a November 22, 2016, public hearing. “Good highways and airports are part of that,” he says.

“What that means is the threat of eminent domain will always be there,” says Keady. “What we can hope for is that the laws will progress and property owners will be protected more from eminent domain abuse.”

However, the only way laws will be reshaped is if there’s an outcry for them to be amended. 

“The vocal outrage young Ethan Boender and other farmers are expressing is necessary in order to change those laws,” Keady says.

“The government needs to stop stealing farmland because farmers need this ground to grow a crop,” concludes Boender in his letter. “If we aren’t able to do that, how are we going to be able to make a living?” 

Iowa’s Historic Farms

Since opening up Iowa land to settlers in 1833, thousands of farmers migrated to an area that was once forests and prairies and turned it into productive fields. These early settlers represent the legacy upon which the state was built. Today, farm families continue to follow in their ancestors’ footsteps by producing crops and livestock on that same ground.

To acknowledge Iowa’s deep roots in agriculture and the special bond between farmers and the land they care for, the state and Iowa Farm Bureau Federation created the Century Farms and Heritage Farms programs. To qualify as a Century Farm, a family must have owned at least 40 acres for 100 consecutive years or more. To be recognized as a Heritage Farm, a family must have owned at least 40 acres for 150 consecutive years or more.

Since its inception in 1976, more than 19,000 families have been honored with the Century Farm distinction. Of those, over 1,000 have been named as a Heritage Farm.

If the proposed South Central Regional Airport moves forward, two Century Farms and one Heritage Farm located in Mahaska County would be taken for the project. 

“My family would lose nearly 80 acres of farmland that my great-great-grandfather purchased in 1881 to this project and another 12 acres (out of a 41-acre parcel) purchased in 1893,” says Jack Rempe, who is the fifth generation to farm this ground.

John DeRooi, whose grandfather purchased his family’s farm in 1898, stands to lose around 25 acres. David Prine, whose family purchased the farm in 1848, would have to give up a little less than 36 acres. 

3 Tips to Protect Your Interests 

If you are a landowner faced with the possibility of having to give up your farm ground because of a development project, Kelly Keady, an attorney with Biersdorf & Associates in Minnesota, offers these three tips before you agree to a settlement. 

  1. Be skeptical. No buyer goes into a negotiation offering you top dollar right out of the gate. “He is like any other buyer. He wants to purchase the property for as low a price as he can get it,” says Keady.
  2. Consult an attorney. “Typically, we don’t start getting calls until a landowner is contacted by the agency or group in charge of negotiating an offer for the property,” he says. “We provide a service where we look over the offer for free, and we tell you whether you have a case or not.”
  3. Pick the right appraiser. Not all appraisers are created equal, says Keady. “The difference between the before value and the after value is just compensation,” he explains. “In order to get the most amount of just compensation, you want a high before value and a low after value.” 

What that means is the appraiser needs to understand what the land is worth in its highest and best use. 

“There are a lot of appraisers who don’t do that well,” he says. “All they see is crops growing on the land; they don’t see that it is prime ground in the path of development.”

They don’t look at the long-term impact to the property, either. “A lot of appraisers don’t look at the property as a whole,” explains Keady. “For example, if they are taking 20 acres from an 80-acre parcel, they just see it as 20 acres lost.”

In reality, the 60 acres that are left may be less efficient to farm, have drainage issues because of severed tile, or may now be separated from farm buildings. These are all factors that make the after value lower, and they need to be recognized.

Farms Under Threat

As the U.S. faces myriad economic and demographic pressures, competition for land will only increase. Are we conserving enough farmland to protect our legacy and ensure food security for future generations? 

“Quite simply, we cannot have a sustainable future without sustainable farms,” says John Piotti, president, American Farmland Trust.

The organization, in collaboration with Conservation Science Partners, has launched a major initiative that will track the irreversible loss of farm and ranch lands to development. 

“We are documenting both past conversion and projecting the impacts of multiple threats our remaining farmland will face out to 2040 unless we take action now,” he says.

The initial analyses found that ag land lost between 1992 and 2012 to development is nearly double the National Resource Inventory estimates for that same time period. The analyses also show there is a limited supply of land best suited to intensive food and crop production. 

“Between 1992 and 2012, we lost some of our best agricultural land to development,” says Piotti. “The resulting shifts to more marginal land have implications for domestic food security and resiliency, which we will explore more fully in future reports.”

The first report is set to be released in spring 2018. To learn more about American Farmland Trust and the Farms Under Threat project, visit farmland.org. 

Editor’s Note: Laurie Bedord requested an interview with the mayor of Pella, the mayor of Oskaloosa, the city administrator of Pella, and the city manager of Oskaloosa. An email from Dave Krutzfeldt, mayor of Oskaloosa, stated that, “The cities have been advised by legal counsel to decline interview opportunities.”

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