Lawyer in South Dakota's carbon pipeline fight disciplined in Iowa

Attorney who represents landowners against Summit Carbon Solutions rebuked by Iowa Supreme Court's review board for submitting unapproved testimony to utilities commissions

Brian Jorde, a lawyer for landowners, argues a carbon pipeline case before the South Dakota Supreme Court on March 19, 2024. (Dave Bordewyk/South Dakota NewsMedia Association)

A judicial panel has reprimanded the lead attorney for landowners who stood in the way of a carbon dioxide transmission pipeline across eastern South Dakota.

The Iowa Supreme Court Attorney Disciplinary Board ruled last month that Brian Jorde, an attorney who has represented hundreds of property owners in lawsuits against pipelines in multiple states — including South Dakota and Iowa — submitted “misleading or deceptive” information during both states’ utilities commission proceedings regarding permit applications for the carbon sequestration project.

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Jorde, part of Domina Law Group out of Omaha, Nebraska, represented 155 landowners in the Iowa Utilities Commission’s evaluation of Summit Carbon Solutions’ permit application to construct more than 600 miles of a pipeline carrying liquid carbon dioxide sequestered from biorefineries across the state. The pipeline would travel through Iowa, Minnesota, Nebraska, South Dakota and eventually be stored in underground rock formations in North Dakota.

Jorde represented dozens more landowners in South Dakota.

In the Iowa permit proceedings, Jorde filed pretrial testimony on behalf of landowners, including Nancy Dugan.

Dugan had filed her own information in the IUC proceedings as well and, according to the reprimand, had been in contact via email with Jorde.

Jorde also represented landowners in the South Dakota Public Utilities Commission’s hearings on Summit’s permit application. According to the records provided in the reprimand, he asked for and received Dugan’s permission to submit some of her research that had already been submitted in the IUC dockets, to the South Dakota hearings.

Jorde’s filings on behalf of Dugan, however, included introductory written testimony, which Dugan later said, in an email to Jorde obtained by the advisory board, were “not statements I would choose to submit.”

The reprimand said Dugan did not approve these written statements. The statement submitted in South Dakota had an electronic signature at the bottom, but the IUC document had not been signed by Dugan.

Dugan clarified in her email to Jorde that she was not a landowner and was worried about being called to testify. Jorde, in response, said the filing with the IUC must have happened inadvertently by staff who filed a number of pretrial testimony. He assured Dugan he did not intend to call her to testify, according to the included emails.

In subsequent emails, Dugan asked Jorde to retract the statement or allow her to submit a revised version that included her actual responses. According to the reprimand, Dugan later learned the same statements had been submitted in South Dakota and again emailed Jorde asking him to refrain from filing any affidavits on her behalf unless it was something she had written or reviewed or approved.

In April 2024, months after the IUC hearing occurred, Dugan brought up the issue again to Jorde, asking him to rescind the statements from the IUC record, according to the reprimand. Jorde said the pretrial testimony was not used in the hearing and therefore not part of the record, so he was unsure what action the IUC would take. He later said to the board the filing was not “material” information to the proceedings, the reprimand states.

“If I file a request to have it deleted for instance that will bring more attention to something Summit and others are not even thinking about now,” Jorde said in an email excerpt included in the letter from the advisory board.

According to the advisory board, Jorde contacted the IUC about removing the testimony, but did not contact the South Dakota commission about the issue.

The written testimony attributed to Dugan was not used in the commission hearings in either state.

Dugan brought the issue to the attention of the IUC counsel and Nebraska attorney disciplinary authorities, where the matter was brought to the Iowa Supreme Court Attorney Disciplinary Board.

The board concluded the actions in South Dakota were “deceptive” and wrote it was “deeply concerning” that Jorde and his staff did not mention to Dugan the extra pages filed in addition to the research she had consented to filing.

The board was less clear on its ruling on the Iowa document because Jorde claimed it was inadvertently submitted, which was reinforced by the blank notarization. The board “found it troubling” Jorde did not withdraw the filing upon learning it had been inadvertently filed.

The board concluded that the “severity of the misrepresentation issues” did not “rise to [the] level” of many previously prosecuted matters, but “the duty of candor is one of the most basic and fundamental obligations we require of lawyers.”

Jorde did not file any exceptions to the reprimand within the allowed 30-day window, meaning the reprimand was made “final and public,” according to the document.

In a message to Iowa Capital Dispatch, Jorde said his focus remains on his clients.

“I decided not to contest this matter and have moved on,” Jorde wrote.

There is no further disciplinary action beyond the public reprimand.

Content courtesy of South Dakota Searchlight.