South Dakota keeps eminent domain for railroads

Repeal of law to speed up land taking fails

A South Dakota Senate committee refused Wednesday to repeal a 1-year-old law that is intended to speed up the eminent domain process when railroads seek to acquire land for projects.



The Legislature last year passed a law that requires the governor or state Transportation Commission to act within 90 days of when a railroad seeks permission to use eminent domain to acquire property.



The State Affairs Committee voted 8-5 to kill HB1165, which would have repealed the law passed last year. The lawmakers who opposed the bill said it's too early to scrap last year's law.



The bill's main sponsor, Rep. Lance Russell, R-Hot Springs, said he does not oppose the Dakota, Minnesota and Eastern Railroad's $6 billion project to haul coal to eastern states by renovating its existing line across South Dakota and building new line around the southern Black Hills into Wyoming's coal fields.



But Russell said 90 days is not enough time for landowners and state officials to review a railroad's proposal to use eminent domain. "It's unreasonable and it's impractical."



Sen. Tom Hansen, R-Huron, said last year's law should be kept on the books. The DM&E; has been working for more than a decade on the expansion project, and the railroad has been working with landowners during that period, he said. Some opponents have tried to stop the project by delaying it through lawsuits and other processes, he said.



Former South Dakota Supreme Court Chief Justice Robert A. Miller, who is acting as hearing examiner for the Transportation Commission in the case, wrote last year that he thinks the 90-day deadline for approving eminent domain applications is unconstitutional. He did not enforce that time limit, and the commission recently held a hearing on the DM&E;'s application.



The Transportation Commission is expected to rule on the eminent domain application within the next couple of months, state Transportation Secretary Darin Bergquist said.



The 90-day deadline should be left in law, Bergquist said. Otherwise, railroads seeking permission to use eminent domain could face unnecessary delays in the future, he said.



Other opponents of the bill said the law should not be changed while the DM&E; case is pending with the Transportation Commission.



The DM&E; wants to upgrade its existing track across South Dakota and Minnesota and build 262 miles of new line from the Wasta area to the Powder River Basin coal fields in Wyoming. The line would run down the Cheyenne River Valley into Wyoming at the southern edge of the Black Hills.



Dean Krogman, a lobbyist for DM&E;, said the railroad has reached agreements with many landowners along the route of the new line and is continuing to work with others. Some other landowners will not settle, he said.



South Dakota law says a railroad can use eminent domain only if the governor or the Transportation Commission finds the project is in a public necessity. A key element is whether a railroad can show it has already negotiated in good faith to acquire land without the use of eminent domain.



Critics of the law passed last year also complained about a provision that would let a railroad take possession of condemned property while courts were still determining what compensation a landowner would get.



The Canadian Pacific Railroad has purchased the DM&E;, but has not yet made a decision on whether to pursue the coal-train project