Senate Approves Expedition of Eminent Domain
PIERRE — The South Dakota Senate has approved a measure intended to speed up state hearings on the Dakota, Minnesota & Eastern Railroad’s application to acquire land by condemnation for its $6 billion expansion project.
An opponent said the bill could hurt landowners who believe DM&E is not treating them fairly, but the Senate sent the measure to the House on a 20-13 vote.
The bill’s main sponsor, Sen. Tom Hansen, R-Huron, said DM&E applied more than a year ago for state approval to use eminent domain to acquire land for a right of way from people who are unwilling to sell. Opponents have used delaying tactics to prevent a state hearing, he said.
“The time has come to let the process move forward,” Hansen said.
But Sen. Jim Lintz, R-Hermosa, said DM&E has caused as much of the delay as opponents have. He said many of his neighbors own land that would be crossed by the expansion project. They know the project is likely to be built, but they want to be treated fairly, he said.
“Their concern was not to stop the railroad. Their concern was to get a decent price for what the railroad was taking,” Lintz said.
DM&E wants to rebuild 600 miles of existing track across South Dakota and Minnesota and add 260 miles of new track around the southern end of the Black Hills to reach coal fields in Wyoming. The Powder river Basin project would haul low-sulfur coal eastward to power plants.
DM&E, which was recently purchased by Canadian Pacific Railway, has said it already has negotiated deals to acquire land along the expansion route from some ranchers in southwestern South Dakota. But railroad officials said they need legal authority to use eminent domain to acquire land from those unwilling to sell.
A state law provides that a railroad can use eminent domain if it can show a project is a public use consistent with public necessity. A key element is whether a railroad can show it already has negotiated in good faith to acquire land without the use of eminent domain.
In an actual eminent domain case, a court would decide what compensation a landowner would get.
The state Transportation Commission has sought to hold a hearing on DM&E’s application for authority to use eminent domain, but that hearing has been delayed after some hearing examiners were removed by both sides. Another delay was caused by a court order that required the commission to pass new rules for handling such cases.
The bill would provide that the commission is required to hold a hearing within 90 days of receiving a railroad’s application. Hearings on pending applications, such as the one filed by DM&E, would have to be held within 90 days of the time the bill became law.
The bill also seeks to limit the ability of parties to remove hearing officers.
http://www.rapidcityjournal.com/articles/2008/02/13/news/local/doc47b212a0494de778830420.txt
By The Associated Press Wednesday, February 13, 2008
Committee Approves Eminent Domain Measure
Janklow, Schieffer debate DM&E and eminent domain
PIERRE — Railroads could take land faster and more easily by eminent domain under a bill approved Thursday by a legislative committee.
The Senate Transportation Committee voted 5-2 in favor of SB174 - but only after a two-hour debate that pitted former U.S. Attorney Kevin Schieffer, now a railroad president, against former Gov. Bill Janklow, who represents landowners opposed to the bill.
SB174 would, for example, require that hearings and decisions be complete within 60 days of applications for eminent domain.
Schieffer, who heads Dakota, Minnesota & Eastern Railroad, said current law allows too many delays. DM&E proposes carrying Wyoming coal to Minnesota.
The railroad was recently acquired by Canadian Pacific, which has not made a final decision whether to continue the coal project.
However, economic-development groups, farm groups and Gov. Mike Rounds’ administration support both the bill and the DM&E project, which would be one of the largest construction projects in state history.
DM&E would spend $6 billion to upgrade 600 miles of track and build 260 miles of new track from the coal mines of Wyoming’s Powder River Basin to about Wall.
Some West River ranchers, whose land the new rail line would cross, told the committee the new legislation would limit their right to fight the railroad.
“SB174 would take our right to due process away,” Hermosa rancher Veronica Edoff told the committee.
Fighting back tears, Edoff described how she and her husband had worked 25 years to build up their ranch.
“The DM&E corridor, if it is ever built, would split our place in two,” she said. “This is going to create a huge economic hardship.”
Although the hearing was not about the DM&E expansion itself — only the eminent-domain procedure - several ranchers used the opportunity to tell lawmakers why they opposed the project.
“The DM&E project would cut through the center of our ranch for 4-1/2 miles,” said Keith Andersen, who ranches near Burdock, about 20 miles northwest of Edgemont. “It would quite literally tear the guts out of our place.”
Under a state law enacted in 1999, when Janklow was governor, a railroad can take rights of way by eminent domain only after the governor or the state transportation commission rules that the project would be for “a public use consistent with public necessity.”
Schieffer told the committee the new rules would help the railroad overcome delaying tactics by landowners who filed motions to postpone hearings.
“This isn’t about the big bad railroad against individual ranchers,” Schieffer told the Senate Taxation Committee. “It’s about the public interest.”
The new rail line would help fuel power plants, and the upgraded lines would help get farm products to market.
Janklow, however, said the bill would give the railroad eminent-domain rights not available to utilities, pipelines or highways. For example, in most cases, any party can demand that a hearing examiner step down for any reason. The new law would allow that only if bias was proved.
Janklow also said delays in the project, which has been in the planning stages for a decade, were caused mostly by the railroad itself.
“The delay has taken place because they didn’t want to play by the same rules everybody else in South Dakota plays by.”
DM&E had avoided disclosing documents in the case, Janklow said. “We have never had one minute of pre-trial discovery out of these cases,” he said. “The last time I heard the judicial system worked like that, it was North Korea.”
Schieffer responded: “We’re not trying to change the rules of the game. We’re just trying to get into the game.”
Not all ranchers oppose the project. Leonard Benson of Oral said the company had negotiated with him fairly for a right of way on his land.
Other supporters cited economic benefits.
Huron Mayor David McGirr told the committee the new rail line could provide thousands of jobs and help bring ethanol and grain to market. “This could make our recent successes pale by comparison,” he said.
Rick Vallery, a lobbyist for South Dakota Wheat, said the 9,000 wheat farmers in the state represent a $1 billion industry. They ship 85 percent of their produce out of state, Vallery said, and 30 percent to 40 percent is shipped on the DM&E.
Expanding and upgrading rail line would improve access to markets for farmers. “We are now down to a few landowners — and I want to emphasize ‘few’ — who are resisting the expansion project,” Vallery said. “We’re caught in a little circle right now.”
Andersen, whose ranch the line would cross, said he supported upgrading the current DM&E line. He also said if he lost his eminent-domain case he could accept it. But he objected to changing the rules in the middle of his fight. “I’m not opposed to the railroad, but I damn sure don’t like to be railroaded,” he said.
Sen. Royal “Mac” McCracken, R-Rapid City, said he understood the objections, but he also said there were long-range benefits to consider. McCracken voted for SB174. “I believe it would bring some certainty and finality to the process,” he said.
Janklow, quoting Bob Dylan, said before the vote that he expected the outcome. “One of his lines was, ‘You don’t have to be a weatherman to know which way the wind’s blowin’.'”
Sen. Bill Napoli, R-Rapid City, who cast one of the two dissenting votes on the committee, said, “This bill subverts the very legal system we took an oath to uphold.”
The committee vote sends the bill to the Senate floor with a “do pass” recommendation.
What SB174 would do
Current state law, passed in 1999, allows the governor or the state railroad commission to appoint a hearing examiner to decide whether eminent domain can be used. SB174 would:
* Allow parties in the case to remove a hearing examiner only if they could prove bias on the examiner’s part (Currently, parties to the dispute can dismiss an examiner for any reason.)
* Require a hearing to be held and a decision made within 60 days of an application for eminent domain
* Allow railroads to resubmit applications that had been denied
* Allow railroads to start construction while appeals were pending about whether the eminent domain taking was in the public interest
A court would still have the final say over eminent domain takings.
http://www.rapidcityjournal.com/articles/2008/02/07/news/top/doc47ab302f9cb47221326226.txt
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