(The Associated Press circulated the following on September 28.)
SIOUX FALLS, S.D. — The state Transportation Commission plans to take input Oct. 10 in Pierre on the Dakota, Minnesota & Eastern Railroad’s application to acquire land by condemnation for its planned $6 billion expansion project, but the case could be headed back to court.
Commissioners voted 6-2 Thursday to allow the scheduled hearing to proceed, despite a request for a delay from attorney Bill Janklow, who represents Paul Jensen, one of the landowners along the route.
Janklow told commissioners they need to give property owners more time to intervene and ensure that their rights are protected so they’re not forced to take legal action.
‘I understand the marching orders everybody has to get this done, but we’re going to slow it down,’ Janklow, former governor and congressman, said of the DM&E project.
‘You can’t take people’s property in America without due process of law.’
The Sioux-Falls based railroad asked the commission to grant the right of eminent domain to acquire land in western South Dakota so it can extend its east-west line into Wyoming’s coal fields in the Powder River Basin.
The panel approved new rules last month for handling such cases.
Janklow said the commission has not given landowners enough time to prepare for a hearing under those new rules.
But DM&E lawyer Brian Donahoe said the commission has followed the normal notification process and no landowner appeared at the commission’s August meeting to ask for more time.
Though the rules have changed, the facts haven’t, he said.
‘These things, as admitted by the opponents, are an attempt to slow this thing down,’ Donahoe said.
‘The delays have come because the opponents have used the rules against us.’
Commissioner Sam Tidball acknowledged that landowners do have a right to be heard, but also agreed that they’re aware the case is pending.
‘This isn’t a new issue for any of those property owners,’ he said.
Donahoe said he’ll ask a Pierre judge on Friday to dismiss an earlier legal action filed by Janklow so it can’t be used to block the Oct. 10 hearing.
Transportation Department lawyer Bill Nevin said he believes no law or regulation has been violated, and that the hearing can proceed, unless a judge finds otherwise.
‘The date is subject to change,’ he said.
DM&E has already negotiated deals to acquire land along the expansion route from some ranchers in southwest South Dakota, but the railroad needs legal authority to use eminent domain to acquire land from unwilling sellers, Donahoe said.
Canadian Pacific Railway’s (NYSE:CP) (TSX:CP) recent purchase of the DM&E will make it easier to obtain financing for the project, but that won’t happen until it has authority to use eminent domain, he said.
The $6 billion Powder River Basin project would rebuild 600 miles of DM&E 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. It would haul low-sulfur coal eastward to power plants.
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 has already negotiated in good faith to acquire land without the use of eminent domain.