(The Associated Press circulated the following story by Chet Brokaw on August 22.)
PIERRE, S.D. — New rules that likely will help determine whether the Dakota, Minnesota and Eastern Railroad (DM&E) can use eminent domain to acquire land for its proposed expansion project were approved Tuesday by a legislative panel.
The Legislature’s Rules Review Committee endorsed rules that the state Transportation Commission passed last week.
The commission has been asked to grant the Sioux Falls-based DM&E 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.
Before state agencies’ rules can take effect, the legislative committee must first approve them. Tuesday’s action means the DOT commission’s rules take effect about Sept. 10.
Once that happens, the commission can restart the process of considering DM&E’s application for the right to condemn property.
The DM&E’s $6 billion Powder River Basin project would rebuild 600 miles of track across South Dakota and Minnesota and add 260 miles of track around the southern end of the Black Hills to the Wyoming coal fields. The rebuilt railroad would haul low-sulfur coal east to power plants.
The DM&E originally applied in December, but it likely will have to file a new application for using eminent domain.
The Transportation Commission had planned to hold a hearing July 10, but Circuit Judge James Anderson of Pierre said it could not hold a hearing on DM&E’s application until it passed rules to establish the required application form and procedures.
The 1999 Legislature passed a law requiring railroads to get approval from the governor or the Transportation Commission before using eminent domain to acquire land from South Dakota landowners who are unwilling to sell.
A federal judge later struck down parts of the 1999 law and the commission’s rules, saying they amounted to an unconstitutional burden on interstate commerce.
The commission had argued it could use its old rules by adapting them to the federal court decision, but Anderson ruled that new rules had to be passed.
DM&E has said that if its application is handled under the new rules, it will submit a new application and start the process of seeking a new commission hearing on the issue.
Anderson’s ruling could be appealed to the state Supreme Court. If the justices reinstated the original application, a hearing could be held earlier.
DM&E officials say they already have negotiated deals to acquire land along the expansion route from some southwestern South Dakota ranchers, but they want the authority to acquire land from unwilling sellers.
State law says a railroad can use eminent domain if it can show a project is a public use consistent with public necessity. Officials have said the key element is whether a railroad can show it already has negotiated in good faith to acquire land without the use of eminent domain.