(The Associated Press circulated the following article by Chet Brokaw on January 17.)
PIERRE, S.D. — A state hearing has been postponed for a second time on the Dakota, Minnesota and Eastern Railroad’s request to use eminent domain for its proposed $6 billion expansion project.
The South Dakota Transportation Commission originally planned to hold a hearing in late December to determine whether the railroad can use the legal procedure to get the right to cross private land in South Dakota for its project, which seeks to haul Wyoming coal east to power plants in the Midwest.
The hearing then was rescheduled for Jan. 26, but that date has now been scrapped because the hearing examiner has removed himself from the case at the request of one of the parties, said Bill Nevin, a lawyer for the state Transportation Department.
A new hearing examiner will likely be appointed in about two weeks, and the commission’s hearing will then be rescheduled, Nevin said.
Mark Moreno, a Pierre lawyer and part-time federal magistrate, had been set to handle the case. But during a pre-hearing conference Tuesday, a landowner along the route asked that Moreno take himself off the case.
The hearing examiner will eventually conduct the hearing and make a recommendation to the Transportation Commission, which will decide whether the rail line can use eminent domain.
State law allows railroads to take land from unwilling owners only if a project is for a public use consistent with public necessity. Railroads must have already negotiated in good faith to acquire the property.
A notice of hearing issued earlier in the case said the Transportation Commission’s hearing will deal with whether DM&E has negotiated in good faith to privately acquire sufficient property for its project and whether it has a program in place to make such acquisitions without the use of eminent domain.
The DM&E project would rebuild 600 miles of track across South Dakota and Minnesota and add 260 miles of new track around the southern end of the Black Hills to reach Wyoming’s Powder River Basin. It would haul low-sulfur coal eastward to power plants.
South Dakota Gov. Mike Rounds, the state’s congressional delegation and many agricultural and business groups support the project.
But the project is opposed by some landowners along the route, including those whose ranches in southwest South Dakota would be crossed by the new track. Other opponents include residents in Pierre and Brookings in South Dakota, and the city of Rochester, Minn., and its Mayo Clinic.