(The Associated Press circulated the following article by Chet Brokaw on March 23.)
PIERRE, S.D. — Former South Dakota Supreme Court Justice Robert A. Amundson of Sioux Falls has been appointed to preside over a state hearing on the Dakota, Minnesota and Eastern Railroad’s request to use eminent domain for its proposed $6 billion expansion project.
The hearing has been delayed at least twice because of various motions by the parties and requests that other hearing examiners remove themselves from the case. No new hearing date has been set, Bill Nevin, a lawyer for the state Transportation Department, said Thursday.
Amundson retired from the Supreme Court in 2002 after more than a decade on the state’s highest court.
Amundson is now considering various motions in the case, including a request that additional landowners along the line be allowed to take part in the hearing, Nevin said.
Project opponents from the Pierre area planned to meet Thursday evening to discuss the DM&E expansion plan. South Dakota’s top elected officials support the project, but opposition has cropped up in Pierre and Brookings, where the increased train traffic would go through the cities.
In Minnesota, the city of Rochester and the Mayo Clinic also have sought to block the project because they argue the additional high-speed trains could threaten the safety of patients at the clinic located a few hundred yards from the track.
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 National Forest to reach Wyoming’s Powder River Basin. It would haul low-sulfur coal eastward to power plants.
DM&E had sought a $2.3 billion federal loan to help finance the project, but the Federal Railroad Administration rejected the application last month. DM&E officials have said they are now seeking private financing.
The South Dakota Transportation Commission originally planned to hold a hearing in late December to determine whether DM&E can use eminent domain to get the right to cross private land in South Dakota for its project.
The hearing was rescheduled to late January and then delayed again.
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.
State officials earlier had said the Transportation Commission’s hearing would deal only with whether DM&E has negotiated in good faith to privately acquire sufficient property for the project. That determination would be made with respect to the project as a whole, not with respect to each individual parcel of land along the route, officials said.
But Nevin said some landowners have indicated they may challenge what issues can be raised in the hearing.
So far, only landowners along the proposed new line that would be built around the southern end of the Black Hills have been allowed to intervene as parties in the case, Nevin said.
But former Gov. Bill Janklow, representing some landowners, has asked that other landowners who live along the existing line be allowed to intervene in the case. Janklow’s request was initially denied, but he has asked Amundson to reconsider that issue.
Lawyers in the case also have asked for more time to gather information before the hearing is held, Nevin said.