(The Associated Press circulated the following story by Chet Brokaw on August 13.)
SIOUX FALLS, S.D. — New rules that likely will be used to handle the Dakota, Minnesota and Eastern Railroad’s application to acquire land for its planned $6 billion expansion project were approved Monday by the South Dakota Transportation Commission.
The commission has been asked to grant the Sioux-Falls based DM&E 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’s approval of the new rules for handling eminent domain cases still leaves uncertainty on how soon the commission will be able to hold a hearing on DM&E’s application.
DM&E had originally filed an application in December, but the new rules likely will require the railroad to start the process anew and file a new application for using eminent domain to acquire land along the route from owners unwilling to sell.
After approving the rules Monday, the Transportation Commission approved a motion urging its hearing officer to hold a new hearing as soon as possible on DM&E’s application.
“I think we’ve had enough delays,” said commission member Sam Tidball of Fort Pierre.
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.
The Transportation Commission had planned to hold a hearing on the railroad’s application on July 10, but Circuit Judge James Anderson of Pierre stopped the hearing. The judge said the commission could not hold a hearing on DM&E’s application until it passed rules to establish the required application form and the procedures to be followed.
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 that law and the commission’s rules for handling such applications.
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 lawyer Brian Donahoe said if the application is handled under the new rules, the railroad will submit a new application and start the entire process of setting up an eventual commission hearing on the DM&E’s application.
However, the DM&E at the same time might appeal Judge Anderson’s ruling to the South Dakota Supreme Court to reinstate the initial application, which would lead to a hearing at an earlier date, Donahoe said.
“DM&E is keeping its options open at this time,” Donahoe said after Monday’s hearing.
The proposed new rules initially included a section that said they would apply to any application already pending, but state lawyers who handle rules said nothing in South Dakota law would allow those rules to apply retroactively. The commission deleted the language that would have made the rules retroactive.