(The Associated Press circulated the following by Chet Brokaw on July 18.)
PIERRE, S.D. — The state Transportation Commission plans to hold a hearing next month to consider new rules that would control the Dakota, Minnesota and Eastern Railroad’s application to use eminent domain to acquire land for its planned expansion project.
The panel voted unanimously Wednesday to hold a hearing at 9:05 a.m. Aug. 13 in Pierre.
DM&E has asked the commission to approve the railroad’s use of eminent domain to extend its east-west line into Wyoming’s Powder River Basin.
A state law provides that railroads can use eminent domain if they can show a project is a public use consistent with public necessity. Eminent domain is the right to condemn and acquire land.
The Transportation Commission had planned to hold a hearing on DM&E’s eminent domain application on July 10, but Circuit Judge James Anderson of Pierre stopped the hearing after landowners argued the commission has failed to pass rules dealing with such applications.
The panel is now dealing with the issue on two fronts.
It has appealed to the South Dakota Supreme Court, asking the state’s highest court to overturn Anderson’s ruling so the hearing on DM&E’s application could proceed.
The commission also has set the Aug. 13 hearing to consider new rules dealing with procedures for handling any railroad’s request to use eminent domain.
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 the coal fields in Wyoming. It would haul low-sulfur coal eastward to power plants.
The railroad failed in its attempt to secure a $2.3 billion federal loan for the project, but it is seeking private financing. Company officials have said they could begin construction next year.
The route of the new track would cross some western South Dakota ranches and other land. Some landowners have not agreed to sell land along the route to the railroad.
Former Gov. and U.S. Rep. Bill Janklow, a lawyer representing some of the landowners, sought the court order halting the Transportation Commission’s planned hearing last week. He said the commission has not passed rules required by state law for handling such cases.
As governor, Janklow persuaded the Legislature to pass the law that requires railroads to get approval from a governor or the Transportation Commission before using eminent domain to acquire land from South Dakota landowners who are unwilling to sell.
In court documents, Janklow said the commission has not complied with that law because it has not passed rules establishing a form that railroads would use to apply for authority to use eminent domain, specifying the information railroads would have to submit, or setting procedures for handling such applications.
The Transportation Commission argues that it has passed rules. A federal judge struck down part of the law dealing with a railroad’s use of eminent domain, but the commission should be allowed to interpret and apply the law and rules in light of the federal judge’s ruling, state lawyers contend.
Janklow has said he supports the DM&E project, but he believes landowners should be protected by requiring that a railroad meet certain conditions before seeking to use eminent domain.