(The Associated Press circulated the following on March 5, 2009.)
PIERRE, S.D. — The South Dakota Transportation Commission has approved the Dakota, Minnesota and Eastern Railroad’s request for authority to acquire land by condemnation west of Wall for its $6 billion expansion to Wyoming’s coal fields.
However, the commission denied the DM&E’s application for authority to use eminent domain east of Wall on its existing line because the railroad has not yet demonstrated that it has negotiated with any landowners on that stretch.
The DM&E wants to upgrade its existing track across South Dakota and Minnesota and build 262 miles of new line from the Wall area to the Powder River Basin coal fields in Wyoming. The new line would run through the Cheyenne River valley into Wyoming at the southern edge of the Black Hills.
The Canadian Pacific Railroad has purchased the DM&E but has not yet decided whether to pursue the project, which would haul coal east to power plants.
Representatives of the railroad and lawyers for landowners were not immediately available for comment Wednesday.
South Dakota law says a railroad can use eminent domain only if the governor or the Transportation Commission finds the project is a public use consistent with public necessity. The determining factor is whether the railroad has negotiated in good faith in an attempt to acquire land without the use of eminent domain.
The commission’s unanimous decision was based on recommendations submitted by former South Dakota Supreme Court Chief Justice Robert A. Miller, who served as hearing officer in the case. Before voting, the commission met privately with Miller for about 45 minutes Wednesday.
The railroad “has negotiated in good faith to privately acquire significant property without the use of eminent domain for that part of the project west of Wall, South Dakota,” Miller wrote.
However, DM&E has not met the requirements east of Wall on its existing line because it has not offered to buy land there or negotiated with any landowners, he wrote.
Miller said 101 landowners have parcels along the proposed new railroad right of way in southwestern South Dakota, and up to 60 might be subject to the DM&E’s use of eminent domain.
The DM&E has been able to acquire land from 41 landowners, and another 35 landowners are currently negotiating with the railroad, the hearing officer wrote. The railroad will not be able to acquire at least some parcels of land without the use of eminent domain or at least authority to use that power, he said.
Landowners who intervened in the Transportation Commission’s case include those who oppose the project and will not negotiate with DM&E and those who disagree with the railroad on the value of their land, Miller reported. Evidence shows the DM&E’s offers were based on fair market value as best it could be determined by appraisals or market studies, he said.
Landowners who gave the DM&E access to their land for cultural, environmental, engineering and appraisal studies generally got offers above the fair market value based on appraisals, Miller wrote. Those offers included mitigation in the form of bridges, cattle underpasses and crossings where practical, he said.