Judge grants eminent domain to Dakota Access pipeline
A Minnehaha County judge has granted Dakota Access pipeline the right to survey the property of nearly two dozen landowners who oppose the project.
Judge Mark Salter's ruling comes months before the Public Utilities Commission hearing that will determine if 272 miles of the 1,134-mile pipeline can be built through South Dakota.
The decision could serve as a sign to other landowners in South Dakota who seek to keep surveyors off their property. State law is murky on the use of eminent domain by pipelines prior to permitting, a point Salter acknowledged in his verbal ruling Tuesday.
"I'm trying to synthesize a rule that's not really provided for (in statute)," Salter said.
Dakota Access filed suit against the Minnehaha County landowners in April, saying its surveyors need to check all properties along the proposed route to determine if the land is suitable for an underground crude oil line. The company has filed similar legal action in Lincoln County against others.
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The landowners have argued that Dakota Access isn't entitled to survey their land without permission until the PUC permit is granted.
South Dakota law has no specific provision granting eminent domain to pipeline projects prior to permitting, lawyer Glenn Boomsma said, though it recognizes eminent domain for permitted projects in the public interest.
The forced surveys should wait until the project is permitted, Boomsma said.
"This 'pre-eminent domain' right doesn't exist," he said.
Pipelines holding themselves out as "common carriers" engaged in the sale of commodities can use condemnation to survey lands under South Dakota law, but Boomsma argued that Dakota Access isn't one.
"Just saying 'I am one' doesn't mean they are one," he said.
Brett Koeneke, the Pierre lawyer representing Dakota Access, said the pipeline is clearly a common carrier engaged in commodity sales.
It's not a matter of simply saying so, Koeneke said. A company representative submitted an affidavit outlining the contracts to move Bakken Oil patch crude from North Dakota to Illinois.
"My clients have entered into contracts with these people to ship their oil," Koeneke said. "They've expended millions."
More importantly, Koeneke said, the pipeline can't even get to a place where its status could be defined as a public good or a common carrier unless it submits a route to the PUC. That could change if land surveys turn up environmental or archeological impediments to construction.
Some states have laws that specifically require a pipeline to be permitted prior to condemnation, he said, but "there is no law in this state that says you need to have a permit to use eminent domain," Koeneke said.
Salter sided with the pipeline company. The rights of landowners are important, but the PUC can't make any further determinations about whether the project will provide a public good unless it has a complete set of facts. Those facts would include survey and route data.
"They can't get that map to give to the PUC unless they get those surveys," Salter said.
Joy Hohn, one of the landowners involved in the case, said she was "highly disappointed" by the ruling.
The Hohns are concerned about potential oil leaks and environmental degradation and a loss in productivity for cropland over the pipeline.
"An oil leak to the west of Sioux Falls could run through farm drainage tiles and tributaries that go through the Sioux River, Skunk Creek and Wall Lake," Hohn said. "This would affect the water aquifers for Sioux Falls and surrounding communities."
Joy's husband Rod Hohn said after the hearing that he feels as though opponents are "fighting a losing battle."
"They're just pushing this thing through with an iron fist," he said.