A pipeline company has plans to construct a pipeline of about 2,000 miles in length. A good number of miles of the project would cut through South Dakota. This pipeline would be a carbon-dioxide carrier and would run under landowners’ private properties in the state with a goal of carrying the commodity to its end user. For my discussion on the fairness of a private business using the process of eminent domain as a part of its plans for profit – see my article: lexenergy.net/south-dakotas-approach-condemnation/
South Dakota landowners recently received from the pipeline developer an advance notification of what I call pre-construction activity in order that the developer, in compliance with a unique statute, follows the state’s private property access ‘notification law.’ The notices to landowners indicated the developer’s intent under the auspices of state law to enter private property for the purpose of “making survey for civil construction, biological, and cultural reasons.” The notices also disclosed the use of shovels and spades, while others included backhoes, trenches, and drilling. Developer’s proposed activity would be done not as a part of an ongoing or completed legal condemnation proceeding, but rather before any formal construction of a pipeline and before any condemnation or other similar legal taking may have occurred. No court order is needed. No consensual easement need be recorded. No agreement is required between the developer and the property owner. Welcome to the new Soviet Union — South Dakota style.
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The poorly written South Dakota statute we review allows pipeline permit applicants entry onto private property for the examination and survey of potential projects for an indefinite ‘look-see.’ The statute provides no time limit. This anomalous right-of-entry law was written to stack the cards against property owners. If harm to the property from the developer’s visit occurs, the property owner must prove “actual damages.” One will not find that phrase elsewhere in the legal world of eminent domain. No sir. The lobbyists had a field day drafting this stuff while the attorneys consulted on the proposed law must not have taken a course in constitutional law.
Please good reader do not consider that the legislature will make amends for this statutory aberration. Once the state legislature puts something in concrete, after it cures, it only later steps in it. The statute is so arguably unconstitutional that the legislature chose not to grant this right of legal trespass to any government entity. “This section does not apply to the state or its political subdivisions.”
The South Dakota Constitution directs that, “Private property shall not be taken for public use, or damaged, without just compensation … .” The law under review however includes no findings indicating the authorized trespass in done for public use; not does it provide a process for compensation. The South Dakota Legislature adopted the statute in 2016. It applies to a development project which requires a siting permit under chapter 49-41B. The law liberally allows an “examination and survey to be made as necessary for its proposed facilities.”
The statute also creates a false sense of due process. Although the notification mechanism for giving landowners 30 days’ written notice before entry attempts to address constitutional due process concerns, the statute is vague; the law does not include a provision specifying the length of time a permit applicant is able to be on the landowner’s property; and it does not attempt to limit the scope of the on-site examination and survey which a developer might perform. This special law, which creates a unique access right to private property, and an unusual term for possible damages, makes no mention of a right to a jury trial to determine damages. While a jury trial is probably still available, it is clear the legislature prefered to avoid the nicety of a jury trial. The law giveth to others and taketh away from thou. Welcome to the new world order.
David Ganje practices law in the area of natural resources, environmental and commercial law with Ganje Law Office. His website is Lexenergy.net.
