A lady at the Brown County Republicans’ booth at the Brown County Fair this week told me Democrats are “selling all of our rights to the government.” (Don’t ask me what that phrase literally means; it seems to translate as, “I vote R on image and emotion, but I need to pile some words together to make me sound thoughtful.”)
Then tell me, dear lady, why it’s your Democratic blog that celebrates this victory in Lincoln County for local landowners over a government that would sell our property rights to out-state corporations for private profit?
A Lincoln County judge is denying the Dakota Access pipeline to enter private property to conduct surveys for the proposed 1,100-mile pipeline from North Dakota to Illinois. About 270 miles of the pipeline would be in eastern South Dakota.
A dozen Lincoln County landowners opposing the project asked the court to stop the company from going onto their land to survey it for the pipeline. Judge Brad Zell agreed with the landowners under South Dakota’s eminent domain laws, saying a permit would be required [Angela Kennecke, “Legal Victory for Landowners Opposed Oil Pipeline,” KELO-TV, 2015.08.13].
We get crickets from the blog my rights-watchdog Republican neighbor would prefer: that GOP corporate spin blog loves companies that take away South Dakotans’ property rights and thus spends the day lobbing softball questions at a fake petitioner fronting for the payday lending industry to trick voters and infringe on their rights to legislate through ballot measures.
But Dakota Rural Action celebrates this defense of our neighbors’ property rights:
This is a great win for landowners in Lincoln County. DRA member, Lori Kunzelman had this to share about today’s hearing. “My family and I are extremely happy with Judge Zell’s ruling that South Dakota law does not allow Dakota Access, LLC access to our land before the PUC grants approval, if they even get the permit. This land was homesteaded by my great-grandfather and we are going to preserve it for future generations. We now hope the PUC understands and agrees with our concerns to protect air, water, and land of South Dakota and doesn’t allow this pipeline to destroy it” [Dakota Rural Action, press release, 2015.08.13].
Judge Zell’s ruling runs opposite Judge Mark Salter’s ruling in Minnehaha County last month in favor of Dakota Access in an identical lawsuit:
Brett Koene[c]ke, the Pierre lawyer representing Dakota Access, said the pipeline is clearly a common carrier engaged in commodity sales.
…Koene[c]ke 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 [Public Utilities Commission]. 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,” Koene[c]ke 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 [John Hult, “Judge Grants Eminent Domain to Dakota Access Pipeline,” that Sioux Falls paper, 2015.07.10].
The Salter–Zell disagreement reveals an interesting conundrum: Judge Salter says Dakota Access has to tromp across private land to produce the map necessary to win common carrier status and its permit, but Judge Zell says Dakota Access has to get the permit before it can use eminent domain to tromp across our land. Why conservatives would accept any private entity co-opting eminent domain escapes me, but even we accept the notion that one private actor can force another private actor to surrender property, conservatives ought to expect the government to conduct substantial due process, including a formal permit hearing from the agency with the expertise in and regulatory authority over the taking actor’s industrial activities.
Dakota Access should have to earn its PUC permit before taking our property rights through eminent domain. If they must produce a map, they should have to do so from the roadside, without infringing on the rights of landowners who refuse to surrender to Big Oil’s predations.