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Judges Reach Opposite Conclusions on Dakota Access Eminent Domain and Survey Rights

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.


  1. Frank James 2015-08-14 08:27

    Cory, you point out the main problem I have with Republican rhetoric on this issue. In broad strokes they claim to be about freedom but it’s specifically about freedom from government. Freedom from corporate over reach isn’t on their agenda. This is not the Republican Party my Grandfather belonged to. Conservatism meant something different and they weren’t afraid of the government just cautious.
    Eminent Domain laws in South Dakota are confusing and out of date. They need to be changed and tightened, but our Republican leaders have no interest in this. I believe my Grandfather would have been very interested in seeing these changes made and I believe there are many Republicans in the state that are interested in seeing these changes and aren’t being represented by their leadership.
    It’s crazy that a company can basically declare eminent domain for themselves without a permit of some kind from a state agency.
    Let’s not forget there are many projects built in South Dakota from water systems to power lines where the company doesn’t threaten eminent domain and doesn’t use it. Perhaps pipeline companies could learn something about how to negotiate without a hammer in their hand.

  2. mike from iowa 2015-08-14 08:44

    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.

    Explain to me again what public good KXL provides for anyone other than Trans-Canada,a non-amerikan korporation.

  3. mike from iowa 2015-08-14 08:47

    The lady atthe wingnut fair booth was just spouting wingnut talking points,standard issue verbatim.

  4. Paul Seamans 2015-08-14 09:12

    One of the planks of the South Dakota Republican party is the parties respect for private property rights. The Republican Party should seriously consider removing that plank, it seems to get in their way in their courting of big oil.

  5. Paul Seamans 2015-08-14 09:17

    Frank James makes a good point about other entities not using the hammer of eminent domain. The Mni Wiconi water system did not threaten eminent domain, if you didn’t want them on your land they went around or went down section lines. Let the oil pipeline companies run their lines down the Interstate or highway ditches.

  6. Nick Nemec 2015-08-14 09:29

    Paul, when the Mid-Dakota RWS was in the planning stages in my part of SD they asked me to grant an easement. I did and did so willingly without compensation because I knew if it was built I would finally have safe healthy water for my family and reliable water for livestock in pastures that didn’t have water. In short there was a positive benefit for my family and those that come after me. I see no such benefit for those who have oil pipelines crossing their land, only the risk of pollution from a spill and the certainty of permanent damage to the land from the construction process.

  7. Paul Seamans 2015-08-14 09:36

    Nick, I totally agree. My family has freely granted easements for roads that otherwise would have had to run down a draw, easements for power lines, phone lines, and water lines. All at no thought of any easement payment. These easements benefited my family, they benefited my neighbors. These oil pipeline easements are of no benefit to me, no benefit to my neighbors.

  8. Nick Nemec 2015-08-14 09:49

    Agree, and have even less than no benefit, have huge proven, guaranteed, negative consequences if built, and even bigger potential, negative consequences in the case of spills. Leave me and mine alone.

  9. PORTER LANSING 2015-08-14 09:49

    Survey from the road? Maybe. Survey from drones? Probably.

  10. mike from iowa 2015-08-14 11:55

    What public good is it if livestock won’t eat the garbage planted on pipeline route? The landowner gets no benefit. Livestock gets no benefit. If you can’t sue for damages,TC gets the benefit and they aren’t citizens or even human.

  11. caheidelberger Post author | 2015-08-14 11:58

    Porter, the drone option is interesting. Can one get accurate survey data from a flying drone? And would drones survive a grouchy farmer’s shotgun brigade?

  12. 96Tears 2015-08-14 12:06

    Every day in South Dakota we see new examples of how corrupt the Republican power brokers are and how totally out of touch its Party regulars must be with what’s happening around them.

    At the risk of sounding partisan (Here on DFP??? Shocking!), I’ve concluded that being a rank and file Republican in South Dakota requires that you must become profoundly stupid. Or crooked as a dog’s hind leg (no offense to dogs, I love them) and the army of turd polishers who publicly spin the policies of greed and deception. I believe those to be the two branches of the current SDGOP. Cory, the woman at the GOP booth must have come from the first branch.

    Glad to get that off my chest. Next topic please.

  13. Porter Lansing 2015-08-14 12:24

    Drones can be used in surveying:
    They fly out of reach of a shotgun and the on board camera would be proper evidence in court of vandalism and loss of income caused by an angry farmer.
    I’m sorry if I’m curt but I’ve just had an instance of a post I made that was a dagger to the kidney of Mr. Powers on the Pay-Day loans issue. He responded with a misleading post from his Anonymous pseudonym and removed the statement which I made. I’ve decided that if it means that much to him, I’ll not repost it here; even though most of his readers spend more time on Dakota Free Press than they do in the library or on Google. lol Politics is one thing but a man’s livelihood, wife and children are another. What would be my benefit to ash canning his career, hmmm? Keep up the good work. We’re winning. ☮

  14. caheidelberger Post author | 2015-08-14 19:38

    Paul, Nick, contrasting the oil pipeliners with the rural water systems is very useful. We understand that our rural water systems will provide a valuable service directly to us. Those water systems are neighbors serving neighbors. The rural water systems are all local non-profits, too, with locally elected board members, right?

    But I wonder, looking from a pure engineering perspective, can an oil pipeline zig and zag to conform to existing rights of way and landowner preferences the way Mid Dakota’s water pipes could?

  15. Paul Seamans 2015-08-14 20:36

    To zig and zag would definitely cost more but the Mni Wiconi was able to make it work.

    Every big project such as the Keystone XL also has to propose an alternate route. The alternate route for the KXL was to run adjacent to Interstate 90. Whether it would have run in the government owned right of way or not I don’t know. A tarsands pipeline visible for all to see along I90 is probably something that TransCanada did not want to have to explain. Better to run it across the unpopulated ranchland of western South Dakota.

    If TransCanada were not so arrogant in their initial contact with landowners they might have been able to reach an amiable agreement on easements. Having the power of eminent domain they saw no reason to treat any of the landowners with any sort of respect.

  16. Les 2015-08-15 08:13

    The arrogance of TC, comes from the Rounds admins early willingness to stomp out any efforts to protect South Dakotans. Sen Mahers attempts over several years to get a small spill fund with a 30 mil cap at a 2 cent a barrel charge through XL would be just one example. Hilary also provided fuel for those actions.

  17. leslie 2015-08-15 08:34

    thank you for that insight. what did hillary do?

  18. Donald Pay 2015-08-15 08:59

    Oh, just wait. You have no idea what’s coming. Crony capitalists in both parties have the sheepish folks in South Dakota in their crosshairs. You think some piss ant pipeline using eminent domain is a big deal? That’s nothing. Two high-level radioactive waste disposal sites are coming your way. One in shale in western South Dakota will come a few years after the deep borehole disposal site in crystalline rock in eastern South Dakota.

    They are planning the whole thing in secret, despite the supposed Obama Administration policy that there must be “consent” to site such a repository. “Consent?” First, they give you millions of dollars to state government, crony capitalists and academic whores to plan the thing in secret. Then they ask for “consent.” Your state government is nothing but a high priced hooker.

    Just to update you on the latest developments. My Freedom of Information Act request to get the proposals submitted to the Department of Energy by entities in South Dakota were denied. Whatever has been submitted by the State of South Dakota to the Department of Energy won’t be known by you. You aren’t part of the elite who get to decide these things, see. You’ll find out about it when they start raping the land. That’s all the “consent” you’ll get.

  19. Paul Seamans 2015-08-15 09:08

    leslie, Hillary, as Sec. of State, had said that she was prone to support the KXL. Hillary has already sent the signals of whether or not she would approve the pipeline if elected president. She has lost my support. Feel the Bern.

  20. Paul Seamans 2015-08-15 09:11

    Donald Pay, thank you for keeping us informed about the uranium issue in South Dakota. While I deeply dislike TransCanada I would have to agree that the uranium problem goes much deeper.

  21. Donald Pay 2015-08-15 09:31

    You’re welcome, Paul. Just to slightly correct your impression: this is not about uranium mining. The process of mining uranium would give you yellowcake, which would not be disposed in the repository. What would be disposed in South Dakota would be the stuff we are arguing about right now regarding the Iran nuclear agreement. So, that yellowcake is processed, spun in centrifuges and enriched to various grades used in nuclear bombs or nuclear power plants. At some point it must be disposed. It’s this highly processed, very dangerous upgraded radioactive waste product of nuclear reactors and nuclear bombs that would be disposed in South Dakota.

  22. mike from iowa 2015-08-15 10:59

    The US gubmint likes to dispose of waste in lands considered sacred or holy,why not Jerusalem. That is basically a waste land,is it not? Texas has a waste depository run by one of ex-guv Gay Perry’s campaign contributors. They will prolly accept toxic waste because the owner won’t ever be expected to clean up the mess.

  23. leslie 2015-08-15 13:35

    don, do we know the locations of the land being tested for 1.) eastern sd “deep” crystalline rock borehole storage and 2.) the more obvious edgemont/provo area “deep” shale storage in western sd? what is the method of storage for western sd? your foi was for the deep borehole tests bid recently, correct? are they both doe proposals?

  24. Donald Pay 2015-08-16 07:40


    A small group of elites in South Dakota and the DOE know exact locations, but they refuse to share it with the public. DOE has done preliminary surveys on locations for deep borehole sites. In South Dakota that an extensive area in northeast and east central South Dakota. One of the things I expected to find in the DOE Freedom of Information Act response was a specific location. The proposal submitted by South Dakota is supposed to have that information contained within, so we know state government and the state’s consultants have submitted that info to DOE. The activity of the state in this instance follows exactly the pattern we saw with the Janklow/Chem-Nuclear proposal: secrecy, lies, denial and continuing efforts to site a facility.

    From open studies conducted by Sandia Labs and others, we know general areas for both the shale and the crystalline nuclear dumps. The shale facility might not be near Edgemont. Studies done in the 1970s indicate a site near Hayes, SD, just west of Fort Pierre, would be a prime target.

  25. Les 2015-08-16 08:29

    Any wonder our state legislators were so willing to hand off our authority to the Feds, Donald?

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