In this morning’s report on the PUC’s approval of the Dakota Access oil pipeline, I mistakenly mentioned that nationally recognized organic farmer Charlie Johnson of Orland had accepted a crop damages payment from Dakota Access. Charlie Johnson called me up to point out my misreading. Here’s the line from Bob Mercer’s report that I misread:
Dakota Access executive Joey Mahmoud said one property along the route in South Dakota had been identified as organic. Mahmoud said the property owner accepted a damages payment.
A tenant, Charlie Johnson from the Madison area, operates the 160-acre parcel [Bob Mercer, “Dakota Access Pipeline Route OK’d in South Dakota,” Aberdeen American News, 2015.12.01].
Dakota Access didn’t deal with Charlie Johnson; they dealt with his landlord, an out-of-county landowner. Charlie and his family own and farm plenty of land around Orland, but they also farm some rented land. Recognizing that Johnson would be a hard opponent, Dakota Access adjusted its route to avoid his land and cut across his landlord’s adjoining property. Johnson says that landlord got the payment for the easement and crop damages. Johnson hasn’t seen his landlord’s agreement, but if it’s like the agreements Johnson has seen with other landowners, Dakota Access is paying up front for three years of crop damages. If they are paying at current crop prices, then landowners are being paid three years out at today’s low crop prices.
Johnson notes that paying future crop damages at current rates is a deal for Dakota Access and an even better deal on potential damages for his organic crops. At the Madison Farmers Elevator, today’s cash price for corn is $3.26 a bushel; beans are drawing $8.15 a bushel. Johnson says he can get eleven dollars for his organic corn and 25 dollars for his beans. Should construction of the pipeline damage his crops, there’s no telling whether his landlord will share Dakota Access’s pittance with him for the crops he loses to Dakota Access’s disruption of the land he rents.
Not to discourage organic farming, but Johnson notes that winning the MOSES Organic Farmer of the Year Award may be unlucky. He won the award in 2013; Dakota Access aimed its pipeline at his land in 2014. 2004 MOSES winners Martin and Atina Diffley of Farmington, Minnesota, saw their organic farm targeted for a Canadian oil pipeline in 2006; through vigorous outreach and activism, the Diffleys were able to get the Minnesota Public Utilities Commission to reroute the pipeline and include an organic farm mitigation plan in the pipeline permit to protect other landowners.
Dakota Access may have won its battle at the South Dakota Public Utilities Commission yesterday, but Johnson says opposition to pipeliners using deceptive tactics (Johnson says the land agent who came to his house summer before last told him Dakota Access had all the permits it needed; when Johnson asked about the PUC, the land agent asked, “What PUC?”) and eminent domain to seize South Dakotans land is growing. He certainly wouldn’t mind if that opposition turned into a successful lawsuit to overturn the PUC’s decision. Johnson would settle, however, for good legislation to give landowner rights a little more priority over the intrusions of out-of-state energy companies. Among policies legislators could consider:
- Grant pipeline companies and other utilities eminent domain only if they can obtain voluntary easements from a large majority of affected landowners. The Iowa General Assembly considered a bill this year to set that majority threshold at 75%; Dakota Access got voluntary easements from 68% of Iowa landowners along its route.
- Impose serious bonding requirements on pipeline operators. Dakota Access thinks its insurance should be enough to avoid needing any bonding requirements on top of that, but recall that Dakota Access won’t show us their insurance policy. Insurance just means that if the pipeline blows up, Dakota Access can cover its own costs. None of that money will go to make landowners, farmers, township board, and other South Dakotans affected by a pipeline boo-boo unless those South Dakotans sue and win in court. Statutory bond requirements would better ensure that South Dakotans harmed by pipelines would be made whole by the pipeline operators.
- Restrict new pipelines to existing utility corridors. Even though we need roads for the common good, we don’t run roads from every point to every other point; why should pipeliners expect any freer range across our map? Let’s make the existing Keystone pipeline route in eastern South Dakota a general utility route, along with other existing pipeline and transmission line routes. Add utility routes along I-29, I-90, U.S. Highway 12, and (hmm… take your pick: SD 73? SD 79? Maybe the state’s railroad network?), and say, That’s it! You want to build a pipeline in South Dakota? Here’s where you can put it.
I like the 75% threshold of obtaining voluntary easements before a corporation can use eminent domain. TransCanada bragged of obtaining 100% of their easements from willing signers so a measly 75% should be no problem for them.
These big pipeline or rail projects are supposed to also show that they have considered alternate routes. TransCanada’s alternate route was to follow I90. Kevin Schieffer’s alternate for the DME coal train was to run down the old Milwaukee route from around Scenic to Vivian and then build a new line across the Ft. Pierre Grasslands to Blunt, thus bypassing the big city of Pierre. I’m sure these alternate routes were given serious consideration.
New State Slogan under Daugaard, his son-in-law and captive legislature and appointees.
“Under God, the business rules”
Knowing that Tony, Hoffman, Lee etc read this blog, I invite them to tell us why this is not the new slogan for the state.
Thinking that one party rule doesn’t affect real people in South Dakota? So who are the appointed PUC members who voted for this indebted to?
I supposed one could say that the young Mr. Nelson was appointed but then he was elected again too. The other fellow was a sit-in. Some sort of political hack. I understand it was a temporary job so he’s probably gone already.
Kristie Fiegen recused herself because of a conflict of interest because of a family member. State Treasurer Rich Sattgast was tagged by Gov. Daugaard to take her place for the Dakota Access hearing. I know nothing at all about Mr. Sattgast and I am sure that he is a fine fellow but I thought that he was out of his element at this hearing. He asked very few questions of witnesses and his statement when he voted to approve the DAPL permit didn’t provide a convincing reason to vote for such permit. Did Dennis Daugaard pick someone to serve that he felt would vote his way?
So how can the chief justice blithely assume the following:
Spending large sums of money in connection with elections, but not in connection with an effort to control the exercise of an officeholder’s official duties, does not give rise to quid pro quo corruption. Nor does the possibility that an individual who spends large sums may garner “influence over or access to” elected officials or political parties.
And since the chief can find no evidence of silky burlap sacks lying around with the Koch brothers’ monogram on them, it must follow that there is no corruption—or appearance of corruption—afoot.
This makes more sense that Mr. Johnson would not settle before his concerns were addressed.
75%, Paul? I say 90% or higher. We’re talking about taking away property, one of the fundamental rights of the social contract, a taking far more drastic than taxes. We should require an extremely large supermajority to ensure that the general public really does view the project as serving the public interest.
Cory,
I could probably live with the 90% figure. There seems to be a little more interest in eminent domain reform now than any time in the recent past. Last time it was tried in 2011 all sorts of groups came out of the woodwork to oppose changing anything. Electric companies, pipeline companies, municipalities, DOT, etc..
The vast Mni Wiconi water system was built without using eminent domain, why can’t an oil pipeline be built by treating people in a similar manner using a more respectful approach to the landowner.
No eminent domain for Mni Wiconi? Good! Did that have to do with the fact that that water system really was a public good, providing direct benefit to everyone in the area, whereas the Dakota Access pipeline provides no direct benefit to South Dakota?
“Lewis & Clark has eminent domain powers.[2]”
http://www.plainsite.org/dockets/23e7wea15/south-dakota-district-court/sj-louis-const-v-lewis-and-clark-regional-water/
Cory,
Mni Wiconi had the power of condemnation but chose not to use it. West of Draper a landowner wouldn’t allow them to cross so they simply went across the road to a neighbors. However if you didn’t allow them to cross then they wouldn’t give you a water hook-up. A board member of a group that represents intrastate oil pipelines has told me that they do not use eminent domain even though they are allowed to.
larry, I wonder if Lewis and Clark used eminent domain or not. Point of interest: during the PUC hearings on the KXL permit Gary Hanson said that he was actively involved in seeing that the Lewis and Clark was built.
An April 30 th letter to Dakota Access written by my attorney has yet to be answered by Brett Koenecke. This issue of organic certification does not have to be one of either or or but can perhaps be one of following a specified organic mitigation plan if only the company would communicate.
Water systems I’m aware of didn’t use the eminent domain. They would go around the protesting landowner. If that landowner wanted a hookup later on he would have to pay all costs associated with going around the land plus the new costs of hook up. Needless to say it wa a tad expensive and I haven’t heard of anyone biting that bullet for a post protest hookup.
Eminent Domain should only be used when all other options have been exhausted AND the project will benefit 100% of the people affected. (not just tax revenue) In all other cases the rights of the property owner trumps all other claims. It shouldn’t matter if 75% or 90% or even 99.99% of the people sign off on the project. If property owner says no, then either work around them or kill the project.
The idea of a ‘super’ easement, tracts of land used for utility corridors, it not a bad idea. Fast track the approval process. Make sure the entire route is easily accessible by either road or rail, so emergencies can be dealt with quickly, and efficiently.