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DFP Bill #1: Restrict Eminent Domain in South Dakota

Dakota Free Press
Legislative Proposals

Readers asked, readers get: here’s the first of five proposals for legislation that bubbled to the top of the Dakota Free Press readers’ poll on bills we’d like to see the 2016 South Dakota Legislature pass!

Dakota Free Press Bill #1: Restricting Eminent Domain

FOR AN ACT ENTITLED, An Act to restrict eminent domain in South Dakota.


Section 1. That Chapter 21-35 be amended by adding a NEW SECTION to read:

Any non-governmental entity seeking to use eminent domain to take property and/or property rights for any purpose from five or more landowners within South Dakota for a single project must submit to the court written proof that at least 80% of landowners who will surrender property and/or property rights for the project have voluntarily signed binding contracts to sell their property and/or property rights to the entity seeking eminent domain authority. Absent this written proof, the court may not consider the eminent domain petition.

Section 2. That the code be amended by adding a NEW SECTION to read:

If any party presents credible evidence that the non-governmental entity seeking eminent domain used duress or deception to obtain consent from any member of the 80% of landowners consenting to the project, the court shall reject the non-governmental entity’s petition for eminent domain.

The comment section stands ready for your amendments and debate! Stay tuned for DFP Bills 2–5, coming up in the next 48 hours.


  1. rollin potter 2016-01-10 09:22

    Sounds great Cory, but where are you going to find any of those gutless wonders the gop sends to pierre to take on anything like this??????

  2. grudznick 2016-01-10 09:38

    Makes sense to me, Mr. H.

  3. caheidelberger Post author | 2016-01-10 09:51

    Rollin, I’ll take my chances… and if they don’t pick up good ideas like this to defend South Dakotans’ property rights, then you and I will have to elect new legislators.

  4. Paul Seamans 2016-01-10 09:55

    Mr. Chairman:
    I would like to offer an amendment:
    “All common carriers need to receive confirmation from the PUC that they, in fact, meet the standards of being a common carrier in order to receive the power of eminent domain”.

    At present to receive the power of eminent domain for a common carrier all a corporation needs to do is to say that they are a common carrier.

  5. mike from iowa 2016-01-10 10:29

    If common carriers are found to have been dishonest,they can have their corporate assets seized and lose the right to do business in South Dakota ever again.

    No judge,politician.PUC member or arbitrator who has any stock in common carrier or has accepted campaign contributions(past,present or future) may vote on legislation,permits or preside over any case involving common carrier.

    Any politician ,PUC member or judge who is involved in any way with eminent domain decisions for common carrier may not accept a job with said common carrier for at least five years after they are out of office.

  6. mike from iowa 2016-01-10 10:33

    Better make sure common carriers carry enough liability insurance and make sure they are repsonsible,in full, for environmental disasters they cause.

  7. Ken Santema 2016-01-10 11:03

    I agree with Seamans. That would be a good NEW SECTION to add. Adding that might make the actual legislation harder to pass though.

  8. Paul Seamans 2016-01-10 11:38

    Hey guys, I think we’re onto something with these amendments. Eminent domain law needs an overhaul. I’ll bet South Dakota’s eminent domain law was written by the railroads not long after we became a state.

  9. caheidelberger Post author | 2016-01-10 11:55

    Mike, would those insurance and environmental requirements fit under this eminent domain legislation, or would we have to file a separate bill?

    Paul, would adding the PUC to the process of certification as common carrier add any protection? By taking up the case, doesn’t the PUC pretty much assume the project is a common carrier?

  10. leslie 2016-01-10 12:03

    There is Vast legal precedent in this and ID. Good luck in the weeds

  11. Paul Seamans 2016-01-10 12:17

    Cory, the PUC doesn’t get involved with the common carriers until the carrier applies for their permit. TransCanada was threatening landowners with eminent domain at least a year before they applied to the PUC for a permit. In fact TransCanada was threatening landowners with eminent domain before most people in South Dakota had even heard about the Keystone XL. TransCanada attempts to pick this low lying fruit first before someone organizes any opposition. By requiring common carriers to go to the PUC first would allow property owners time to educate themselves.

    Iowa requires common carriers to convince their PSC that they are common carriers.

  12. Jim Sheehan 2016-01-10 14:29

    This must be for an urban setting. So then lets say 50% of the property owners won’t sell. I just come up with a weak excuse to expand the project enough to dilute the holdouts. Kelo v. New London is a floodgate for mischief. It’s managing the impending scandals. The part about ‘duress or deception’ will never pass since the hold outs have nothing to lose by suing without evidence.

  13. caheidelberger Post author | 2016-01-10 14:55

    Jim, it’s for rural settings, too: TransCanada, Dakota Access, transmission lines, and long project that will cross multiple properties.

    The holdouts can’t sue without evidence. The burden of proof is on them.

  14. Jim Sheehan 2016-01-10 14:59

    I’ll enjoy the future debate Cory. Thanks for the quick response.

  15. grudznick 2016-01-10 15:05

    When these bills get to the legislatures committee there will be many questions asked and answered so things will become more clear.

  16. mike from iowa 2016-01-10 15:14

    I don’t know where they would fit,but imho they need to be in there. The last permit process for KXL sounded like Trans-Canada was pulling the strings and PUC was dancing to their tune.

    I’d also like to see evidence that these eminent domain takings are actually needed for anyone’s security-aside from Trans-Canada’s. OPEC is increasing production to drive shale sands drillers out of business. Dilbit is not likely to be used in the US and Canada has several pipeline options of their own to explore-if they aren’t bankrupted by low prices.

  17. Paul Seamans 2016-01-10 15:45

    If you are unfortunate enough to be served with eminent domain you don’t have a lot of options. SDCL limits what a judge or jury can award in ED cases. Compensation is based on the value of the property, you can’t sue for future value or mental stress or anything like that. A neighbor of mine in Jones County SD was taken to county court by TransCanada. The jury was clueless enough that he was awarded less than what TransCanada had offered. TransCanada claims that they did not use eminent domain in South Dakota on the KXL. That is a lie.

    Most people threatened with eminent domain will settle out of court as they know that there is not much chance that they will obtain satisfaction in court.

  18. jake 2016-01-10 15:50

    Eminent domain laws need up-dated just like the 1870’s Mining Act does. This looks like a good start.

  19. bret clanton 2016-01-10 16:18

    Sec 3 No one may seek easements or properties without first having all necessary permits pursuant to all applicable Federal, State, County and local laws…..

  20. mike from iowa 2016-01-10 16:43

    Paul-isn’t that especially true if the courts decide class action lawsuits are unconstitutional? There seems to be a great push to limit who is allowed to participate in class action suits.

  21. Paul Seamans 2016-01-10 17:52

    mike, I hadn’t realized that there was a push to limit participation in class action lawsuits but I wouldn’t doubt it one bit. If class action lawsuits were limited wouldn’t that clog up the courts. Then again it would mean work for more lawyers if everybody brought their own suit.

  22. bearcreekbat 2016-01-10 18:02

    mfi, class actions may sometimes be problematical when they seek money damages, but when they seek declaratory and injunctive relief on behalf of a class they are really one of the very best and economic aspects of our civil procedure. See e.g.,

  23. mike from iowa 2016-01-10 18:20

    That is the point of limiting class action suits. Most people can’t afford to go to court alone. Too expensive-especially against korporations with deep pockets.

  24. mike from iowa 2016-01-10 18:38

    bcb-you are,of course,right. I don’t follow all the rulings,but,the Scotus has made a number of attempts over the recent past to disallow class action suits. Some of the cases have been decided with the liberal justices joining in.

    Here is one where the court allowed the case to continue –

  25. leslie 2016-01-10 18:43

    ED not ID at 12:03, but jake , while agreeing 1878 was nearly 140 years ago, mining lobbyists likely Love This Old Sheit. Again Good Luck But Many Have Been Swimming Upstream In Such Efforts Decades. Ouch

  26. caheidelberger Post author | 2016-01-10 18:59

    Paul, even before PUC, don’t builders like TransCanada have some burden of proof before the judge to demonstrate that they are common carriers? Are the courts not applying sufficiently stringent standards in determining common carrier status?

  27. Paul Seamans 2016-01-10 21:12

    Cory, I believe that all pipelines have to do to gain the power of eminent domain in South Dakota is declare that they are a common carrier. Mike, at 19:17, has provided a real good link that discusses this.

    Mike, thanks for the great link. In 2009 we formed a landowners group in order to better negotiate with TransCanada on easements. Our group controlled one third of the 313 mile Keystone XL route. Our lawyer was the lawyer that put out the newsletter in your link, Frank Fallon.

  28. Disgusted Dakotan 2016-01-11 02:53

    Cory, you are showing your Republican roots!

    Good luck getting any of these SD RINOS to support the RNC Party Platform: (look under protecting the 5th Amendment Private Property rights)

  29. mike from iowa 2016-01-11 06:35

    Eminent domain sucks. Whatever happened to a man’s home is his castle? How can you keep people from trespassing if you can’t stop an out of country korporation from trespassing?

  30. barry freed 2016-01-11 07:21

    I hope not, as important as is protecting the IM that gives us any chance of governing ourselves, we don’t need false fears nor false tears.

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