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Barth Draws Nelson Out; Commissioner Says PUC Can’t Do Anything to Protect Landowners from Eminent Domain

Jeff Barth knows how to stir the pot. On Saturday, Barth accepted the Democratic nomination for Public Utilities Commissioner and immediately went on the warpath against carbon dioxide pipelines, eminent domain, and incumbent Republican Commissioner Chris Nelson:

…“So my opponent Chris Nelson says he has nothing to do with eminent domain. Eminent domain is certainly something he gives to a company when they get a permit for a project. He is telling a lie when he says eminent domain has nothing to do with him.”

“He (Nelson) then goes on to say that he cannot, that he has to approve a project if they check all the boxes,” Barth continued. “Why don’t we have the DMV handle the paperwork? Check all the boxes, let that company use eminent domain to damage your land permanently, to endanger your family. What do we have beside land and family? Let’s not let that happen” [Bob Mercer, “SD Democrats Don’t Run a Candidate Against Jackley,” KELO-TV, updated 2022.07.10].

Commissioner Nelson interrupted his peaceful Sunday to respond to his new challenger:

“First and most importantly, the permit process is guided by state law. Commissioners aren’t free to do whatever they want. Jurisdiction is granted to the commission by state law. The PUC operates within that jurisdiction. Any action outside of that jurisdiction would certainly be struck down by the courts,” Nelson said.

Nelson continued, “Commissioners don’t get to make up the criteria they want (to) use to determine whether a permit should or should not be granted. That criteria is established in state law. Every siting permit application I have voted on has been and must be guided by the criteria in state law. Granting or denying a permit based on something other than criteria in state law would be struck down by the courts.

Nelson also defended his lifestyle as a rural landowner. “I have been involved in farming or ranching in various degrees my entire life. Any insinuation that I don’t value and respect the land and those who care for it would show a deep misunderstanding of who I am,” he said.

But Nelson also used the opportunity to issue a fundraising email. “The race is on and it appears my opponent will say whatever it takes to win.  I ask for your help to make sure that doesn’t happen!” he said [Bob Mercer, “Nelson Responds to Barth’s Accusation That He Lied,” KELO-TV, updated 2022.07.11].

A certain satirical commenter on this blog would say that Barth has won Round 1 by getting Nelson’s goat. I return to commentary back in 2007 when TransCanada was trying to exclude discussion of eminent domain from the PUC permit hearings on its Keystone pipeline (not XL, but 1, the pipeline TransCanada actually built with eminent domain to leak tar sands oil up and down East River). The PUC itself does not hold hearings on and grant eminent domain—that’s up to the courts. But as then PUC Chairman Dusty Johnson told the public in June 2007, the PUC should base permit decisions on “environmental impacts, whether Keystone would adversely affect the orderly development of the region through which it passes and whether it would create undue safety and welfare hazards.” Eminent domain can disrupt the orderly development of a region and create welfare hazards to the citizens whose land the pipeline company seizes by judicial force. The commission has the authority to set conditions on permits, as it did with Keystone 1. Why not make one of those conditions, “You can build your carbon dioxide permit, but only if you get the consent of every landowner along the route, without resorting to eminent domain”?

Jeff Barth is raising a salient point: why should the Public Utilities Commission or any other state leaders simply roll over for a questionable carbon dioxide pipeline scheme that will force South Dakota landowners to surrender their property to Iowa profiteers? And in raising this point, Barth shows all statewide candidates how to get in the headlines and get South Dakotans, including his opponent, talking about important issues we should consider when we vote in November.

10 Comments

  1. Edwin Arndt 2022-07-11 10:11

    By law, I don’t believe the carbon pipeline can be stopped. However, the pipeline company
    does have to pay for an easement, and that is open to negotiation, and courts can get
    involved. I was to a meeting earlier this year on this subject and was regarding North Dakota
    law and how it affected landowners. There were two attorneys present and the gist of what
    they said was pretty much in agreement with Nelson. Apparently North Dakota law
    and South Dakota law are a lot the same on this subject. One landowner at the meeting
    talked about money. If memory serves me correctly, he said that his first offer from the
    pipeline company was $7.00 a foot and the last offer he had at that time was $18.00 per foot.
    Please understand that these figures are not exact. So, for example, if the pipeline ran
    thru 3000 feet of your land, you would get a one time payment of $54000.00. But you get
    no yearly payment.

    I had always thought that eminent domain for pipelines could be employed only where
    public use was involved, (oil, water, natural gas), but apparently I was wrong.
    Also, I have heard (hearsay) that there are people who make a fairly articulate argument
    that the whole carbon capture pipeline idea is unsound. I have not personally heard these arguments.

  2. Edwin Arndt 2022-07-11 10:18

    If BCB has a comment on this subject I would certainly be interested to
    read it.

  3. bearcreekbat 2022-07-11 11:12

    Edwin, for what it is worth, here is a provision from the South Dakota Constitution that covers eminent domain, and seems to confirm that a “public use” is in fact required for any taking under the government’s eminent domain power. SD Constitution Article 6, section 13 states:

    § 13. . . . Private property shall not be taken for public use, or damaged, without just compensation, which will be determined according to legal procedure established by the Legislature and according to § 6 of this article. . . . .

    The 5th Amendment to the U.S. Constitution has been interpreted to limit eminent domain power to taking for a “public use,” but the SCOTUS apparently has adopted a wide definition of what constitutes a “public use:”

    WHAT IS EMINENT DOMAIN?

    In South Dakota, eminent domain gives the government the power to take your property, even if you don’t want to sell. But under the Fifth Amendment, eminent domain must be for a “public use,” which traditionally meant projects like roads or bridges. Meanwhile, the government must pay the owners “just compensation” for their property.

    THE SUPREME COURT DECISION, KELO V. NEW LONDON, MADE IT MUCH EASIER TO ABUSE EMINENT DOMAIN

    Unfortunately, the U.S. Supreme Court gutted federal protection against unconstitutional eminent domain when it handed down its decision in Kelo v. New London in 2005. By a vote of 5-4, the Supreme Court dramatically expanded the definition of “public use” to include private economic development. In other words, local governments can condemn homes and businesses and transfer them to new owners if government officials think that the new owners will produce more taxes or jobs with the land.

    https://ij.org/issues/private-property/eminent-domain/south-dakota-eminent-domain-laws/

    Finally, a SD statute does appear inconsistent with this assessment of the impact of Kelo in South Dakota anyway. SDCL 11-7-22.1 provides:

    No county, municipality, or housing and redevelopment commission, as provided for in this chapter, may acquire private property by use of eminent domain:

    (1) For transfer to any private person, nongovernmental entity, or other public-private business entity or

    (2) Primarily for enhancement of tax revenue.

  4. 96Tears 2022-07-11 11:22

    That’s right. Chris Nelson is powerless. He can’t (won’t) do anything. Just like he and the other political careerists on the PUC were powerless to do anything about Anderson Seed or protecting farmers from future rip-offs. Nope. Can’t (won’t) do nuttin!

    Between the legislature, the governor’s office and the courts, the PUC bobbleheads play the game of plausible deniability for dumb boondoggles like Keystone XL and the CO2 pipelines. And why is South Dakota still among only three states (Alabama and Tennessee are the other two — too many dumb hillbillies?) that doesn’t have any form of net metering or compensation?

    If Nelson has an ounce of respect for farmers (let’s face it, he’s been a fulltime state paycheck collector since Joyce Hazeltine hired him to work in the Secretary of State’s office, which means if he’s a farmer, he ain’t doing the farming, unless decades of fulltime state paychecks is his moonlighting gig), he’d use his status to change the laws that he claims prevents him from stopping dumb boondoggles that steal people’s property rights.

    So, who’s in charge of eminent domain being granted to boondoggles? Apparently, nobody, if you listen to Nelson and the politicians in Pierre. The PUC has authority, and then they don’t. Are they merely stewards of preconceived dispositions, making their hearings 100 percent window dressing? If so, why are there three elected officials collecting fulltime paychecks doing what the PUC executive director can do without them? What a waste of office space and state taxes! Chris Nelson needs to stay home and do his own farming.

    What the hell is a good reason for all of these ticked off farmers to attend the PUC’s hearings on the pipeline? Their testimony is routinely ignored. The real process began and ended with the receipt of the blue suits’ plan to steal property rights for their deep-pocketed clients. The message from Chris and the clown car in the PUC is stay home. It’s futile to resist. Prepare to be assimilated.

  5. Edwin Arndt 2022-07-11 11:24

    Thanks for the info, BCB.

  6. grudznick 2022-07-11 19:40

    Mr. Barth, known mostly for breathing hard while walking downhill, did indeed do a good job getting Mr. Nelson’s goat. grudznick tips his hat to Mr. Barth on that account. Now, he needs to crank it up a notch. Do something to really poke him with a hot, sharp stick. Grow a better mustache than Mr. Nelson and goad him into trying to best you. At least challenge him to a tanning contest.

  7. Kurt Evans 2022-07-11 22:18

    Commissioner Nelson seems to be the strongest remaining link between traditional pro-liberty Americans and the state Republican establishment.

  8. Cory Allen Heidelberger Post author | 2022-07-12 07:10

    I like to think Chris Nelson is more of a Dusty Johnson Republican. Guys who serve on the PUC don’t get to play ideologue much; they’re too busy dealing with complicated technical issues. More elected positions should be like that: no culture-war nonsense, all business. (Notice that the wingnuts didn’t challenge Nelson at convention, because they haven’t figured out how to plug power lines, pipelines, and grain elevators into their election-stealing culture-war agenda.)

    Nelson and Johnson are practical creatures. Their party is filled with goons, so they lean toward the gooniness just enough to stave off primary challengers and win elections. If the GOP could purge Trump, Noem, and Monae Johnson’s radicals and get back to Mickelsonian basics, they’d flip right back to full-time policy wonking.

    Fighting eminent domain should be an easy way for the wingnuts to link up with PUC issues. You’d think those arch-conservatives would be freaking out over any corporation, foreign or domestic, coming to steal some God-fearing farmer’s land. But they don’t include that very real defense of property rights in their platform.

  9. jh 2022-07-13 21:38

    If Chris Nelson is against eminent domain, why hasn’t he done anything before to protect landowner rights?

    He has been bought by the blue suits and should be kicked out of office.

  10. Kurt Evans 2022-07-13 22:06

    Cory writes:

    Their [state Republican] party is filled with goons …

    Their party suggests yours is filled with clowns. Neither position seems to add much of value to the political discourse.

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