24 July 2008
Official: DM&E Hearing Date to be Set Soon
Pierre South Dakota USA - A date will likely be set soon
for a state Transportation Commission hearing on the Dakota, Minnesota & Eastern Railroad's application to acquire land by
condemnation for its planned $6 billion expansion project, a state official said Thursday.
Bill Nevin, a lawyer for the state Transportation Department, said he expects a decision within a week or so on when the
hearing will be held.
Former South Dakota Supreme Court Chief Justice Robert A. Miller has been appointed hearing officer
to conduct the Transportation Commission's hearing. Miller is working with lawyers to set a hearing date, and the commission
then would officially confirm that date, Nevin said.
DM&E wants to rebuild 600 miles of existing track across South Dakota
and Minnesota and add 260 miles of new track around the southern end of the Black Hills to reach coal fields in Wyoming. The
Powder River Basin project would haul low-sulfur coal eastward to power plants.
DM&E, which was recently purchased by
Canadian Pacific Railway, has said it already has negotiated deals to acquire land along the expansion route from some ranchers
in southwestern South Dakota, but the railroad needs legal authority to use eminent domain to acquire land from those
unwilling to sell.
A 1999 state law, passed at the urging of then-Gov. Bill Janklow, provides that a railroad can use
eminent domain if it can show its project is a public use consistent with public necessity. The key element is whether a
railroad can show it has already negotiated in good faith to acquire land without using eminent domain.
If the railroad is allowed to use eminent domain, proceedings would be held in court to decide what compensation a landowner would
get.
Janklow, a lawyer, is now representing some landowners who would be affected by the DM&E expansion.
The railroad first
applied for state permission to use eminent domain on 30 Nov 2006, and a commission meeting on the issue was set to
take place less than a month later. Landowners objected because the schedule would have given them little time to prepare.
Further delays were caused by several changes in the hearing officer due to objections by parties in the case. Retired Supreme Court
Justice Robert A. Amundson eventually was chosen to run the commission's hearing, but he can no longer be the hearing officer
because he has become city attorney in Sioux Falls.
Miller, the former chief justice, recently was chosen to be hearing officer. Miller has already agreed to move the hearing from
Pierre to Rapid City so it will be more convenient for ranchers whose land would be affected by the project, Nevin said.
The commission's hearing was scheduled for July 2007 but was delayed because a circuit judge ruled the commission had to pass new
rules for handling such cases. The commission eventually passed such rules, but the hearing was delayed again for several
reasons.
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