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HB 1111: House Considers Protection from Eminent Domain Today

The South Dakota House takes up House Bill 1111 this afternoon. HB 1111 doesn't get rid of the use of eminent domain by private corporations. But it establishes a clear procedure that railroad and pipeline companies must follow in seeking rights-of-way. HB 1111 defines "good faith negotiation" to include providing landowners with a written description of the proposed project, including reclamation plans, and an explanation of the company's estimate of fair market value for the land sought. The process must include a bona fide offer from the company, a counter offer from the landowner, and a response from the company. That response must be either acceptance of the landowner's counteroffer or a final offer from the company, not just a letter saying, "See you in court."

HB 1111 allows railroad and pipeline companies to start eminent domain proceedings thirty days after completing good faith negotiation. Companies seeking to take your land by judicial force must have all necessary federal and state permits in hand before starting the condemnation process. In court, a company must prove that it has obtained the permits, carried out good faith negotiations, and gotten agreements from at least 90% of the landowners along the route. The company also must prove the land is necessary for the project.

If a railroader or pipeliner obtains easements under HB 1111, it will have three years to put the project in motion. If the company doesn't start digging, or if it changes the project and the damages done to the landowner, the easement terminates.

I hate to distract from the debate over good bill we have by bringing up a better bill we could have. But we could make an argument that private entities shouldn't be able to use eminent domain at all. SDCL 11-7-22.1 seems to make that argument:

11-7-22.1. Acquisition of private property by eminent domain for certain uses prohibited. 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.

We don't let our own government take our land and hand it to private entities; why should we allow private entities to commit that crime directly? (And really, you Tea Party shouters who decry taxation as theft ought to be all over the eminent domain issue.)

Even if we can't end the tyranny of rich companies over individual landowners, we can embrace HB 1111 as due protection for South Dakotans against the predations of TransCanada, DM&E, and other land-grabbing corporations. House Transportation gave this bill a 10-3 "Do Pass"; tell your legislators to give it a similar thumbs-up on the House floor today and the Senate floor soon!


  1. larry kurtz 2012.02.13

    What about transmission lines, Cory? Are electric coops private entities?

  2. caheidelberger Post author | 2012.02.13

    Nothing on transmission lines in this bill, Larry. But in general, let's frame the question this way: should any entity other than your elected government have the right to take away your property for its own purposes, or even for proclaimed public purposes?

  3. larry kurtz 2012.02.13

    "ICYMI: Enbridge wants to lay a few miles of oil pipeline under Lake Sakakawea (whose bed already hosts 5 crude lines)" @cody_winchester

  4. Elliot Knuths 2012.02.13

    Who says even your government should?

  5. caheidelberger Post author | 2012.02.13

    Elliot, don't tempt me: when a Legislature behaves as irresponsibly as South Dakota's, I might go whole hog libertarian and agree with you.

    (breathe, drink some orange juice...)

    All rights have limits, even property rights. There is an argument to be made that the general welfare created by a road, park, or public square may outweigh the property claims of a very small minority of owners. However, I need to hear a really compelling case for the necessity of that public improvement and the inability to create such a public good on any other available property before I can countenance taking any citizen's property, even with fair compensation.

  6. Elliot Knuths 2012.02.14

    I'm just not a fan of government monopolies of any sort (primary example: the postal industry- much of the damage in that sector that happens today could have been avoided by allowing the industry to privatize, that sector wouldn't be having such a catastrophe today.)

    If the government thinks the benefit of an expansion is really worth it, they'll make the owner an offer he won't refuse. If they can't afford it (or any alternatives), then the benefit is not worth the cost, after all. When a government invokes eminent domain, especially in a context in which the supply side has virtually no control, things start to get really inefficient...

    Leninism and Fascism both experimented a little bit with seizing property from private parties for the "greater good," but we all know that defining such a complex thing is essentially impossible for any human(s) to do. Let's let the invisible hand do it, instead.

  7. Elliot Knuths 2012.02.14

    Sorry, the above post, much like fresh fruit, may lead to temptation.

  8. caheidelberger Post author | 2012.02.14

    Elliot, the Invisible Hand won't solve everything. It won't set aside green space and conservation acres. It won't do things that don't produce profit for shareholders. It won't build roads for everyone... certainly not good roads for South Dakotans. I do not invoke eminent domain lightly (longtime readers will recall I oppose eminent domain for the Lake Herman bike trail), but I acknowledge that sometimes, the government is justified in breaching one owner's property rights for the general welfare.

  9. Elliot Knuths 2012.02.15

    I'll let my favorite Nobel Laureate silence this argument (fast forward to 2:05 to get to the parks/conservation response.)

    Why can't we decide what's in our own best interest? Why do we need anything similar to a Proletarian Dictatorship to tell us what's in the "greater good" (which, let's face it, is a synonym for big business objectives, and corruption involving government officials), and to make us pursue that? If it's best for the people, the people will pursue it privately (Friedman mentions all the examples in the arts; surely we can also look to something like a privately run garden cooperative as another example. People kick in money, time, and energy for a quality-of-life profit.)

    I trust people. I believe that 99% of the time, people acting as a collection of individuals will act in a better, more feasible manner than their government will. I believe that a government that tells a citizen he has to sell the farm that's been in his family for generations to the government for the sake of an (imaginary) greater good is a monstrous government, no, a tyranny! . Greater good is a Utopian concept. Its only real world application is in dictatorships and oligarchies that attempt to justify their power by claiming their actions benefit the people. Even if there was a greater good, fair compensation would be near impossible. After all, what's fair compensation for something with a priceless personal value? I think it might be a little bit out of the reach of the buying power of tax-payers. But, we can certainly take out a loan to ascertain the funds. If we ask China, really, really nicely...

  10. caheidelberger Post author | 2012.02.15

    We do decide what's in our own best interest. We do so through democracy, because sometimes we need to do big things that are good for everyone but which we cannot do through individual action. Our government is not tyranny, because our government is us. We cannot let the majority run roughshod over the minority, but we are also occasionally justified in stopping a minority from holding back vital progress for the majority. Eminent domain is not the right tool for every project. It requires strict due process, clear public criteria, and burden of proof on those proposing the seizure of private property. But sometimes it is necessary and just.

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