Eminent domain has been a hot topic for the state as carbon pipeline projects attempt to utilize the law to their benefit.
The state legislative research council was tasked to generate a report on what the law means for the state.
Melanie Dumdei is the Assistant Chief for Legal Council for the Legislative Research Council. She broke down the definition of eminent domain in the state.
“The LRC was tasked with creating an issue memorandum on eminent domain to provide an introduction to the legal and policy aspects of eminent domain. What we presented here, eminent domain refers to the power of the government to take private property for public use. It’s a broad definition of what eminent domain is. Followed by the legal framework of what makes up an appropriate action of eminent domain," said Dumdei. "That’s four legal elements. Private property that is taken for public use with just compensation.”
The South Dakota Supreme Court recently was tasked to determine if carbon pipelines were a common carrier. They chose to kick the decision back to the lower court with the stipulation that any transmission facility must be a common carrier.
The legislative executive board adopted a memorandum outlining a list of every agency that is allowed to utilize eminent domain in the state. One of those stipulations say “A pipeline company owning a pipeline that is a common carrier, to acquire right of way.”
Dumdei said the public use requirement is often the most contended issue.
“In South Dakota, we actually have a stronger public use requirement than what is at the federal level. At the federal level, following the Klelava vs the City of New London discussion in 2005, it was determined that what constitutes public use is a broader interpretation of something that constitutes public purpose. So, that brought in these situations in which economic development of a community can be a public use,” said Dumdei.
The executive board approved the LRC’s definition as agreeing with state statute.
