The Aberdeen News has profiled a lawsuit filed by Domina Law Group Managing Lawyer Brian Jorde challenging the constitutionality of a South Dakota law that allows companies to enter private property and conduct land surveys without owners’ consent.
As reported by the Aberdeen News, the suit was filed on behalf of McPherson County landowners against Summit Carbon Solutions, the company behind the proposed Midwest Carbon Express pipeline. It takes issue with a state law that allows companies to survey land without owner consent as long they have an open filing before the South Dakota Public Utilities commission and give 30 days’ notice. It claims the law violates both the U.S. and South Dakota constitutions by allowing companies to enter private property without consent and compensation, and that it allows permit applicants to unilaterally determine the damage. Landowners also filed for a preliminary injunction to stop Summit from conducting surveys until the lawsuit is settled, and have asked the court, rather than Summit, to determine what damages would be caused by the surveys and appropriate compensation.
According to Jorde, the lawsuit’s primary allegation is that anybody who follows the South Dakota law is in violation of the constitution, which means that the law would have to be found unconstitutional by a state court or, if appealed, the South Dakota Supreme Court.
The lawsuit supports its claims by pointing to provisions in both the South Dakota and U.S. constitutions that protect against land being taken without “just compensation,” as well as additional protections under the South Dakota constitution that prevents private property from being damaged or taken for public use without just compensation. It further states that the South Dakota constitution provides landowners with a right to compensation determined by jury and payment made prior to entry of their land. According to the lawsuit, landowners state they were notified by Summit that it would be using backhoes, spades, and other machinery that could cause potential soil disturbances on their land as part of the surveys. Some property owners claimed they were informed that Summit’s trenches could be dug as deep as six to ten feet.
In an interview with the Aberdeen News, Jorde stated that suits which challenge the constitutionality of a law can take anywhere from 12 to 18 months to resolve, but that there’s no way to be certain of any particular time frame. Jorde also noted that he has sought an agreement with Summit to halt its operations until the constitutionality of the law is determined. While that would apply only to McPherson County, Jorde stated that other counties in the state could raise similar challenges.
Read more about the McPherson County landowner lawsuit against Summit Carbon Solutions here.