Chet Brokaw, The Associated Press | Posted: Tuesday, October 9, 2007 11:00 pm
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PIERRE - A state hearing has been delayed again on the Dakota,
Minnesota & Eastern Railroad's application to acquire land by
condemnation for its planned $6 billion expansion project.
The South Dakota Transportation Commission was scheduled to
hear testimony Wednesday in Pierre, but the retired judge presiding
over the hearing delayed the proceedings indefinitely to consider a
number of motions.
Retired Supreme Court Justice Robert A. Amundson, who has been
appointed hearing officer for the case, heard arguments on a number
of motions made by people involved in the case. A new hearing date
will be set later after Amundson rules on the motions.
"No date to resume the hearing has been set yet, pending the
outcome of these motions," said Bill Nevin, the state
Transportation Department's lawyer.
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.
Among the motions pending in the case, some landowners have
asked Amundson to delay the hearing further to give them more time
to prepare.
The hearing so far has been set up to consider the acquisition
of land along the expansion route in southwestern South Dakota, but
some landowners along the railroad in eastern South Dakota are
seeking to intervene in the case, Nevin said.
One landowner also has asked Amundson to remove himself from
the case, a move that would require the appointment of someone else
to preside over the hearing, the DOT lawyer said.
Amundson originally had set the commission hearing on
DM&E's request for July, but the case was then put on hold
after a circuit judge ruled that the Transportation Commission had
to pass new rules for handling a railroad's application to use
eminent domain. The commission approved new rules in August.
State law provides that a railroad can use eminent domain if
it can show a project is a public use consistent with public
necessity. A key element is whether a railroad can show it has
already negotiated in good faith to acquire land without the use of
eminent domain.
