Eminent-domain hearing in limbo: Rapid City SD Journal, 12/12/06

The status of a Dec. 22 hearing over the Dakota, Minnesota & Eastern Railroad's request to use eminent domain for an expansion project was uncertain Monday after DM&E asked for a different hearing examiner.

The South Dakota Transportation Commission had scheduled the hearing in Pierre to determine whether the rail line can use the legal procedure to gain the right to cross private land for its proposed $6 billion expansion to haul coal from Wyoming.

Bill Nevin, the attorney for the state Department of Transportation, said the attorney for DM&E recused the hearing examiner who was assigned to conduct the hearing. He said DM&E did not have to give a reason for its request.

"As a result of that, a new hearing examiner will need to be appointed. I expect that will probably happen by tomorrow," Nevin said late Monday afternoon.

Bill Janklow, the lawyer for some landowners, sent motions to the Transportation Commission asking that his clients be allowed to intervene and that the hearing be postponed.

"The motion for continuance is pending," Nevin said. "I assume the hearing examiner will take that up in the near future."

DM&E wants to rebuild 600 miles of track across South Dakota and Minnesota and add 260 miles of new track to Wyoming in order to haul low-sulfur coal eastward to power plants.

Opponents include some southwest South Dakota ranchers along the proposed route; residents in Pierre and Brookings, and the city of Rochester, Minn., and its Mayo Clinic.

Janklow, a former governor and congressman, said his clients had no formal notice of the hearing and limited time to get on the agenda, and would have difficulty traveling so close to Christmas.

Railroads are allowed by state law to take land from unwilling owners only if a project is for a public use consistent with public necessity. Railroads must also have already negotiated in good faith to acquire the property.

Rapid City SD Journal: http://www.rapidcityjournal.com