VIEWPOINT | South Dakotans are fighting for their neighbors' property rights

Guest column by Dustin Gawrylow, South Dakota Freedom Caucus

The big fight of the 2024 South Dakota Legislative Session is here, and that big fight is surrounding the property rights factors related to the Green Agenda and the Summit Carbon Solutions (SCS) CO2 pipeline.

The South Dakota Freedom Caucus has resolved to protect property rights and help our colleagues push back against the out-of-state forces seeking to push their rent-seeking, tax-credit harvesting, Green Agenda on South Dakota landowners.

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VIEWPOINT: Keeping South Dakota’s neighborly tradition

Pipeline advocates tout the idea that being a Good Neighbor solves the divisive CO2 pipeline issue. But what exactly makes a Good Neighbor?

Good Neighbors build good fences. Good Neighbors do that so they don’t burden their neighbors with errant livestock and dumb ideas. Good Neighbors don’t peddle Ponzi schemes. Good Neighbors don’t let foreign-owned companies divide communities. Good Neighbors don’t choose money over the bonds of friendship and family. Good Neighbors stand up for God given rights that are protected by our state and federal constitutions. 

Enter Summit Carbon Solutions and their “struggle” to be Good Neighbors. SCS’s communications to landowners include using eminent domain from the get-go. Negotiate, or we will take control of your land anyway. Some might call that coercion, but SCS calls it support. 

They also served legal papers to hundreds of landowners across three states, who continue to pay thousands for legal counsel to defend their rights and property. Not very Neighborly. 

The South Dakota Public Utilities Commission (PUC) decided that SCS was so bad at being Neighborly that they denied their permit - at least for now. 

Some farmers complied because, as Good Neighbors, they didn’t want to push SCS’s thuggery across the fence. They also don’t believe their elected officials will look past the SCS campaign donations to preserve their constituent’s property rights. 

Turns out many of our officials in these states do NOT stand for property rights. The brave ones who stand with the landowners are attacked by what passes for “leadership” in our state governments.

Good Neighbors let other neighbors decide for themselves if a 24” diameter, 2,100 PSI pipeline filled with asphyxiant is something they want next to their homes. Good Neighbors don’t violate one of our most fundamental rights - private property. That right built a Nation and a State where “Under God the People Rule,” except when private corporations can spread enough fear and campaign donations to destroy what once was a Neighborhood. 

SCS’s makeover isn’t fooling anyone. They are Predatory Grifters, not Good Neighbors.

Below is the list of bills being considered this session, as of February 2nd, 2024.  

We’ve attempted to categorize them by which bills have the strongest provisions in them.  It is worth noting that some of the leadership bills, while they do not go as far as we like, have some positive provisions.  In all likelihood, one of the leadership bills will be the vehicle for dealing with this issue - and our mission is to “beef it up” with provisions from the other bills that are stronger.

Stop the power grab

The first and most important task to defend private property rights is to defeat Senate Bill 201.  SB 201 is characterized as the “power grab bill” as it would do the most damage to weakening the ability of counties to protect their constituents.  

It borrows from North Dakota’s statute that creates more of a power struggle where the PSC is basically forced to override the local counties - whereas existing statute prefers county ordinances and local control in the process.  

The neighborly thing to do in the fight over the CO2 pipeline is to not try to take power away from local governments, and the officials elected locally to represent their neighbors

Leadership bills that need beefing up

House Bill 1185 adds requirements necessary in order for a private company to access land to do survey work.  

House Bill 1186 states that “carbon pipeline easements” shall be treated the same as all other easements.  One critical provision of the bill is that quote: 

“Any carbon pipeline easement runs with the land benefited and burdened and terminates upon the conditions stated in the easement, except that the term of any such easement may not exceed fifty years. Any carbon pipeline easement is void if no transportation of carbon dioxide associated with the easement has occurred within five years after the effective date of the easement.”

These limits partially address some concerns about “perpetual” or “99 year” easements being bought and sold as a commodity itself.

The bill also creates an annual payment/royalty for landowners: 

“Payments associated with the granting or continuance of any carbon pipeline easement must be made on an annual basis to the owner of record of the real property and must include a payment of at least one dollar per linear foot of carbon pipeline on the property, payable each year the pipeline is engaged in actual transportation of carbon dioxide. “

Provisions that need to be taken seriously

House Bill 1190 addresses a very important issue and specifically states that:

“An economic development effort or other undertaking, which is designed to increase the tax base, increase tax revenues, increase employment, or improve general economic well-being, is not sufficient to constitute a public use, unless the effort or undertaking also meets one of the requirements set forth in this section.”

House Bill 1193 requires fully approved permits to be issued by the Public Utilities Commission prior to survey or examination work beginning.

House Bill 1203 requires that the landowner attorney fees and expert witness costs be reimbursed if the court declares the condemning party must pay at least 20 percent more than the original offer for an easement to a landowner.

House Bill 1219 outright prohibits the use of eminent domain for the support and construction of a carbon dioxide pipeline.

House Bill 1243 allows any party eligible to extend deadlines for Public Utility Commission actions.

House Bill 1231 seeks to prohibit any foreign state-controlled entity from buying or holding agricultural land in South Dakota, and require the land be forfeited if violated.

House Bill 1256 requires a minimum of 90 percent voluntary landowner involvement for a pipeline to transport any commodity.

Senate Bill 218 declares that only a company recognized as a public utility qualifies for the use of eminent domain.

Dustin Gawrylow is the managing director of the North Dakota Watchdog Network and the coordinator of the North Dakota Energy Council; and has been contracted to represent the Freedom Caucus State Network as a registered lobbyist during the 2024 legislative session.