A Landowner Rights panel discussion was held during the South Dakota Farmers Union State Convention
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Spink County Commissioner Suzanne Smith encourages other county governments to establish ordinances to protect property rights and citizens. She was among a group of panelists to speak on a Taking Back Landowner’s Rights during the South Dakota Farmers Union State Convention. Other panelists include (left to right) Drew Dennert, Brown County Commissioner; Curt Soehl, Sioux Falls City Councilor; Mitch Richter, moderator and Brian Jorde, attorney Domina Law Group (participated remotely.) (Courtesy Photo)
HURON, S.D. — County Commissioners have the power to protect landowner rights. It requires bravery. And if you think your land is not in danger of private interests using eminent domain to lay claim to it – just wait.
These were the messages shared by panelists to a packed convention hall during the Landowner Rights panel discussion held in Huron during the South Dakota Farmers Union State Convention November 30.
“Ultimately, this all comes down to you on the ground. And it comes down to courage,” said Brian Jorde, Managing Lawyer, Domina Law Group. “Last session legislators did not have courage. For those of you who have not been active on this. We need you because you are next. If slow but steady erosion of property rights is not confronted, you will be next.”
Jorde was joined by Suzanne Smith, Spink County Commissioner; Drew Dennert, Brown County Commissioner and Curt Soehl, Sioux Falls City Councilor.
“The panelists did an outstanding job expressing the intimidation these County Commissions had to go through to protect their landowners – but the ordinances worked. They were upheld by the Public Utilities Commission,” said Ed Fischbach, a fourth-generation Mellette crop and cattle farmer who has been advocating for property rights since receiving a survey notice letter from Summit Carbon Solutions July 2021.
The ordinances Fischbach references were established by County Commissions and put setbacks in place that restrict how close a CO2 pipeline can be to residences and high concentration areas such as schools and roadways.
Today, only five South Dakota counties have ordinances in place. More need to follow suite said Smith who has served as a Spink County Commissioner since 2017.
She urges other counties to pass ordinances because they protect property owners and citizens of the county.
“We were harassed from very beginning on this from Summit, “we are going to sue you, we will sue you.” “That’s fine, go ahead and sue us.” And they did,’” Smith said.
Smith shared that when a chair of another county commission told her she was brave for writing the ordinance, she said, “There’s nothing brave about doing the right thing.”
The other counties that have similar ordinances are: Brown, McPherson, Moody and Minnehaha. To view Spink County Hazardous Liquid Pipelines ordinance, it is on the homepage of the county website www.spinkcounty-sd.org.
Safety of rural citizens is a concern
Using eminent domain for private gain goes against landowner rights policy established by South Dakota Farmers Union members decades ago, said Doug Sombke, President of the organization. And because current state laws do not fully protect private property rights, Sombke encourages county governments to step up to protect landowners’ rights.
“Every problem that we face is local. The one way to stop this and keep our families safe is if County Commissions across South Dakota pass ordinances to make it safe for their citizens,” Sombke said.
In addition to violating property rights, safety of a CO2 pipeline was another concern discussed.
“My concern would not be for the City of Sioux Falls, who has one of the top 37 fire departments in the country. I don’t know what a rural volunteer fire department would do …We all know they (CO2 pipelines) are very dangerous if they were to erupt. If you have a rural fire department that is taking care of these pipelines I would every concerned for safety of the crews or the residents,” said Soehl, who served 20 years on Sioux Falls Fire Department and was captain in the Hazardous Materials Unit.
Safety is also a concern expressed by Fischbach. “This pipeline is only buried four-feet in the ground. How many of us have buried our combines more than four-feet in a wet year? And if you hit it, you are done,” said Fischbach referencing the fact that if a CO2 pipeline springs a leak, the result is much different than a natural gas or fuel pipeline. “The gas will asphyxiant you – you will not be able to breath. This is the testimony I heard from first responders to a CO2 leak in Mississippi.”
Safety concerns are among the reasons Ipswich farmers, Lance and Sarah Perrion called on their County Commissioners to establish an ordinance a while back.
“When we asked what the county would do to protect us from a leak, they said it would be our responsibility,” explained Sarah Perrion. “So, they expect my kindergartener to carry a gas mask to school?”
While the Perrions wait for Edmunds County to implement an ordinance, they join a growing number of rural citizens willing to show up to support South Dakotans First Coalition. It’s the nonpartisan coalition South Dakota Farmers Union helped launch in October of 2023.
South Dakotans First Coalition is dedicated to safeguarding and upholding the property rights of individuals against the encroachment and profit-seeking actions of corporations. The bottom line is no eminent domain for private gain.
Yankton farmers, David and Ione Cap are grateful that something is being done to help protect the land that has been in David’s family for more than a century.
“The ground that our cattle graze today was cared for by my forefathers who had it before me. They took good care of it,” said Cap, 82. “I have taken good care of it and I hope that when I pass it on to our grandchildren it is in even better shape than when it was passed to me.”
To learn more about South Dakotans First Coalition, visit www.southdakotansfirst.com. And to learn more about how South Dakota Farmers Union supports family farmers, ranchers and rural communities, visit www.sdfu.org.
Back in October, when Navigator CO2 Ventures announced that it had killed its proposed $3.5 billion, 1,300-mile Heartland Greenway carbon-capture pipeline across Iowa and several other states, news organizations carried the story on their front pages and at the top of their news programs.
Opponents — including some environmentalists such as the Sierra Club — cheered! They claimed victory in a long battle against the pipeline company that had sought to use provisions of Iowa’s eminent domain law to obtain easements for their pipelines.
Two other carbon pipeline companies, Summit Carbon Solutions and Wolf Carbon Solutions are pressing on with their own plans for cross-state carbon pipelines. Both are facing stiff resistance.
A story not as well covered by the news media is that of a growing accumulation of resistance to green energy projects in rural areas.
Robert Bryce, an independent author and journalist, has developed a database of projects rejected or banned by rural communities. Last month, his count moved up to 601 denials since starting his database in 2015 when the commissioners of Harvey County, Kansas, voted unanimously to ban commercial wind and utility-scale solar projects in their county. Harvey County is in south-central Kansas. It reports a population of 34,000.
You will likely hear more of this story in the future.
Roughly 80 percent of our population lives in urban areas. The rest of us are scattered rather thinly across most of the country.
City dwellers use lots of energy and densely populated areas tend to align with politicians concerned about climate change and so-called clean energy. But where are the power plants, windmills, solar farms and carbon pipelines located? Yes, of course, in rural areas.
For the amount of energy generated, the windmills and solar farms require a considerable amount of land and additional land for the power grids that connect them. Generators, in particular, spoil landscapes and pose hazards to anything that flies on a wing. And no one knows what happens when the useful life of a windmill is over. Will it simply be abandoned?
Rural residents may not carefully analyze all the factors of renewable energy, but they are intuitively and correctly concerned.
Another controversy is the motive force that connects renewable energy installations: Big government, big oil, big business and big banks. Why? Because most of these projects are financed, in part, by federal tax credits.
Big companies love tax credits — it is pure free money — and they can be sold to other taxpayers. A tax credit for an individual or corporation is better than a tax deduction. A deduction reduces the amount of income taxed. But tax credit reduces the amount of a taxpayer’s federal tax liability. It is having someone else — the government in this case — pay your taxes while you keep all the income. Tax credits were increased in the Bipartisan Infrastructure Act of 2021 and increased again in the Inflation Reduction Act of 2022.
Back to those carbon pipelines. When the tax credit was raised to $85 per ton of carbon dioxide in the Inflation Reduction Act, capturing and transporting carbon from concentrated sources like ethanol plants became economically feasible. Proposals for pipelines across Iowa appeared almost overnight. We shouldn’t have been surprised.
Expect more resistance to renewable energy projects in the future. This issue pits two classic constituencies — rural and urban — against each other.
Add in massive deficit spending augmented by generous tax credits and insincere political rhetoric of taxing big corporations, and you might have a politically explosive mix on your hands.
Fellow Democrats, liberals, and other sensible people regularly ask me what grounds for hope remain for good government in South Dakota. How about this:
The PUC had scheduled three weeks to hear Summit Carbon Solutions’ application for its plan to pipe CO2 across South Dakota from ethanol plants here and in Minnesota, Iowa, and Nebraska, up to an underground sequestration site in North Dakota. The PUC took maybe a couple hours to deal with just one issue: their own staff lawyers’ recommendation that the PUC reject the application due to Summit’s inability to comply with four counties’ zoning regulations, which the PUC declared last week in its rejection of another CO2 pipeline application from Navigator CO2 Ventures it would not overrule. All three commissioners agreed there was no way Summit could overcome that fatal roadblock in three weeks.
“Everybody’s put a tremendous amount of work into this, and it doesn’t seem to me to be fair to throw all of that out with a motion to deny. Summit is saying with time they can cure these deficiencies. I don’t know if that’s true or not, but I’m willing to give them the opportunity,” Nelson said [Bob Mercer, “Analysis: Summit Denial Might Not Last as a Win,” KELO-TV, 2023.09.11].
But Commissioner Gary Hanson and substitute Commissioner Josh Haeder weren’t having it, and Nelson succumbed:
“We need a clean process here,” Hanson countered. “The applicant had a responsibility to be ready when they first came. Obviously, they were not.”
Nelson’s substitute motion failed 2-1. He then announced he would back denial. “As I look at the two sections of statute that we’ve been working on this morning, we could go through three weeks and we would have, we would have a lot of this issue resolved,” Nelson said.
But at the end of those three weeks, Nelson continued, he still didn’t see a way to get past section 1 of 49-41B-22 — the law requiring the proposed facility comply with all applicable laws and rules — or the last sentence of 49-41B-28, the law that says without a pre-emption finding by the commission, no route shall be designated which violates local land-use zoning, or building rules, or regulations, or ordinances.
“And so I’m going to support the motion, and we’ll start clean,” Nelson said [Mercer, 2023.09.11].
The South Dakota Freedom Caucus has been at the forefront of this battle, actively opposing the use of eminent domain by private companies. On Friday, September 8th, the Caucus sent out nearly 10,000 robocalls to 18 legislative districts. The robocalls encouraged constituents to call their Representative or Senator to demand a special legislative session aimed at addressing the use of eminent domain by private entities and other related private property rights issues.
Vice-Chair Representative Tony Randolph added, “This decision reaffirms what we’ve been saying all along: private companies should not have the power to seize South Dakotan land for their own gain. We will continue to stand with our constituents and fight for their rights.” [South Dakota Freedom Caucus, press release, 2023.09.11].
The PUC reaffirmed no such thing. The PUC did not say that Summit cannot continue eminent domain proceedings it has launched against over 150 South Dakota landowners. The PUC did not overrule the law and case precedent that says (wrongly) that private companies may seize land through eminent domain. And the Freedom Caucus’s robocalls have not secured a Special Session. Yesterday’s decision certainly doesn’t affirm the Freedom Caucus’s influence. The only glancing way in which it affirms property rights is in its affirmation that counties may still enact zoning ordinances that reflect the interests of local constituents, and even on that point, the preeningly conservative Freedom Caucus has to acknowledge that it is fighting for government regulation that can block capitalist enterprise.
Dakota Rural Action, which is more interested in people than politics, more accurately thanks the PUC for standing up for local control:
“We are so grateful to the PUC commissioners for standing up for their constituents! They made the right decision for the future of South Dakota. We are also thankful to them for upholding our county ordinances!” said Joy Hohn, and impacted landowner and DRA member from Minnehaha County.
This decision by the Public Utilities Commission is another staunch victory for the importance and power of local government. It is also a clear repudiation of Summit Carbon Solution’s attempt to bully their way through the permitting process by threatening counties with lawsuits if they took up ordinances and asking the PUC to preempt those ordinances without submitting any evidence that they had attempted to comply with them. Notably, the point was raised through Commission questions that Summit has initiated condemnation lawsuits against one hundred and sixty landowners, as well as four counties.
“This is a great day for people over big money. Thankfully our commissioners and staff followed the law and denied Summit’s permit. It is a great day for the people of South Dakota!” said Ed Fischbach, an impacted landowner and DRA board member from Spink County [Dakota Rural Action, press release, received by DFP 2023.09.11].
As Bob Mercer points out, the PUC ruled yesterday not on the merits of the carbon dioxide pipeline but on this one local-control roadblock which may be overcome with a new application, a new map, and big economics:
Don’t be surprised when Summit applies again — and don’t be surprised if the next version of the pipeline is more ambitious, with a new leg to serve the Gevo aircraft-fuels plant that is planned at Lake Preston.
Nor would it be a surprise if the commission eventually approves Summit’s next application. Because, in the words spoken Monday by one of Summit’s attorneys, Brett Koenecke, carbon capture is “the future of agriculture” [Mercer, 2023.09.11].
If we can get South Dakota Republicans to say no once to a big corporate Republican project, we can get them to say no again. But those big corporate Republicans will keep asking, so folks who like land rights and local control will have to keep fighting.
The South Dakota Public Utilities Commission’s staff has filed a motion to deny Summit Carbon Solution’s application to construct a carbon dioxide pipeline, citing non-compliance with ordinances in Brown, McPherson, Minnehaha and Spink counties.
The news comes after Summit withdrew its request to have the commission overrule county ordinances. Another company trying to build a carbon pipeline – Navigator CO2 – failed earlier this week to convince the commission to preempt county ordinances that impose minimum distances between pipelines, homes and other places. The commission also denied Navigator’s permit application.
The PUC staff argues in its new motion that if the county ordinances are allowed to stay in effect, Summit’s proposed route would inherently violate county setback requirements. In other words, Summit would be asking the commission to approve a project that is not in compliance with county laws.
According to the motion signed by Staff Attorney Kristen Edwards, despite Summit’s claims that it would comply with local regulations, evidence has yet to be presented that it has secured necessary waivers or county permits. Given the noncompliance and the application’s potential legal complications, the commission’s staff recommends the application be denied while allowing Summit to reapply in the future.
The motion will be heard by the three elected public utilities commissioners on Monday at the Casey Tibbs Rodeo Center in Fort Pierre, at the beginning of what is intended to be a three-week hearing on Summit’s application. Meanwhile, Summit is in the midst of a weeks-long hearing on its planned route in Iowa, and has had its route rejected in North Dakota.
Chase Jensen of Dakota Rural Action, which has been working with opponent landowners, is applauding the motion in South Dakota.
“To proceed with three weeks of hearings would only serve to waste even more time, money and energy that our elected officials and citizens have already had to sacrifice,” Jensen said.
Ed Fischbach is a landowner from northern Spink County with land that would be crossed by the Summit project.
“We have felt for a long time that it’s time for both Navigator and Summit to move on, pull the plug and leave us alone,” he said Friday.
Summit wants to capture carbon dioxide emitted from ethanol plants in five states. The gas would be pressurized into a liquid form and transmitted via pipelines to North Dakota for storage underground, to prevent the gas from trapping heat in the atmosphere. For its value in helping to fight climate change, the $5.5 billion project would be eligible for up to $1.5 billion in annual federal tax credits.
Summit has not yet commented in response to South Dakota Searchlight’s questions about the PUC staff motion. The company has an opportunity to file a response arguing against the motion.
This story was originally reported by South Dakota Searchlight, which is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. South Dakota Searchlight maintains editorial independence. Contact Editor Seth Tupper for questions: [email protected]. Follow South Dakota Searchlight on Facebook and Twitter.
South Dakota regulators on Wednesday denied a construction permit for a carbon dioxide pipeline project, one month after a North Dakota panel did the same to a similar project by another company.
Navigator CO2 Ventures wants to build a 1,300-mile (2,092 kilometers) pipeline network across Illinois, Iowa, Minnesota, Nebraska and South Dakota, to carry planet-warming carbon dioxide emissions from more than 20 industrial plants to be buried over a mile underground in Illinois.
The South Dakota Public Utilities Commission voted unanimously to deny Navigator’s application for its Heartland Greenway pipeline. Chair Kristie Fiegen cited myriad reasons in her motion to deny, including the company’s lack of promptness and several objections to commission staff questions as well as struggles to notify landowners of routes and meetings. She detailed concerns related to safety, community growth, landowners and emergency responders, among other issues.
The proposed South Dakota route encompassed 112 miles (180 kilometers) and would serve three ethanol plants. The panel’s decision came after evidentiary hearing sessions in July and August.
Navigator expressed disappointment that the permit was denied, and was weighing its options going forward.
“Our commitment to environmental stewardship and safety remains unwavering, and we will continue to pursue our permitting processes in the other regions we operate in,” the company said in a statement.
The decision comes just days before the South Dakota panel is set to begin an evidentiary hearing Monday for a separate CO2 pipeline project, proposed by Summit Carbon Solutions, with a final decision expected by Nov. 15.
Brian Jorde, an attorney for South Dakota landowners opposed to the Navigator and Summit projects, expressed hope that Navigator might now drop the South Dakota leg of the project, given that most of the plants it would serve are in Iowa and other states.
Similar projects are proposed around the country as industries try to reduce their carbon footprints. Supporters say carbon capture will combat climate change. Governments and companies are making big investments in it. But opponents say the technology isn’t proven at scale and could require huge investments at the expense of alternative energy sources such as solar and wind power.
Landowners across the Midwest have opposed such pipeline projects, fearing their land will be taken and that the pipelines could break, spewing hazardous carbon dioxide into the air.
Other states continue to weigh Summit’s project, which would encompass a 2,000-mile network from 30-some ethanol plants throughout Iowa, Minnesota, Nebraska, North Dakota and South Dakota to an underground storage site in North Dakota.
The Iowa Utilities Board began its evidentiary hearing for Summit last month. It’s expected to last several weeks.
North Dakota’s Public Service Commission last month denied Summit a siting permit. The company subsequently asked the panel to reconsider. The regulators have a work session set for Friday to discuss the request. A decision will come after the meeting.
Summit this week withdrew its applications to Oliver County for two permits related to construction of injection wells for its underground CO2 storage site in central North Dakota.
The company’s move came after the county’s planning and zoning board voted last week to forward a denial recommendation to the county commission. The board had cited a lack of information from Summit, safety concerns and no financial or economic benefit to the county or residents, Oliver County Auditor Jaden Schmidt said.
Summit spokesperson Sabrina Ahmed Zenor said the company would work to address Oliver County’s questions and concerns and that it was confident of securing the necessary permits from the county.
The South Dakota Public Utilities Commission has unanimously rejected Navigator C-O-2 Venture’s application to build a carbon capture pipeline in South Dakota.
Navigator is one of three companies with plans to build carbon pipelines in the Midwest, including sections in Floyd, Butler, Bremer, Fayette, Buchanan, and Franklin counties. South Dakota regulators held public hearings on the company’s route through their state in late July and early August, then unanimously voted this week to reject Navigator’s application for a construction permit. The head of South Dakota’s Public Utilities Commission cited concerns about Navigator’s notices to property owners along the proposed pipeline route.
Navigator had objected to county ordinances restricting how close the pipeline could be built near homes, schools and other structures, but South Dakota utility regulators have also refused to override those county regulations. Navigator says they will evaluate the written decision from South Dakota regulators before deciding what to do next.
In early August, regulators in North Dakota rejected Summit Carbon Solution’s construction permit. The company has since altered its route in North Dakota in response to concerns about its proximity to Bismarck, in hopes that North Dakota’s Public Service Commission will reconsider the application. The permit hearing for Summit’s route in South Dakota is scheduled to begin Monday.
Meanwhile, the Iowa Utilities Board (IUB) hearing about the proposed Summit Carbon Solutions pipeline continued this week in Fort Dodge with testimony from witnesses who support the project. Landowners who oppose Summit’s pipeline testified over the first past two weeks of the proceedings.
The IUB has scheduled hearings to continue next week on Tuesday (09.12), Wednesday (09.13) and Thursday (09.14)
We're fighting for our homes and our land, and for the safety of South Dakota communities just like yours. But we can't do this alone, we need your help, so if you can, pitch in and let's make some hay.
We're fighting for our homes and our land, and for the safety of South Dakota communities just like yours. But we can't do this alone, we need your help, by being informed and taking action when it matters most.
