Takings Clause Argument on Smoking Ban? Fire That Lawyer...

Gosh darn it! Mr. Powers over at Dakota War College appears to have misplaced a fun little post he had yesterday claiming that the indefatigable opponents of South Dakota's new indoor smoking ban would try using South Dakota's takings clause to sue the state for compensation for any business losses:

It’s in the South Dakota Bill of Rights that “Private property shall not be taken for public use, or damaged, without just compensation.” Well, certainly one’s business would be considered private property. And it’s indisputable that because of the passage of this law limiting the use of private property that they will, in fact, incur damages of an economic sort [Pat Powers, "I Think They Ought to Send Their Bill to Jennifer Stalley," deleted from Dakota War College, 2010.11.15].

Why the backpedal and delete? Perhaps the lawyers in the War College peanut gallery (I know at least one such sensible solicitor) pointed out that a takings-clause or eminent-domain suit on indoor air quality will go nowhere. The takings clause applies when the government takes private property for public use. The smoking ban takes no private property. It stops private pollution of public property, the air we breathe in public places (thanks, Bill, for the idea!). Banning smoking indoors is more like forcing a property owner to remove a sign that hangs over the public right of way or chop down a tree that has grown to obstruct the sidewalk or the view at the intersection. The takings clause has no application in such situations where the public use is already established.

Or maybe Pat's hypocrisy alarm went off. He's never stood up for South Dakotans or Nebraskans or Texans facing eminent domain at the hands of a foreign corporation. But let the Legislature and the voters of South Dakota impose an environmental rule that annoys his business pals despite no clear evidence of economic impact, and Pat's up in arms. I guess Pat backed down from exposing his property rights flank.

More Landowners Organize to Stop TransCanada, Eminent Domain, and Tar Sands

Our friends at Plains Justice put up some useful information on the proposed TransCanada Keystone XL pipeline:

1. First, Plains Justice lists the chemical cocktail TransCanada wants to run under our farmland and across our aquifers. And TransCanada has the gall to say the risk is theirs, not the landowners'.
2. Plains Justice also links to a new online documentary from the Center for Energy Matters. The video shows Oklahomans and Texans who are disgusted by tar sands, eminent domain, shady business, and TransCanada's threat to clean water.
3. If you're on the Keystone XL route and TransCanada's land agents are trying to push you around, Plains Justice points to a website that may help. TransCanadaAbuse.com has set up a hotline to take reports on TransCanada's heavy-handed land-grab tactics and other abuses of landowner rights. Don't let TransCanada give you the shaft: call TransCanadaAbuse.com at 1-866-363-4648 and stand up to foreign oil!

Here's the Clean Energy Matters video:

TransCanada, Nebraska Law Hide Fair Market Value from Condemnation Proceedings

Here's one more small way in which the eminent domain with which TransCanada threatens landowners is wholly unfair. Mother Jones posts a redacted PDF version of a letter TransCanada sent to a Central City, Nebraska, landowner making the final dollar offer for easements for the Keystone XL pipeline. We don't get to see the dollar figure... and neither will the judge if TransCanada goes to court to seize the land. Writes TransCanada's senior land robber baron Tim M. Irons:

While we hope to acquire this property through negotiation, if we are unable to do so, we will be forced to invoke the power of eminent domain and will initiate condemnation proceedings against this property promptly after the expiration of this one month period. In the event that we are forced to invoke the power of eminent domain, this letter and its contents are subject to Nebraska Revised Statute § 27-408 and are not admissable to prove the existence or amount of liability [Tim M. Irons, TransCanada, letter to landowner, 2010.07.21].

Sure enough, Nebraska statute 27-408 says landowners condemned by this foreign company can't establish the market value of their property by showing the judge the fair market value the most interested buyer was willing to offer. Of course, one could argue that 27-408 applies to negotiations, and this letter doesn't sound like negotiation; it sounds like intimidation, take it or leave it.

The deadline was August 21. No word yet on whether TransCanada has pulled the legal trigger. But remember, TransCanada hasn't even received the necessary permits to build Keystone XL. As the Lincoln JournalStar points out, forcing landowners to incur the legal expenses of fighting eminent domain in court even before they know whether the legal fight is necessary is grossly unfair to landowners. If TransCanada truly respected American landowners, it wouldn't go near the courts until its pipeline received official approval, if at all.
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Side note on language: notice the weaselly use of passive voice by Irons. Twice he says the company "will be forced" to use eminent domain. Forced? By whom? This is standard corporate-speak, using vague passive voice to divest the corporation and the people running it of responsibility for the bad things they do. You aren't being forced, TransCanada. You are choosing to use the American courts against American citizens to take American land for nothing more than your own profit. (Irons does slip in paragraph 2 of the letter, saying, "Keystone will use eminent domain...." Credit for at least once owning the action with active voice.)

TransCanada Threatens Nebraskans with Eminent Domain Before Keystone XL Approval

TransCanada is swinging the eminent domain hammer on Nebraska landowners. Jane Kleeb at BoldNebraska reports that her neighbors along the proposed Keystone XL pipeline route have started receiving letters from the Canadian tar sands oil company threatening to condemn their land if they don't sign contracts with TransCanada within a month. Pretty ballsy, considering TransCanada hasn't even received permission from the federal government to build the pipeline.

Unlike South Dakota, where our Congressional delegation and other elected leaders have mostly rolled over for Big Oil, Nebraska's Republican Senator Mike Johanns has called TransCanada out on its Don Corleone tactics:

Landowners tell me that TransCanada has set arbitrary deadlines for acceptance of payment offers and threatened the use of eminent domain without so much as an approved permit to move forward with the project. In my letter, I ask TransCanada to immediately lift any deadlines imposed on Nebraska landowners and to negotiate in good faith [Senator Mike Johanns, press release, 2010.08.11].

It's about time I hear a Republican take his party's platform seriously and speak out against a foreign company using eminent domain to seize American citizens' property for its own profit.

TransCanada, of course, continues the corporate doublespeak:

TransCanada's commitment, number one, is to treat landowners with respect... and, number two, to work with landowners and come to a mutually acceptable agreement on easements whenever we can [Jeff Rauh, TransCanada spokesman, quoted in Art Hovey, "Keystone XL Letters Cause Stir," Lincoln Journal-Star, 2010.08.14].

Treat landowners with respect... I guess that means TransCanada will call you Mister when they use the courts to steal your land.

Regents Seek Eminent Domain on Brookings Sorority House

The South Dakota Board of Regents appears ready to swing the eminent domain stick on SDSU's Alpha Xi Delta sorority. Vicki Schuster at the Brookings Register reports that SDSU wants to bulldoze the Alpha Xi Delta house on the south side of campus to build Phase II of the Electrical Engineering and Computer Science complex. The project has already replaced a lot of trees and old houses with brick and pavement. The Legislature this year authorized the Regents to offer the sorority $275K for the property. The sorority has thus far said no thanks... and if I were them, I would, too.

During my undergrad days, I had the pleasure of living three blocks west of Alpha Xi Delta, right at 8th and Medary, where the SDSU Foundation building now stands. I loved it. I lived within a two minute bike-sprint from class. I never had to drive to the Union or the library, even on the coldest night. If I owned the choice Alpha Xi Delta property in a tight housing market like Brookings, I would expect a much better deal from the Regents to give it up. Alpha Xi Delta won't find a location as good for its replacement, and I suspect they won't be able to build a house of comparable size for $275K.

The value isn't just the building and location. The Regents are also taking away a prime recruitment tool for the sorority. Banish the sorority to scattered on-campus housing for a year or more while ΑΞΔ builds a new house, and the organization loses a year of easy recruitment, weakening the group for more than a couple years.

I'm no fan of the Greek system, but they're entitled to protect their organization's interests and demand a fair market price for their property like everyone else. Eminent domain is acceptable for cases of absolute public necessity. I haven't heard the case yet for the absolute necessity of another new classroom/lab building on the south edge of campus.

I haven't gotten the minutes from this week's Regental meeting yet, so I don't know for sure that they passed their condemnation resolution. Let's hope they don't ned to use it and can instead make a deal that satisfies all parties.

Five Years after Kelo v. New London: Fight the Capitalist Dogs!

Mr. Woodring at Constant Conservative reminds us of the fifth anniversary of the Supreme Court's Kelo v. New London decision. I agree with my conservative blog colleague that Kelo was an abominable decision, foisted upon us by my fellow liberals on the court who got property rights and eminent domain dead wrong. I am proud that South Dakota was the first state to pass legislation in response to Kelo to outlaw exactly the sort of private-private eminent domain transfer that Kelo upheld. (HB 1080 passed the 2006 Legislature with near unanimity.)

But I suggest that repudiating Kelo v. New London is not strictly Ron Paul libertarianism (a philosophy for which I still harbor sympathies). The City of New London forced homeowners to sell to Pfizer on the promise that Pfizer would build an extravagant research park that would raise property values and swell the city coffers. (Pfizer's promise fell through, and the land transfer was for naught.) In Kelo, the court narrowly held the taxable dollar value of land to supersede other values, like the sense of place, of home, of neighborhood. The court said that if you don't want to act like a capitalist and generate as much wealth as possible with your property, the government should take your property and hand it to a more avid exploiter.

As a homeowner who was able to build a fine lake house for a humble $100,000, amidst more extravagant lakeside temples to consumption worth triple and triple again as much, I found Kelo terrifying. I could easily see the Lake County Commission looking at my cheapskatery and saying, "Heidelberger's house is only generating $1700 in property tax. We know a Sioux Falls developer who can subdivide Heidelberger's land, build two McMansions, and generate ten times the property tax. Evict Heidelberger: we've got roads to fix."

Forcing a property owner to sell that property to another private party who can make more money on that property is akin to forcing construction workers and custodians to move out of town because we want our community to be populated by doctors and lawyers and other wealthy folks who can buy more stuff and generate more sales tax (Vail is like that). Rights should not depend on your economic output. Kelo and the slim liberal majority got that point dead wrong.

Mr. Woodring is right to lament the Kelo decision. I lament it with him. But remember: a rejection of Kelo is a rejection of the capitalist imperative. Some things, like having your home on your terms, are more important than money.

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Update 2010.06.25 09:20 CDT: Mr. Woodring continues the discussion! Worth reading!

Madison Names Price for Bike Trail Land Acquisition

On the agenda for tonight's Madison City Commission meeting: discussion of the how much the city will pay landowners for allowing construction of the Lake Herman Recreation Trail on their land.

You have page through nineteen liquor license applications to get to it, but on page 45 of the agenda packet, you can find out how much the city plans to offer David Pitts and other landowners for the privilege of taking the right of way permanently out of their use.

If I'm understanding what's written in the city's "acquisition formulas," each landowner gets $500 up front. Then the city goes to Shirley Ebsen's office at the courthouse, gets the highest per-acre assessed value of the land in question, and multiplies by 2.

For temporary easements (the land the city will need to run the equipment up and down along the construction route), the city multiplies that land value by 20%. The city will add another 10% for crop damage.

For permanent easements, the city multiplies the land value by 140%.

Now I haven't taken the tape measure out to David Pitts's land, but I'm guessing the rec trail would slice about three acres off the east edge of his land. Let's wild-guess the value at $3000 an acre. By the above formula, the permanent easement for that strip of land would be the following:

• $3000 x 2 x 1.4 x 3 = $25,200.

What do you say, David (and fellow farmers): is that price enough to seal the deal?

And if it isn't, is the city willing to go higher? Is this bike trail worth paying the price the market will demand? And if not, will the city risk the political fallout of eminent domain?

A bike trail would be nice. It would draw tourists and boost economic development. But as I heard a wiser financial head than myself say this week, the bike trail is a want, not a need. The city tonight will make clear the price it wants to pay. If David Pitts doesn't want to accept that price, then so be it. Eminent domain should not follow.

By the way, I went for a couple of bike rides this weekend. Both days I rode the county road that parallels most of the proposed bike route, 234th Street, from Lake Herman State Park to Madison, just as I have for 21 years. Nice smooth road, traffic generally light and polite. Sure, I'd enjoy another path, but I can get where I want to go now just fine with the existing infrastructure. Of course, if the county would like to widen the shoulders, I wouldn't complain. David Pitts might not, either.

City Postpones Hiring Lawyer for Bike Trail Eminent Domain

Two phrases I do not like to see in the same article: eminent domain and recreation trail. Those phrases were on the Madison City Commission agenda last night. The city was to consider authorizing a contract with Jencks & Jencks, P.C., to handle "legal and eminent domain actions" in acquiring the land necessary for the proposed Lake Herman bike trail. The contract approved up to $30,000 for the legal work (with the possibility of amendment upward), with hourly pay for the lawyers at $80.

But that item didn't stay on the agenda. At the beginning of the meeting, City Engineer Chad Comes asked for its removal.

The agenda change probably means little, probably just some more paperwork needs to be done before offering a contract to the law firm.

But if the city is even thinking of using eminent domain for the bike trail, they have a long row to hoe before getting the public (or me) on board.

Ethanol Pipeline Needs Federal Loan Guarantee... and Eminent Domain?

The market and I remain open to a debate on the merits of ethanol as a good alternative fuel. Ethanol creates jobs and market opportunities for local farmers. We're less likely to go to war to protect South Dakota farm fields than to secure oil shipments from the Persian Gulf. Ethanol profits are less likely to fund Hugo Chavez, al-Qaida, and Russian oligarchs.

But the ethanol industry still depends on government for its growth and existence. Consider Poet & Magellan's proposed 1800-mile, $4-billion ethanol pipeline. It sounds like a heck of a project, pumping South Dakota ethanol all the way to New York City with less carbon footprint than trucks or trains. But it also won't happen without Uncle Sam:

This is a big pipe... and it won't happen without an equally big boost from taxpayers. On Feb. 25, corn-state congressman Leonard Boswell (D-Iowa) reintroduced the Renewable Fuel Pipeline Act [HR 4674]. (Similar legislation is pending in the Senate.)

The bill's key provision is an 80% government loan guarantee. Without it, says Magellan CEO Don Wellendorf, there won't be a pipeline: "We're not willing to spend the kind of money it would take on a project that's viable only as long as the government continues its interest in ethanol" [David Whitford, "Building the World's Longest Ethanol Pipeline," Fortune via CNN Money, 2010.03.12].

Whitford further notes that this pipeline probably wouldn't have made the drawing board the government's biofuels mandates, enacted by big-government President George W. Bush in 2005 and expanded by the similarly minded President Obama.

Mentioned just briefly in the article is eminent domain. Poet and Magellan aren't there yet, but I wonder: how much right of way will they have to acquire? Will they deal more fairly with landowners along this route through much more populated territory than foreign TransCanada did when plowing through our prairie? And if they do, how will we feel about that?

Poet may find landowners more willing to play ball if they can demonstrate that local producers will be able to directly use and benefit from the pipeline, as TransCanada is now saying oil producers in Montana, North Dakota, and even South Dakota may be able to do with "on-ramps" into the Keystone XL pipeline. (If TransCanada would have offered a deal like that on Keystone I, I might have bought their "common carrier" justification for stealing our land.)

But remember: when Poet comes a knocking with its offer for your land, the only reason they can afford to be there is government help.

HB 1153 Tabled: Lange, Verchio Protect Property Rights

Last week I asked whether the Republicans sponsoring HB 1153 were taking their party platform seriously. HB 1153 removes barriers to eminent domain, making it easier for railroad companies to take your land. Weakening property rights doesn't seem to fit with plank 11 of the SDGOP's 2008 platform.

Maybe my neighbor Gerry Lange helped remind his colleagues of their principles. Rep. Lange joined some conscience-stricken Republicans in tabling HB 1153 this morning. Helping Gerry block this bill on a 7–5 vote were some Republicans I've taken a poke or two at on this blog, including Rep. Mike Verchio from Hill City.

But don't count a bill out until you hear the magic words "41st day."

HB 1153: Republicans Weaken Property Rights, Remove Barrier to Eminent Domain

Representative Shantel Krebs (R-10/Renner) and Senator Mike Vehle (R-20/Mitchell) are primary sponsors of a measure that would weaken South Dakotans' protection against eminent domain. HB 1153 would repeal the requirement that railroad companies get approval of the Governor or the Transportation Commission to exercise eminent domain.

A railroad company that wants to take your land would still have to go to court. The problem here is that HB 1153 eliminates one more chance that South Dakota farmers, ranchers, and other landowners have to make their case that their land is their land and that the railroad at least needs to offer a better price.

I see one Democrat, Senator Dan Ahlers (D-25/Dell Rapids), with his name on this stinky bill. The other 13 legislators who want to make it easier for certain powerful corporations to take your land are all Republicans.

Plank 11 of the South Dakota Republican Party platform of 2008 says "The South Dakota Republican Party strongly supports private property rights." HB 1153 says otherwise.

MDL Publisher Sends Mixed Messages on Eminent Domain

Madison Daily Leader publisher Jon Hunter still "lives with his contradictions intact." In his Tuesday editorial, Hunter lauds Representative Stephanie Herseth Sandlin for her sponsorship of H.R. 4288, legislation intended to negate the ills of the 2005 Kelo v. New London decision on eminent domain. Hunter apparently agrees with me that Kelo was one of the worst Supreme Court rulings of the past decade. He cites this press release from SHS:

"The Supreme Court decision in Kelo v. New London dealt a serious blow to the fundamental rights of the private property owner," said Rep. Herseth Sandlin. "In essence, the ruling means that governments can take your property and give it to someone else for private use. This was a dangerous precedent when the case was first decided and it remains a dangerous precedent that deserves congressional action" [quoted in Jon Hunter, "Property Rights Would Regain Some Stature If Bill Passes," Madison Daily Leader, 2009.12.15].

What Hunter fails to explain—and what would make an interesting follow-up editorial, or a discussion in the comment section beneath his editorials, if his newspaper website had one—is how his apparent revulsion at the prospect of eminent domain fits with his expression of support of the Keystone pipelines. Hunter rejects the use of eminent domain for private use, yet he never mentions TransCanada's resort to eminent domain for the construction of its private pipeline. In his November 23 editorial, he relegates eminent domain to a blithe subordinate clause referring to "challenges with acquiring rights of way."

So which is it, Jon? Is eminent domain for private use always bad? Is it o.k. for Big Oil? Or is it just another meme to signal your allegiance to the big business crowd?

Madison Press Loves Big Oil, Ignores Property Rights

Republicans love socialist redistribution... when it serves their big-business sensibilities. In the run-up to Turkey Day, Madison Daily Leader publisher Jon Hunter gave thanks for the TransCanada Keystone pipelines:

There are many challenges with acquiring rights of way, construction and financing to build such a pipeline. But in the bigger picture, we believe bringing oil from Canada and Alaska will be critical steps to help the United States free itself from its dependence on oil from the Middle East [Jon Hunter, "Despite Challenges, Pipelines Will Ease Energy Dependence," Madison Daily Leader, 2009.11.23].

Challenges—that's our man Hunter's convenient euphemism for the threat of eminent domain, the threat of forced socialist redistribution that TransCanada wielded to take property rights away from South Dakota landowners to serve its private business interests.

I remain amazed that we can't find one prominent Republican voice in this state who will stand up for South Dakotans' property rights against a foreign corporation.

Your Opinion: Eminent Domain for Madison Bike Trail No Go

Madville Times readers are apparently passionate defenders of property rights. Our latest poll asked "Do you support using eminent domain to extend Madison's recreational trail to Lake Herman?" The results:

• Yes: 21 (27%)
• No: 56 (73%)

If I were a Madison City Commissioner, I might well say, "That's that" for eminent domain on the bike trail. After all, if anyone is going to draw the sort of hippie socialist crowd that would favor seizing private property for the collective pedaling good, it's this blog. Yet even readers here appear to be saying a bike trail is not worth violating private property rights.

I'm still open to the argument that the social benefits of a bike trail outweigh private property rights in this case. But the city and trail supporters will have to work really hard to make that argument. In the meantime, let's offer all the landowners a more-than-fair price for the privilege of using their land. Let's give them ironclad assurances that state law protects them from liability (and that if state law doesn't, the city and county will).

And if the landowners turn down our offer, then we'll have to be content to find an alternative route.

A Bike Trail Is Not a Pipeline: Where I Don't Stand on Eminent Domain

Sibby cuts to to the heart of an issue that I've been grappling with myself on the proposed Lake Herman bike trail:

During the TransCanada pipeline issue, you took what I thought was a pro-property rights position. But now it is obvious that you are not for property rights. So your TransCanada position must have been based soley on your radical environmental ideological worldview [Steve Sibson, comment, Madville Times, 2009.10.25].

Steve isn't the only Sibson whom I expected to brand me as an ideological traitor, and I've been mighty nervous about that very prospect. I have been very vocal in my opposition to the use of eminent domain and my defense of personal property rights for everyone from the farmers and ranchers along the Keystone pipeline and DM&E rail routes to Madison's own Dick Wiedenman. Yet I have characterized farmer David Pitts's language in defense of his property rights against encroachment by a bike trail as "selfish, inconsistent, and at least unneighborly if not insulting."

Sibby and Jason Bjorklund both rightly ask, What gives?

Review the record: at no point have I said I support taking David Pitts's land or anyone else's by eminent domain for the proposed bike trail. I've said previously that I oppose using eminent domain to build a bike trail. When I heard folks talking about the prospect of resorting to eminent domain for this project, my heart sank.

But let's get clear on one thing: TransCanada's use of eminent domain to build the Keystone pipeline is very different from the potential use of eminent domain to build the bike trail to Lake Herman.

1. The TransCanada land grab transferred land rights from various private parties to another private party. Eminent domain for this bike trail would transfer private land rights to the general public.
2. TransCanada took land under the flimsy claim that its pipeline is a "common carrier," a notion I find laughable, since TransCanada is the only party making direct use of the pipeline. The Lake Herman bike trail would be open to use by all residents and visitors alike.
3. TransCanada's Keystone pipeline provides no direct benefit to any landowner whose land has been taken for the pipeline easement or to any adjoining community. A much stronger case can be made that the bike trail provides direct benefits to the community: increased tourism, increased sales tax revenue, more recreational activities, and safer bike and pedestrain travel in town and to and from Lake Herman State Park (and I'm not even working hard to think up those advantages). Even the landowner stands to benefit—I will posit that direct access to a bike trail increases the sale value of the land for residential and commercial development. (Real estate agents, feel free to chime in with your perspective!)
   

It is also important to note that we aren't even at the eminent domain stage yet. David Pitts sure makes it sound like he won't sell, no way, no how... but his position may be nothing more than hardball negotiation to squeeze from the city every penny he can get. I have no problem with driving a hard bargain to get the best market price possible, and from the sounds of it, the city will likely offer a price significantly better than market value to make this project happen.

As I said to Jason, I don't stand to benefit much personally from the bike trail. The shortest route for me to ride to town will still be Highway 34... and contrary to Mr. Pitts's opinion that I have all the time in the world, when it's 0°F, I want my ride to be as quick as possible.

I don't need a bike trail. I don't need David Pitts's land to get to class or the park or anywhere else I ride.

However, I can look beyond myself. I can recognize that a lot of casual cyclists don't feel comfortable going pedal-to-gas-pedal with texting teen drivers and rumbling semis. I can recognize that plenty of campers feel a bit uneasy taking their kids on a bike ride to town on a county road with no shoulder. And I can recognize that bicycle tourists won't make an extra trip to Madison just ride on the shoulder of a highway.

I hope Mr. Pitts will look at both his self-interest and the public interest and realize that expanding the right-of-way easement on his land can serve both. He can make a guaranteed pot of money up front and still sell his land for development, quite possibly at a better price. He can also pave the way for increased recreational opportunities and tourism that will benefit everyone in the county. The Lake Herman bike trail is a win-win situation. We shouldn't need eminent domain to make it happen.

But if Mr. Pitts can't see that, if he fails to see how he himself comes out ahead on this deal, the city will have to make a very clear and evidenced case that the public benefits of the bike trail outweigh the personal property rights of Mr. Pitts and the other landowners along the proposed route. I await the making of that case.

Pipeline Through the Heartland: TransCanada on the Farm

[Originally published 2009.09.04 07:30 a.m.]

The road west to the Sibson farm in Miner County. Look closely, and just below the horizon, you might see a pale green line...

...pipeline. 80-foot sections of oil pipeline, stretching a thousand miles in either direction, right through the heart of the Sibsons' land.

Mike and Sue Sibson live in western Miner County. They refer to their land, now sliced in half by the Keystone Pipeline, as their "homestead" of 30-some years.

"Homestead" is a powerful word. It recalls where our people came from: traveling across wild land, picking one spot out of a million possibilities, staking survival—financial and physical—on their best guess that this patch of land might produce a good crop. Our ancestors came in response to a simple promise from the government: build a house, grow crops, tough it out, and the land is yours.

The Sibsons thought the land they worked for was theirs. They chose a spot twelve miles out of town, built a home, paid the bills with corn, wheat, and cattle. By sweat and wits, they earned their farm. They figured it was theirs, plain and simple...

South Dakota farmer Mike Sibson in front of a section of the pipeline waiting to be welded and buried on the Sibsons' land.

...until last year, when a foreign corporation said, "No, actually, we can claim your land anytime we want," and the government to which the Sibsons pay their taxes replied, "Yup, sure can."

"I'm one of the only guys who can say he had a 2000-mile pipeline shoved up his ass," says Mike Sibson.

The Sibsons were one of several South Dakota families to sign on to a lawsuit last year trying to prevent TransCanada from using eminent domain to seize easements from landowners along the proposed Keystone pipeline route. The landowners struggled just to find a lawyer willing to take the case; Sioux Falls lawyer and legislator Scott Heidepriem signed on to fight the losing battle. The Sibsons and other litigants ultimately cut their losses and settled on confidential terms. It was as good a deal as they could probably get, but, as Sibson says, this taking of his land was still against his will.

Mike and his wife Sue were willing to give me a tour of the work site across their land. The Sibson home happens to be where the Keystone pipeline comes closest to my home, about 25 crow-flying miles east in Lake County.

Work crews started moving earth on the Sibson farm a few weeks ago. Crews skimmed off the topsoil first, heaping it in a miles-long berm on the west side of TransCanada's 150-foot construction easement. That digging cost the Sibsons a strip of wheat, though Mike doesn't blame TransCanada on that count: he knew at planting time he was gambling that the wheat would mature before the workers arrived. This cool summer didn't help the wheat beat the construction foreman's clock.

Plank road through wetlands on pipeline route

The crews have taken some measures to protect the land and water along the pipeline route. Wetland boundaries are marked with small signs; the pipeline runs through one such sometimes boggy area on the Sibsons' land. Crews lay big timbers to make plank roads through the wetlands for the big machines to drive on. That's good for the land, preventing the trucks and such from tearing deep ruts into the wet ground. It's also good for the project schedule, since no one wants to spend all day towing equipment out of the mud.

The wetlands markers also prohibit refueling of vehicles and machinery; if any diesel or other fuel is going to be spilt—and you're going to spill a little when you're operating machinery—it at least won't splash straight into the marshes and sloughs along the pipeline route.

No-refueling zone near wetlands on pipeline route.

"Made in India": markings inside one section of Keystone pipeline

Then comes the pipeline: 80-foot sections of Indian steel, laid out in a line all across South Dakota as it has been or will be across six other states and three provinces. As we toured the construction zone on the Sibsons' land, the welding units were just making their way south from Pump Station 22, one of four stations in South Dakota that will keep TransCanada's oil flowing at pressures up to 1,440 psi. As the welders approach, the insides of each section are scoured. Then workers grind the ends of each section to make sure the weld can take, joining these massive sections. The backhoes will follow to dig the trench for the pipeline. The welding machines then trundle forward in big shacks around the pipe to shelter the sections during joining.

Pipeline welders heading south.

Once the pipeline is in, the earth movers return to dig the trench. The pipeline is then rolled intact into its final resting place. Before the trench is filled, though, installers take one more precaution to protect the wetlands. If the pipeline were simply buried and left empty, awaiting completion of the entire line and the pumping of oil, that hollow steel might float back up to the surface in the mushy areas. To keep the pipeline down in the wetlands, crews will ease big concrete weights down on top of the pipeline before restoring the earth. Mike referred to them as "saddles," although that term seems to get things backwards: rather than the pipeline "riding" the saddles, these saddles ride the pipeline.

Pipeline "saddles" awaiting installation

"Saddle blanket" that will cushion the pipeline from the concrete on top of it

These saddles come with saddle blankets. The round inside of each concrete block is lined with a rough, fibrous layer of insulation, an inch thick, maybe more. That blanket keeps the concrete from damaging the pipeline when the saddles are lowered atop the pipeline. That blanket also prevents damage if the pipeline or the saddles shift at all, whether from the fluid dynamics of the high-pressure oil within or the shifting land (freezing, thawing, future tractor action) without.

The pipeline is an impressive engineering feat. Mike says he's heard the Keystone pipeline may be the biggest single construction project in the world right now. The total price tag for this line is $5.2 billion; add in the proposed Keystone XL extension and the total reaches $12 billion US. That's a lot of money moving a lot of earth, steel, and eventually oil. From a pure engineering perspective—and from the kid-at-heart-seeing-big-machines perspective—watching the pipeline go in is fascinating, like watching the Pyramids being built.

Mike Sibson takes me four-wheeling through the pipeline construction site on his land.

Mike Sibson is a bigger aficionado of heavy equipment and good engineering than I am, but understandably, he has trouble looking on the project with much enthusiasm. As interesting as the big machines and the construction process might be, they're still doing something to his land that he didn't ask for. That gash in the earth and those big green pipes are a visual reminder, a more vivid proof than any abstract philosophy or legal document, that his land really isn't his. At any moment, the pipeline says, folks bigger and stronger and richer can have their way with the land you've worked for.

Mike says he made it onto a list, circulated by TransCanada to its contractors, warning them that he is a "hateful landowner." If there is such a list, and if that designation has any truth, Mike's interaction with the workers doesn't show it. He says gotten along reasonably well with the pipeline construction workers, about as civilly as any of us might with a few hundred uninvited guests making permanent changes to our property. He understands that the men (I didn't see any lady hardhats roving the construction site, but then I only toured a mile or so of the route) from Michels Pipeline Construction and other contractors aren't responsible for the invasion of his land. These men have come from all over the country to work hard and earn a living, just as Mike and Sue do on their land.

Are you fellas sure this pipe isn't supposed to go through Minnesota? Mike Sibson (right) listens as a manager from Michels Pipeline Construction of Brownsville, Wisconsin, explains that the welded pipeline will block a cattle crossing for a couple days.

But the pipeline builders also need reminders to do things right. Their trucks used to race along the gravel road right by the house. Sue went out with a video camera one day to record the fast passages. A truck roared forward from its stop at the intersection. The driver saw Sue, saw the camera, and geared down fast. Handmade signs reminding drivers to "Reduce Speed" appeared shortly afterward.

The Sibsons noticed that when the workers first started coming through their land, trash was left here and there on the work site. The Sibsons complained, and workers started picking up after themselves a little better.

Mike also hears from fellow farmers and landowners to the north that when pipeline work started up in Marshall County, the workers prepping the pipeline sections for welding would leave the metal filings on the ground. Landowners complained, and now the contractors are careful to clean up those metal filings.

The Sibsons had to do some persuading to get the contractors to put up fences along the route. The pipeline runs roughly down the center of the Sibsons' main square mile, cleaving in half crops and land where they run cattle. The contractors thought the big dirt berms would keep the cattle from crossing the work site and getting into other fields. Mike said no, cows would tromple down those dirt piles like kids on the playground. The company then offered to compensate the Sibsons for any cattle that got hurt or killed stumbling into the pipeline trench. Mike said no, a good farmer doesn't let his herd suffer for no reason, especially not when that suffering can be avoided. Farming isn't just about money; it's also about stewardship. TransCanada o.k.'ed good fence along the pastures.

Worker grinds pipeline section ends for welding

The men building TransCanada's Keystone pipeline have accommodated many of the Sibsons' concerns. But they had to be asked. If the Sibsons and other landowners hadn't complained, TransCanada's contractors would have kept on doing what they were doing, however they saw fit. And now landowners along the Keystone pipeline route will have to maintain similar vigilance... well, forever. If TransCanada had negotiated an annual leasing system, then simple market forces could have held the company responsible: if their surveyors or repair crews would fail to respect the land or landowners, the landowners could decline to renew their leases the following year, or at least could demand more money in compensation for their undeserved trouble. But TransCanada would have none of that: a one-time payment, plus a little extra for lost crop production over the next couple years, and TransCanada can do as it pleases on that strip of land for the rest of the century.

The South Dakota Public Utilities Commission did offer some relief for landowners in the 57 conditions it imposed on TransCanada in exchange for the go-ahead to dig. There is, however, some question whether, if nuts came to bolts, the PUC has the legal authority to enforce those conditions.

Pump Station 22, Miner County, SD. PS-22 was originally sited for the Sibsons' land; luckily for the Sibsons, TransCanada moved the site to two miles north of their house.

Even if Pierre has any authority to hold TransCanada accountable, would Pierre use it? The Sibsons don't think so, not for the sake of common citizens. They felt the state blew them and other landowners off during the pipeline approval hearings. They see the Legislature refusing to put even a meager tax on the pipeline to provide for environmental clean-up. They note the slight jog east the pipeline takes just up the road near Twin Lakes, to avoid, says Mike, the state game land there, and see the state exerting its will to keep the pipeline off state land but not lifting a finger to minimize the intrusion on private land. They hear rumors of other state favors for TransCanada. They see the state's media avoiding any hint of negative coverage of the pipeline project (did you hear about the accident near Carthage between a fast pipeline truck and a young driver who ended up in the hospital? Neither did I). The Sibsons put all that together, and they see themselves stuck for a lifetime with a new corporate neighbor whom they'll have to watch like a hawk... since no one else will.

In the four-wheeler, Mike and I had talked about how when a bad deal is a done deal, you can laugh about it, or you can cry about it. We managed to laugh a few times during our trip out through the pasture and up and down the line. Back in the farm yard, Sue Sibson started to say something, then checked herself. I wanted to encourage her, maybe say playfully, "Come on, say it. What do you have to lose?"

But at that moment, all Sue was concerned about losing was her composure. She bit back her emotions, and we finished our conversation with smiles and handshakes.

Sue finished her thought in an e-mail later that day: "We had to stand up for the land and ourselves. Even though we have a crude oil pipeline now, we still had to stand up."

Had to stand up. For Sue and Mike Sibson, the obligation to stand up for the rights of landowners and citizens is obvious. Just as disheartening as the failure of the Sibsons' stand is the failure of our elected officials to stand with them.

Steam Train A-Not-Comin'! DM&E Coal Line on Hold

Did anyone else catch this? (Oh, well, of course Kevin Woster did.) The Dakota Minnesota & Eastern Railroad filed papers in federal court in Wyoming yesterday to drop its condemnation actions against several Wyoming landowners. That's good news in itself: any day landowners escape eminent domain proceedings is a happy day in my book. One attorney for the Wyoming landowners says DM&E probably spent more on litigation than it offered the landowners for right-of-way across their land... so serves DM&E right!

But the court papers contain bigger news: DM&E isn't dropping the eminent domain push because it just became the Good Fairy of Property Rights. DM&E is dropping the suits because it is dropping (for now) its Powder River Basin coal train project:

[DM&E says in the court papers] “There are uncertainties regarding the time when DM&E will be able to meet the necessary thresholds for the project, and it is clear that the project will not proceed in the immediate term.”

...In today’s filing, DM&E’s attorneys also stated, “Due to significant changes in the economic climate, DM&E cannot say that there is a reasonable probability that it will proceed with its Powder River Basin project in the near term.”

...“Available financing has tightened, and the country has seen a record economic downturn altering the strategic growth plans of nearly every industry in the country,” DM&E attorney wrote. “This has resulted in a longer timeframe for commencement of the project than anticipated at the time these condemnation actions were filed” [Dustin Bleizeffer, "DM&E Drops Condemnation Against Wyo Landowners; Railroad Suspends Powder River Basin Project," Casper Star-Tribune, 2009.08.26].

More cause to celebrate:

• The Powder River Basin Project is the same project that would have sent coal trains rushing along refurbished track in South Dakota and Minnesota. DM&E might still go condemning land for other purposes here in South Dakota, but with this project on hold, the company has that much less reason to do so.
• Score another victory for recession: if industries are slowing down enough to stop this rail project, that means they're also slowing down enough to use less coal. That means less emissions, less pollution, less demand for new coal plants... and more energy resources saved up for our great-grandkids.

Funny how a few legal papers can brighten one's day. Yahoo!

Update 15:15 CDT: Don't celebrate too hard, South Dakota. I hear on SDPB that Mike LoVecchio, spokesman for DM&E's parent company Canadian Pacific, is changing the story, saying the project isn't on hold, but that the company simply plans to deal directly with Wyoming landowners. The rail line will still happen; they'll just wait until the economy improves.

And here in South Dakota, CP/DM&E are still more than happy to have the power to take your land (remember 2008's SB 174?), granted to them by a Republican legislature. Grrrrr....

Curb-Gutter Assessments Unconstitutional; Sidewalks Next?

Dakota War College provides plentiful ponder fodder this morning. Mr. Powers points toward a KCCR story (which dang it, those radio guys haven't learned to permalink yet! Memo to management: Fix it! and see also the CapJournal coverage) which says that Circuit Judge Kathleen Trandahl ruled last week that the city of Pierre violated the U.S. and state constitutions by imposing special assessments for curb and gutter work. The court found that "Evidence showed conclusively that replacing curb and gutter provided no physical, material or quantifiable special benefits to the property but did provide significant benefits to the city and community as a whole." The special assessments were therefore a taking of private property without just compensation or due process.

Hear hear for the Fifth Amendment! West River landowners, take note: when TransCanada comes knocking on your door with backhoes and condemnation papers, file your suit in Judge Trandahl's court if you can.

So I wonder: are sidewalks next? I've previously suggested that perhaps sidewalks should be built with municipal funds rather than saddling homeowners with the entire cost. We need sidewalks just like we need curb and gutter, but homeowners give up valuable turf for a public good. And unlike with curb and gutter, homeowners (at least here in Madison) are expected to handle hiring a contractor or installing the sidewalk themselves.

Judge Trandahl's ruling, if it withstands possible appeal, could result in thousands of dollars of refunds for 55–60 Pierre residents who paid the special assessment. Hmmm... might the court's reasoning here form the basis for Madison residents to sue the city for a refund on the work they've done to install sidewalks at the city's behest?

TransCanada Files for Federal Permit for Keystone XL

Trench, baby, trench!

Hat tip to an eager reader: TransCanada cast its vote for more oil on Election Day, filing its application for a Presidential permit to build the Keystone XL Pipeline from Phillips County, Montana, to the Texas Gulf Coast.

Funny: Eager Reader points out that just a few days previously, TransCanada CEO Hal Kvisle was telling investors Keystone XL (a.k.a. Keystone Phase II) might be delayed 18 months by troubles in the oil sands. But hey, this is federal paperwork, so might as well get it in early, get the process moving.

Now remember, Keystone XL is the project that will slice across West River South Dakota from Harding County down to south of Winner (see map at TransCanada's website). We'll see if our West River neighbors are any more amenable to giving up their property rights to a foreign corporation than were some East River landowners along Keystone I. Eminent domain, anyone?

It appears that the filing opens a 30-day public comment period. For those of you so inclined:

Interested parties are invited to submit, in duplicate, comments relative to this proposal on or before December 4, 2008 to J. Brian Duggan, Room 4843, Office of International Energy and Commodity Policy, Department of State, Washington, DC 20520. The application and related documents that are part of the record to be considered by the Department of State in connection with this application are available for inspection in the Office of International Energy and Commodity Policy during normal business hours.

FOR FURTHER INFORMATION CONTACT: J. Brian Duggan, Office of International Energy and Commodity Policy, Department of State, Washington, DC 20520, telephone 202-647-1291, facsimile 202-647-8758, e-mail DugganJB@state.gov. [See Federal Register, November 4, 2008 (Volume 73, Number 214), Notices, Page 65713; see also that notice as press release at TradingMarkets.com.]

Chief Justice Miller: DM&E Eminent Domain Law Flawed

Dang: I guess we didn't need that push to refer SB 174 to a public vote. All we needed was one judge, Chief Justice Miller, to smell unconstitutionality in it. KELO reports that Justice Miller, the hearing officer in DM&E's request to use eminent domain for its coal train project, says he doesn't intend to "fully or blindly comply with or enforce the 90-day limitation" imposed by the new law because he considers it unconstitutional.

So does that count as judicial activism? And are landowners o.k. with that? That's something Sibby and I will have to think about....