January 6, 2009
By Vicky Wicks
RAPID CITY - The ongoing Dakota, Minnesota & Eastern railroad
expansion saga has been playing out in Rapid City this week, as
familiar characters gather at a hearing before the South Dakota
Department of Transportation Commission at Rushmore Plaza Civic Center.
The player best known to state residents is former Gov. Bill Janklow, now a Sioux Falls lawyer representing landowners.
Known
for his irascible approach, Janklow objected frequently during the
first day's testimony on Monday, Jan. 5, when DM&E attorney Brian
Donahoe elicited testimony from Randy Henke, a DM&E vice president.
Waiting
in the wings was Kevin Schieffer, former DM&E president who during
his tenure tried but failed to get a $2.5 billion Federal Railroad
Administration loan for the expansion project.
At
issue is whether railroad officials have made a good faith effort to
negotiate with landowners to acquire land for the project that would
haul coal from Wyoming's Powder River Basin to eastern power plants.
If
DM&E can show it has been fair to landowners, the commission can
approve the railroad's application to use eminent domain, or right of
condemnation, to take land from landowners who have refused DM&E's
offers, said Bill Nevin, commission attorney.
DM&E is
seeking eminent domain authority for the entire project, Nevin said,
which includes construction of a new western line from Wall to the
Powder River Basin and rehabilitation of an existing eastern line from
Wall into Minnesota.
Since DM&E started the project, it has
been taken over by Canadian Pacific, but the commission is following
through with the permit process started by DM&E.
“We're
proceeding with this hearing as if that - the acquisition of the
DM&E by the Canadian Pacific - does not change what we're doing
here,” Nevin said. “That may be a legal question that needs to be
answered later on.”
In his testimony, Henke said he has been
instructed to get permits in place, acquire the land, and tend to other
details so that Canadian Pacific can decide whether to fund the project.
Nevin
said the commission will make its decision after former state Supreme
Court Justice Robert A. Miller, who is serving as hearing officer,
reviews testimony and reports to the commission.
If the railroad
is granted condemnation authority, it will be able to take advantage of
a statute passed by the 2008 legislature that permits railroads
quick-take condemnation proceedings.
Black Hills legislators at
a pre-legislative cracker-barrel session held Dec. 3 said they'll try
to overturn that statute in the coming session.
But even if they
succeed, Nevin said he assumes the DOT commission will make its
decision long before July 1, when new legislation typically takes
effect.
Nevin said the entire week has been set aside for the hearing, which will include testimony from affected landowners.
Commissioner
Jerry Shoener of Rapid City said three of the nine commissioners
disqualified themselves, leaving six to hear arguments.
This article has been reprinted with the permission of the publisher. A full version of the article can be found online here.