Fighting Eminent Domain for Carbon Pipelines in South Dakota: Landowner Rights & Compensation

When an out-of-state land agent pulls into your farmyard in Brown County, Minnehaha County, or Spink County demanding a permanent right-of-way for a high-pressure liquid carbon dioxide pipeline, signing their standard contract can permanently devalue your agricultural legacy. For years, private carbon capture developers threatened eastern South Dakota farmers with forced condemnation if they refused to surrender perpetual corridors across prime corn and soybean ground. However, landmark victories at the state's highest court and in the Legislature have fundamentally transformed landowner rights across South Dakota.

In Betty Jean Strom Trust v. SCS Carbon Transport, LLC, 11 N.W.3d 71 (SD Supreme Court 2024), the court ruled in favor of eastern South Dakota landowners by holding that a carbon pipeline developer had failed to prove it was a common carrier transporting a commercial commodity for hire under S.D. Codified Laws § 49-7-11. Following that judicial victory, the Legislature enacted S.D. Codified Laws § 49-7-13.1, which explicitly prohibits any entity from exercising eminent domain to acquire a right-of-way for, construct, or operate a pipeline primarily transporting carbon oxide. Despite this statutory ban, developers still pursue voluntary easements, file routing permits, and attempt pre-construction surveys, making it critical to understand your procedural protections under S.D. Codified Laws ch. 21-35.

Step-by-Step Process in South Dakota

Whether your farm or ranch is near Aberdeen, Sioux Falls, Huron, or Brookings, pipeline infrastructure disputes involve both administrative permitting and judicial proceedings in your local Circuit Court.

Step 1: Refuse Premature Easement Contracts and Verbal Survey Permission

Land agents frequently pressure property owners by claiming that 80% of neighbors have already signed and that holding out will result in a lower court award. Under S.D. Codified Laws § 49-7-13.1, carbon oxide pipeline companies cannot legally condemn your property if you say no. Politely decline to sign any easement, survey waiver, or access receipt until a South Dakota eminent domain attorney reviews the document.

Step 2: Intervene at the South Dakota Public Utilities Commission

Before constructing a transmission facility, a pipeline developer must apply for a siting permit from the South Dakota Public Utilities Commission, Pierre pursuant to S.D. Codified Laws § 49-41B-4. Affected landowners within a half-mile of the proposed corridor receive mailed notice and can file an Application for Party Status pursuant to S.D. Codified Laws § 49-41B-17 and S.D. Admin. R. § 20:10:22:40 within 60 days of the application filing. Intervening gives you legal standing to cross-examine company engineers, challenge safety plume modeling, and demand route denials where county setback ordinances are violated.

Step 3: Challenge Common Carrier Status and Condemnation Petitions

If an energy or non-carbon pipeline company attempts to initiate condemnation under S.D. Codified Laws § 21-35-1, it must file a verified petition in the Circuit Court for the county where your land lies, such as the Fifth Judicial Circuit Court, Brown County, Aberdeen, the Second Judicial Circuit Court, Minnehaha County, Sioux Falls, or the Third Judicial Circuit Court, Beadle County, Huron. The filing must include Form UJS-232, South Dakota, Unified Judicial System, Civil Case Filing Statement and a specific description of the property sought under S.D. Codified Laws § 21-35-2.

Step 4: Demand an Evidentiary Hearing on Public Use and Necessity

Within 30 days after being served with a condemnation summons, a landowner may demand a preliminary hearing to challenge the petitioner's right to take the land under S.D. Codified Laws § 21-35-10.1. At this hearing, the judge determines whether the company possesses statutory condemnation authority and whether the taking serves a genuine constitutional public use.

Step 5: Document Baseline Soil, Drainage, and Valuation Evidence

If a taking is permitted for an authorized carrier or if you negotiate a high-value voluntary easement, independent agricultural appraisers and agronomists must evaluate your property. They map subsurface pattern tile lines, test topsoil depths, and calculate the before-and-after fair market value of your entire farming unit.

Step 6: Proceed to a Circuit Court Jury Trial on Just Compensation

Under S.D. Const. art. VI, § 13, private property cannot be taken or damaged without just compensation determined by a jury. A twelve-person jury drawn from your county hears expert testimony and determines the full financial damages owed to you.

Negotiating Survey Access and Trespass Damages

Pipeline companies routinely rely on S.D. Codified Laws § 21-35-31 to demand entry onto private farmland for pre-condemnation examinations and surveys after giving 30 days written notice. However, in Betty Jean Strom Trust v. SCS Carbon Transport, LLC, 11 N.W.3d 71 (SD Supreme Court 2024), the court established two critical protections for South Dakota landowners:

• No Common Carrier Status, No Survey Right: Only entities vested with valid eminent domain power may invoke S.D. Codified Laws § 21-35-31. Because S.D. Codified Laws § 49-7-13.1 strips carbon oxide pipelines of eminent domain authority, CO2 developers cannot force survey access onto your land without your voluntary permission.
• Strict Ban on Invasive Digging and Core Drilling: Even when an entity holds valid condemnation power under S.D. Codified Laws § 49-7-13, statutory survey access is restricted strictly to minimally invasive, superficial visual inspections. Deep geotechnical soil borings, heavy equipment trenching, archaeological digging, and clearing crops constitute an unconstitutional taking unless the landowner consents or a jury awards compensation first.
• Right to a Jury Trial on Survey Damages: If authorized surveyors crush standing crops, compact wet fields, or leave ruts, the company is strictly liable for actual damages, and you have the constitutional right to have a local jury determine the payout.

Calculating Long-Term Crop Loss and Soil Compaction

Standard company damage worksheets typically offer a modest three-year crop loss formula-often 100% of yield in year one, 75% in year two, and 50% in year three-which severely undercompensates eastern South Dakota producers. When heavy side-boom tractors excavate a trench across glacial till soils in Lincoln County, Codington County, or McPherson County, the agronomic damage persists for a decade or more.

The Condemnation Hearing Process and Challenging Public Use

South Dakota provides some of the strongest constitutional protections against private eminent domain abuse in the United States. In Benson v. State, 710 N.W.2d 131 (SD Supreme Court 2006), the court confirmed that S.D. Const. art. VI, § 13 affords landowners greater protection than the federal Fifth Amendment by requiring strict public use-meaning the public must have a legal right to use the facility-rather than mere economic development or corporate tax credit generation.

When challenging a taking at a necessity hearing under S.D. Codified Laws § 21-35-10.1, landowners can demand discovery into the developer's shipping contracts and corporate structure. In Betty Jean Strom Trust v. SCS Carbon Transport, LLC, 11 N.W.3d 71 (SD Supreme Court 2024), the court ruled that lower courts abused their discretion by denying landowners discovery into whether captured CO2 was merely waste being buried solely to harvest federal tax credits rather than a commercial commodity transported for the public.

Who Pays Attorney Fees in SD Eminent Domain Cases

Many farmers hesitate to hire legal counsel out of fear that hourly litigation bills will consume their compensation award. Fortunately, S.D. Codified Laws § 21-35-23 creates a powerful fee-shifting hammer against lowball offers:

• The 20% Statutory Threshold: If the final compensation judgment awarded by the jury is at least 20% greater than the condemnor's final written offer filed with the court when trial commences, and the total award exceeds $700, the court must order the condemnor to pay your reasonable attorney fees.
• Expert Witness Reimbursement: Under S.D. Codified Laws § 21-35-23, meeting the 20% threshold also requires the condemning authority to pay reasonable compensation for up to two expert witnesses, covering your certified agricultural appraiser and agronomist.
• Judicial Enforcement of Fair Offers: In State Department of Transportation v. Clark, 798 N.W.2d 160 (SD Supreme Court 2011), the court emphasized that the statute penalizes condemnors who fail to make fair pre-trial offers, ensuring landowners are made whole.

How Much Does It Cost in South Dakota?

Understanding the financial breakdown of defending your land helps you evaluate whether to fight in court or negotiate as part of a landowner group:

• Court Filing and Intervention Fees: Filing an intervention application with the South Dakota Public Utilities Commission, Pierre costs $0. Filing a declaratory judgment or trespass action in Circuit Court carries a statutory filing fee of approximately $70.
• Contingency vs. Hourly Legal Representation: Most South Dakota eminent domain lawyers represent landowners on a contingency fee basis-charging 25% to 33% of the value added above the company's initial written offer-or through flat-rate per-acre landowner coalitions for administrative permitting fights.
• Independent Appraisal Costs: A comprehensive agricultural before-and-after appraisal by a Certified General Appraiser typically costs between $3,500 and $8,000, which is fully recoverable under S.D. Codified Laws § 21-35-23 if the jury beats the final offer by 20%.

How Long Does the Process Take?

Pipeline permitting and litigation in South Dakota unfold across distinct statutory timeframes:

• Survey Notice Period: Even where survey access is legally authorized, S.D. Codified Laws § 21-35-31 requires the company to provide 30 days prior written notice by certified mail.
• PUC Permitting Review: Once a transmission facility application is filed under S.D. Codified Laws § 49-41B-4, the South Dakota Public Utilities Commission, Pierre generally has up to 12 months to conduct evidentiary hearings and issue a final permit decision.
• Circuit Court Condemnation Litigation: Challenging necessity under S.D. Codified Laws § 21-35-10.1 must be demanded within 30 days of service, while full discovery, appraisals, and a jury trial typically take 9 to 18 months. Connecting with a local South Dakota eminent domain attorney in our directory ensures every statutory deadline is met.

Frequently Asked Questions (FAQ)