Landowner Victory at South Dakota Supreme Court

FOR IMMEDIATE RELEASE: Friday, August 23, 2024

Landowners Facing Eminent Domain for CO2 Pipeline Win Victory at South Dakota Supreme Court

Summit failed to prove it is a “common carrier” under state law; cannot use eminent domain or conduct invasive surveys in South Dakota without consent or a jury trial

Pierre, SD – The South Dakota Supreme Court on Thursday ruled that Summit Carbon Solutions (SCS) has not proven that it is a “common carrier” or that CO2 is a commodity under state law, and so at this time is not authorized to use eminent domain to seize landowners’ property against their will for its dangerous and unwanted multistate CO2 pipeline and underground waste dump. “SCS has also failed to establish that the CO2 featured in this case is a commodity,” the justices wrote. The case was remanded for further lower court proceedings.

Landowners were represented by Brian Jorde of Omaha-based Domina Law Group, and affiliated with the South Dakota Easement Team landowners’ legal co-op.

The ruling is a major setback for Summit in both South Dakota, and across the proposed pipeline’s route, where landowners have consistently complained about the company’s invasive and illegal property surveying tactics and treatment of landowners. Without a declaration that Summit is a “common carrier” under South Dakota state law, it cannot conduct any invasive type of surveying where disturbance of land occurs without prior landowner consent, or else after a jury trial on the issue.

Landowners in Iowa are also challenging Iowa’s survey law. Hardin County landowner Kent Kaschike was sued by Summit for refusing survey access to his land, and the case has made it up to the Iowa Supreme Court, where oral arguments will be heard on October 8.

“The South Dakota Supreme Court has unanimously vindicated arguments against Summit’s CO2 pipeline by landowners and completely repudiated proponents’ reasons for supporting their boondoggle” said Ed Fischbach, a South Dakota landowner and farmer near Mellette, and member of the South Dakota Easement Team. “South Dakota landowners may rightfully refuse Summit’s surveyors, and any landowner that was violated by Summit’s invasive surveys can now go after this private company for damages. This is a huge victory for all of us who have been on the front lines of this fight, but South Dakota has once again demonstrated that ‘We Are Not For Sale’.”

“It’s a huge win for landowners who want nothing to do with this risky pipeline and have challenged Summit’s invasive surveying from the start. Eminent domain should never be abused for private gain, and we’ll keep fighting to stop these threats to landowners, not just from Summit but by other risky projects as well,” said Emma Schmit, Pipeline Organizer for Bold Alliance.“This is a major victory for property rights in the courts. Now, South Dakotans need to get out and vote NO on Referred Law 21 on their ballots, to help landowners overturn the bad pipeline bill (SB201) they all fought against and solidify protection of property rights.”

About South Dakota Easement Team:
The South Dakota Easement Team landowners’ legal co-op works to educate landowners and to support organizing those who are opposed to eminent domain for private gain, and works with attorneys to file landowner legal challenges to proposed pipeline projects, and lawsuits and appeals including constitutional challenges and condemnation litigation. (https://sdeasement.org)

About Bold Alliance:
The Bold Alliance is a network of “small and mighty” groups in rural states working to protect land and water. We fight fossil fuel projects, protect landowners against eminent domain abuse, and work for clean energy solutions while building an engaged base of citizens who care about the land, water, and climate change. (https://boldalliance.org)

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