South Dakota attorney David Ganje: New eminent domain bill filed, as once again the wealthy and powerful seek control

In the permanent ranks of political fiction we can find the principle of property rights. I have discussed property rights in prior pieces. 

I here consider a recently filed South Dakota bill addressing eminent domain and property rights. All things considered, however, we must first review certain principles of chemistry and hydrology. The periodic table is the organized array of all the chemical elements. In the periodic table of elements, we have 94 elements.

In the periodic table of politics, we have only two elements. Power and money. Now let us review the principles of hydrology. In hydrology, water always flows downhill due to gravity. In political hydrology, money always flows to power.

The state of the state is in a curious plight. An anomalous event occurred last year. Power and money were defeated by citizens voting in a citizen-supported referendum which considered and rejected a “property rights” law previously approved by those with power and money. 

(Editor’s note: the author references last year’s failed referred law 21, which would have created an underground pipeline that captured and transported carbon emissions from ethanol plants — like the one pictured above — through South Dakota, much of it on private land. Photo is public domain, posted on wikimedia commons.)

The new bill attempts to further limit those with power and money — state government — from controlling local government. Asserting local control by local government bodies such as counties and cities is political strategy often used to advance the protection of property rights. When local government creates laws, it is commonly referred to as the exercise of “home rule.”

This newly filed bill is unique,  it proposes a state statute under which the state empowers counties with specific lawmaking powers.

The bill also addresses other issues, such as eminent domain, which we can discuss later. In this piece, however, I focus on the eternal local-versus-central -government issue found in the bill. The bill prevents the state PUC permitting process from overriding local zoning or land-use ordinances concerning carbon or hydrogen facilities.

A longstanding legal doctrine can prevent a county from passing an ordinance:  preemption. The rule of preemption means a county’s authority in a particular area of law may be supplanted by state law. Business and industry groups will occasionally assert preemption to block local law.

In South Dakota, unless given a statutory grant of legislative power, a county may not pass an ordinance which conflicts with state law. Welcome to America. When an ordinance conflicts with state law, state law preempts or abrogates the conflicting local law, according to the state Constitution, Article IX, § 2.

In unresolved questions we are often obliged to defer to what I call “The Committee of Five” — the state Supreme Court. In one case discussing preemption, parties sued a ski slope operator due to a serious accident on the operator’s slopes. The plaintiffs sued under state tort law, but the operator defended by citing a county ordinance requiring skiers to assume legal responsibility for any of the dangers and risks of skiing.

The Supreme Court struck down the ordinance as conflicting with state law because state law allowed suits in  negligence, while the ordinance potentially prohibits such claims. (I personally prefer motorcycles as my method of practicing stupidity, although I will ski.)

The general “home rule” language in the newly filed bill is rather imperfect. Having said that, the terms relevant to my comments in this piece state, “A permit for the construction of a transmission facility designed for transporting carbon dioxide or hydrogen does not supersede or preempt any county or municipal building, land use, or zoning ordinance, regulation or rule.”

Buckle up for the arguments. But don’t bring any fresh popcorn as it will quickly become as stale and as unappealing as the arguments.

David Ganje is an attorney who practices natural resources, environmental and commercial law. The website is lexenergy.net.