McPherson Co. landowners' lawsuit claims Summit surveys without consent are unconstitutional

Alexandra Hardle
Aberdeen News

A lawyer representing a group of McPherson County landowners has filed a lawsuit against Summit Carbon Solutions alleging that a law allowing companies to survey land without consent is in violation of both the South Dakota and U.S. constitutions.

The state law in question notes that anyone with an open filing before the South Dakota Public Utilities Commission can survey land without a landowner's consent so long as 30 days notice is given.

According to the lawsuit, several landowners received notice from Summit Carbon Solutions that their land would be surveyed with backhoes, spades and shovels, potentially causing soil disturbances. Some landowners claim that Summit informed them that trenches as deep as 6 to 10 feet would be dug.

The suit claims that the law violates the South Dakota Constitution in that it allows the company's entry to survey land without the owner's consent and without compensation. It claims the law allows the permit applicant to unilaterally determine the damage.

Brian Jorde, an attorney with Domina Law Group in Omaha, Neb., who represents the McPherson County landowners, said the lawsuit claims that anybody who follows the law is in violation of the constitution. But that means the law has to be found unconstitutional. A state court would make that decision. If appealed, the next step would be the South Dakota Supreme Court.

More:PUC approves Summit Carbon Solutions' request for a permit application deadline extension

Summit Carbon Solutions doesn't comment on current litigation

John Satterfield, director of regulatory affairs for Summit Carbon Solutions, said in a statement to the American News that the company does not comment on current litigation. The statement highlighted Summit's reasons for conducting surveys.

"Summit Carbon Solutions continues to work closely with landowners across the Midwest to create a mutually beneficial partnership built around voluntary survey permissions and easements. In South Dakota, the company has secured nearly 350 miles of voluntary survey permissions and has signed over 115 miles of voluntary easements.

"While Summit Carbon Solutions doesn’t comment on current litigation, we think it’s important to highlight the need and role surveys play. Surveys are a critical aspect of the project and permitting process," he said.

More:Landowners concerned about property acquisition process for carbon sequestration pipeline

Satterfield said that there are three types of surveys Summit conducts, each with specific objectives.

  • Environmental/biological: To study and minimize environmental impacts, including sensitive habitat and threatened and endangered species. 
  • Cultural: To study and minimize impacts on historic and cultural sites, including those important to tribes and Native American nations.
  • Civil/construction review: To verify land boundaries and to obtain critical information to ensure the safe construction and operation of the system. 

"We’re unsure why landowners’ counsel would advise them against achieving these important objectives; they are critical. We need to achieve these objectives to comply with regulations and do right by all stakeholders," Satterfield said in the statement.

Landowners' attorney wants Summit to halt activities

Cases like the one filed typically take between 12 and 18 months for resolution, said Jorde, although there is no way to determine with certainty a time frame. He said he has sought an agreement with Summit to halt its activities until the constitutionality of the law has been determined, although the case just applies to McPherson County for the time being. The law could also be challenged in more counties, he said.

Both the state and U.S. constitutions note that land cannot be taken without "just compensation." And the state constitution adds that private property cannot be used for public use or damaged without just compensation, according to the lawsuit. That's evident in Article 6, Section 13 of South Dakota's constitution.

More:A second carbon sequestration pipeline, dubbed Heartland Greenway, could be coming to South Dakota

Constitutionality questions

The Takings Clause in the Fifth Amendment of the U.S. Constitution, which is often cited when referring to eminent domain, also states that private property cannot be taken without just compensation. 

South Dakota's constitution also reads that landowners have a right to compensation determined by a jury and payment prior to entry of their land, according to the lawsuit. Article 17, Section 18 states that corporations taking private property for public use must provide compensation before any work is done. If landowners appeal, a jury will determine the damages as well as the compensation. So if the landowners are victorious, Summit Carbon Solutions would not be allowed to determine the compensation amount and would not be allowed on the land before payment.

The South Dakota law allowing companies land access to survey without permission in advance deprives property owners of due process, the McPherson County landowners claim.

Both constitutions include clauses about protecting personal property, according to the lawsuit.

Landowners want judge to delay survey work

The landowners also filed for a preliminary injunction, which would essentially stop Summit from surveying until the lawsuit is settled.

Factors that determine whether a preliminary injunction would be granted include the consideration of the harm done to the plaintiffs, how much harm could be caused, how likely it is that the plaintiffs will succeed in court and the public interest, according to the lawsuit.

More:Landowners call for the dismissal of Summit Carbon Solutions permit application

Those factors weigh in favor of the landowners, according to the lawsuit, because more harm will be done to them.

The plaintiffs also ask that a court determine what damages will be caused by the survey work and any compensation, as opposed to Summit determining those things.