May 16, 2008 - 04:05:55 CDT
ABERDEEN, S.D. (AP) - A South Dakota judge says it's necessary for TransCanada Corp. to use eminent domain in disputes over access to land it needs for an oil pipeline through Marshall and Day counties.Judge Jack Von Wald said the Canadian firm has proved that the pipeline is a public use, citing increased demand for oil in the U.S.
A common carrier may exercise the right of eminent domain in acquiring right of way as prescribed by state law, he wrote.
Furthermore, the company didn't engage in fraud or bad faith, nor did it abuse its power, Von Wald ruled.
The next step in the condemnation process is a series of trials to set the value of easements across private property.
Von Wald's decision came after a two-day hearing last month in Britton.
Eminent domain gives a company or utility the right to use land in return for payment, even when easement agreements can't be reached. It does not transfer ownership of land.
Owners of 10 tracts of land in Marshall and Day counties made several arguments as to why they thought TransCanada had acted inappropriately in trying to gain easements to build the Keystone Pipeline:
n Pipe thickness: Trans-Canada was granted a permit from federal regulators to use a slightly thinner pipe than it otherwise would have been allowed to.
n Route: Landowners argued that a route to the east of the one planned would be safer. But, Von Wald wrote, there was conflicting evidence about that at a Public Utilities Commission hearing.
n Negotiations: Trans-Canada presented offers to all of the landowners, and state law does not require easement negotiations before condemnation, so the company did not act in bad faith, the judge wrote.
n Multiple pipelines: While Von Wald found that the company should amend easements so there is no question that the documents could be legally interpreted to permit multiple pipelines, he said there is no evidence of fraud.
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