Summit Carbon files more than 80 eminent domain lawsuits against South Dakota landowners
“We know there are going to be more landowners who are served,” a state representative from Lincoln County said. “They haven't even started in [Minnehaha and Lincoln counties].”
LEOLA, S.D. — Mike Klipfel knew this day would come soon enough.
On April 24 and 25, the Leola resident was named in three separate eminent domain lawsuits brought by Summit Carbon Solutions, the company behind a carbon sequestration pipeline that will chart a course across three different parcels of his land and 300 feet from his family home.
“If they can do it to us, they can do it to you,” Klipfel, who can trace his roots back nearly 140 years in McPherson County, told Forum News Service in a May 2 interview. “And they will if you have something they want.”
Klipfel is one of at least 80 landowners in 10 South Dakota counties, most of them in the northern half of the pipeline’s route through the eastern part of the state, facing eminent domain lawsuits filed by Summit Carbon over the past week.
Since the company has been “unable to acquire the necessary easements by agreement,” it’s seeking to “exercise its right of eminent domain,” the lawsuit against Klipfel reads.
Jesse Harris, the director of public affairs for Summit Carbon, framed these lawsuits as a “next step” in a process that has involved, among other things, “negotiating in good faith and partnering with thousands of landowners.”
“We look forward to continuing to work with regulators, policymakers, landowners and more to advance this critical investment in our economy,” Harris continued in a written statement to Forum News Service.
Some landowners dispute Summit Carbon’s stated desire to form partnerships
For most South Dakotans on the proposed pipeline route, contact with Summit Carbon began nearly two years ago. According to some of these landowners, the interactions with representatives of the company over that period of time have been frustrating.
“We can’t get any facts to even make these decisions, nothing is out in the open,” Jared Bossly, a Brown County landowner who is also the subject of condemnation proceedings, told Forum News Service. “It’s a one-way street. They want to get it rammed through as quickly as they can.”
Others recount “intimidating” groups of surveyors, as many as 20 vehicles strong, accessing property slated for the pipeline without permission.
“We don’t have any protections for that in this state,” Klipfel said.
However, in statements to the press and comments to lawmakers, Summit Carbon has centered a desire to form partnerships with landowners and promised that its easement offerings were more than fair.
On April 1, a few weeks prior to opening condemnation proceedings, the pipeline company mailed a few hundred South Dakota landowners a “last offer to purchase easement,” which offered contacted landowners 10 days to respond.
“It is our sincere desire to work with you on mutually agreeable easement terms that support the project's timeline,” reads a copy of the letter obtained by Forum News Service.
According to a copy of the lawsuit against Klipfel, Summit Carbon is looking to obtain “permanent and temporary easements” for the “construction and operation” of the pipeline, a 2,000-mile mega-project that plans to capture carbon from ethanol plants and other biofuel facilities in five Midwestern states and transfer the liquified pollutant into a sequestration site in North Dakota. About 470 of those miles chart a course through South Dakota.
To make good on the estimated $4.5 billion cost to construct its pipeline, Summit Carbon will profit from a combination of federal incentives for stored carbon as well as carbon derivatives on the open market, investments spurred by “net-zero” climate goals and low-carbon fuel standards in the United States and around the world.
According to Harris, the Summit Carbon pipeline has signed more than 850 easements with around 500 South Dakota landowners, agreements that cover approximately 68% of the pipeline route in the state.
“This overwhelming level of support is a clear reflection that landowners view the project as safe and critical to supporting the region’s most important industries – agriculture, ethanol and energy,” Harris wrote.
Beyond a desire to use their land as they see fit, several landowners in this group of holdouts pointed to concerns over the potential for a dangerous leak of gaseous carbon dioxide as well as how construction would affect generations of investments in their land.
Many say that no amount of money could change their mind.
“We just planted trees a year or so ago, two years ago and ten years ago, and we plan on planting more. And our kids are out there in 107-degree heat watering these trees, they can see what we're trying to do. And I think they’d be about heartbroken to see a bulldozer taken to them,” said Bossly, whose family has farmed the same patch of land in southern Brown County since 1907. “The ultimate dream is that the next generation takes over and keeps things going.”
Eminent domain decision left to circuit court
Just over two months before Summit Carbon began filing condemnation lawsuits, a South Dakota Senate committee voted 7-0 to reject House Bill 1133, a bill brought by Rep. Karla Lems, of Canton, that would have made the proposed pipelines ineligible for the power of eminent domain under state law.
The bill was one of a half-dozen bills last session looking to change different aspects of the pipelines; every single bill in this vein failed, an outcome that leaves pipeline opponents with few options.
“We're just trying to figure out which route we can go and what our options are,” Lems said. “And we know there are going to be more landowners who are served. They haven't even started in [Minnehaha and Lincoln counties].”
In Lincoln County, a unanimous resolution from the county commission in February urged Summit Carbon and Navigator CO2, a company behind a similar project that traces a smaller route through southeastern South Dakota, to “work to resolve negotiations over property and avoid the use of eminent domain.”
Lincoln County Commissioner James Jibben told Forum News Service on May 3 that a pipeline-focused subcommittee made up of four members of county government would have a proposal to the full commission by the end of the month, which could include recommending a review of the county’s zoning ordinances.
Despite the delays available to counties in South Dakota in the form of reviewing ordinances, the true oversight power comes at the state level.
The application filed by Summit Carbon last year with the South Dakota Public Utilities Commission is scheduled to culminate in September with the all-important permitting hearing; if the regulatory body approves the permit, the carbon company would then appear in front of a circuit court in the state to determine its ability to use eminent domain.
The circuit court will generally have to determine whether the proposed pipeline meets the requirements of a “common carrier” that is “transporting commodities for hire by pipeline,” phrases used by Summit Carbon in its lawsuits against Klipfel and other landowners.
Navigator CO2 is set to appear in front of the PUC in July. The company has not filed any eminent domain lawsuits as of May 3.
House Bill 1133, which passed the South Dakota House of Representatives before failing in the Senate committee, would have addressed the interpretation made by circuit courts, specifically excluding the planned carbon pipelines from the eminent domain power reserved to “common carriers” transporting a “commodity.”
“That would have at least given us an opportunity to not have to capitulate to a private company,” Klipfel said.
As the accumulating lawsuits made the prospect of the proposed pipelines more concrete, several landowners mentioned their disappointment with lawmakers, as well as with other state leaders like Gov. Kristi Noem, for not doing more to oppose the pipelines.
Noem has remained neutral on the subject, saying the issue is purely under the purview of the PUC.
“Gov. Noem has said more than once that her dad told her not to sell the land because God is not making any more of it,” Klipfel said, referencing a refrain that Noem has laced into speeches as well as her memoir released last year. “Where is she now?”
Jason Harward is a Report for America corps reporter who writes about state politics in South Dakota. Contact him at 605-301-0496 or firstname.lastname@example.org.