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Protecting Property Rights Takes Courage & Advocacy

By Lura Roti for South Dakota Farmers Union

County Commissioners have the power to protect landowner rights. It requires bravery. And if you think your land is not in danger of private interests using eminent domain to lay claim to it – just wait.

These were the messages shared by panelists to a packed convention hall during the Landowner Rights panel discussion held in Huron during the South Dakota Farmers Union State Convention November 30.

“Ultimately, this all comes down to you on the ground. And it comes down to courage,” said Brian Jorde, Managing Lawyer, Domina Law Group. “Last session legislators did not have courage. For those of you who have not been active on this. We need you because you are next. If slow but steady erosion of property rights is not confronted, you will be next.”

Jorde was joined by Suzanne Smith, Spink County Commissioner; Drew Dennert, Brown County Commissioner and Curt Soehl, Sioux Falls City Councilor.

“The panelists did an outstanding job expressing the intimidation these County Commissions had to go through to protect their landowners – but the ordinances worked. They were upheld by the Public Utilities Commission,” said Ed Fischbach, a fourth-generation Mellette crop and cattle farmer who has been advocating for property rights since receiving a survey notice letter from Summit Carbon Solutions July 2021.

The ordinances Fischbach references were established by County Commissions and put setbacks in place that restrict how close a CO2 pipeline can be to residences and high concentration areas such as schools and roadways.

Today, only five South Dakota counties have ordinances in place. More need to follow suite said Smith who has served as a Spink County Commissioner since 2017.

She urges other counties to pass ordinances because they protect property owners and citizens of the county.

“We were harassed from very beginning on this from Summit, “we are going to sue you, we will sue you.” “That’s fine, go ahead and sue us.” And they did,’” Smith said.

Smith shared that when a chair of another county commission told her she was brave for writing the ordinance, she said, “There’s nothing brave about doing the right thing.”

The other counties that have similar ordinances are: Brown, McPherson, Moody and Minnehaha. To view Spink County Hazardous Liquid Pipelines ordinance, it is on the homepage of the county website www.spinkcounty-sd.org.

Safety of rural citizens is a concern

Using eminent domain for private gain goes against landowner rights policy established by South Dakota Farmers Union members decades ago, said Doug Sombke, President of the organization. And because current state laws do not fully protect private property rights, Sombke encourages county governments to step up to protect landowners’ rights.

“Every problem that we face is local. The one way to stop this and keep our families safe is if County Commissions across South Dakota pass ordinances to make it safe for their citizens,” Sombke said.

In addition to violating property rights, safety of a CO2 pipeline was another concern discussed.

“My concern would not be for the City of Sioux Falls, who has one of the top 37 fire departments in the country. I don’t know what a rural volunteer fire department would do …We all know they (CO2 pipelines) are very dangerous if they were to erupt. If you have a rural fire department that is taking care of these pipelines I would every concerned for safety of the crews or the residents,” said Soehl, who served 20 years on Sioux Falls Fire Department and was captain in the Hazardous Materials Unit.

Safety is also a concern expressed by Fischbach. “This pipeline is only buried four-feet in the ground. How many of us have buried our combines more than four-feet in a wet year? And if you hit it, you are done,” said Fischbach referencing the fact that if a CO2 pipeline springs a leak, the result is much different than a natural gas or fuel pipeline. “The gas will asphyxiant you – you will not be able to breath. This is the testimony I heard from first responders to a CO2 leak in Mississippi.”

Safety concerns are among the reasons Ipswich farmers, Lance and Sarah Perrion called on their County Commissioners to establish an ordinance a while back.

“When we asked what the county would do to protect us from a leak, they said it would be our responsibility,” explained Sarah Perrion. “So, they expect my kindergartener to carry a gas mask to school?”

While the Perrions wait for Edmunds County to implement an ordinance, they join a growing number of rural citizens willing to show up to support South Dakotans First Coalition. It’s the nonpartisan coalition South Dakota Farmers Union helped launch in October of 2023.

South Dakotans First Coalition is dedicated to safeguarding and upholding the property rights of individuals against the encroachment and profit-seeking actions of corporations. The bottom line is no eminent domain for private gain.

Yankton farmers, David and Ione Cap are grateful that something is being done to help protect the land that has been in David’s family for more than a century.

“The ground that our cattle graze today was cared for by my forefathers who had it before me. They took good care of it,” said Cap, 82. “I have taken good care of it and I hope that when I pass it on to our grandchildren it is in even better shape than when it was passed to me.”

To learn more about South Dakotans First Coalition, visit www.southdakotansfirst.com. And to learn more about how South Dakota Farmers Union supports family farmers, ranchers and rural communities, visit www.sdfu.org.

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