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DME condemnation hearing postponed

Associated Press

PIERRE, S.D. — A state hearing has been delayed again on the Dakota, Minnesota & Eastern Railroad’s application to acquire land by condemnation for its planned $6 billion expansion project.

The South Dakota Transportation Commission was scheduled to hear testimony Wednesday in Pierre, but the retired judge presiding over the hearing delayed the proceedings indefinitely to consider motions.

Retired Supreme Court Justice Robert A. Amundson, who has been appointed hearing officer for the case, heard arguments on a number of motions made by people involved in the case. A new hearing date will be set after Amundson rules on the motions.

"No date to resume the hearing has been set yet, pending the outcome of these motions," said Bill Nevin, the state Transportation Department’s lawyer.

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DM&E wants to rebuild 600 miles of existing track across South Dakota and Minnesota and add 260 miles of new track around the southern end of the Black Hills to reach coal fields in Wyoming. The Powder River Basin project would haul low-sulfur coal eastward to power plants.

DM&E, which was recently purchased by Canadian Pacific Railway, has said it already has negotiated deals to acquire land along the expansion route from some ranchers in southwestern South Dakota, but the railroad needs legal authority to use eminent domain to acquire land from those unwilling to sell.

Among the motions pending in the case, some landowners have asked Amundson to delay the hearing further to give them more time to prepare.

The hearing so far has been set up to consider the acquisition of land along the expansion route in southwestern South Dakota, but some landowners along the railroad in eastern South Dakota are seeking to intervene in the case, Nevin said.

One landowner also has asked Amundson to remove himself from the case, a move that would require the appointment of someone else to preside over the hearing, the DOT lawyer said.

Amundson originally had set the commission hearing on DM&E’s request for July, but the case was then put on hold after a circuit judge ruled that the Transportation Commission had to pass new rules for handling a railroad’s application to use eminent domain. The commission approved new rules in August.

State law provides that a railroad can use eminent domain if it can show a project is a public use consistent with public necessity. A key element is whether a railroad can show it has already negotiated in good faith to acquire land without the use of eminent domain.

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