Guest Column: Protecting Property Rights: A Local Perspective on Pipeline Legislation by Senator Erin Tobin

Protecting Property Rights: A Local Perspective on Pipeline Legislation
By State Senator Erin Tobin

Growing up as a 5^th generation resident of Tripp County, preserving property rights and the ability to pass down our family land to my children and grandchildren is a huge priority to me. With the recent end of the legislative session, there’s been a lot of talk about pipelines, property rights, and what it all means for us in District 21.

For years, we’ve been grappling with property rights issues related to various pipelines. Personally, I’ve experienced this struggle, as the original route of the Keystone XL (KXL) pipeline would have cut through 7 miles of my family’s land. Dealing with out-of-state land agents negotiating under our old laws, I’ve seen how land agents left out important details like who’s responsible for leaks or damage to tiles. I have also seen how these land agents can be aggressive when these negotiations take place in the homes of landowners.

As a landowner, over the past 14 years, since the early years of KXL, all of this seemed unfair to me from the outside looking in and from my family’s experiences. When I became a legislator, I began to study landowner rights and how state governments can act under the US constitution.  By studying the laws of states like Wyoming and North Dakota, which have dealt with pipelines for decades, I’ve gained insights into how they protect landowners and their rights.

I’ve spoken with many of my neighbors and their experiences with KXL. The permit for KXL was still in place until recently because it didn’t expire when the project went away. (The PUC finally removed this recently after pressure from landowners). I believed it should have automatically gone away after a short time.

What I and others found from continued discussion and understanding of state-by-state law, as well as discussions with my own neighbors, is that South Dakota didn’t have the protections and reform that these other states have. Each state is unique based on their economy and state resources.  Without significant oil and gas reserves driving the conversation, we were a bit behind the times in making sure that our laws were as strong as they could be to protect our way of life.

A landowner bill of rights was an idea that came forward 2 years ago when we were discussing legislation with several other legislators. This is something that was done in Texas, and I have always thought it was something that would be helpful to South Dakota. A bill of rights that was unique to our state and that showed our commitment to the landowners in SD, would be a great first step forward for everyone.

Landowner protections are not new issues in other states and certainly not a new issue in my fighting strategy as your State Senator, in fact, it’s been a topic at the top of my agenda for as long as I’ve been in the Senate. I carried the bill to remove the Gregory County Pumped Storage project from the preferred water projects list for the past two years. After this bill died in Senate Commerce the first year, I invited those Senators to Gregory County and asked if landowners would give them a tour. Both parties agreed to the visit, and the previously opposed Senators realized that this project is not feasible, not smart, and the project will never be feasible no matter how pretty a bow some tried to put on it. They changed their votes this session because of that visit and the project is out of our law books as of July 1st. I have taken the argument outside of the debate chamber to show people on the outside what it looks like on the inside of this, and it worked in that scenario.

I have also carried other bills, such as HB 1230 this session and similar legislation last year. I have signed on to remove CO2 from the commodity list for the past two years as well, both times this failed. Carbon capture is not going away because federally, CO2 capture and 45Q tax credits are a bipartisan goal. These laws were signed by President Trump. We have 16 ethanol plants in SD who are wanting to stay open and keep their employees in rural SD. Let’s be real, I don’t agree with everything proposed by the feds, but I must make and support law that benefits South Dakotans based on our federalist form of government.

When the Republican and Democrat leaders in both the House and Senate brought Senate Bill 201, to “regulate linear transmission facilities,” I was not a yes vote. I had reservations, and planned to vote against it, until the prime sponsors committed to promoting landowner protections, many of these that we’ve been looking for during Keystone XL and other projects over the past 2 years.  They promised the protections that were contained in House Bills 1185 and 1186, and more protections were added on as we negotiated this across the finish line.

The first thing SB 201 does, is this bill moves the discussion of safety setbacks from the 60+ counties individually, to the PUC and the counties working with the PUC, so they can decide uniformly how to make safety setbacks. It really shouldn’t be 1 mile in 1 county and 40 feet in another, where it ends up clogging our courts. Everyone still gets a voice, but it is more uniform in how it proceeds, if it proceeds.

With over 5200 miles of CO₂ pipelines in the country, spanning 120 plus counties, at the end of the day no local siting has been enforced by a court. In South Dakota only a few counties proposed different setbacks, while a vast majority agreed that this falls under federal law.

Remember, the most basic local control agent is the individual landowner themselves. If a young farmer/rancher wants the pipeline to go under his/her land and use that easement payment to make a future land payment or buy an extra 50 cows,  they should be able to decide that without the county taking that option away for a 1 mile safety setback.

Also, to take note, when it comes to eminent domain (which SB 201 has no impact on) and private landowners, we as states still decide these cases with a jury. This is different than federal courts. A jury of your peers will almost always come out in favor of the private landowner.

Most importantly, the bills above created a landowner bill of rights with many of the protections that Texas has in place and the protections that I have been looking to put into law for the past 2 years. We have some work to do, but we can build on this in the future. We needed to make a step forward, and this was a big step forward.

To do business in South Dakota, projects such as CO₂ pipelines will now be required to do the following:

1. Compensation for Landowners:Requires carbon capture pipelines to pay landowners $500 to access their land for surveying (HB 1185) and at least .50 cents per linear foot of pipeline through their property in the form of property tax relief (SB 201)
2. Compensation for Counties: Allows counties to collect $1.00 per linear foot of pipeline that runs through their county. At least 50% of the surcharge must be used for property tax relief for landowners on the route. The remaining revenue can be spent by counties at their discretion. (SB 201)
3. Indemnity for Landowners:Requires pipeline companies to indemnify landowners for liability. (SB 201)
4. Minimum Burial Depth: Requires pipeline to be buried at least 4 ft deep, exceeding federal regulations of 3 ft (SB 201)
5. Disclosure of Dispersion Models:Requires carbon pipeline companies to make dispersion modeling public. (SB 201)
6. Lifetime Drain Tile Repairs:Requires pipeline companies to repair any damage to drain tile (SB 201)
7. Impact Mitigation:Requires pipeline companies to file an impact mitigation plan. (SB 201)
8. Leak Liability:Makes carbon pipeline companies liable to the landowner for any damage caused by leaks.  (SB 201)
9. Land Surveyors Must be from South Dakota:Requires land surveyors be South Dakota residents. (SB 201)
10. Easements Terminate if Not Used in 5 years:Easements for pipelines terminate if pipeline does not receive PUC permit in 5 years and terminates after 5 years of non-use. (HB 1186)
11. Bans Perpetual Easements: Limits easements to a maximum of 99 years (SB 201)
12. Information Disclosure: Requires carbon pipeline companies to report linear footage of pipes in counties and disclose if they claim a tax credit. (SB 201) Landowner will also receive results of survey and examination and contact information for person in charge of inspection. (HB 1185)
13. Mortgage Limitations: Protects landowners by restricting mortgages held by an easement holder so the mortgage only attaches to the easement holders rights and not to the land or obligate the property owner. (HB 1186)
14. Easements Must Be Written: Requires companies to put easements in writing. (HB 1186)
15. Survey and Access Limits: Landowners reserve right to challenge the right to survey in circuit court. Landowners must be given 30 days written notice and include details about date, time, duration, location, and contact information. (HB 1185)

These protections are long overdue, and yes, we need to expand them to other interstate common carrier projects, and we can if we chose to do so.

If you like landowner rights, you’re in good company. Senate Bill 201 was strongly supported by the South Dakota Farm Bureau, South Dakota Corn, South Dakota Soybeans, the South Dakota Ag Alliance, and the South Dakota Cattleman’s Association.

I’m not going to pretend there aren’t those who oppose the landowner protection bill of rights. But the opposition is coming from groups such as the Sierra Club, Dakota Rural Action, and other environmental extremists who have never sided with agriculture.   If our choices are siding with the South Dakota Cattlemen’s Association versus the Sierra Club, I’m going to vote with the Cattlemen in our District every time. I also will vote for the landowner, as they are the true definition of local control, and should have more say in what happens to their land when making easement decisions. All the above bills benefit the landowners as I explained previously.

What do we do now?

This new law, which will take effect July 1, changes nothing as of now in District 21. We need to build on these landowner rights, but we need to have open discussions that are creative and include our local public utilities companies as well. The local utilities have a huge part in this and to not mention them and the needs of water, sewer, roads, etc. in our local communities would be misleading.

If another interstate common carrier project comes along, whether an oil pipeline or a carbon capture pipeline, we have started a process for landowner rights.  I commit to working on that in the coming years if re-elected.

There have been discussion of referring or tearing the protections down that are in Senate Bill 201. I will tell you that this only hurts landowners. Everything in the bill is a positive for landowners, and I am not serving in Pierre to deny my children – the 6^th generation of Tripp County residents in my family – the ability to participate in our ag economy as they see fit.

We have made a positive step forward to protect our way of life, and I think you’d all agree, if folks just take the time to read the law, consider the history, and commit to continuing to work together in the future.

As always, I am open to further questions regarding this discussion. Please reach out to [email protected].

God Bless,
Erin Tobin
Senator District 21