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Dispelling the myth that South Dakota is a private property state

Posted on: March 1st, 2018
by David Ganje

The legislature is considering a pending animal waste pipeline bill which gives business interests the right to apply under existing statutes to create private animal waste pipelines over other landowner’s private property along rights of way. Concerning property rights the SD Supreme Court has held, “It is universally recognized that an owner of land abutting on a conventional street or highway has certain private rights in the street or highway distinct from that of the general public. . . Right of access is one of these private property rights which cannot be taken for public use or materially impaired without compensation. . . This has long been the settled law of this state.” This new 2018 bill (HB 1184) allows for animal waste pipelines by piggy-backing animal waste pipeline authorization into existing law. These existing statutes give county commissions the authority to take private property for use by telephone companies as well as electrical power companies or municipalities in the course of using and distributing electrical power and telephone services. These statutes have a “public use” basis to their existence. The pending bill specifically allows for the, “laying and construction of force mains to dispose of animal waste.”

The bill is an advocacy piece granting for-profit businesses the use of public rights-of-way for the purpose of transporting waste over another landowner’s property. In the world of business such transportation expenses are accepted as the costs of doing business, and are usually included in an operation’s business plan and cost projections.

The legislature’s problem with this new bill is that public rights-of-way are often on private property. By way of illustration, a property owner’s land may be taken by the government for highway and road purposes. When these rights-of-way are created other supplemental rights may arise such as the right to hunt or fish on the right of way, but the property itself is still owned by the property owner.

Creating a right-of-way does not however take away the owner’s title to the land. This continued ownership is significant enough to be secured by the state constitution which provides that title to land taken for highways remains with the landowner. (SD Const Art VI, § 13.) Yet this bill would have a neighbor’s property available as a ‘public highway’ for another neighbor’s business purposes all without compensation. How the can this bill be considered a property rights law? It cannot. Confined animal feedlot operations are not a public utility. A legislature should not by fiat convert a private business or enterprise into a pseudo public utility.

In 2006 the South Dakota legislature became so concerned about misuse by government agencies on the issue of taking property for private use that it created a new law which holds that no county, municipality, or housing and redevelopment commission may acquire private property by use of eminent domain for transfer to any private person, nongovernmental entity, or other public-private business entity. The legislature in passing its general condemnation and eminent domain laws also restricts it to the taking or damaging of private property for public use.

For such a disposal of animal waste bill to be constitutional it should either provide for compensation to a landowner for the use of private property, or the legislature should require a finding that a private landowner’s property rights may be infringed in order to preserve the general public welfare (not private welfare.) The bill provides for no compensation and provides for no direction that the process make a finding that property rights may be imposed upon to preserve the general public welfare.

David Ganje practices in the area of natural resources, environmental and commercial law.