DM&E: Ranchers using courts to stall
Source: Argus Leader, by Peter Harriman
July 14, 2007
Complaints halt eminent domain hearings
Railroad officials and supporters say opponents are using the courts to delay development, but landowners in western South Dakota say they're simply protecting their land in unfair negotiation.
Complaints filed by landowners halted eminent domain hearings earlier this week in the Dakota Minnesota & Eastern Railroad's efforts to gain right-of-way for tracks into Wyoming. Landowners claimed the state violated its own due process laws.
The railroad responded by asking the South Dakota Supreme Court for an expedited review to move the issue along quickly.
"It's just a delay tactic," DM&E chief executive officer Kevin Schieffer said of the landowners' actions.
"It is being appealed to the Supreme Court, and hopefully they will bring some sanity to all this."
Sixth Circuit Judge James Anderson late Monday ordered the South Dakota Transportation Commission to stop its planned eminent domain hearing on the DM&E expansion.
The commission was to have ruled on whether the DM&E had negotiated in good faith with landowners affected by the railroad. According to state law, such good-faith negotiation is a condition for condemning land to gain its use.
Jim and Bev Varelman, who raise quarter horses and hay east of Hermosa, are among those suing the DM&E. She said their dealings with the railroad have not been good.
"They have been trying to say they negotiate in good faith," she said. "Many years go by without correspondence. The offers we get have no monetary value. Five days before the circuit court hearing, we finally got an offer that was not a good offer at all."
Bev Varelman said the proposed rail route would separate 438 acres of their ranch from a water source. It would make the land unusable for raising livestock, and the DM&E has been unwilling to take her suggestion and move the track a quarter-mile south to avoid the problem, she said.
Even as the route is now configured, "If they would make us a terrific offer and totally buy out that south piece, we might be willing to talk," she said. No such offer has been forthcoming.
Longtime DM&E backers reiterate their support.
"The legal maneuvers by opponents of the DM&E project crossed the foul line. While attorneys sue, communities like Huron have to wait another day for the jobs and opportunity the DM&E project will bring," Huron Mayor David McGirr said.
Philip Mayor John Hart added: "The DM&E project would breathe new life into our communities. ... We hope our leaders in Pierre realize this and reject further attempts at delay."
Jim Borszich, head of the Greater Huron Development Corp., which has supported the DM&E in prior litigation, said the group probably will do so again in the eminent domain issue before the Supreme Court.
Schieffer declined to guess whether the current effort to block eminent domain proceedings would significantly set back the work.
"We'll wait and see what the Supreme Court does before trying to speculate on that," he said. But Schieffer did say the controversy "helps illustrate to the rest of the world what we have been dealing with for years, which is a lot of gimmicks wrapped in the flag of due process and the big, bad railroad against the individual."
"We have been out there working with the landowners, and the vast majority of them have been working with us." In the current eminent domain challenge, "we are talking about a relatively small group who has refused for years to even have a discussion," Schieffer said.
He characterized dealings with West River ranchers as fundamentally cordial, even among railroad opponents.
For her part, Varelman said: "I'm a railroad girl. I was raised on a railroad. My father was a retiree from the Burlington Northern. My mom lives here on a railroad pension. We're not anti-railroad, that's for sure."
