Here in South Dakota, we are repeatedly getting asked to turn over our land to private companies in the name of public use. Landowners, including those who feed their families (and this country) with the production of agricultural products, are being asked to open the gate and hand over the keys. The use of eminent domain has certainly become, before our eyes, a modern legal problem.

Protecting private property rights of individuals was an important part of the “American Experiment” when our founding fathers created the US government. Because of this, eminent domain law is laid out in the US Constitution, but also is a power of local and state governments. The 5th amendment of the US Constitution lays out that government can acquire real and personal belongings for public purpose, if there is just compensation. The 5th amendment clause is used by State government through the 14th amendment clause. The taking of property for private use is therefore unconstitutional. Courts have the power to review the land acquisition process but cannot interfere with decisions of the legislature. The condemnation (taking) of land, again and always, has to be for public use and there has to be just compensation. The US courts have also routinely ruled that due process is required before eminent domain can be used.

Lets be frank, public use is not the same as public benefit. Public use means that a private company, public company, or government entity, will allow their product to be used by anyone in the public. I always assumedoureminentdomain laws were all about broad public benefit, such as building roads and highway systems or moving grain/ coal via railroad. However, law simply requires that the commodity be available for “public use”. Can or should public use be better defined in order to weigh more heavily in favor of the land owner?

What is the product that is being used by the public? Law requires these companies to be moving or carrying a “commodity”. By definition, a commodity is “a raw material or primary agricultural product that can be bought and sold, such as copper or coffee”. Is the definition of commodity being legitimately used in the world we live in today?

One of the most concerning parts of the process is dealing with the agents working on the land acquisition process. Land acquisition agents, who speak to families in their homes regarding the signing of easements, have no obligation to be forthcoming in their negotiations. Land acquisition services are often hired out to groups that are expert negotiators. These in-home conversations, negotiations, and finally easement agreements, are the path that many take as it is quite difficult and costly to do this through the justice system.

With government programs giving tax breaks and credits for many projects, many new entities are seeking access to private land. Is there a line to be drawn to protect land owners and promote free enterprise and capitalism? I believe these laws certainly need to be revisited, considering they have not been updated to reflect the reality of the current global issues and most importantly - South Dakota.

Erin Tobin Republican Candidate, District 21 Senate