11 N.W.3d 71
S.D.2024Background
- SCS Carbon Transport, LLC (SCS) sought to develop a multi-state CO2 pipeline, including a route through 18 South Dakota counties.
- SCS attempted to access private land for pre-condemnation surveys pursuant to SDCL 21-35-31, facing resistance from numerous landowners.
- Landowners sued in South Dakota circuit courts, arguing the surveys were unconstitutional takings and challenged SCS’s status as a common carrier entitled to eminent domain authority.
- Circuit courts granted summary judgment for SCS, finding it a common carrier and SDCL 21-35-31 constitutional; protective orders limited landowner access to SCS’s business documents.
- Landowners appealed, seeking further discovery and contesting both SCS’s common carrier status and the constitutional validity of the surveys.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| SCS’s Common Carrier Status (Eminent Domain/Surveys) | SCS not a common carrier; CO2 not a commodity; SCS not transporting for public/hire | SCS is a common carrier; CO2 is a commodity; business open to public for hire | Circuit courts erred; record insufficient for summary judgment on this issue—remanded for discovery and determination. |
| Denial of Landowners’ Discovery | Further discovery essential for fair determination on key issues | Requested info confidential and not material | Circuit courts abused discretion; Landowners entitled to more discovery (depositions, documents). |
| Scope of Surveys Allowed by SDCL 21-35-31 | Statute does not authorize intrusive (geotech/deep dig) surveys | Statute allows various surveys; terms broad | Statute authorizes only minimally invasive, superficial (‘standard’) surveys absent consent. |
| Constitutionality of SDCL 21-35-31 (Takings/Process) | Even minimal surveys are takings without due process | Surveys are background restriction; no compensable taking | Statute, as strictly interpreted, constitutional—permits only minimal surveys and protects jury trial rights for damages. |
Key Cases Cited
- Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (U.S. 1982) (establishes permanent physical occupation as a taking under the Fifth Amendment).
- Cedar Point Nursery v. Hassid, 594 U.S. 139 (U.S. 2021) (physical, even intermittent, government-authorized invasions can be per se takings, but exceptions exist).
- Hawaii Hous. Auth. v. Midkiff, 467 U.S. 229 (U.S. 1984) (takings for purely private purposes are unconstitutional).
- Texas Rice Land Partners, Ltd. v. Denbury Green Pipeline-Texas, LLC, 363 S.W.3d 192 (Tex. 2012) (establishes test for common carrier status for pipelines—instructive for SD law).
- Fairmont & V. Ry. Co. v. Bethke, 37 S.D. 446 (S.D. 1916) (South Dakota tradition allows non-taking survey entry incident to condemnation proceedings).