We’re Watching You
For some reason I don’t think the folks over at TransCanada are too worried but KELO is reporting on a sternly worded letter sent to them by the South Dakota PUC. In the letter the PUC basically told TransCanada that they are being watched in response to the number of complaints of unfair treatment by those in the path of the proposed Keystone Pipeline.
The Public Utilities Commission has written a letter to a top official of the company that plans to build a crude oil pipeline across eastern South Dakota to let the firm know the regulatory agency is watching.The three-member PUC can’t influence how the TransCanada Keystone Pipeline handles land deals, but commissioners are warning that they’re keeping tabs.
When TransCanada first conceived their Keystone Pipeline project and saw that it would run a full 200 miles plus through South Dakota they must have been salivating. Eminent domain, already a sore spot for many is even more troublesome in South Dakota and TransCanada is exploiting the South Dakota laws in the courts by going after land from landowners that aren’t being as co-operative as TransCanada would like. While court involvement in eminent domain cases is not uncommon, the fact they can do this even before they have final approval from the PUC makes it that much more of a head turner for those involved.
Public Utilities Commission Chairman Dusty Johnson says he has heard the concerns of landowners who are already getting these condemnation papers. They say they don’t understand how TransCanada can take them to court before the PUC has given the company approval to build the pipeline in the state. But Johnson says they leave that process up to the courts.Johnson says, “That’s not something we talk about with TransCanada they’re not asking our advice. If they did we might have told them to do something different but we’ve got our process to work and the circuit court has their process to work through.”
So now South Dakota landowners are being forced to fight condemnation in court on a project that hasn’t even been approved yet and if for some reason the project gets denied by the PUC, they will be out any costs associated with fighting it for no reason. But at least they can thank the state for our questionable eminent domain laws and the PUC for putting the fear of God into TransCanada with their “letter”. And for those that say this could backfire on TransCanada from a public relations standpoint, I somehow doubt they are too worried considering that the courts will probably give them what pissed off landowners won’t.
Check this out. Can be found on the PUC website for TransCanada permit under hydrocarbons.
http://www.newsmax.com/newsfrontJforeignUSbuyoutS/2007/10/16/41254.html
Sent: Wednesday, October 17, 20072:54 PM
Subject: RE: Canadian company’s eminent domain efforts
Steve,
Thanks for the email. I am happy to respond to your email, but because of ex parte concerns
won’t be addressing any of the merits of the Keystone application. Luckily, I think your email
addresses almost completely broader policy issues. I will make sure that your email and my
response get entered into the record of the proceeding, however.
First, I am quite intrigued by the statement that the “PUC is widely-perceived to be “caving in”
very easily to the Canadian company’s desire to force its pipeline down the throats of unwilling
South Dakotafarmers and ranchers.” To be honest, I’m not sure I understand how that can be
the case. The hearing is scheduled for December and any substantive commission decision on
the siting the pipeline will not be made until the hearing has been held and the record is
complete. I am not aware of instances where the Commission has “caved-in” to TransCanada.
As for eminent domain, I want to make it very clear that the PUC doesn’t have anything to do with
that at all. You can read all of the statutes that deal with condemnation for oil companies or
railroads, and to my knowledge the PUC isn’t mentioned once. Eminent domain is a process that
the circuit courts handle. That’s not to say that I’m not concerned about what is going on (quite to
the contrary, I am concerned), but I do want to make it clear that I don’t have any in-depth legal or
policy understanding of those statutes.
I do want to make a note about your categorization of TransCanada as a “foreign-owned”
company. I don’t know how true that is. They are traded on the NY stock exchange just as
thousands of other companies are, and I presume that thousands of Americans own their stock.
I’d guess, in fact, that more Americans have a direct ownership interest in TransCanada than
have a direct ownership interest in MidAmerican Energy, the company out of Iowa that supplies
much of Sioux Falls with natural gas. I presume that any company that is traded publicly on a
stock exchange (Ford, Daktronics, GE, etc.) has many foreign owners, as well as domestic. It is
the nature of modern business. I do, however, understand the concern that some might have
with a company that, even if it is owned in part by Americans, chooses to run at least a portion of
their company out of Canada. To me, though, I care less about what zip code the vicepresident
of a company lives in and a lot more about how his or her companytreats people. The
good news is that our laws in South Dakota are focused on just that — what a company of any
ownership or management structure can and can’t do to our people and land. It may be that the
laws need to be changed, but then I would want them changed to better protect us from ALL
types of companies. I wonder if it isn’t possible for there to be as many “bad” Texas
companies as there are “bad” Canadian companies. I want our state protected appropriately in
either case.
You also stated, and I quote: “If the PUC hasn’t found legal or regulatory barriers to a foreign
company using eminent domain powers in this state, it better go back and try harder to find
some.” To begin with, that is not how we, and I hope any other governmental agency, do
business or treat the laws established by our legislature and Congress. Even if the Commission
did have something to do with eminent domain, we have to follow the law, regardless of our own
personal opinions. There is a legal procedure that needs to be followed. We are but one part of
it. Ultimately the courts could be making eminent domain decisions, decisions which we are
simply not empowered to make. There has been some misperception of our authority although
we have made every effort to make our authority clear to all interested parties. We shall
continue that effort.
Thanks for taking the time to write, Steven. I think you and I can both agree that this is an
important proceeding before the PUC, and we will need to work hard to make sure that we
perform all of the due diligence necessary and appropriate.
Sincerely,
Dusty
Dustin “Dusty” Johnson
Public Utilities Commissioner
605-773-3201
—–Original Message—-From:
Steve Collins
Sent: Wednesday, October 17, 2007 12:42 PM
To: Johnson, Dustin (PUC)
Subject: Canadian company’s eminent domain efforts
Dear Commissioner Johnson:
I’ve followed with interest the story about the efforts of a Canadian oil pipeline company to use
eminent domain to build its pipeline through South Dakota whether property owners want it or not.
This makes no sense whatsoever either to the man-on-the-street in the city in urban areas or to
farmers and ranchers in rural areas.
Recently, the DME Railroad, an American company HO’d in South Dakota, wanted to build
railroad right-of-ways through various parts of South Dakota and it has met all kinds of legal and
statutory obstacles to its efforts. However, a foreign-owned company wants to build an oil pipeline
right-of-way through South Dakota and there appears to be no legal or statutory obstacles at all to
it using eminent domain to accomplish its purposes. It just “waltzes right in and takes whatever it
wants.” This is bizarre. How come a domestic railroad can’t use eminent domain powers, but a
foreign company seems to have unimpeded powers to use eminent domain? I thought eminent
domain powers were only for American governmental entities to use.
As I’m sure you know, farmers and ranchers are very protective of their iand and their land rights.
The PUC is wideiy-perceived to be “caving in” very easily to the Canadian company’s desire to
force Its pipeline down the throats of unwilling South Dakota farmers and ranchers. Every other
farmer and rancher sees what is going on and wonders if their property will be targeted in the
future by some foreign company’s desire to seize property or property-access rights in this state.
Such voters are all going to be disgusted with the State Government, in general, and the PUC, in
particular, if they allow this Canadian company to use eminent domain powers to impose its will
on South Dakota property owners.
South Dakota State Government and the PUC are now run by RepUblicans, so RepUblicans will
be blamed by the voters who worry about foreign companies taking their property via eminent
domain. If the GOP State Government and GOP PUC cannot find any legal or regulatory reasons
to stop a foreign company from running roughshod over South Dal