South Dakota Senate declines to put eminent domain restrictions on the ballot

South Dakota voters will not be asked to put eminent domain restrictions in the state constitution, the state Senate decided on Monday in Pierre.

Supporters of House Joint Resolution 5001, which failed 14-19, had argued that residents need stronger protections than those found in last year’s law banning eminent domain for carbon capture pipelines. 

Eminent domain is the power to take private property for public use, with just compensation to the landowner. Although eminent domain is often used for water pipelines, electrical transmission lines, and other infrastructure, it’s been a divisive issue in South Dakota the last several years because of a proposed multi-state carbon capture pipeline that would pass through the eastern part of the state.

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The Resolution would have asked voters to narrow the use of eminent domain. Increases in the tax base, tax revenues, employment, or general economic health would no longer justify its use, and the need for a project would need to be publicly declared before any condemnation proceedings could commence. 

Sen. Joy Hohn, R-Hartford, was an outspoken critic of eminent domain use for the carbon capture pipeline, which was proposed by Iowa-based Summit Carbon Solutions. Hohn supported the ban on eminent domain for carbon pipelines last year, and it was a top issue in her 2024 Senate campaign. 

Hohn’s property has been condemned twice by companies running pipeline projects through the state, the first being the Dakota Access oil pipeline, the second being Summit.

“Different products, different politics, same reality: private companies pursuing profit were allowed, at least initially, to initiate condemnation proceedings against our land,” she said. 

Hohn was nonetheless one of 19 senators to vote against the resolution, which had previously passed the House 62-5.

Hohn raised concerns about water and electric utility projects, among others. 

“We must assure ourselves that what we propose is the very best we can offer the people of South Dakota,” Hohn said, adding, “I am not convinced this is the best we can do.”

Sen. Mark Lapka, R-Leola, sponsored the resolution in the Senate. He told lawmakers that case law establishes water and electric projects as a public need. 

The five-state pipeline would capture carbon dioxide from ethanol plants in South Dakota, North Dakota, Minnesota, Iowa and Nebraska and transport it to an underground sequestration site in North Dakota, to capitalize on federal tax credits incentivizing the prevention of heat-trapping gases into the atmosphere. The project has been granted permits in other states, but those have been subjected to legal challenges, and South Dakota regulators have twice denied permits for the project.