Summit Carbon Solutions seeks ruling to prevent South Dakota landowners from stopping surveys

Summit Carbon Solutions claims in a legal filing that a group of McPherson County landowners is violating South Dakota law by not allowing the company to survey private land.

The paperwork, filed by Summit in McPherson County about two weeks ago, argues that the company has a right to survey property without the landowners' consent since Summit has a permit request before the South Dakota Public Utilities Commission. 

In June, a group of McPherson County landowners represented by Brian Jorde, an attorney with Domina Law Group in Omaha, Neb., filed a lawsuit against Summit. It alleges that a state law allowing companies to survey private land without consent is in violation of both the South Dakota and U.S. constitutions.

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Under the law, companies that have applied for a permit with the PUC can survey land without consent as long as a 30-day notice is provided to the landowner. That should be unconstitutional, the McPherson County landowners believe.

They also filed for a preliminary injunction, which would essentially stop Summit from surveying until the lawsuit is settled.

Summit is seeking state permission to build a carbon sequestration pipeline across eastern South Dakota. It would allow carbon dioxide emissions to be stored permanently underground in western North Dakota.

McPherson County landowners working on response

Jorde said he does not represent all of the landowners listed in the paperwork filed by Summit. He said the action by Summit is not surprising and that he's working with his clients to file a response. 

Summit seeks a declaratory judgment and injunctive relief. It asks the court to declare that the company has a right to survey and inspect the land and for a court order that would prevent the landowners from denying that.

More:PUC approves Summit Carbon Solutions' request for a permit application deadline extension

Declaratory judgment essentially asks the court to resolve any legal uncertainty, while injunctive relief sought is to prevent landowners from denying Summit access. The Iowa-based company is not seeking any money.

Surveys are necessary for CO2 pipeline work, Summit claims

The filing also notes that it is necessary for Summit to conduct land surveys and that it has provided security for the payment for any damage done to the property during that work. 

Summit Director of Regulatory Affairs John Satterfield told the American News that surveys are necessary in order to examine the conditions along the pipeline path. And, he said, just because a landowner is flagged for survey work does not necessarily mean their property will be along the final route.

Summit using three different types of survey crews

Satterfield said landowners could encounter three types of survey crews: cultural and archaeological survey groups, biological resource survey groups and civil engineering survey groups. They surveys serve to examine the structure of land and topography, as well as different kinds of endangered species, he said.

"All that survey work helps us to optimize the route to avoid or minimize our impacts to sensitive issues along the proposed routes," said Satterfield. 

He added that if a landowner has plans to build on the land, Summit is open to having a conversation to discuss workarounds.

Shovels and augers might be used survey work in order to collect soil, said Satterfield. Compensation is typically not involved with those kinds of surveys because land does not get torn up. But for more in-depth surveys, which might involve heavier equipment, he said landowners will be compensated for any damage.

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Bonds are in place to assure compensation in those instances, he said, and that's laid out in letters sent to property owners.

In the event of a disagreement between Summit and a landowner concerning damage, Satterfield said there will be both before and after videos taken by survey crews.

Satterfield said he cannot comment on pending litigation but that the Summit filing is a way to follow the legal process in place allowing the company to do survey work. The filing is not a lawsuit, he said, adding that the company is open to visiting with landowners to hear their concerns.

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Summit applied for a permit from the PUC earlier this year. The pipeline would go through several South Dakota counties and five states. Carbon dioxide emissions from 32 ethanol plants, including seven in South Dakota, would be piped to North Dakota. That would allow the ethanol plants to sell their product in states with low carbon fuel standards. 

The pipeline would be more than 2,000 miles and cost an estimated $4.5 billion.