Senate passes bill adding notice and mediation steps before eminent domain can be used

Senate Bill 198, an act to establish conditions a prospective condemner must satisfy before commencing condemnation proceedings, was passed by the South Dakota Senate after extended debate and amendment on a 18-17 roll call.

The bill requires a developer who will need an easement for a permitted facility to offer mediation to affected landowners at the developer’s expense, provide a list of mediators (and allow the landowner to propose a fourth), and give landowners 60 days’ certified-mail notice with a description and color aerial map before the developer applies for the Public Utilities Commission (PUC) permit that would clear the way for condemnation proceedings. The sponsor said the bill does not force mediation; it makes mediation an option and sets preconditions before eminent domain tools can be used.

Supporters, led by Senator Melhoff, argued the measure strengthens landowners’ position by adding notice and mediation steps before a developer may use eminent domain. “This bill simply provides additional rights to land owners when they’re faced with the situation where a developer seeks an easement from their land,” Melhoff said on the floor, adding the developer must meet conditions that “don’t exist in law today.” He also said the developer must have a permit before seeking eminent domain.

Opponents cautioned the bill does not allow landowners to unilaterally block a multi‑state linear project and raised concerns that mediation could create pressure on landowners who do not want to participate. Senator Hoehn, among others, said mediations could put landowners at a disadvantage in later court proceedings if judges view refusal to mediate negatively. Hoehn also questioned whether landowners had requested the bill and described mediation provisions as an “extreme measure.” Senator Lapke asked whether the PUC would be empowered to decide eminent domain matters; the sponsor said it would not — the bill requires a permit first but does not give the PUC authority to determine eminent domain issues.

During debate, Senator Blanc asked who had spent nine figures on projects cited by the sponsor; Melhoff answered that he was referring to developers of the Summit Carbon Pipeline and said roughly $72 million has been paid to landowners in easements, characterizing other costs as substantially higher (figures discussed on the floor were approximate).

An amendment, labeled 198E, was offered by Melhoff and adopted; it added the 60-day certified-mail notice requirement and the aerial-map requirement to the bill.

The Senate first approved Melhoff’s motion to reconsider the earlier defeat of the bill by a recorded vote of 19 yeas and 16 nays, bringing the measure back up for final action. After amendment and debate, final passage was decided by roll call: 18 yeas, 17 nays, and the president declared SB 198 passed.

The measure’s supporters described it as a landowner-rights bill that does not create new eminent-domain authority but places preconditions on developers seeking to use condemnation tools, while opponents said it still leaves landowners unable to unilaterally stop projects that cross multiple properties and raised concerns about added legal costs and possible judicial implications if mediation is refused.

Senate Bill 198 will proceed to the House for consideration. The bill’s floor debate included multiple questions about whether the bill forces mediation (the sponsor said it does not), whether mediation costs fall to developers (sponsor: yes), and whether the PUC would gain new authority over eminent domain (sponsor: no). The transcript records sponsors’ and opponents’ remarks and the roll-call outcomes reflected above.

Votes at a glance for SB 198: - Motion to reconsider (to bring SB 198 back): 19 yeas, 16 nays (motion carried) - Amendment 198E (adds 60-day notice and mapping requirements): adopted (voice/house action recorded on floor) - Final passage of SB 198 as amended: 18 yeas, 17 nays (bill passed)

Details and next steps: The bill requires developers to have a PUC permit and to comply with existing permitting laws before pursuing eminent domain for easements; it requires notice and mediation offer steps prior to filing for condemnation. The legislation does not contain language allowing landowners to unilaterally veto a permitted project; sponsors and opponents repeatedly noted that eminent domain remains an available tool under current law and that the bill places additional procedural preconditions on its use.