SIOUX FALLS, S.D. (KELO) — The land that Summit Carbon Solutions may need to survey and eventually need to install its proposed carbon dioxide is a point of contention in several legal actions.

“We always held the belief out here in the country in the state of South Dakota that we had the ability to keep those who we wanted off our land and let those who we wanted to onto our land,” said Mark Lapka of rural Leola.

But farm land owners like Lapka have learned that’s not so when Summit Carbon Solutions wanted to enter their land to do surveys related to a prosed CO2 pipeline that will travel about 460 miles across the state.

A 2016 law allows companies that have projects under the state Public Utilities Review (PUC) to enter property without landowner permission to do surveys.

“That caught people by surprise,” said JD Wangsness, a Republican candidate for South Dakota House District 23. Wangsness won his primary and doesn’t have a Democratic challenger so he will likely be one of two people representing District 23 in the state House.

Wangsness said the 2016 law on surveys needs another look and so does any possible use of eminent domain as it relates to the proposed CO2 project.

Scott Moore, another Republican who is likely to represent District 23 in the South Dakota State House, agreed that landowner issues and eminent domain will be discussed in the Legislature.

Lapka, and other farmers in several counties including McPherson, Brown, Edmonds and Spink, don’t believe Summit Carbon should be able to survey without permission.

“We formed a group of people that are trying to get that law changed because we really don’t believe that’s right,” Lapka said. The group doesn’t believe the 2016 law on surveys is constitutional.

Civil cases filed in those counties seek to prevent Summit Carbon from surveying without landowner permission. Summit Carbon Solutions has filed its own lawsuit against landowners in several counties.

A 5th Judicial District judge has combined the suits in McPherson, Spink, Brown,and Edmonds counties, according to landowner Bruce Mack. A hearing on that combined case is set for Nov. 1.

“We’ve asked for an injunction to keep them off until the matter is settled,” Lapka said. Summit Carbon has filed to allow them to survey, Lapka said.

Multiple suits involving landowners and Summit Carbon (SCS Carbon Transport LLC) are still pending in other counties such as Minnehaha, Hamlin, Hyde, are still pending, according to the ecourts South Dakota website.

John Satterfield, an environmental scientist and director of regulatory affairs for Summit Carbon Solutions, wouldn’t comment on specific lawsuits but said the company was sued first and then, it responded.

As to the permission to survey, if the company doesn’t get permission from the landowners for surveys, there is a legal process established by the state, Satterfield said.

“I will call it a legal action as part of the legal process that state has established,” he said.

Surveys are critical to the proposed project, he said.”We need that information to complete our permit application,” Satterfield said.

Survey work is more than checking a box, Satterfield said.

The company wants to avoid any areas of culture or natural or similar importance, he said. Summit Carbon also wants to work with landowners to ensure that the potential pipeline pathway is acceptable, Satterfield said.

“I would prefer that we didn’t have to do this at all,” Satterfield said of the legal response to denied permission to survey.

To Lapka, the survey issue is tied to a concern about eminent domain.

Eminent domain allows the government or its agent to take property from the owner for public use. The owner is paid compensation with this action.

In general, eminent domain has been a frequent topic at various meetings Summit Carbon has held on the proposed pipeline, Satterfield said.

“…eminent domain is a very visceral topic,” Satterfield said. A lot of landowners focused on the possible use of eminent domain very early, he said.

“We’ve taken the approach since day one…that we want to have a mutually beneficial agreement with everyone of the landowners through which our pipeline passes, Satterfield said.

“I believe people, personally, get locked into that one issue,” Satterfield said. The company wants to work with landowners, for example, such as moving the pipeline if the owner plans to build a barn in a specific spot, he said.

While it may not be Summit Carbon’s intent to use eminent domain, it could still happen, Lapka said.

“Landowners are not able to negotiate on a level playing field on a project like this when you have a threat of eminent domain hanging over their head,” Lapka said.

Summit Carbon has already reached easements with we have partnered with 850 landowners to sign 1,500 easement agreements or 51% of the route, said Courtney Ryan, the media contact for Summit Carbon Solutions. The company has obtained 550 easement agreements from 350 landowners in South Dakota, Ryan said. Both numbers are as of Sept. 20.

Eminent domain is a strong enough concern and possible issue that the two prospective lawmakers believe it will be part of the upcoming session.

“It will absolutely get addressed in the next session,” Wangsness said.

“I think we will see some legislation coming forward on eminent domain,” Moore said.

The heart of eminent domain is applying it for public use.

“Is it in the public’s interest to use eminent domain” Wangsness said.

As an example, natural gas and oil are transported by pipeline and eminent domain has applied in some of those projects.

The public uses natural gas and oil, but is a CO2 pipeline for the public’s benefit and would eminent domain apply?

Lapka thinks not. Wangsness said it needs to be addressed and discussed.

The proposed CO2 project is good for the environment, good for the ethanol industry, good for farmers and others, Satterfield said.

“There’s lots of positives to the project,” Satterfield said.

It will capture CO2 from partner ethanol plants and transport it for burial in North Dakota.

Ethanol plants can reduce their CO2 profile which will allow them to sell more product in more CO2 restrictive states such as California.

“We have the design capacity right now to (remove )12 million metric tons a year which is the equivalent of 2.6 million cars off on the road. The positive impacts of this project to the environment are very real,” Satterfield said.

Wangsness and Moore said they’ve been learning about the proposed project.

Both said they’ve been talking with landowners as well as representative from Summit Carbon.

“You don’t want to push away any project but at the same time you want the landowners and residents of South Dakota to be protected,” Moore said.

“I can see the environmental benefits. I can see the benefits to the ag economy,” Wangsness said.

He also understands the concerns from landowners, particularly when it comes to permission to survey and eminent domain.

“Eminent domain is the biggest issue,” Wangsness said.

Moore said landowners have also raised concerns about the safety of the proposed pipeline.

Lapka said he’s concerned if rural areas will have the needed emergency personnel to respond to any possible leak or rupture. He also believes that any leak or problem could have a possible safety hazard impact far greater than if a natural gas or oil pipeline has a problem.

Satterfield said the CO2 pipeline is safe and uses proven technology. He would not have a problem with the pipeline passing through his property.