The View From WORC

By WORC Chair, Donley Darnell

Western landowners are welcoming recent actions to protect their rights, water, and surface lands in the face of booming oil and gas development and other business ventures. You can read more about this progress throughout the newsletter.

But, in my first column as the Chair of WORC, I want to focus on eminent domain, a subject near and dear to me.

A bill to reform the eminent domain laws of Wyoming passed the Wyoming legislature this session and was signed by the governor. Effective in July, the law gives landowners more say in planning projects on their property, more opportunity to compare other offers for condemned land, and better reclamation and restoration protections.

Success hinged on the narrowest of margins as an amendment to gut the bill failed in the senate on a tie vote. The bill is not the answer to all of our problems, but it is a step in the right direction. It was passed in the face of fierce opposition from industry. Success is never final and I am sure that the industry lobbyists will be out to recover lost ground next session. Powder River Basin Resource Council and Landowners Association of Wyoming plan to be there as well.

The Dakota, Minnesota & Eastern Railroad (DM&E) is now using Wyoming’s current eminent domain laws for “entry prior to condemnation” so they can gain access to do physical, biological, utility, and geotechnical surveys. The railroad is proposing to construct about 280 miles of new line to Wyoming’s Powder River Basin coal mines and rebuild 600 miles of existing track in South Dakota and southern Minnesota. This project has generated great concern by farmers and ranchers across Wyoming and South Dakota.

The judge in Campbell County granted access to do the surveys, but warned the DM&E that they would be held to much higher standard should they return to condemn a right of way. The DM&E proposed to post a $1,500 bond to cover damages. The judge did require a cash bond of $15,000 per entity per county. There are 16 more lawsuits pending.

For ten years now, the DM&E has been trying to find financing and having no apparent success. Then, their prospects brightened considerably, thanks to some midnight legislation in Congress. The DM&E found itself eligible and then applied for a 2.33 billion dollar loan from the Federal Railroad Administration (FRA). With 2.33 billion dollars, the DM&E started to look like a credible threat.

Thanks to a lot of work from a lot of people, including groups as diverse as the United Transportation Union and Citizens Against Government Waste, the FRA found the DM&E met all the qualifications for the loan except one – the DM&E would have no reasonable prospect of paying the loan back. On February 26, 2007, FRA rejected DM&E’s application for a $2.33 billion loan, concluding that the application “posed an unacceptably high risk to federal taxpayers.”

This might not be the end of the line for the DM&E, but the track sure did take a sharp turn for them.