(SB 157)

Use of eminent domain by railroad restricted.

         ENTITLED, An Act to  repeal certain provisions regarding the exercise of the right of eminent domain by a railroad and to provide for the use of railroad rights-of-way by utility companies.


     Section  1.  That § 49-16A-75.3 be amended to read as follows:

     49-16A-75.3.   A railroad's exercise of the right of eminent domain is a public use consistent with public necessity only if the use of eminent domain :

             (1)      Has as its purpose providing railroad transportation to shippers in South Dakota, for commodities produced, manufactured, mined, grown, used, or consumed in South Dakota;

             (2)      Is proposed by an applicant with the financial resources necessary to complete the proposed construction or reconstruction along with any related facilities, construction, or mitigation which are necessary to protect against harm to the public safety, convenience, or other adverse socioeconomic or environmental impact, as evidenced by a financing commitment from a lender or an investor or a combination of each with adequate capitalization and resources to fulfill its commitment to build and complete the project;

             (3)      Is is proposed by an applicant who has negotiated in good faith to privately acquire sufficient property without the use of eminent domain ;

             (4)      Is proposed by an applicant who has filed a plat, as required by § 49-16A-64, and that plat sets forth the route of the road to be constructed or reconstructed, identifies each affected landowner, and specifies the location, along with construction methods and engineering specifications for all main lines, sidings, yards, bridges, crossings, safety devices, switches, signals, and maintenance facilities; and

             (5)      Provides that electric utilities, public utilities, telecommunication companies, and rural water systems have the right to the use of the right-of-way for the placement of underground facilities, without fee, subject to reasonable regulation as to location and placement .

     Section  2.  Each electric utility, public utility, gas utility, municipal utility, municipal power agency, joint action agency, consumers power district, pipeline company, telecommunications company, and rural water system has the right to cross over or under the railroad right-of-way for the placement of facilities, upon payment of a reasonable fee, subject to reasonable regulation and negotiation in good faith as to location, placement, and compensation, when the placement of facilities is outside the public right-of-way.

     Signed March 7, 2006