Summit asks Supreme Court court to dismiss landowners
Summit Carbon Solutions, a company with plans to build a multibilliondollar carbon capture pipeline in five states, has requested the South Dakota Supreme Court throw out all or at least part of an appealed survey access order based on alleged procedural errors within the appeal’s filing.
According to court documents obtained by the Argus Leader, Summit Carbon filed a Dec. 1 motion to dismiss a state Supreme Court appeal derived from five lawsuits in which landowners sought to prevent the company from accessing their land to conduct surveys and examinations without their permission.
Summit Carbon has already performed surveys the related order allowed, but the landowners take the case up to the state’s highest judicial tribunal to receive a Supreme Court opinion on multiple issues, including whether South Dakota’s survey access law conflicts with the South Dakota Constitution.
Summit Carbon’s counsel claims the court lacks the jurisdiction to consider four out of the five lawsuits, all of which have been consolidated into a single appeal, because official notice of an appeal was only filed in one court case — a McPherson County suit led by Peter Helfenstein Jr., a North Dakotan plaintiff who owns land in South Dakota.
The carbon capture company asserted the lack of notice in the four other cases prevents them from knowing who the appellants are and the nature of the appeal.
“Allowing an appeal from any unnamed, unidentified Landowners … would prejudice SCS by significantly expanding the scope of Appeal No. 30338 beyond the notice of appeal,” the company said in its motion to dismiss.
The appellee’s attorneys also argued each of the five cases required an individual appeal despite having been consolidated, as they each “retained separate identities.”
Summit Carbon’s attorneys further said the landowners should not be able to file retroactive appeals, since the state’s 30-day window for providing notice has passed.
All of the involved lawsuits were originally filed in 2022 and later
Continued from Page 1A
consolidated into one case on Sept. 12, 2022. The cases originated from Brown, Edmunds, McPherson and Spink counties. Summit was the plaintiff in one of the cases.
Nicholas Moser, one of the landowner attorneys, addressed Summit Carbon’s claims in a Dec. 15 response. He wrote the cases were clearly viewed as a singular case after their consolidation by the courts.
“At no point was any individual case litigated in any way as a stand-alone case. Even between the circuits, the facts and law were identical,” Moser wrote. “The only exception to that is that in some cases, the proposed ‘surveys and examinations’ were more intrusive than in others, but that minor distinction had no bearing on the Order being appealed from.”
In a legal critique, Summit Carbon pointed to “grammatical flaw[s]” and other clerical errors apparently present in the appeal.
“The law also contemplates that an appellant’s appeal should not be tossed aside because of alleged or even proven technical flaws,” Moser responded.
What are South Dakota landowners appealing?
The original dispute is centered around Summit Carbon’s Midwest Carbon Express pipeline, a 2,000-mile liquid carbon dioxide pipeline system that the Iowa-based company currently plans to construct in South Dakota, Iowa, Minnesota, Nebraska and North Dakota. Summit Carbon routed their pipeline through the state’s eastern and northeastern counties, but some landowners refused to allow company surveyors from entering their lands to examine the pipeline’s proposed route.
Fifth Judicial Circuit Judge Richard Sommers sided with the company in the cases and issued an order on April 21 to prohibit the landowners from interfering as the company completed said surveys. Landowners filed the appeal seven days later.
Since the filing of the appeal, Summit Carbon has hit some roadblocks in pitching its pipeline project to the states along its route. In September, the state Public Utilities Commission denied the company’s permit application for its carbon sequestration project on the first day of a long-awaited hearing. A similar siting petition in North Dakota was denied in August, but state regulators voted to reconsider the petition in September.
In October, Bruce Rastetter, CEO of Summit Carbon’s parent company, Summit Agriculture Group, was quoted in a Bloomberg article, saying the Midwest Carbon Express pipeline would be delayed until early 2026.
Landowners have expressed concerns about potential damages that could arise from the company’s examinations. In June, Brown County farmer Jared Bossly, one of landowners listed in the Brown County suit, criticized Summit Carbon after engineers used a large drilling rig to sample the soil of his land.
Generally, people opposed to Summit Carbon’s project also have concerns about whether their pipeline is safe, how its installation could affect the value of their land, and how future land development could be impacted, among other things.
Summit Carbon claims the single appeal is “deficient” in that it does not identify Judge Sommers’ April order as the item being appealed.
In the alternative, the company asked the court to limit the appeal to the 30 landowners listed in Helfenstein’s appeal.
Craig Schaunaman, a farmer who tends land near Aberdeen and one of the named plaintiffs in the Brown County lawsuit, told the Argus Leader he was unaware Summit Carbon filed to dismiss the appeal. He declined to comment on the pending litigation but said he was “not surprised” by the company’s “strategy.”
South Dakota Supreme Court Public Information Officer Alisa Bousa told the Argus Leader there is “no time as to when the Court will determine the result of that motion.” She added the court will schedule the appeal for oral or non-oral arguments if the case is not dismissed.