2017 Legislative Wrap-Up

Dakota Rural Action 2017 Legislative Wrap-Up


The 2017 session was a whirlwind. While there were fewer bills in total than many previous sessions, much was at stake in protecting tools for direct democracy and our ability to exercise constitutionally-protected rights to assemble. Member’s voices were heard by legislators through phone calls, e-mails, testimony, and cracker barrels, and in many cases, it made all the difference. Read on for a synopsis of our work in Pierre.

The Full Frontal Attack on Direct Democracy

Following the repeal of Anti-Corruption and Government Accountability Act (IM22), legislators proceeded to bring a multitude of bills to undermine citizens’ ability to legislate through Initiative, Referendum, and Constitutional Amendment.

  • SB59–Delay effective date of initiated measures to July 1. PASSED
  • SB67–Increase the number of petition signatures required. TABLED
  • SB77–Require a fiscal note for ballot measures. PASSED
  • HB1074–Cap out of state contributions to ballot question committees. TABLED
  • HB1130–Public comment period and hearings for ballot questions. FAILED
  • HB1141–Legislative task force on the initiated measure process. PASSED
  • HB1153–Require 50% of petition signatures from no fewer than 33 counties. 41ST DAY

The Down-Low: We will be watching the legislative task force on the initiative and referendum process closely, as well as looking for ways to protect that process for the people of South Dakota as initiative, referendum, and constitutional amendment drives take shape in the coming months.



DRA members Kristi Mogen & Kathy Tyler traveled to Pierre to testify against HB1187, which would have undermined citizens’ ability to appeal Conditional Use Permit decisions by their local Boards of Adjustment.


Agriculture & Land Use Bills–A Mixed Bag

Some of the good bills that we wanted to see pass ended up failing, but NO bills that we opposed made it through the process.

  • SB9&10: While DRA did not take a position on these bills, we closely followed their debate. These bills drew river basin natural resource districts along more accurate watershed boundaries, created subdistricts based on population, and provided for an election in the Red River/Minnesota River Watershed District. Both died primarily due to the exclusion of Class I municipalities from the process. FAILED
  • SB66–Creates a riparian buffer strip tax incentive program. PASSED
  • SB114–Spearfish Canyon land swap bill (and $2.5 million appropriation) was tabled for lack of support from constituents in addition to a lack of funding in the budget. TABLED
  • SB135–Country of Origin Labeling (COOL) for beef. Hard fought, but SD Retailers Association has a lot of pull with some high-powered legislators (although many actual retailers said, “no problem” to using placards to indicate beef origin). FAILED
  • SB154–Encouraged the use of native vegetation in DOT rest stop remodeling projects throughout the state. Passed the Senate and House Transportation Committee only to fail on the House floor due to concerns about “weediness” and rattlesnakes. FAILED
  • HB1187–Would have undermined citizens’ right to appeal Conditional Use Permit decisions by local Boards of Adjustment. This bill was considered twice on the House floor and failed both times. FAILED
  • HB1188–A hoghouse vehicle that tied state funding for counties and municipalities to their inclusion of agricultural development (read CAFOs) in their comprehensive plans. FAILED
  • HB1204–Established an industrial hemp pilot program in South Dakota. FAILED

The Down-Low: While Rep. Jason Kettwig (R-Milbank) was the prime sponsor of both HB1187 and HB1188, he clearly had the backing of House Speaker Mark Mickelson (R-Sioux Falls), who attended committee hearings on both bills–even though Mickelson was not a sponsor of HB1188. Speaker Mickelson handed off the gavel to pitch HB1187 on the House floor, and after it failed, he brought it back for reconsideration. When it failed a second time, he warned that the legislation would make a reappearance in the 2018 session.



Rep. Oren Lesmeister brings the case for an industrial hemp pilot program on the House floor.


The Industrial Hemp Pilot Program bill seemed to have a good chance this year, after a very strong showing (9-2) in the House Ag & Natural Resources Committee and garnering the ⅔ House floor vote needed to establish a new program. Representative Liz May (R-Kyle) pitched the bill in committee and on the floor for the fifth year, joined by freshman Rep. Oren Lesmeister (D-Parade) who made a strong case based on language in the Farm Bill. The failure of the bill in Senate Ag Committee seemed largely due to the fact that it was the last piece of legislation heard in that committee on the last day bills had to pass through committee–and it came up in the last few minutes of the meeting–never a good time to consider implementing a new statewide program, especially one that the overseeing agency (Dept. of Agriculture) was not keen on dealing with.

Pipelines & Energy

As usual, the South Dakota legislative majority continues to support dirty & disastrous policy on pipelines, tar sands, and fracking. At least there was support for oversight of nuclear waste.

  • SB158–provided for a tariff on foreign steel used in pipelines built in South Dakota, and set up an oil spill clean up fund in the state. FAILED
  • SCR10–Protect waters of the Missouri River and oppose the Dakota Access Pipeline. TABLED
  • SCR13–Require payment into the federal oil spill liability trust fund for the Keystone One Pipeline and the Keystone XL Pipeline and to recognize dilbit (diluted bitumen, or tar sands oil) as oil. 41ST DAY
  • HB1071–Previously, only the governor’s approval was needed to store or process high-level nuclear waste in the state. This bill required additional legislative approval to do so. PASSED
  • HCR1013–Urged the State Department to approve the Keystone XL permit. PASSED

The Down-Low: Senators Frerichs, Kennedy, Killer, and Heinert all worked hard to protect natural resources and hold TransCanada accountable for their pipelines and products through bills that a created a state clean-up fund, supported American steel manufacturers, and urged the federal government to recognize tar sands oil (“dilbit” or “synbit”) as oil for the purposes of paying into the federal oil spill liability fund. Sadly, NONE of these bills even got through committee–many of whose members seemed incapable of saying anything but yes to what pipeline companies want and anything but no to even common sense protections for people and the planet.

Senator Wiik (R-Big Stone City) and Representative Schaefer (R-Kennebec) sponsored the resolution to urge State Department approval of Keystone XL, and Senate Republicans (with the exception of Assistant Majority Leader Ryan Maher, of Isabel) said yes to that, but no (again) to adding language clarifying that what the proposed oil pipeline would carry (dilbit) is actually oil.



Senators Sutton, Heinert, Frerichs, Kennedy, Nesiba, and Killer signify their support for resolving that tar sands oil (dilbit) is, in fact, oil for the purposes of payment into the federal Oil Spill Liability Trust Fund.


Use and Abuse of the Emergency Clause

This session was all about emergencies. Legislators tacked emergency clauses on all kinds of legislation, even when there was no clear threat or concern that warranted their use. According to the South Dakota Constitution, the only acceptable uses of an emergency clause are a) the law is necessary for immediate preservation of public peace, health, or safety of the state or, b) the law is necessary for support of state government and its existing public institutions.

If a bill passes with an emergency clause, the legislation goes into effect immediately after being signed by the governor, and the law cannot be referred to the ballot by voters. However, if an emergency clause is included in a piece of legislation, the bill needs a ⅔ majority vote in both chambers to pass. But, legislators found ways to get around this hurdle as well. Governor Daugaard’s anti-protest bill (SB176) could not pass either chamber with the ⅔ majority required, so the emergency clause was stripped on the floor of both chambers, the bill passed with a simple majority, and the emergency clause was re-added during conference committee.

The Initiated Measure 22 Repeal bill (HB1069) also included an emergency clause, even though IM 22 had already been enjoined by a judge and never actually went into effect due to a lawsuit filed by a number of legislators immediately following the bill’s passage. Another inappropriate use of an emergency clause was on SB67, which would have increased the number of petition signatures required for constitutional amendments by an estimated 88%. Thankfully, the bill was tabled by unanimous consent in Senate State Affairs Committee.


Hoghouse Vehicles, Carcass Bills, and Other “Shell” Games

Technically speaking, a “hoghouse” is a bill that is amended in its entirety during the legislative session–throwing out all the previous language of the bill and replacing it with contents that may be entirely contrary to the bill’s original purpose. A “vehicle,” “carcass,” or “shell” bill is one that is introduced with a title and virtually no content for the express purpose of filling in the contents later than the deadline for introduction of new bills. Legislators defend their use of these shell bills by saying that “things come up” during the session that cannot be predicted–though the fact that these bills have titles germane to their eventual contents tends to make that argument somewhat questionable. Over a dozen of these carcasses were introduced this session–some of which were abandoned, and some of which made their way through initial hearings without any contents.

A group of legislators led by Senator Stace Nelson (R-Fulton) appealed to Attorney General Marty Jackley about the perceived abuse of these vehicle bills, but Jackley determined their use is legal. In the case of SB 176, introduced as “An Act to accommodate legislation relating to the protection of the public safety,” it seems likely that Governor Daugaard communicated with North Dakota officials about the Dakota Access Pipeline protests prior to the legislative session and could have submitted his anti-protest bill by the regular deadline rather than nearly two weeks after. The question on the use of vehicle bills remains: how often are they used as a stopgap measure for necessary legislation, and how often are they used to hide the sponsor’s true intent until late in the session? And, is there a way to allow for the former and prevent the latter?



Rep. Dan Kaiser (R-Aberdeen), a law enforcement officer, testifies against the Governor’s Public Safety Bill (SB176), stating that laws already exist to deal with protesters who may trespass, commit violence, or destroy property.


Public Safety? Or Fear-Based Propaganda?

Almost forgotten after what came later, the first “public safety” bill of the session was HB1145, entitled “An Act to define a no-go zone and create a procedure to manage no-go zones.” Sponsored by Representative Tim Goodwin (R-Rapid City) and Lance Russell (R-Hot Springs) on the Senate side, the legislation was modeled on a failed 2015 bill from Tennessee based on false claims that Muslims were creating areas within municipalities where Sharia law was in force and police feared to tread. In addition to its clearly anti-Islamic roots, the language of the bill called into question how many other groups might be targeted by its vague definition suggesting that community organizers seek to “intimidate,” rather than empower the public: “a no-go zone is a contiguous geographical area consisting of public space or privately owned public space where community organizing efforts systematically intimidate or exclude the general public or public workers from entering or being present within the area.” Thankfully, the bill was withdrawn by its sponsor.

In committee hearings on the Governor’s Public Safety Bill (SB176) administration officials admitted that it was developed in talks with North Dakota’s administration during the Dakota Access Pipeline protests at Standing Rock, and they admitted that it was targeted toward those who would demonstrate against Keystone XL. However, officials claimed that the bill, which would allow the governor what amounted to war powers to declare a “public safety zone” anywhere, of any size in the state, was only targeting outside agitators and law-breakers. The initial hearing brought opposition testimony from tribal leaders from Cheyenne River, Crow Creek, and Yankton Sioux Tribes, as well as the ACLU and Dakota Rural Action. Legislators representing districts encompassing tribal lands were in attendance as well, and when they asked if any tribes were consulted in the drafting of the legislation, the answer from Governor Daugaard’s staff was simply, “no.” Landowners along the path of the pipeline were similarly ignored in the bill’s drafting.

DRA Board Chair John Harter (whose land is crossed by KXL’s proposed path) arrived at the Capitol to testify during the bill’s second hearing in House State Affairs on a Monday morning at 7:45am. Without warning to Harter and others who had traveled to testify, the governor’s staff introduced a comprehensive amendment that almost entirely overhauled the bill, removing the “public safety zone” language, and whittling down its scope to gatherings of 20 or more people on school and public lands and blockades of posted highways or highway right-of-ways. The amendment also removed the Senate version’s mandatory jail time for persons convicted of trespassing within a public safety zone, and an automatic felony charge for those previously convicted of trespassing within the past eighteen months. As previously written, because the Senate (first) and House (second) versions were radically different, the bill was sent to conference committee, and what finally emerged (and passed) was the House version which, with an emergency clause included, is not eligible for a referendum by voters, and was enacted into law as soon as signed by Governor Daugaard.

While we would have preferred to kill the bill entirely, the process that whittled this bill down from its truly chilling original language was an important fight for Dakota Rural Action and its allies. And, as the lobbyist during this session, and a frequent guest at Oceti Sakowin Camp last summer and fall, I can say that of all the bills we worked on this session, this was the one that affected me the most deeply and personally. I heard legislators repeat propaganda about “outside agitators” and “paid protesters” on the House floor, but I also heard calls for understanding, for wisdom, and for listening and learning from our Native neighbors. In a session that seemed like a never-ending fight, that is what gave me hope.



Flags at sunrise. Oceti Sakowin Camp, Fall 2016


Thank you for your support during the legislative session!

Rebecca Terk, DRA Lobbyist & Organizer



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