Grant County Revokes Manure Pipe Permissions; Upholds Private Property Rights

A unanimous decision by the Grant County Commissioners yesterday revokes permission for Confined Animal Feeding Operation (CAFO) operators to run force-main manure disposal pipes through the right-of-way across private land.

The motion is the result of a pending lawsuit that was to be heard in circuit court on July 16th. The suit, Tyler Revocable Living Trust vs Grant County Commissioners, claims that the county does not have the right to give permission for manure pipes to be placed in county road ditches.

These rights-of-way (66 feet) were established along every section line by the territorial legislature to guarantee a path to travel.  This land is owned, and taxes are paid on it, by the adjoining landowner. By law, the rights-of-way can be used for transportation only, even though state law does permit utilities to use the rights of way without permission from landowners.

“This lawsuit was not a frivolous act,” writes landowner Kathy Tyler, of rural Big Stone City. “We had discussed the issue of trespass and getting landowner’s permission three different times before the county commissioners–even presenting a legal memorandum detailing the issues.

Force main manure disposal pipe stretches along a narrow township road.

“We filed a trespassing complaint with the county sheriff to no avail. The pipes were still allowed on our land without our permission. Having one of our driveways dug up without permission or prior knowledge so a culvert could be installed was the last straw. The only remaining option was a lawsuit.”

The motion was brought to the board by Attorney Jack Hieb during a ninety minute executive session.  In open session, when the motion was made, questions concerning the motion, including its intention, were asked. Citizens were assured that the motion would not be reversed in the future and that any pipe placement needed to be done with cooperation from the CAFO operators and the landowners.

Tyler stated that she was “relieved that the county finally recognized the property rights of private citizens. It’s been a long, expensive fight, but it was worth it. It will make operators talk to the landowners before laying manure pipe or digging up driveways.”

In the 2018 SD Legislative Session, Dakota Rural Action members fought and killed a measure that would have added manure pipes to the section of law dealing with public utilities–in effect codifying in state law that individual business owners have the right to trespass on their neighbors’ private property, using these rights-of-way for the benefit of their businesses.

Prime sponsors of House Bill 1184 were District 4 Representative Jason Kettwig (R-Milbank) and Senator John Wiik (R-Big Stone City), and the bill was clearly a reaction to the pending lawsuit in their district. The legislation was supported by numerous large agribusiness groups, such as Farm Bureau, SD Cattleman’s Association, and the SD Pork Producers. Individual CAFO operators also supported the bill, but indicated that their own systems worked well because they cooperate with their neighbors.

Dakota Rural Action supports private property rights. We believe in the South Dakota value of being a good neighbor, and that lawmakers granting CAFO owners the right to trespass on private property constitutes an illegal taking. We applaud the Grant County Commission for rescinding their permissions and respecting the rights of landowners.

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South Dakotans Deserve a Better Bond

By John Harter, DRA Board Chair and Frank James, DRA Director

John Harter pictureThe Public Utilities Commission (PUC) is set to approve a transportation bond for TransCanada’s Keystone XL pipeline.

Dakota Rural Action has concerns about the $15.6 million bond. This bond was set as a part of the conditions for the original pipeline permit in 2010. Since then, road repair and construction costs have increased significantly. In addition, this bond does nothing to protect landowners and communities from spills like the one we saw in Marshall County last fall. Despite these facts, we will not be attending or participating in this hearing.

Recently the SD Supreme Court made a decision reducing the authority of the PUC and deciding that a nine day hearing held in 2015 should not have been held. Essentially saying that the PUC wasted the time of hundreds of people, attorneys, witnesses, and taxpayer money because they didn’t have the authority to hold the hearing in the first place.

Apparently the PUC is more than happy with this decision as it represents the latest in what seems to be an effort to reduce PUC involvement and authority in important decisions, making the PUC no more than a bureaucratic permitting agency rather than a regulatory agency protecting the people of South Dakota.

We do not plan to attend the rubber-stamping of this bond. Instead we want to point out that it doesn’t have to be this way. For many years Dakota Rural Action and other allies have fought for a stronger voice for the people of South Dakota in decisions like this one.

The PUC, Governor’s office and various state agencies have permitted TransCanada to operate in South Dakota with very little oversight. Permitting them to threaten land owners with eminent domain in the process of negotiating land easements. The PUC and the state has offered limited to no oversight of the spills the state has suffered from the Keystone 1 Pipeline. Most recently, the existing pipeline spilled over 400,000 gallons of tarsands bitumen in Marshall County. Another significant spill happened in 2016 near Freeman. These spills and others are from a pipeline that TransCanada promised the SD PUC would be virtually spill free. They have made the same promise about the Keystone XL Pipeline and the PUC has once again accepted their assurances.

The PUC and South Dakota’s Government have chosen a foreign oil company over the landowners, tribes, and people of South Dakota. This process of picking winners and losers is done not through active involvement and choices, but through inactions and turning a blind eye towards TransCanada’s activities.

This inaction represents a willful reduction of authority and oversight and amounts to a government decision to take the profit away from landowners crossed by Keystone XL and transfer it to a foreign corporation. More importantly, the inaction chooses winners and losers among the people of South Dakota. TransCanada called most of South Dakota an “area of low consequence”, which probably translates into how they feel about the families and tribes that make these areas their home.

TransCanada sees the South Dakota landscape as something to be crossed, a barrier that is in their way. The people, tribes, communities, and ranchers who live here are also barriers to their profit. The PUC and state government are complicit because of their inaction.

While DRA won’t be attending today’s PUC hearing, we will continue to work with our allies and members to fight for their voice and their rights. We will also fight for a government that stands with the people, rather than one that steps aside to let foreign corporations run roughshod over them.

 

Farmers, Rural Residents Fight For Quality of Life Against “Big Pig”

South Dakota Pork Producers are celebrating this weekend with PorkPalooza in Sioux Falls, but not all South Dakota citizens are in on the party. Farmers, landowners, and rural residents are fighting “Big Pig” and the siting of numerous Confined Animal Feeding Operations (CAFOs) across eastern and central South Dakota in an effort to protect their health, property values, and way of life.

Pastured hogs enjoy a treat and fresh air on Hyatt Family Farm in Northeastern SD.

In northeastern Brule County, farmers and homeowners are fighting a 7740-head Pipestone Systems swine confinement within 2 miles of several homes and businesses. During the planning & zoning commission hearing in the county seat of Chamberlain, commissioners were led to believe that so long as the permit application was complete, they were required to say yes. This, despite numerous–and recent–court decisions upholding counties’ broad authority to approve, approve with conditions, or deny such permits.

“The permit applicant also claimed that Pipestone had the legal right to run manure pipes across people’s private property in the right of way. Apparently, they didn’t get the memo that we killed that bill in the last legislative session,” says Rebecca Terk, organizer and lobbyist for Dakota Rural Action. “So, either they don’t know their own business, or they’re misleading commissioners–because Grant County is currently being sued for allowing Pipestone’s manure pipes to trespass on private property. I guess they’re not worried so long as the county pays the bill.”

The threat of a large hog confinement in close proximity to homes and businesses is a major concern for those threatened by this type of facility, but county requirements for a conditional use permit on largerCAFOs provide citizens a say in the process. The looming threat that most rural residents are not even aware of is that of the 2400-head swine barns being planned and built en masse in several counties in the state.

Only days ago, word came to Gregory County officials that Alberta, Canada-based SunTerra Farms Group plans to contract the building of four hog barns – swine nursery sheds – on a farm located near the County’s northern boundary just west of the Missouri River. Each shed would hold from 400 to 700 piglets, the combined total just under the number of swine allowed to stay below the 1000 animal unit ceiling specified in the County’s CAFO ordinance. Says Planning & Zoning Commissioner Robert Wirsing, “All it’s going to take to gain approval for the four swine nursery barns in Gregory County is a $10 building permit fee. No variance or conditional use permits are required. No public hearings either.”

“The County’s current zoning regulations provide it with no authority whatsoever to monitor facility waste disposal, toxic gases, odor controls, water consumption, or anything else pertaining to under-limit facilities. We have learned that SunTerra is planning dozens of barns in Turner County as well, and several other counties are seeing this same trend, or will be.”

These “under limit” facilities are designed by large, vertically-integrated corporations to fall under the threshold for most counties’ Conditional Use Permit (CUP) process. The vast majority of these facilities also do not require a permit from the state’s Department of Environment & Natural Resources (DENR), thereby avoiding oversight on construction, environmental impact, water quality assurance, and manure management. In many counties, as long as enough land is secured for the siting of the barn or barns to fulfill the county’s zoning setbacks (in some cases, a half mile or less from neighboring residences), the only “permission slip” required is a building permit.

This lack of public notice, hearing, or state oversight means that neighbors can literally wake up one morning to discover a CAFO being built next door. In some counties, dozens of barns are slated to be built through this process, bringing tens of thousands of hogs to an area with no discussion of how much water is being used, how much manure will be spread, or what the health impacts will be to rural residents. This process mirrors industry practice in Iowa, where over 700 impaired waterways and exploding costs to provide clean water to residents have strengthened the movement for a moratorium on new hog barn construction. In South Dakota, over 78% of rivers and streams are already impaired, primarily from the presence of fecal coliform and E. coli. Lake Mitchell’s water quality woes are likely due to an increase in hog confinements in the area and the spreading of high-phosphorus manure over tiled ground.

Meanwhile, farmers and landowners are being lured into contracts with the industry, promising good pay and a way to diversify their operations. However, with the Trump administration’s move to throw out the Farmer Fair Practice Rules that protect contract operators from unfair practices by the industry, those who sign such contracts have little recourse if their deal sours. “This rule that was thrown out by the Trump administration fills the swamp more,” said Senator John Tester in a speech to the Montana Farmers Union last year, “It allows corporate agriculture and international agribusiness to take advantage of folk in production agriculture. That’s the wrong direction to take.”

While the South Dakota Pork Producers are partying in Sioux Falls this weekend, the industry’s practices in this state and others stand to harm family farmers, landowners, and our rural communities. County officials need to take a close look at their current zoning regulations and take steps to curtail the unregulated growth of “Big Pig.” They need to evaluate their ordinances with regard to CAFO concentration and to determine at what concentration smaller unregulated CAFOs rise to a level where state and county oversight is appropriate.

Unlike Iowa, South Dakota retains local control, so that counties can decide what kind of development, where, and how much is a benefit to their citizens’ economic prosperity, property values, and quality of life. Now is the time to take a step back, engage with citizens in the process, and plan for that growth, rather than allowing industry to dictate the fate of our rural communities.

Circuit Court: Boards Have Right to Say No to CAFO Permits

By Joelie Hicks & Kristi Mogen

Citizens packed the Grant County Board of Adjustment hearing to testify against Berg Farms’ swine CAFO application in May 2017

The Grant County Board of Adjustment’s decision to deny a Conditional Use Permit for a Concentrated Animal Feeding Operation (CAFO) was deemed lawful this week by Circuit Court Judge Carmen Means.

On April 30th in the Codington County Courthouse, Attorney Chris Healey argued for Berg Farms that because their swine CAFO permit application met the basic requirements outlined in the county’s ordinance, the Board had no authority to deny the permit. Further, he argued that three members of the board acted improperly by receiving outside information (ex parte) from opponents of the project and should have recused themselves from the decision-making process.

Therefore, he claimed, the court should remand the matter back to the county board, remove three of the four members who had ex parte communication (the three who had voted against the permit), and instruct the board to approve the swine CAFO application.

Jack Hieb, attorney representing the Grant County Board of Adjustment, assisted by Reese Almond, attorney for the Grant County Concerned Citizens, countered that boards retain authority to deny Conditional Use Permits when they determine the project does not align with the community’s interests. Hieb also argued that the ex parte communications of board members were not invited, and that those communications were divulged at the outset of the permit hearing.

Judge Means struck down the Berg Farms appeal, noting that while there was ex parte communication “for sure,” that communication was uninvited, fully divulged, and that the applicants had waived their right to objection before the hearing. She furthermore reaffirmed that it is fully within the authority of boards to deny permits when they deem the project not to be in the public interest.

During the May 2017 public hearing on the Berg Farms swine CAFO application, twenty members of the Grant County Concerned Citizens, along with Sioux Falls Attorney Mitch Peterson, testified in opposition to the permit, and provided well-researched data regarding negative impacts of the proposed facility.

Recognizing that many boards have been misled into believing otherwise, opposition focused on the clear message that, even when deciding on an application that meets all the basic requirements of the ordinance, the board has the authority to deny the permit. This week’s circuit court decision reaffirms that message to boards across the state: you can say no.

Dakota Rural Action applauds the work of the Grant County Concerned Citizens, the Grant County Board of Adjustment, and Judge Carmen Means in upholding the authority of boards to say no to permitting projects that are detrimental to the public interest.

KXL Permitting Process: Who Will Represent the People?

By Frank James, DRA Staff Director

About half way through the Supreme Court hearing on April 17th of Dakota Rural Action’s case on the Keystone XL Pipeline, I began wondering who was representing the people of South Dakota.

This may seem pretty straight forward at least in principle, Adam de Hueck, the attorney for the Public Utilities Commission (PUC) in the hearing, should be the clear choice. However, I think he threw us all under the bus.

This judgement stems from a question posed by the Supreme Court a week prior to yesterday’s hearing. I learned about it from DRA’s Attorney Bruce Ellison at our Black Hills Chapter Annual Meeting in Rapid City. He said the Supreme Court staff found a statute passed 40 years ago dealing with PUC certification actions like the one we are appealing. This law called into question whether the PUC was required to do anything other than accept TransCanada’s certification of their permit, and whether they were even required to hold a hearing on that certification. To a lay person, this raises the question of the point of the whole process. If the PUC isn’t required to act, then why have the certification process in the first place?

To get a clearer picture we need to go back a little further because the path of the Keystone XL Pipeline permit is long and full of potholes. Here’s the short version. In 2010 the PUC gave TransCanada a construction permit for over 300 miles of pipeline in South Dakota. This construction permit has over 50 conditions attached to it. Four years without construction triggered another PUC law requiring the company to apply for a compliance certificate. That law requires TransCanada to certify to the PUC that it is in compliance with those 50-plus conditions.

This is where DRA and over 40 other intervenors had a problem. Buried in those conditions were real problems with the pipeline, everything from its construction and risks of spills and leaks, to how they treated landowners and tribes. The PUC opened a docket for the certification and held nine days of hearings. Hundreds of participants and dozens of lawyers gave hours of testimony. In the end, the PUC granted the certification to TransCanada.

DRA Member Paul Seamans speaks to the crowd gathered at the March 2017 Circuit Court hearing in Pierre, SD.

This story makes a brief stop in March of 2017 for our SD Circuit Court appeal of that decision. Judge Brown found in favor of the PUC and TransCanada.

So back to Rapid City, one week before the Supreme Court hearing. Attorney Ellison talked about the fact that the PUC held a nine day hearing acting in a quasi-judicial way to grant the certificate. Obviously, the PUC believed they had a duty to hear the public, hold a hearing and make a decision. I left Rapid City thinking this procedural question would be a small part of the Supreme Court hearing and the story.

I was wrong.

From the first question from a Supreme Court Justice, it became clear they were focused on this procedural issue. Was the PUC required to make a decision on the certificate, and did DRA and others have the right to appeal that decision? DRA’s attorneys Bruce Ellison and Robin Martinez, Cheyenne River Sioux Tribe’s attorney Tracey Zephier, and Yankton Sioux Tribe’s attorneys Thomasina Real Bird and Jennifer Baker made strong arguments supporting the PUC’s authority.

The PUC’s Attorney de Hueck was next up, and he argued the PUC made a mistake, wasted everyone’s time for nine days, and that the Supreme Court should throw out this appeal based upon this newly-found and interpreted piece of law. He even let the Supreme Court Justices know that the PUC was considering editing some of their own documents to remove references to appeal rights, which would effectively prevent citizens from appealing future decisions made by the PUC.

There was nothing stopping the PUC from defending their process and urging the Supreme Court to decide this case on the merits presented to the Circuit Court. Instead, the PUC abandoned its previous arguments, and its attorney was almost gleeful with this opportunity to further block regular citizens from participating in the process.

This follows the theme started in this year’s Legislative session which featured bills designed to reduce citizens’ access to the initiative and referendum process, and bills to keep people from fully participating in the local siting of large facilities like Confined Animal Feeding Operations. Another bill would have removed the PUC certification process for large wind energy and transmission facility projects.

Essentially, this is one more attempt to remove the state’s oversight authority and replace it with rubber-stamp permitting processes, with little or no public involvement.

So the question remains: Who will represent the people?

DRA Weekly Legislative Update

Dakota Rural Action Weekly Legislative Update

A big blizzard Monday & Tuesday closed roads into and out of Pierre. Despite huge snow piles, parking was easy to find—state employees had back-to-back snow days while legislators were at the Capitol plowing through the last of the bills.

The 2018 Legislative Session wraps up this week, with bills and resolutions attempting their final hurdle through committees on Monday and their second floor vote on Tuesday. Those bills that saw amendments outside their house of origin then went to conference committees for concurrence (or discussion and changes) on those amendments. All bills that have made it through the process then go to the Governor’s desk for signing, with March 26th reserved for the legislature to consider any gubernatorial vetoes.

Dakota Rural Action and other groups are pushing for vetoes on two initiative & referendum bills that passed in the final week. House Bill 1177 forces petition circulators to provide personal information to those who sign petitions they are carrying. This is in addition to the contact information required for petition sponsors. We pushed for, and were successful in, amending this bill to remove the petition circulator’s home address from the info provided, but we maintain that it is an invasion of privacy to require circulators to provide their phone number and email address to every person they meet in the course of doing their job (whether paid or volunteer).

House Bill 1196 requires petition circulators to file a laundry list of personal information with the Secretary of State’s office in order to prove their South Dakota residency. Despite the fact that courts in other states have found that imposing residency requirements for petition circulators to be unconstitutional, that law still remains on our books.

The purpose of HB 1196’s further requirements is (according to the bill’s prime sponsor) specifically to make it easier to challenge initiative petitions in court. This means that those opposed to the process, or to the goals of a specific initiative, will have their research work done in advance for them by the initiative’s supporters.

Additionally, the legislation calls for a fine of up to $5000 and a four-year moratorium for anyone found to have broken circulation rules. The four year ban is also likely unconstitutional, but the purpose is clear: people and organizations who continue to bring grassroots legislation that the legislature itself is unlikely to consider will have targets on their backs. Those who oppose Direct Democracy will use this tool to attempt knock them out of circulation.

Contact Governor Daugaard and ask him to VETO HB 1177 and HB 1196!

Call the Governor’s office at (605) 773-3212 or use the email contact form at: http://sd.gov/governor/contact/contact.aspx.

Potential Summer Study Issues for Ag & Natural Resources–Brands & Trust Lands

Two bills this session dealt with Brand Board fees and inspections. Senate Bill 29 cames as a request from the Department of Agriculture and increased brand fees and established an expedited brand registration fee. There was an amendment on the House side to lessen the increase in fees, but the Senate has not concurred with those changes, so a conference committee has been appointed, and the final fee amounts are yet to be determined.

Senate Bill 156 allows for the Brand Board to work outside the Ownership Inspection Area (West River) by request, and sets fees for that process to happen. This comes on the heels of a number of cattle thefts East River and a desire to clarify that brand registrations and inspections may be needed to curb these issues.

The conversations surrounding these bills led a number of the members of House Agriculture and Natural Resources Committee to propose a summer study to look at all aspects of the Brand Board in the state and determine if further legislation may be of value in addressing issues. Another potential summer study topic was suggested around trust lands in various counties, the lack of property tax revenue from these lands, and if the federal government might be called on the provide some tax relief in these cases.

Legislative Wrap Up Around the Corner

With the legislative session coming to a close, DRA’s Legislative Committee has met for its final “regular season” discussion of the year. We’ll be doing a recap of the session’s big issues in our Legislative Wrap-Up–members should look for it in their mailboxes next month!

A big THANK YOU to all our members (and others!) who called, emailed, and showed up to testify on behalf of our issues. This was a banner year for member engagement on the issues, and while we didn’t win ‘em all, we killed some bad bills, helped pass some good ones, and pushed amendments to take the sharpest teeth out of a few real doozies.

We couldn’t do it without member leaders like YOU!

ACTION ALERT: Call for Initiative Bill VETO Today!

Two Bad Initiative Bills–One Call–Contact the Governor for a Veto

In the waning days of the session, legislators passed two onerous bills undermining the initiative process. Call Governor Daugaard’s office at (605) 773-3212 or email at the following link: http://sd.gov/governor/contact/contact.aspx and ask him to VETO HB 1177 & 1196!!!

HB 1177 is a clear violation of privacy. It requires petition circulators to provide personal information (name, email, telephone) to complete strangers while gathering signatures. Petition sponsors are already required to provide contact info–circulators (especially volunteers) should not be forced to share their information with people they don’t know.

HB 1196 requires petition circulators to provide a laundry list of personal information to the Secretary of State’s office to “prove” their residency, though the bill specifically indicates that none of the items on the list are actually determinative of residency. It also adds a penalty for violating provisions of circulation of up to a $5000 fine and being barred from doing any work on any ballot question committee for four years.

These bills are designed to chill the initiative process and allow opponents of the process or of particular measures to block participation from individuals and institutions they disagree with.

Contact Governor Daugaard for a veto today!

ACTION ALERT: Final Days–Initiative Bills Still In Play

Initiative & Referendum Bills Still In Play–Call or Write Senators Today

This is the final week of the legislative session, and several Initiative & Referendum Bills are still in play. Of greatest concern are House Bills 1177 and 1196–both of which deal with extra hoops to jump through for petition circulators. HB 1304 is specifically about making it easier to challenge petition signatures.

All three of these bills have been amended, but they still set a bad precedent–they’re basically all just attempts to make it easier for those who dislike the process (or particular initiatives) to challenge or undermine the initiative process after petitions are gathered and the Secretary of State has certified an initiative for the ballot.

HB 1177 & HB 1304 will be debated on the Senate Floor on Monday, March 5th.
HB 1196 will be debated on the Senate Floor on Tuesday, March 6th.

Tell Your Senators to Stop Meddling with Direct Democracy!
Vote NO on these bad bills.
Find your Senator HERE or call the Senate lobby at (605) 773-3821.

A couple of bills will likely see hoghouse amendments in the waning hours of session. A hoghouse amendment is when the entire language of a bill is stripped out and new language inserted in its place. The only real limitation is that the new language has to be in the same subject area as the old bill.

Senate Bill 77 was a reasonable bill dealing with campaign finance disclosure for ballot question committees. It will be hoghouse in House State Affairs Committee on Monday morning, so we will be watching for the new language to determine if it’s problematic.

House Bill 1216 would have imposed limits on out-of-state contributions to ballot question committees. It was killed in committee, but will be brought back on the table for a hoghouse amendment in Senate State Affairs on Monday morning. We’ll be watching that one, too.

Initiative & Referendum Bills Still in Play in the Final Days

Below is a list of all the initiative bills still in process and where they are. Tuesday is the last day for bills and resolutions to pass both houses, so we are watching closely for amendments. Anything still in committee (SB 77, HB 1216, HJR 1006) will, if it passed, be on the floor for final consideration on Tuesday.

(+) DRA Supports  (-) DRA Opposes  (?) Hoghouse Watch

HB 1004–Senate State Affairs, Do Pass–Moves to Senate Floor
HB 1005–Senate State Affairs, Do Pass–Moves to Senate Floor (+)
**SB 77–House State Affairs Tabled–Hoghouse amendment coming Monday, March 5th (?)
SB 128–House State Affairs, Do Pass–Moves to House Floor
HB 1177–Senate State Affairs Do Pass–Moves to Senate Floor (-)
HB 1196–Senate State Affairs Do Pass–Moves to Senate Floor (-)
HB 1216–Senate State Affairs Tabled–Hoghouse amendment coming Monday, March 5th (?)
HB 1282–Senate State Affairs Do Pass–Moves to Senate Floor
HB 1304–Senate State Affairs Do Pass–Moves to Senate Floor (-)
HJR 1006–Hearing in Senate State Affairs, Monday March 5th (-)

**Not previously on our watch list; it is now because it will be hoghoused.

Thank you for all your calls, emails, and other support this Legislative Session!

DRA Weekly Legislative Update

Big Win On Manure Pipes; Big Loss on CUP Appeals

Nine DRA members traveled to Pierre this week to testify against two bad bills.

House Bill 1184 would have allowed the right of CAFO operators to run force-main manure pipes from their lagoons to cross private land using the right-of-way–without landowner notice or permission to do so. The bill placed these pipes, a benefit to a private business, in the section of code dealing with public utilities.

The bill was supported by individual CAFO operators, the Farm Bureau, SD Pork Producers, SD Dairy Producers, the SD Dept. of Transportation, SD Association of County Commissioners, and the lobbyist for both SD Association of Co-ops and SD Ag Unity. Testimony from the operators present indicated that they are already using these manure pipes, and they are doing so by working with their neighbors to gain permission and provide notification. This bill would have ended the necessity of working with neighbors and infringed on private property rights, and that was the focus of our testimony in opposition.

Our contingent to oppose HB 1184 in Senate Transportation Committee consisted of farmers, ranchers, and landowners, as well as former state legislators, county commissioners, and township supervisors. We were joined in opposition by lobbyists for sportsmens’ environmental, and conservation groups.

After a lengthy day of testimony, with final remarks coming shortly before 5pm, committee members moved to send the bill to the 41st day–effectively killing the bill. The final vote was 4-2 (1 excused) to kill the bill, with one lawmaker excused.

Senators voting in favor of manure pipes were Jim Bolin (R-Canton) and Jim Stalzer (R-Sioux Falls). Those who voted to support private property rights and working with neighbors were Jason Frerichs (D-Wilmot), Alan Solano (R-Rapid City), Ernie Otten (R-Tea), and Lance Russell (R-Hot Springs). Blake Curd was excused.

We had anticipated seeing the bill “smoked out” on the Senate floor–a process by which the bill’s proponents attempt to have a bill that was killed in committee brought up for debate by the full body of House or Senate. The morning after the vote, DRA members and others blanketed Senators’ mailboxes with an excellent opposition article on the bill, and we tracked the afternoon’s floor proceedings from the Senate gallery. The smokeout never came, and HB 1184 appears to be dead for the year.

 

Outside the hearing room Tuesday, DRA member and former District 4 State Rep. Kathy Tyler engaged in  discussion with current District 4 Rep. Jason Kettwig about his bill that undermines the CUP appeal process

House Bill 1292 was an even harder fight, and unfortunately one where we did not prevail. Understanding the bill required a crash course in all the different ways that counties and municipalities set up their Conditional Use Permitting process, and DRA’s lobbyist and members spent an extraordinary amount of time talking this through with legislators and others in the weeks preceding the hearing. Five DRA members testified in opposition, along with our lobbyist and the lobbyist for the SD Chapter of the Sierra Club.

The bill’s proponents argued that it creates consistency in the appeal process when those opposed to a Conditional Use Permit (CUP) decision decide to challenge that decision in circuit court. While that’s technically true, the problem is that there isn’t consistency in the way counties and municipalities grant those permits, and the permitting bodies have options when it comes to setting up their own systems in order to allow for the appeal process they want.

Right now, those boards deciding on CUPs by a simple majority vote will have a full review (de novo) of their proceedings should the permit be appealed. Those granting CUPs with a supermajority have a de certiorari review, which only looks at whether the body had jurisdiction to grant, and whether they acted legally in doing so. The bill took away all option for a de novo, or full review. The problem is not necessarily losing the full review option for simple majority CUP-granting boards at present–there aren’t many of them. The real problem is that the vast majority of the boards currently using a supermajority vote for CUP decisions may consider moving to a simple majority now that the “threat” of de novo review no longer exists.

HB 1292 slid through Senate Judiciary Committee on a 4-3 vote last Tuesday evening. Proponents included the bill’s sponsors, Rep. Jason Kettwig (R-Milbank), Sen. John Wiik (R-Big Stone City), and Sen. Art Rusch (R-Vermillion), as well as two lobbyists for large wind energy companies. One of those lobbyists admitted that he hadn’t understood the bill when he first read it, but now that he did, he thought it was a great idea. While large CAFO interests were not present at the hearing, it is likely that they, too, are rejoicing at its passage because this legislation seriously undermines citizens’ ability to challenge the granting of CUPs for large industrial projects that negatively affect natural resources and South Dakotans’ quality of life.

The bill passed the Senate floor Thursday evening on a 22-13 vote, and will be signed by the Governor. Senator Craig Kennedy (D-Yankton) and Senator Stace Nelson (R-Fulton) spoke against the bill, and immediately following the second opposition speaker, Lieutenant Governor and President of the Senate Matt Michels moved quickly to shut down debate and called for closing remarks by the sponsor.

Passage of this legislation makes it more important than ever that DRA members and others interested in preserving our rural communities and natural resources step up to run for county and municipal offices, and to apply for seats on planning and zoning boards as they become available.

THE FOLLOWING SENATORS VOTED TO UNDERMINE YOUR ABILITY TO APPEAL:

Blake Curd (R-Sioux Falls), Brock Greenfield (R-Clark), Josh Klumb (R-Mount Vernon), Ryan Maher (R-Isabel), Art Rusch (R-Vermillion), Alan Solano (R-Rapid City), John Wiik (R-Big Stone City), Gary Cammack (R-Union Center), Bob Ewing (R-Spearfish), Terri Haverly (R-Rapid City), Jack Kolbeck (R-Sioux Falls), Jenna Netherton (R-Sioux Falls), Jeff Partridge (R-Rapid City), Jim Stalzer (R-Sioux Falls), Larry Tidemann (R-Brookings), Jordan Youngberg (R-Madison), Jason Frerichs (D-Wilmot), Kris Langer (R-Dell Rapids), Al Novstrup (R-Aberdeen), Deb Peters (R-Hartford), Deb Soholt (R-Sioux Falls), Jim White (R-Huron).

Initiative & Referendum: The Long Debate:

The last of the initiative & referendum bills made their way through their committees of origin last week, and they’re beginning to show up in their second round of committee hearings.

We supported House Bill 1005, which simplifies ballot language for the effect of a “yes” or “no” vote once it was amended to clear up confusing wording on referred laws. It sailed through Senate State Affairs this week, but was not placed on the consent calendar, so we will watch for any potential last-minute amendments on the Senate floor last week.

House Bill 1196 required petition circulators to provide a laundry list of personal information to the Secretary of State’s office in order to prove their residency. The list included the last three addresses of residency for the circulator, the area code of their cell phone, the address of their immediate family, and even whether they had an out-of-state library card. We saw the bill as an intimidation tactic, as well as an opportunity for those who are anxious to bring court challenges to initiatives they don’t favor to have their research work done for them in advance. The bill did make it through committee, but the list was extensively amended. We’ll continue to oppose it on the Senate Floor.

House Bill 1216 limited out-of-state contributions to ballot question committees. We opposed the bill because not only is it likely unconstitutional, but out-of-state money isn’t necessarily a bad thing. For example, we can envision a situation where allied groups from other states might be willing to pitch in on a campaign to help strengthen our Family Farm Act. DRA was joined in opposition by a number of other organizations that have not taken positions on most other initiative bills–including SD Retailers Association, SD Chamber of Commerce & Industry, SD Electric Utility Companies, and Americans for Prosperity. The bill was killed in committee, then immediately placed back on the table with a hoghouse amendment coming Monday. We’ll be watching closely for what surprises that new language will contain.

SJR 1, the 55% threshold for approval of constitutional amendments on the ballot, passed its final hurdle last week and will go on the ballot. We testified against this bill early on in the process, but its final hearing in House State Affairs this week overlapped with our fight against the Manure Pipes bill, so our lobbyist was unable to take another crack at it in person. No other organization appeared to contest the bill in that final hearing, either, and it passed on a party-line vote, with Democrats Spencer Hawley (Brookings) and Julie Bartling (Gregory) opposing. The House floor vote was 55-9, so the proposed amendment will appear on the 2018 general election ballot for South Dakota voters to decide.

The Session is drawing to a close, but we’re still fighting for your voice in Pierre!
Throw a few bucks in the legislative tip jar to keep us truckin’.

Thank You!

ACTION ALERT: Right to Appeal Permit Decisions Under Attack!

Citizen Right to Appeal Permitting Decisions Under Attack!

Last Vote Coming on Senate Floor!

CONTACT YOUR STATE SENATORS NOW AND TELL THEM TO OPPOSE THIS BILL!

DRA Members wait to deliver opposition testimony on HB 1292, along with the bill’s prime sponsor, District 4 Rep. Jason Kettwig.

House Bill 1292 undermines citizens’ ability to appeal Conditional Use Permits (CUPs) in circuit court by giving all such appeals a lesser “de certiorari” standard of review.

CUPs are the permits by which CAFOs, wind farms, and other development projects are approved by counties and municipalities.

We have already seen how a lopsided process pits under-resourced counties, municipalities, and citizens against large, well-funded developers and their teams of lawyers, engineers, and consultants–often resulting in decision-makers feeling forced to knuckle under to pressure from corporate interests over citizen concerns.

NOW, those corporate interests are bringing legislation to strip a full and fair “de novo” review process from citizens who appeal those decisions in circuit court.

Clearly this is a industry bill based on the proponent testimony from Big Energy lobbyists–of course they love this bill (as do CAFO developers and others) because it gives them even more of an advantage in the process.

Do NOT Delay in Letting State Senators Know To Oppose HB 1292!