Dakota Rural Action Weekly Legislative Update

Members of the Community Energy Development Committee along with Black Hills staff pose with our bill’s prime sponsor, Rep. Jamie Smith of Sioux Falls

PACE Bill Heard in House Commerce & Energy
This Wednesday, members from our Community Energy Development (CED) Committee presented a strong defense of our Property-Assessed Clean Energy (PACE) legislation in the House Commerce & Energy Committee. It was a tough sell with several other complex bills ahead of us on the agenda, but we had some good input on our bill and support in unexpected places! This is a real opportunity to bring back the legislation next year with a stronger sponsor base, as programs such as this often take several years to get through the legislative morass.

The final vote (taken nearly half an hour after the committee regularly adjourns) was 10-3, with opposition testimony coming from SD Bankers Association, SD Association of County Commissioners, and SD Electrical Association. Sadly, it appeared that the opposition hadn’t really digested the bill, and they came with testimony that dealt mostly with residential PACE programs, which our bill did not include. Supporters of the bill were Reps. Hawley (D-Brookings), Johnson (R-Rapid City), and Steinhauer (R-Hartford). Our prime sponsor was Rep. Jamie Smith (D-Sioux Falls).

“Zombie” CUP Appeal Bill Nearly Squeaks By–Pulled From Consent
Sometimes a bill nearly gets by us. As part of last week’s Action Alert on PACE legislation, we also sent word of a bill killed twice on the House floor last session. That bill is back this year in its original, un-amended form as HB 1292. The legislation undermines local control by changing the way circuit courts review Conditional Use Permit appeals.

Because this bill was heard in House Judiciary Committee at the exact same time as our PACE bill was heard in Commerce & Energy, we weren’t able to have a presence in the room. Despite outreach and emails from members, it passed unanimously and was placed on the House consent calendar. Bills on “Consent” are passed as a batch the day after their passage out of committees unless any legislator requests that a bill be pulled off that calendar. Thankfully, we were able to touch base with legislators and get that bill pulled–and with the four-day weekend, that means we (and you) have got LOTS of time to get in touch with House Reps. to remind them to KILL THIS ZOMBIE AGAIN when it comes up for floor debate.

In case you’d like to review how your Representatives voted last year (in order to remind them to do the same this year), here’s the 2017 bill information page with both House floor votes. (Click on the “Do Pass Amended, Failed” lines for individual votes.)

House Floor vote on CAFO manure pipes bill this week. The bill will move next to Senate Transportation Committee

CAFO Manure Pipes Bill Squeezes Through the House

HB 1184 grants CAFOs (Confined Animal Feeding Operations) special privileges to use the right of way along roads and through ditches–across private property and without permission of landowners–to run pipes to pump their manure to non-adjoining fields. By and large, CAFOs are not even a permitted use in agriculturally-zoned areas (they’re a conditional use, and require a hearing process), but proponents are claiming their waste pipes are a public utility and should be treated as such in state law. An amendment in committee adds that counties “may authorize and regulate” them–not “shall”–meaning that in some counties, good neighbor relationships will be out the window as some CAFO operators ride roughshod over the private property rights of adjoining landowners with no real protection from local government. The bill passed the House on a 45-20 vote (5 excused) and heads next to Senate Transportation Committee.

Initiative & Referendum–When Will They Get the Message?
Despite calls to end the attacks, more initiative and referendum bills made their way through committee and their houses of origin this week. Among them are:

HB 1275–Speaker Pro Tempore Steven Haugaard (R-Sioux Falls) sponsored this bill that requires petition circulators to gather signatures from ⅔ of legislative districts. The bill’s own supporters seem confused about its contents, as their testimony repeatedly swapped the word “districts” for “counties” in attempting to explain how this process would work. That might be because a similar bill last session attempted to require a certain number of petition signatures from a certain number of counties, and was summarily killed in committee as an unworkable objective. The idea was also brought up (and dismissed) in the Summer Task Force, and during Wednesday’s committee hearing on the bill, Secretary of State Shantel Krebs repeated how unwieldy this system would be for her limited staff. Despite the clear signals that the bill is entirely unworkable, it passed out of House State Affairs and will be debated on the House floor next week.

HB 1216–Representative Gosch’s (R-Glenham) bill that limits out of state contributions to ballot question committees is likely unconstitutional, as some legislators pointed out in House floor debate. That’s likely why it failed on its first vote. However, Speaker of the House G. Mark Mickelson (whose dim view of the initiative & referendum process is widely known) worked hard to revive the bill, saying that the constitutionality question is a 50/50 toss up, and apparently enough House members were willing to take the chance of a lawsuit to vote for it when it was reconsidered the next day. It moves next to the Senate State Affairs Committee.

SB 124 attempts to place a Level 5 Felony Conviction on anyone who knowingly breaks rules of the petition-circulating process. This is the same level of offense as incest, selling half a pound of marijuana, or having multiple DWI charges, and it carries the penalty of 5 years in prison and up to a ten thousand dollar fine. Senator Jim Bolin’s (R-Canton) attempt to get tough on petition circulators was hampered, however, by his inability to answer questions in Senate Judiciary Committee like, “What are all the rules of petition circulation?”

Admittedly, that’s a hard question to answer at this moment considering that legislators like Bolin are attempting to make so many more of them. Instead of sentencing this bad bill to the 41st Day, Committee Chair Lance Russell (R-Hot Springs) gave Bolin and Speaker Mickelson (who arrived after the testimony period and simply walked up and took Bolin’s seat to answer committee questions) another week to “fix” their clearly sloppy legislation. We’ll see this bill back in front of Senate Judiciary Committee next Tuesday.

Take Action! What Bills To Talk About This Weekend:

HB 1292–Undermines Local Control in the CUP Appeal Process
Vote No–this was killed on House floor twice last year and for good reason!
Contact: State House Members

HB 1184–Gives CAFOs Special Privileges & Violates Private Property Rights
Vote No–CAFO manure pipes are not a public utility!
Contact: Senate Transportation Committee

SB 124–Felony for Petition Rule Circulators
Vote No–Clearly an attempt to intimidate citizens engaging in their right to initiate!
Contact: Senate Judiciary Committee

HB 1275–Sets Up an Unworkable System for Collecting Ballot Signatures
Vote No–the Secretary of State calls this impossible!
Contact: State House Members

HJR 1007 & HJR 1008–Ending or Curtailing Citizen-Initiated Constitutional Amendment
Vote No–Clear, Unabashed Attacks on Citizen Rights!
Contact: House State Affairs

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DRA Weekly Legislative Update

Gavel In; Gavel Out–No Floor Action on Manure Pipes, Other Bills Until Monday

The threat of heavy snow sent legislators home early; no action was taken on House or Senate floors Thursday

It started snowing early Thursday, and by noon, legislators and lobbyists alike were fleeing the Capitol to head home for the weekend ahead of a projected 6-8” of accumulation. No action was taken on House or Senate floors (they “gaveled in” and promptly “gaveled out”) during the last legislative day of the week, so we will have some extra time to build the case against House Bill 1184, which had been scheduled that day.

The bill would allow Confined Animal Feeding Operations (CAFOs) to run force-main manure disposal pipes through the right-of-way along roadsides and through ditches and culverts as if they were a public utility–and without the permission of affected landowners along the route. On Tuesday, three Grant County DRA members traveled to Pierre to testify in opposition to the bill, which squeaked past the House Transportation Committee on a 7-6 vote. Contact your House members this weekend to tell them, “No Way on HB 1184!”

Aerial Applicators Bill Killed in Senate Ag; Dept. of Ag Pushed to Promulgate Rules
DRA member-producers Angela Jackson and Glenn Pulse brought SB 179  to the Senate Ag Committee this week that would have required aerial pesticide applicators to observe buffers around sensitive sites, including organic farms and apiaries, as well as to carry liability insurance in case of damages.

The bill came out of an incident last summer, where Jackson’s Prairie Sun Organics operation (including a just-completed federally inspected organic poultry processing facility) near Vermillion was hit by spray drift of aerially-applied restricted use chemicals. They lost their organic certification as a result; however, despite the SD Dept. of Ag finding that the applicator broke the law, they have been unable to recover financial damages. The bill met stiff opposition from SD Agribusiness, SD Assoc. Of Co-ops, and a long line of individual aerial applicators who claimed they operate safely. While the bill was ultimately killed, committee members pressed the SD Dept. of Agriculture to promulgate rules for aerial applicators, and to quickly adopt the Field Watch program for registry of sensitive sites.

Lobby Day, Part 2? Members from Northeast and Southeast South Dakota came to testify on bills Tuesday morning. Black Hills members (not pictured) came too!

Property Assessed Clean Energy (PACE) Bill Gets a Hearing This Week!
Dakota Rural Action Community Energy Development (CED) Committee looks to have its day in committee this week, as we’ve been told HB 1301 will be scheduled in House Commerce & Energy this Wednesday or Friday.

Members do expect some resistance to the bill, although much of that resistance is likely based on residential PACE programs in other states that have had some problems. This bill focuses on commercial projects and is permissive–it creates a framework for counties to set up programs helping commercial enterprises finance energy conservation and renewable energy projects through local banks. The longer-term payback period with PACE loans keeps the energy cost savings above the cost of the payments.

HB 1007 Raised From the Dead as Part of Initiative Onslaught
Although the Summer Task Force on Initiative & Referendum brought forward some bills that, in our view, undermine direct democracy, at least Task Force members immersed themselves in the history, context, and legal issues surrounding the citizen initiative process. That cannot be said for the sponsors of many other initiative bills introduced recently, many of whom seem to have little understanding of the law and the process (or they do, and they want to get rid of it).

If this seems like hyperbole, consider the fate of HB 1302, which would have entirely outlawed paid petition circulation in South Dakota. None of the sponsors of the bill were on the task force, and maybe for that reason they were unaware that it was unconstitutional. DRA’s lobbyist and the lobbyist for Represent US pointed that out in testimony, but the majority of House State Affairs Committee members still seemed ready to vote for it–that is, until LRC Attorney and Summer Task Force Staffer Wenzel Cummings was asked to comment. Mr. Cummings affirmed the unconstitutionality of the bill, and cited case law. Finally, the bill was killed. Unfortunately, Mr. Cummings is not often in the hearing room, and as LRC staff, is likely unable to testify unless asked directly by committee members.

House Bill 1007 WAS a Task Force bill on creating a Citizen Initiative Review Commission, and it was defeated soundly back on January 17th. However, Rep. Tona Rozum (R-Mitchell) brought the bill back this week in order to hoghouse it (that is, strip and entirely replace the contents of the bill) as a single-subject citizen initiative bill that will be heard on Monday. In the afternoon House State Affairs Committee hearing where the hoghouse took place, Rep. Rozum attempted to bring the bill carcass back without commenting on the hoghouse amendment–it was only after Rep. Isaac Latterell’s (R-Tea) insistence that he ought to know what he was voting for that Rep. Rozum indicated her intention.

There are many more of these bills, and we are fighting them as they come. The MOST IMPORTANT THING YOU CAN DO to help fight this fight is to send a clear message to your legislators–through emails, phone calls, cracker barrels, and by showing up to testify in Pierre–that the citizens of South Dakota will not tolerate these attacks on our Constitutional Right to initiate–not now, and not at the ballot box in November.

DRA’s lobbyist Rebecca Terk takes a break from floor and committee action to hop on a staff meeting call

Public Notice & Hearing on Temp. Water Permits Dies; Proponents Still See Potential
House Bill 1225 would have set up a public notice and hearing process for temporary water permits that are currently issued by a sole DENR employee with no public input. Senator Kevin Killer (D-Pine Ridge) pitched the bill in House Commerce & Energy Committee this week, and four Black Hills Chapter members traveled to testify in support as well. The public notification process is particularly important as a tip-off for residents about mining exploration and other potentially damaging projects, as well as a way to protect water resources, particularly in times of drought. The bill encountered stiff resistance from DENR and Associated General Contractors, but testimony and supportive questions from the committee helped shape ideas for future legislation that could differentiate between types of permitted projects or amounts of water requested.

Are We There Yet? Nope, Only Halfway Through–
This week marked the halfway point of the 2018 Legislative Session. Dakota Rural Action’s work in Pierre is only possible with your support! Your dollars go toward helping members get to the Capitol to testify, mailing our newsletters and updates, and covering the day-to-day expenses of keeping our lobbyist right where the action is. Invest in our legislative fund today!

DRA Weekly Legislative Update

There’s a lot on our plates for next week–and this weekend is a good time for you to get in touch with your legislators at Cracker Barrels and Coffees or down at the local cafe!

CAFO, Water Use Permit, and Aerial Applicator Bills Scheduled Next Week!

At LEAST four bills we’re watching are scheduled in committee next Tuesday the 6th, and we’ve got ONE lobbyist. If you’re thinking of making a trip to Pierre to testify, you’ve got your “pick of the litter” on which bill to choose from.

Let Rebecca know you’re coming (rebeccat@dakotarural.org) and we’ll coordinate testimony.

  • Requiring Notice & Hearing for Temporary Water Use Permits (HB 1225) will be heard in House Ag, Room 464, at 7:45am
  • Manure Pipes in Ditches (HB 1184)–a huge breach of private property rights–in House Transportation, Room 413, at 10:00am
  • A bill to require certain reports in the event of an oil spill (SB 163) is scheduled in Senate Commerce & Energy, Room 423, at 10:00am
  • New Rules for Aerial Applicators–Senate Bill 179 seeks to remedy a stunning lack of regulations regarding the aerial application of pesticides. It will be heard in Senate Ag Committee, Room 412, at 10:00am

A few of the members attending DRA’s Lobby Days listening in committee

Buffer Bill Win This Week!

We saw a win this week on expansion of the Buffer Bill program (HB 1119) to allow counties to add waterways to the program. This bill was deferred from its initial hearing in order to amend the language so that counties must add the waterways by resolution, which creates an avenue for citizen appeal of those decisions. It passed House Local Government Committee and a unanimous vote, and was placed on the consent calendar for passage on the House floor.

Property Assessed Clean Energy (PACE) Bill Sponsored!

DRA’s Community Energy Development (CED) Committee has worked hard to bring a solid piece of legislation to the 2018 session. We have that in House Bill 1301, which has been assigned to the House Commerce & Energy Committee (but not scheduled as of this writing).

Property Assessed Clean Energy is a program utilized by several states to finance the cost of energy efficiency and renewable energy projects on commercial properties, utilizing capital from local banks and investors and local workers to complete the projects. The property owner pays back the PACE financing as an assessment on the property. For more information on the program, visit https://www.sd-pace.org/.

Initiative & Referendum Attacks Keep Piling On

It’s clear that we’re past any pretense that this tidal wave of bills is designed to improve the process of direct democracy. Clearly, it’s about making the process more difficult, time-consuming, and unwieldy for citizens exercising their constitutional right to initiative and referendum.

HB 1196 requires petition circulators to submit information on (among other things) their last three residential addresses, what town their library card is from, where their immediate family lives, and whether their cell phone has a (605) area code. The bill passed out of committee, but with Reps. Hawley, Bartling, Lust, and Rhoden voting “no.” Representative Lust in his remarks called the bill a “terrible overreach,” a “litigator’s dream,” and “way off the rails.” Contact your Representatives because this will move to the House floor next week.

HB 1177 as initially drafted would have required all petition circulators to provide their home address to all those who asked for it. This presented serious safety and privacy issues. It was amended to remove the residential address, though two committee members opposed that change. It passed out of committee and will go to the full House.

Newly-filed House Bill 1275 is another bad idea that has risen from the grave of last session. It changes initiated measure petition circulation requirements from not less than 5% of qualified electors in the state to not less than 5% of electors in ⅔ of senate districts. While in some cases, this might cause the overall required number of signatures to go down, the logistical nightmare of accounting for each district creates a greater burden than current statute.

HB 1275 further requires that any petition circulator must have resided in the specific senate district they’re gathering signatures in for not less than ninety days. Minnehaha County alone contains parts of eight senate districts. Pennington County has five, and the cities of Brookings, Watertown, and Aberdeen are in separate districts from their surrounding counties. If this were made law, a circulator could break it simply by crossing the wrong street.

That’s not the last of a long list of bills undermining the initiative and referendum process. You can contact us for a full list and read through all the details, but what matters most is to send a clear message to legislators to Stop Undermining the People’s Process!

DRA Lobby Days 2018!

Nearly twenty members showed up for DRA’s Lobby Days on Monday and Tuesday of this week. Our pre-lobby day social at Mad Mary’s featured an overview of issues and bills we’re working on, followed by a visit by District 26 Senator Troy Heinert to give us the “lay of the land” this legislative session.

We reconvened the next morning at 7:15am and headed up to the House and Senate floors, talking to elected officials about the issues that matter to our members, and later went up to committee hearings, where our presence caused at least one bill to be tabled when the bill’s sponsor realized his pitch was likely destined for failure!

Our Property Assessed Clean Energy (PACE) conversation was held in the Capitol Cafeteria over lunch, and several legislators took the time to talk with Community Energy Development Committee and other members about our issues and our bill. Those discussions ultimately led to our finding the sponsorship we were seeking. At the same time, the Braveheart Society’s Solar Power Trailer was parked in front of the Capitol, and legislators and others (including PUC Commissioner Chris Nelson) received a guided tour.

It was a great time and a great learning experience for all members and staff who attended! If you weren’t there, make sure to put it on your “To-Do” list for next year!

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DRA Weekly Legislative Update

FULL FRONTAL ATTACK ON INITIATIVE & REFERENDUM

If you thought the Summer Task Force bills were bad, wait until you see what else is in store for this legislative session.

This week, House Bill 1006 passed its final legislative hurdle. This bill, which curtails the ability of citizens to get their initiatives reviewed by the Legislative Research Council (LRC) for up to 4 ½ months out of the year, passed the Senate floor on Thursday by a 21-11 vote.

Those who testified in support of the bill said that the “blackout period” for citizen initiative review was needed during the busy legislative session because of understaffing at the LRC and the heavy workload they experience from legislator bills. Curiously, many of those who supported this too-heavy-workload rationale have also signed on in support of at least one frivolous bill (which the LRC is also required to prepare)–that chislic be designated as the official state “nosh.”

Sen. Jim Bolin (R-Canton) testified in support of SJR 1 and HB 1006 in the Senate this week

Dakota Rural Action and SD Citizens for Liberty joined forces in testifying against the bill in Senate State Affairs Committee, and we came close to a “compromise” amendment shortening that blackout period. Senator Sutton offered the amendment which several committee members, the Director of the LRC, and even the bill’s bi-partisan sponsors supported, but the deal blew up when Senator Curd offered a substitute motion to pass the bill as it was.

Senate Joint Resolution 1 passed its house of origin this week as well. SJR 1 raises the threshold for citizen ratification of constitutional amendments from a simple majority to 55%. The rationale behind this legislation (according to its sponsor, Senator Jim Bolin) is that we must “protect the Constitution” against out of state influences by making it harder to pass amendments.

However, as DRA members and other noted in their many calls and emails on this issue–putting in place a higher vote threshold does not stop out of state influences and out of state money from influencing our process–in fact, it means that those grassroots groups with fewer dollars will be at a disadvantage against big-money interests that can throw hundreds of thousands of dollars into advertising to pitch their message to voters and attain that higher threshold. As it stands, citizens who wish to initiate an amendment to the constitution must gather 28,000 valid signatures (so, closer to 40,000 actual signatures) to place the issue on the ballot, whereas legislators wishing to amend simply need to convince a majority of their own body–18 votes in the Senate and 53 in the House–to vote for it.

Thankfully, all proposed constitutional amendments coming from the legislature are required to go to a vote of the people. And although we’ve heard complaints about “ballot clutter” from citizen-initiated measures, legislators have thusfar filed no less than twelve resolutions to put constitutional amendments on the 2018 ballot. Some of them are very concerning, including Rep. Mickelson’s HJR 1007, which proposes to entirely remove the right of citizens to initiate amendments to the constitution. Rep. Pischke’s HJR 1008 proposes that all citizen-initiated amendments to the constitution are required to be approved by the legislature if enacted by the people. If passed, this change would mean that a constitutional amendment approved –even by 70% or more of the voters–could simply be thrown out by a simple majority no vote of the legislature.

There are many more bills and resolutions attacking the initiative and referendum process that have been filed in the last 48 hours. Fighting them all individually is a tough task. Dividing our resources by filing numerous bills (including the HB 1007 “bombshell”) is likely the strategy of those who wish to undermine the process.

We need to send a clear message to ALL our legislators that attacks on the citizens’ right to initiate and refer laws will NOT BE TOLERATED–not now, and not at the ballot box in November.

A COUPLE OF OUR WINS THIS WEEK
We pushed for an amendment to HB 1005 in House State Affairs Committee, which sailed through in the first week of session. This bill simplifies ballot recitation language for initiated laws and constitutional amendments as well as referred laws in order to prevent biased language on the ballot. However, the recitation for referred laws was backward–voters would vote “no” to say yes to a law and “yes” to reject the law. Thankfully, our message finally percolated through, the bill was pulled from the House floor, and it came back with amended language and passed this week.

We opposed the Department of Agriculture’s attempt to repeal the Oil & Gas and Drainage Dispute Mediation Programs (SB 33) in Senate Ag Committee this week. While this program has not been utilized much in the few years since its inception, with new oil & gas exploration starting up as the price rises, it would be foolish to throw out a program that saves people money and keeps them out of court when possible. The repeal failed by a unanimous vote.

BILLS TO WATCH
In addition to the load of bills attacking the initiative & referendum process, there are other issues that are popping up on our radar.

House Bill 1184 would allow the laying of manure pipes along and under highways. This is a direct assault on landowner rights–in most cases, landowners own and pay taxes on land to the middle of the road or right-of-way. While utilities and other public entities use that right-of-way to provide public services, this bill provides for private entities (primarily Concentrated Animal Feeding Operations, or CAFOs) to use that right-of-way for private gain. That means landowners would have no say about manure pipes in ditches on their own property. HB 1184 is assigned to the House Transportation Committee, but has not yet been scheduled. If this issue matters to you, start contacting members of that committee now.

On a positive note, House Bill 1225 provides for public notice and hearing on temporary water use permits. This bill comes out of concerns particularly in the western part of the state that mining company exploratory permits and the water use that goes along with them are receiving little to no public input or oversight.

There are also several newly-introduced bills regarding wind energy that members interested in this issue should take a look at. These include House Bills 1234 and 1235, which provide for pre-construction and decommissioning rules for wind energy facilities, Senate Bill 127, which revises requirements for proposed wind energy facility applicants, and House Bill 1164, revising requirements on energy conversion and transmission facility permitting.

All sitting legislators received a copy of DRA’s Lobby Day announcement this week–right on their seats!

 

SHOW UP AND GET INVOLVED!
Have you registered for DRA’s Lobby Day? We’d love to see you this coming Monday night, January 29th (pre-lobby day training) and Tuesday, January 30th.

We don’t know you’re coming if you don’t tell us, so please sign up by clicking HERE.

You can also come to Pierre anytime during the session–there are a lot of bills and a lot of potential for testifying on issues that matter to you. Citizen voices always carry weight! Let Rebecca know you’re planning to show up by calling (605) 697-5204 x260 or email rebeccat@dakotarural.org.

 

GIVE TO OUR LEGISLATIVE FUND!
Who said the election year session was going to be mellow? We’re busier than ever! And, we need your help to keep us on top of fast-moving legislation. Throw a few bucks (or several!) into our legislative fund today.

DRA Weekly Legislative Update

Week Two of the South Dakota Legislative Session

It has been incredibly busy at the Capitol–and it’s only week two! Fourteen of the bills we are watching so far were heard in committees, and DRA Staff lobbyist Rebecca Terk testified on more than half of them. The Initiative & Referendum bills coming out of the summer task force are making their way through the system quickly–three more were heard in Senate State Affairs Committee just this morning.

Capitol Pic

DRA Board & CED Committee Member Don Kelly, Organizer Cheryl Rowe, and Lobbyist Rebecca Terk before Thursday’s PUC Briefing at the Capitol.

 

In addition, DRA staff and members from our Black Hills Chapter and Community Energy Development Committee traveled to Pierre on Thursday and testified at a hearing on the Board of Minerals transfer of an exploratory gold mining permit, as well as attending the Public Utilities Commission (PUC) legislator briefing.

LOBBY DAYS!

DRA’s 2018 Citizen Lobby Days will be held on Monday evening, January 29th (training and socializing) and Tuesday, January 30th. We’re meeting at Mad Mary’s Steakhouse downtown Pierre from 5-8pm Monday for discussion, training, and dinner (if you like), and will reconvene Tuesday morning, January 30th to bring our issues to legislators. We’ll also discuss Property Assessed Clean Energy (PACE) legislation with the CED Committee and check out the Brave Heart Society’s solar power trailer built by Lakota Solar Enterprises. Our board will meet later in the afternoon for those members interested in attending. You are welcome to come both days or just one, but let us know in any case.

The official invitation will be coming out via email to members this weekend (with registration form), but if you already know you’re coming, get in touch with Rebecca at (605) 697-5204 x260 or email rebeccat@dakotarural.org to let us know. You can also connect with Rebecca if you have any questions about the day.

Bills On Our Radar

Next week, two bills of interest to our members will be heard in Senate Ag Committee. Senate Bill 25 eliminates the feedlot exemption from the national pollutant discharge elimination system, and is coming at the request of the Department of Environment & Natural Resources (DENR). We are planning to support this bill.

Senate Bill 33 is concerning–it eliminates the mediation program for surface damages and drainage disputes from oil & gas development. Our allies are telling us that this program was enacted only four years ago, and because it has not yet been used, it’s slated to get the axe as part of the red tape reduction program. With recent spills from the Keystone I pipeline and potential construction of Keystone XL, this is not the time to remove this option. We’ll oppose the bill.

RED ALERT! JUST SCHEDULED! Senate Joint Resolution 1 will be heard in Senate State Affairs on MONDAY at 10am. SJR 1 increases the threshold of amendment adoption from a simple majority to 55% for constitutional amendments appearing on the ballot. Talk to your Senators over the weekend and contact members of Senate State Affairs Committee.

A couple of talking points to help KILL this BILL:

  • In the 46 years we’ve had citizen-initiated constitutional amendments (since 1972), only 17 have made it to the ballot, and only 7 of those have passed. This bill attempts to address a non-existent problem.
  • Collecting the 28,000 signatures currently required to get an amendment on the ballot (more like 50,000 to account for doubles, etc.) is incredibly difficult to do. Adding another high bar to this process means only well funded (potentially out of state) groups will be able to participate, effectively shutting out the grassroots group this process was originally intended for.

Late to our radar but equally important is Senate Bill 20, to “enact the State and Province Emergency Management Assistance Memorandum of Understanding.” We are watching this bill closely as a result of our pipeline work. It appears to allow not only certain states, but some Canadian provinces to share forces in combating emergency situations.

Testimony in Senate State Affairs and on the Senate Floor brought up such concerns as liability (both for when we send people somewhere else or when they send resources here), control over what our state’s people and resources are sent to do, constitutionality, and expense. The bill passed the Senate Floor, but with no votes from all six members of the Democratic caucus, plus Republican Senators Jensen (Rapid City), Klumb (Mount Vernon), Kolbeck (Sioux Falls), Maher (Isabel), Nelson (Fulton), Otten (Tea), and Russell (Hot Springs).

In the Works (or Dead in the Water)

The Task Force bill on creating a Citizen Initiative Review Panel for the purposes of holding a public hearing for each initiated measure and initiated constitutional amendment was killed in House State Affairs Committee this week. We opposed this bill (HB 1007), but did not end up needing to testify because even proponents revealed a number of problems with this legislation. By the time SD Voices for Liberty finished their opposition testimony, it was clear the bill was doomed.

House Bill 1005, which clarifies ballot recitation language (a Yes vote does X; a No vote does Y) for initiative laws and constitutional amendments but confuses the language on referred laws, passed through House State Affairs Committee on the first day they heard bills. DRA members and others pushed hard on this problematic language, and Representatives listened: the bill was pulled from the House Floor docket and is being reworked. It will return to the House Floor next week–we’ll be watching the language closely.

House Bill 1006 is seriously concerning. The second section essentially “blacks out” from Dec. 1 through 15 days following legislative session adjournment and states that the Legislative Research Council does not need to provide comments on citizen-initiated measure drafts during that time. Rep. Julie Bartling (D-Gregory) attempted an amendment on the House Floor to shorten that time frame to a 30-day turnaround time for citizen initiatives from the LRC from Jan. 1-15 days after adjournment, but the amendment was soundly defeated. We understand that the LRC staff is stretched during session, but we do not believe the answer to this problem is to curtail citizens’ constitutional right to initiative. There may be some appetite to amend or kill this bill or to strike the problematic second section in Senate State Affairs Committee, but we need your help contacting the members of that committee to voice your concerns.

The Grain Buyer Bonding Bill (SB 26) brought by the Public Utilities Commission was a response to insolvency issues with public grain buyers, including the collapse of H&I last year, leaving farmers unpaid for their grain. The bill changes the Class B license to limit sales in that class to no more than $5 million, and it requires quarterly financial reports from all Class A licensed public grain buyers (with sales over $5 million). It passed both Senate Ag Committee and the Senate Floor this week.

A trio of Senate Bills on Initiative & Referendum were heard in Committee this morning, all three of which passed. We supported Senate Bill 10, which resolves conflicts between multiple initiatives or constitutional amendments passing simultaneously by enacting the one with the most votes. We were initially calling for a clarification amendment on Senate Bill 12, which removes the obligation for full text of initiated measures or amendments to be on the petition form (instead calling for the full text to be “made available” to signers). Our concern about what “make available” could potentially mean was alleviated after conversations with the sponsors and Legislative Research Council, and we expressed support. We opposed Senate Bill 11, which sets a 30-month-out start date for submitting draft initiatives to the LRC where currently there is no codified start date. The intent of the bill is to encourage citizens to submit their initiatives earlier than is typically done, but there’s nothing in the bill that actually accomplishes that. Combined with the potential passage of the black out period in HB 1006 (see above), this bill may further curtail the initiative process. Let your State Senators know you oppose it!

Lastly, the Governor’s bill to extend the sunset period for the Non-Meandered Waters compromise (SB 24) that came out of last summer’s special session passed out of Senate Ag Committee yesterday. While we have not taken a position on this issue, we are watching the proceedings. We expect sportsmens groups to attempt amendments on the Senate floor, and potentially to bring a bill or bills of their own.

Dakota Rural Action Legislative Committee–Spots Still Open

Did you read this whole update? Do you keep a close eye on session proceedings?
If you said yes, you’re a Leg. Session Rock Star! And, you may be just the member we’re looking for!

The DRA Legislative Committee meets weekly by phone during the Legislative Session at 4pm CT/3pm MT. We discuss upcoming and in-process bills, determine which we’ll be watching, and discuss strategy. It’s intense, but it can be fun for those who like to keep a close eye on the state process. Give Rebecca a call at (605) 697-5204 x260 or email her at rebeccat@dakotarural.org to sign up or learn more.

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HB 1006: A False Compromise

After the 2017 legislative session and the hard-fought battle over repeal of the Anti-Corruption & Government Accountability Act (IM 22), a task force mandated by the legislature’s passage of HB 1141 met this summer to “consider certain legislation proposed to revise provisions regarding the constitutional amendment, initiative and referendum process in South Dakota.”

Dakota Rural Action and many other groups fought repeal of IM 22, passed by the people of South Dakota in 2016, and our members brought a clear message to the summer task force meetings that the People’s Process of Initiative, Referendum, and Constitutional Amendment is one part of our government that is clearly working. It does not need “fixing” by a legislature that, for the most part, seems to view it as a threat.

The initial make up of the task force was concerning. No legislative member hailed from West River–in fact, five out of the six legislators represented counties in the Sioux Falls Metropolitan Statistical Area (Lincoln, McCook, Minnehaha, and Turner Counties), and the sixth was from Brookings. Only one voting member of the entire eleven-member task force resided west of Fort Pierre. No tribal representation whatsoever. Not exactly a fair representation of the state as a whole.

Despite the “Protect the People’s Process” message echoed time and again throughout the Summer Task Force meetings, a number of bills drafted in that task force are now making their way through the legislature.

Last Friday in House State Affairs Committee, Dakota Rural Action’s lobbyist, Rebecca Terk, testified against three of those bills, and despite our reasonable concerns, all three passed through committee with unanimous votes and very little discussion. The most concerning bill of the bunch is HB 1006.

House Bill 1006 is a combination of two draft bills coming out of last summer’s Initiative & Referendum Task Force. The first section covers the content of Bill Draft #4, compelling the Legislative Research Council (LRC) to provide written comments on initiated measures “in order to minimize any conflict with existing law and to ensure the measure’s or amendment’s effective administration.” The second section of HB 1006 brings in a second Task Force idea, Bill Draft #3, which institutes a “blackout period” for LRC comments from December 1st until 15 days after the close of Legislative session–approximately 4 1/2 months.

While Dakota Rural Action does not object to the LRC providing what are being referred to as “substantive comments” on draft initiatives submitted to them, testimony from LRC Legislative Attorney Wenzel Cummings during the Summer Task Force indicated that, in some cases, those comments are already being provided, depending on the staffer assigned to the draft.

The claim that it’s an insurmountable burden for the LRC to provide comments on citizen initiatives during the busy legislative session seems a bit outrageous given that during the 2017 session there were 492 total pieces of legislation submitted to the LRC (counting all bills, commemorations, concurrent resolutions, and joint resolutions from both House and Senate) and only 4 citizen initiatives.

We do understand that our state’s LRC staff is smaller than that of other states where people’s right to initiate legislation is enshrined in the constitution, but the answer to a lack of staffing is NOT to curtail the rights of citizens.

It should also be understood that the LRC’s role of commenting on draft initiatives is one of the first steps. Delaying that step could, in some cases, create a cascade effect resulting in fewer ballot question committees being able to complete the full process (which also includes offices of the Attorney General and Secretary of State and can take two months or more) in time to get petitions out, signed by many thousands of fellow South Dakotans, and submitted by the deadline–one full year ahead of the next general election.

And, is it really true that expecting the LRC to provide style, form, and (where they haven’t already) substantive comments on a tiny handful of citizen initiatives during the legislative session is the straw that will break the proverbial camel’s back?

It’s hard to know the answer to that question when, in last Friday’s House State Affairs hearing, both proponents and opponents of the bill suggested to committee members that they invite LRC Director Jason Hancock, who was sitting in the room, to testify to that point, and the members declined to do so.

Members of the committee as well as sponsors of the bill (legislators who served on the summer task force) referred to HB 1006 as a “compromise” and castigated opponents as unwilling to negotiate.

We ask, what compromise should the people of South Dakota make over our constitutional rights? And why does our legislature believe it has the right to determine all the parameters of this so-called compromise?

The task force was formed by the legislature as a result of citizen anger over the repeal of IM 22. The people of South Dakota didn’t ask for the task force; they asked for their vote to be respected.

We, the people of South Dakota, also didn’t ask the legislature to compel the LRC to make substantive comments on our initiated measures. We don’t necessarily object to those substantive comments, but we did NOT agree to give up our right to the LRC’s services for months as a “deal” for something else we didn’t ask for.

House Bill 1006 is no compromise; it’s an undermining of the people’s constitutional right to initiate laws in this state. The bill is up for discussion on the House floor TOMORROW–Tuesday, January 16th.

Contact your Representatives and tell them to Vote No on the false compromise of HB 1006.

 

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DRA Weekly Legislative Update

Three Initiative & Referendum Task Force Bills Pass Through Committee

House Bills 1004, 1005, and 1006 passed through the House State Affairs Committee Friday morning, all on unanimous votes, and will be placed on the consent calendar for passage on the House floor.

HB 1004 Clarifies that the State Board of Elections can make rules regarding petition size and petition font size. This bill could create the opportunity for limiting initiatives based simply on the number of words in the text–and for revisions of existing code that deal with updating multiple sections.

HB 1005 Revises the ballot recitation language from an statement crafted by the Attorney General to a simple, “vote yes to pass” and “vote no to reject” phrasing. We agree with the intent of the bill, which is to remove the opportunity for biased language on the ballot, HOWEVER, the recitation for referred laws (laws passed by the legislature that have been referred to the ballot by voter signatures) is a “vote yes to say no” and “vote no to say yes” switcheroo that will cause confusion at the ballot box.

HB 1006: Section 1 provides for substantive comments to be made on ballot initiatives by the Legislative Research Council (LRC), which is something the LRC has already been willing to do. BUT, the bill’s second section creates a “blackout” period during legislative session when the LRC is not required to comment on the people’s initiatives. LRC staff indicated that dealing with citizen initiatives during the legislative session has not created an undue burden.

Dakota Rural Action’s lobbyist, Rebecca Terk, testified in opposition to the three bills, indicating a desire to see amendments for the ballot recitation language on HB 1005, and to remove the second section of HB 1006. In the case of HB 1006, both proponents and opponents of the bill suggested to committee members that testimony from the LRC Director would help provide clarity; however, committee members declined to invite Mr. Hancock (who was present at the hearing) to the podium.

There will be more bills coming in the weeks ahead aimed at tampering with the initiative, referendum, and constitutional amendment process. These are the people’s tools, and it is crucial that you contact your legislators with a clear message to stop tampering with it.

Click HERE to find your legislators.

Bills We’re Watching

HB 1036: Ag Mediation Program Amendments
This bill comes up in the House Ag & Natural Resources Committee on Tuesday morning. This program that provides assistance to our family farmers and ranchers has seen a great increase in usage over the past two years–from 114 requests for assistance in 2015 to 234 requests in 2017 due to low commodity prices and the drought.

The bill appears to get rid of a large section of the program, and has caused some concern for producers, but the amendment is to remove language from legislative statute that already exists in rules. Rules are more flexible than statute (which must be dealt with by the legislature), so the change is about being able to make those changes (specifically ones mandated by the USDA) more efficiently, rather than waiting for the legislature to convene.

SB 26: Grain Buyer Bonding Bill
This bill will be heard in Senate Ag & Natural Resources on Tuesday morning. It provides for the bonding of grain buyers to avoid problems we’ve seen with grain elevators going out of business and leaving farmers in the lurch.

SB 33: Repeal of Mediation Program for Oil & Gas Surface Damage & Drainage Disputes
This bill is not yet scheduled in committee, but we are watching for it. The information we have so far indicates that this repeal is a result of a legislative “clean-up” of “unused” legislation. However, the program was only passed in the 2013 session, and with the potential of Keystone XL being built in our state, we should not be so quick to throw out the measure.

More Initiative & Referendum Bills
We know they’re coming–specifically SJR1, which raises the percentage of votes to pass an initiated constitutional amendment, and HB 1007, which creates a citizen initiative review commission. Watch for Action Alerts in your inbox (usually sent in the afternoon/evening hours after committees schedules are posted) for updates.

We keep you informed during the legislative session!
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Report Out: Initiative & Referendum Task Force July Meeting

The Summer Task Force on Initiative & Referendum met for a second time last week in Pierre to discuss research reports and draft legislation prepared by the Legislative Research Council (LRC) at the request of task force members.

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By the time the Task Force reconvened on Wednesday, July 19th, no fewer than twelve bill drafts were posted to the LRC’s website–some of which were simply different iterations of similar ideas. For example, Senator Jim Bolin submitted two joint resolutions on raising the percentage of votes needed to pass a constitutional amendment–one that raised the percentage to 55% and one that raised it to 60%.

Proposed Changes to LRC’s Role

Another topic raised by multiple bills was the amount of time the LRC has to comment on proposed initiated measures and the types of comments provided. One such bill changed the LRC’s comment deadline from fifteen days to fifteen working days; another bill draft proposed that the LRC would not provide comment on initiated measures during the legislative session.

A third bill suggested a time frame based on the number of words in the measure, and a fourth bill dealing with the LRC’s role made provision for substantive comments on initiated measures to “minimize conflict with existing laws.’ It should be noted that in current statute (and none of the bill drafts amend this), the sponsors of initiatives “may, but are not required to, amend the initiative or initiated amendment to the Constitution to comply with the [LRC] director’s comments.”

Otten’s Unpopular Proposals

Roundly rejected by the task force (including by its own author–Senator Ernie Otten) was a measure to limit the number of ballot measures (initiated laws, referred laws, and constitutional amendments) that could appear on the ballot. None of the members could get behind what would likely turn out to be a race–most likely to be won by the biggest monied interests hiring the most paid circulators–to be the first to collect signatures and submit them to the Secretary of State.

Otten also brought forward a bill to back-date the requirement for fiscal notes (passed last session and effective July 1 of this year) on initiated measures and amendments to include those already in process before July 1st of this year. Technically, it’s possible to do this–if the bill passed without an emergency clause in the next session, it would become effective July 1, 2018, but one wonders if legislators would risk a legal challenge by telling ballot question committees that got out of the gate early this year to go back to the LRC a few months before the election for a fiscal note.

More Time for Petitioners?

A draft bill introduced by Senator Reynold Nesiba would push forward the due date for signed petitions on initiated measures (not constitutional amendments, which require twice as many signatures as proposed laws) from one year prior to the next general election to the last day of June prior to the election. Secretary of State Krebs was adamantly opposed to moving the date forward because of local elections and other requirements of her staff’s time, but did suggest that allowing the submission, comment, and petition process to start earlier might be an option she could get on board with.

Streamlining & Conflict Resolution

Two draft bills appearing the day before the task force met embodied ideas of attorney Will Mortenson, who in 2016 led the campaign to defeat Amendment V (non-partisan races and open primaries). Mortenson’s contributions to the raft of bills included a measure to resolve conflicting initiated measures on a single ballot (if both are passed, the one with the most votes takes precedence), and another to change the ballot recitation (the language developed by the attorney general describing what a “yes” vote and a “no” vote does) to, in the simplest of terms, indicate that a yes vote passes the measure and a no vote rejects the measure.

A full list of the draft bills and research information from the Initiative & Referendum Task Force’s July 19th meeting are available on the Legislative Research Council’s website here.

The Task Force will reconvene for what is likely its final meeting on Wednesday, August 23rd, 9am, in Room 362 (Appropriations Committee Room) of the State Capitol. Discussion at the July meeting indicated that members will consider new bills as well as those already posted and make final decisions on which to recommend to the 2018 legislature.

We hope to see you there.

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2017 Legislative Wrap-Up

Dakota Rural Action 2017 Legislative Wrap-Up

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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.

 

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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.

 

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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.

 

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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.

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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?

 

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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.

 

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Flags at sunrise. Oceti Sakowin Camp, Fall 2016

 

Thank you for your support during the legislative session!

Rebecca Terk, DRA Lobbyist & Organizer

 

Weekly Legislative Update

This was the final legislative week, and most of our focus has been fixed on Senate Bill 176–the Governor’s Public Safety Zone bill–that arrived on the legislative scene late in the session as a hoghouse of a vehicle bill “to enhance the public safety.”

The hoghoused Senate version of the bill was incredibly concerning, almost certainly unconstitutional, and a direct affront to farmers, ranchers, and tribal members concerned about pipeline construction across the state. It allowed the governor virtually unlimited powers to create “public safety zones” anywhere, of any size in the state, and to control movement of people within a mile surrounding the zones–including those who live and/or own land in those zones. Additionally, the bill contained an emergency clause, allowing it to take effect immediately, and with no recourse for voters to refer the measure to the ballot.

 

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Representative Shawn Bordeaux (D-Mission) testifies about the lack of tribal consultation and the likelihood of leaks on the proposed Keystone XL Pipeline route.

 

Tribal leaders, the American Civil Liberties Union, and Dakota Rural Action (DRA) all showed up to testify against the bill in Senate State Affairs Committee. Representatives from Governor Daugaard’s office testified that the bill was a direct response to the Dakota Access Pipeline protests in North Dakota, crafted in anticipation of protests against the Keystone XL Pipeline in South Dakota, and that NO tribes or landowners affected by the proposed KXL Pipeline had been consulted in the crafting of the bill. Despite the admission of a complete lack of communication or consultation, the bill passed Senate State Affairs 6-3 with Senators Heinert, Maher, and Sutton voting no.

On the Senate floor (and thanks to citizen outcry), the measure was unable to garner the ⅔ majority vote required of a bill with an emergency clause attached. But, the bill did have support from a simple majority, which allowed immediate reconsideration. Assistant Majority Leader Ryan Maher (who voted against the bill in committee), moved to amend (remove) the emergency clause, and the bill then passed.  Click here for vote roster.

 

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Representative Dan Kaiser (R-Aberdeen), a sergeant in the Aberdeen Police Dept., testifies that South Dakota already has statutes to deal with violent or destructive protesters, and that SB 176 is redundant and unnecessary.

 

The early Monday morning House State Affairs Committee hearing on the bill brought many of the same opponents to testify, some of whom traveled from more than an hour away. Therefore, it was a surprise that the governor’s office immediately introduced substantial amendments to the bill without having informed those affected and concerned. Because of the radical nature of the amendments, opponents were testifying nearly blind to what the bill now contained (or didn’t contain). One thing we did seize on right away was that an emergency clause had been added back onto the bill, so DRA’s testimony focused specifically on that issue. Again, the bill passed through committee, this time on a party-line vote (Representatives Bartling and Hawley voting nay).

By the time the bill emerged on the House floor the next afternoon, landowners and tribal members had had a chance to digest the contents of the new bill and were substantially less concerned, though there were still questions about the process by which this bill came to the legislature (that is, with zero consultation with affected parties) and the need for an emergency clause. A lively debate ensued, and the bill again failed to pass with the ⅔ majority needed to retain the emergency clause. On reconsideration without the clause, the bill passed with a simple majority (click here for the roster).

 

RepSoli

Representative Karen Soli (D-Sioux Falls) objected to the continual vilifying of “outsiders” in proponent testimony on SB 176, noting that representatives of her ancestral people traveled from Norway to attend the Dakota Access Pipeline Protests in North Dakota.

 

Because of the differences between the House and Senate versions of the bill, and because the Senate did not concur with the House version, the bill was sent to conference committee. We were watching for the results of that committee (and what the bill would look like coming out of it) through Thursday evening. What emerged is the House (MUCH less concerning) version, but with the emergency clause tacked on yet again. Click here to see those amendments.

After being considered twice, the House passed the conference committee version of the bill, and that same version passed the Senate earlier today. We’re not ecstatic about the final version of this bill, but we are very happy with the intense pressure from citizens that took the teeth out of an initially horrifying and chilling piece of legislation.

Watch for our Legislative Wrap Up for an overview of the entire legislative session–including an analysis of the IM-22 replacement bills, hoghouse vehicles, and ag-related legislation.

Many thanks for supporting our work in Pierre this session, through your calls, e-mails, testimony, and donations! We couldn’t do it without you!

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