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.

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.

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.

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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!

ACTION ALERT: Manure Pipes Monday; CUP Appeals Tuesday

Manure Pipes Monday; CUP Appeals Tuesday–Contact Legislators Now!

House Bill 1184 would place force-main CAFO manure disposal pipes in the section of code dealing with public utilities (31-26). It will be heard Monday, February 26 at 9am in Senate Transportation Committee, Room 423 of the Capitol.

Proponents say that a vote against the bill is a vote against agriculture–but most actual farmers and ranchers disagree. This is an industry bill that provides special privileges for one segment of the ag community while taking rights away from others.

Contact legislators to tell them waste disposal for private businesses is NOT a public utility and should not be allowed to cross private property without landowner permission.

 

Senate Transportation Committee:
Ernie Otten, Chair
Jim Stalzer, Vice Chair
Jim Bolin
Blake Curd
Jason Frerichs
Lance Russell
Alan Solano

House Bill 1292 has gotten less press (and is more complex), but its effects may be even worse than HB 1184. It will be heard in Senate Judiciary Committee on Tuesday, February 27.

Proponents say this bill provides “consistency” in reviews of Conditional Use Permit decisions, but it does that by making it more difficult for citizens to appeal when a board clearly violates its own process. Right now, boards that use a ⅔ majority to approve permits have a “de certiorari” review in circuit court, which means courts grant some certainty that the board followed its own process.

Boards that use a simple majority to approve permits undergo a “de novo” review, meaning that the courts look at the entire process to see if there were irregularities. “De novo” reviews can help citizens successfully appeal permit decisions where boards have chosen to cut corners in order to fast-track potentially controversial projects.

This bill gives ALL appeals of Conditional Use Permit decisions a “de certiorari” review, and may even entice current ⅔ majority decision-making boards to switch to simple majority decision-making, since the threat of a full review would be removed.

For all those concerned about citizen rights and citizen input on developments such as wind farms, CAFOs, industrial parks, and other big projects, this is a MUST-KILL bill.

Contact Senate Judiciary Committee Members today!

Senate Judiciary Committee:
Lance Russell, Chair
**Arthur Rusch, Vice Chair
Brock Greenfield
Craig Kennedy
Kris Langer
Stace Nelson
Jenna Netherton
**denotes bill sponsor

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DRA Weekly Legislative Update

Two Must-Kill Bills Will Have Second Committee Hearings Soon

House Bill 1292 seeks to change the standard of appeal for Conditional Use Permits. Currently, those counties and municipalities that use a ⅔ majority to approve these permits have a de certiorari standard of review, wherein the courts grant a level of certainty that the permitting board followed its own rules in the permit approval (or denial) process.

Counties and municipalities that use a simple majority vote to approve these permits have a de novo review process in circuit court for challenges of those decisions. That means the court looks at their entire process of granting the permit to make sure that the permitting body followed all the rules laid out for the process, as well as looking at new information.

This bill seeks to change this sensible difference in standard of review to across-the-board de certiorari review, meaning that in those counties where a simple majority can approve or deny major projects such as wind farms, CAFOs, or large developments–a change in the standard of review will undermine the ability of opposition to show how the process may have been skewed.

Additionally, if this bill passes, counties that have previously used a ⅔ majority to approve permits (some do this in order to avoid the de novo review) may switch to simple majorities to approve Conditional Use Permits on large-scale and potentially controversial projects.

HB 1292 is scheduled in Senate Judiciary Committee’s 7:45 am meeting on Tuesday, February 22nd, but it’s the 9th bill on a packed agenda. If you’re interested in testifying, please contact DRA’s lobbyist Rebecca Terk at rebeccat@dakotarural.org or call/text (320) 305-9685. Otherwise, CONTACT Committee Members ASAP!

 

Damage done to culvert on private property from CAFO manure pipes forced through it

House Bill 1184 would allow CAFO operators to run their force-main manure disposal pipes through the right of way across private land without landowner permission. It would accomplish this by putting these pipes into a section of code (31-26) dealing with public utilities such as rural water and electric lines–except these pipes would be above ground.

We see HB 1184 as a major breach of private property rights. Currently, those wishing to run their private business’s waste disposal pipes across their neighbor’s land work out an agreement to do so with their neighbor. This bill would allow them to do it without any kind of permission or notification. An amendment to this bill allows for counties to regulate this process if they desire–but there’s no requirement to do so. Proponents of this bill say that a vote against it is “a vote against agriculture,” but our farmer and rancher members disagree–if you want to do a part of your business on someone else’s property, you work that out with them. Contact members of the Senate Transportation Committee and tell them to OPPOSE this bill.

Appetite for Destruction of People’s Process Waning–Four Bills Die This Week

Pressure from citizens across the state is starting to erode the legislature’s appetite for undermining the initiative and referendum process. In House State Affairs this week, two resolutions that were major blows against direct democracy died in committee.

Some Legislators seem to be forgetting the state motto, “Under God The People Rule”

House Joint Resolution 1008 would have required any citizen-initiated amendment to the constitution, once approved by voters, go back to the legislature for final approval. That would have meant that even measures passed by an overwhelming majority of the voters could simply be scrapped by legislators (no doubt accompanied by the maddening refrain that, “people didn’t know what they were voting for”). However, the Do Pass motion met resistance, and the resolution failed on a 7-6 vote.

Immediately following the demise of HJR 1008, Rep. Mickelson quickly moved to table his own House Joint Resolution 1007 in order to spare it a more resounding defeat. Though the resolution had virtually no chance of passing the full legislature, its ultimate fate would have been defeat at the hands of voters–as a proposed constitutional amendment, it is required to go on the ballot. The question HJR 1007 asked was whether to do away with citizen-initiated constitutional amendment entirely.

Clearly, being faced with the ultimate goal of most of these initiative bills caused legislators to begin backing away. However, HJR 1006, proposing single-subject amendments to the constitution, did pass committee on a party line vote, and has since made it through the full House as well.

The full House did reject two other bills undermining the initiative process this week–House Bill 1201 required information on the ballot about a petition sponsor, where they live, and how much they were paid. Opponents testified that the information was of no real import in determining the merits of the actual legislation and that this kind of information simply clutters up the ballot.

House Bill 1275 would have instituted an unwieldy and unworkable system whereby petition circulators would be required to gather signatures from ⅔ of Senate Districts in the state. The Secretary of State testified against this bill in committee, saying that the additional sampling requirements would make the process of verifying petitions (most of which already contain signatures from registered voters residing in multiple districts) mind-bogglingly complex. Opponents on the floor included some legislators who had not previously risen to defend the process.

Overview of All Initiative & Referendum Bills (With Current Status)

If you were to categorize by subject all of the bills and other forms of legislation filed this session, the category with the most bills by far is that dealing with initiative and referendum. While there are a couple of bills coming out of the summer task force that were good ideas to improve the process, the majority seek to undermine that process. Eight bills have been defeated so far, including one we supported. One bill we opposed has made it through both houses and was signed by the Governor. Below is a comprehensive list of all of the initiative & referendum bills, with where they are in the process indicated in parentheses. The bills we support have an asterisk beside their bill number.

Bills & Resolutions from the Summer Task Force on Initiative & Referendum

HB1004–Board of Elections Determines Petition & Font Size (Senate State Affairs)

*HB1005–Simplified Ballot Recitation (Senate State Affairs)

HB1006–LRC Substantive Comment & Blackout Period (Governor’s Desk)

HB1007–Citizen Initiative Review Commission (Dead, Then Hoghoused–See Below)

SB 9–Fiscal Notes for Initiatives on 2018 Ballot (House)

*SB 10–Resolution of Conflicts between initiatives passed in same election (House)

SB 11–Limits Time Frame in Which Initiatives Can Be Filed (House)

*SB 12–Remove Requirement for entire initiative text to be printed on petition form (Dead)

*SB 13–LRC to do fiscal notes as a part of its other comments (House)

SJR 1–55% Constitutional Amendment Threshold (House State Affairs)

Non-Task Force Bills

HB 1007–(Hoghouse version) Initiated measures one subject (Senate)

HB 1177–IM petition circulation revisions (Senate State Affairs)

HB 1196–IM petition circulator residency (Senate State Affairs)

HB 1201–require sponsor info on ballot (Dead)

HB 1216–Out of state contributions to ballot question committees (Senate State Affairs)

HB 1275–petition signatures from ⅔ of senate districts (Dead)

HB 1282–notify of out of state contributions to ballot question committees (Senate State Affairs)

HB 1302–Prohibit paid ballot question petition circulation entirely (Dead)

HB 1304–Revise provisions on challenging petitions (Senate State Affairs)

HJR 1006–Initiated constitutional amendments–one subject (Senate State Affairs)

HJR 1007–End citizen-initiated constitutional amendments (Dead)

HJR 1008–Require legislative approval of voter-approved constitutional amendments (Dead)

SB 124–Felony penalty for violation of petition circulation laws (Dead)

SB 128–Revise provisions regarding ballot question committees (House State Affairs)

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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!

ACTION ALERT: CAFO Manure Pipes as “Public Utility”–House Floor Today

CAFO Proponents Want Manure Disposal Pipes Treated (But Not Regulated) Like Public Utilities

HOUSE BILL 1184 on the House Floor TODAY. CALL OR EMAIL NOW!!!

Call or Email Your State Reps NOW! Tell them NO WAY on HB 1184! Leave a message in the House Lobby by calling (605) 773-3851 or email them.

CAFO Manure pipe running in road in Grant County, right beside a wetland

House Bill 1184 Seems like a pretty innocuous little bill. It’s short, but it’s not sweet. It allows Confined Animal Feeding Operations (CAFOs) to lay manure disposal pipes in accordance with CL 31-26–that is, in the right-of-way as if they were a public utility. After compelling testimony by several members of our Rural Vitality Committee, as well as water quality and sportsmens groups, the bill barely made it out of House Transportation Committee on a 7-6 vote.

Proponents claim that these force main manure disposal pipes are a “public utility” and should be allowed to use the public right-of-way (the road in front of your house, your ditches) to lay their above-ground manure pipes without notice or permission of affected landowners. But CAFOs are private businesses and corporations, their pipes lie above the ground, and they are a safety and environmental hazard. Proponents also say the pipes are safer and do less road damage than trucks, but there’s no leak detection mechanism other than a big plume of manure in the ditch (and waterways), in your yard, or on the road. Road damage needs to be compensated for in the permitting process–and not used as an excuse to take private property rights!

Damage done to culvert on private property as a result of CAFO manure pipes forced through 

CAFO manure pipe running through creek in Northeast SD

Even if you do not live in a rural area or if you live in an area without CAFOs–ESPECIALLY if you don’t live there (because these reps might not understand the full impact, but they DO understand private property rights being taken for corporate use), CALL or email your State Representatives NOW.