South Dakotans Deserve a Better Bond

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

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

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

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

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

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

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

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

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

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

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

 

ACTION ALERT: Manure Pipes, Oil Spills, Water Permits TUESDAY

HEARINGS ON TUESDAY: CONTACT COMMITTEE MEMBERS TODAY!

BAD! Call to Defeat:

• An Act to Provide Certain Provisions Regarding Waste Disposal Lines along or under highways (HB 1184) would allow CAFOs to lay manure pipes in the right of way on private property using the same provisions as public utilities. This bill will be heard in House Transportation at 10am, Room 423 of the Capitol. Contact House Transportation members HERE or call the House lobby and leave them a message at (605) 773-3851.

GOOD! Call to Support:

• Require Public Notice & Hearing for Temporary Water Use Permits (HB 1225) for construction, testing, or drilling purposes. This bill will be heard in House Ag & Natural Resources at 7:45 am Tuesday in Room 464 of the Capitol. Email Committee Members here, or call the House lobby at (605) 773-3851 and leave them a message.
• Provide Certain Provisions Regarding Aerial Applicators of pesticides (SB 179)–puts in place some common sense liability and setback requirements that are currently completely lacking in the state. Contact Senate Ag Committee members here, call the Senate Lobby at (605) 773-3821, or show up in support in Room 412 of the Capitol at 10am.
• Require Certain Reports in the Event of an Oil Spill (SB 163) makes publicly available a chemical analysis on the contents of the spill. It will be heard in Senate Commerce & Energy Committee, Room 423, at 10am. Contact Senate Commerce & Energy members here, of call the Senate Lobby ay (605) 773-3821 to leave them a message.

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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.

 

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.

 

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).

 

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!

ACTION ALERT: Free Speech & CUP Appeals

HB1187–Undermining Citizens Right to Appeal CUP Decisions–House Floor TODAY

This bill, pitched as “local control friendly” actually removes the right of citizens to appeal Conditional Use Permit decisions by their local Boards of Adjustment. If you’ve ever seen a permit approved even after everyone in the community spoke against it–this bill ensures you don’t have any recourse in the courts.

CALL THE HOUSE LOBBY FROM 7:45AM-1PM TODAY AND LEAVE A MESSAGE FOR YOUR REPRESENTATIVES. Tell them “NO” on 1187–local control means citizens should retain full rights to appeal CUP decisions.

House Lobby: (605) 773-3851

SB176–Undermines Free Speech–Senate Floor TODAY

This last-minute hoghouse bill gives the governor the power to declare a “public safety zone” anywhere in the state with NO parameters on size or location (it could be your own land!)–and creates a new, “aggravated criminal trespass” charge for those who enter that zone. It is SPECIFICALLY targeted against Native people, landowners, and others who protest pipelines and eminent domain for private gain, and it is an attack on the First Amendment right to Freedom of Speech.

CALL THE SENATE LOBBY FROM 7:45AM-1PM TODAY AND LEAVE A MESSAGE FOR YOUR SENATORS. Tell them this bill is a direct affront to Freedom of Speech, is Unconstitutional, and should be killed.

Senate Lobby: (605) 773-3821

It is especially important that you CALL today rather than e-mail because these bills are moving fast, and e-mails may not get read in time!

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Legislative Update

Headway on Ballot Measure Bills

We are making headway against the many bills chipping away at citizen tools for direct democracy. Between your calls and emails and the testimony of Dakota Rural Action members and allies, legislators are feeling the heat. Don’t let up! We’re at the halfway point of session now!

SB59 A bill to delay the effective date of ballot measures until July 1 of the following year. Recognizing that the bill was unlikely to be killed outright, DRA lobbied to have the date moved back to January 1st after an attempted amendment to that effect by Minority Leader Billie Sutton on the Senate side. In House State Affairs, Minority Leader Hawley proposed instead an amendment to leave the date July 1, but include language that no initiated measure could be repealed with the use of an emergency clause (which denies the voters right to refer) before that date. The amendment was favorably received by committee members, but the language needed more work, so it should be coming to the House floor next week.

HB1074 This is a bill to cap out of state contributions to ballot question committees to 75% of the total. DRA was prepared to testify against, but because the line of opponent testimony ran out the hearing time, the bill was re-scheduled to next week (2/13) in House State Affairs.

HB1153 Was killed in committee. This was a bill that required no less than 50% of an initiated measure’s petition signatures come from no fewer than thirty-three counties (and with a separate signature sheet for each county).

HB1130 This bill proposed a thirty-day delay in the gathering of petition signatures for initiated measures and constitutional amendments while a public comment period was opened on the secretary of state’s website. The bill was amended in committee to remove the thirty-day waiting period for signature-gathering, but it still requires an unnecessary public comment-plus-hearing process that stands to undermine petitioners’ efforts.

Passed on the Senate Floor

SB66–riparian buffer strip incentive program bill and SB154–bill encouraging the use of native vegetation during state rest area remodels.

On Our Watchlist

House Bills 1187 & 1188: These are the “other shoes” we’ve been waiting to see drop. The first “revise[s] the process by which courts consider appeals of decisions regarding conditional use requests.” The second is titled simply, “Accommodate legislation to promote agricultural development.” Neither is scheduled for a hearing yet, but we are watching closely because we think it’s likely there will be an attempt to slip them through quickly.

HB1141: This bill proposes a legislative task force for considering further proposed changes to the initiative and referendum process in South Dakota. It’s scheduled in House State Affairs Monday morning.

SB158: A bill imposing tariffs on crude oil pipelines constructed in the state if they are built using foreign steel. The tariff would create a pipeline spill clean-up fund. Scheduled in Senate Taxation Monday.

SB135: “Revise certain meat labelling requirements” aka the Country of Origin Labelling (COOL) bill from SD Stockgrowers. It has bipartisan support, and states in part that, “All beef and ground beef sold for retail sale within the state, except prepared foods for immediate sale or ready to eat, shall bear a label of country of origin.” We are hearing that this bill will come up in Senate State Affairs on Wednesday, Feb. 15 at 10am, and we’d LOVE to have some members come and testify in support! Let us know if you can join us there.

HB1204: Authorizes the production and sale of industrial hemp. Also not yet scheduled.

We’ll keep you posted about any fast-moving developments.

Watch for Action Alerts in your e-mail box!

Eminent Domain Reforms in 2016

by Tony Helland

This legislative session we will hopefully see the start of the process to reform the state’s eminent domain laws. The process will take time but there are a couple important changes that should take place with some immediacy. These changes include outlining the process of negotiation between the pipeline company and landowners as well as stipulating when the pipeline company can begin to condemn land through the use of eminent domain.

This past year, landowners to be crossed by Dakota Access were met by a one-time offer for their land and if it wasn’t accepted, the threat of court proceedings and eminent domain ensued. This all occurred before the state permit for the pipeline had been granted to the company. This is the wrong way to do business in South Dakota and highlights the imbalance in regulation between the pipeline company and citizen landowners.

Some initial discussions around reforms for the 2016 legislative session aim to rectify these imbalances. Legislation currently under discussion would define what negotiations should look like when pipeline companies seek the use of private property. The process would protect landowners and promote healthy terms that are agreeable to both parties. The disrespectful treatment of landowners by incoming pipeline companies is not new to the state and should more proposed projects seek the use of private land, these reforms will make the process transparent and balanced – the right way to do business. An outlined process of negotiation between companies and landowners is already in place and adhered to in many neighboring states. This reform will bring South Dakota in line with what is becoming the norm when pursuing oil and gas infrastructure projects.

Proposed reforms being discussed would stipulate that pipeline company cannot pursue eminent domain claims until after the project has earned its permit. This will take the pressure off landowners and give them time to negotiate a good deal for the use of their land. It will also promote an appropriate use of eminent domain. The argument goes, if the company doesn’t have a permit for the project they should have no right to condemn the land. Public Utilities Commissioner Gary Hanson made this clear in stating that lawsuits before the granting of Dakota Access’ permit were “reprehensible.” But the power of the PUC is only what state law mandates. A reform making this change should correct this improper use.

I’m hopeful that these reforms will make it to the legislature and progress will be made in the needed reforms to the state’s eminent domain laws. These reforms are by no means all that need correcting but are great start. Time and again we have witnessed business conducted poorly when it comes to pipelines and private property as well as the governmental inaction to correct it. Reforms at the state level will begin to change that for the better.

HCR 1006 – Approve Keystone XL Pipeline?

The South Dakota House of Representatives voted on an interesting resolution this afternoon. House Concurrent Resolution 1006 petitions President Obama to approve the proposed Keystone XL pipeline. The resolution itself talks about job creation and decreasing our dependency on oil, and proponent speeches made on the House floor referenced Nebraska’s recent approval of the new route.

Despite disputed job creation impacts and the lack of evidence that the pipeline will do anything at all to shore up domestic supplies of oil (the answer to this depends on whether the person you are talking to is for or against the pipeline), and despite the lack of emergency response capacity and adequate bonding for the pipeline in South Dakota, 57 legislators voted for this resolution. Only 11 voted against it:

Rep. Steve Hickey
Rep. Mark Feinstein
Rep. Dean Schrempp
Rep. Scott Parsley
Rep. Peggy Gibson
Rep. Kevin Killer
Rep. Paula Hawks
Rep. Ray Ring
Rep. Troy Heinert
Rep. Karen Soli
Rep. Kathy Tyler

Despite years of work, the legislature would not approve a pipeline bond, yet they have asked Obama to approve it. While we support both job creation and energy independence, we are not convinced KXL will bring either to South Dakota. And we cannot support either at the expense of safety and the rights of landowners crossed by the pipeline. Perhaps, now that they’re lending such keen support to the pipeline, they will be more willing to require it is done right – maybe its time to bring back that bonding bill?