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Legislative committee pushes through Keystone XL bill package despite tribes', activists' concerns

PIERRE | Despite resistance from activists and South Dakota's American Indian tribes, the Legislature is moving forward with Republican Gov. Kristi Noem's last-minute bill package to curb protests of TransCanada's proposed Keystone XL pipeline.

Noem dropped Senate Bills 189 and 190 on Monday, weeks after the deadline to introduce bills for consideration in the 2019 legislative session and days before the legislature's final deadline to pass bills out of both chambers.

SB 189 establishes civil penalties for "riot boosting," or contributing money to or encouraging protesters who engage in violence. SB 190 creates a funding source for extraordinary costs attributed to increased law enforcement at protests, sourced from local, state and federal dollars, as well as contributions from pipeline companies.

The Joint Committee on Appropriations passed both bills on Wednesday; SB 189 by 14-4 and SB 190 by 15-3.

Asked about the last-minute timing of the bills, legal counsel to the governor's office Matt McCauley said that the bills took months of work from Noem's team, which only took office in January. Noem's office said it consulted with lawmakers, law enforcement officials and TransCanada in the writing of the package.

South Dakota's American Indian tribes, who have opposed the pipeline's construction since its announcement, were not among those consulted. Members testified Wednesday that they were not aware of the bills until Noem's public announcement on Monday. Faith Spotted Eagle, an activist of the Yankton Sioux tribe, called the package an "ambush."

The proposed Keystone XL pipeline route cuts through the historic Great Sioux Nation in South Dakota, near the federally recognized Rosebud Sioux and Cheyenne River Sioux tribes.

Cheyenne River Sioux Tribal Chairman Harold Frazier said in a Monday statement that Noem's package is "designed to further an agenda of shoving this pipeline down our throats."

"No one knew about this legislation and it has been concocted and pushed in the backrooms and outbuildings designed to keep the people of South Dakota in the dark," Frazier said. "Nothing speaks to the deviousness surrounding the actions of a rich corporation more than the actions of the politicians under their influence."

Noem said in a Monday news conference that she is "well aware that some of our leaders are not in favor of the pipeline, although we should all be in favor of it being peaceful."

Asked why the tribes were not involved in Noem's discussions, McCauley said the proposed pipeline route does not go through federally recognized reservations, and the governor's office thus concluded that they would be less impacted by law enforcement costs than local and state governments.

In addition to the tribes' objections, environmental activists like Dakota Rural Action and the Sierra Club, as well as the American Civil Liberties Union of South Dakota, challenged that SB 189 could infringe upon First Amendment rights to free speech and assembly.

They also questioned where the line would be drawn between a peaceful protest and a riot, and how easily people could find themselves on the wrong side of the law.

Noem's office maintains that the bill does not infringe upon First Amendment rights, and that the definition of a riot is already written in South Dakota law.

The idea of "riot boosting," though, is new, and opponents argue that what could constitute it is unclear. What if a person donates to a GoFundMe for protesters' supplies or shelter, or supports protesters on social media? Could those people, even if they did not intend to incite violence, be held liable for future damages?

McCauley said he could not answer to these hypotheticals, and that each case would differ based on the facts.

Policy Director for ACLU-SD Libby Skarin said that these are facts that could be parsed out in a courtroom, after the state could file suit. She said even the possibility of facing litigation brought on by the state could chill protesters' and supporters' free speech.

"The threat of having to hire an attorney to defend yourself against the state (and maybe TransCanada) in court and explain why your donation via GoFundMe was not riot boosting is, again, precisely what impermissibly chills speech," she said in an emailed statement.

As of Wednesday evening, spokesperson Janna Farley said ACLU-SD is "looking at the constitutionality of this legislation and whether or not it could be challenged in court if signed into law."

The Senate is expected to vote on the package on Thursday.


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Senate revives hemp legalization with saving grace amendment

PIERRE | After some legislative finagling, a bill to legalize hemp in South Dakota is still alive.

House Bill 1191 failed to receive a two-thirds majority vote on the Senate floor on Tuesday. But a day later, lawmakers reconsidered an amended version of the bill to allow it to pass with a simple majority. On Wednesday, HB 1191 passed by a vote of 21-14 — the same as Tuesday's.

Previously, the bill allocated funds from a hemp licensing program to a designated fund to be controlled by the state Department of Agriculture. Wednesday's amendment changed the program to flow money into the general fund instead. The amended version of the bill therefore only needed a simple majority.

House Majority Whip Sen. Jordan Youngberg, R-Madison, said after Wednesday's vote that the amendment helps to address some of the Department of Public Safety's concerns with adequate enforcement funding. Youngberg said by putting hemp program monies into the general fund, appropriators could allocate some of the dollars to the DPS to pay for potential increased enforcement and roadside testing.

Otherwise, Youngberg said any unused program dollars would just sit in the fund unused.

Youngberg also admitted the amendment was, in part, a strategic move to lower the bill's vote threshold.

"We're the legislative branch," Youngberg said following the vote. "We're the people's branch and I think the majority of the people have spoken that they want the opportunity to grow hemp."

Because it has been amended, the House has to vote on the bill again before it can head to Noem's desk. The House previously voted in favor of the bill by an overwhelming majority of 65-2.

From the start, Noem has discouraged the legislature from passing a hemp legalization bill this session. She said South Dakota "isn't ready" for hemp and she is "100 percent convinced" hemp would lead to the legalization of marijuana.

HB 1191 prime sponsor Rep. Oren Lesmeister, D-Parade, said on Tuesday the bill has been amended to ease the administration's concerns with law enforcement and public health. After passing the amendment, though, Lesmeister said the governor's office changed their stance, saying the bill was, in fact, worse than before.

Noem has not stated whether she would veto the bill. If she does, the legislature could attempt to override her veto with a two-thirds majority vote.

By their previous 65-2 margin, the House could easily override a veto. In order to clear the Senate, though, proponents will need to pick up three more "yes" votes.


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Beadle Elementary, North Middle piloting after-school meal program

Two Rapid City schools participating in a pilot program have served 6,000 free meals since December to students who stay after school for sports, tutoring and other extracurricular activities.

The meals of chicken and rice, sandwiches, pizza, fruit, milk and other "enhanced snacks" are provided by a program funded by the U.S. Department of Agriculture.

General Beadle Middle and North Elementary schools are the only schools in the district that are participating in the after-school meals program, according to Nutrition Manager Janelle Peterson.

While the district will likely renew its participation in the program for those two schools next year, the district has yet to determine if it will expand next year to other schools, Peterson said.

"At this point, there's some logistics to think about," she said.

Neither Horace Mann or Knollwood elementary schools, for example, have onsite kitchens. Both schools serve what are called pre-plated meals.

The district is reimbursed for the full price of each after-school meal, which Peterson said is $3.31 per plate. Funding for the program is administered at the state-level through the USDA's Child and Adult Care Food Program. 

In order to qualify, 50 percent of students or more in a given school must be eligible to receive free or reduced-price meals. Schools must offer after-school programs.

Eight school districts in South Dakota have Child and Adult Food Care programs in place, Cheriee Watterson, a child and adult nutrition service administrator at the State Department of Education, said Wednesday.

"There are many more universities, day care home sponsors, and tribal entities in addition to school districts," Watterson said in an email.

Nine schools in the district are "community eligible," meaning their entire student populations receive free breakfast and lunch. Those schools are Beadle, Knollwood, Horace Mann, Robbinsdale Elementary, South Park Elementary, South Middle, North Middle, Canyon Lake Elementary and Central High.

The new service will not replace the smaller after-school snack program already in place at Beadle, Horace Mann and Knollwood, Peterson said.