Tag Archives: Elizabeth May

A few thoughts about why I think the Non-Meandered waters draft legislation is bad

Highway 81 South of Arlington. Photo by Ken Santema 6/9/17.

Edited 6/10/17 – Changed wording about the lawyer as the old wording made is sound like he represented families in non-meandered waters lawsuits.

Yesterday I posted a look at the draft non-meandered waters legislation which the legislature will vote on in a special session on Monday. As I  mentioned in that post, I really do not like this bill  and hope it is defeated in special session. In this post I will look at a few reasons I oppose the bill. I will also mention that even though I am a sportsman, I am coming at this purely from a landowner perspective. There are sportsmen groups out there giving many good reasons for sportsmen to oppose this bill.

The good of the bill

Even though I oppose the bill I do think there are a few good parts to it. I thought it might be worth mentioning those parts there. I like the fact there is a liability clause added for non-meandered water which has been opened to the public. There is no reason the landowner should burden the cost of any accidents which occurs on waters landowners are forced to open to the public. Second, I like that there is a sunset. If the bill ends up making matters worse (which I think it will) there is hope it will go away. That about sums up the really good parts of the bill.

First bad thing: This bill does not come from the legislative committee

I will only mention this briefly. The legislative committee did not write this bill. They did a little amending to the bill during the final committee meeting, but overall this is not their bill. It appears the legislation was written by lawyer and lobbyist Matt McCaulley, who also represents landowners as a lobbyist during these proceedings. The Governors office and GFP also seem to have had major input into the drafting of the bill.

I commend some of the legislators for getting out there and listening to the concerns of constituents. But in the end the solution going forth is not one created by the legislature. Instead it was created by a special interest lawyer, the GFP, and the Governor’s Office.

Property rights are important!

For this section I will defer to part of what Rep Elizabeth May (R, Dist 27) posted on Facebook.

Both the Fifth and the Fourteenth Amendments to the Constitution provide “due process” protections for “life, liberty and PROPERTY” We hear a lot about courts and POLITICIANS protecting the rights to life and liberty – but we don’t hear so much about PROPERTY. Property rights are clearly as important as other individual rights in the US Constitution that protects the individual right to ownership of private property against infringement by national and state government power.

As Rep May says, the Fifth and Fourteen Amendments are in place for a reason.

Here is the text from the Fifth Amendment. I have highlighted the important portion:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

 As written this draft legislation opens a landowners property. The landowner does have a way to mark their property off-limits. Yet the way the law is written opens the landowners property up to the public by default. To make matters worse there are some waters, called the Section 8 lakes, which are being treated differently. These lakes are automatically opened to the public and cannot be marked off unless the landowner can convince the GFP commission why any particular portion of the lake should be closed. These landowners are definitely being deprived of property without due process.

Which leads us to the Fourteenth Amendment:

All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Just as with the Fifth Amendment, the Fourteenth Amendment ensures the State does not deprive any landowner of their property without due process. But even more, the Fourteenth Amendment also ensures people within the State have their rights equally protected. To expand upon this I will defer to an article written by David Ganje for the Farm Forum:

The bill legalizes discrimination among the lakes. The plain meaning of words used in the bill create two sets of laws for nonmeandered waters. The bill does this by using the word ‘notwithstanding.’ The late Justice Scalia in a book on statutory interpretations wrote that to use the word ‘notwithstanding’ performs a function opposite that of ‘subject to.’ The bill language ‘Notwithstanding the provisions of this Act’ indicates the provisions which follow the clause are not subject to the other provisions of the Act. The designated lakes listed in the bill, and any landowners owning land underneath the lakes, are not subject to the rules, protections and provisions of the rest of the bill. The bill creates two sets of laws. One for the designated lakes identified in the bill and another set for all other nonmeandered lakes. To explain the correctness of this reading, one need only look at the section of the bill following. Under that section, a landowner on a designated lake must first seek permission from the state before he might put up signs or markers over his property. Other nonmeandered landowners can put up signs. The rights, duties and liabilities of the landowners under the designated lakes are not the same as the rights, duties and liabilities of the landowners under all other nonmeandered lakes.

I would highly recommend reading the whole article here. Ganje lists many reasons to oppose this legislation. I wonder how long it will take before a landowner sues the state just for the reasons Ganje states above.

The public trust doctrine does not mean there has to be access to the water by the public

I’ve spent more time than I thought possible researching the public trust doctrine (for a different project). Nothing in my research leaves me to believe the public trust doctrine means that anyone in the public, including sportsmen, have a right to water over private property. And from reading the SD Supreme Court cases,  I don’t see where the legislature has to open up any waters for recreating. Instead the Supreme Court said it is up to the legislature to decide whether recreation would be a beneficial use.

Now, at the same time the current state law does not seem to allow landowners to utilize these non-meandered waters. There are some special exceptions for landowners to use water, such as for irrigation and dams to water cattle. But overall it would appear nobody should be doing anything with non-meandered waters. This is where the legislature should be focusing. Make a law that clearly states how waters on private property should be treated.

Game, Fish, and Parks already has too much power

Actually my biggest heartache with this proposed legislation has to do with giving the GFP regulatory authority over all non-meandered lakes. Part of the bill gives the GFP the power to regulate “The management, use, and improvement of all … nonmeandered lakes … for the purpose of water conservation or recreation”. There are no restrictions saying this is only for nonmeandered lakes with public access. There are no restrictions about the size or age of a lake.

Actually the definition of a lake is itself a problem. During testimony it was mentioned that lakes are defined in an Administrative Rule, specifically 74:51:01:01. Here is the definition of lake from that rule:

“Lake,” a pond, reservoir, or other body of water, created by either natural or artificial means, but not a pond or appurtenance that is used for the treatment and disposal of wastes and that is permitted for such uses

I don’t think this definition really reduces the qualms many have. Why would the legislature agree to give GFP regulatory access over non-meandered waters; especially when it appears any little puddle on a field could be counted as a non-meandered lake.

It might be worth mentioning that the GFP is one of the (if not the) largest law enforcement agency in the state. The GFP is not the tree-hugging bear-loving rangers from kids cartoons. The GFP officers are gun-carrying law enforcement officers with search and seizure powers other law enforcement agencies don’t have. Additionally the GFP has a highly closed budgetary process and no true oversight from outside of the executive branch. Some will say the GFP is overseen by a board, but this board is appointed by the Governor and at times seems to be more of a board which enables the GFP to do whatever  it wants. I would be much better if the GFP Commission actually provided oversight and was chosen by either the people or the legislative branch.

Words from a landowner on 81

Here is a short audio clip worth listening to. It was the testimony given by a landowner before the legislative committee. I think this landowner does a good job relaying the frustrations many farmers are feeling.

Semi-final thoughts

I have more reasons to oppose this bill. yet I am already making this post much longer than I intended. If I have time before the special session I shall post more about why I hope this bill is defeated.

District 27 and OST debates on Thurs Nov 3

Woksape Tipi Library. Photo by Ken Santema 5/16/14.
Woksape Tipi Library. Photo by Ken Santema 5/16/14.

I just received notification from the Woksape Tipi Library that there will be a candidate debate for SD Legislative District 27 candidates followed by a candidate debate for Oglala Sioux Tribe (OST) Presidential and VP candidates. This debate will be held at the Woksape Tipi Library on the Piya Wiconi Campus near Kyle. I covered a series of debates there during the 2014 primary election; and still feel it was one of the better run debates.  Hopefully voters from the community take the time to attend the debate, listen to it on KILI Radio, or watch it on KOLC TV.

Here is the flier promoting the event:


District 27 candidates

District 27 has a five-way race for the two State Representative seats. I looked at all five candidates in this race about a month ago. Here is the list of the five candidates in the order they will appear on the ballot:

There isn’t an election for District 27 State Senate.  Rep Kevin Killer (D) was term-limited in the State House and decided to run for the State Senate seat being vacated by term-limited State Senator Jim Bradford. Since there was no opposition for the State Senate seat, Kevin Killer has won the general election by default.

OST Candidates

It appears OST has a primary election, and then the top two go on to the general election. Here are the results listed of the primary election posted on the Woksape Tipi website (data credited to the Native Sun News on October 18):

OST President

  • Scott Weston 1149
  • John Yellow Bird Steele 988
  • Bruce Whalen 955

OST Vice President

  • Tom Poor Bear 103

  • Darla Black 797

  • Henny Whalen 74

  • Toby Big Boy 506

Since OST does a top-two primary election I believe some attention should have been focused on that system this year. That is because Amendment V is on the ballot and would implement a top-two system. I don’t know about the similarities between what is being proposed by Amendment V and what is currently being done by OST; but it sure would have been worth looking at. I’m not sure if I’ll have enough time to learn how OST elections work in time to blog about it before the end of the election. But if V passes I believe it is worth revisiting how OST elections are handled in order to get some idea of what is to be expected.

SD Dist 30 Sate House Gen Election: Frye-Mueller, Goodwin, Winter, and Arseneault

SD Legislative District 30. Screenshot from LRC website on 5/25/26.
SD Legislative District 30. Screenshot from LRC website on 5/25/26.

South Dakota legislative District 30 has  a general election for State Representative. District 30 is the South West corner of South Dakota. Towns in this district include Box Elder, Buffalo Gap, Custer, Edgemont, Fairburn, Hermosa, Hill City, Hot Springs, Keystone, New Underwood, Oelrichs, Pringle, Rapid City, Wall, and Wasta.

The Republican incumbents Rep Mike Verchio and Rep Lance Russell are both term-limited. Russell is running for State Senate. There was a five-way Republican primary election this summer between Julie Frye-MuellerMarilyn OakesRichard MounceTravis Lasseter, and Tim Goodwin. Frye-Mueller and Goodwin advanced to the general election; with a recount confirming Mounce did not make it to the general election. The Democrats have Kristine Ina Winter and Sandy Arseneault trying for one of these two House seats.

Here is a brief look at all four candidates.  The candidates below are listed in the order they will appear on the general election ballot. I’ve also included the links I could find to help voters learn more about each candidate. For candidates with a legislative history I look at a few pieces of legislation prime sponsored. For candidates with no legislative history I look at the issues I find for them online.

*** It should be noted this is NOT a scorecard. This post only looks at some of the legislative priorities of these candidates. These legislative priorities may or may not have any bearing on how the candidates actually vote on legislation.

Julie Frye-Mueller

Julie Frye-Mueller. Photo from Frye-Mueller campaign Facebook page.
Julie Frye-Mueller. Photo from Frye-Mueller campaign Facebook page.

Julie Frye-Mueller (R)
Website – Facebook – Ballotpedia – VoteSmart – SoDakLiberty

In the Republican Primary Election post I didn’t have much information about Julie Frye-Mueller. Frye-Mueller’s Facebook has become more active. Here are some high level issues I have been able to get from Fry-Mueller’s Facebook:

Fry-Mueller is definitely coming into this race as a conservative. She also has a website available with a few legislative priorities. Here are three issues she highlights:

Fiscal Responsibility

This is part of what Frye-Mueller has to say about fiscal responsibility:

With 850,000 people in South Dakota, why do we need a $4 billion annual budget? How in the world does this happen with a conservative legislature? I can tell you how that happens – a lot of candidates all across this state (not to mention country) are campaign conservatives. After all, if they told you they would be voting for more taxes, adding government jobs, and promoting more handouts, you wouldn’t vote for them!

In this section she also asks why the state would consider Medicaid expansion without looking into Medicaid fraud, especially since this expansion would go to “able bodied men and women between the ages of 18 & 64”.

2nd Amendment Rights

Frye-Mueller’s section on Second Amendment Rights is short and to the point:

I am an advocate for our Second Amendment rights. I support constitutional carry.

Limited Government

Frye-Muller has quite a bit to say about limited government. Here is part of what she has to say:

I am an extremely active member of the group South Dakota Citizens For Liberty. We have been instrumental to give the citizens a voice and voters a choice in three referendums to stop tax increases in and around Rapid City. Ultimately, we succeeded and the people voted all three down: Rushmore Plaza Civic Center expansion, area schools opt out and finally the wheel tax in Pennington County. Did you know that the half-cent sales tax increase had an “emergency clause” attached in the language? That clause prevented us from referring it to the voters. Personally I believe it was planned to take it away from the people for a vote. I guarantee we would have gotten the signatures needed to refer it.

Frye-Mueller goes on to say she has been fighting against Common Core.

Also interesting in this section is her involvement with a bill in the during the 2016 session:

As citizens we are often shut out of our “representative government”, so I will fight for citizen friendly legislation. As an example, the Pennington County Commissioners hold meetings only during the day. HB 1232 was a bill that was written by a group of us to accommodate citizens who wanted to have a voice. These voices were silenced because many people were working during the day and could not attend meetings. Many of the decisions the County Commissioners make have a direct impact on us. I feel it is vital for citizens to have the opportunity to be heard. I will bring “We the People” bills to help fight for citizens of South Dakota.

HB 1232 (SoDakLiberty Posts) was brought forth by Rep Elizabeth May to ensure County Commission and School Board meetings  hold at least one meeting after hours per month. That would make it easier for the average person to attend these meetings. Additionally the first agenda item for these meetings would be for public input. The bill was killed. But I think Frye-Mueller’s involvement with the bills shows a legislative priority for her.

Tim R. Goodwin

Tim Goodwin. Picture from Goodwin's campaign website.
Tim Goodwin. Picture from Goodwin’s campaign website.

Tim Goodwin (R)
Facebook – Ballotpedia – VoteSmart – SoDakLiberty

Tim Goodwin is another candidate I was unable to find out a lot about for the Primary Election post. It is odd that even though he won the primary, he has taken down his website. Further his Facebook has had no activity since March. Since I don’t have much to work on I’ll just copy/paste what I wrote about him during the primary (which includes info off the website that existed at that time):

Goodwin has an online presence. Most of his campaign seems to revolve around his military experience. There isn’t much to find out about his issues or priorities other than things like this from his website:

As a career military man, I have fought hard for justice and democracy around the world. And now it is time that I fight for the people right here at home.

“Put on the full armor of God, so that you can take your stand against the devil’s schemes. For our struggle is not against flesh and blood, but against the rulers, against the authorities, against the powers of this dark world and against the spiritual forces of evil in the heavenly realms. -Ephesians 6:11-12

Goodwin might be going after the warhawk vote in the Republican party. It seems an odd stance to take for a State legislative race though. Maybe as Goodwin is traveling the district he letting potential voters know what his priorities in Pierre are.

Kristine Ina Winter

Kristine Ina Winter. Photo from Winter's campaign Facebook page.
Kristine Ina Winter. Photo from Winter’s campaign Facebook page.

Kristine Ina Winter (D)
Facebook – Ballotpedia – VoteSmartSoDakLiberty
SDPB Audio: 2016

Kristine Ina Winter has some activity on her campaign Facebook page. For this post I will use her SDPB audio interview to get some legislative priorities.

Winter said her primary focus is to ensure “state government is responsive to and meets the needs of its citizens”. In particular she called out EB-5 and GEAR UP situations because they “point to structural problems in state government that need to be corrected”. Winter implied state government can better do its jobs when the people elected are trusted.

When asked about what legislation she would bring forth, Winter spoke about two ballot measures. Winter spoke about the redistricting ballot measure Amendment T (SoDakLiberty Posts) and the nonpartisan elections ballot measure Amendment V (SoDakLiberty Posts). Winter contends both measure will force politicians to consider issues over parties. She also believes oversight will increase due to the new commission that would be created.

Unfortunately Winter didn’t list any actual legislative priorities beyond what was on the ballot already. Some time in the future I will be doing a post on this odd phenomenon from Democrat candidates.

Sandy Arseneault

Sandy Arseneault. Photo from Arseneault's campaign Facebook page.
Sandy Arseneault. Photo from Arseneault’s campaign Facebook page.

Sandy Arseneault (D)
Facebook – Ballotpedia – VoteSmartSoDakLiberty

Sandy Arseneault is another candidate there isn’t a lot of information about. Her campaign Facebook has a lot of traveling the district posts, but not much for legislative priorities. Here is a part of Arseneault’s Facebook About that might give an idea for voters of District 30 just who she is:

Many have asked why I have decided to run for the Legislature. Honestly, I have asked myself the same question! Politics has become such a dirty game where mudslinging, name calling and misinformation is very much a part of and accepted as the way we campaign. So why would anyone want to put themselves out there for that kind of scrutiny? First off you need to know that I am hopefully optimistic. I believe in people over politics. I can sit back and complain how things should be different or I can step up and try to be the change. I believe we need to get back to working together for the common good of all. While we all have different political views we have to get back to being able to have good solid debates that focus on how we support the issues that are important to strengthening our families, schools and communities. I have heard from many of you that you want to be able to support your families, have a strong education system for your children and grandchildren with opportunities for them to stay in South Dakota. You want strong communities that support good economic development and success for our small businesses.

SD Dist 27 State House Gen Election: May, Livermont, Foster, Bradford, and McKinley

SD Legislative District 27.
SD Legislative District 27.

South Dakota legislative District 27 has  a general election for State Representative. District 27 is on the west side of the state, kind of centering the southern half of western South Dakota. Towns in Dist 27 include Batesland, Belvidere, Cottonwood, Interior, Kadoka, Martin, Midland, Philip, Quinn, and Wall. It also includes Pine Ridge Reservation and has a number of unincorporated towns such as Allen, Kyle, Manderson-White Horse Creek, Oglala, Pine Ridge, Porcupine, Wanblee,  and Wounded Knee.

One of the incumbents, Democrat Rep Kevin Killer, decided to seek the State Senate seat and has won that seat by default. The other incumbent, Rep Elizabeth May, is seeking reelection to her third term as State Representative. Joining May on the Republican side for the District 27 House seat is Steve Livermont. On the Democrat side there is Sen Jim Bradford, who was term limited in the State Senate, and Red Dawn Foster. Finally, there is also an independent candidate in the race named Everette McKinley. Five-way legislative races don’t happen too often in South Dakota.

Here is a brief look at all five candidates.  The candidates below are listed in the order they will appear on the general election ballot. I’ve also included the links I could find to help voters learn more about each candidate. For candidates with a legislative history I look at a few pieces of legislation prime sponsored. For candidates with no legislative history I look at the issues I find for them online.

*** It should be noted this is NOT a scorecard. This post only looks at some of the legislative priorities of these candidates. These legislative priorities may or may not have any bearing on how the candidates actually vote on legislation.

Elizabeth May
Rep Elizabeth May speaking on the SD House floor. Photo by Ken Santema 2/17/16.
Rep Elizabeth May speaking on the SD House floor. Photo by Ken Santema 2/17/16.

Rep Elizabeth May (R, Dist 27) – Incumbent
Website – Facebook – Twitter – Ballotpedia – VoteSmart – OpenStates – SoDakLiberty
LRC: House 2016 2015 2014 2013
SDPB Audio: 2016

Elizabeth May is seeking reelection to her third term as State Representative. May has quite a bit of information on her website and campaign Facebook page. But since May is a sitting legislator I will look at a few bills prime sponsored by her to get an idea of her legislative priorities.

Up first for May is a bill from 2016:

HB 1006 (SoDakLiberty Posts) – Authorize counties to impose sales and use taxes.

This bill was brought on behalf of the Interim Committee on County Government. She had also tried a version of the bill in 2015 as HB 1227 (SoDakLiberty Posts). Neither bill was passed into law. May’s legislation would have allowed the counties to impose a penny sales tax, and could be referred to a vote of the people. The main reason this legislation appears to have been brought forward is because the state continues to shift more costs to the counties without shifting revenues. That has left many counties scrambling to figure out how to pay for the many services being mandated on them. Bringing this legislation forth could be seen as May trying to work with the counties to help alleviate the budgetary burdens being imposed by the legislature.

Up next for May is another bill from 2016:

HB 1189 (SoDakLiberty Posts) – Provide for the inspection and review of a state-mandated academic achievement test taken by a student.

May has been a vocal opponent of Common Core. This bill was signed into law and will allow parents to review state standardized tests taken by their children after being scored. The bill was amended on behalf of the Department of Education to ensure the test is only seen in a secure environment. HB 1189 didn’t end South Dakota’s usage of the SBAC test like many common core opponents wanted, but it was seen as a step in the right direction. May also had a couple of bills in 2014, HB 1214 (SoDakLiberty Posts) and HB 1243 (SoDakLiberty Posts), aimed more directly at ending South Dakota’s involvement in Common Core; neither bill was allowed out of the House Education committee.

And finally here is one more bill to look at from May in 2016:

HB 1232 (SoDakLiberty Posts) – Provide for additional openness of local governmental meetings.

May brought this bill forth to ensure County Commission and School Board meetings  hold at least one meeting after hours per month. That would make it easier for the average person to attend these meetings. Additionally the first agenda item for these meetings would be for public input. House Local Government killed the bill. May showed a commitment to allowing for public involvement in governance with this bill.

Steve Livermont
Steve Livermont. Photo from Livermont's campaign Facebook page.
Steve Livermont. Photo from Livermont’s campaign Facebook page.

Steve Livermont (R)
Facebook – Ballotpedia – VoteSmart – SoDakLiberty

Steve Livermont doesn’t have a lot about him available online. But I am able to get some information about him in a Facebook post. Here is what he says about ag and land ownership:

“I do believe if you own your land, you should be able to do with it what you want,” said Livermont, “like several other careers, ranching and farming takes dedication to build up and be strong, and when you are strong, you are in the position to help others.”

Livermont goes on to talk about taxes:

Livermont shared his concern with amount of taxes collected, sharing that the government needs to ‘tighten their belts’ like the taxpayers do.
“We make sacrifices to live within our means, buying what we can afford, and the government should have to do the same,” said Livermont.

Livermont definitely seems to be coming at this election from a fiscally conservative viewpoint. Finally he has this to say:

“Over time, the government has gradually taken more control, I believe in the constitution and feel that we need to get back to that,” said Livermont, “The Bill of Rights has been attacked and I know that it has taken time to get to where we are and it will not be fixed in a day or two, but we can improve our country.
“If elected, I know it will be a challenge but I would be honored to be a voice in Pierre for the people in my area and feel confident, with hard work, we can establish the same freedoms for future generations” Livermont concluded.

Livermont seems to be well paired with May for the Republican side of this race.

Red Dawn Foster
Red Dawn Foster. Photo from Foster's campaign Facebook page.
Red Dawn Foster. Photo from Foster’s campaign Facebook page.

Red Dawn Foster (D)
Facebook – Ballotpedia – VoteSmart – SoDakLiberty

Red Dawn Foster is fairly active on her campaign Facebook page. Most of it is links with stories that align with her political beliefs. It is these Facebook links from Foster’s campaign Facebook I will use to compile a high-level list of what appears to be priorities for her. Most of the posts appear to revolve around those listed below. I have included a link to a Facebook post from Foster about each issue, but she generally has multiple post for each:

Foster’s Facebook doesn’t really give any more than that to figure out her legislative priorities.

Jim Bradford
Sen Jim Bradford speaking on the SD Senate floor. Photo by Ken Santema 3/2/16.
Sen Jim Bradford speaking on the SD Senate floor. Photo by Ken Santema 3/2/16.

Sen Jim Bradford (D, Dist 27)
Ballotpedia – VoteSmart – OpenStates – SoDakLiberty
LRC: Senate 2016 2015 2014 2013 2012 2011 2010 2009 House 2008 2007 2006 2005 2004 2003 2002 2001

Jim Bradford is term-limited in the State Senate and is once again seeking a House seat. Since Bradford is a sitting legislator I will look at a few bills prime sponsored by him to get an idea of his legislative priorities.

First up from Bradford is this bill from 2014:

SB 130 (SoDakLiberty Posts) – Reinstate certain civil actions for childhood sexual abuse if subsequent legislation had the effect of limiting the plaintiff’s right to recovery.

Bradford brought this bill forth because legislation that had been passed in 2010 regarding sexual abuse cases was to believed to have caused some cases dropped because the court retroactively applied the new law to these cases. This bill did not make it out of committee.  Opponent testimony noted even under the older law the statute of limitations would also have stopped the lawsuits.  This was an odd and confusing bill that may have actually done the opposite of what it intended if passed into law.

Up next for Bradford is this bill from 2013:

SB 149 (SoDakLiberty Posts) – Revise certain provisions relating to violations found through environmental audits.

This bill from Bradford would put in law that the Department of Environment and Natural Resources (DENR) has to go after civil penalties and/or criminal prosecution for violations found during an environmental audit. Currently the DENR can choose whether to do so. It also would have changed the time-frame to do so from thirty days down to a single day. The bill didn’t make it out of committee. But Bradford did show protecting the environment as a legislative priority by bringing this legislation forth.

Finally there is this bill from Bradford in 2013:

SB 221 (SoDakLiberty Posts) – Revise certain penalties relating to the possession of marijuana.

This bill from Bradford would have changed the penalty for possessing two ounces or less of marijuana from being a Class 1 misdemeanor to a Class 2 misdemeanor. This was an interesting bill that tried to reduce the harmful effects of the legal system on victimless crimes. Bradford was not able to get the bill out of the Senate Judiciary committee. Perhaps he will try again if reelected to the House side of the legislature.

Everette McKinley
Everette McKinley. Screenshot from McKinley's SDPB video.
Everette McKinley. Screenshot from McKinley’s SDPB video.

Everette McKinley (I)
Ballotpedia – VoteSmart – SoDakLiberty
SDPB Video: 2014
SDPB Audio: 2016

Everette McKinley was in this race as an Independent in 2014 as well. He doesn’t really seem to have much of an online presence, but he does have a SDPB video interview from 2014 and a SDPB audio interview from 2016. For this post I will look to his SDPB interviews to get an idea of his legislative priorities.

According to the 2014 video, the theme of McKinley’s campaign from 2014 was “jobs for South Dakota”. McKinley says for the state to grow that non-public sector jobs must grow. Here are four areas he would increase in South Dakota for job growth:

  • Growth of tropical and subtropical fruits and vegetables.
  • Organic meat products. He expands to say thousands of grasshoppers are exterminated each year.
  • Spring water is available to be sold at a profit.
  • A single phone company is his final area listed for job growth.

McKinley had a much longer interview in 2016. In this interview McKinley notes he not against oil, but he thinks western South Dakota has resources available that could compete with oil and create jobs. Three of these resources listed are water, land, and grasshoppers. McKinley wants the legislature out of the way of people trying to utilize these resources. This, McKinley says, would allow small towns to grow again.

Dist 27 State Senate seat won by Kevin Killer

SD Legislative District 27.
SD Legislative District 27.

District 27 is one legislative race without a primary election. Rep Kevin Killer (D, Dist 27) has already won the election for State Senator. District 27 is on the west side of the state, kind of centering the southern half of western South Dakota. Towns in Dist 27 include Batesland, Belvidere, Cottonwood, Interior, Kadoka, Martin, Midland, Philip, Quinn, and Wall. In includes Pine Ridge Reservation and has a number of unincorporated towns such as Allen, Kyle, Manderson-White Horse Creek, Oglala, Pine Ridge, Porcupine, Wanblee,  and Wounded Knee.

There was no primary election for any of the District 27 legislative seats. On the State Senate side the incumbent Sen Jim Bradford (D, Dist 27) is term-limited and will be seeking one of the State House seats. Rep Kevin Killer (D, Dist 27) happens to be term-limited on the State House side and submitted his petition for District 27 State Senate. No other candidates submitted a petition for State Senate; leaving Killer as the winner of the District 27 State Senate Seat. There will be a five way race on the State House side with Sen Jim Bradford (D, Dist 27), Red Dawn Foster (D), Everette McKinley (I), Steve Livermont (R), and Rep Elizabeth May (R, Dist 27). District 27 House race will be the subject of its post later this summer.

Even though Kevin Killer has already won the general election I will still do a post on him. It is still worth if for the constituents of District 27 to know a thing or two about the legislative priorities of Killer. Since Killer is an incumbent I will look at a few pieces of legislation prime sponsored by him to get an idea of his legislative priorities.

*** It should be noted this is NOT a scorecard. This post only looks at some of the legislative priorities of this candidate. These legislative priorities may or may not have any bearing on how he actually votes on other legislation.

District 27 State Senator

Kevin Killer

Rep Kevin Killer on the SD House Floor. Photo by Ken Santema 1/27/16.
Rep Kevin Killer on the SD House Floor. Photo by Ken Santema 1/27/16.

Rep Kevin Killer (D, Dist 27)
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First up to look at for Kevin Killer is this legislation he prime sponsored in 2016:

HB 1131 (SoDakLiberty Posts) – Direct certain vehicle registration fees to counties with unorganized territory.

I will defer to what I wrote about the bill after it was killed in committee:

There are only two unorganized counties in South Dakota, Oglala Lakota and Todd. The $1 highway patrol fee goes to the highway patrol, but the highway patrol has no jurisdiction on tribal lands. What is really driving this bill is the very limited funds these counties have. There really isn’t much taxable land in these counties because tribal lands have no property tax. This was looked at as a way to possibly gain more money to pay for the sheriff, whose pay had to be raised by state law after becoming an elected position.

There was a slight amendment brought forth by Rep Bordeaux.

The DOR opposed the bill because it is a fee for a specific purpose and reiterated there are times the Highway Patrol does work in the unorganized territories. DOR also tried to show this would cause other fees to be redirected in the future. DPS spoke against the bill as well, not surprising since the Highway Patrol falls under them.

This was killed  by a very close margin of 7-6. Personally I think it should have been passed. These two unorganized counties are unique, and the Sheriff does act as the highway patrol in those areas.

Maybe in 2017 Killer will prime sponsor a Senate bill and see if he can gain more traction in that chamber.

Up next is a series of bills prime sponsored by Killer:

HB 1172 (SoDakLiberty Posts) – Permit the state to revise the taxes included into tax compacts with Indian tribes.

HB 1173 (SoDakLiberty Posts) – Permit the state to revise certain taxes included in certain tax compacts with certain Indian tribes.

HB 1174 (SoDakLiberty Posts) – Permit the state to revise the taxes included in certain tax compacts with Indian tribes.

HB 1175 (SoDakLiberty Posts) – Permit the state to revise the taxes included in certain tax compacts with Indian tribes.

HB 1176 (SoDakLiberty Posts) – Permit the state to revise certain taxes included in tax compacts with Indian tribes.

There was also a bill sponsored by Rep Shawn Bordeaux (D, Dist 26A), HB 1160 (SoDakLiberty Posts), that came up in the 2016 session. All six bills were defeated by committee. Legislative tax compacts are a new topic for me. But I did find an article on Law360.com that looks into HB 1160. Here are a couple of outtakes from that article:

South Dakota state representatives Shawn Bordeaux, Kevin Killer and Karen Soli introduced House Bill 1160 on Thursday in an attempt to allow tribes to negotiate the recovery of tax revenue from four new categories, including a municipal sales tax and taxes on telecommunications companies. The democratic state legislators say those funds are currently being taken illegally without being redistributed to Native American tribes.

If passed, HB 1160 will give South Dakota tribes the opportunity to recover revenue from taxes imposed on telephone, telecommunications and rural electric companies, as well as from the municipal sales tax.

“If Native Americans are paying a tax on a reservation and they’re not getting any of the benefits from that tax, that should be coming back to the reservation,” Heinert said, noting that recent efforts to reduce the state’s property tax do nothing for Native Americans living on state reservations, which are not subject to state property tax.

Read the whole article here.

Similar bills were introduced in 2015. I would expect Killer to be working on such legislation again in 2017. The rate of poverty on reservations is staggering and this is one of the means that can be used to help the tribes fight against said poverty.

Finally it is worth looking at a House bill and a House Concurrent Resolution from 2015:

HB 1196 (SoDakLiberty Posts) – Revise certain driver licensing provisions.

HCR 1008 (SoDakLiberty Posts) – Urging Congress and the President to recognize tribal identification cards as a valid form of identification for all official purposes.

Both of these bills are related, since Tribal ID cards are not allowed as valid proof of identification to get a South Dakota drivers license. In 2011 the legislature passed another of Killer’s bills HB 1242 (SoDakLiberty Posts). That bill allowed the Tribal ID to be used for identification of a number of legal purposes in South Dakota. One thing it did not do however is allow the Tribal ID to be used as proof of identification in order to get a Drivers license. It appears compliance with the Real ID Act of 2005 is the reason the Tribal IDs cannot be used to get a driver’s license. That would appear be the reason HB 1196 did not pass in 2015; passing that law would have put South Dakota out of compliance with the Real ID Act.

The resolution did pass however. HCR 1008 is the attempt to get the federal government to allow the use of Tribal IDs as proof of identity in getting a driver’s license. Here is the RESOLVED section of the resolution:

NOW, THEREFORE, BE IT RESOLVED, by the House of Representatives of the Ninetieth Legislature of the State of South Dakota, the Senate concurring therein, that the Legislature respectfully requests Congress and the President of the United States to recognize tribal identification cards as valid identification for all official purposes, including obtaining a REAL ID compliant identification card or driver license.

With the SD congressional delegation in DC focusing on Native American issues I’m surprised this hasn’t been taken up by them. Perhaps Killer should be pressuring Thune, Rounds, and Noem to make some progress.

County Sales Tax bill didn’t make it, get ready for a possible smoke-out

Rep May speaking on the SD House Floor. Photo by Ken Santema 02/24/15.
Rep May speaking on the SD House Floor. Will we see a smoke-out attempt for a county sales tax soon? Photo by Ken Santema 02/24/15.

The first two weeks of the South Dakota 2016 legislative session is complete. In these first eight days there is only one bill that was killed by sending it to the 41st legislative day. That bill is HB 1006 (SoDakLiberty Posts), an Act to authorize counties to impose sales and use taxes. This bill comes out of the Interim Committee on County Government, and is prime sponsored by Rep Elizabeth May (R, Dist 27) and Sen Bob Ewing (R, Dist 31) on behalf of that committee.

If passed, this bill would allow counties to implement a one cent sales tax. The sales tax can be referred to the voters. A similar attempt was tried last year via HB 1227 (SoDakLiberty Posts). The 2015 bill made it out of the House Taxation committee with a vote of 9-6. It then failed on the House floor 32-37.

This year the bill was sent to House State Affairs. As I said before, I believe this bill was sent to House State Affairs to keep it from passing to the House floor. It is not uncommon to send bills to State Affairs to be killed. The House State Affairs committee voted to send HB 1006 to the 41st day by a vote of 10-2 (with 1 excused).

I could see Rep May trying to smoke-out the bill so it can be debated and voted on the House floor. She has already hinted that is possible. And as she stated during committee testimony she feels the revenue problems currently experienced by the counties has a source:

“So, you know we pass a lot of bills down here. And I could sit here and argue that some of the bills we passed has caused us to be in this situation that we are with the counties”.

Many County Commissioners and assorted other county elected officials across the state have told me the same thing as what Rep May is saying. Counties feel they are getting more and more costs shifted towards them towards by the state; yet at the same time the state will not let them raise the revenue to pay for these shifted costs.

There are other revenue streams I would rather see for the counties. But, I do think this bill should be debated and voted for on the House Floor. I’m guessing the many county commissioners around the state will be pressuring their local Representatives to stand for the smoke-out when/if Rep May tries to force it onto the House floor. It will be interesting to see if the counties are able to exert enough pressure to get this bill forced onto the floor.

Tribal Economic Development Task Force update, AG’s office talked about hemp

On Friday, November 20, the Tribal Economic Development Task Force for South Dakota will meet in Pierre. The last meeting was held on October 30th. Prior to that meeting I did a post about the Task Force, and particularly about possible hemp legislation. That came up as a topic again during the October 30th meeting.

The agenda for the November meeting can be found here (there really isn’t much to it). The press release for this meeting doesn’t really add much insight into what will be discussed at this meeting:

The Task Force is chaired by Representative Don Haggar (Sioux Falls) and will focus primarily on committee discussion. The committee will hear public testimony in the late morning.

October 30 meeting

Looking at the minutes from the October meeting there are a couple of items I would say are interesting.

Section 184 Loans

Juel Burnette of First Tribal Lending gave a presentation during the meeting to discuss homeownership lending issues in tribal communities. There are three tribes 1st Tribal Lending has worked with in to provide housing on tribal trust lands using a HUD Section 184 Home Loan.

Here is what the HUD website has to say about Section 184 loans:

The Section 184 Indian Home Loan Guarantee Program is a home mortgage specifically designed for American Indian and Alaska Native families, Alaska Villages, Tribes, or Tribally Designated Housing Entities. Section 184 loans can be used, both on and off native lands, for new construction, rehabilitation, purchase of an existing home, or refinance.

Burnette laid out some of the challenges encountered such as “appraiser issues due to lack of comparable sales, lack of capital due to few major employers on the reservations, lease terms, and credit issues.” As I’ve traveled the state I’ve heard many tribal members that choose to remain on tribal lands mention a lack of employment. The tribes are going to have to figure something out to be sure.


The South Dakota Attorney General’s office was present at the meeting. To represent the AG’s office were Charlie McGuigan, Chief Deputy Attorney General, and Kirsten Jasper, Appellate Division. Jasper is involved with tribal jurisdictional issues.The AG’s Office was also in the State-Tribal relations meeting that happened just two days before this one. It was during that meeting that the Flandreau Santee Sioux Tribe’s (FSST) recreational pot lounge was a topic. It was also at that meeting that the AG’s office would not guarantee law enforcement would leave customers of the lounge alone.

Rep Mike Verchio on the SD House floor. Photo by Ken Santema 02/24/15
Rep Mike Verchio on the SD House floor. Photo by Ken Santema 02/24/15

McGuigan noted that some months ago Rep Mike Verchio (R, Dist 30) had asked what the AG’s office policy would be if a hemp bill came forward in the legislature.  AG Marty Jackley is apparently open to the concept and would be willing to look at such legislation. But (isn’t there always a but), according to McGuigian it would be one of Jackley’s criteria that:

Any hemp bill would also require that the hemp have a very low to negligible to zero THC level.

McGuigan noted that Verchio’s hemp bill (which this committee still has not made available in the online docs!) includes a provision for federal max THC (he believes it is 3/10 of 1%). He didn’t say if Jackley found that criteria acceptable.

McGuigan then tried many talking points that seemed to be trying to convince the committee that legalizing hemp would be bad. He tried to talk about problems ND has had. McGuigan then noted many federal regulations would have to be met (as opposed to the many other areas of life where the feds over-regulate?).  Of course McGuigan mentioned the DEA going after the Menominee Indian Tribe for hemp. He also mentioned the problems a producer has been having down in Pine Ridge, where an ordinance makes hemp legal.

Rep Verchio did note that if it looks like the fed government would come down on hemp producers he would not even bring a bill forward. He does not want to see the federal government come in and destroy crops; which is what happened to the producer down in Pine Ridge. Verchio noted his interest with hemp has to do with economic development, especially for the tribes. It is not just the growing of hemp, but all the manufacturing and marketing industries that can grow around the production of hemp. He doesn’t see hemp production as a “silver bullet” fix, but it would be one of many possible economic development ideas to present to the tribes.

During committee discussion of hemp Rep Elizabeth May (R, Dist 27) did have to bud in to remind everyone that hemp plants and marijuana plants are not the same thing. I understand why she got involved with that part of the discussion. It appeared there was some misconception that since marijuana is generally harvested sooner in its plant life and hemp later in its plant life that both are basically the same. That simply isn’t true.

I truly hope Verchio isn’t scared away from bringing forth a hemp bill in the 2016 session.  May came in to calm some of those fears. But with so much fear of the federal government in the committee I’m not sure any fears were truly calmed.

Tribal Economic Development Task Force meeting on Oct 30, industrial hemp bill forthcoming

"Indian Camp" artwork in the SD State Capital building. Photo by Ken Santema 02/25/15.
“Indian Camp” artwork in the SD State Capital building. Photo by Ken Santema 02/25/15.

On Friday, October 30, the Tribal Economic Development Task Force for South Dakota will meet in Pierre. This is a task force I haven’t really been following throughout the year, but maybe should have. There have been some interesting tidbits I’ve found in the minutes from previous meetings.

Before looking at the agenda for the Oct 30 meeting it is worth looking at a few items from the previous meetings:

June 5, 2015, Tribal Economic Development Task Force meeting

The minutes from this meeting show it was all about discovering how bad things are on the reservations. One part of the minutes does highlight one of the bigger problems I see with economic development on tribal lands:

Mr. Del Ray German said a lack of capital is a struggle. Senator Bradford pointed out that issues with trust land is a challenge, because business owners can lease a building for five years, put $50,000 into the building, and then after the lease is expired, the tribe can take the building from the business owner. It is a large risk to take.

Property rights and rule of law to enforce property rights are required for capitalism to function. This is a problem much greater than just a corporation going in and not being able to own lands. Many small businesses are financed through a mortgage on the primary resident of the business owner. If tribal members don’t own the house they live in, there is no opportunity to use a mortgage in order to take the risk and start a business. I still think tribes should look at somehow allowing financial services on the reservation that would allow for property rights. In the case of foreclosure it would still be tribal trust land. It would be interesting to see something like that tried in South Dakota.

August 10, 2015, Tribal Economic Development Task Force meeting

Looking at the minutes from the second meeting I see further testimony that property rights (or lack thereof) is a problem on tribal lands in a trust. Here is a portion of the minutes from the testimony by Mr. Michael LaPointe, Rosebud Sioux Tribe:

A much larger issue is the tribes have no ability to build wealth, and no taxing authority. Mr. LaPointe thinks there are two implications when you don’t own land, you cannot build wealth, and you can’t build tax revenue. This is a problem for the tribes. They cannot tax and hire a decent police force. Representative May asks if Mr. LaPointe believes the tribes should be in a partnership with the state government, instead of the federal government. Mr. LaPointe agrees.

Right now the tribes need to build wealth in order to be self-sufficient. A lack of property rights makes capitalism a hard tool to use for building wealth.

I also found the question fromRep Elizabeth May (R, Dist 27) about partnering with the state instead of the federal government was worth asking. State government is much closer and has a symbiotic relationship with the tribes. Logistically and legally that may not be an option. But it would be interesting to look into.

September 28, 2015, Tribal Economic Development Task Force meeting

This meeting also peaked by interest because of the possibility of industrialized hep mentioned in the minutes. Here is the full section about industrialized hemp from the minutes:

Representative Verchio distributed copies of a draft bill: An Act to authorize the production and sale of industrial hemp. (Document #1) Representative Verchio said that he sees this as an opportunity to produce jobs in both farming and manufacturing. Hemp does not cause a high when smoked, as does the marijuana plant. Hemp is used in making rope, animal food, cosmetics, and many more products.

Representative May said that two years ago she had proposed a resolution regarding legalizing the production of hemp in South Dakota. Representative May said that law enforcement had argued that they cannot tell the difference between the marijuana plant and the hemp plant when they are growing in the fields.

Representative May continued saying that this is a huge opportunity for South Dakota farmers and that having hemp as a rotational crop would be beneficial. She said that this specific bill has too many regulations that may hamper those interested in growing this crop.

Representative Verchio said that he included the regulations to help reduce the resistance from law enforcement. He said that once people see how this crop is grown and used; those regulations could be reduced.

Representative Verchio asked LRC staff to send copies of this proposed legislation to all members of the Tribal Economic Development Task Force so that it may be discussed further at the next task force meeting.

Unfortunately the draft bill offered by Rep Mike Verchio (R, Dist 30) was not attached to the minutes. I’ve blogged about industrial hemp a few times over the last couple of years and know many farmers in NE South Dakota that would love the ability to choose from hemp. For the tribes it could be a huge economic development tool.

The resolution mentioned by Rep May was 2014’s HCR 1017.  May was the House sponsor, where passed 61-6. On the Senate side Sen Jason Frerichs (D, Dist 1) was the sponsor and it failed 13-21. Maybe the 2016 session can see a bill legalizing hemp passed, going well beyond a resolution. The federal farm bill including hemp research is a possible entry point to use for such legislation.

October 30, 2015, Tribal Economic Development Task Force meeting

The agenda for this meeting is quite short. I really hope to hear more in this meeting about possibilities of industrial hemp as an economic development tool for the tribes. Here is the full agenda:

  • 10:00 a.m. Call to Order; Approval of Minutes – September 28, 2015 meeting Determination of Quorum Chair’s Remarks
  • 10:15 a.m. Introductions
  • 10:30 a.m. Tribal Presentations
  • 11:30 a.m. Agency Presentations
  • 12:30 p.m. Committee Discussion
  • 1:30 p.m. Public Testimony
  • 2:00 p.m. Adjourn

Recreational Pot Lounge was a topic in the State-Tribal Relations interim committee meeting

Earlier this week I did a post bringing attention to the State-Tribal Relations interim committee meeting that was held yesterday. I had the opportunity to actually listen to the committee meeting and was pleased to discover that the recreation pot lounge being implemented by the Flandreau Santee Sioux Tribe (FSST) was a major topic of discussion. This is a topic I’ve meant to blog about for some time, and this gave me the perfect opportunity. This post just highlights some things said during the meeting.

Sen Jim Bradford speaking on the SD Senate floor. Photo by Ken Santema 03/10/15.
Sen Jim Bradford speaking on the SD Senate floor. Photo by Ken Santema 03/10/15.

Sen Jim Bradford (D, Dist 27) was the first I heard speak about the lounge in Flandreau. He had spoken with Rep Elizabeth May (R, Dist 27) about the lounge. Bradford passed on a report of what the tribe is trying to do. Most notable is that the tribe is not trying to put pot on the street. Rather Bradford noted “it is a business and it is being run like a business”.  I really think more legislators, especially those involved with tribal relations, should have made the effort to tour the FSST lounge.

Rep Shawn Bordeaux (D, Dist 26A) mentioned that South Dakota has an “ingestion” law. I believe the law referred to by Bordeaux is SDCL 22-42-15:

22-42-15.   Ingesting substance, except alcoholic beverages, for the purpose of becoming intoxicated as misdemeanor–Venue for violation. Any person who intentionally ingests, inhales, or otherwise takes into the body any substance, except alcoholic beverages as defined in § 35-1-1, for purposes of becoming intoxicated, unless such substance is prescribed by a practitioner of the medical arts lawfully practicing within the scope of the practitioner’s practice, is guilty of a Class 1 misdemeanor. The venue for a violation of this section exists in either the jurisdiction in which the substance was ingested, inhaled, or otherwise taken into the body or the jurisdiction in which the substance was detected in the body of the accused.

Bordeaux noted that if someone goes into the lounge in Flandreau and leaves the reservation that they would be breaking the ingestion law. He said if other states have had success with legalizing medical marijuana, which they have, that FSST should also be successful. He went on to say “the tribes are as broke as our counties”. This could be an economic development program for the tribes. Finally he mentioned the mafia didn’t come to the state, which was the argument used to try keeping casinos off the reservations.

The Office of the Attorney Generals was on hand to speak. Charlie McGuigan, Chief Deputy Attorney General, and Kirsten Jasper, Appellate Division. Jasper is involved with tribal jurisdictional issues.

Jasper said that marijuana is illegal both at the state and federal level. She said the state would have jurisdiction over any non-Indian whether they are on the reservation or not; further the state would have jurisdiction over any tribal member once they leave the reservation. Jasper also noted that anyone that has THC in their blood or urine is in violation of the ingestion law. There is no legal level of THC for ingestion, any level is considered illegal. Sen Bradford asked how many states have an ingestion law. Jasper said she thought SD was the only one. In my research I haven’t been able to find any other states with a similar law.

Bradford then (in a roundabout way) asked if the AG’s office would be pulling people over leaving the reservation. Jasper said normal probable cause still would have to be followed. But she did not rule out law enforcement being at the border waiting to catch people.

Rep Shawn Bordeaux speaking on the SD House floor. Photo by Ken Santema 02/25/15.
Rep Shawn Bordeaux speaking on the SD House floor. Photo by Ken Santema 02/25/15.

Rep Bordeaux said the FSST is starting this undertaking because the Feds came out with a document saying such facilities operated by tribes would not be prosecuted under federal law. The document apparently said the tribal land will be treated like states that have already legalized medical marijuana. But he did note that a tribe near the Great Lakes was pursued for growing industrial hemp. I believe Bordeaux was referring to the DEA going after the Menominee Indian Tribe.

There was then some more discussion about jurisdiction. The most interesting part was McGuigan stating:

Because the use of drugs is a victim-less crime, the state would have jurisdiction over that.

Notice how the AG’s office called this a victim-less crime. Such an admission from the AG’s office should help make the case that the current law is not in place to protect anyone.

There were also a couple of FSST members that came to give testimony and answer questions for the committee.  The two speaking were Ryan Kills-a-Hundred and Kenny Weston, both listed as Executive Committee members on the FSST website.  Both were in attendance to answer any questions the committee had.

Kills-a-Hundred confirmed the tribe received a memorandum from the federal government that the program would be OK as long as certain requirements were maintained. He noted this was purely looked at as an economic development program and was not done lightly. The recreational pot lounge will not be a way for marijuana to get out into the community, like can happen in Colorado.

Kills-a-Hundred also mentioned that the Iowa casino hurt the FSST pretty hard financially. He said the tribe likes to be self-sufficient and doesn’t like to beg for money. The recreational pot lounge is a means to help the tribe remain self-sufficient.

Rep Bordeaux mentioned he wanted to see fairness from the state in this situation. He doesn’t see the state going after cars from Colorado, but has fears people leaving Flandreau will be targeted. Bordeaux asked how the tribe will deal with that, and what the state can do to help.

The reply from Weston was that sometimes the former PD would already target the customers of the casino (FSST recently went to its own PD). That point wasn’t expanded upon as much I wished it would be. But there is a lot of whispering (rumors) that patrons of the lounge will be targeted to show the state is tough on drugs.

Weston mentioned the tribe will be tracking the containers that go to customers. Kills-a-Hundred also added this is not really a resort, but more of a lounge (hence the reason I’ve been using the word lounge throughout this post). There will be security on site and cameras going at all times. Other security measures have also been taken to protect the customers and make sure no other illegal activity occurs. He believes they will be more strict with policies and measures taken than any other bar in the state.

Kills-a-Hundred made it quite clear this lounge does not legalize marijuana on all of the tribal lands. This new lounge will not permit tribe member to grow or use marijuana at their homes. Any activity outside of the lounge will be treated as is always has been.

I’ll end the post here. The whole committee meeting is worth listening to. But I think what was mentioned above is a good starting point to talk about the new recreational pot lounge in Flandreau. I’m hoping this fall some legislators will try another attempt to tour the facility, if that happens I would like to tour with them.

County Government Interim Committee meeting on Oct 28, previous meetings recap

1892 map of South Dakota Counties provided by LRC Audit presentation.
1892 map of South Dakota Counties provided by LRC Audit presentation.

On October 28 the County Government Interim Committee will meet in Pierre. This committee has had two two-day meetings previously. I spoke with committee member  Rep Dennis Feickert (D, Dist 1) just before the first meeting. At that time I felt it unlikely anything meaningful will come out of the meeting; mostly because focus in the 2016 session will be on education funding. I still feel that way, and find it ironic because county funding and education funding are almost symbiotic at this point.

The meetings documents from these meetings can read at the links below:

8/19/15 – 8/20/15 docs

9/16/15 – 9/17/15 docs

Before looking at the agenda meeting for Oct 28 it might be worth looking at a few highlights from the previous meetings. There was a LOT going on at these meetings, so this only calls out a very small fraction of the meetings.

8/19/15 – 8/20/15 Meeting 

This first meeting was meant to be information gathering. There is a good presentation from Legislative Audit explaining county revenues and expenditures. But I think a slide towards the end of the presentation summed up the biggest issue this committee will run into when trying to pass legislation:

Most counties have budget issues; however, each county’s budget issues are unique and influenced by many factors.

A one-size-fits-all solution will not work, and will likely not get enough votes to pass.

Over the last few years I have heard many county officials around the state complain about the State pushing more costs to the counties. That was reflected multiple times in this meeting:

From Ms. Cindy Heiberger, Minnehaha County Commissioner:

Ms. Heiberger said changes in the state statutes affect law enforcement at the local level and when law enforcement is mandated to take care of things, the county needs additional revenue. The county is looking at building a new jail and the county will probably fund it with property taxes. Ms. Muller said next year they may be looking at renting jail beds. Public safety, including law enforcement, is 53% of the Minnehaha County budget.

From Ms. Janet Sayler, Pennington County Treasurer

Ms. Sayler listed the duties according to statute of the county treasurer’s office (Document #8). She said the legislature is always quick to add more responsibilities, but it never allows for the county to get paid for all of the extra work they are forced to do for everyone else. She said when laws are changed; the county is forced to update its computer systems to implement the law, usually at a significant expense to the county.

Ms. Cathy Powell, Clay County Treasurer

Ms. Powell thinks HB 1228 will adversely affect the treasurer’s office. She asked how people can do business if they can’t license their vehicles. She said county treasurers are tax collectors; if a resident doesn’t pay their taxes; the county takes property away; a time-consuming process; in Clay County they deal with 10 to 12 tax deeds per year.

HB 1228 (SoDakLiberty Posts) is also mentioned by Ms. Janet Sayler, Pennington County Treasurer, earlier in the meeting. It does not appear to be popular with the counties. HB 1228 is the new debt collection agency created by the SD Legislature in 2015. It has the Orwellian name Obligation Recovery Center, and I still can’t find anyone outside of the Republicans in the legislature that think it was a good idea.

There are many more examples from the meeting. But I think the above portions show that counties believe the state is pushing more responsibilities on them. Personally I do feel most government should be closer to the people. Yet in this case it appears mandates from the state are being substituted for local control. In particular I noticed rising costs of county jails, which is a direct result of legislative measures taken in the last few years.

Along those lines. This from Ms. Staci Ackerman, Executive Director of the SD Sheriffs Association:

Changes in statutes have resulted in more arrests and increased court cases; there are more sex crime investigations, new crimes on the internet. More and more fingerprinting is required by legislation, this is the responsibility of sheriffs. Court and parole services increasingly requests sheriffs to check on clients or to provide urinalysis. When presentence investigations are ordered, the client remains in jail until completed, a cost to the county.

A number of Sheriff’s testified to give specific examples. One example came from Sheriff Ray Clements, Jackson County:

Sheriff Clements said he didn’t realize the impact of SB 70 until he saw the increase in the jail budget and the state reimbursements were not covering it. He said he has currently $76,000 in jail bills, with an annual budget of $56,000. He says the number of calls for services have gone up. Sheriff Clements said now, people are being sentenced to the penitentiary, suspended, and given 180 days county jail time. This is at county expense.

The bill referred to was SB 70, the  Public Safety Improvement Act (PSIA) passed for Governor Daugaard by the legislature in 2013. Daugaard and Attorney General Marty Jackley have been quite proud of this legislation. SB 70 was mentioned by a lot of the law enforcement representatives in attendance. Personally I think the results from the program are mixed at best; and have caused more problems than it was meant to solve. Perhaps looking at reducing victim-less crimes will actually create fewer criminals, and thus put less stress on the counties…

9/16/15 – 9/17/15 Meeting

In the second meeting there was a presentation answering questions from the first meeting.  This tidbit from Mr. Russ Olson, Local Government Audit Manager, Legislative Audit, is interesting:

The charts found in the document show that roughly 89% of the counties’ all government funds are for statutory functions

That seems to back the counties feeling they are being piled on by the state.

In this meeting there were a lot of mentions from counties to get additional revenue from a new sales tax or increasing liquor taxes.

The LRC issued a series of draft legislation for the upcoming session. But more interesting was the draft legislation submitted by Sen Mike Vehle (R, Dist 20). Vehle was the architect of the massive tax and fee increases in 2015 via SB 1 (SoDakLiberty Posts). It appears this time Vehle is offering legislation to “impose a county sales and use tax that would apply to sales that do not occur within a municipality thus not being subject to city sales and use tax.”

The Attorney General, Marty Jackley, had a presentation. He acknowledges costs that goes to the county. An example:

Mr. Jackley went through the growing number of criminal cases that are heard each year. The bulk of these cases are prosecuted by the county prosecutors, with the Attorney General’s (AG) office stepping in for various reasons. With very few exceptions, the costs for these cases are paid by the counties, even if the AG’s office prosecutes the case. One exception is if the crime takes place in the state prison, then the state is responsible for the cost because of where the crime occurred.

Rep Elizabeth May (R, Dist 27)brought up 2013’s SB 70 as a question for Jackley:

Representative May asked about the increased costs to the counties due to the passage of SB70. Mr. Jackley explained that the county is responsible for any costs attributed to anyone detained in the jail and the state is responsible for anyone held in the state penitentiary. SB70 established more probation presumptions and probation is a county expense, and that is the main reason SB70 has increased county expenses. When an offender is given probation, all costs, including drug and alcohol treatment, is the responsibility of the county

During committee discussion it was said by a few legislators that looking at reallocating current taxes would be better than a new tax. Rep May brought up a trend I think the committee should focus on:

Representative May pointed out that the common denominator is that the state makes the laws and the counties have to figure out how to pay for all the mandates. Perhaps the committee should take a look at what the statutes require of the counties and see if the state could fund some of those programs

10/28/15 Meeting

The meeting on Oct 28 actually has a pretty short agenda:

  • 9:00 a.m. Call to Order, Determination of Quorum, Approval of Minutes – September 16-17 meeting, Chair’s Remarks
  • 9:15 a.m. Draft Legislation (Review and Discussion)
  • 10:15 a.m. Public Testimony
  • 11:30 a.m. Draft Legislation (Action)
  • 3:00 p.m. Adjourn

It appears that for better or worse the outcome of this interim committee will be known on October 28.