Ahead of KXL Approval, Lawmakers Compromise To Pass Governor's Protest Legislation

Mar 21, 2017

Credit Victoria Wicks

Pending approval, the Keystone XL pipeline will pass across the state of South Dakota, through Buffalo, Murdo and Winner. The pipeline also crosses the river near the Cheyenne River Reservation.

A protest against the Dakota Access Pipeline near Standing Rock in North Dakota went on for months.
That’s prompted the state to prepare for potential demonstrations. It starts with one piece of legislation.

Senate Bill 176 was an act to accommodate legislation relating to the protection of the public safety. Some lawmakers saw the bill as a chance to address the state’s meth epidemic.

Then, two weeks later, lawmakers amended it - severely.

They approved what’s known as a hoghouse amendment. It's a significant change to a bill that overhauls the legislation... changing the original intent. Lawmakers use this relatively common tactic so they have a place to draft new legislation in case anything comes up. Anything like a newly elected president directing the state department to reconsider a border crossing for the Keystone XL pipeline.

“I didn’t realize ‘Oh, if that occurs, now suddenly the TransCanada XL project might get resurrected and then we might see in South Dakota some of the same things we’ve seen in North Dakota,” says South Dakota Governor Dennis Daugaard.

In crafting the hoghouse for Senate Bill 176, the governor’s office reached out to North Dakota and Meade County, home of the Sturgis Motorcycle Rally, to better understand how to handle large influxes of people.

Hundreds of people camped on US Army Corps of Engineers land to demonstrate against the Dakota Access Pipeline. It lasted for almost a year, and it cost the state of North Dakota almost $40 million dollars.

The first round of changes to the bill granted the governor sweeping powers to respond to emergency scenarios. The measure increased penalties for criminal trespass in a declared public safety zone. That included a minimum 10-day jail sentence for first time offenders. A second offense within two years would have resulted in a felony.

State Representative Shawn Bordeaux say the bill frightened his constituents and other tribal members.

“They’re all a little freaked out about state government," Bordeaux says. "We all have concerns about stuff being rammed down our throats.”

The bill also had an emergency clause... meaning the bill could become law the moment the governor signed it.

A legislative committee passed the bill but not enough lawmakers voted for it on the South Dakota Senate floor to garner a necessary two-thirds majority. So lawmakers stripped the emergency clause and sent the bill over to the South Dakota House.

There the State Affairs panel amended the bill again - what it remains today. It imposes new penalties for standing on highways or stopping traffic or trespassing in posted emergency areas. The law also allows the commissioner of School and Public Lands to block groups larger than 20 people from gathering on land the office supervises.

SB 176 fails to pass the South Dakota House of Representatives on the morning of the last legislative session day.
Credit Lee Strubinger / SDPB

State Representative Larry Rhoden is a rancher in Union Center. Keystone XL's path crosses his district. Rhoden says lawmakers want to restrict outsiders with ulterior motives.

“This isn’t about disrupting peaceful protestors that come and exercise their constitutional right to free speech. It’s about protecting them also, guaranteeing their rights by keeping the troublemakers—setting up a process where we can deal with the troublemakers and keep them out of the process,” Rhoden says.

Some conservative lawmakers who opposed the bill the morning of the last legislative session day changed their votes in the afternoon.

State Representative Tim Goodwin switched his support.

“Our group, our conservative group, got to go in a visit with the governor and talk to him about some of our concerns, concealed carry, capitol carry, some of those things. The governor was very gracious to us, gave us a half hour," Goodwin says. "So, we agreed to go with him, give him what he wanted for the bill, 176, in regards to the pipelines going through South Dakota.”

SB 176 passes that afternoon
Credit Lee Strubinger / SDPB

Even some House Democrats changed their votes. State Representative Dan Ahlers says he supports Senate Bill 176 after a meeting with some public safety officials.

“Collected a little more info and data and decided I wanted to hedge on the side of safety and then continue to work. Hopefully with this letter from the governor to the tribes to get them together and meet that maybe we can mend a few fences there too,” Ahlers says.

Ahlers won't comment on what intel he received.

But other conservatives continue to oppose the move. State Representative Dan Kaiser says the legislation is redundant.

“All of these laws are already on the books. Trespassing. Already a crime. If law enforcement moves in to grab a trespasser and somebody jumps in front of them, to physically obstruct them, well, that’s obstruction, so that’s a class 1 misdemeanor, that’s a crime. Blocking a road. Already a crime. All of these things are already covered," Kaiser says. "I don’t know what kind of statement we are trying to make with this, but in my estimation it’s a very poor one.”

Kaiser voted against the bill both times on the last day of session.

Governor Daugaard signed the bill last week. He says he set sent letters to all nine tribes in the state.

Several court cases have the Keystone XL pipeline project pending.