OTHER VOICES: S.D. pipeline bills were handled poorly

March 23, 2019

The Noem administration’s poor management of a bill package meant to discourage unruly Keystone XL oil pipeline protests and pay for needed construction security could haunt South Dakota.

Senate Bill 189 established civil penalties for “riot boosting,” or contributing money to or encouraging violent pipeline protesters.

Senate Bill 190 created a funding source for extraordinary costs attributed to pipeline protests, sourced from local, state and federal dollars, as well as contributions from the pipeline company.

Nobody should take issue with the bills’ objectives. South Dakota rightly seeks to discourage violence and avoid a repeat of the Dakota Access oil pipeline standoff, which left North Dakotans facing $38 million in law enforcement costs.

Will the package work? The courts ultimately will have to rule on whether an incident equates to riot boosting or a disturbance constitutes a riot — which probably looks different depending on which side of the water cannons you find yourself.

But Noem dropped these surprises on an unprepared public in the waning days of the legislative session following extended private consultation with lawmakers, law enforcement and pipeline developer TransCanada. Tribal leaders were not consulted.

The Legislature approved both bills using an emergency process that allowed for little public debate. Tribes were understandably insulted, and Noem’s righteous defense of the process didn’t help.

“I’m well aware that some of our (tribal) leaders are not in favor of the pipeline, although we should all be in favor of it being peaceful,” Noem said.

Peace seldom results when one group feels that its voice on a critical matter was intentionally disregarded.

Matt McCauley, who serves as legal counsel to Noem’s office, said tribes weren’t consulted because the proposed pipeline route does not intersect with tribal land.

Boyd Gourneau, chairman of the Lower Brule, offered the best rejoinder: “We realize that our state’s nine tribes do not own all of the land we have originally inhabited within our great state,” he wrote. “However as the original stewards of this very land, it is natural that we expect some regard and consultation during the preparation of legislation that would surely affect the well-being of our environment.”

Keystone XL will traverse 316 miles of South Dakota. Tribal members worry oil spills near river crossings will affect their drinking water. Of course, they have a stake.

A skeptic might think the Capitol tribal flag ceremony which Noem proposed a few days before springing her Keystone XL package on the Legislature was mostly a marketing ploy to lessen blowback. If so, it failed.

Last week, chairmen of the Oglala, Crow Creek, Lower Brule, Yankton and Cheyenne River Sioux tribes angrily requested their tribes not be included in the ceremony where Noem’s administration planned to erect the flags of South Dakota’s nine federally recognized tribes “as a sign of unity.”

“The purpose of these bills is to punish anyone who opposes the agenda of outside oil conglomerates like TransCanada,” said Oglala Sioux President Julian Bear Runner.

Should any Keystone XL riots result, Noem should expect to see the phrase “tribes were not consulted” in resulting national and international news accounts.

Noem said the bills were introduced in the final days because her staff wanted to spend ample time on the package. “What we wanted to make sure of was that we brought legislation that was ready, that was right, that did what we wanted it to do, that was well thought-out and was responsible,” she said.

It boils down to a need for expediency.

In her State of the State address, Noem said she’d work toward building the most transparent administration South Dakota has ever seen.

The thing about transparency: It has nothing in common with expediency.

Noem’s gubernatorial campaign website yearned for “a different kind of relationship with South Dakota’s nine tribes, one that truly embraces the meaning of Dakota, or ally.”

Governor, this is not how you do it.

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