South Dakota State-Tribal Relations Committee Chair Rep. Shawn Bordeaux (D) started a list of bills for Native constituents to watch. Photo courtesy Shawn Bordeaux

Native Sun News Today: Native lawmakers weigh pipeline shield bills

PIERRE – The looming construction of the tribally opposed Keystone XL Pipeline through unceded 1868 Ft. Laramie Treaty territory drew plenty of attention from Native and other state lawmakers in the first two weeks of the 2020 South Dakota Legislature.

The hazardous liquid pipeline, if permitted, would be built by the Canadian TC Energy Corp. to carry tar, or bitumen, diluted with other petroleum products (dilbit) from the oil sands of Canada’s Athabascan boreal forest across Montana, South Dakota and Nebraska, in order to ship through already existing infrastructure to refining and export facilities on the Texas Gulf Coast.

HB 1093, which native lawmakers submitted to the Joint Appropriations Committee on January 28, would establish an annual fee for pipeline operations, which would create a liability fund to cover extraordinary expenses caused by an oil pipeline discharge. The proposal follows on more than a dozen dilbit spills from the Keystone I Pipeline, operated by TC Energy Corp., formerly TransCanada Corp.

Todd and Mellette County District 26A Rep. Shawn Bordeaux introduced the bill on behalf of the State-Tribal Relations Committee, which he chairs. He also is the director of the Institute of Tribal Lands at Sinte Gleska University on the Rosebud Sioux Indian Reservation.

Co-sponsors are committee members: Minnehaha County District 10 Speaker of the House Steven G. Haugaard, Pine Ridge District 27 Rep. Peri Pourier, Mission District 26 Senate Minority Leader Troy Heinert, Pine Ridge District 27 Sen. Red Dawn Foster, Rapid City District 33 Sen. Phil Jensen, Hot Springs District 30 Sen. Lance Russell, and District 8 Senate Majority Whip Jordan R. Youngberg of Chester.

Riot Booster Part Two & Industrial Hemp, Part...? It's the DRA Weekly Legislative Update! #SDLeg #LetThemEatPlastic

Posted by Dakota Rural Action on Friday, January 31, 2020

The bill stipulates that any pipeline that begins operations on or after Jan. 1, 2021 must deposit a fee of up to $100 million in a so-called SPOIL Fund to be managed by the South Dakota Department of Environment and Natural Resources, or DENR.

TC Energy says it will start construction in August 2020, however administrative red tape and tribal court cases keep delaying its plans.

The language of the bill defines the SPOIL Fund as a “Releases from Pipeline Oil Liability” fund. It would be kept at the state Treasury Department.

The director of the Division of Financial and Technical Assistance at DENR would decide whether to grant claims for damages from pipeline leaks, according to the proposal.

It says claims may be filed by the state, federally recognized Indian tribes, local governments, private cooperatives, or business entities “to respond to … oil product release from a pipeline.”

The fee to any oil pipeline operator would be calculated at a rate of $2.50 per mile of pipeline, multiplied by a fee of 10 cents per barrel on the reported daily maximum capacity for one day. If no claims are granted during a calendar year, the following year’s fee would be waived.

During the 2019 Legislature, Gov. Kristi Noem obtained approval of a Riot Boosting Act that would have tithed not only oil pipeline builders but also resisters for expenses the state might incur in conflict over the private infrastructure projects.

She was roundly criticized by tribal leaders for her failure to consult with them on the legislation. Then a federal District Court preliminary decision in Dakota Rural Action v. Noem enjoined the law’s enforcement for lack of constitutionality, resulting in a $100,000 defense tab billed to taxpayers by state officials.

In the current legislative session, Noem’s office sent members of the House of Representatives new language to modify the Riot Boosting Act. It specifically states, “A fine paid by a defendant for any violation of (the Riot Boosting Act) may not be applied toward payment of liability.”

A crowd outside the federal courthouse in Rapid City rallied peacefully in June 2019 at his hearing to determine if South Dakota Gov. Kristi Noem’s 2019 legislation violates the First Amendment guarantees of oil pipeline resisters. Photo courtesy Andy Johnson

However, as in its previous its manifestation, this bill, HB1117, fails to define riot boosting, leading Dakota Rural action to comment in its “Weekly Legislative Update”:

“While on its face, the new bill appears to thread the constitutional needle, serious issues remain regarding enforcement … and the simple question of what does riot boosting actually mean? Could a person be charged with a riot-related crime while sitting on their couch in their pajamas, urging people through social media to stop the pipeline?

“Anything approaching that scenario is again likely to be held unconstitutional, and that leads to the question, how much do South Dakota taxpayers want to spend defending their First Amendment rights against their own government?”

Noem’s latest revision is called “An Act to repeal and revise certain provisions regarding riot, to establish the crime of incitement to riot, and to revise provisions regarding civil liability for riot and riot boosting.”

NATIVE SUN NEWS TODAY

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Contact Talli Nauman at talli.nauman@)gmail.com

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