Two agriculture organizations, two different stances on South Dakota’s Referred Law 21

OCTOBER 31, 2024:

There are seven ballot measures on South Dakota’s Nov. 5, 2024, general election ballot, one of which is Referred Law 21.

Two of the state’s largest agriculture organizations have taken opposing stances on the issue, with the South Dakota Corn Growers Association supporting the proposed law and the South Dakota Farmers Union opposing it.

Corn Growers Executive Director Danita Murray explains why they urge support for RL21.

Farmers Union President Doug Sombke says his group has been opposed from the start.

One thing Murray and Sombke agree on is that RL21 does not have any impact what-so-ever on South Dakota’s eminent domain laws.

Sombke….

Murray….

Another area of agreement between Murray and Sombke is that the subject is confusing for people on both sides.

Murray….

Sombke….

The Attorney General’s Office provides a neutral explanation for each of the seven measures on South Dakota’s general election ballot. The “2024 Ballot Questions pamphlet” also includes information supplied by supporters and opponents. The AG’s explanations are printed on the sample ballots as well as being printed on the actual ballots people use to vote. The information from the opponents and proponents is not printed on the actual ballots.

The Secretary of State’s Office encourages voters to use the Voter Information Portal at sdsos.gov to see their sample ballot. Voters are allowed to print the sample ballot at home, fill it out and bring it with them when they go vote.

This information is also available via the DRG Media Group Beyond the Mic podcast titled Agriculture In-depth– Pros and cons of South Dakota’s Referred Law 21.

JULY 11, 2024:

UNDATED (AP)- After years spent trying to gain regulatory approval for a proposed carbon dioxide pipeline intended to snake through the Midwest, the effort could be complicated even further if South Dakota voters reject a law passed by the Legislature that pipeline opponents say is an attempt to squelch local control and speed approval of the pipeline.

State officials this week validated the referendum for the Nov. 5, 2024, general election, enabling voters to decide whether to reject a package of regulations approved by the Legislature earlier this year. Pipeline opponents argue the regulations would strip county officials of the ability to pass stringent rules that can all but ban such pipelines, while legislative leaders say they intended to add requirements to help landowners even as they limited the role of county governments.

The law takes away authority from local governments and consolidates it with the three-member state Public Utilities Commission, said Jim Eschenbaum, chairman of the South Dakota Property Rights and Local Control Alliance, formed by landowners and local officials to oppose the project.

“I honestly believe a majority of South Dakotans think this pipeline is foolishness. I’m one of them,” he said. “I think it’s just of bunch of hooey and a big taxpayer boondoggle.”

Iowa-based Summit Carbon Solutions has proposed the $5.5 billion, 2,500-mile (4023.4 kilometers) pipeline network that would carry planet-warming emissions from more than 50 ethanol plants in Iowa, Minnesota, Nebraska, North Dakota and South Dakota to be sent deep underground in North Dakota.

Summit has faced opposition and setbacks throughout the Midwest. But North Dakota regulators are reconsidering an earlier denial of a permit, and last month the Iowa Utilities Commission gave conditional approval to Summit. Last year, South Dakota regulators denied Summit’s application for a permit, but company officials have said they will file another application this summer.

The pipeline is seen as crucial for a potential future aviation fuel market for the Midwest-based ethanol industry, which buys roughly one-third of the nation’s corn crop. In opposing the pipeline, some landowners question the forced use of their property and raise the danger of ruptures that could release hazardous CO2 gas. They also are critical of lucrative federal tax credits for carbon capture projects.

House Majority Leader Will Mortenson said he believes the pipeline will ultimately be built whether the regulations are in place or not, so he helped introduce the new law because it adds new requirements, such as minimum depth requirements for the pipeline, liability on pipeline operators for damages and disclosures of pipelines’ plume models. The law also allows counties to impose a surcharge of $1 per linear foot on CO2 pipelines whose companies claim federal tax credits.

“If this gets shot down, that pipeline’s going to get built with no landowner protections and no plume study released and with(out) a whole bunch of the other benefits that we fought real hard to get included,” Mortenson said.

Mortenson, an attorney, said he sees the benefit for the ethanol industry, but also understands farmers’ and ranchers’ concerns and sees the need for the regulations in the law.

While supporters have called the law a “landowners bill of rights,” Republican state Rep. Karla Lems opposed the legislation, calling it “the pipeline bill of rights.” She said the law sets the stage for other companies like Summit and future solar and wind projects to roll through, unhindered by local concerns.

Lems’ family has land that was in the paths of Summit’s proposed pipeline and another pipeline project that was canceled last year.

Asked for comment, Summit spokeswoman Sabrina Ahmed Zenor called the law “pro farmer, pro ethanol and pro business. It protects landowners and provides property tax relief.”

JULY 10, 2024:

A group wanting to refer Senate Bill 201 to South Dakota’s 2024 General Election ballot in November (Nov. 5, 2024) has turned in enough signatures to accomplish their mission.

Senate Bill 201 is one of three “linear project” related bills that have become known as the “Landowner Bill of Rights.”

Secretary of State Monae Johnson says the title for the ballot question is Referred Law 21. It’s described as, “An Act to provide new statutory requirements for regulating linear transmission facilities, to allow counties to impose a surcharge on certain pipeline companies, and to establish a landowner bill of rights.”

The South Dakota Attorney General’s Office released the final explanation for Referred Law 21 Wednesday (July 10, 2024). State law requires the Attorney General to draft a title and explanation for each initiated measure, initiated constitutional amendment, constitutional amendment proposed by the Legislature, or referred measure that may appear on an election ballot. That explanation is meant to be an “objective, clear and simple summary” intended to “educate the voters of the purpose and effect of the proposed” measure, as well as identify the “legal consequences” of each measure.

A referendum petition currently requires 17,508 valid signatures in order to appear on the ballot. As outlined in SDCL § 2-1-16, the Secretary of State’s Office conducted a random sample of the petition signatures and found 92.2% to be valid. Based on the results of the random sample, 31,432 signatures were deemed valid.

Any citizen may challenge the Secretary of State’s validation of the referendum petition under SDCL § 2-1-17.1. Citizens challenging the validation must submit an original, signed affidavit listing out each specific deficiency to the Secretary of State’s Office no more than 30 days after validation. Affidavits submitted electronically will not be accepted. For this referendum petition, the deadline to file a challenge is Aug. 9, 2024, at 5pm CT.

Find more information on specific ballot questions on the Secretary of State’s website.

Additionally…..

The South Dakota Ag Alliance is encouraging state voters to say “yes” in November (Nov. 5, 2024) to uphold Referred Law 21, commonly known as Senate Bill 201.

The group calls the proposed law “pro-landowner, pro-agriculture, and pro-business.” They say it provides benefits for landowners such as property tax relief and annual payments.

Ag Alliance founding member Jason Glodt (gloat) says supporting Referred Law 21 will ensure landowners receive the rights and protections they deserve. He says it’s not just about pipelines, it’s about “securing the future of South Dakota agriculture and ensuring new market opportunities that will benefit all South Dakotans.”

Ag Alliance founding member Rob Skjonsberg says he can relate to the opponent’s concerns, but Referred Law 21 doesn’t do what they say it will do. He says Referred Law 21 won’t stop pipelines from being built so the Landowner Bill of Rights is needed to hold pipelines accountable and ensure that landowners and communities receive the advantages and protections they need.

The SD Ag Alliance says Referred Law 21 sets requirements for:

1. Compensation for Landowners: Requires carbon capture pipelines to pay landowners reoccurring annual payments of .50 cents per linear of pipeline through their property.
2. Compensation for Counties: Allows counties to collect an additional .50 cents per linear foot of pipeline that runs through their county for property tax relief.
3. Indemnity for Landowners: Requires pipeline companies to indemnify landowners for liability.
4. Minimum Burial Depth: Requires pipeline to be buried at least 4 ft deep, exceeding federal regulations of 3 ft.
5. Disclosure of Dispersion Models: Requires carbon pipeline companies to make dispersion modeling public.
6. Lifetime Drain Tile Repairs: Requires pipeline companies to repair any damage to drain tile
7. Impact Mitigation: Requires pipeline companies to file an impact mitigation plan.
8. Leak Liability: Makes carbon pipeline companies liable to the landowner for any damage caused by leaks.
9. Land Surveyors Must be from SD: Requires land surveyors be South Dakota residents.
10. Bans Perpetual Easements: Limits easements to a maximum of 99 years.
11. Information Disclosure: Requires carbon pipeline companies to report linear footage of pipes in counties and disclose if they claim a tax credit.

MARCH 8, 2024:

South Dakota Governor Kristi Noem has signed a trio of “linear project” related bills (March 7, 2024) that have become known as the “Landowner Bill of Rights” into law.

The pieces of legislation underwent multiple changes to get them through the legislative process and were passed by lawmakers on Wednesday (March 6, 2024).

House Republican Party Leader Representative Will Mortenson of Fort Pierre says thousands of hours of work produced the legislative package that’s being called the first of it’s kind in the United States. He says the laws provide protections and financial compensation for landowners, tax benefits to counties and maintain local input while giving the state Public Utilities Commission final authority over permit approval.

Senate Republican Party Leader Senator Casey Crabtree of Madison admits the laws don’t please everyone, but he thinks most farmers support them. He says these bills set the path for the future of farming in South Dakota, while also setting a new standard for other states to follow to “secure their economic future and provide a blanket of strong protections to landowners.”

House Democratic Party Leader Representative Oren Lesmeister of Parade says it took two years for stakeholders to come an agreement. He says these laws will ensure actions taken will be what’s best for all of South Dakota, but especially for farmers, ranchers and landowners.

A number of agriculture groups have also expressed support for the bills.

The South Dakota Farm Bureau, the South Dakota Corn Growers Association, the South Dakota Soybean Association and the South Dakota Trade Alliance praised lawmakers for passing pipeline bills that deliver landowner protections and property tax relief to those affected, while also preserving local zoning power.

Corn Growers President Dave Ellens says his group is pleased that the Summit Carbon Solutions pipeline project can now continue to move forward, helping to create demand for corn grind in this state.

Farm Bureau President Scott VanderWal says his membership wanted producers to have market access to value-added opportunities while also protecting property rights on both sides of this issue. He says these bills provide affected property owners and counties with an annual amount of money to apply toward property tax relief or county general funds, while ensuring a process-based opportunity for county planning and zoning to be considered during the PUC permitting process.

Soybean Association President Kevin Deinert says ethanol production and soy crush plants are examples of investing in the future and this is the next step toward advancement.

South Dakota Ag Alliance founding member Jason Glodt says the current proposal will provide over $16 million to landowners and counties every year

American Carbon Alliance CEO Tom Buis says creating an economic environment to allow carbon capture and sequestration projects is essential in creating new demand for corn. He says capturing carbon at ethanol plants and piping it to areas where is can be permanently stored will result in ethanol qualifying as a low carbon fuel — a requirement for next generation fuels at the pump and Sustainable Aviation Fuels.

Bill summary:

• • SB201 gives local governments some say over setback distances, but the state Public Utilities Commission would have the ultimate say.

  • HB1185 requires a $500 fee be paid to landowners when a pipeline company of any type wants to perform a survey on that property.

  • HB1186 caps easements for carbon pipelines at 99 years, withdraws the easement if business operations don’t begin within five years after construction or there is a five-year gap in the use of the pipeline.

MARCH 7, 2024:

A trio of “linear project” related bills dubbed the “Landowner Bill of Rights” were passed by the South Dakota Legislature Wednesday (March 6, 2024) and Governor Kristi Noem has indicated she will sign them. A number of agriculture groups have also expressed support for the bills.

Noem says she stands “with South Dakota landowners and always will.” She says she looks forward to signing the nation’s first ever “Landowner Bill of Rights” to provide new protections for landowners and allow for economic growth to move forward through a transparent process.

The South Dakota Farm Bureau, the South Dakota Corn Growers Association and the South Dakota Soybean Association praised lawmakers for passing pipeline bills that deliver landowner protections and property tax relief to those affected, while also preserving local zoning power.

Corn Growers President Dave Ellens says his group is pleased that the Summit Carbon Solutions pipeline project can now continue to move forward, helping to create demand for corn grind in this state.

Farm Bureau President Scott VanderWal says his membership wanted producers to have market access to value-added opportunities while also protecting property rights on both sides of this issue. He says these bills provide affected property owners and counties with an annual amount of money to apply toward property tax relief or county general funds, while ensuring a process-based opportunity for county planning and zoning to be considered during the PUC permitting process.

Soybean Association President Kevin Deinert says ethanol production and soy crush plants are examples of investing in the future and this is the next step toward advancement.

South Dakota Ag Alliance founding member Jason Glodt says the current proposal will provide over $16 million to landowners and counties every year

American Carbon Alliance CEO Tom Buis says creating an economic environment to allow carbon capture and sequestration projects is essential in creating new demand for corn. He says capturing carbon at ethanol plants and piping it to areas where is can be permanently stored will result in ethanol qualifying as a low carbon fuel — a requirement for next generation fuels at the pump and Sustainable Aviation Fuels.

SB201 gives local governments some say over setback distances, but the state Public Utilities Commission would have the ultimate say.

HB1185 requires a $500 fee be paid to landowners when a pipeline company of any type wants to perform a survey on that property.

HB1186 caps easements for carbon pipelines at 99 years, withdraws the easement if business operations don’t begin within five years after construction or there is a five-year gap in the use of the pipeline.

According to SD Ag Alliance, the “Landowner Bill of Rights” includes the following protections and compensation for landowners and counties:

• Compensation for Landowners: Requires carbon capture pipelines to pay landowners $500 to access their land for surveying (HB 1185) and at least .50 cents per linear foot of pipeline through their property in the form of property tax relief (SB 201)

• Compensation for Counties: Allows counties to collect $1.00 per linear foot of pipeline that runs through their county. At least 50% of the surcharge must be used for property tax relief for landowners on the route. The remaining revenue can be spent by counties at their discretion. (SB 201)

• Indemnity for Landowners: Requires pipeline companies to indemnify landowners for liability. (SB 201)

• Minimum Burial Depth: Requires pipeline to be buried at least 4 ft deep, exceeding federal regulations of 3 ft (SB 201)

• Disclosure of Dispersion Models: Requires carbon pipeline companies to make dispersion modeling public. (SB 201)

• Lifetime Drain Tile Repairs: Requires pipeline companies to repair any damage to drain tile (SB 201)

• Impact Mitigation: Requires pipeline companies to file an impact mitigation plan. (SB 201)

• Leak Liability: Makes carbon pipeline companies liable to the landowner for any damage caused by leaks. (SB 201)

• Land Surveyors Must be from SD: Requires land surveyors be South Dakota residents. (SB 201)

• Easements Terminate if Not Used in 5 years: Easements for pipelines terminate if pipeline does not receive PUC permit in 5 years and terminates after 5 years of non-use. (HB 1186)

• Bans Perpetual Easements: Limits easements to a maximum of 99 years (SB 201)

• Information Disclosure: Requires carbon pipeline companies to report linear footage of pipes in counties and disclose if they claim a tax credit. (SB 201) Landowner will also receive results of survey and examination and contact information for person in charge of inspection. (HB 1185)

• Mortgage Limitations: Protects landowners by restricting mortgages held by an easement holder so the mortgage only attaches to the easement holders rights and not to the land or obligate the property owner. (HB 1186)

• Easements Must Be Written: Requires companies to put easements in writing. (HB 1186)

• Survey and Access Limits: Landowners reserve right to challenge the right to survey in circuit court. Landowners must be given 30 days written notice and include details about date, time, duration, location and contact information. (HB 1185)

MARCH 5, 2024:

By Todd Epp, South Dakota Broadcasters Association.

A trio of carbon pipeline-related compromise bills were passed by the South Dakota House of Representatives Wednesday (March 6, 2024).

SB201 passed 39 to 31. It gives local governments some say over setback distances, but the state Public Utilities Commission would have the ultimate say.

HB1185 passed 42 to 28. This bill requires a $500 fee be paid to landowners when a pipeline company of any type wants to perform a survey on that property.

HB1186 passed 41 to 29. It caps easements for carbon pipelines at 99 years, withdraws the easement if business operations don’t begin five years after construction or there is a five-year gap in the use of the pipeline.

House Majority Leader Rep. Will Mortenson of Fort Pierre said those who opposed SB201 were for a “do nothing solution” and were more concerned about likes on Facebook.

In debate on HB1186, Republican Rep. Liz May from Kyle wondered by some wind easements were for only 48 years, while the carbon bill provided for 99-year easements. She said the carbon pipeline projects are jeopardizing the cattle industry by causing an increase in the price of corn that ethanol plants compete for against cattle producers.

Rep. Roger Chase of Huron said the ethanol industry was important to the state and was helping to keep his family on his corn and feeder operation.

Rep. Karla Lems from Canton said the state was “selling out” landowners and the landowner’s rights bill (HB1186) was actually a “pipeline owner bill of rights.”

FEBRUARY 29, 2024:

The South Dakota State House voted 40-30 Wednesday (Feb. 28, 2024) to advance a bill touted by republican leadership as a compromise between carbon pipeline proponents and opponents.

House Majority Leader Representative Will Mortenson of Fort Pierre is one of the prime sponsors of SB201. It– along with HB1185 and HB1186– are a trio of bills Mortenson has signed onto saying they would create “the South Dakota way forward” for “linear projects” such as pipelines.

Representative Liz May of Kyle said SB201 goes against local control.

One of the modifications made to the original bill would allow counties to collect a $1 surcharge for every foot of pipeline running through their jurisdictions.

Representative Roger Chase of Huron represents Beadle, Clark and Spink counties. He said those county governments would benefit from tax money brought in because of SB201.

The measure has undertaken a series of changes since its initial filing in late January and now aims to change the way the state Public Utilities Commission permits pipeline projects. Specifically, it calls for the PUC to be able override – or preempt – county-level restrictions such as a minimum distance a project would have to be from homes or road rights of way. Additionally, SB 201 would codify a standard where federal regulations take precedence over county ordinances. It’s something proponents say is needed to stave off the threat of federal litigation that’s likely without that provision in state law.

Because the bill passed out of the Senate and the House in different forms, it will likely be referred to a conference committee to work out the details.

.

FEBRUARY 28, 2024:

A carbon capture pipeline bill has cleared another hurdle in the South Dakota Legislature.

SB201 removes much of the power for siting and safety regulations from local governments, placing it in the hands of the state Public Utilities Commission.

House Majority Leader Representative Will Mortenson of Fort Pierre is a prime sponsor of SB201. He calls it the South Dakota way to participate in interstate commerce.

Pipeline opponents say the measure it isn’t the South Dakota way to protect property rights.

SB201 next goes to the House floor.

(News partner KELO.com contributed to this story.)

.

FEBRUARY 15, 2024:

FEBRUARY 13, 2024:

(SDBA)- Opponents saw their hopes dashed for the second year in a row as the dream bill of landowner advocates, intended to halt construction of a carbon pipeline across eastern South Dakota, suffered defeat in the Legislature.

But the setback wasn’t isolated; four additional bills addressing pipelines and their construction met a similar fate in the House Commerce and Energy Committee Monday in a marathon hearing.

Rep. Jon Hansen introduced House Bill 1219, aiming to prohibit carbon dioxide pipelines from utilizing eminent domain for construction purposes. This measure would likely spell the end for Summit Carbon Solutions’ carbon pipeline plans in eastern South Dakota. Specifically, the bill targets companies transporting carbon for “geological storage or sequestration,” directly challenging Summit and its plans to sequester carbon into the ground in North Dakota. A nearly identical bill made it through the House last year before facing easy defeat in a Senate committee. Hansen emphasized the bill’s intent to allow pipeline construction but without unjustly condemning private property.

“This bill lets you build the pipeline, go ahead and do it,” Hansen said. “Just do it voluntarily, without unjustly condemning hundreds of landowners private property. That is all we are asking.”

Familiar faces from previous efforts to thwart Summit’s plans returned to share their concerns about the pipeline’s potential negative impacts. And in addition to opposition from landowners, utility companies raised concerns about the bill’s unintended consequences for common utilities like water and electricity. Steve Willard, Executive Director of the South Dakota Electric Utility Companies, cautioned against disrupting the state’s business environment.

“Make no mistake about it, this was brought here to kill this particular project,” said Steve Willard, Executive Director of the South Dakota Electric Utility Companies. “I would tell you not to turn the tables upside down on people who are here in South Dakota trying to figure out how to do business.”

The House Commerce and Energy Committee has become a graveyard for bills seeking to protect landowners’ rights regarding carbon pipelines. Of several pipeline bills brought before the committee, only two have emerged, both “compromise bills” crafted by legislative leadership. Though Hansen’s bill narrowly failed, losing by just one vote, it did represent a departure from similar efforts. Other anti-pipeline, pro-landowner bills have seen much sounder defeats by the same committee.

Hansen expressed intentions to smoke the bill out on the House floor, a legislative maneuver that would allow the full House to debate it despite its defeat in committee.

“This bill is absolutely critical to defending constitutional property rights and protecting South Dakotans from having their land taken,” Hansen said in a statement. “It needs a full hearing on the floor and landowners across this state need the protections this bill offers them.”

Aside from Hansen’s bill, several other proposals met their demise during the committee’s proceedings. Rep. Karla Lems sought to allow any party in a Public Utilities Commission hearing to request an extension, while Rep. John Sjaarda proposed requiring companies to obtain at least 90% voluntary easement agreements before pursuing eminent domain. Two additional bills, including one addressing hydrogen pipelines, were tabled by the committee in consultation with their prime sponsors.

By Austin Goss, South Dakota Broadcasters Association.

.

FEBRUARY 6, 2024:

Two of three bills Republican Party leaders in the South Dakota House and Senate have drafted in hopes of finding compromise between landowners and development of value added agriculture projects in the state have cleared their first committee hearing Monday (Feb. 5, 2024).

House Majority Leader Representative Will Mortenson from Fort Pierre says the goal of HB1185 is to start the communication between landowners and those wanting to do surveying for their project off “on the right foot.”

Mortenson views this bill as making “good neighbor changes.”

Mortenson says HB1185 also requires parties wanting to conduct survey siting work to pay a “service for entry” fee.

Aaron Johnson farms in southern Lake County. He wants HB1185 to include advance notification for tenants as well as landowners.

Mortenson says renters’ or tenants’ rights would be contained in their lease agreement rather than in this proposed law.

The House Energy and Commerce Committee passed HB1185 on a 10-1 vote. The group passed HB1186 on an 8-3 vote. Mortenson says it would require a payment of $1 per linear foot as a minimum payment in a carbon pipeline easement.

The third bill bill being proposed by Mortenson and Senate Majority Leader Senator Casey Crabtree of Madison is SB201. It’s been referred to the Senate Energy and Commerce Committee, but it’s not yet been put on their calendar for discussion.

The South Dakota Public Utilities Commission denied pipeline permit requests from Navigator CO2 Ventures (Sept. 6, 2023) and from Summit Carbon Solutions (Sept. 11, 2023) last year citing county setback law violations. Since then, Navigator has ended its project, but Iowa-based Summit Carbon Solutions is still moving forward with its plan. Their project involves building a pipeline to transport carbon dioxide from 32 ethanol plants in the Midwest– including Redneck Energy at Onida– to underground storage in North Dakota. The project would be eligible for federal tax credits incentivizing greenhouse gas sequestration.

.

FEBRUARY 2, 2024:

Republican Party leaders in the South Dakota House and Senate have drafted three bills that they hope will help find compromise between landowners and development of value added agriculture projects in the state.

House Majority Leader Representative Will Mortenson from Fort Pierre and Senate Majority Leader Senator Casey Crabtree of Madison are the prime sponsors of HB1185, HB1186 and SB201.

Mortenson says the bills would be “the strongest landowner protections we’ve passed in this building in the last 20 years.”

Mortenson says HB1185 also includes a one-time payment of an access fee.

Crabtree says the central goals of the three bills are respect for landowners, certainty for value added agriculture into the future and infrastructure.

Crabtree and Mortenson anticipate the two house bills seeing committee action next week with the senate bill being heard late next week or the week after.

The South Dakota Public Utilities Commission denied pipeline permit requests from Navigator CO2 Ventures (Sept. 6, 2023) and from Summit Carbon Solutions (Sept. 11, 2023) last year citing county setback law violations. Since then, Navigator has ended its project, but Iowa-based Summit Carbon Solutions is still moving forward with it’s plan. Their project involves building a pipeline to transport carbon dioxide from 32 ethanol plants in the Midwest– including Redneck Energy at Onida– to underground storage in North Dakota. The project would be eligible for federal tax credits incentivizing greenhouse gas sequestration.