The Legislature's Ag Land Assessment Task Force gets me to notice a tiny portion of our agricultural land assessment rules that show South Dakota thinking like Earl Butz, telling farmers to get big or get out... of agricultural land classification.

The evaluation of ag land is currently a contorted potential income tax, but the important part here is that ag land is taxed much less per acre than residential land. SDCL 10-6-31.1 says that land must meet two of these three criteria to be taxed at the lower agricultural rate (farmers, legislators, let me know if I'm boiling them down correctly):

  1. A third of the gross family income must come from agricultural activities on the land;
  2. The principal use of the land is agriculture;
  3. The land in question is at least 20 acres (although counties can increase that minimum up to 160 acres).

The interim committee is considering rewording that statute to make the principal-use criterion mandatory and requiring the land additionally meet either the one-third-income or minimum-size requirement.

I understand that some of the angst over ag land assessment comes from Pennington County, where evidently some Black Hills residents have kept taxes on their scenic parcels low by harvesting a little timber and calling themselves tree farmers.

But consider this situation: suppose the Governor gets serious about rural development in his second term and retools Dakota Roots to recruit young families to take up small-scale farming. We encourage young couples to buy small farms, less than ten acres, to grow real food for local sale and consumption. These young farm couples dig in for some local-level garden farming, but at least one member of the family maintains professional employment teaching, lawyering, doctoring, carpenting, what-have-you to ensure some income stability.

Under either version, current or amended, of our tax rules, those intrepid young small farmers get hit with an extra tax burden. It seems odd to tax farmers more just because they have chosen to work on a smaller scale. It seems contradictory for our income-tax-averse Republican Legislature to impose a higher tax rate on farmers based on their income.

Our property tax code should be able to distinguish between farmers engaged in real farming and Black Hills retirees tricking the county by chopping a few trees. But if we can't write a law to recognize that difference, we shouldn't punish small farmers who choose to sell their goods to their neighbors at the farmers' market instead of Smithfield, ADM, and Bel Brands.

We could avoid all this land-evaluation rigamarole if we just replaced our antiquated property tax with an income tax. Short of that, we could write a tax code that encourages young people to get into farming without feeling like they have to commit to the Big-Ag cycle of corporate serfdom and debt.

Related: The Legislature may be inching toward turning the agricultural land assessment into something even closer to an income tax. At their Tuesday meeting, the ag land assessment task force voted unanimously to commission SDSU economists to study the impacts of assessing ag land on actual use instead of ideal use. (Hey, isn't that Rep. Charlie Hoffman's good idea?)


Senator Phil Jensen (R-33/Rapid City) has found a nice safe conservative bunker from which to fire his first post-election paranoia grenades. Senator Jensen says the state Board of Education is breaking a new state law that he co-sponsored in the 2014 Legislative session to deliver us from the evil of K-12 curriculum standards created in other states.

The law in question is SDCL 13-3-48.1, created by this year's Senate Bill 64, which reads in relevant part,

Prior to July 1, 2016, the Board of Education may not, pursuant to § 13-3-48, adopt any uniform content standards drafted by a multistate consortium which are intended for adoption in two or more states. However, this section does not apply to content standards whose adoption by the Board of Education was completed and finalized prior to July 1, 2014. However, nothing in this section prohibits the board from adopting standards drafted by South Dakota educators and professionals which reference uniform content standards, provided that the board has conducted at least four public hearings in regard to those standards [SDCL 13-3-48.1, enacted 2014.07.01].

The action in question is the creation of new science and social studies standards. Senator Jensen, similarly archly conservative Rep. Elizabeth May (R-27/Kyle), and some Common Core opponents went to the Board of Education meeting Monday to say those new standards are linked to Common Core. According to the intrepid Bob Mercer, the standard opponents used words like “communist,” “evolution,” “leftist,” “climate change” and “environmentalism” in their expressions of opposition.

Never mind that the South Dakota teachers who worked on the social studies standards read SDCL 13-3-48.1, read a lot of documents, and drafted their own darn standards:

Much of the proposal is based on the state’s existing standards, but the revision committee injected old priorities with their own experience and new research, [DOE specialist Sam] Shaw said. The group also consulted the C3 Framework, a collaborative effort between states and the National Council for Social Studies to improve the rigor of social studies classes and align with the Common Core State Standards.

Lawmakers passed a two-year ban last year on the adoption of “any uniform content standards drafted by a multistate consortium which are intended for adoption in two or more states.”

Aware of the stipulation, the 2014 Social Studies Content Standards Revision Committee did not adopt the C3 Framework, instead using its philosophies to inform the standards-writing process, Shaw said.

“Anything we used was primarily for reference,” Shaw said. “Each and every individual standard was approved by the teachers” [Patrick Anderson, "Social Studies Standards Urge More Analysis," that Sioux Falls paper, 2014.11.17].

And ditto the science standards:

The proposed science standards are unique to South Dakota and give flexibility to teachers at the local level, Shaw said.

Shaw and his fellow committee members used the Next Generation Science Standards as a framework for creating standards, but the components were made to fit South Dakota's education needs, Shaw said [Patrick Anderson, "State Science Standard Proposals Draw Concern," that Sioux Falls paper, 2014.09.15].

Evidently when the Legislature forces teachers to engage in the charade of codifying all of their art into lengthy bullet-point standards documents, Senator Jensen and other conservative allies also expect teachers to ignore the vast body of knowledge, research, and paperwork already generated by their colleagues in other states and reinvent the standards wheel. (Senator Jensen is creating another moment in which South Dakota teachers will say to the Legislature, "You don't pay us enough to put up with this B.S.")

Senator Jensen said he's going to sic the Attorney General on the Board of Education for this violation, because oh my, an economic-development official scamming the state out of over $100 million on an illegal contract doesn't warrant lifting a finger, but teachers reading plans from other states need to be investigated right now!

Such is the nuttiness Senator Jensen and his fellow Republicans have in store for the 2015 Legislative session.


On Friday, U.S. Judge Karen Schreier rejected the bulk of the State of South Dakota's arguments for dismissing the challenge to its same-sex marriage ban. Judge Schreier's ruling says the two main cases on which the state leans to call for dismissal are not binding. The ruling says the six South Dakota couples suing have a "plausible equal protection claim" based on a fundamental right to marry and gender discrimination. The ruling says the defendants—our Governor, our Attorney General, the Secretary of Health, our Secretary of Public Safety, and the Brown County Register of Deeds—"have articulated no potential legitimate purpose" for South Dakota's discrimination against married homosexuals.

The ruling dismisses the plaintiffs' argument that South Dakota's same-sex marriage ban infringes on their right to travel. Judge Schreier says that a key component of the right to travel is that individuals who take up residence in a new state enjoy "the right to be treated like other citizens of that State." Judge Schreier says South Dakota's refusal to recognize same-sex marriages "appl[ies] equally to new citizens and existing citizens of South Dakota." That's tricky reading—our same-sex marriage ban still discriminates, according to everything before the judge so far, but since we're discriminating against all homosexuals and not just those durned furriners from Minnesota and California, the plaintiffs can't challenge the ban on right to travel.

The primary import of Judge Schreier's ruling is that the state loses its bid for dismissal, the case moves forward, and the state appears to have no good arguments on the flow.

Dealt a hard defeat, Attorney General Marty Jackley plays the kid who failed his spelling test, got in trouble for mouthing off at the teacher, but leads his answer to Mom's question about how school was today by telling her they got apple crisp for lunch. "Federal Court Grants in Part State’s Motion to Dismiss Same-Sex Marriage Case," he headlines his Friday press release. Yet not one media outlet in South Dakota has shared Jackley's assessment:

  1. "Late yesterday afternoon, Federal Judge Karen Schrier denied the state's motion to dismiss a lawsuit challenging South Dakota's ban on same-sex marriage."
  2. "Judge Rejects Motion to Dismiss SD Gay Marriage Case"
  3. "Judge Rejects Motion to Dismiss Gay Marriage Case"
  4. "Gay Marriage Case in SD to Proceed"

Come on, Marty: Judge Schreier ate your garlic bread but threw out your spaghetti and sauce. The plaintiffs can walk into court with the same arguments they've offered so far and win, while you have to boil up a whole new pot of noodles to throw against the wall to preserve the false right of the majority to discriminate against the minority.


In March 2013, South Dakota officials received eight subpoenas from federal officials seeking information about the state's use of the EB-5 visa investment program. Two men central to that EB-5 program were former Governor's Office of Economic Development secretary and EB-5 loan monitor Richard Benda and EB-5 czar Joop Bollen.

Attorney General Marty Jackley told us in November 2013 that his office never interviewed Richard Benda. Now AG Jackley tells us he didn't question Bollen, either:

“I did not meet with Mr. Bollen personally either during or after the investigation, nor have I talked with him,” Jackley said in an email.

“However, as he indicated in his responses because EB-5 is a federal program he met with federal authorities on several occasions, and I and DCI (state Division of Criminal Investigation) have reviewed those related reports during the state investigation,” he continued.

Jackley added, “I'm planning on further reviewing the materials recognizing what I've said from the beginning that EB-5 is a federal immigration program that federal officials have or are looking at for potential federal criminal violations” [Bob Mercer, "AG: Bollen Wasn't Questioned in Benda Investigation," Aberdeen American News, 2014.11.12].

Something goes wrong enough with a state economic development program being run by a couple former state employees that the FBI comes asking questions, and the Attorney General doesn't think it behooves him to talk with the leaders of that program? AG Jackley finds enough evidence against Benda to call a grand jury and prepare an arrest warrant against Benda for grand theft, but he never thinks he ought to talk to Bollen, the man running the company that had to process the money Benda allegedly stole?

Just as the federal aspect of EB-5 didn't stop Jackley from preparing to arrest and indict Benda, it should not stop him from questioning, not to mention arresting and indicting, Joop Bollen. Private investigation has uncovered multiple state laws and policies that Joop Bollen violated. Every one of Bollen's state-level violations—conflict of interest, fraudulent expropriation of state authority and revenue, etc.—stands independently of any detail of federal immigration policy and is entirely the South Dakota Attorney General's responsibility to prosecute.

So, Attorney General Jackley, do you think it might be time to play catch up and talk to Joop Bollen?


Now that we have some Democratic balls rolling, let's tell Judge Srtska he's wrong.

Last week, retired judge Bill Srtska apparently floated an argument on Facebook that Initiated Measure, the indexed minimum wage increase that South Dakota voters wrote into law, may be unconstitutional. Judge Srtska writes that the automatic annual cost-of-living adjustment may constitute an "unlawful delegation" of legislative power. Srtska apparently sees no constitutional problem with our establishing $8.50 as the minimum wage on January 1, 2015, but once we start letting inflation and math set subsequent minima, "All South Dakotans would be bound by the new wage floor although that rate was never passed by the legislature."

May it please the court: His Honor misreads the law. Initiated Measure 18 goes no further than a number of other statutes through which the Legislature has enacted provisions that operate automatically, without subsequent legislative action.

Consider sunset clauses. South Dakota has passed laws with sunset clauses, providing for repeal of laws without the consent of the sitting Legislature at the time of repeal. One law passed in 2013 imposes a sunset in 2046. That law binds numerous South Dakotans not even born yet to a decision made by likely no one in their Legislature.

For an even stronger parallel, consider the agriculture productivity tax, the Rube-Goldberg income tax we impose on farmers and ranchers. The Legislature does not establish land values. It used its legislative power to hire SDSU economists to cook up a new productivity value each year. That action is as legislative, as mathematical, and as automatic as the cost-of-living increase in the minimum wage. I have not heard anyone suggest that the Legislature fire the SDSU economists and calculate the productivity formula themselves each year (I'm not sure our legislators are that good with math to start with).

The new, indexed South Dakota minimum wage is as constitutional as several other South Dakota laws now on the books. If anyone wants to challenge its constitutionality, they'd better be prepared to unravel a host of other state laws. Judge Srtska, are you sure you want to pull that thread?


With Republicans Al Novstrup and Dan Kaiser victorious in the District 3 House race, we will not have the opportunity to test aspiring assistant majority leader Lee Schoenbeck's determination to veto the will of the people and refuse Democrat Burt Elliott a seat in the State House. 3,404 District 3 voters were undeterred by the well-publicized fact that Elliott only rents a basement in District 3 and likely keeps his main underwear drawer in District 2, but that wasn't enough to beat Kaiser's 3,709 or Novstrup's 3,931. (Fellow Democrat Pat Hale drew 2,778 votes.)

The voters have spared Elliott Schoenbeck's wrath, but perhaps not Marty Jackley's:

Brown County State's Attorney Larry Lovrien said Brown County is not looking into the matter, but it's his understanding that Secretary of State Jason Gant has asked Attorney General Marty Jackley to investigate the matter.

"It's the function of the attorney general to look into these things," Lovrien said.

At issue is a sworn statement signed by Elliott on his petition that says he is a resident of the district in which he is sought election. Lovrien said if that sworn statement is false, that's perjury, which is a felony offense [Elisa Sand, "AG Reportedly Asked to Look into Elliott Residency," Aberdeen American News, 2014.11.05].

Strangely, the AG's office says it knows nothing about any residency complaint:

Sara Raburn of the attorney general’s office said she checked with a couple of individuals within the office on Wednesday, and that they did not know anything about an investigation into Elliott’s residency [Elisa Sand, "South Dakota Attorney General Has Yet to Be Asked to Investigate Burt Elliott Residency," Aberdeen American News, 2014.11.06].

Demonstrating that he was more interested in electioneering than law, Representative-Elect Novstrup, who beat the drum hard against Elliott's fictitious residency during the campaign, tells Sand he suddenly "doesn't have an opinion" on the Elliott residency question:

“It’s completely out of my hands,” Novstrup said, passing on that determination to the Brown County’s state’s attorney or the attorney general’s office [Sand, 2014.11.06].

Perhaps Novstrup just wants to let bygones be bygones. Elliott says he thinks his election loss moots the question.

Elliott is mistaken. As we know from the Annette Bosworth and Clayton Walker cases, oaths matter. Petitions matter. Honest voter registration matters. If the Attorney General determines that any citizen has sworn a false statement, the Attorney General should hold that individual accountable.

But remember, the case Republicans have made against Elliott for perjury rests on this one sentence to which every South Dakota voter swears on the voter registration form:

I actually live at and have no present intention of leaving the above address.

If Attorney General Jackley decides that Elliott has committed perjury by declaring that he "actually lives" at his District 3 address, then Attorney General Jackley will find himself obliged to prosecute some 1,700 "residents" of 110 East Center Street, Madison, South Dakota, 57042 of perjury. That's about how many traveling RV owners have registered to vote at Not one of them "actually lives" at 110 East Center. The same will be true for thousands of other RVers registered at similar addresses in Hanson, Minnehaha, and Pennington counties.

AG Jackley, Republicans, are you ready to unleash that torrent of litigation?


Yesterday the Rapid City Journal endorsed the idea that the EB-5 scandal is all you need to disqualify Mike Rounds from consideration for your vote for U.S. Senate.

Here's one more example of the corruption that took place in Rounds's EB-5 visa investment program while he was governor: his EB-5 czar lied to U.S. Customs and Immigration Officials.

On December 20, 2009, Rounds's handpicked EB-5 director, Joop Bollen, wrote a letter to Barbara Q. Velarde, a USCIS official in charge of EB-5 matters. Bollen was responding to a request from Velarde dated December 1, 2009, seeking verification that South Dakota's EB-5 program was complying with federal statute.

In the December 20 letter, Bollen gives USCIS notice of the curious revolving door through which he's about to walk:

Joop Bollen, letter to Barbara Q. Velarde, USCIS, 2009.12.20, excerpt (click to enlarge)

Joop Bollen, letter to Barbara Q. Velarde, USCIS, 2009.12.20, excerpt (click to enlarge)

Recall the timeline: the next day, December 21, Bollen would quit his state job as director of the South Dakota International Business Institute and walk off the Northern State University campus with five boxes of state property. The day after that, December 22, the Governor's Office of Economic Development would issue Bollen a no-bid contract to do as a private corporation (SDRC Inc.) the same EB-5 work he'd done as a state employee.

So on December 20, 2009, Bollen tells USCIS, "Mr. Joop Bollen, the current Director of SDIBI, will assume management of SDRC Inc as per December 22, 2009."

But Joop Bollen did not assume management of SDRC Inc. on December 22, 2009. Bollen had been running SDRC Inc. from the day he incorporated it, January 10, 2008.

Bollen's active management of SDRC Inc. is demonstrated by several e-mails and invoices involving Bollen and SDRC Inc. finances:

  1. On April 28, 2009, Bollen sends two SDRC Inc. investor recruiter invoices to Gretchan Cleveland at Great Western Bank and tells Cleveland to process only one of them.
  2. On June 10, 2009, Bollen receives a recruiter invoice and an inquiry from SDRC Inc. Marketing Director Joe Jin (a.k.a. Joe Kim) asking if they should simply withhold legal fees from a commission and remit the balance.
  3. On November 2, 2009, Bollen tells Cleveland to process two SDRC Inc. recruiter invoices worth $160,000.

These e-mails show Bollen assumed management of SDRC Inc. well before he told USCIS he was doing so. These e-mails demonstrate that, in a document intended to prove that South Dakota's EB-5 program was complying with the law, Joop Bollen lied to federal officials.

Lying to federal officials is a violation of federal law. It may not be the worst of the violations committed by Mike Rounds's EB-5 czar, but it certainly could be part of why the FBI continues to investigate what happened in South Dakota under Mike Rounds's watch.

Bonus Howler: In the December 20, 2009, letter to Velarde, Bollen includes a chart showing all South Dakota EB-5 projects to date and their expected direct and indirect job creation. The number given for "SDIF LP2," the fund investing 65 EB-5 visa investors' $32.5 million in the Deadwood Mountain Grand Casino: 1,265.

The Deadwood Mountain Grand planned to hire 150 workers for its grand opening on July 1, 2011. current population of Deadwood is 1,288.


Before we pass a regressive tax to increase teacher pay, I know where we can get $13 million to boost our K-12 budget: Joop Bollen's pocket.

Doing some excellent math, Denise Ross figures that Joop Bollen made $13 million in fees on EB-5 transactions in 2009 alone from the 99 foreign investors who kept the Dakota Provision turkey plant in Huron afloat. Bollen made this money processing those foreign investments through his private company, SDRC Inc., into a loan package for his lawyer Jeff Sveen's favorite turkey factory.

Funny thing is, SDRC Inc. did this work under a 2008 memorandum of understanding signed with the South Dakota International Business Institute, the state office that Joop Bollen directed as a public employee from 1994 until the end of 2009. Even if we overlook the absurdity and conflictuality of Bollen's signing this no-bid contract with his own nascent company, there is one other glaring problem with the SDIBI-SDRC Inc. deal: Bollen had no authority to sign this contract. Bollen was technically an employee of the Board of Regents on the Northern State University campus. According to testimony in the Darley v. SDIBI arbitration from NSU counsel John Meyer and BOR counsel James Shekleton, no one ever granted Joop Bollen or SDIBI contract-making authority. To have any legal force, the SDIBI-SDRC Inc. contract would have to have undergone review and approval by the Board of Regents.

In other words, Bollen expropriated the authority of NSU's then-president Patrick Schloss and absconded with $13 million made while he did illegal business from a state office.

That $13 million in fees isn't Bollen's. It's ours. It's time to send the Attorney General knocking on Bollen's door to get that money back.


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