Hey, Burt Elliott! Pat Hale! You're paying attention to this letter to the editor in the Aberdeen paper, right?

Ed Fischbach of Mellette notes that Senator Al Novstrup (R-3/Aberdeen) was all about open records when the James River Water Development District stonewalled him. Fischbach thus finds it puzzling that Novstrup, who is now running for District 3 House, isn't fighting to open records in the EB-5 scandal:

Now there is an EB-5 scandal that is bigger than life in his own legislative district, and we don't hear a peep out of him. The EB-5 scandal has no-bid contracts, no open records, no accountability, pending lawsuits against the state involving upwards of $147 million, and he says nothing. The handling of EB-5 money in this state has everything that Sen. Novstrup complained about when he went after James River Water District and more, but this open government and open records legislator is now silent.

You won an award, Sen. Novstrup, so start demanding records and accountability from Mike Rounds, Dennis Daugaard and other state officials just like you did from James River Water District. Or, return your award [Ed Fischbach, letter to the editor, Abderdeen American News, 2014.09.21

Senator Novstrup hasn't been entirely silent on the EB-5 scandal. Last December, he agreed with the need to look into affairs in the Governor's Office of Economic Development, but he didn't sound terribly eager to do so, or to expand the scope of any investigation to look into local EB-5 failure Northern Beef Packers:

...[T]o Sen. Al Novstrup, R-Aberdeen, seeking a special session less than three weeks before the start of the regular session seems like a waste of money. If it’s needed, extra digging can be called for once the session begins in January.

One thing the state doesn’t have the authority to do is scour the finances of Northern Beef. It’s a private company, and even if there were fraud, the Legislature wouldn’t have that power, he said.

With EB-5 being a federal program, it seems appropriate that Johnson, a federal prosecutor, is looking into what happened, Al Novstrup said. But, he said, the Legislature can take a look at whether the state’s contract with the SDRC to do EB-5 work was properly followed. If it wasn’t, there might be penalties the state can impose, he said [Scott Waltman, "More Answers Wanted: Area Lawmakers Call for More Investigation of State Economic Development Efforts," Aberdeen American News, 2013.12.15].

Open-records crusader Novstrup certainly isn't among those calling now for Novstrup's neighbor Joop Bollen to testify under oath about his questionable profiteering as the state employee in charge of EB-5 from 2004 to 2009.

Elliott, Hale, Tornberg, Nelson, Page, Nordstrom, this is how you tune the EB-5 scandal to your local legislative races. Ask your Republican incumbents why they aren't fighting for more answers about a scandal that may have cost this state more than Mike Rounds's structural deficit. Ask your Republican incumbents why they aren't asking who knew what was happening in the Governor's Office of Economic Development and when they knew it. Don't let them hide behind their reheated stammerings of "But EB-5 is federal!" Legislators' willingness to investigate or ignore the apparent corruption in our state's economic development program raises a fundamental question of character that every candidate should answer this fall.

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On Monday, the South Dakota Democratic Party launched a local ad campaign encouraging citizens to call Senator Larry Tidemann and urge him to subpoena Governor Dennis Daugaard, former Governor Mike Rounds, and other state officials who could explain just what happened in the GOED/Northern Beef Packers/EB-5 scandal. Remarkably, the discussion on this blog turned to the propriety of publishing Senator Tidemann's phone number (a number which is published on Senator Tidemann's official Legislative webpage, as are phone numbers for every other South Dakota legislator).

One eager reader took up the ad's challenge and called Senator Tidemann. The reader got voicemail and left a message. Senator Tidemann called the reader back. Here's the reader's account of their very civil conversation:

When he called me back he was very nice and tried to be helpful explaining what he was doing and what they hoped to accomplish.... We talked about [Richard] Benda, Joop [Bollen], records missing and he basically held to the party stance on this whole thing. He said it was a federal program and I agreed but I pointed out my concern was how it was administered here in SD. It was almost as if there were things with standard responses he made that are used to throw me off and diminish this but I held on and was pointed yet very tactful and respectful.

He said the reason he did not want Joop to be present was that it would have been a circus atmosphere and that the written responses were the same as a subpoena. He mentioned the U.S. Department of Justice ongoing investigation and covered the basis of they are legislators and some of this is better left to police, FBI and DCI agents [blog reader, e-mail, 2014.09.17].

Senator Tidemann's willingness to call a questioner back and discuss serious issues seems to deflate the critique of the propriety of encouraging citizens to call legislators. Senator Tidemann gets extra points for affirming that a federal investigation continues and acknowledging that there appears to be criminal activity in this scandal that warrants investigation.

But Senator Tidemann loses points for talking points. Bob Mercer has rejected the "EB-5 is federal " dodge; so should everyone else.

Senator Tidemann loses more points for his circus-phobia. Is Senator Tidemann saying he is incapable of maintaining order at any committee meeting where a prominent or controversial figure may testify? When is the last time any Legislative committee meeting turned into a circus? How circusy can things get in Pierre? Is Tidemann afraid Bob Mercer will bring peanuts and thundersticks?

The worst that happens if Joop Bollen appears in person in front of the Government Operations and Audit Committee on September 24 is that two bloggers, five reporters, and ten lawyers come to the meeting. Chairman Tidemann raps the desk, points his gavel, and says menacingly, "No circus, or you're out!" And then everyone sits in rapt silence, punctuated only by the raindrop tap of laptop keys, as Senator Larry Lucas and Rep. Susan Wismer grill Joop Bollen.

Senator Tidemann is serving the public trust by talking with voters directly on the phone. Now let's serve the public trust by having former public employee Joop Bollen talk directly with the public at GOAC, in person, under oath, on September 24.

p.s. [09:52 CDT]: The caller notes that Senator Tidemann deserves extra credit for taking a call from a South Dakotan outside his district. The caller made clear in the voicemail that the caller lived in another legislative district, yet Senator Tidemann still took the time to call back. Well done, Senator Tidemann!

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Rep. Kristi Noem has chickened out of debating Corinna Robinson this weekend, but she will still be lurking around the State Fair. At 2 p.m. today, she will accept a "Friend of the Prairie" award on the Freedom Stage from the South Dakota Grassland Coalition.

If you want to talk to Congresswoman Noem about what she's done to deserve such an award (cutting subsidies to farmers plowing virgin prairie, but reducing the CRP maximum CRP acreage from 32 million acres to 24 million acres and CRP funding from $400 million to $250 million?) or to ask her questions that she might have faced in a debate with Robinson, the Princess directs you to contact her staff.

Worth nothing is the fact that Team Noem sends out notice of her appearance at the State Fair one day before it happens. Sometimes it seems as if Rep. Noem just doesn't want attention. Rep. Noem visited Madison Tuesday, but it was another of those surprise, invitation-only, elites-only visits that doesn't make the paper until after it's done. Her staff appear to have posted notice of that event the day it happened, minimizing the opportunity for the press and other interested citizens to come see their Congresswoman.

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Bob Mercer knows how to strike when the iron is hot. The South Dakota journalist asked Attorney General Marty Jackley to release the records of his investigation of Richard Benda's suspicious death last December. AG Jackley rebuffed Mercer on extra-legal pretense and got a state hearing examiner to back him up last May.

Now, just as the EB-5 scandal, which was torn open by Benda's death, begins to rain real fire on Jackley's political pals, Mercer shovels more coals into the furnace with a lawsuit to get the Benda death investigation records.

How a court will rule is up in the air. But for those of you keeping score at home, Mercer's lawsuit has already caused Jackley to commit two unforced errors in the form of two unnecessary and absurd statements.

First, Jackley claims to be a champion of openness:

"I would have been operating within my statutory authority to just flat-out deny access, and I did not do that," Jackley said. "I chose the route of openness and have been nothing but criticized for that" [David Montgomery, "Lawsuit Seeks Access to Benda Death Reports," that Sioux Falls paper, 2014.08.22].

Openness? Openness?! Please, Marty, don't hurt yourself. And the rest of you, don't hurt yourself laughing.

Second, while Independent gubernatorial candidate Mike Myers engages in a macabre re-enactment of Benda's death based on an allegation that Myers himself admits is "an undocumented, unsupported assertion," AG Jackley responds with an incredibly injudicious walk-back of his conclusion on Benda's death:

Jackley said he is confident in the suicide ruling but declined to expand on any evidence that supports that ruling except to site the number of entities involved in investigating Benda's death. The suicide ruling itself was made by a forensic pathologist, not by him or his investigators, Jackley said.

"I never said specifically it was a suicide. I said our findings are consistent with the cause and manner of death determined by the forensic pathologist," Jackley said [Denise Ross, "Gov. Candidate Doubts Benda's Death a Suicide," Mitchell Daily Republic, 2014.08.20].

Jackley's statement is factually, technically true. I noted the absence of an explicit declaration of suicide in Jackley's own words last November when he released the state's report on Benda's death. But why give the doubters and blog sensationalists who so grate his cheese with their speculation and misinformation a line like "I never said... it was a suicide"? The Attorney General has gone from saying "there are absolutely no credible facts or evidence calling into question" the suicide ruling to opening the door for Sam Kephart to come back and talk about the Chinese mafia.

Doubts linger, but the press has mostly adopted without caveat the interpretation that Benda committed suicide. Governor Daugaard has said Benda committed suicide. Why say any little thing to back away from that mostly accepted fact?

People say stupid things for a variety of reasons. Stupid people say stupid things, but I think we all agree Marty ain't stupid people. People may be tired from an exhausting statewide blog tour, but Marty is no blogger.

People also say stupid things when they are scared, under assault, and stressed out. And you know, with a political scandal dominating the news and the debates, with his pals and his own office getting bad press, with the ACLU and his buddy U.S. Attorney Brendan Johnson challenging South Dakota's Indian Child Welfare Act violations, Attorney General Marty Jackley just might feel a little harried.

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With the Nuclear Regulatory Commission coming to the Black Hills next week to hear public comment and consider evidence in the challenge to Powertech/Azarga's application for in-situ leach uranium mining in Fall River and Custer counties, Powertech watchdog Jim Woodward comes up with a couple of curious new developments:

  1. Back in May, Powertech bought some Tennessee Valley Authority data on over 4,000 boreholes and three aquifer pump tests that the TVA conducted in the Dewey-Burdock mining area in the 1970s and 1980s. Boreholes—i.e., paths through which water and pollution from in-situ leach mining could leak.
  2. That data could have some bearing on the contention of the Oglala Sioux Tribe and other official intervenors in the mining permit process that the final environmental impact statement on Powertech's proposal (completed before Powertech got that TVA data) lacks sufficient hydrogeological data on the impact ISL mining could have on the area. The data may also offer more perspective on more serious natural leakage at the site.
  3. The NRC told Powertech to show the tribe that data; Powertech is resisting that order, saying the TVA data is (in Woodward's words) "irrelevant to the evidentiary hearing."
  4. Even if the data is irrelevant, by balking at releasing the data up to this point, Powertech makes it difficult for opponents to see for themselves and study the data in time to effectively comment on it at the August 18 NRC hearing.
  5. And in business new that John Tsitrian will find interesting, Azarga was supposed to complete its reverse-takeover of Powertech by July 31. Azarga and Powertech have not completed that maneuver; instead they have extended the acquisition deadline to September 15.

Powertech uranium mining proposal, as well as its business arrangements with Azarga, are complicated. The public deserves as much data as possible to understand the risks and benefits. Powertech, help us out: let us see the TVA data.

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Hey, New Yorkers! Want a reason to be a bit miffed at South Dakota? Try reporter Joe O'Sullivan's list of the states that got the most Homeland Security dollars per resident in 2011. New York, where al-Qaeda terrorists killed 2,977 Americans and ushered in the police-state era, ranks tenth, at $4.70 per person. South Dakota, where terrorists haven't killed anyone since, well, ever (AIM debate, anyone?), ranks sixth, at $6.20 per person.

O'Sullivan notes that we'd have a hard time proving to our New York neighbors that South Dakota is really combatting terrorism with all that anti-terrorism money:

All that spending came in a state that arguably has very little threat of terrorism. According to a 2010 Washington Post report, South Dakota is one of 15 states that federal intelligence agencies ruled has "no specific foreign or domestic terrorism threat."

...a federal government report released in May has questioned South Dakota's ability to even measure whether the homeland security money is being put to good use.

"We were unable to determine the extent to which the [federal homeland security] grants enhanced the state's ability to prepare for and respond to disasters and acts of terrorism," according to the Department of Homeland Security Office of Inspector General Report. "The state does not have a system to measure preparedness" [Joe O'Sullivan, "State Gets Millions in Homeland Security Grants, But Where Does It Go?" Rapid City Journal, 2014.06.08].

We have a state government demanding more tests and more accountability before they'll deign to give schools any more money. But scare us with terrorism, and we'll throw all sorts of money at the police and never ask for proof that that money is addressing real threats and making us safer.

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Last December, reporter Bob Mercer asked Attorney General Marty Jackley to release records from the investigation of Richard Benda's unusual death. Mercer wanted the public to see those records to address widely circulating doubts about the validity of AG Jackley's conclusion that Benda committed suicide. AG Jackley refused, on the seemingly extra-legal pretense of the family's desire to keep said records secret.

Yesterday the Office of Hearing Examiners upheld AG Jackley's secrecy on the Benda investigation. Chief Hearing Examiner Hillary Brady said AG Jackley's extra-legal conditions on releasing the information are legal. Brady's ruling cites statute exempting criminal investigation records from public view... which remains highly suspicious, since Mercer is requesting information about Richard Benda's death, which the Attorney General has said was not a crime, but just a suicide.

As the state thus continues to keep secrets, Gordon Howie releases his conversation with me about Richard Benda's death and other matters related to the GOED/EB-5/Benda scandal:

Note that I'm trying hard to accept the Attorney General's conclusion. It would be a lot easier if the AG would share the solid evidence that led him to that conclusion.

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John Hult tries to write a detailed report on investigations of abuse in South Dakota's foster care system. Writing such a report is hard, Hult notes, because South Dakota keeps such investigations secret.

But it's children! you say. We can't subject those children or their families to public scrutiny and shame. It might deter people from coming forward with reports of neglect and abuse.

Funny: Minnesota doesn't have that problem:

In Minnesota, that information would be available. In 2001, the state opened all abuse and neglect hearings and records after a two-year pilot project. The response has been positive, said Judy Nord, a lawyer with that state's Judicial Branch.

"We still have arguments in Minnesota about whether a child should have been placed in one home or the other. That hasn't stopped," she said. "The difference is that now, if something happens, you can go back through and find out what happened throughout the process."

Before the pilot project, opponents argued that opening records would lead to disclosure of the names of the children and families involved, that people would be less willing to report abuse for fear of the spotlight, and that parents would contest the allegations and press for a trial instead of admitting them in public.

Those concerns were unfounded, Nord said.

"The hearings are open, the records are open, and we haven't seen any problems," she said. "We still have people reporting abuse, we still have as many admissions as we did before opening the hearings."

Now, Nord said, relatives, teachers and others close to a child have started appearing at the hearings to offer help [John Hult, "Secrecy Cloaks Foster Care Investigations by S.D. Social Services," that Sioux Falls paper, 2014.05.04].

I suppose that saying we should learn from Minnesota's example is a sure way to get Pierre not to take the desired action.

Among the information Hult can find are the data on investigations and substantiated case of abuse and neglect in foster homes and other homes in South Dakota. The foster care numbers are small and thus statistically less reliable, but Hult's numbers show that the percentage of investigations revealing substantiated cases of abuse and neglect in foster homes over the last five fiscal years is about 7%, compared to 22% for other homes. From these numbers, one could draw a number of logical guesses:

  1. Foster homes are subject to more scrutiny and thus more reports of possible abuse, which subsequently turn out to be unsubstantiated.
  2. The state's vetting process for foster parents works, producing a subset of caregivers who commit less abuse than the general population of parents and guardians.
  3. Foster homes' substiantiation-to-investigation ratio is depressed by the fact that the state has an interest in protecting itself from liability that colors its initial investigations in a way that does not happen in investigations of non-foster homes.

As long as South Dakota keeps its investigations of foster homes secret, citizens will have a hard time determining which of those three interpretations is the most accurate.

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