This will be an exciting day for the South Dakota Public Utilities Commission. (I can picture Commissioner Chris Nelson springing out of bed every morning and saying exactly that.) On Tuesday, December 9, amidst seven major agenda items, the PUC gets to talk Keystone XL. Tuesday's hearing isn't the whole box of Timbits. Far from it: tomorrow, Commissioners Nelson, and Fiegen will only set rules for discovery and maybe time frame for future hearings.

TransCanada, the hopeful builder of the second tar sands pipeline that would cross our fair state, moved on October 30 to severely limit the scope of discovery—i.e., the topics on which opponents of the pipeline could demand information that they could use next year to argue against recertifying TransCanada's permit. For the high school policy debaters in the audience, TransCanada is essentially arguing, "No New in Two!" TransCanada contends that state law forbids today's opponents from bringing up or even demanding documents relating to arguments against the West River pipeline that weren't brought up in the original PUC permit process in 2009 and 2010. TransCanada says intervenors may not raise the following issues:

...the effects of the Project on the soils of the Sandhills; the effects of the Project on the Ogallala Aquifer and other streams, river, and waterbodies; whether the Project is in the national interest; whether the Department of State conducted sufficient consultation with interested Tribes under Section 106 of the National Historic Preservation Act; whether Keystone is entitled to exercise the right of eminent domain; and whether development of the oil sands in Canada harms the environment and contributes to levels of C02 in the atmosphere ["Keystone's Motion to Define the Scope of Discovery under SDCL 49--41B-27," SDPUC Docket, HP14-001, 2014.10.30].

TransCanada is understandably trying to speed the process, take ground from its opponents, and keep documents out of opponents' hands.

Pretty much everyone else at the show says TransCanada is wrong. The Cheyenne River Sioux Tribe dismantles TransCanada's motion, saying the Canadians get South Dakota case law wrong, offers no statutory basis for its narrow interpretation of the relevant permitting clause, and improperly reads that key statute in isolation in an attempt to throttle the properly broad authority of the PUC. Dakota Rural Action cites examples from other states that hold that the state confers no property right with a construction permit and the state is has the authority to conduct a broad review of an expired permit. The Rosebud Sioux Tribe argues that TransCanada is seeking a protection order that improperly applies the standards for permissibility at trial to permissibility in discovery: basically, the fact that information may not be allowed in the final hearing does not justify excluding such information from discovery.

Merry Christmas, Keystone XL opponents: the PUC staff seems to agree with you!

...[W]hile SDCL § 49-41B-27 limits the proceedings, it does not limit the scope of discovery. The fact that information is not admissible in the certification proceeding does not mean that it is not discoverable. “The purpose of discovery is to examine information that may lead to admissible evidence at trial [Kristen Edwards, PUC Attorney, response to TransCanada motion on discovery, PUC Docket HP14-001, 2014.12.01].

PUC attorney Edwards is waving the caution flag at Keystone XL opponents. They will still have to make their arguments at the full hearing next year that the PUC should consider risks to the Ogallala aquifer, lack of consultation with tribes, eminent domain, and other objections that were not raised in the first Keystone XL permit hearing. But if the PUC accepts its own attorney's reading of state law, it will tomorrow allow opponents to engage in much broader discovery than TransCanada wants.

Much broader discovery will require a much broader time frame. TransCanada wants a 14-week discovery process before hearings March 24–27, 2015. Dakota Rural Action says proper discovery and response will take 44 weeks, which would put the hearing sometime next October. On this issue, PUC staff is lining up with TransCanada, proposing the same March dates for the evidentiary hearing.

This discussion could all become academic if the Yankton Sioux Tribe prevails in its motion to dismiss. Attorney Thomasina Red Bird says that when TransCanada petitioned for recertification, in included a "Tracking Table of Changes" indicating changes in thirty of the findings of fact from the original permit. Red Bird and her Yankton clients say those changes make the project proposed in the 2014 petition different from the project approved by the PUC in 2010. The PUC, says Red Bird, cannot recertify a new project that has not been certified. Throw it out, start over!

I like that argument. I don't think the PUC will. We can hope for good fortune, but for now, a victory on broad discovery and a schedule long enough to make discovery feasible will be plenty.

The PUC will webcast tomorrow's meeting live, starting at 9:30 a.m. Central. Keystone XL is the last major action item on the agenda, so it's hard to say when that excitement will begin.

P.S.: Blogger Pat Powers ignores the details of tomorrow's hearing and whines the Big Oil party line that South Dakota should change its reasonably limited permits to perpetual licenses. Funny: I don't hear him saying that homeowners should get a permanent building permit, or that I should get a perpetual teaching license, or that Grandma ought to get a perpetual driver's license....

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The same lawyer who wrote up the SDGOP's feeble threat to sue TV stations for airing negative ads about Mike Rounds carried TransCanada's water yesterday in an effort to block citizens from fighting Keystone XL. And believe it or not, our Public Utilities Commissioners took the people's side!

43 individuals and organizations filed for intervenor status in the process under which the PUC will consider renewing TransCanada's permit to build the Keystone XL tar sands pipeline across West River. TransCanada sent Sioux Falls lawyer William Taylor to keep Bold Nebraska, 350.org, sixteen Nebraskans, and two Minnesota tribal members out of the process. At yesterday's party status hearing, Commissioners Gary Hanson, Chris Nelson, and Kristie Fiegen held the door open for every one of those interested parties:

Chairman Gary Hanson said the term “interested person” isn’t defined in the state laws governing PUC permitting. He said the laws also provide intervener status for environmental organizations.

“This is why we’re so lenient in granting party status, because the doors are so open on this,” Hanson told Taylor.

Commissioner Chris Nelson said he reads the laws to mean the commission has flexibility in deciding who can intervene, and Commissioner Kristie Fiegen said the Legislature “intentionally” wrote the law in broad language so the PUC could be inclusive [Bob Mercer, "43 Granted Intervener Status in Keystone XL Proceedings," Aberdeen American News, 2014.10.29].

Funny that TransCanada was arguing that non-South Dakotans can't participate in the South Dakota PUC's permitting process. By that logic, I would think the commissioners would have to bar the door to TransCanada as well, since none of their directors live in South Dakota. Luckily for them, Commissioners Hanson, Nelson, and Fiegen avoided that complication.

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Happy Canada Day! I'm headed across the border to celebrate with America's nicest neighbors right now. But I'll be watching for Canadian friends who would share the celebratory sentiments of the Cowboy and Indian Alliance, which feasted on roast bison this weekend to celebrate the expiration of TransCanada's permit to build the Keystone XL pipeline across West River South Dakota.

Protestor proudly sports "No Permit, No Pipeline" logo at  Cowboy and Indian Alliance buffalo roast at the Oyate Wahacanka Woecun Rosebud Sioux Spirit Camp near Ideal, South Dakota on June 27, 2014. Photo by Matt Sloan for Bold Nebraska.

Protestor proudly sports "No Permit, No Pipeline" logo at Cowboy and Indian Alliance buffalo roast at the Oyate Wahacanka Woecun Rosebud Sioux Spirit Camp near Ideal, South Dakota on June 27, 2014. Photo by Matt Sloan for Bold Nebraska.

"No Permit, No Pipeline!" We can certainly hope so. To pump more of its tar sands through our fair state, TransCanada must now go through another application process with the Public Utilities Commission. That means the Cowboy and Indian Alliance can exert pressure on Public Utilities Commissioner Gary Hanson, who is up for re-election. Democratic challenger David Allen can turn up that pressure, asking South Dakotans to ask Commissioner Hanson why South Dakota support a pipeline that damages South Dakota's and the nation's long-term interests. Constitution Party PUC candidate Wayne Schmidt can jump in and ask South Dakotans why the PUC should approve a project built by a private foreign corporation exerting eminent domain on South Dakota property owners. (And hey, be bold, guys! Rick Weiland will back you up!)

I love Canada, but TransCanada can jump in a lake... or better yet, jump back from our lakes and streams and pastures.

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Remember Rebecca Rodriguez? She was one of Harding County rancher Bret Clanton's interesting house guests last year. Rodriguez was walking TransCanada's Keystone XL pipeline route from Port Arthur, Texas, to Hardisty, Alberta, for her documentary project, This Land Was Your Land. She trod through Clanton's land in early November; with winter setting in, she got to Val Marie, Saskatchewan, near the U.S.–Canada border and called it good. (There is great merit to knowing when to say when... especially when walking northwest toward Alberta in December.)

Rodriguez writes back and says South Dakota holds a special place in her heart. She collected lots of great photos and great stories. She offers one story based on her encounter with John Harter, a Colome rancher who fought TransCanada in court and lost, as South Dakota's judicial system uphold the outrageous notion that a private foreign company can use eminent domain to usurp South Dakotans' property rights. Rodriguez also sends a video of Harter himself telling his story. I happily yield the floor to her literary account of one part of her journey through South Dakota.

The CIA, the Black Snake, and the Last Man Standing

Rebecca Jane Rodriguez

They’re playing old country music so I stay, all night until closing. I awaken the next morning in the city park in the town of Witten, South Dakota. As light breaks through the tree limbs into my tent, my throat is dry, my head is heavy, a reminder of the night before—one too many whiskeys at the bar across the street called “Cowboy-Up.” My phone rattles. It’s Johh Harter, a rancher from nearby Colome. We tried to meet the day before in Winner but we couldn’t make it happen. Harter is the only man in the state to challenge TransCanada’s claim to his land. The Keystone XL pipeline is set to run across his pastureland, the same homestead that has been in his family for decades, and he's not taking it lying down. He tells me he has time to talk.

John arrives a few minutes later in a black pick-up truck. He’s a smaller guy but tough with a slim muscular build, eyes like frost on bluestem behind square glasses. He invites me to stay with him and his family for a few days on his ranch just outside of Winner. The South Dakota plains are serene: rolling hills, flat land; this is sand country, all under a blue sky swollen with clouds—a place that I’ve quickly become absorbed in. On the ride home he gives me the details of his six-year fight to protect this little patch of heaven from a pipeline giant.

During a 2008 meeting for landowners at the Holiday Inn Express, TransCanada representatives set up tables, laid out maps, and there he found out the pipeline was set to cross his land. According to TransCanada, this pipeline was going to fix all the community’s problems, money for the schools, local jobs….

All he had to do had to do is sign on the dotted line.

The other farmers and ranchers were eager to get on board, but John hesitated because he’s heard this story before.

"I guess when I was at this meeting I had this thought of caution while I was there listening and asking questions. One of the things that embedded in my mind before I even went to this meeting was what my Dad told me when I told him about the pipeline. My dad told me not to trust them. He said, ‘Them oil people all lie.’”

This was not the Harters’ first brush with the oil industry. John recalls a childhood memory when his family was paid a visit by some oilmen.

“Years ago there was these people that come up, it was when I was probably younger than ten years old. I remember a van coming in the yard and these were people coming in wanting to drill test wells on the property and my Dad wouldn’t let them do that.”

John tells me his Dad was no fool and he wasn't buying their bull either. So he looked into it further and learned another B-word: Bitumen.

John’s research lead him to Dakota Rural Action, a local grass root organizer. He went to some informational meetings where he was put in touch with other landowners, who had direct experience with the Keystone I, a precursory pipeline to the XL further to the east carrying the same product. They weren’t talking like the pipeline peddlers in the area. From the get-go pipeline reps downplayed the contents, telling John it was just crude petroleum. But it wasn’t crude, not quite.

“[Trans Canada] told us that it was crude oil and then we learned about what the tar sands actually is. It’s bitumen, a mud peanut butter-consistency type of a product that they have to dilute with a lot of other chemicals that if it got into the water table it would be poisonous and virtually unable to clean up.”

Harter's main problem with the whole thing was where the engineers wanted a put the pipeline.

John's pasture is ideal for cows but a dubious place for a pipeline. The thought of a 36-inch, high-pressure pipeline, less than a ½ inch thick, at 1600+ psi,100 feet from where he waters his cows, understandably made him nervous. More alarming, the effects a bitumen spill would have on the land, so close to the water table, would mean the end of his cattle operation. A spill wouldn’t just be bad for his cattle outfit, but it could wreak havoc on the drinking water for his whole community. For John, it’s a matter of life and death.

“Safety probably was and still is the main point. Just a few miles north of my property is the start of the depth of the Ogallala high plains aquifer. [The pipeline] runs beneath that and the city of Colome’s water wells. You’re constantly hearing about oil spills that go on, so across my property, where the water table is right at or just below ground level, sometimes it is even above ground level, a spill would be devastating. To me that's intent to do the public harm and they’re doing it on purpose and… it's unlawful.”

He didn't want to sign, but felt he didn't have a choice. He tried to negotiate, but that didn't go well. Dakota Rural Action was able to hammer out a better easement with TransCanada. It included more money but not the safety concessions John wanted, like ¾-inch thick pipe on his pasture near the aquifer, an area not even considered “high consequence” to TransCanada’s engineers. Desperate for better protection, John even went so far as to contact the Natural Resource Conservation District, which determined that the property in question was indeed a wetland area, shifting it into a “high consequence” zone and worthy of thicker pipe.

That didn’t matter to TransCanada. They wanted his land for their pipeline, --done the cheapest way possible --and they weren't taking no for an answer. There would be no more concessions. They informed him if he wasn't going to give up his land willingly, they had the legal right to take it from him. That's when they started using the words, "eminent domain".

"I was reluctant to sign a survey easement with TransCanada but they were threatening eminent domain just to get the ability to go out and even survey across your property so, I did not have the ability, nor did any other property owners, of saying ‘No’ to these people."

A seventh degree black belt, one thing Harter doesn’t like to be is bullied, so he took his case to court. He lost…but the story doesn’t end there.

After the decision of condemnation came down, with a little support from other ranchers in the area, Harter looked for allies in an unlikely place.

“We don’t own the land, the land owns us.”

Faith Spotted Eagle, a grandmother and activist from the Yankton Sioux Reservation in South Dakota has been working with John Harter and other non-natives resurrected a partnership called the Cowboy Indian Alliance or the CIA. Back in the 1970’s the unlikely coupling began when the Lakota native community and Dakota ranchers joined forces under the CIA to halt uranium mining. The CIA has now been loosely reestablished by a new generation of farmers and ranchers, finding support with folks who are no strangers to the loss of land.

I talk to Faith at a “Draw the Line” event, organized by Spotted Eagle and local native groups as part of an international day of solidarity with Bill McKibben and others in the climate movement 350.org. Mixed in with tribal members from the nearby Rosebud and Pine Ridge Reservation are an assortment of folks; a middle aged couple from Valentine, Nebraska, a journalism student from Colorado and some new age types with sun hats and mom jeans. Harter and his wife Tracee round out the cast; representing the only landowners to stand defiant to TransCanada advances. Faith has found common ground with Harter and the other white ranchers who are feeling the effects of perpetual
encroachment by corporate interests.

"I think the most phenomenal thing is that we are aligned with the cowboys and the white ranchers. We would not be having this conversation with you. We wouldn’t be standing on the street with them if it hadn’t been for the KXL and what Harper is doing in Canada—and in a way—we have to thank Harper for uniting us because of the predator economics. I think that it affected our white neighbors in a way that has really shaken their sprits to realize how it felt when our land was taken and so we jokingly call them “the new Indians”.

We drive out to see the old family homestead. We totter down an uneven dirt path to see the pasture that the pipeline will dissect, a long line of tall cottonwood trees dot the way there. Faith and a group of Lakotas from the demonstration follow us caravan style to the site where the pipeline is planned. They offer to bless the land in question for protection in case the pipeline does goes through.

"It’s real hard to go out to their ranches where their land has been condemned." Faith says, “That is not only condemned land, it’s also treaty land, so it’s like it’s been taken twice."

No one lives here now, just an old trailer where John’s little brother used to live before he moved to town. Harter and his dad continue to run cattle there and lots of memories of the old days remain. I grew up here working on the ranch." Harter tells me, "The land is a part of me, it is history within me.” History is all Harter has right now as the future seems so inevitable. It is little consolation to him that his fate is a shared one.

The “Black Snake,” as the Lakotas have called it, is slithering its way up the spine of America; strangling all who stand in its way. It is just a matter of time before corporate interests come knocking at your door the way the oilmen did to the Harters. They will be polite at first, listen to your concerns; if you are firm they might even go away, but rest assured they will be back.

Here's Harter telling his story:

Last Man Standing from Rebecca Jane Rodriguez on Vimeo.

Thank you, Rebecca, for visiting South Dakota and telling our story.

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..and the problem with that is... what?

Pat Powers practices his Olympic logic triple jump to accuse the Oglala Sioux Tribe of (gasp!) exercising its First Amendment rights to educate and defend South Dakotans. Here are the leaps of logic the corporate-fascist spin machine uses to blow smoke about the Oglala Sioux Tribe and the Keystone XL pipeline:

  1. Powers notes that the Oglala Sioux Tribal Council paid Debra White Plume $90,400. According to the minutes of the council's February 5, 2013, meeting, the council issued White Plume a contract to "continue her efforts in protecting natural resources such as Crow Butte against infringement such as mining, promoting the involvement of tribal youth in documenting these activities by training them how to make documentary films and continue work on the women’s reproductive health projects."
  2. Powers then goes Googling and finds Debra White Plume opposes the Keystone XL pipeline.
  3. Powers then concludes that the Oglala Sioux Tribe is paying White Plume $90,400 to protest the pipeline (a conclusion for which he punctuates with a question mark, a classic rhetorical trick of putting an accusation into the public square without having to take full responsibility—"I was only asking a question!").
  4. From this conclusion, he leaps to accusing the Oglala Sioux Tribe of fiscal irresponsibility: "Because I would imagine $90,000 could do a lot of good elsewhere besides paying for a personal agenda."

White Plume's contract with the Oglala Sioux Tribe doesn't appear to be about Keystone XL. She has been involved with producing the documentaries Crying Earth Rise Upon the dangers of uranium mining, and Young Lakota, on abortion, politics, and youth activism on Pine Ridge. Both OST Resolution 13-24 clearly acknowledges both of those filmmaking projects, not Keystone XL. The text of the resolution could be interpreted to include anti-pipeline activities, but the items explicitly mentioned point to activities beyond the one link Powers produces in his lazy Googling and meme manufacturing.

Debra White Plume has been involved in activism against the Keystone XL pipeline. The Oglala Sioux Tribe is organizing opposition to Keystone XL. Even if last year's contract included funding for White Plume's anti-Keystone XL activism, the tribe is not throwing money away on what Powers dismisses as a mere personal agenda. In opposing Keystone XL, White Plume is fighting a political battle to protect the environment and the property rights of all South Dakotans. South Dakotans should thank her for standing up for their land rights more than Big Business Republican TransCanada capitulators like Pat Powers, who have consistently, since TransCanada's first invasion of our state, taken the side of this foreign corporation over local landowners.

And let's allow the extreme. Let's remove the question mark from Powers's accusation. Let's suppose OST Resolution 13-24 is lying, and the tribe is really spending every penny of that $90,400 to fight TransCanada's second pipeline across South Dakota. Why would it be wrong for one entity to spend money to oppose a project but not for another entity to spend money to support it? Powers has never complained about the millions TransCanada has spent on television ads to convince us that Keystone XL is all jobs and puppies and flowers.

In short, in the Powers-TransCanada world, the rich can do what they want, but the common man dare not speak up against our corporate overlords.

Related: Investing in vital public infrastructure would create more jobs than the Keystone XL pipeline. In opposing Keystone XL, the Oglala Sioux Tribe is pointing us to better economic priorities than the GOP.

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What's it going to take to get more South Dakotans to oppose TransCanada's Keystone XL pipeline? How about the fact that TransCanada supports gun control?

Amidst discussion of ordinances to manage potential temporary labor camps (the word gulag springs unbidden to my mind), the Butte County Commission learned Thursday that TransCanada does not plan to erect a man camp on their turf. If they build Keystone XL, they will encamp workers in Harding, Meade, and Tripp counties.

But Bud Anderson, independent contractor for TransCanada, also explained a detail about the man camps that ought to alarm the God-fearing, gun-loving folks of the greater Belle Fourche ruri-politan (Larry: Rura Penthe!) area:

Anderson also said a strict code of conduct is already in place for TransCanada’s workforce complexes, which prohibits theft, fighting, using or selling drugs, and firearms [Kaylee Tschetter, "TransCanada Won't Put a 'Man Camp' in Butte County," Black Hills Pioneer, 2013.12.12].

So TransCanada won't just take away your land; it will also take away your guns!

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When I'm wrong, I'll say so. Contrary to my November 8 report, TransCanada really, for truly, has given money to the Harding County FFA.

Jamie Brown, agriculture teacher and FFA advisor for the Harding County School District, sends me this photo of her (on our right) accepting a check for $500 from TransCanada Stekeholder Relations Representative Kirsten Torgerson (the taller gal, on the left) in early 2011.

Kirsten Torgerson (L), TransCanada Stakeholder Relations, presents a $500 donation to Harding County FFA advisor Jamie Brown, early 2011.

Kirsten Torgerson (L), TransCanada Stakeholder Relations, presents a $500 donation to Harding County FFA advisor Jamie Brown, early 2011.

Another local TransCanada rep, Bud Anderson, lined up this $500 donation in memory of longtime FFA booster and former county commissioner Gary Tennant.

TransCanadaHarding CountyFFA2011

The Harding County School District deposited this check on March 7, 2011.

I apologize the Jamie Brown, her FFA students, and the Harding County School District for creating even the hint of bad publicity for them.

I even apologize to TransCanada for questioning their largesse. We're still short a zero from the original report in Bllomberg, but TransCanada has indeed made a donation to the Harding County FFA.

And with all the dents and dings they're finding in the southern stretch of Keystone XL, TransCanada doesn't need any more bad publicity.

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TransCanada has been buying support for the Keystone XL pipeline by handing out $85,000 to towns along the pipeline route for civic projects. $5,000 for the Circle, Montana, 4-H chapter; $10,000 for a pool in Terry, Montana; $5,000 to the Harding County, South Dakota, FFA chapter...

...or have they? Harding County rancher Bret Clanton reports that his local FFA class invited him and a TransCanada rep to a discussion of Keystone XL, a topic the kids are researching and presenting on for a district competition. The FFA kids had the audacity to ask if TransCanada really had given them $5,000. Clanton says he checked with the finance office and the superintendent. Their conclusion: no such payment from TransCanada to the Harding County FFA has taken place.

The Bloomberg article advertising TransCanada's largesse came out August 23. Even in Harding County, the postman delivers and the bank cashes checks in less than eleven weeks.

Harding County School, Buffalo, South Dakota (photo by Bret Clanton)

Harding County School, Buffalo, South Dakota (photo by Bret Clanton)

Clanton sees fit to include this sunny picture of the new K-12 school Harding County has built. Clanton says he and his neighbors built this $11.7-million facility with bonds that the school district is sure it will be paid off by all the extra revenue that Keystone XL will bring to the community. Yeah, we've heard that one before from TransCanada. Whether they are counting dollars for counties or kids, TransCanada seems to have trouble with numbers.

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