On Monday, Pat Powers bemoaned the loss of his "texting freedom" as South Dakota inched toward common sense in enacting its ban on texting while driving.

Christopher Weber of Madison shows us what "texting freedom" really means:

One minute Christopher Weber was checking his smartphone, trying to navigate mobile banking options as he guided his pickup truck along Highway 270. The next, according to a criminal complaint, he was attempting CPR on a young mother who was out for a bicycle ride with her two young children when she was hit by Weber's truck in southwestern Minnesota.

...Andrea Boeve, 33, of Steen, was biking with her young daughters along the shoulder of Highway 270 on Monday morning when Weber's pickup drifted over the white line, the State Patrol said. The pickup struck and killed Boeve about a quarter-mile from her home. There were no skid marks, the complaint said.

Weber told the investigator, "yes it would be fair to say, it could be," when asked if he was looking at his phone and not the road, the complaint said ["Madison Man Charged in Death of Minnesota Cyclist," AP via Madison Daily Leader, 2014.07.02].

While you're at it, Pat, how about bleating about how the BAC and sobriety checkpoints infringe on your "drinking freedom."

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Pat Powers parrots another press release from Rep. Kristi Noem claiming that she led the House in passing the Reliable Home Heating Act. Given that the bill, sponsored by Senator John Thune and co-sponsored by Senator Tim Johnson, coasted through the Senate in May on unanimous consent and yesterday in the House by voice vote, saying Rep. Noem "led" passage is like saying I got the sun to rise by heading west.

The Reliable Home Heating Act isn't a terrible idea. The bill arose from last winter's propane shortage, when South Dakotans and others saw supply dwindle and prices jump due to, among other factors, propane exports growing faster than production and farmers burning up propane to dry a bigger and damper than usual corn crop. It acknowledges that when folks are freezing, we need to move fuel out faster.

Governors can already declare 30-day residential heating fuel emergencies, during which fuel trucks are exempted from certain federal highway safety regulations (specifically, 49 CFR 3 Parts 390–399). The Reliable Home Heating Act authorizes governors to extend those emergencies twice, for a total of 90 days. It also directs the Energy Information Administration to notify governors of possible home heating fuel shortages. In the latter, Rep. Noem, Senator Thune, and the rest of Congress are acknowledging that the market fails, that government has to monitor supplies of vital resources to ensure their proper distribution.

Alas, deregulation and monitoring do not do much to address the fundamental market failures that constrained domestic supply and jacked up prices. Letting bosses require truckers to drive longer without sleep and skipping inspections and maintenance aren't the safest ways to ensure that folks on the reservation don't freeze to death. Helping all South Dakotans afford a reliable supply of propane will take more than some feel-good temporary deregulation.

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Nathan Cole-Dai and his dad Jihong tie a red ribbon to a tree on Sixth Street in Brookings to raise public awareness of a Department of Transportation plan to remove trees and boulevards to widen the street. Photo by Phyllis Cole-Dai, April 2014.

Nathan Cole-Dai and his dad Jihong tie a red ribbon to a tree on Sixth Street in Brookings to raise public awareness of a Department of Transportation plan to remove trees and boulevards to widen the street. Photo by Phyllis Cole-Dai, April 2014.

Motorists cruising through Brookings on U.S. 14 will see dozens of stately trees along sylvan Sixth Street ribboned in red. The ribbons protest the state Department of Transportation's plan to widen Sixth Street from Main to Medary and remove as many as 39 nice big trees.

Arboreal advocate Phyllis Cole-Dai is appalled. In an opinion column published in last Saturday's Brookings Register (evidently print edition only), Cole-Dai rightly notes that the leafy appearance of Sixth Street through the historic district makes a verdant oasis along the highway, a welcome break from the open prairie and from the concrete businessplex at the I-29 gateway. She says that instead of widening Sixth Street, Brookings should look at lowering speed limits, re-routing traffic, and promoting bicycle and pedestrian travel to reduce accidents. She also rejects the asphalt-über-alles thinking of the engineers and says Brookings should plant more trees, not fewer.

I agree whole-heartedly. I love trees, but I also love boulevards. The DOT would remove the boulveards and run the outside lanes of Sixth Street right up to the sidewalk. That makes walking along the highway less pleasant and more dangerous. Boulevards also provide a necessary buffer for snow removal. Without boulevards, the city plows throw piles of hard, heavy snow right onto the sidewalks, piles that even some snowblowers can't cut through. As I've seen in other snowy urban settings, a boulevardless highway usually becomes impassable for pedestrians in winter.

Cole-Dai is gathering hundreds of signatures online in the run-up to the Department of Transportation's public meeting on its Sixth Street plan on April 28 (that's next Monday, 5:30 to 6:30 p.m., Brookings Government Center, in the council chamber). If you're in town, drop by that meeting and tell the DOT to keep Brookings beautiful: keep the trees and the boulevards.

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The statewide texting-while-driving ban passed by our Legislature this year is inspiring Mitchell to repeal its local ordinance on electronically distracted driving. The new state law makes texting while driving a secondary offense, meaning troopers can't pull you over for thumb-screen absorption, but they can enhance your ticket if they stop you for something else and you don't hide your iPhone before they come to your window. Mitchell currently makes texting while driving a primary offense, meaning that's the only reason city cops need to stop you and take your contribution to city government.

Councilman Phil Carlson voted with the council majority last Monday in favor of first reading of the repeal. Carlson prefers uniformity in traffic laws. He also thinks repealing the local ban will save the city some legal bills:

Carlson says that Mitchell should repeal its ban because drivers could fight their tickets in court, which could cost the city money.

"There could potentially be some legal issues with it. For instance, somebody gets ticketed under our ban instead of the state ban, there could be a legal fight over that that could go potentially all the way to the South Dakota Supreme Court," Carlson said [Leland Steva, "Mitchell City Council Takes First Step in Repealing City's Texting Ban," KELO-TV, 2014.04.12].

Drivers can fight lots of tickets in court. There is debate on whether they would win the argument that the state's texting-while-driving ban supersedes any local ban. But how many drivers will litigate? The Mitchell fine is $120. Even the boldest pro se defendant will burn up that much money just in time off from work to go to court well before getting to the complicated and costly state Supreme Court stage.

I'm not saying people should not litigate when they have genuine grievances against improper laws and official actions (or inactions). I'm saying the cost of accessing our justice system, even to get a simple answer about whether state law supersedes local law, is so high that the test case Carlson fears won't materialize from most rational drivers.

Carlson also fails to include in his cost-benefit calculations the public-safety benefits Mitchell gets by more strictly encouraging drivers to keep their eyes on the road. If the tougher local ordinance makes a thousand Mitchellians decide not to pick up the phone and text while crossing town to Cabela's, and if just one of them manages not to crumple someone else's car or run over a pedestrian, the city comes out ahead, even if someday the lawyer Mitchell PD pulls over sues his way out of his $120 ticket.

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Now the House is just picking on Betty Olson. Last month, the good Representative from Prairie City proposed House Bill 1114 to yank all the reflector poles out from alongside South Dakota's state highways. The Department of Transportation and Department of Public Safety said no, Betty, that's a really bad idea. House Transportation agreed 10–3.

Apparently worried that Rep. Olson may try taking matters into her own hand, the House has pending before it Senate Bill 103, which drops a bigger hammer on folks who swipe highway signs. Right now, stealing or messing with highway signs and markers is a Class 1 misdemeanor (see SDCL 31-28-23). SB 103 tacks on up to a $2,000 civil penalty, at the discretion of the court. This additional punishment has cleared the full Senate and the House Transportation committee; we'll see if the House acts today to raise the stakes on Rep. Olson or anyone else who tries to... raze the roadside stakes.

But remember, Betty and all you party people in the House: it's just a reflector....

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Gregg and Susan Spindler are not happy. Their daughter Meagan, a researcher for the U.S. Fish and Wildlife Service, was killed by a drunk and doped driver last July. Since then, the Spindlers have tried from their home in New York to persuade South Dakota to get tougher on impaired drivers. They've communicated with Governor Dennis Daugaard. They've proposed reforms like the National Transportation and Safety Board's proposal to lower blood-alcohol limits to 0.05 or less. They've presented facts and research to support stronger DUI enforcement.

Facts and research? We know how that goes in South Dakota government....

The proposals were reviewed by the governor’s staff, Department of Public Safety and Highway Patrol. On Nov. 15 we again met, but the only proposal was the Highway Patrol committed to doubling its enforcement actions to 400 in 2014. That means on an average day, only in one spot in the vast state of South Dakota there will be an active DUI enforcement action.

Finally, on Feb. 5, we were informed there would be no major changes in DUI laws. The governor felt changes would not have the “intended effect.”

His assessment totally contradicts the work of the NTSB. Ignoring the NTSB’s report is just as serious as if the CEO of Boeing or Airbus chose to ignore NTSB air safety recommendations.

The governor ignores the success of the European Union, Japan, Australia or Canada reducing deaths, injuries and DUI incidence. In a decade, EU deaths were cut by more than 50 percent, while U.S. death rates have flat-lined. This is not nanny-state socialism; rather, tough laws, deterrence, highly visible enforcement and good police work [Gregg and Susan Spindler, "South Dakota, Governor Disappoint on DUI Reform," Mitchell Daily Republic, 2014.02.14].

South Dakota evidently needs some kind of changes. We just miss the top ten for impaired-driving fatality rates, with 0.47 fatalities per 100 million vehicle miles traveled. Oklahoma is tenth at 0.48; North Dakota is fourth at 0.60; Montana is second at 0.73. Yet Governor Daugaard looks at a goo-gob of science on how to save lives on our highways and shrugs.

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House Judiciary hoghoused HB 1177, the distracted driving bill this week. Legislators kept the "We're not really Republicans!" part about trumping local control with state authority: HB 1177 now deems the Legislature "the exclusive regulator of all matters relating to distracted driving and use of electronic wireless communication devices in motor vehicles." (I want a t-shirt that says that: "Exclusive Regulator!")

But Speaker Gosch's bill has now morphed into a texting-while-driving ban. Writing, sending, or reading a text-based wireless communication a secondary offense. Under HB 1177, police couldn't pull you over for staring at your tiny screen instead of the road, but if you run over my child while typing "where r u," Smokey could write you an extra ticket.

HB 1177 still lets you fumble with your keypad as you try to type in or search for a phone number, because, you know, scrolling through your messy contact screen and punching in numbers is so much less distracting than typing other data.

The House said Wednesday that making texting a secondary offense is great. But Aberdeen city attorney Adam Altman isn't so sure HB 1177 can trump his town's more aggressive texting ban:

...Aberdeen’s texting ban is a primary offense, Altman said. That means a driver spotted texting can be pulled over for no other reason.

That’s why Aberdeen and other towns, including Sioux Falls, Rapid City, Huron, Spearfish, Sturgis, Elk Point and Dell Rapids, have all voiced opposition to the state texting proposal, Altman said. He said Aberdeen Police Chief Don Lanpher Jr. is also against the state bill.

“In general, we want the ability to make it a primary offense if the governing body so wishes,” Altman said of the communities opposed to the state measure.

The state text ban “not only says what the Legislature thinks, but tell us what we should think and how we should act,” he said.

Ultimately, Altman said, a judge might have to determine whether the state text ban would trump city bans already in place [Bob Mercer, "Texting Ban Passes House," Aberdeen American News, 2014.02.13].
The Legislature is creeping in the right direction, at least sending the message that people need to put down their toys and drive. When you're on the road, even the long road from the Capitol back home to constituents in Rapid City, Sioux Falls, and Aberdeen, keeping your eyes on the road is Job #1. Legislators should focus on enforcing that message and stop trying to take authority away from communities who feeling texting is an even greater danger than our legislators recognize.

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Ken Santema recounts what's shaping up to be another bad week for traditionalist conservative supporters of property rights and limited government in the South Dakota Legislature.

Rep. Stace Nelson (who has bought groceries for my family with his ad on this blog) introduced House Bill 1232 to prevent the state Department of Transportation from trumping local zoning decisions. Mr. Santema reports HB 1232 was in part a response to HB 1036, the Department of Transportation's proposal to annul local zoning actions taken to create zones primarily for billboards.

HB 1036 appears to target an April 2013 zoning decision in McCook County, where one Ralph Tuschen asked the county commission to rezone a small parcel next to I-90 from agricultural to commercial for sign placement. According to Santema's account of last week's House Transportation Committee hearing, the Department of Transportation frets that if counties let folks put up billboards willy-nilly, South Dakota will lose federal highway funds. Indeed, the Highway Beautification Act says that states that fail to maintain proper control of outdoor advertising can lose 10% of their federal highway funds.

Combine the loss of $38 million dollars (in FY 2014, the Legislature appropriated $380 million in federal funds for transportation) with the chance to beat up on Stace Nelson, and you get a bill that goes nowhere. The full House killed HB 1232 Monday, with only Nelson's band of merry but meager Mugwumps choosing local control over slavery to Washington (at least that's how they'd describe it). HB 1036 passed the House two weeks ago and awaits Senate action.

I do sympathize with Mr. Santema. I chafe at restrictions on signage and other design choices on private property, for Fifth and First Amendment reasons. If a property owner wants to clutter her yard with signs or old tractors or big cut-outs of farmers in bibbers swatting their wives' amply bloomered backsides, who are we to intrude with our aesthetic sensibilities? At the same time, we can't let Midco, Lamar, and Ted Hustead buy out every farmer and rancher from the McNenny Hatchery to Valley Springs and turn I-90 into a continuous walled strip of flashing advertisements. Finding the middle ground between free market, free expression, and scenic views here is tricky.

But the local-state-federal authority question offers no middle ground. If the federal government says states must follow certain rules to get highway funding, the state can't allow local governments to make decisions that imperil that funding. The state either allows counties to make their own zoning decisions on billboards, or the state exerts the control necessary to continue receiving federal funding. The state picks either small government or big government. The Legislature's vote on HB 1232 shows that, contrary to what the majority Republicans will be telling you on the campaign trail this year, they pick big government and federal money over small government and local property rights.

Related Reading: Scenic America says billboards degrade the natural environment, endanger health and safety, and hamper economic development. Ah ha! So that's why South Dakota has trouble competing in business recruitment!

Tangential Reading: A committee of Leadership Madison trainees wants more signs in Madison, to help visitors find our schools.

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