Last updated on 2020-02-14
Governor Kristi Noem’s factory feedlot zoning bill, Senate Bill 157, still awaits its first hearing before Senate State Affairs. That’s more attention than new applications for giant meat-milk-and-manure factories might get under Noem’s proposal to “streamline” the process for Big Ag to move into your county, stink up your neighborhood, pollute your water, and bust up your roads. Section 4 of SB 157 allows counties to rush confined animal feeding operations (CAFOs) to approval under “special permitted use” laws without “any public hearing or other requirements for review and approval of conditional uses.”
Noem’s SB 157 further erodes public participation by piling legalese onto the appeal process to narrow who can actually bring a challenge to a county CAFO zoning decision to court:
For the purposes of this chapter, a person aggrieved is any person directly interested in the outcome of and aggrieved by a decision or action or failure to act pursuant to this chapter who:
(1) Establishes that the person suffered an injury, an invasion of a legally protected interest that is both concrete and particularized, and actual or imminent, not conjectural or hypothetical;
(2) Shows that a causal connection exists between the person’s injury and the conduct of which the person complains. The causal connection is satisfied if the injury is fairly traceable to the challenged action, and not the result of the independent action of any third party not before the court;
(3) Shows it is likely, and not merely speculative, that the injury will be redressed by a favorable decision, and;
(4) Shows that the injury is unique or different from those injuries suffered by the public in general [SB 157, Section 1, as introduced 2020.02.05].
Instead of having standing simply as a citizen of a county concerned about the impact of a decision made by local officials you elected on the air you breathe, the water you drink, the roads you drive on, and the taxes you pay, you’ll have to spend more time arguing about your personal, legally protected, concrete and particularized interest than about the primary issue of the negative impact 10,000 hogs packed into a couple barns will have on quality of life in your county.
Section 2 knocks down the threshold for approving conditional use permits for massive manure projects to a simple majority of members present. Noem expands here 2015 House Bill 1201, with which then-legislator turned CAFO consultant G. Mark Mickelson secured permission for CAFO-hungry counties to ditch the two-thirds majority requirement for conditional use permits if they so inclined. Yankton County Commissioner Dan Klimisch says this new encroachment on local control by more cautious counties is irresponsible:
The night before the text of Noem’s bill was introduced, the Yankton County Commission passed a resolution supporting local control.
Dan Klimisch is a commissioner for that southeastern county and wrote the resolution. He says counties employ higher thresholds for voting on conditional use permits because it’s important to get the decision right.
“This bill would reduce that to a simple majority,” Klimisch says. “For example, a board is made up with five commissioners. If three commissioners would show up, and the other two were sick or gone, a simple majority—two out of the three—could pass a conditional use permit. Just a simple majority” [Lee Strubinger, “Noem’s County Zoning, Appeals Process Bill Is Introduced,” SDPB Radio, 2020.02.05].
Of course, when it comes to reversing a pro-CAFO decision, Noem wants supermajorities. Sections 9 and 10 remove the ability of boards of adjustment and county commissioners to reverse CAFO zoning approvals on a simple majority vote and requires a two-thirds vote of all members, not just members present.
Noem also irresponsibly speeds up the decision-making process surrounding these massive and environmentally hazardous projects. Section 7 limits the time opponents have to file appeals to fourteen days; Section 8 forces local boards of adjustment to decide appeals within sixty days. Section 12 tells the courts to reshuffle their schedule to move CAFO zoning appeals to the head of the queue. (Dakota Rural Action says the courts don’t cotton to being bossed around by the Governor and may be inclined to strike Section 12 if it passes.)
Governor Noem says her Senate Bill 157 shows that South Dakota is open for business. Well, so is the hooker down at the corner, who will do anything for a buck. It’s too bad South Dakota can’t also be open for discussion and more environmentally sustainable industries.
this a terrible bill that takes away what most people want,local control.this bill is being pushed by people who want huge dairies, hog factories,& feedlots for the benefit of corporate agriculture & and to hell with local communities! mark michelson is behind this monster .
Kristi, along with most farmers, is happy to turn the state over to industrial polluters. They are always going to subscribe to over production and resource destruction. It’s the only game they know.
Thank you for this article. I am writing my senator and representative to voice my opposition
In mid-1980s we suggested siting standards for state permitting, and individual permits. The state said it would be too hard to write siting standards and permits for individual sites in all sorts of different locations and environments across the state. The state countered with a general permit and local control. We didn’t like general permitting, but went along with general permits as long as the state respected real local control. Gradually over time, of course, the state reneged little by little on that “deal.” Well, now we see that the special interest corporate ag industry has a vice grip on the corrupt politicians at the top.
I haven’t followed this for decades, but it might violate MOUs the state has with EPA and federal laws.
When (if) South Dakota’s majority of voters get tired of being treated as though they don’t know what is good for them, then maybe they will throw the wingnuts out on their ears. I haven’t needed anyone to make decisions for me for slightly over 50 years.
I do not have a problem with CAFO’s, as there are many wide open spaces in this state that are suitable for these type of operations.
HOWEVER, I do not support slamming CAFO’s down peoples throats.
Just like any business, to get a CAFO going takes a lot of time, probably years. The same time consideration should be given to the approval process. People need to have time to learn about what is happening and how these CAFO’s impact their lives, land, environment, communities and local governmental units. Very few people stop to think about how CAFO’s impact townships, counties, school districts and cities.
So down, take the time to fully analysis and in the end it will turn out better.
Can the people of South dakota impeach or have her removed from office?
This bill is a perfect example of how to treat citizens with complete contempt. The SDGOP has been pretty clear about their feelings regarding the average South Dakotan. You folks deserve better.
Scott offers a reasonable position: if a county decides CAFOs are good investments, they can let them in (with proper consideration of environmental impacts on the rest of the state). If counties want to be extra cautious in permitting such large projects, the state should not force them into a process that feels too rushed for their needs and desires.
Forcing every county to fast-track CAFOs could be as destructive to our economic development efforts as the SDGOP’s effort to force its morality down everyone’s throats. All the folks who went out to Pierre to protest HB 1057 need to turn their cars around and head back to fight this destructive bill.
Jerome, interesting question!
For some reason, in South Dakota, we have limited recall to municipal elections. Kristi is safe until 2022.
Article 16 of the South Dakota Constitution covers impeachment. Article 16 Section 3 says the House can impeach for “drunkenness, crimes, corrupt conduct, or malfeasance or misdemeanor in office.”
Corrupt conduct… like hiring your daughter and son-in-law and giving them bigger raises than most other state employees?
Article 16 Section 5 actually suspends the impeached officer from the time the House votes to impeach until a Senate acquittal.
Otherwise, SD impeachment works much like impeachment in Congress: majority vote by House to impeach, trial in Senate, two-thirds vote necessary to convict, with chief justice as presiding officer if we’re impeaching the chief executive.
I see that being lightly stoned is not a problem.
Bob Newland for Governor!
Why no recall of state officials in South Dakota? That’s a good one for historians. There certainly was a well-documented push for the initiative and referendum from before statehood. Ballot measures were discussed by territorial legislators, but left out of the statehood Constitution because the unpopularity of popular democracy in Congress could further delay statehood. The plan was to get statehood, then add the initiative and referendum by amendment a few years down the road. In my reading I never came across the same push for the recall, but maybe a similar situation pertained. Also, the terms of state office back then were two years, so they may have figured it takes at least one year to eff up so bad to require recall, another six months to gather signatures, and you have another election in a few months anyway.
With four year terms now in place for state officials, it might be time to add the recall to the Constitution. After going through the Walker recall in Wisconsin, however, I should warn you it is not an easy thing to pull off. Walker faced recall mainly because people didn’t like one particular bill, Act 10, he ramrodded through. Since Wisconsin doesn’t have the referendum, the recall was the only way citizens had o register dissatisfaction in a way that mattered. We, of course, lost that recall. In Ohio, Governor Kasich passed a bill similar to Act 10. Ohioans had the referendum available, and that bill was killed by a vote of Ohioans. If your beef is over corruption and nepotism, the recall would be the best route, but if its mostly over legislation, just refer everything objectionable. I know that’s easy to say, but that’s the Constitutional recourse you have.
Agreeing with most comments posted. I’m quite certain this bill is a result of the turn down in Kristi’s county of another large 12,000 cow dairy that was proposed on land of one of her major donors. That being said, the requirements for CAFOs or any large agricultural or industrial project in South Dakota seem to only be based on construction and operation of facilities. The zoning requirements of counties I am aware of have nothing to account for economic impact to communities for utilities, roads, health, law enforcement, fire protection or even storm shelter protection on site.
ie. A dairy that would require an 800% increase in heavy truck traffic to township and county roads is not considered a zoning requirement to be addressed. A blind entrance onto a State Highway without any turning lanes for 12,000 semis a year is not to be a consideration for permits.
Maybe someone could explain where and to whom the net economic benefit happens of a large out of state investor owned dairy that sells its milk to a Canadian owned cooperative, employees young foreign born workers that send their paychecks back to their home country, that builds their own facilities with travelling crews and source their building materials out of the region or even in Europe. What is their incentive to pay a premium to any local producer for feed over the market? Lastly, look up the taxable value of one of these large dairies currently in operation. Because equipment for milking, feeding and manure handling are not taxable properties, only about 10% of actual construction cost will ever be added to the local tax rolls.