GOVERNOR VETOES EFFORT TO RESTRICT CONSTITUTIONAL AMENDMENT PROCESS WITH GEOGRAPHIC RULE

PIERRE, S.D. (Makenzie Huber / South Dakota Searchlight) – South Dakota Republican Gov. Larry Rhoden issued his second veto of the legislative session, rejecting a bill that would place new restrictions on citizen-initiated constitutional amendments.

He also signed a large group of other election-related bills into law Tuesday, including a bill requiring labels on political deepfakes within 90 days of an election, and legislation limiting full-time travelers such as RVers to federal-only ballots when they vote in South Dakota elections.

The vetoed legislation, House Bill 1169, would require constitutional amendment petitions to receive signatures from registered voters in each of the 35 state Senate districts. Groups would need signatures equal to 5% of the total votes cast for governor in each district during the last general election.

That would be in addition to current requirements that petitions have a total number of signatures equal to at least 10% of the votes cast statewide for governor in the last general election. Current law says those signatures can be from anywhere in the state.

Voter advocacy groups raised alarms last week, urging the governor to veto the bill and pledging to petition it to the ballot if he signed it. The Voter Defense Association of South Dakota praised the governor’s veto in a press release Tuesday and urged lawmakers to sustain it.

“House Bill 1169 was a deeply flawed bill that would have severely and unjustly restricted the initiated amendment process in South Dakota,” the release said.

In a letter to lawmakers, Rhoden said the 35-district requirement risks creating a system where “dark money out-of-state groups” with more financial resources are the only entities that could effectively undertake a statewide petition drive.

He added that the bill’s requirements might not be upheld in state or federal court. A federal court could determine the bill imposes an illegally severe burden on political speech, he wrote, and he questioned whether the baseline level of petition signatures required in the state constitution can be modified by a statute.

“I swore an oath to support both the South Dakota and the United States Constitutions – and I am concerned about this bill in both regards,” Rhoden wrote.

Lawmakers could override Rhoden’s action with a two-thirds vote of each chamber when they gather on Monday to consider his vetoes. The bill had more than two-thirds support from the House when it passed, but had less than two-thirds support in the Senate.

Rhoden vetoed another bill earlier this session, which would have offered more child care tuition assistance to child care workers. The Legislature considered that veto earlier this month and failed to override it.

Election bills signed

Gov. Larry Rhoden approved 20 other election-related bills Tuesday:

SB 68 requires an individual to be a citizen of the United States before being eligible to vote and provides a penalty.

SB 73 requires that an individual registering as a voter when applying for a driver license be a resident of the state for the purposes of voting.

SB 75 requires an indication of U.S. citizenship status on a motor vehicle operator’s license or permit, and on a nondriver identification card (valid identification is required to vote).

SB 89 repeals the requirement that judicial officers be listed on a separate nonpolitical ballot.

SB 91 revises the requirements, including minimum font sizes, for a petition to initiate a measure or constitutional amendment or to refer a law.

SB 92 requires that the director of the Legislative Research Council and the secretary of state review an initiated measure and determine if the measure embraces more than one subject.

SB 106 requires an individual be registered as a voter of the state before being eligible to be a petition sponsor for a ballot measure.

SB 164 prohibits the use of a deepfake to influence an election and provides a penalty.

SB 173 revises the process by which a recount may be requested.

SB 185 amends provisions pertaining to the process for verifying voter qualifications.

HB 1062 amends provisions pertaining to the maintenance and publication of the statewide voter registration file.

HB 1066 revises residency requirements for voter registration, and says registrants must have spent 30 consecutive days at a single physical location in the state.

HB 1126 modifies provisions pertaining to the compensation of a recount board.

HB 1127 requires that notice of a county’s canvass, post-election audit, and testing of automatic tabulating equipment be posted to the secretary of state’s website.

HB 1130 provides permissible dates in June and November for municipal and school district elections.

HB 1164 revises the process for nominating candidates for lieutenant governor, allowing candidates for governor, rather than state political conventions, to choose running mates.

HB 1184 moves the deadline for filing a petition to initiate a measure or constitutional amendment from May to February, shortening the window by three months.

HB 1208 limits a voter using the address of a mail forwarding service or post office box — such as a full-time traveling RVer — to a federal-only ballot.

HB 1256 requires the inclusion of certain information on a candidate’s nominating petition or on a ballot question petition.

HB 1264 requires the disclosure of an outstanding loan balance on a campaign finance disclosure report.

 

PRISON OPPONENTS TELL SOUTH DAKOTA SUPREME COURT THE STATE NEEDS COUNTY PERMISSION TO BUILD

SPEARFISH, S.D. (John Hult / South Dakota Searchlight) – If the state wants to build a prison on land zoned for agriculture, it should get the county’s permission first.

Or it shouldn’t.

A 45-minute session of oral arguments Tuesday at Black Hills State University in Spearfish laid the groundwork for the South Dakota Supreme Court to decide, for the first time, whether the state should bow to local zoning officials under certain circumstances. The justices will rule at a later date.

The high court’s call on the matter has implications for a Lincoln County prison project that’s proven controversial — and is now paused, thanks to its lukewarm reception during the 2025 legislative session.

But there are wider implications for the state as a whole.

If the justices rule in favor of the proposed prison’s neighbors and force the state to seek permission to build, the state argues, locals could brow-beat planning boards into saying no to nearly any building project that’s necessary for the general public but unpopular with its neighbors.

State officials, Assistant Attorney General Grant Flynn argued, “would not be able to perform their essential governmental functions” if they had to follow county ordinances.

Prison opponents: State can’t act unilaterally

The case is an appeal from a group called Neighbors Opposed to Prison Expansion, or NOPE. Lincoln County Judge Jennifer Mammenga ruled against the group late last year, saying the state is immune from lawsuits over county zoning.

NOPE sued in 2023, shortly after the state Department of Corrections (DOC) announced its intent to build a 1,500-bed prison on a farm site 14 miles south of Sioux Falls.

The neighbors argued that such a massive project would fundamentally alter the character of land Lincoln County had envisioned as agricultural in its long-term zoning plan.

If the state wants to build something industrial in an area zoned for farming, they argued, it ought to ask for a conditional use permit, like anyone else.

A.J. Swanson, the lawyer for a group of prison opponents, told the justices there’s no solid reason to strip a county of its right to plan its land use.

The high court has never waded directly into the question of state vs. county supremacy in zoning matters. There’s another complication in this case, Justice Mark Salter pointed out. Lincoln County didn’t sue the state over the DOC’s failure to seek its approval. The neighbors did. The county eventually filed a “friend of the court” brief that sided with the neighbors, but it’s not leading the charge.

Salter asked Swanson if there’s a place in state law or a Supreme Court decision to suggest that neighbors can file a private lawsuit to enforce public zoning laws.

“I’m not aware of a prior case in South Dakota that would have involved a comparable set of circumstances,” Swanson replied. “I have found that, generally speaking, county boards are pretty vigilant about enforcing their comprehensive plans and zoning ordinances. And I think in this case, Lincoln County was the clear exception.”

State: Neighbors can’t ask for a hearing on behalf of county

Flynn told the justices that the neighbors “do not qualify” for the kind of legal remedy they’re after. In her ruling, Judge Mammenga referred to the “general rule” of sovereign immunity, which essentially shields the state from most legal actions that might stem from the carrying out of its public responsibilities.

Housing prisoners is part of a state’s essential functions, Flynn said.

Justices Salter and Patricia DeVaney both pointed out, however, that the neighbors didn’t ask Judge Mammenga to stop the prison. They only asked for a hearing before the county.

“I understand your response to the merits of that, but can they seek that?” DeVaney said.

Flynn didn’t disagree with the justices’ characterization of the case. But he said there’s no state law or case law that gives private citizens a right to be heard in a situation where the state is acting to carry out an essential function.

Moreover, Flynn said, the motivations of the opponents are clear. The neighbors, he said, “simply do not want this prison in their backyard, and they’re attempting to use the county zoning laws to prevent that from happening.”

NOPE group: State wants to ‘trample’ due process

Swanson seized upon the due process issue in his rebuttal.

For decades, Swanson said, the state has been a good neighbor in the rural section of Lincoln County. The state obtained the property a few years before the county adopted an ordinance requiring landowners to ask for a conditional use permit to build something that doesn’t fit.

Until its transfer to the DOC, the ground had been leased for farming by the state’s School and Public Lands Office, with profits from the operation used to help fund education.

The decision to bring the “catastrophic change” of a large prison to the neighborhood, Swanson said, shouldn’t be made with the stroke of a pen by the DOC secretary.

“That these due process interests mean nothing to the state, quite frankly, is startling,” Swanson said. “I can’t believe they can so easily trample those interests. I find that incomprehensible.”

Prison site’s uncertain future

The arguments over the prison site came one week before the first meeting of a task force dubbed “Project Prison Reset” by Gov. Larry Rhoden. The governor had hoped to convince lawmakers to approve the final round of funding for prison construction during the 2025 legislative session, but was unable to convince enough of them to sign off on the $825 million project.

As envisioned by the state’s executive branch, the prison would largely replace the oldest portions of the South Dakota State Penitentiary in Sioux Falls, which was built in 1881.

In 2024, lawmakers allocated $62 million to plan for a new men’s prison at the Lincoln County site. All but $7.9 million of that money has been spent to design and prepare for a 1,500-bed prison there.

The task force group, set to meet April 2 in Sioux Falls, is supposed to address the concerns that brought about the demise of that hoped-for facility: cost, size, necessity and location.

 

 BIRD FLU IN SOUTH DAKOTA: MILLIONS OF BIRDS DEAD, WORRY SHIFTS TO HUMANSd

SOUTH DAKOTA (Barrt Pfankuch / South Dakota News Watch) – As bird flu ravages poultry farms across the country – including in South Dakota – fears are growing that the highly contagious avian influenza virus could mutate and begin to spread widely among the world’s human population.

The virus already has caused devastating effects in the state, which has seen the second-highest number of outbreaks in commercial poultry flocks in the nation.

The 114 commercial outbreaks in South Dakota, along with another 26 backyard flock infections, have led to the death or intentional killing of more than 6 million turkeys, chickens and other birds, according to the U.S. Department of Agriculture.

Many of the outbreaks in the state, the latest coming in January, have been at turkey farms operated by Hutterite colonies in the eastern half of the state, including at the Oaklane Hutterite Colony near Bridgewater.

But in 2024, the virus was detected in a flock of farm-raised pheasants in South Dakota, leading to the killing of about 30,000 of the birds that draw hunters from around the world each fall. As in other states, the virus has also spread to mammals in the state, causing the death of a handful of cattle and more than a dozen domestic cats.

So far, no human cases have been reported in South Dakota. Nationally, however, about 70 people have been sickened by the virus, mostly farm workers or veterinarians who were exposed to infected birds or cattle. In January, an elderly resident of Louisiana with underlying medical conditions became the first person to die of bird flu in the U.S. after being exposed to sick birds.

166 million birds destroyed

The current outbreak of Highly Pathogenic Avian Influenza, or H5N1 virus, began in the U.S. in February 2022. Since then, the virus has been detected in all 50 states, causing more than 1,600 individual outbreaks in commercial and backyard poultry flocks and leading to the death or euthanasia of 166 million chickens, turkeys and other birds.

While the most tangible outcome of bird flu for consumers has been the rising cost of eggs and chicken breasts, a different, more ominous concern is rising among scientists and public health officials who closely monitor bird flu and study ways to prevent its spread.

There has been no known human-to-human spread of bird flu so far in the U.S, according to the U.S. Centers for Disease Control and Prevention. And yet, numerous scientists are becoming concerned that bird flu could become the next pandemic and potentially cause devastating consequences to human populations across the world.

“We’re afraid this virus could cause a human pandemic because humans have very little immunity against this particular avian flu virus,” Scott Hensley, a leading bird flu researcher at the University of Pennsylvania, said in a January video presentation. “The problem is that flu viruses acquire mutations all the time. And we know that the virus is only one or two mutations away from being able to cause severe disease in humans.”

The current risk to humans, especially those outside the agriculture industry, remains “very low,” according to the CDC. So far, the bird flu virus has not been found to bind well to human cells or take hold in the human respiratory system.

But the virus has already shown a ready ability to mutate, not unlike how the Influenza A and B and COVID-19 viruses show slight mutations each year. Bird flu can be spread through direct contact, by breathing airborne particles or through shared water sources.

The spread of infection from wild migrating birds to captive poultry flocks, and the subsequent mutations from birds to bovines and now cats is a cause for alarm, said Todd Tetrow, the director of veterinary services at Dakota Provisions, a large turkey processing company in Huron.

“It can jump species, so anytime there’s virus out there, and other species can be exposed, it can sure jump,” Tetrow told News Watch. “Anytime it jumps into a new species, there’s more concern and thoughts that this thing is getting to where it’s scary for humans.”

Turkey farms hit hard by bird flu

South Dakota has been a hotbed for bird flu infections for two reasons.

The state is along the flyway for many species of migratory birds, which are the known carriers of the virus.

Also, South Dakota is a major producer of turkeys that are mainly raised indoors within concentrated animal feeding operations. The state also has smaller chicken and pheasant breeding operations that can be susceptible to bird flu outbreaks.

The 41 Hutterite turkey producers who make up the farmer-owned Dakota Provisions cooperative have suffered so many bird flu outbreaks in the past three years that the group has purchased its own industrial firefighting foam system. Firefighting foam, which eliminates oxygen when dispensed, is the current preferred method of quickly and efficiently “depopulating” a flock of infected birds.

The Oaklane Hutterite Colony west of Sioux Falls has endured two bird flu outbreaks in the past two years, which in total required the killing of about 21,000 adult turkeys and poults, said colony director John Wipf.

On both occasions, Wipf said, he noticed that water consumption among his turkeys had fallen, and some birds showed signs of malaise and a few died. Both times, birds were sent to South Dakota State University for confirmation that bird flu was the cause.

When any bird is infected, all birds from that barn must be destroyed, he said. The USDA sends in experts to monitor the killing, which was done by a local firefighting agency.

Watching his flocks be depopulated is heart wrenching, he said.

“The smallest ones really wanted to live and they tried to climb on top of the foam, but it wouldn’t hold them up,” he said.

Dead birds are then composted in a landfill onsite, and the barns must then be sanitized and approved by the USDA before reopening.

The value of the lost birds was likely about $300,000, though the federal government indemnifies farms for bird flu and pays farmers an adjusted amount to cover most losses.

Wipf said he takes precautions to prevent further infection, such as requiring staff to wear boots and other protective clothing, and by keeping things clean and disinfected.

He isn’t sure how his flocks became infected, but he believes migratory birds are the likely culprits.

“It’s a bad luck situation for sure because it’s very difficult to diagnose where it came from and how it got in here,” Wipf said. “We have no clue, but I think part of it was bird migration, geese and ducks that fly over and poop on the barn and our materials. Or it could have been brought in by wild birds that get into the barns.”

Pheasant farmers lose major flock

The bird flu outbreak that struck the Gisi Pheasant Farm near Ipswich, 30 miles west of Aberdeen, began with a single bird testing positive in December 2023, according to farm co-owner Loretta Omland. Ultimately, three positive tests for bird flu were confirmed, she said.

To the family members that run the farm, the flu cases appeared isolated to one of six barns at their breeding operation at nearby Craven. No other birds appeared to be sick or dying in those barns or at other locations in Wessington Springs and Miller, Omland said.

Suddenly, the family found itself embroiled in a difficult, emotionally draining effort to save their other breeders and hens. Gisi Farms in 2022 provided about 480,000 ringneck pheasants to a large number of customers that mostly include South Dakota hunting resorts and preserves.

In the days following the positive tests, they ran up against USDA officials who were unwilling to make exceptions to rules stating that entire flocks of birds must be destroyed quickly, even if only one or a few birds test positive for bird flu.

“We told them, ‘We don’t care about indemnification,’ because those were our birds,” Omland told News Watch. “I had to call all these customers and tell them that we can’t get your birds, and that affects the restaurants, the grocery stores, the preserves and all these people in the hospitality and hunting industries.”

The family sought the help of the South Dakota state veterinarian and the state congressional delegation to ask for an exception that would allow them to mitigate the loss of birds and investment.

“The USDA came back and said that if we didn’t kill those birds, we’d be in jeopardy of losing indemnification and that South Dakota could be in violation of international trade laws,” Omland said.

The family ultimately relented and agreed to the killing of about 30,000 pheasants, later receiving roughly $1 million in indemnification that did not cover their full losses and cleanup costs, Omland said.

“It was horrible, just horrible because those were all healthy birds,” she said.

Since then, Gisi Farms has enhanced its biosecurity efforts to prevent further outbreaks, Omland said.

“We test and test and test and clean and clean and clean, but you can only get so far in what you do,” she said. “You do everything you can, but at the end of the day, you just say more prayers.”

Research and prevention steps underway

News is breaking almost weekly about the impacts of bird flu and the efforts of the scientific community to slow or stop its spread and to reduce its ability to infect humans.

In January, a new strain of bird flu called H5N9 was determined to be the source of infection of a commercial duck farm in California. While that new strain was not seen as more infectious or dangerous to birds or humans, scientists said it shows how quickly the virus is mutating.

In mid-March, thousands of geese were found dead in and along Lake Byron in Beadle County and state game officials said they believe bird flu was the cause of the mass die-off.

Some experts worry that if separate viruses intermingle – such as a person who has influenza A is then exposed to H5N1 – that a cross-virus mutation could occur and open the door to greater human infections or birth of a virus that can spread among humans.

In December, the USDA launched its National Milk Testing Strategy, which among other things tests milk held in silos for H5N1 prior to distribution to humans. South Dakota is one of 45 states to sign up for silo testing.

The CDC, USDA and Food and Drug Administration are all working to monitor bird flu outbreaks and spread. The USDA has created an easy-to-navigate website where bird flu data is tracked by state and the CDC has a bird flu information page.

The farm-level response to bird flu in South Dakota has centered around close monitoring of bird health and behavior and through testing of poultry flocks prior to slaughter, Tetrow said.

Some farmers in South Dakota and other states have used cannons or fireworks to scare away migratory birds or have tried to eliminate ponds where migratory birds congregate near their barns.

Tetrow said he hopes the agricultural, governmental and scientific communities can work together to take more steps to evaluate the causes and effects of bird flu and take preventative methods to slow its spread.

“I’d like to see us reevaluate what we’re going to see if there are more approaches and tools we can add to our toolbox to fight this,” he said.

The USDA in February gave conditional approval to a bird flu vaccine for poultry, made by the firm Zoetis. But to date, the U.S. has not followed the path of other countries such as China, Mexico and some European countries where use of poultry vaccines is widespread.

Tetrow, who spent more than a decade working in the South Dakota state veterinarian’s office, said he supports the concept of vaccinating poultry in order to protect both bird and human populations.

“It won’t prevent infection, but it decreases mortality and the amount of virus that is shed,” he said. “If we can find a vaccine that can do those things, I think we need to figure out how to employ that.”

Hensley, the University of Pennsylvania biologist, said a major goal of ongoing research is to develop a human vaccine. “We want to be able to respond if this virus acquires the mutations that are needed to effectively transmit from human to human,” he said.