July 9, 2020

Bruce Ellison, Counsel for DRA,, (605) 348-1117
Rebecca Terk, DRA Senior Organizer,, (605) 697-5204 x260

Contesting Parties Refuse Participation in Unsafe Hearing

A contested case hearing on the Town of Buffalo’s fraudulent Water Appropriation Permit application, scheduled today in Pierre, was missing all six of its opposing parties due to a failure of the Water Management Board to provide adequate safeguards to protect against spread of COVID-19.

Last winter, the Town submitted an application for use of water that did not list its primary beneficiary and use—TC Energy for construction of its Keystone XL pipeline. This accusation of perjury by the contesting parties was clearly supported by the Town’s own records of a contract for TC Energy’s initial and primary use of the water, and easily traceable through publication of the Town Board minutes published in the newspaper of record, the Nation’s Center News.

However, in a June scheduling call and denial of subsequent motions by counsel for Dakota Rural Action as well as several of the individual intervenors, the Water Management Board refused to provide an option to appear remotely for those at high risk for COVID-19, to provide for adequate standards of safety in the hearing room as recommended by the CDC, or to delay the hearing until the pandemic subsides or those safety measures could be achieved.

In Pre-Hearing Officer Rodney Freeman’s denial of DRA Counsel Bruce Ellison’s motion for remote participation or continuance, Freeman referenced Governor Noem’s order of March 13th for all non-essential state employees to work remotely, as well as the Board’s having delayed this permit hearing previously as evidence of the State’s serious regard for the hazards of the virus.

However, Freeman gave no evidence that any of the hazards that precipitated these actions have lifted. In fact, the WMB did allow for at least one of its own board, Tim Bjork, to appear remotely due to health concerns of that member, but refused to consider health concerns of contesting parties.

Further, one pro se intervenor to the case, Elizabeth Lone Eagle, is a resident of the Cheyenne River Reservation, whose Tribal government has banned travel outside the reservation boundaries except under very specific circumstances, in order to protect its citizens from COVID-19. Travel is further restricted to areas deemed “hot spots” of substantial community spread of the virus—which includes Hughes County and the City of Pierre, where the hearing took place. Under these restrictions, and without WMB accommodations, the denial of Lone Eagle’s motion for continuance represents a denial of her due process rights to participate in the hearing.

Counsel for DRA Bruce Ellison remarked in his July 8th filing of Objection and Motion for Reconsideration  that, “DRA strenuously objects to the largely undefined and unnecessary urgency apparently felt by the Board ready to sacrifice of its own safety and the safety of the staff and parties and public, rather than wait until a COVID-19 safer time and establishing reasonable safety protocols so as to virtually eliminate risk of infection.”