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SD environmental board denies environmentalist group's motion on Keystone XL

The Syncrude oil sands plant near Fort McMurray, Alberta, Canada, Aug. 28, 2015. The Keystone XL pipeline, which will carry oil from Canadian oil sands fields to the Gulf of Mexico, has long been at the center of a struggle pitting environmentalists against advocates of energy independence and economic growth. Copyright 2017 New York Times

PIERRE, S.D. -- After hearing hours of testimony, a South Dakota environmental board has denied an activist group's motion to compel the release of information on TransCanada's proposed Keystone XL pipeline's potential impacts on state water resources.

Dakota Rural Action, a South Dakota-based agriculture and conservation group, argued to the state's Water Management Board on Wednesday, May 8, that TransCanada, state departments, and certain private individuals should be required to divulge documents and information relevant to public interest or potential litigation about the pipeline project. If built, the Keystone XL would carry crude oil from Canada through Montana, South Dakota and Nebraska and would connect with other pipelines.

Attorney for Dakota Rural Action Bruce Ellison said that he is trying to see if state officials have been pressured to grant TransCanada water permits, or if the project could do more harm than good to the state. He said this information is relevant to the Water Management Board's ultimate decision whether to grant TransCanada the permits, or to any future litigation challenging the permits.

"We’re requesting this information so we can best try to protect our groundwater and our surface water from being used in this fashion," Ellison said after the hearing. "If this board makes a decision that we feel is improper, we can go to court after that to challenge that if there’s basis to do that."

The Water Management Board operates under the state's Department of Environment and Natural Resources and will ultimately decide whether to grant permits to use public water for the pipeline construction.

Ellison argued that TransCanada, as well as the DENR Water Rights Program and private individuals who have agreed to use their land for crew camps, should be compelled to provide information to Dakota Rural Action. He said he has informally requested information already, but hasn't felt that the responses were adequate.

The board's hearing officer Rodney Freeman said Ellison's motion to compel "is not proper," but said Dakota Rural Action can work to obtain information from the parties "as set forth in the order" to be released in the coming days.

"Apparently they’re going to give us a different road map that they would prefer that we seek this information," Ellison said.

Attorneys for TransCanada, the DENR Water Rights Program and the individuals argued to the board that they are not legally required to provide all of the information that Dakota Rural Action is requesting. Assistant Attorney General Ann Mines Bailey said DENR Water Rights has provided Ellison with as many of his requests as the program had access to.

Though the board didn't grant Dakota Rural Action's motion, they did grant a similar motion made by activist Elizabeth Lone Eagle of Howes, S.D.

Asked why the board would grant Lone Eagle's motion but not his own, Ellison said, "I haven’t the faintest idea."

"I’m going to wait until I read the written order," he said.

Dakota Rural Action is a plaintiff on the American Civil Liberties Union's federal lawsuit against state officials, including Republican Gov. Kristi Noem and Attorney General Jason Ravnsborg, for the state's laws on rioting and "riot boosting." The ACLU said the laws violate First Amendment rights to free speech and protest.

Editor's note: This story has been clarified to more accurately describe the work of Dakota Rural Action.