Pipeline populism: Can Jeff Barth ride surge of landowner discontent to South Dakota PUC upset?

Oct. 27—HURON, S.D. — At the beginning of his stump speech, Chris Nelson tells the small audience that, if they take nothing else from what he's saying, they should remember this: "truth matters."

He's the guest speaker for the Beadle County Republican Women's monthly meeting, held just before noon at Ryan's Hangar restaurant in Huron on Oct. 20. For the occasion, he's wearing a dark suit, blue shirt and gray-and-white tie, looking down every so often at several pages of typed-up notes through rectangular glasses.

The yard sign behind him, in wide blue and red lettering on a white background, adds "experience" to the list of things that matter, too.

An onlooker with just some of the facts might wonder why Nelson, a former two-term secretary of state and the two-term incumbent chair of the Public Utilities Commission, is doing this at all. Why is he explaining electrical rate disputes and quasi-judicial responsibilities to a dozen Huron-area voters as they eat ham-and-cheese sandwiches and chunky tomato soup?

Why has he traveled to every corner of the state, taking any speaking opportunity that will have him, spending his Friday nights passing out "victory snacks" at high school football games?

The answer comes in the form of hundreds of miles of proposed carbon pipelines and Democratic challenger Jeff Barth, who is giving voters a simple pitch: "vote for me, and I won't be a rubber stamp," he says.

For Barth to pull off a stunning upset in the race for a six-year term on the South Dakota Public Utilities Commission, he will have to convince enough people that he, not Nelson, is the one telling the truth.


Carbon Pipeline Forum

at Dakotafest in Mitchell on Aug. 16 was an opportunity for attendees of the annual agricultural showcase to hear both sides of the Summit Carbon Solutions story.

Technically, it was not a campaign event for Jeff Barth. In practice, it had all the characteristics.

Dozens of landowners in the audience wore shirts with a red circle-backslash over the words "CO2 Carbon Pipeline," with more text below the symbol adding "No Easement, No Eminent Domain."

Jay Poindexter, a Hand County landowner and panelist representing the pipeline opposition, ended his closing statement with an emphatic "We stand with McPherson County." The reference to the rural county in the northern part of the state, which has been a hotbed for anti-pipeline sentiment, drew a stirring applause and scattered whoops from the crowd.

Before and after the forum, Barth was mulling around the crowd, shaking hands and doling out business cards.



which are backstopped by billions in federal tax credits, have been marketed as a way for South Dakota's ethanol industry to stay ahead of emission standards in some states.

Despite the best efforts of the companies involved to communicate optimism to the press in "working in partnership with landowners," the pipelines have become wildly unpopular in nearly 20 counties in the state, tracing a footprint beginning in the Interstate 29 corridor in the southeast and extending northwest past Aberdeen and into North Dakota. Opposing landowners mainly cite a worry over safety and the possible taking of private land under the power of eminent domain.

Though Barth says he's a "terrible politician," he's certainly had a lot of practice. During his four terms as a commissioner in Minnehaha County, he made bids for the South Dakota House and Senate and sought the Democratic nomination for the state's at-large congressional seat in 2012, losing in all three cases.

What Barth may lack in advertising dollars and name recognition, he has attempted to make up for in appearances in friendly arenas like that of Dakotafest, speaking with voters at forums for anti-pipeline organizing in Lincoln, Brown, Moody and several other counties affected by the proposed Summit Carbon and Navigator pipelines.

"[Barth's] word is getting out there more and more. We've had these CO2 meetings a couple of times, and he showed up just about every time showing his concern," said Clayton Rentschler, a Moody County resident whose parent's land sits in the pipeline path. "Whether or not he'd have enough to beat Chris [Nelson], I don't know, Chris has a lot of pull. He's the big dog in the fight. So Jeff does have a battle ahead of him."

But the question remains: if landowners keen on halting the pipeline process buy Barth's message, can he follow through? Ask Chris Nelson, and the answer is a vehement negative.

"What's the one big thing that you want in a judge? You want somebody that's impartial, that when you walk into their courtroom you know you're going to be treated fairly and impartially. Same thing is true with the PUC," Nelson said as part of his remarks to the Beadle County Republican Women. "Matter of fact, there's a set of laws and a [South Dakota] Supreme Court precedent that requires commissioners to be unbiased as they approach each case. And it says that, if you are not, then you have to recuse yourself from that case."

Though Nelson never mentions his opponent in his speech, the focus on impartiality is part of an argument that Barth, if elected, would likely be sued by Summit Carbon or Navigator and forced to recuse himself on any PUC hearings involving the pipelines. In the hypothetical, the sitting governor would appoint one of the constitutional officers to sit on the docket.

Nelson points specifically to precedent set in

Northwestern Bell Telephone v. Stofferahn,

a 1990 case in the South Dakota Supreme Court. The decision disqualified Ken Stofferahn, a commissioner on the PUC, from any cases regarding the telephone provider. He had, after all, described the company as "jackals in lambskins," among other expressions of opposition to proposals to deregulate the telephone industry.

Barth, who ironically worked for Northwestern Bell Telephone until 2002, knows the case well.

"I don't have a pecuniary interest in this. I have no land being seized by the pipeline people. I don't have an investment against them or with them. And I think I can argue that I am able to make a fair decision. And I believe that I actually can, but the way that they are treating this irritates me, and I'm not afraid to say I'm irritated," Barth said. "We'll see what happens once I'm elected and see what happens when they sue me. And I have no doubt that they will."

Chris Nelson spends only about five minutes of his half-hour speech to the Beadle County Republican Women in the Huron restaurant even indirectly referring to the carbon pipelines. Much of the rest covers the nuances behind electrical rate increases, grain buyer licensing and the other responsibilities of the commission.

"The basic role of the PUC is to keep a lid on price and a floor on service quality, basically what the role of competition would be in a market," Nelson told Forum News Service about the function of the often-overlooked commission, which regulates the utility monopolies that service the state.

The emphasis by Nelson on the scattered, less-than-sexy issues under the purview of the PUC appears to be a rebellion against the attempt by Jeff Barth to run a race focused on private companies taking private land.

Even so, constituent worries are constituent worries, and, after Nelson finishes, he stops for questions. One hand shoots up.

"There's a carbon dioxide project that's coming through South Dakota. I know a lot of Iowa farmers are fighting this deal," Rose Pownell, a member of the group, begins asking. "I just want to clarify, under existing state law. Private, for-profit companies, are they able to access eminent domain to build this project?"

Like many other question-and-answer periods that Nelson has held after his stump speech comes to a close — particularly in the counties, like Beadle, that sit within the shadow of the Summit Carbon or Navigator projects — the issue of carbon pipelines and eminent domain has come up.

This time, like most every other time, Nelson stresses that the PUC is not the one doling out the power of eminent domain; the commission is simply in charge of the permitting process, evaluating each pipeline independently on whether, in general, "the health, safety, welfare and economy of that area can be maintained" if the pipeline is built.

Barth thinks the proposed pipelines fail on these metrics; Nelson will not take a public stance before the evidentiary hearings. (A date for the hearings has not been set.)

The eminent domain decision, Nelson explains, is made in the court system in the event that a permit is given out by the PUC. The courts, in turn, interpret the law as set by the legislature. In other words, Barth, whose yard signs read "No Eminent Domain for Private Gain," might be running for the wrong office.

Barth sees things differently.

"It's a flat lie. [Nelson] is lying when he says that," Barth said. "Because if he doesn't approve the pipeline, they do not have eminent domain. If he approves, they do. So he is using legalese or some other thing to hide from the truth."

Still, for Barth, there is not a messaging problem as much as there is a math problem. Registration-wise, Barth and the Democrats have a statewide deficit of

nearly 150,000 voters,

meaning he'll have to peel off tens of thousands of Republicans and Independents to pull off the upset.

The distance between the two candidates may be even larger on the name recognition front; while Minnehaha voters may know Barth from serving four terms as the only Democrat on the county commission, Nelson's name has been in the statewide political ether for the better part of two decades. Nelson outraising and outspending Barth by double in the most recent reporting period can't be helping, either.

Even those who have paid attention to the issue of the carbon pipelines in the state may not know of Barth.

"I found out about him two days ago," Pownell told Forum News Service. "But I don't think enough people are aware of what's going on and what [Barth and Nelson's] stances are on the issues."

But, if you can draw anything from the topic of eminent domain and carbon pipelines being broached in a small, explicitly Republican crowd, it's that Barth's message has a crop of people across the political spectrum willing to listen. Those people, Barth thinks, are not only within the pipeline counties in the eastern part of the state, but also in

Gregory County,

Meade County

and anywhere else that anger over unfair eminent domain usage may exist.

"I just think that Commissioner Nelson is not standing up for South Dakota landowners and the state of South Dakota as far as I'm concerned," Joy Hohn, a registered Republican in Minnehaha County planning to vote for Barth, told Forum News Service. "This race, I'm planning to vote for the person and what they're standing for, whether they're Democrat or Republican."

Jason Harward is a

Report for America

corps reporter who writes about state politics in South Dakota. Contact him at