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 An ongoing series sponsored by the Native American Netroots team focusing on the current issues faced by American Indian Tribes and current solutions to those issues.

When a natural disaster occurs that is beyond a state's ability to cope, federal law provides that the governor may issue a declaration of disaster to that effect, which triggers the process of allowing federal funds and other aid to flow into the affected state.  This process speeds recovery, and frequently saves lives.

A number of South Dakota reservations are currently in just such a state of crisis as a result of two solid months of unusually extreme winter weather.  People's lives are at risk.

So why has the Rounds administration failed to take the necessary steps to secure such federal funding for the reservations?

The rez project group has been doing some digging.  We don't like what we've found.

First, what the Rounds administration has allegedly said and done thus far:

On January 29, the South Dakota Department of Public Safety (DPS) issued a press release regarding its assessment of the then-most-recent winter storm.  Buried in the middle of the press release was this quote:

"On Thursday, Jan. 21, Governor Rounds signed an executive order declaring a state of emergency because of the storm. That order authorized the state Department of Public Safety to coordinate a storm response effort to support city, county and tribal efforts to deal with the impacts of the storm. "

You can find the press release on the S.D. DPS Web site only if you know to navigate to the "Newsroom" link, in fine print at the very bottom of the main page.  I found it by trial and error, simply because as a freelance writer, researcher, and analyst, I know where to look.  The average person wouldn't have any reason to look there, because usually, such announcements are trumpeted on the main page.  Also note:  This was not on the governor's Web site; it was on the site of a state agency.  I have found no record of the announcement, nor of any actual executive order, on the governor's Web site (or anywhere else, for that matter).

Second, background on the disaster declaration process:

When a major disaster occurs anywhere in the U.S. - earthquake, hurricane, flood, fire, blizzard, ice storm, you name it - federal law provides a means for the affected state(s) to obtain federal aid, including funding, expertise, and other resources.  The initial process is two-fold:  First, the state's governor must issue a declaration of disaster; the declaration triggers an on-ground assessment by FEMA, to determine whether the state is indeed eligible for federal aid, and if so, what kind and how much.  You can read more about it here and here.

Now, here's where it gets dicey:

Federal guidelines distinguish between a presidential declaration of a state of emergency and a presidential disaster declaration.  However, I'm advised by our group's resident expert on disaster planning and FEMA, fellow Kossack Deep Harm, that federal guidelines don't distinguish between the label applied to a a governor's declaration:  That is, a governor can label his/her declaration either a "declaration of disaster" or a "state of emergency," and it will have identical effect in terms of triggering the FEMA review process.

However . . . the same is not true under South Dakota state law.  Under S.D.C.L. 33-15-1, there's a major difference between "disaster" and "emergency."  I've bolded the relevant text:

(2) "Disaster," any natural, nuclear, man-made, war- related, or other catastrophe producing phenomena in any part of the state which, in the determination of the Governor, causes damage of sufficient severity and magnitude to warrant all state assistance that is reasonably available, above and beyond emergency resource commitments;

(3) "Emergency," any natural, nuclear, man-made, war-related, or other catastrophe producing phenomena in any part of the state which in the determination of the Governor requires the commitment of less than all available state resources to supplement local efforts of political subdivisions of the state to save lives and to protect property, public health, and safety or to avert or lessen the threat of a disaster[.]"

Got that?  Under S.D. state law, a declaration of disaster triggers the use of "all state assistance that is reasonably available," even if it exceeds current budgets for emergency services.  A declaration of emergency, on the other hand, only triggers "less that all available state resources."

Money.  

That's what this is about:  The state of South Dakota, under the auspices of the Rounds administration, does not want to spend any extra state money to get federal disaster assistance for the reservations.  

And now that private aid is pouring in, thanks in large part to the efforts of Kossacks over the last two weeks, the governor's office has the perfect excuse not to move forward with the federal disaster process.  Inadvertently, we may just have given him exactly what he wanted:  Time to wait out the weather and public sentiment.  (Not that we had a choice in the matter; lives were at risk.  But the fact that some folks are now in a better position thanks to private efforts should in no way excuse the state of South Dakota from its obligations to its citizens.)

Another member of our team, Kossack no way lack of brain, has been sending wonderfully detailed e-mails to public officials at all levels - and received  tjhe following response from S.D. Lt. Gov. Dennis Daugaard:

Thanks for your email, and for your concern.  I know Governor Rounds
has been working to assist the reservations with the problems caused
by the severe weather, and we both would welcome FEMA assistance.  Our
ability to declare a disaster has been limited recently by the
requirement that a weather event must now be a "record" event, and
that resultant costs exceed $1 million.

Let's dissect this.  

First, he says that they "would welcome FEMA assistance."  I'm sure that's true, but as my mother used to say, "The Lord helps them who help themselves," and FEMA assistance won't appear magically without the governor having to do anything.  They shouldn't be "welcoming" it; they should be leaving no stone unturned in affirmatively seeking it.

Second, his reference to requirements that allegedly "limit" their ability to seek disaster aid.  If any experts out there have information to the contrary, I'll update, but based on my own research, I'd say this is unmitigated weaselry.  My understanding is that the alleged "$1 million+" requirement has nothing to do with FEMA, as he seems to imply; rather, it is a requirement that appears in the "Definitions" section of S.D.C.L. 33-15-1.  I have yet to find any requirement regarding classifying a disaster as a so-called "'record' event."  Regardless, anyone who has ever done valuations in the governmental sector knows that there are many ways to skin the proverbial cat - in this case, reaching a valuation of greater than $1 million in estimated damage, and comporting with a definition of "record event."

Finally, let me add some crucial additional points made by Deep Harm:

  1.  the state website does not offer a copy of the governor's

declaration, nor can one be found elsewhere.  All that is publicly
available at this time is a press release that paraphrases the
declaration.

  1.  the state declaration of emergency authorizes emergency procedures

and expenditures across state agencies; therefore, only the state's
chief executive, the governor (or whoever may be standing in for him
under continuity of operations procedure) can make that authorization.

  1.  it is important to implementation of emergency declarations that

workers and the public have ready access to the signed declaration
because (a)  someone who lacks authority could disseminate one -
perhaps to create confusion in connection with a terrorist attack, and
(b) the public and government workers may question an order that lacks
the expected official seal and signature, and refuse to comply with
it.

  1.  individuals and businesses in disaster areas deserve to know if,

in planning for recovery, they might be able to qualify for federal
aid. Leaving people in the dark about the future undermines the trust
needed for a good recovery.

  1.  secrecy in the state's emergency declaration process leaves open

the door to abuses of power; for example, ignoring the needs of
minorities and other groups, who will find it hard to appeal a
document that can't be found.

In summary, if a state habitually ignores these considerations in
issuing official orders, it leaves the state's residents vulnerable to
abuses of power, terrorist attack, a confused disaster response and
erosion of public trust.

Available information indicates that the state handled previous winter
emergencies in a similar fashion, yet was able to obtain federal
assistance, suggesting that federal officials are enabling
dysfunctional state handling of emergency declarations.

It's time to act; we need to bring a little heat and a lot of light to this state of affairs.  You know what to do.  Please rec, e-mail, and make calls.  Lives are still at risk.  For a collection of names, phone numbers, e-mail addresses, and snail mail addresses of relevant South Dakota officials, members of Congress, the White House, and national media, go here.  Talking points are also available at the same link.  Please call, write, and e-mail; ask why Governor Rounds and his administration would choose to deal with this humanitarian crisis in the least effective way, rather than in a way that provides our brothers and sisters on the reservations with basic needs in these extreme conditions.

Originally posted to Aji on Tue Feb 16, 2010 at 12:59 PM PST.

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