South Dakota Backs Off Harsh New Protest Law and ‘Riot-Boosting’ Penalties

At least seven other states have added stiff new penalties in the last few years for protesting near oil and gas pipelines and other ‘critical infrastructure.’

Dakota Access pipeline protest near Standing Rock Reservation. Credit: Robyn Beck/AFP/Getty Images

The months of protests over construction of the Dakota Access pipeline spurred a wave a state laws that ratchet up penalties for protesting or interfering with fossil fuel infrastructure. Many were based on model legislation promoted by the industry-backed American Legislative Exchange Council. Credit: Robyn Beck/AFP/Getty Images

South Dakota officials have agreed to walk back parts of the state's new anti-protest laws that opponents say were meant to target Native American and environmental advocates who speak out against the proposed Keystone XL crude oil pipeline.

Gov. Kristi Noem and state Attorney General Jason Ravnsborg agreed in a settlement Thursday with Native American and environmental advocates that the state would never enforce portions of the recently passed laws that criminalize "riot boosting"—which it applied, not just to protesters, but to supporters who encourage but never take part in acts of "force or violence" themselves.

The settlement, which makes permanent a temporary ruling issued by a federal judge in September, has immediate implications for opponents of the Keystone pipeline in South Dakota and could challenge the validity of similar laws targeting pipeline and environmental protestors in other states.

"People can continue to organize and show up in public places and speak out against these projects without any fear of retribution or being identified as rioters and face potential felonies," said Dallas Goldtooth, an organizer with the Indigenous Environmental Network and a plaintiff in the lawsuit that challenged the rules.  

"I think it's immense," he said. "We have legal precedent that is shooting down these anti-protest laws that are being replicated across the country."

Map: Keystone XL Route

At least seven other states have passed harsh penalties for protesting near oil or gas pipelines or interfering with the infrastructure since the start of the Trump administration, according to the International Center for Not-for-Profit Law, which tracks the legislation. Several of those laws were based on a model bill promoted by the American Legislative Exchange Council, an industry-backed group. 

In September, a group of Greenpeace activists in Texas who shut down the Houston Ship Channel by dangling from a bridge became the first group charged under any of the new protest laws. 

Not a Repeal, But a Binding Change

The joint settlement agreement in South Dakota does not repeal the state's anti-riot laws. Instead, the governor and attorney general agree never to enforce sections of the laws focusing on speech.

For example, the state will no longer enforce part of an existing law that says a person who does not personally participate in a protest "but directs, advises, encourages, or solicits other persons to acts of force or violence" can be found liable for riot boosting.

Stephen Pevar, a senior staff attorney with the American Civil Liberties Union who represented Goldtooth and other plaintiffs in the case, said the settlement is binding.

"No governor in the future can change this back. If anyone starts enforcing these laws, this would be in contempt of court," he said.

Lawmakers Could Still Write a New Version

Goldtooth said the settlement was a victory but warned that the state could always try to enact new anti-protest laws.

When Noem proposed the legislation, she said that she and her team had met with the Keystone XL pipeline's builder, TransCanada, now called TC Energy, and that the legislation was a result of those discussions. "The legislative package introduced today will help ensure the Keystone XL pipeline and other future pipeline projects are built in a safe and efficient manner while protecting our state and counties from extraordinary law enforcement costs in the event of riots," she said in a press release at the time.

South Dakota's governor, Kristi Noem, met with President Donald Trump shortly after her election in 2018. Credit: Jabin Botsford/Washington Post via Getty Images

South Dakota's governor, Kristi Noem, met with President Donald Trump shortly after her election in 2018. Credit: Jabin Botsford/Washington Post via Getty Images

"I'm not blind to the fact that South Dakota legislators can go back to the drawing board and try to come up with another version of this anti-protest law, but for this lawsuit, it's a victory," Goldtooth said.

"It reaffirms our right to peacefully gather," he said, "and it squashes the attempt of the state to put fear into the hearts of people who are just trying to protect their land and water from fossil fuel projects like Keystone XL."

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