The South Dakota ACLU sent out a news release on Friday, June 7, announcing that it would be challenging Governor Kristi Noem’s pro-Keystone XL Pipeline, anti- “Riot Boosting,” Act, in court on Wednesday afternoon.
The release said that the case of Dakota Rural Action v. Noem, as it has been named, will be heard by the Rapid City U.S. District Court on Wednesday, June 12 at 3 p.m. The hearing will be held at the Andrew W. Bogue Federal Building and U.S. Courthouse, Room 301, on 515 Ninth St. In the case, the ACLU will represent the activist groups Dakota Rural Action, Indigenous Environmental Network, NDN Collective and the Sierra Club; as well as two individual activists: Nick Tilsen with NDN Collective and Dallas Goldtooth with Indigenous Environmental Network.
“All are planning to protest the Keystone XL pipeline and/or encourage others to do so,” the release said.
The “Riot Boosting Act” which the ACLU is challenging is an attempt by Noem to outlaw many forms of Pipeline protest, and commodify the protests that do occur. It consists of two separate bills, Senate Bills 189 and 190, which were both introduced and swiftly signed into law this past March.
Bill 189 creates a fund for the state to receive money in the form of “civil recoveries” from any party found guilty of encouraging and/or materially or financially supporting riots.
Riots are defined in South Dakota law as “any use of force or violence or any threat to use force or violence, if accompanied by immediate power of execution, by three or more persons, acting together and without authority of law.”
Bill 189 also provides the state with the authority to prosecute people for these suspected acts of “Riot Boosting.”
The new laws state that “any person who participates in any riot and who directs, advises, encourages, or solicits other persons participating in the riot to acts of force or violence, is guilty of a Class 2 felony... Any person who does not personally participate in any riot but who directs, advises, encourages, or solicits other persons participating in the riot to acts of force or violence is guilty of a Class 5 felony.”
This means that those found guilty of riot boosting are not only liable for financial recompense to the state, but could be sentenced to up to 25 years imprisonment.
Bill 190 creates the “PEACE,” or Pipeline Engagement Activity Coordination Expenses, fund. This fund is earmarked by the state for use in covering any extraordinary expenditures incurred in relation to Pipeline construction. It would derive part of its income from money paid to the state by parties found guilty of riot boosting, as detailed in SB 189.
Since the Riot Boosting bills were announced, the ACLU and many other progressive and Indigenous Rights groups have lambasted them as being anti-free speech, racist, and an example of government authority serving corporate interests. The Water Protectors Legal Collective, a group of lawyers that provided pro-bono legal counsel to Pipeline protesters at Standing Rock, was among the critics.
A day after the bills were approved by the South Dakota state legislature, the Capital Journal quoted lawyer Bruce Ellison, a member of the Water Protectors Legal Collective, as saying “Time is money for these companies, every day there’s not oil running in those pipes, it’s costing them.”
“Moreover,” the ACLU’s Friday news release said, “the laws do not clearly describe what conduct or speech is considered ‘riot-boosting’ or ‘encouraging’ a riot. The ACLU argues that such vague and broad language invites arbitrary enforcement, will chill protected speech, and will result in indiscriminate targeting of peaceful organizers.”
The ACLU challenge to the Riot Boosting Act is largely preemptive; construction of the Keystone XL Pipeline will not begin until 2020 at the earliest. That said, the Pipeline’s construction corporation, TC Energy (formerly TransCanada Corp.), won its appeal before the 9th U.S. Circuit Court of Appeals on Thursday, June 6, to restart construction procedures after more than six months in legal Limbo. Construction was previously put on hold by an injunction from the Montana U.S. District Court, Great Falls Division.
The Montana District Court found that TransCanada and the U.S. State Department failed, among other things, to properly account for the cumulative environmental impacts of the pipeline when considered alongside other oil-shipping methods already operating in North America. The June 6 Court of Appeals’ decision reversed the injunction.
With construction of the Pipeline thus imminent, and likely to occur simultaneously with the U.S. presidential election, would-be protesters and activists said that opposing the Riot Boosting Act is important now, rather than later.
The ACLU release quoted Dallas Goldtooth, a representative with the Indigenous Environmental Network, as saying,
“This is a blatantly unconstitutional attempt to suppress protests of the Keystone XL pipeline before they even begin. Indigenous voices have long protected Mother Earth’s biodiversity and we will not be silenced. We refuse to live in fear for demanding climate justice and protecting our sovereignty as Native nations and its peoples. We’re happy that our views will be heard in court.”
Specific legal documents related to the ACLU’s case can be found at www.aclusd.org/en/cases/freespeech.