"Whether these laws go up or not, we're going to do what we need to do."
That's what some anti-Keystone XL Pipeline activists said outside the Rapid City Andrew W. Bogue Federal Building on Wednesday afternoon, May 12.
On that day, Judge Lawrence Piersol of the U.S. District Court in Rapid city heard arguments in the case of Dakota Rural Action v Noem. The case challenges the “Riot Boosting" laws, the set of newly-enacted anti-riot laws first introduced to the state legislature in March by Governor Kristi Noem. The laws were proposed by Noem specifically to prevent riots associated with the future construction of the Keystone XL Pipeline, and were challenged on the grounds that they violate basic First Amendment constitutionality.
The laws threaten those engaged in “riot-boosting,” those the state deems responsible for encouraging or supporting riots, with steep fines and in some cases, up to 25 years imprisonment.
“What South Dakota is trying to do to free speech is impermissible,” ACLU Attorney Stephen Pevar said of one of the statutes in question. “I just can’t imagine how someone thought this was a valid exercise of the state’s police power.”
Pevar and two other attorneys from the South Dakota ACLU represented Environmental and Indigenous Rights’ groups from around the state, as well as a few individuals involved with those groups, as the plaintiffs in the case. Governor Noem, State Attorney General Jason Ravnsborg, and Pennington County Sheriff Kevin Thom, acting in their official capacities, were the defendants in the hearing. They, too, were represented by attorneys.
The primary goal of the plaintiffs was to convince Judge Piersol to issue a preliminary injunction against the “Riot Boosting” laws as the case moves forward to trial. While not a complete overturn of the “Riot boosting Act,” a preliminary injunction would suspend enforcement of the statutes while their constitutionality was debated in court. It would, in Pevar’s words, “lift the ban” on controversial speech.
“It would allow people to talk while we’re litigating,” Pevar said.
Judge Piersol also heard three pleas from the defense at the hearing: the motion to render a judgement on the pleadings, the motion to recertify the question before the state Supreme Court, and Sheriff Thom's motion to dismiss. In court documents attached to the case, Noem and Ravnsborg have denied the ACLU's assertion that the Riot Boosting laws chill free speech. The defense attorneys claimed that peaceful controversy was never the issue; that the Act was designed specifically to discourage immediately violent acts and violence-inciting speech during an ongoing riot scenario.
"This is no longer abstract thought, or pontificating at Cambridge," the defense team argued.
Judge Piersol pointed out that this interpretation of the laws seemed to be at odds with Governor Noem's statements in March, which said that the laws were designed to stymie out-of-state protest supporters. In the March press conference first announcing the Riot Boosting bills, Norm specifically mentioned trying to stop the alleged influence of wealthy philanthropist George Soros on pipeline protests.
After several hours of listening to arguments from both sides, the plaintiffs ultimately did not get their injunction. Judge Piersol declared a recess so that he could privately determine whether or not to grant the preliminary injunction. He is expected to issue a written ruling soon.
Before and after the trial, the Environmental and Indigenous Rights activists - some of them the plaintiffs themselves - gathered to peacefully protest the Riot Boosting Act and the Pipeline it was created to shield from riots. People waved flags and carried signs emblazoned with such slogans as “Protect the Protectors,” “Defend the Land,” and “You can’t lock up the truth.”
While many were concerned with the pipeline as an environmental issue, others expressed anxiety about the “man camps” - camps of mostly-male pipeline construction workers. A 2015 study by the Native Women’s Association of Canada showed that the camps increased rates of sexual violence and trafficking wherever they popped up. “One of my granddaughters was attacked,” said Missing and Murdered Indigenous Women activist Lorna Knowshisgun, who had travelled all the way from Billings, Montana to attend the hearing. "A lot of the crimes go unsolved and they really don't investigate girls the way they should."
Others, like Nick Tilsen, founder of the Indigenous Rights’ group “NDN Collective,” were worried that the consequences of the Riot Boosting Act would extend far beyond the pipeline.
"Why are they letting Big Oil and Big Business write laws in this state?" he asked. "This law wasn't written by even the most conservative folks in the state who believe in the constitution. It was written by an outside corporation."
Both the plaintiffs and the defense attorneys in the case are likely to regroup and refine their positions as they wait for the result of this hearing, Pevar said.
For the activists at the rally, they said the fight against the pipeline will go on, whether or not the Riot Boosting laws are found unconstitutional.
"No matter what happens, I'm always going to fight for my nation, I'm always going to fight for my people," said community organizer Terrell Iron Shell. "No amount of laws, no amount of fines, no amount of prison time is ever going to stop me."