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Noem, Ravnsborg deny anti-rioting laws violate Constitution, request federal lawsuit be dismissed

The Syncrude oil sands plant near Fort McMurray, Alberta, Canada, Aug. 28, 2015. The Keystone XL pipeline, which will carry oil from Canadian oil sands fields to the Gulf of Mexico, has long been at the center of a struggle pitting environmentalists against advocates of energy independence and economic growth. Copyright 2017 New York Times

PIERRE, S.D. -- South Dakota state defendants are requesting a lawsuit filed by the American Civil Liberties Union (ACLU) regarding the state’s anti-rioting laws be dismissed, denying the ACLU’s claims that the laws violate the Constitution.

Gov. Kristi Noem, Attorney General Jason Ravnsborg and Pennington County Sheriff Kevin Thom are defendants in Dakota Rural Action v. Noem, a lawsuit filed by the ACLU on behalf of activist groups in federal court in the District of South Dakota in March. The lawsuit came shortly after Noem introduced a controversial anti-protest bill package in the final days of the 2019 legislative session, in anticipation of TransCanada’s anticipated construction of the Keystone XL crude oil pipeline through the state.

On Tuesday, April 16, the defendants filed a response to the suit, denying plaintiffs’ claims that the laws violate First Amendment rights to free speech and Fourteenth Amendment rights to due process. The defendants are also claiming that the lawsuit is barred on the basis of sovereign immunity, or the inability to sue the government without its consent.

One of the two bills introduced in Noem’s pipeline package that is now being challenged is Senate Bill 189. SB 189 establishes civil penalties for "riot boosting," or contributing money to or encouraging protesters who engage in violence meant to prevent the construction of a pipeline. Plaintiffs are also challenging two preexisting laws, South Dakota codified laws sections 22-10-6 and 22-10-6.1, which establish criminal penalties “encouraging or soliciting violence in riot.”

The ACLU argued that the three laws infringe upon and chill protected free speech, and that the laws are unconstitutionally overbroad and vague. Under the three laws, the ACLU argued that the plaintiffs could be found liable for so-called riot boosting “regardless of their intent to incite violence.”

Four advocacy organizations that have opposed the Keystone XL pipeline build -- the Sierra Club, NDN Collective, Dakota Rural Action and the Indigenous Environmental Network -- as well as two individuals are plaintiffs in the case. The ACLU argued that these plaintiffs’ protest and organization efforts, which include advising pipeline protesters, could leave them vulnerable to criminal and civil liability under the state’s laws, even if they are not deliberately attempting to incite violence.

“Plaintiffs must choose between encouraging and advising pipeline protestors, on the one hand, and exposing themselves to prosecution and civil liability under the Challenged Laws, on the other,” the ACLU argued in its complaint. “Refraining from encouraging and advising protesters constitutes self-censorship and a loss of Plaintiffs’ First Amendment rights.”

Defendants in Tuesday’s response denied “any objectively reasonable fear of prosecution for protected speech would arise under the application of The Act.”

The ACLU also argued in its complaint that SB 189, through its establishment of a “riot boosting fund” through civil penalties collected from riot boosters, “incentivizes the State to sue protesters and those who encourage and advise them in order to compensate for security and other costs incurred by the State and third parties during a protest.” Defendants denied this.

Plaintiffs also claimed in the complaint that Noem, in her development of the anti-pipeline-protest bill package, did not consult with Native American tribes or environmental groups.

The defendants denied this, saying in their response, “All citizens of the state, including tribes, tribal members, and environmental groups, were equally allowed to participate in the legislative process.”

Noem introduced the bill package on Monday, March 4. The following Wednesday, legislators held a single joint committee hearing on the package (there are normally two such hearings on bills). The next day, the bill was passed through both the state House and Senate.

All in all, citizens -- including tribal officials and environmental activists -- had three days to “participate in the legislative process.”

Representatives of TransCanada, as well as lawmakers, law enforcement officers and members of Noem’s administration, were included in the development of the package, according to a March 4 news release from the governor's office.

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