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SD ACLU files First Amendment lawsuit against KXL protest bill

SD ACLU files First Amendment lawsuit against KXL protest bill

Oil Pipeline

A large crowd of remaining Dakota Access Pipeline protesters marches out of the Oceti Sakowin camp Feb. 22 near Cannon Ball, N.D. 

The ACLU of South Dakota filed a federal First Amendment lawsuit Thursday in Rapid City against Gov. Kristi Noem's bill aimed at potential protests against the Keystone XL oil pipeline.

“No one should have to fear the government coming after them for exercising their First Amendment rights,” Courtney Bowie, ACLU-SD legal director, said in a news release. “That is exactly what the constitution protects against, and why we’re taking these laws to court. Whatever one’s views on the pipeline, the laws threaten the First Amendment rights of South Dakotans on every side of the issue.”

The ACLU is representing several environmental and indigenous rights groups and individuals who are planning to protest the pipeline and encourage others to do so, according to the complaint. But "due to their activity, the plaintiffs now fear prosecution under the criminal statutes and imposition of civil liability."

The plaintiffs are the Sierra Club, the Indigenous Environmental Network (IEN), Dakota Rural Action, a South Dakota group that organizes on behalf of family ranchers and farmers, and NDN Collective, a nationwide indigenous group that challenges resource extraction. Dallas Goldtooth, who heads IEN's Keep It In the Ground campaign against fossil fuels, and Nick Tilsen, a Rapid City resident who founded NDN Collective, are also named as plaintiffs. 

The ACLU is suing Noem, Attorney General Jason Ravnsborg and Pennington County Sheriff Kevin Thom. The lawsuit named Thom because the ACLU suspects protests will take place near Rapid City, Janna Farley, ACLU spokeswoman, said in an email. The Keystone XL pipeline is expected to pass through Pennington, Meade, Butte, Perkins, Hardy, Haakon, Jones and Tripp counties. 

Gov. Noem's office said Thursday that it is confident the legislation does not violate the First Amendment.

"The governor and her team have not yet reviewed the legal action, but she stands behind her pipeline legislation, which does not place restrictions on peaceful protest or peaceful assembly," a Noem spokeswoman said in an email. "Governor Noem remains committed to upholding these laws as a means to protect our people, our counties, our environment, and our state."

The lawsuit targets Senate Bill 189, which Noem signed into law Wednesday. The law establishes a legal avenue and funding source for the state to pursue out-of-state sources that "riot boost," or, according to Noem, fund violent protests that aim to shut down pipeline construction. Those found guilty of breaking the law can be sent to prison for up to 25 years.

In its complaint, the ACLU cites quotes by Noem and her allies that say the bill isn't just aimed at violent protesters and rioting but also people and activity that disrupts or delays construction of the pipeline.

"Preventing anti-pipeline protests that seek to end or slow the construction of the pipeline is not a valid government interest," the complaint says.  

Because SB 189 creates a "riot boosting fund" paid by those who break the law, the law also "incentivizes" South Dakota to sue protesters and those who back them in order to compensate for security costs, the complaint says. 

The lawsuit also challenges SDCL 22-10-6 and 22-10-6.1, which make it illegal to encourage or solicit violence during a riot whether one is participating in it or not.

These laws are not "narrowly tailored to achieve the government interest of preventing violence," the complaint says. They're also redundant since South Dakota already bans riots, solicitation, unlawful assembly, disorderly conduct, blocking traffic and ignoring law enforcement orders during riots. 

The ACLU says the three laws violate the First and Fourteenth amendments by discouraging free speech and being unclear about what exact actions are considered boosting or encouraging a riot.

"Such vague and broad language invites arbitrary enforcement, will chill protected speech and will result in indiscriminate targeting of peaceful organizers," the ACLU said in its press release. 

"This country has always become better when people have taken to the streets, fields and halls of injustice,” Tilsen said in the press release. “This law is so broad and vague that simply supporting people on the ground — through donations of supplies, financial assistance, or by organizing support pages on social media — could make individuals or organizations subject to criminal or civil penalties if anything deemed as 'violence' breaks out at the protest. It wouldn’t matter if the person or organization who made the donation was even at the protest. The state could go after them and this would make a lot of people think twice about supporting or joining a protest.”

The ACLU is asking a judge to immediately block South Dakota from enforcing the law.

Noem's SB 189 and SB 190 sparked controversy because they were introduced with less than two weeks left in the legislative session and over a month past the deadline to introduce bills for consideration. Rather than follow the typical procedure of holding two hearings on a bill, the Legislature held one joint hearing before suspending the rules to vote in both the House and Senate in the same day.

Noem also did not consult with South Dakota's nine Native American tribes, which have spoken out against the pipeline. 

SB 190 would establish the Pipeline Engagement Activity Coordination Expenses (PEACE) Fund to go toward extraordinary costs attributed to pipeline protests, sourced from local, state and federal dollars, as well as the pipeline company, which is TransCanada in this case.

SB 189 passed 30-4 in the Senate and 53-13 in the House, and SB 190 by 31-3 in the Senate and 58-8 in the House. The votes were held March 7, three days after the bill was first introduced by Noem.

Noem said at the time that she introduced the package in the final days of session because her staff wanted to spend ample time on the legislation before bringing it forward. The governor's office coordinated with representatives of TransCanada, law enforcement, local governments and state agencies to draft the bills.

Noem has said she hopes the bills prevent South Dakota from seeing protests like those against the Dakota Access pipeline in North Dakota that led to hundreds of arrests and cost the state millions of dollars. She said the bills are the first of their kind in the U.S. 

She also said the bills don't threaten free speech. 

"I fully support the freedoms of speech and assembly, but we must also have clear expectations and the rule of law," Noem said in a previous press release. "My pipeline bills make clear that we will not let rioters control our economic development. These bills support constitutional rights while also protecting our people, our counties, our environment, and our state."

Dakota Rural Action has organized ranchers and landowners along the pipeline path to oppose eminent domain and encourage them to ask South Dakota to reject permits for the Keystone XL, the complaint says. The Sierra Club has been taking legal action against the pipeline since 2008 and its members have engaged in non-violent civil disobedience against the pipeline and may do so again. 

Goldtooth, who lives in Chicago, and the IEN will encourage and train people to "set up prayer camps, protest on public highways and use their bodies to peacefully resist" the pipeline, the complaint says. Tilsen and NDN Collective will do the same. The collective is also raising money to hire organizers to work with South Dakota communities impacted by the pipeline.

Construction of the Keystone XL pipeline is currently on hold after the IEN sued in Montana, the complaint says. 

— Contact Arielle Zionts at

Sarah Mearhoff contributed to this story

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