Gov. Kristi Noem and Attorney General Jason Ravnsborg have agreed not to enforce two anti-riot laws and parts of new laws aimed at protests against the Keystone XL Pipeline, according to a settlement agreement submitted Thursday to a federal judge.
"By equating peaceful organization and support of protest with 'riot boosting' and incitement to riot, the government stifled our clients’ abilities to speak out against the Keystone XL Pipeline," Brendan Johnson, a lawyer representing the plaintiffs and a former U.S. Attorney for South Dakota, said in a news release from the ACLU of South Dakota. "We’re happy that the state recognized that these vague and overbroad laws threatened the First Amendment rights of South Dakotans on every side of the issue and that, as a result of this settlement, no one’s voices will be silenced."
"The 'riot boosting' act was an insult to the Constitution and an attempt to muzzle the voices of the people and our movement to defend Mother Earth," said plaintiff Nick Tilsen, a Rapid City resident and the CEO of NDN Collective. "This settlement accomplishes everything that we set out to do with the lawsuit and makes the temporary injunction a permanent one. Onward, we will continue to fight for air, land, water and our rights."
Noem said she cares about balancing public safety and free speech.
"If the court approves our agreement, the state can begin work to update crimes that have been on the books since South Dakota became a state," the governor said in an email to the Journal. "We remain focused on preserving law and order while protecting the right to free speech and peaceful assembly. It’s important to note that it is still illegal to riot in South Dakota. No one has the right to incite violence. My team and I are continuing to work to protect people, property, and the environment, all while making sure the crimes on our books are in line with current constitutional law.”
Noem did not respond to questions asking why she agreed to the settlement, if she agrees that parts of the law are unconstitutional, and whether she plans to consult with South Dakota tribes and introduce legislation earlier in the session when it comes to laws aimed at regulating violence during pipeline protests.
The Attorney General's Office said it will work to improve any future legislation, as well.
"The Office of the Attorney General respects the judge's opinion and will, obviously, look for ways to improve these laws in order to allow all people the ability to protest in a manner that will keep South Dakota safe," Tim Bormann, spokesman for Ravnsborg, said in an email.
The ACLU sued on behalf of the Sierra Club, Indigenous Environmental Network, Dakota Rural Action, NDN Collective, Dallas Goldtooth of IEN, and Tilsen. All say they are planning to non-violently protest the pipeline and encourage others to do so but feared criminal or civil liability under the laws passed in the last legislative session.
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The 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, the ACLU argued in its lawsuit. Noem and Ravnsborg argued in their response to the lawsuit that the trio of laws don’t chill or prevent free speech. Piersol dismissed Pennington County Sheriff Thom from the suit.
Senate Bill 189, also known as the riot-boosting act, was passed with little debate at the end of the 2019 session in anticipation of protests against the Keystone XL Pipeline that could be similar to those against the Dakota Access Pipeline in North Dakota. Noem’s office coordinated with representatives of TC Energy (the company formerly known as TransCanada that wants to build the pipeline), law enforcement, local governments and state agencies to draft the laws, but did not consult with South Dakota's nine Native American tribes, which have spoken out against the project.
The bill package established a legal avenue and funding source for the state to pursue out-of-state sources that "riot boost" or fund violent protests. Those found guilty of breaking the law can been sent to prison for up to 25 years. The ACLU’s lawsuit also challenged two older laws that make it illegal to encourage or solicit violence during a riot whether one is participating in it or not.
The state will not enforce the two older anti-riot laws and most parts of the new "liability for riot boosting" law, the settlement says. It can still enforce most of the new "damages for riot boosting" law. Three remaining laws — one that defines terms, one that addresses evidence and procedure, and another that establishes a riot-boosting recovery fund — created by Senate Bill 189 remain intact.
"What is not allowed is punishing someone for speech. What is allowed is punishing someone for engaging in force or violence," ACLU Attorney Stephen Pevar said when asked what the settlement means.
He said people can still be fined or jailed if they're violent, but not if they helped organize a protest that turned violent or if they bought a plane ticket for someone who engaged in violence. He said out-of-state people or organizations that support protesters don't have to worry.
Noem and Ravnsborg will send letters to the state's attorney for each county where the pipeline is scheduled to be built, including Pennington County, to let them know about the agreement and which laws or parts of laws they can no longer enforce and directing them to pass this information on to local law enforcement, the settlement says.
Piersol or another federal judge will hold hearings to resolve any accusations of people not following the settlement. The agreement will only end if the unconstitutional parts of the laws are "substantially revised" by the Legislature.
The state and plaintiffs still need to agree on how much the state will owe in attorney fees to the plaintiffs, "the prevailing party."