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Keystone XL Pipeline

Demonstrators against the Keystone XL pipeline march in Lincoln, Neb.

PIERRE | Despite resistance from activists and South Dakota's American Indian tribes, the Legislature is moving forward with Republican Gov. Kristi Noem's last-minute bill package to curb protests of TransCanada's proposed Keystone XL pipeline.

Noem dropped Senate Bills 189 and 190 on Monday, weeks after the deadline to introduce bills for consideration in the 2019 legislative session and days before the legislature's final deadline to pass bills out of both chambers.

SB 189 establishes civil penalties for "riot boosting," or contributing money to or encouraging protesters who engage in violence. SB 190 creates a funding source for extraordinary costs attributed to increased law enforcement at protests, sourced from local, state and federal dollars, as well as contributions from pipeline companies.

The Joint Committee on Appropriations passed both bills on Wednesday; SB 189 by 14-4 and SB 190 by 15-3.

Asked about the last-minute timing of the bills, legal counsel to the governor's office Matt McCauley said that the bills took months of work from Noem's team, which only took office in January. Noem's office said it consulted with lawmakers, law enforcement officials and TransCanada in the writing of the package.

South Dakota's American Indian tribes, who have opposed the pipeline's construction since its announcement, were not among those consulted. Members testified Wednesday that they were not aware of the bills until Noem's public announcement on Monday. Faith Spotted Eagle, an activist of the Yankton Sioux tribe, called the package an "ambush."

The proposed Keystone XL pipeline route cuts through the historic Great Sioux Nation in South Dakota, near the federally recognized Rosebud Sioux and Cheyenne River Sioux tribes.

Cheyenne River Sioux Tribal Chairman Harold Frazier said in a Monday statement that Noem's package is "designed to further an agenda of shoving this pipeline down our throats."

"No one knew about this legislation and it has been concocted and pushed in the backrooms and outbuildings designed to keep the people of South Dakota in the dark," Frazier said. "Nothing speaks to the deviousness surrounding the actions of a rich corporation more than the actions of the politicians under their influence."

Noem said in a Monday news conference that she is "well aware that some of our leaders are not in favor of the pipeline, although we should all be in favor of it being peaceful."

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Asked why the tribes were not involved in Noem's discussions, McCauley said the proposed pipeline route does not go through federally recognized reservations, and the governor's office thus concluded that they would be less impacted by law enforcement costs than local and state governments.

In addition to the tribes' objections, environmental activists like Dakota Rural Action and the Sierra Club, as well as the American Civil Liberties Union of South Dakota, challenged that SB 189 could infringe upon First Amendment rights to free speech and assembly.

They also questioned where the line would be drawn between a peaceful protest and a riot, and how easily people could find themselves on the wrong side of the law.

Noem's office maintains that the bill does not infringe upon First Amendment rights, and that the definition of a riot is already written in South Dakota law.

The idea of "riot boosting," though, is new, and opponents argue that what could constitute it is unclear. What if a person donates to a GoFundMe for protesters' supplies or shelter, or supports protesters on social media? Could those people, even if they did not intend to incite violence, be held liable for future damages?

McCauley said he could not answer to these hypotheticals, and that each case would differ based on the facts.

Policy Director for ACLU-SD Libby Skarin said that these are facts that could be parsed out in a courtroom, after the state could file suit. She said even the possibility of facing litigation brought on by the state could chill protesters' and supporters' free speech.

"The threat of having to hire an attorney to defend yourself against the state (and maybe TransCanada) in court and explain why your donation via GoFundMe was not riot boosting is, again, precisely what impermissibly chills speech," she said in an emailed statement.

As of Wednesday evening, spokesperson Janna Farley said ACLU-SD is "looking at the constitutionality of this legislation and whether or not it could be challenged in court if signed into law."

The Senate is expected to vote on the package on Thursday.

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