Update on State Critical Infrastructure Protection Statutes: North Dakota, Oklahoma, and South Dakota

Written by Chloe Marie – Research Specialist

Since 2017, a number of states have taken legislative action to protect elements of their infrastructure, including oil and gas pipelines, from damage or disruption. In our last Shale Law in the Spotlight article, we addressed legal developments over the last two years in the states of Indiana, Iowa, and Louisiana.  This article will address legal developments in the states of North Dakota, Oklahoma, and South Dakota.

North Dakota

During the ongoing protests against construction of the Dakota Access Pipeline, North Dakota Governor Doug Burgum signed into law two pieces of legislation on February 3, 2017 – House Bill No. 1293 and 1304. Among other things, House Bill 1293 stipulates that an individual who trespasses in a highly secured premises with full knowledge of the illegality of the action will be guilty of a Class B misdemeanor and can be sentenced up to 30 days of imprisonment and subject to a $1,000 fine. House Bill 1293 also establishes a noncriminal offense of trespass where an individual enters upon land that has been appropriately posted. A fine of $250 is specified for this trespass offense, and the legislation details the use of a process to post bail through the mail for this offense.  House Bill 1304 criminalizes the wearing of a “mask, hood or other device that covers, hides, or conceals any portion of [the] face” with the intent to “intimidate, threaten, abuse, or harass any other individual” when committing a criminal offense. Governor Burgum signed these two bills into law and declared them to be emergency measures.

Subsequently, on March 2, 2017, Governor Burgum signed into a law another piece of legislation – House Bill No. 1426 – this time increasing penalties imposed for riot offenses. Anyone “knowingly” providing weapons for use in a riot, teaching others how to use a weapon for use in a riot, or being armed during a riot can be charged with a Class B felony, rather than a Class C felony. A Class B felony in North Dakota is punishable by up to 10 years imprisonment and up to $10,000 in fines. Furthermore, under this legislation, one engaging in a riot is guilty of a Class A misdemeanor, rather than a Class B misdemeanor, and thus could be sentenced to a maximum of one year in jail and a fine of up to $3,000. Disobeying a public safety order made during a riot is also considered to be a Class A misdemeanor.

Again, in order to reduce adverse impacts resulting from public disturbances in the future, Governor Burgum signed into law Senate Bill 2044 on March 21, 2019, imposing penalties upon those involved in the damage or disruption of the state’s critical infrastructure. Senate Bill 2044 states that anyone who intentionally causes a substantial interruption or impairment of a critical infrastructure facility or a public service will be charged with a Class C felony, punishable in North Dakota by 5 years of imprisonment and/or a fine of $10,000. If the individual acts knowingly and recklessly, he shall be guilty of a Class A misdemeanor and sentenced to a term of imprisonment of up to one year and/or a fine not more than $20,000. The legislation also targets organizations that engage in conspiracies with individuals to tamper with or damage a critical infrastructure and punishes the organizations by the imposition of fines up to $100,000.

Oklahoma

On May 3, 2017, Governor of Oklahoma Mary Fallin signed into law House Bill 1123 targeting those who willfully trespass or damage a critical infrastructure. According to the law, any individual found guilty of trespassing on property containing a critical infrastructure will be sentenced to a misdemeanor punishable by a 6-month term in a county jail and/or fine of $1,000.00. The prison sentence and fine can be increased to one year in jail and/or $10,000.00 if it is proven that the trespasser intended to “willfully damage, destroy, vandalize, deface, tamper with equipment, or impede or inhibit operations of the facility.”

Furthermore, the law provides that one who acts deliberately to “damage, destroy, vandalize, deface or tamper with the equipment in a critical infrastructure” will be convicted of a felony and sentenced up to 10 years of imprisonment and/or $100,000.00 in fine. Any conspiring organization to such acts will be severely punished by a $1,000,000.00 fine.

Only a few days later, Governor Fallin also signed into law House Bill 2128, heightening penalties for the criminal offence of trespass. This bill complements House Bill 1123 in that it provides that anyone convicted of trespass will be responsible for any damages to personal or real property while trespassing. In addition, the law specifies that anyone found guilty of inciting people to trespass can be held vicariously responsible for any damages to personal or real property committed during the trespassing.

South Dakota

As protests continued against the Keystone XL pipeline, South Dakota Governor Denis Daugaard signed into law Senate Bill 176 on March 13, 2017, designed to preserve and protect school and public lands from rallies of large groups of people. Section 5 of the legislation provides that anyone disobeying an order not to enter school or public lands will be charged with a Class 1 misdemeanor, punishable by up to one-year imprisonment and up to $2,000.00 in fines.

More recently, on March 29, 2019, South Dakota Governor Kristi Noem signed into law Senate Bill 189, imposing civil liability for pipeline demonstrators involved in riot boosting and establishing the Riot Boosting Recovery Fund designed to receive civil recoveries imposed upon those engaged in riot boosting. On that same day, Governor Noem also signed Senate Bill 190 setting up the Pipeline Engagement Activity Coordination Expenses (PEACE) Fund for extraordinary expenses incurred by the state or municipalities arising out of or resulting from pipeline construction. Governor Noem proposed this legislative package in early March, with the objective of dealing with pipeline protest-related expenses and in response to potential protests against the Keystone XL pipeline.

Pending Legislation in Other States

Several states have pending legislation relating to critical infrastructure protection, including the states of Idaho (SB 1090), Illinois (HB 1633), Minnesota (SF 2011), Missouri (SB 293), Ohio (SB 33), Pennsylvania (SB 323), Tennessee (SB 0264), and Texas (SB 2229; SB 1993; HB 3557).

References:

North Dakota – House Bill No. 1293, An Act to amend and reenact sections 12.1-22-03 and 37-17.1-22 of the North Dakota Century Code, relating to trespassing on posted property and disaster and emergency response recovery costs; to provide a penalty; and to declare an emergency

House Bill No. 1304, An Act to create and enact a new section to chapter 12.1-31 of the North Dakota Century Code, relating to prohibiting the wearing of masks, hoods, and face coverings during the commission of a criminal offense; to provide a penalty; and to declare an emergency

House Bill No. 1426, An Act to amend and reenact subsection 4 of section 12.1-25-01, subsection 1 of section 12.1-25-02, subsection 1 of section 12.1-25-03, and section 12.1-25-04 of the North Dakota Century Code, relating to riot offenses; and to declare an emergency

Senate Bill No. 2044, An Act to amend and reenact section 12.1-21-06 of the North Dakota Century Code, relating to tampering with or damaging a critical infrastructure facility or a public service; and to provide a penalty

Oklahoma – House Bill No. 1123, An Act relating to crimes and punishments; making certain acts unlawful; providing for codification; and declaring an emergency

House Bill No. 2128, An Act relating to torts; permitting liability for damages committed by a trespasser; authorizing vicarious liability for person or entity that compensates trespasser; providing for codification; and providing an effective date

South Dakota – Senate Bill No. 176, An Act to preserve the use of public land, to ensure free travel, to enhance emergency response, and to declare an emergency

Senate Bill No. 189, An Act to establish a fund to receive civil recoveries to offset costs incurred by riot boosting, to make a continuous appropriation therefor, and to declare an emergency

Senate Bill No. 190, An Act to promote pipeline construction and fiscal responsibility by establishing a fund, to authorize a special fee for extraordinary expenses, to make a continuous appropriation therefor, and to declare an emergency

Idaho – Senate Bill No. 1090, Critical Infrastructure – Adds to existing law to provide for the crimes of impeding critical infrastructure and critical infrastructure trespass (pending)

Illinois – House Bill No. 1633, An Act concerning criminal law (pending)

Minnesota – Senate Fill No. 2011, An Act relating to public safety; establishing the Worker Safety and Energy Security Act; providing for criminal penalties; amending Minnesota Statutes 2018, sections 609.594; 609.6055 (pending)

Missouri – Senate Bill No. 293, An Act to create new criminal offenses involving critical infrastructure facilities (pending)

Ohio – Senate Bill No. 33, An Act to amend sections 2909.07, 2909.10, 2911.21, 2911.211, 2917.21, and 2917.32 and to enact section 2307.67 of the Revised Code to modify certain criminal offenses with respect to critical infrastructure facilities and to impose fines and civil liability for damage to a critical infrastructure facility (pending)

Pennsylvania – Senate Bill No. 323, An Act providing for liability for public safety response costs (pending)

Tennessee – Senate Bill No. 0264, An Act to amend Tennessee Code Annotated, Section 39-14-411, relative to vandalism (pending)

Texas – Senate Bill No. 2229, An Act relating to criminal liability for engaging in certain conduct involving a critical infrastructure facility; increasing criminal penalties (pending)

Senate Bill No. 1993, An Act relating to civil and criminal liability for engaging in certain conduct involving a critical infrastructure facility; creating criminal offenses (pending)

House Bill No. 3557, An Act relating to civil and criminal liability for engaging in certain conduct involving a critical infrastructure facility; creating criminal offenses (pending)

 

The Center for Agricultural and Shale Law is a partner of the National Agricultural Law Center (NALC) at the University of Arkansas System Division of Agriculture, which serves as the nation’s leading source of agricultural and food law research and information. This material is provided as part of that partnership and is based upon work supported by the National Agricultural Library, Agricultural Research Service, U.S. Department of Agriculture.