May 13, 2019
South Dakota Governor Signs Pipeline Protest Legislative Package into Law
Written by Chloe Marie – Research Specialist
On March 29, 2019, South Dakota Governor Kristi Noem signed into law two companion bills designed to address separate issues related to pipeline protests. Senate Bill 189 imposes civil liability for pipeline demonstrators involved in riot boosting and establishes the Riot Boosting Recovery Fund to receive civil damages paid by those involved with riot boosting. Senate Bill 190 establishes the Pipeline Engagement Activity Coordination Expenses (PEACE) Fund to pay for extraordinary expenses incurred by the state or local governments arising out of, or resulting from, activities related to pipeline construction. This article will summarize the content of both bills within the legislative package. In this article, these two bills will be collectively referenced as the legislative package.
Governor Noem announced the introduction of the legislative package in early March, with the stated objective to deal with pipeline protest-related expenses as a response to potential protests against the Keystone XL pipeline. “This package creates a legal avenue, if necessary, to go after out-of-state money funding riots that go beyond expressing a viewpoint but instead aim to slowdown the pipeline build. It allows us to follow the money for riots and cut it off at the source,” according to Governor Noem.
Senate Bill 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 189 amends South Dakota Codified Laws, Chapter 20-9 relating to Liability for Torts and adds a new provision placing liability on anyone engaged in riot boosting. Although the term riot boosting is not specifically defined, the bill lists situations in which there will be liability. A person will be held legally responsible, whether participating directly or indirectly in a riot, each time he or she “directs, advises, encourages, or solicits any other person participating in the riot to acts of force or violence.” In addition, a person will be held responsible for riot boosting, if “[u]pon the direction, advice, encouragement, or solicitation of any other person,” he or she “uses force or violence, or makes any threat to use force or violence, if accompanied by immediate power of execution, by three or more persons, acting together and without authority of law.”
The bill also addresses the issue of jurisdiction in the event of riot boosting for riots that occur within the state of South Dakota. The new legislation confers jurisdiction to state courts to try anyone engaged in riot boosting for riots that take place in South Dakota and provides that only the state, political subdivisions, and damaged third parties are entitled to money damages.
Furthermore, the bill provides that financial compensation awarded to a plaintiff in a riot boosting action may include “both special and general damages, reasonable attorney’s fees, disbursements, other reasonable expenses incurred from prosecuting the action, and punitive damages.” The new legislation also states that anyone “who solicits or compensates any other person to commit an unlawful act or to be arrested is subject to three times a sum that would compensate for the detriment caused.”
Finally, the new legislation creates a fund called the Riot Boosting Recovery Fund, whose money may be used either: (1) to compensate any claim for damages arising out of or resulting from a riot or (2) transferred to the PEACE fund, newly established by Senate Bill 190. The bill clarifies that “any civil recoveries shall be deposited in the “[riot boosting recovery] fund.”
Senate Bill 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
The primary purpose of Senate Bill 190 is to create a PEACE fund to pay administrative costs and extraordinary expenses incurred by the state or local governments in response to pipeline protests. The state Department of Public Safety will be responsible for managing and maintaining the fund.
Under the new legislation, the state may file a disbursement claim with the director of the PEACE fund for the expenses incurred as a result of actions in opposition to a pipeline project. Each claim must be thoroughly documented and include a statement of the basis for the claim and appropriate documentation such as records and books of account. The PEACE fund director has discretion to accept or deny the claim. Interestingly, the bill provides authorization for the submission of a request for pre-approval of an anticipated claim for extraordinary expenses.
The legislation stipulates that pipeline companies engaged in pipeline construction projects in the state are required to post a surety bond to the state Department of Revenue in the amount of “one million dollars for every ten miles affected by a project, but not in excess of twenty million dollars for each project.” The PEACE fund is financed primarily through deposits from the Riot Boosting Recovery Fund, but also through a special fee consisting of 5% of each surety bond posted by pipeline companies to the state Department of Revenue.
This new legislation will expire on June 30, 2025.
Litigation Challenging Legislative Package
A day prior to the signing of the legislative package, Dakota Rural Action, along with five other environmental groups, filed a legal action against Governor Kristi Noem challenging Senate Bill 189. The environmental groups argued that such legislation is unconstitutional on its face because provisions “target protected speech, … they are written too broadly and so reach a substantial amount of protected speech, and … they fail to make it clear to Plaintiffs, others subject to these laws, and government actors tasked with enforcing the laws what conduct and speech is prohibited by them;” thus violating the First and Fourteenth Amendments of the U.S. Constitution.
On April 9, 2019, plaintiffs filed a motion for preliminary injunction seeking to enjoin the new legislation from being enforced by South Dakota officials, citing infringement of plaintiffs’ First Amendment and Due Process rights.
Further information on Dakota Rural Action et al. v. Noem et al., in the U.S. District Court for the District of South Dakota is available at docket no. 5:19-cv-05026-LLP.
Resources:
“Noem Introduces Pipeline Legislative Package,” South Dakota State News (March 4, 2019)
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.
