SOUTH DAKOTA - Oil & Gas "Critical Infrastructure" Anti-Protest Bills

  • Posted on: 18 February 2019
  • By: Connor Gibson

Updated May 13, 2020.

See Full Report: State Bills to Criminalize Peaceful Protest of Oil & Gas "Critical Infrastructure"

2020 SB 151 - Now Law

  • Signed by Governor on March 18, 2020
  • Amendments approved by Senate on March 10, 2020
  • Passed by House, with amendments, on March 9, 2020
  • Passed by Senate on February 27, 2020
  • Introduced on February 4, 2020

ICNL analysis:

Would heighten the penalties for protests near oil and gas pipelines and other infrastructure. Under the bill, knowingly trespassing on property containing a critical infrastructure facility is a misdemeanor punishable by a year in prison and a $2000 fine. Knowingly tampering with any property and as a direct result either causing “substantial interruption or impairment” to a critical infrastructure facility or interfering, inhibiting, or impeding the maintenance or construction of a critical infrastructure facility is a felony punishable by two years in prison and/or a $4000 fine. Knowingly tampering or interfering with the operation or maintenance of a critical infrastructure facility that causes physical injury or death is punishable by ten years in prison and a $20,000 fine. A person or organization found to be a “conspirator” in any of the above provision faces a range of criminal fines. Any owner, lessee, or operator of any critical infrastructure facility where a crime is committed under one of the above provisions is designated a “victim” under South Dakota law, which entitles them to restitution and a set of victims’ rights. As such, a company that owns a critical infrastructure facility can seek restitution from a person convicted of any of the above provisions as well as from any conspirator.

ALEC Co-sponsors:

3 of 5 co-sponsors of SB 151 are confirmed ALEC SD affiliates: Sen. Jim Stalzer, Sen. Al Novstrup, Rep. Mark Willadson

Fossil Fuel Campaign Contributions:

The co-sponsors of SB 151 have received a collective $18,400 from oil, gas, electric utility and railroad interests during their political careers.

2020 HB 1117 - Now Law

  • Signed by Governor on March 23, 2020
  • Passed Senate on March 5, 2020
  • Passed House on February 18, 2020
  • Introduced and read on January 29, 2020

ICNL analysis:

Would revise the state’s laws on rioting and replace a “riot-boosting” law that was passed last year but later blocked by a federal court as unconstitutional. The bill would revise the definition of “riot” under South Dakota law to be “any intentional use of force or violence by three or more persons, acting together and without authority of law, to cause any injury to any person or any damage to property.” Under the bill, “incitement to riot” would be a new felony offense, punishable by up to 5 years in prison and $10,000 in fines, and defined as conduct that “urges” three or more people to use force or violence to cause personal injury or property damage, if the force or violence is “imminent” and the urging is likely to “incite or produce” the force or violence. The bill defines “urging” to include “instigating, inciting, or directing,” but excludes “oral or written advocacy of ideas or expression of belief that does not urge… imminent force or violence.” Under the bill, individuals could additionally be civilly liable for riot and incitement to riot, enabling lawsuits against protesters by the state, counties, or municipalities. Both last year’s "riot-boosting" law and HB 1117 appear to target planned protests against construction of the Keystone XL pipeline.

ALEC Co-sponsors:

4 of 13 members of the committee sponsoring HB 1117 are confirmed ALEC SD affiliates: Rep. Tim Goodwin, Rep. Jon Hansen, Rep. Steven Haugaard, and Rep. Lee Qualm.

Fossil Fuel Campaign Contributions:

The members of the 2020 House Public Affairs committee, which sponsored HB 1117, have received a collective $18,650 from oil, gas, electric utility and railroad interests during their political careers.

Governor Kristi Noem, who requested HB 1117 from the committee, has received $427,741 from oil, gas, electric utility and railroad interests during their political careers (including a $6,000 payment from TransCanada in 2018). Separately, TransCanada also donated $10,000 to Governor Noem's inauguration.

2019 SB 189

UPDATE, October 24, 2019: Several aspects of South Dakota's "riot boosting" law, SB 189, below, will no longer be enforced. This nullification resulted from a court settlement with the American Civil Liberties Union. See American Civil Liberties Union announcment and Associated Press reporting for more info.

  • Enforcement nullified by ACLU legal settlement (see update, above)
  • Signed by Governor Kristi Noem on March 27, 2019
  • Passed Senate and House on March 7, 2019
  • Introduced on March 4, 2019

ICNL analysis:

Creates a broad new category of civil liability for “riot boosters,” and establishes a fund to collect money recovered from “rioters” and “riot boosters” in civil lawsuits. Governor Kristi Noem indicated that the law would allow the state to “go after… funders” of disruptive protests related to the construction of pipelines, as well as the money that supports such protests, and “cut it off at the source.” The law newly defines a “riot booster” to include (among other things) a person or organization that does not participate in a riot themselves but who “directs, advises, encourages, or solicits other persons participating in the riot to acts of force or violence.” It is unclear what might constitute encouragement or advice to carry out an act of force, such that an individual who shouts encouragement on the sidelines of a disruptive protest, or organizations that provide advice about how to conduct a protest that is peaceful but disruptive, might be implicated. The law also provides that a person or organization is liable for “riot boosting” if they engage in it personally “or through any employee, agent, or subsidiary.” The law would make anyone or organization convicted of “riot boosting” liable for extensive civil damages to the state or a third party, including punitive damages—regardless of the individual or organization’s actual culpability in costs incurred. The law would also create a cause of action against those who fund persons who commit unlawful acts during a riot. However, the relevant provision is unclear and could be used to hold funders liable even when they did not know the person they funded was going to commit an unlawful act. Accordingly, individuals, organizations, and funders could be held liable for substantial amounts of money for any involvement in a disruptive protest.

Industry Lobbying:

As reported by High Country News, SD Governor Kristi Noem promised to give TransCanada a "seat at the table" to help with details of the bill, at 3:23 in the video, below. on the legislative package that included SB 189. TransCanada donated $10,000 to Governor Noem's inauguration.

2017 SB 176

  • Signed into law March 27, 2017
  • Introduced Feb. 3, 2017

ICNL analysis:

Expands the governor’s authority to curtail protest activities on public lands and restricts protests that interfere with highway traffic. The law enables the governor and sheriff to prohibit gatherings of 20 or more people on public land, if the gathering might damage the land or interfere with the renter’s use of the land. The law enables South Dakota’s Department of Transportation to prohibit or otherwise restrict an individual or vehicle from stopping, standing, parking, or being present on any highway if it interferes with traffic. The law also expands the crime of trespass, providing that an individual who defies a posted order not to enter a zone where assembling has been prohibited would be guilty of criminal trespass. Obstructing traffic or committing criminal trespass are classified as Class 1 misdemeanors, punishable by one year in jail or a $2,000 fine, or both. 

ALEC legislators:

4 of 9 members of the sponsoring committee (Senate State Affairs 2017) are confirmed SD ALEC affiliate legislators: Sen. Kris Langer, Sen. Ryan Maher, committee vice chair Sen. Jenna Netherton, and Sen. Al Novstrup.

CSG legislators:

4 of 9 members of the sponsoring committee are confirmed affiliates of the Council of State Governments and its regional divisions:

  • Sen. Jim Bolin attended the CSG Midwest 2017 annual meeting. Bolin is vice chair of the CSG Midwest Education Committee as of 2017-2018.

  • Sen. Ryan Maher is on a CSG committee as of 2017-2018. Maher participated in a 2008 training program for legislators new to CSG.

  • Sen. Jenna Netherton is in the CSG Midwest Economic Development Committee as of 2017-2018

  • Sen. Billie Sutton participated in a 2013 training program for legislators new to CSG.

Fossil Fuel Campaign Contributions:

Co-sponsors received $4,600 from oil and gas companies and employees

Media Reports & References

Legislative Session 2020: Bills that are still alive, KELO, March 8, 2020

Legislative Session 2020: Bills that are still alive, KELO, March 1, 2020

Bob Mercer, Infrastructure-protection crimes defined by South Dakota Senate, Keloland, February 27, 2020

Mike Lee, 9 states weigh ALEC-backed plan targeting protesters, Energywire, E&E Publishing, February 24, 2020

Editorial board, Gov. Noem's crackdown on 'riot boosters' comes at a cost, Sioux Falls Argus Leader, February 21, 2020

Lisa Kaczke, S.D. tribes asked for money to help police pipeline protests. Lawmakers said no., Sioux Falls Argus Leader, February 20, 2020

Dana Hess, Riot boosting bill receives House approval, Southern Union County Leader-Courier, February 19, 2020

Victoria Wicks, "Riot Boosting" Bill Clears House, SDPB Radio, February 19, 2020

Stephen Groves, House passes 'riot boosting' bill amid protests, Daily Inter Lake, February 18, 2020

Mark Russo, WATCH: Protesters protesting protest-related bill, KELO, February 18, 2020

Roz Brown, "Riot-Boosting" Redux Set for Hearing at SD Capitol, Public News Service, February 12, 2020

Mark Russo, New pipeline protest bill clears first hurdle in Pierre, KELO, February 12, 2020

Patrick Callahan, Critical infrastructure bill introduced in state Senate, ABC Dakota News Now, February 10, 2020

Editorial board: State legislature wants outside help for lawsuits. Why not just pass constitutional laws?, Sioux Falls Argus Leader, February 7, 2020

Victoria Wicks, Last Year's "Riot Boosting" Law Now Fixed And Resurrected, SDPB Radio, January 30, 2020

Lisa Kaczke, Gov. Kristi Noem finalizes her 2020 riot boosting legislation, Sioux Falls Argus Leader, January 28, 2020

Phil McKenna, South Dakota Backs Off Harsh New Protest Law and ‘Riot-Boosting’ Penalties, InsideClimate News, October 25, 2019

Mike Lee, S.D. court settlement wipes out 'riot boosting' penalties, E&E Publishing, October 25, 2019

Stephen R. Groves, South Dakota, ACLU settle lawsuit over ‘riot-boosting’ laws, Associated Press, October 24, 2019

Vera Eidleman, South Dakota Governor Caves on Attempted Efforts to Silence Pipeline Protesters, American Civil Liberties Union (ACLU), October 24, 2019

Delilah Friedler, A Judge Just Blocked South Dakota’s “Riot-Boosting” Law, But Anti-Protest Measures Keep Spreading, Mother Jones, September 18, 2019

Lisa Kaczke, Judge grants injunction in 'riot booster' lawsuit over possible Keystone XL protests, Sioux Falls Argus Leader, September 18, 2018

Jake Wartel, Anti-Protest Bills, from National to State Level, Gain Ground, Defending Rights & Dissent, July 12, 2019

Delilah Friedler, South Dakota’s “Riot-Boosting” Law Aims to Curb the Next Standing Rock Before it Even Starts, Mother Jones, June 18, 2019

Alleen Brown, Pipeline Opponents Strike Back Against Anti-Protest Laws, The Intercept, May 23, 2019

Jacob Shea, States Crack Down on Environmental Activists, Sierra Club, May 20, 2019

Naveena Sadasivam, After Standing Rock, protesting pipelines can get you a decade in prison and $100K in fines, Grist, May 14, 2019

Reis Thebault, Oglala Sioux Tribe tells the South Dakota governor she is ‘not welcome’ on their reservation, Washington Post, May 3, 2019

Arielle Zionts, Governor, Ravnsborg say pipeline protest bill doesn't violate First Amendment, Rapid City Journal, April 17, 2019

Amy Dalrymple, Gov. Burgum signs bill to deter pipeline tampering, Bismark Tribune, April 11, 2019

Ben Kesslen, South Dakota pipeline protest law worries Native American activists as ACLU files suit, NBC News, March 31, 2019

Nicholas Kusnetz, More States Crack Down on Pipeline Protesters, Including Supporters Who Aren’t Even on the Scene, InsideClimate News, March 28, 2019

Arielle Zionts, SD ACLU files First Amendment lawsuit against KXL protest bill, Rapid City Journal, March 28, 2019

Lisa Kaczke, Gov. Kristi Noem signs bills aimed at Keystone XL pipeline protests, Sioux Falls Argus Leader, March 27, 2019

Ayana Byrd, South Dakota Criminalizes Protest Against Keystone XL Pipeline, ColorLines, March 20, 2019

Auditi Guha, Republicans Rush to Outlaw Protests Against Oil Pipeline in South Dakota, Rewire, March 19, 2019

Elena Saavedra Buckley, South Dakota pushes bills to prosecute ‘riot-boosting’ ahead of pipeline construction, High Country News, March 6, 2019

Cory Allen Heidelberger, 1984 in South Dakota: Noem Declares Fake Emergency, Creates PEACE Fund to Fleece Protesters and Pay Keystone XL “Riot” Costs, Dakota Free Press, March 5, 2019

Sue Udry, Toxic Brew: State Politicians, Gas & Oil Lobbyists, and ALEC Join Forces Against Environmental Protesters, Protect Rights & Dissent, February 21, 2018

Zoë Carpenter and Tracie Williams, PHOTOS: Since Standing Rock, 56 Bills Have Been Introduced in 30 States to Restrict Protests, The Nation, February 16, 2018

Water is Life Movement: Keystone XL

Water is Life Movement: DAPL - Dakota Access Pipeline