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

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

Updated October 28, 2019. 

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

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

2019 SB 189

  • 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:

According to High Country News and the Dakota Free Press, TransCanada worked with SD Governor Kristi Noem on the legislative package that included SB 189. TransCanada donated $10,000 to Governor Noem's inauguration.

2017 SB 176

  • Enforcement nullified by ACLU legal settlement (see update, above)
  • 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.

Oil & Gas Campaign Contributions:

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

Media Reports & References

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

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