Resisters give shout-out for Riot Boosting Act

Participants in the Sovereign Sisters Gathering attended a rally at South Dakota U.S. District Court Judge Lawrence L. Piersol’s June hearing in Rapid City in the case of Dakota Rural Action v. Noem. COURTESY / Sacred Activism

RAPID CITY – Native American pipeline construction resisters were among the first of plaintiffs to cheer a Sept. 18 federal court order blocking South Dakota Gov. Kristi Noem’s Riot Boosting Act.
U.S. Judge Lawrence L. Piersol granted the injunction that plaintiffs sought in order to prevent enforcement of the new law at least until its challenged constitutionality is decided.
“The lawsuit is ongoing, but based on the judge’s comments in the decision, we are hopeful that we will win this case!” said Lakota-Diné Dallas Goldtooth, a plaintiff, along with his organization Indigenous Environmental Network, NDN Collective, Dakota Rural Action, Sierra Club and Lakota tribal member Nick Tilsen.
NDN Collective called the decision “Big news!” and “an important step in the right direction, protecting our right to organize and mobilize in protection of Mother Earth.”
Piersol’s 24-page opinion said plaintiffs are likely to win on the merits of the case and noted, “The riot boosting statute was introduced and passed in the final week of the 2019 legislative session with an emergency clause to make it immediately effective.
“The publicly made claims by the governor and others were that the legislation was to address costs of various persons and entities from anticipated rioting as a result of the building of the Keystone XL Pipeline through South Dakota,” he said.
The act expressly set up a “pipeline activity coordination expenses fund” to hold fines recovered from the newly coined violation of “riot boosting”. Noem said the legislation would protect the state from expenses that might accrue from conflict over the project.
The judge established that the “threat of irreparable harm” to plaintiffs from the Riot Boosting Act “is clear and substantial.”
He recognized plaintiffs’ claim that the new law has “a chilling effect on their free speech and association rights, and they are prevented from soliciting support or contributing or otherwise supporting peaceful protest of the construction of the project as they are afraid of criminal prosecution, as well as substantial and unwarranted damage awards against them.”
He went on to explain, “The protesters desire to be active in advance of the construction season, as opposed to waiting for construction to happen. If public opinion is to be swayed, it should be done before further construction takes place.
“Those in favor of the pipeline should also have opportunity to respond, rather than having all confrontation taking place during actual construction,” he ventured.
Plaintiffs thanked the American Civil Liberties Union for litigating on their behalf. Stephen Pevar, senior staff attorney in the ACLU’s Racial Justice Program, responded, “We’re glad the court recognized that these vague and overbroad laws threaten the First Amendment rights of South Dakotans on every side of the issue.”
The ruling recalls Noem’s comment that the legislation “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 slow down the pipeline build. It allows us to follow the money for riots and cut it off at the source.”
Pevar said that “was clearly intended to suppress constitutionally-protected, peaceful protests of the Keystone XL Pipeline.”
John Harter, chair of the lead plaintiff Dakota Rural Action, responded, “Our opposition to the pipeline construction may agitate Gov. Noem, but the First Amendment guarantees us the right to make our voices heard.”
Harter, who is opposed to the pipeline route crossing his Tripp County ranch, said, “We’re thrilled that the state is blocked from enforcing the anti-protest laws as the case goes forward.
“The government has dismissed Native Americans, South Dakota farmers and ranchers and others who oppose the Keystone XL Pipeline, but the pipeline, if constructed, would have a substantial impact on all of our lives,” he added.
Piersol left only a small portion of the new statutes in place, reasoning, “The legislature meets next January, and it could pass legislation to meet federal constitutional requirements if it wishes to supplement what remains of the riot boosting statutes.”
Pipeline promoter TC Energy Corp., formerly TransCanada Corp., says it will not undertake construction on the final stretch of the Canada-to-Texas tar-sands crude-oil infrastructure through the unceded 1868 Ft. Laramie Treaty territory of Nebraska, South Dakota and Montana, before spring of 2020.
Tribes and organizations have stalled the project with other federal lawsuits, based on alleged violations of environmental, constitutional and treaty protections.
South Dakota’s KELOLAND news reported Noem’s office declines comment because the case is still in litigation. Noem has maintained the statutes didn’t take aim at First Amendment guarantees.
However, Piersol countered with references to the civil rights movement of the 1960s. “Imagine that if these riot boosting statutes were applied to the protests that took place in Birmingham, Alabama, what might be the result? … Dr. King and the Southern Christian Leadership Conference could be liable for treble damages.”
Piersol quoted King’s “Letter from Birmingham Jail” during dissent over segregation: “You express a great deal of anxiety over our willingness to break laws,” King wrote, referring readers to Aristotle’s declaration that “an unjust law is no law at all.”
The judge took issue with Noem’s statement about out-of-state influences. “Is one goal to keep outsiders out?” he responded. “If so, that is not a laudable goal as we are a nation of 50 states with each citizen in any state having the same rights of free speech and assembly in every state,” he wrote.
“The freedom of speech and association are constitutional rights that are central to all citizens of our country. Those rights will be thwarted if the unconstitutional portions of the riot booting legislation remain in effect,” he concluded.
He ruled that Pennington County Sheriff Kevin Thom may be dismissed as a defendant in the case for lack of standing to be sued. Likewise, the sheriffs in the other eight South Dakota counties on the proposed pipeline route would not be seen as defendants, although they would be responsible for filing charges of riot boosting.
Since the Riot Boosting Act passed with an emergency clause, it has been in effect for six months. However, no charges have been filed, Piersol observed.