Native rights advocates quash pipeline Riot Boosting Act

Crowd outside Federal Judge Lawrence L. Piersol’s courtroom in Rapid City rallied peacefully in June at his hearing to determine if South Dakota Gov. Kristi Noem’s 2019 legislation violates the First Amendment guarantees of oil pipeline resisters. (Photo COURTESY / Andy Johnson)

RAPID CITY – Native and other grassroots pipeline fighters celebrated a court settlement Oct. 24, barring enforcement of the clauses in Gov. Kristi Noem’s 2019 Riot Boosting Act that violate constitutionally protected freedom of speech, assembly and movement.
Noem pushed through the eleventh-hour law in the most recent legislative session expressly to ward off out-of-state support for pipeline resistance. She said her motive was to save the state money as she moved to defend the proposed TransCanada Corp. Keystone XL Pipeline construction from widespread tribal and other local opposition.
“South Dakota knew these laws couldn’t stand up to our legal challenge so rather than face embarrassment they decided to capitulate,” said Dallas Goldtooth, organizer for the plaintiff Indigenous Environmental Network.
“We will celebrate this win but remain vigilant against further government attempts to outlaw our right to peacefully assemble,” said Goldtooth, a Lakota Diné and individual plaintiff, who testified that he is peacefully resisting the construction.
“We will fight on for the protection of the Oceti Sakowin people and the sacredness of Mother Earth with no hesitations,” he said in a written statement.
Another individual plaintiff who is fighting peacefully, Nick Tilsen, also spoke for his plaintiff organization NDN Collective when he said, “The Boosting Act was an insult to the Constitution and an attempt to muzzle the voices of the people and our movement to defend Mother Earth.”
The settlement upholds the temporary injunction against the Riot Boosting Act that Western South Dakota U.S. District Judge Lawrence L. Piersol granted Sept. 18 to keep the law from remaining in force as its constitutionality was in doubt.
The settlement stipulates that it will hold until the unconstitutional clauses “are substantially revised by legislative action.” It also stipulates that the state must pay plaintiffs’ attorney fees.
Tribes and organizations have stalled the project with other federal lawsuits, based on alleged violations of environmental, constitutional and treaty protections. “Onward, we will continue to fight for air, land, water and our rights,” Tilsen said in the statement.
Plaintiffs in the other cases are the Rosebud Sioux Tribe, Ft. Belknap Indian Community, Indigenous Environmental Network, North Coast Rivers Alliance, Northern Plains Resource Council, Bold Alliance, Center for Biological Diversity, Friends of the Earth, Natural Resources Defense Council, and Sierra Club.
Embroiled in the court proceedings, pipeline promoter TC Energy Corp., formerly TransCanada Corp., said 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.
John Harter, board chair of the statewide non-profit Dakota Rural Action, lead plaintiff in the case against the Riot Boosting Act, professed, “We are proud to have stood alongside our native allies to fight for the rights of all South Dakotans.
“Gov. Noem and Attorney Gen. (Jason) Ravnsborg settled this case because they are clearly in the wrong – something they and the Legislature were warned of as they rushed to pass this unconstitutional law,” Harter said.
“In fact, the whole process of pushing pipelines through this state – from the use of eminent domain to benefit a foreign corporation, to cracking down on citizens protecting the land and water – violates our Constitution and leaves taxpayers, once again, to foot the bill,” Harter said.
He thanked the ACLU for litigating “this crucial case” on behalf of plaintiffs. Stephen Pevar, senior staff attorney with the ACLU’s Racial Justice Program called the state’s anti-protest efforts “plainly unconstitutional.
“This settlement helps ensure that no one has to fear the government coming after them for exercising their First Amendment right to protest,” he said, adding that it “should also serve as a lesson for other legislatures considering similar anti-protest efforts.”
ACLU’s contract lawyer Brendan Johnson, partner with the Robins Kaplan law firm, said that “by equating peaceful organization and support of protest with ‘riot boosting’ and incitement to riot, the government stifled our clients’ abilities to speak out against the Keystone XL Pipeline.
“We’re happy that the state recognized that these vague and overbroad laws threatened the First Amendment rights of South Dakotans on every side of the issue and that, as a result of this settlement, no one’s voices will be silenced.”
Noem released a written response indicating that in the wake of the court’s approval of the settlement agreement, her administration “can begin work to update crimes that have been on the books since South Dakota became a state.
“We remain focused on preserving law and order while protecting the right to free speech and peaceful assembly,” she said, adding, “It’s important to note that it is still illegal to riot in South Dakota. No one has the right to incite violence.”
In the plaintiffs’ effort to avoid violence, the settlement stipulates that her administration must send out a letter to law enforcement across the state, telling officers to refrain from enforcing the Riot Boosting Act.
TC Energy needs approval of many more permits in order to achieve its goal of transporting tar-sands from the mine fields of ancestral Athabascan homelands in Canada to the refineries and export shipping facilities on Texas’ Gulf of Mexico.
The corporate literature says that diluting the tar with lighter petroleum products to make a liquid called dilbit, which allows it to flow in a pipeline, is the safest way to move the heavy crude down south and abroad.
However, its Keystone I Pipeline from Canada to the Texas Gulf spilled dilbit more than a dozen times in 2011, the first year of operations. The product is considered a hazardous material.
The U.S. State Department under Secretary John Kerry and former President Barack Obama, denied the Presidential Permit for the KXL to cross into U.S. territory on the grounds that it was not in “the national interest.”
Subsequently President Donald Trump, a former shareholder in TransCanada Corp., fulfilled a campaign promise by ordering the State Department’s reversal of the permit decision and then cancelling that permit to order a different permit of his own.
The corporation triumphed over environmental, water and property rights advocates opposing construction of the southern part of the line from the Texas Gulf Coast to Steele City, Nebraska. Pre-construction activities are underway on the remainder of the route through Nebraska, South Dakota and Montana.
However, further development is in jeopardy, as stakeholders await the outcome of a State Department hearing Oct. 29 in Billings, Montana on the project’s Draft Supplemental Environmental Impact Statement.
In addition, opponents were scheduled to submit comments Oct. 29-31 to the South Dakota Water Management Board in Pierre regarding the company’s applications for free use of public surface and underground water for construction man-camps and pipeline startup testing.