Wednesday, May 22, 2019

Shale Law in the Spotlight – Update on State Critical Infrastructure Protection Statutes: North Dakota, Oklahoma, and South Dakota

Written by Chloe Marie – Research Specialist

Since 2017, a number of states have taken legislative action to protect elements of their infrastructure, including oil and gas pipelines, from damage or disruption. In our last Shale Law in the Spotlight article, we addressed legal developments over the last two years in the states of Indiana, Iowa, and Louisiana.  This article will address legal developments in the states of North Dakota, Oklahoma, and South Dakota.

North Dakota

During the ongoing protests against construction of the Dakota Access Pipeline, North Dakota Governor Doug Burgum signed into law two pieces of legislation on February 3, 2017 – House Bill No. 1293 and 1304. Among other things, House Bill 1293 stipulates that an individual who trespasses in a highly secured premises with full knowledge of the illegality of the action will be guilty of a Class B misdemeanor and can be sentenced up to 30 days of imprisonment and subject to a $1,000 fine. House Bill 1293 also establishes a noncriminal offense of trespass where an individual enters upon land that has been appropriately posted. A fine of $250 is specified for this trespass offense, and the legislation details the use of a process to post bail through the mail for this offense.  House Bill 1304 criminalizes the wearing of a “mask, hood or other device that covers, hides, or conceals any portion of [the] face” with the intent to “intimidate, threaten, abuse, or harass any other individual” when committing a criminal offense. Governor Burgum signed these two bills into law and declared them to be emergency measures.

Subsequently, on March 2, 2017, Governor Burgum signed into a law another piece of legislation – House Bill No. 1426 – this time increasing penalties imposed for riot offenses. Anyone “knowingly” providing weapons for use in a riot, teaching others how to use a weapon for use in a riot, or being armed during a riot can be charged with a Class B felony, rather than a Class C felony. A Class B felony in North Dakota is punishable by up to 10 years imprisonment and up to $10,000 in fines. Furthermore, under this legislation, one engaging in a riot is guilty of a Class A misdemeanor, rather than a Class B misdemeanor, and thus could be sentenced to a maximum of one year in jail and a fine of up to $3,000. Disobeying a public safety order made during a riot is also considered to be a Class A misdemeanor.

Again, in order to reduce adverse impacts resulting from public disturbances in the future, Governor Burgum signed into law Senate Bill 2044 on March 21, 2019, imposing penalties upon those involved in the damage or disruption of the state’s critical infrastructure. Senate Bill 2044 states that anyone who intentionally causes a substantial interruption or impairment of a critical infrastructure facility or a public service will be charged with a Class C felony, punishable in North Dakota by 5 years of imprisonment and/or a fine of $10,000. If the individual acts knowingly and recklessly, he shall be guilty of a Class A misdemeanor and sentenced to a term of imprisonment of up to one year and/or a fine not more than $20,000. The legislation also targets organizations that engage in conspiracies with individuals to tamper with or damage a critical infrastructure and punishes the organizations by the imposition of fines up to $100,000.


On May 3, 2017, Governor of Oklahoma Mary Fallin signed into law House Bill 1123 targeting those who willfully trespass or damage a critical infrastructure. According to the law, any individual found guilty of trespassing on property containing a critical infrastructure will be sentenced to a misdemeanor punishable by a 6-month term in a county jail and/or fine of $1,000.00. The prison sentence and fine can be increased to one year in jail and/or $10,000.00 if it is proven that the trespasser intended to “willfully damage, destroy, vandalize, deface, tamper with equipment, or impede or inhibit operations of the facility.”

Furthermore, the law provides that one who acts deliberately to “damage, destroy, vandalize, deface or tamper with the equipment in a critical infrastructure” will be convicted of a felony and sentenced up to 10 years of imprisonment and/or $100,000.00 in fine. Any conspiring organization to such acts will be severely punished by a $1,000,000.00 fine. 

Only a few days later, Governor Fallin also signed into law House Bill 2128, heightening penalties for the criminal offence of trespass. This bill complements House Bill 1123 in that it provides that anyone convicted of trespass will be responsible for any damages to personal or real property while trespassing. In addition, the law specifies that anyone found guilty of inciting people to trespass can be held vicariously responsible for any damages to personal or real property committed during the trespassing.

South Dakota

As protests continued against the Keystone XL pipeline, South Dakota Governor Denis Daugaard signed into law Senate Bill 176 on March 13, 2017, designed to preserve and protect school and public lands from rallies of large groups of people. Section 5 of the legislation provides that anyone disobeying an order not to enter school or public lands will be charged with a Class 1 misdemeanor, punishable by up to one-year imprisonment and up to $2,000.00 in fines.

More recently, on March 29, 2019, South Dakota Governor Kristi Noem signed into law Senate Bill 189, imposing civil liability for pipeline demonstrators involved in riot boosting and establishing the Riot Boosting Recovery Fund designed to receive civil recoveries imposed upon those engaged in riot boosting. On that same day, Governor Noem also signed Senate Bill 190 setting up the Pipeline Engagement Activity Coordination Expenses (PEACE) Fund for extraordinary expenses incurred by the state or municipalities arising out of or resulting from pipeline construction. Governor Noem proposed this legislative package in early March, with the objective of dealing with pipeline protest-related expenses and in response to potential protests against the Keystone XL pipeline.

Pending Legislation in Other States

Several states have pending legislation relating to critical infrastructure protection, including the states of Idaho (SB 1090), Illinois (HB 1633), Minnesota (SF 2011), Missouri (SB 293), Ohio (SB 33), Pennsylvania (SB 323), Tennessee (SB 0264), and Texas (SB 2229; SB 1993; HB 3557).


Additional Resources:

This material is based upon work supported by the National Agricultural Library, Agricultural Research Service, U.S. Department of Agriculture

Tuesday, May 21, 2019

Shale Law Weekly Review - May 21, 2019

Written by:
Sara Jenkins - Research Assistant
Jackie Schweichler - Staff Attorney

The following information is an update of recent local, state, national, and international legal developments relevant to shale gas.

Pipelines: NY State Department of Environmental Conservation Denies Permit for Proposed Northeast Supply Enhancement Pipeline Project
On May 15, 2015, the New York State Department of Environmental Conservation (DEC) denied a permit, without prejudice, for Williams’ NorthEast Supply Enhancement proposed pipeline project (Project). More specifically, DEC denied the Water Quality Certification required under section 401 of the Clean Water Act. DEC cited impacts to aquatic life and public health caused by rising copper and mercury levels that would result from the Project. The Project, operated by Williams, is designed to expand the existing Transco pipeline system in Pennsylvania, New Jersey, and New York, providing an additional 400 million cubic feet of natural gas per day to the Northeast.

Production and Operation: U.S. EIA Drilling Productivity Report Shows Increases in New-Well Production and Overall Oil and Gas Production.
On May 13, 2019, the U.S. Energy Information Administration released its monthly Drilling Productivity Report (Report). The Report uses data on the total number of drilling rigs in operation in a given region. Most notably, the Report shows the largest increase in the Permian region for new-well oil production per rig, from 654 barrels/day in May, to an estimated 682 barrels/day in June. The Haynesville region had the highest increase in new-well gas production per rig, from 10,665 cubic feet per day to 10,834 cubic feet per day. The Permian region also had the highest estimated overall oil production increase from May to June, and the Appalachian region had the highest estimated overall gas production from May to June.  

Federal Lands: Bureau of Land Management Releases Draft Lewistown Resource Management Plan and Environmental Impact Statement
On May 17, 2019, the U.S. Department of the Interior Bureau of Land Management released a draft resource management plan and draft environmental impact statement for certain counties in Montana. These plans cover 12.9 million acres of land and almost 2 million acres of federal mineral estate.  Issues covered within the plans include mineral and energy development, livestock grazing, soil, water resources, socioeconomics, and more.  According to the press release, the purpose of the plan is to analyze environmental, economic, and sociological impacts of various resource  management options..

From the National Oil & Gas Law Experts:
George Bibikos, At the Well Weekly, (May 17, 2019)

Charles Sartain, The Difficulty of Enforcing an Unwritten Contract, (May 14, 2019)

Pennsylvania Legislation:
HB828: would amend well permit requirements in Title 58 of the Pennsylvania Consolidated Statutes (Laid on the table- May 14, 2019)

HB827: would allow landowners living in the Delaware River Basin to receive compensation calculated in the same manner as other eminent domain actions (Remarks see House Journal Page- May 14, 2019)

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