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.
Oklahoma
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).
References:
North
Dakota –
House Bill No. 1293, An Act to amend and reenact
sections 12.1-22-03 and 37-17.1-22 of the North Dakota Century Code, relating
to trespassing on posted property and disaster and emergency response recovery
costs; to provide a penalty; and to declare an emergency
House Bill No. 1304, An Act to create and enact a new
section to chapter 12.1-31 of the North Dakota Century Code, relating to
prohibiting the wearing of masks, hoods, and face coverings during the
commission of a criminal offense; to provide a penalty; and to declare an emergency
House Bill No. 1426, An Act to amend and reenact
subsection 4 of section 12.1-25-01, subsection 1 of section 12.1-25-02,
subsection 1 of section 12.1-25-03, and section 12.1-25-04 of the North Dakota
Century Code, relating to riot offenses; and to declare an emergency
Minnesota
– Senate Fill No. 2011, An Act relating to public
safety; establishing the Worker Safety and Energy Security Act; providing for
criminal penalties; amending Minnesota Statutes 2018, sections 609.594;
609.6055 (pending)
Ohio
– Senate Bill No. 33, An Act to amend sections 2909.07, 2909.10, 2911.21,
2911.211, 2917.21, and 2917.32 and to enact section 2307.67 of the Revised Code
to modify certain criminal offenses with respect to critical infrastructure
facilities and to impose fines and civil liability for damage to a critical infrastructure facility
(pending)
Pennsylvania
– Senate Bill No. 323, An Act providing for liability
for public safety response costs (pending)
Additional
Resources:
This material is based upon work supported by the National Agricultural Library, Agricultural Research Service, U.S. Department of Agriculture
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