Written by Chloe Marie –
Research Fellow
On March 29, 2019, South
Dakota Governor Kristi Noem signed into law two companion bills designed to
address separate issues related to pipeline protests. Senate Bill 189 imposes
civil liability for pipeline demonstrators involved in riot boosting and establishes
the Riot Boosting Recovery Fund to receive civil damages paid by those involved
with riot boosting. Senate Bill 190 establishes the Pipeline Engagement
Activity Coordination Expenses (PEACE) Fund to pay for extraordinary expenses incurred
by the state or local governments arising out of, or resulting from, activities
related to pipeline construction. This
article will summarize the content of both bills within the legislative
package. In this article, these two bills will be collectively referenced
as the legislative package.
Governor Noem announced the
introduction of the legislative package in early March, with the stated objective
to deal with pipeline
protest-related expenses as a response to potential protests against the
Keystone XL pipeline. “This package 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 slowdown the pipeline build. It allows us to follow the
money for riots and cut it off at the source,” according to Governor Noem.
Senate Bill 189 – An Act to establish a fund to
receive civil recoveries to offset costs incurred by riot boosting, to make a
continuous appropriation therefor, and to declare an emergency
Senate Bill 189 amends South Dakota Codified Laws, Chapter 20-9 relating to Liability for
Torts and adds a new provision placing liability on anyone engaged in riot
boosting. Although the term riot boosting is not specifically defined, the bill
lists situations in which there will be liability. A person will be held
legally responsible, whether participating directly or indirectly in a riot,
each time he or she “directs, advises, encourages, or solicits any other person
participating in the riot to acts of force or violence.” In addition, a person will
be held responsible for riot boosting, if “[u]pon
the direction, advice, encouragement, or solicitation of any other person,” he
or she “uses force or violence, or makes any threat to use force or violence,
if accompanied by immediate power of execution, by three or more persons,
acting together and without authority of law.”
The bill also addresses the issue of jurisdiction in the event of riot
boosting for riots that occur within the state of South Dakota. The new
legislation confers jurisdiction to state courts to try anyone engaged in riot
boosting for riots that take place in South Dakota and provides that only the
state, political subdivisions, and damaged third parties are entitled to money
damages.
Furthermore, the bill provides that financial compensation awarded to a
plaintiff in a riot boosting action may include “both special and general
damages, reasonable attorney’s fees, disbursements, other reasonable expenses
incurred from prosecuting the action, and punitive damages.” The new
legislation also states that anyone “who solicits or compensates any other
person to commit an unlawful act or to be arrested is subject to three times a
sum that would compensate for the detriment caused.”
Finally, the new legislation creates a fund called the Riot Boosting Recovery
Fund, whose money may be used either: (1) to compensate any claim for damages
arising out of or resulting from a riot or (2) transferred to the PEACE fund, newly
established by Senate Bill 190. The bill clarifies that “any civil recoveries
shall be deposited in the “[riot boosting
recovery] fund.”
Senate Bill 190 – An Act to promote pipeline
construction and fiscal responsibility by establishing a fund, to authorize a
special fee for extraordinary expenses, to make a continuous appropriation
therefor, and to declare an emergency
The primary purpose of Senate Bill 190 is to create a PEACE fund to pay administrative costs and extraordinary
expenses incurred by the state or local governments in response to pipeline
protests. The state Department of Public Safety will be responsible for
managing and maintaining the fund.
Under the new legislation, the state may file a disbursement claim with
the director of the PEACE fund for the expenses incurred as a result of actions
in opposition to a pipeline project. Each claim must be thoroughly documented
and include a statement of the basis for the claim and appropriate
documentation such as records and books of account. The PEACE fund director has
discretion to accept or deny the claim. Interestingly, the bill provides
authorization for the submission of a request for pre-approval of an
anticipated claim for extraordinary expenses.
The legislation stipulates that pipeline companies engaged in pipeline
construction projects in the state are required to post a surety bond to the
state Department of Revenue in the amount of “one million dollars for every ten
miles affected by a project, but not in excess of twenty million dollars for
each project.” The PEACE fund is financed primarily through deposits from the
Riot Boosting Recovery Fund, but also through a special fee consisting of 5% of
each surety bond posted by pipeline companies to the state Department of
Revenue.
This new legislation will expire on June 30, 2025.
Litigation Challenging Legislative Package
A day prior to the signing of the legislative package, Dakota Rural
Action, along with five other environmental groups, filed a legal
action against Governor Kristi Noem
challenging Senate Bill 189. The environmental groups argued that such
legislation is unconstitutional on its face because provisions “target
protected speech, … they are written too broadly and so reach a substantial
amount of protected speech, and … they fail to make it clear to Plaintiffs,
others subject to these laws, and government actors tasked with enforcing the
laws what conduct and speech is prohibited by them;” thus violating the First
and Fourteenth Amendments of the U.S. Constitution.
On April 9, 2019, plaintiffs filed a motion for
preliminary injunction seeking to enjoin
the new legislation from being enforced by South Dakota officials, citing
infringement of plaintiffs’ First Amendment and Due Process rights.
Further information on Dakota
Rural Action et al. v. Noem et al., in the U.S. District Court for the
District of South Dakota is available at docket no. 5:19-cv-05026-LLP.
Resources:
This material is based upon work supported by the National Agricultural Library, Agricultural Research Service, U.S. Department of Agriculture.
