State defends South Dakota pipeline protest legislation

South Dakota’s governor and attorney general are asking a federal judge to throw out a lawsuit challenging a new law that aims to prevent disruptive demonstrations against the Keystone XL pipeline if it’s built.

The law allows officials to pursue criminal or civil penalties from demonstrators who engage in “riot boosting,” which is defined in part as encouraging violence during a riot. The American Civil Liberties Union and American Indian tribes say the law will stifle free speech, but the state disputes that argument.

“Defendants deny that any objectively reasonable fear of prosecution for protected speech would arise under (the law),” Deputy Attorney General Richard Williams said in a Tuesday filing.

He also said the state is immune from such lawsuits.

The legislation was muscled through the Legislation by Republican Gov. Kristi Noem and the GOP leaders in a matter of days earlier this year. The new law came in the wake of massive and prolonged protests in North Dakota against the Dakota Access oil pipeline in 2016 and 2017. There were 761 arrests in six months, and the policing effort cost the state $38 million.

Texas-based pipeline developer Energy Transfer Partners also is seeking to recover millions of dollars in protest-related damages from Greenpeace, an effort the environmental group calls a “sham.”

American Indian tribes and environmental groups have promised similar protests against Keystone XL, which TransCanada Corp. wants to build to move Canadian crude through Montana and South Dakota to Nebraska, where it would connect with lines carrying oil to Gulf Coast refineries. The $8 billion project is tied up in the courts, as president Donald Trump tries to push it through but environmental groups resist.

The ACLU sued over the South Dakota law late last month on behalf of groups and people planning to protest the pipeline or encourage others to do so. The lawsuit argues the law is an overreach, vague and targets protected speech.

The law states that people who solicit or pay someone to break the law or be arrested would be subject to paying three times the amount that would compensate for the detriment caused. Money collected would be used to pay for riot damage claims or could be transferred into a fund administered by the state Department of Public Safety.

Noem has said the law is meant to address problems caused by “out-of-state rioters funded by out-of-state interests,” and that it arose from discussions with lawmakers, authorities, stakeholders and TransCanada.

Tribes have said they were not consulted. Williams, the deputy attorney general, said in his filing that “all citizens of the state, including tribes, tribal members, and environmental groups, were equally allowed to participate in the legislative process.”

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