SIOUX FALLS, S.D. (KELO) — The American Civil Liberties Union is celebrating a big win after a package of laws passed by the South Dakota legislature and signed by Gov. Kristi Noem (R-SD) was blocked by a federal judge this week.
The ACLU is representing Dakota Rural Action, Dallas Goldtooth, Indigenous Environmental Network, NDN Collective, Sierra Club and Nicholas Tilsen.
“We are very excited about the order and very excited for our clients and other folks who wanted to be speaking out on this issue and others,” said ACLU staff attorney Vera Eidelman.
She is part of the ACLU’s Speech, Privacy, and Technology Project and worked on the case. She spoke to KELOLAND News from New York.
“The order preliminary enjoins, meaning it blocks the state from enforcing, while the lawsuit is ongoing, the laws that we challenged in the case,” Eidelman said. “So, it says the state cannot enforce the portions of the law that would have restricted our clients and other people in South Dakota from being able to engage in full-throated advocacy and oppose the construction of the (Keystone XL) pipeline.”
The state could appeal the case, but they haven’t yet indicated a plan. Yesterday, KELOLAND News reached out to Noem’s office.
“The governor and her team are reviewing the ruling. Since the matter remains in litigation, she won’t be making further public comments on the matter at this time,” a spokesperson told KELOLAND News.
“Separate from that, the rest of the litigation continues, so we go on into the next phases into things like discovery and trying to get a permanent order,” Eidelman said.
The discovery phase is before the trial, where each side can get evidence from the other parties by written answers to questions or documents.
How these laws were developed
The legislation was rushed into law during the 2019 legislative session. The bills were introduced on March 4. KELOLAND Capitol News Bureau Correspondent Bob Mercer reported in March:
Noem, who took office January 5, kept the measures under wraps until Monday, the 33rd day of the Legislature’s 40-day session. The pace was fast:
— The Senate agreed Monday to suspend its rules and introduce the Republican governor’s two bills.
— The Legislature’s Joint Committee on Appropriations held a single hearing Wednesday.
— On Thursday, lawmakers passed both in a span of a few hours, largely along Republican-Democratic lines in each chamber.
The riot-boosting penalties rolled through the Senate 30-5 and the House 53-13.
The governments-assistance fund followed by bigger margins of 31-3 in the Senate and 58-8 in the House.
“These bills are pro-economic development, pro-free speech, and take a proactive approach to spreading the risk and costs associated with building a pipeline. I applaud the legislature for their thoughtful review and decisive leadership. I believe this approach will be part of the next generation of major energy infrastructure development,” Noem said after the laws were passed.
Eidelman says this case could be big for First Amendment cases, specifically involving the freedom of assembly.
“I think that this case is important and that it is one of the first cases challenging a broad trend that we’ve seen of legislatures passing laws that go after environmental protesters, indigenous rights organizers, folks who are pushing back against the construction of pipelines around the country,” Eidelman said.
Indiana, Louisiana, Missouri, North Dakota, Oklahoma, South Dakota, Tennessee, Texas and West Virginia are all states that have enacted some sort of anti-protest law related to pipelines, according to the International Center for Non-Profit Law.
Many of these laws were triggered by the Dakota Access Pipeline protests from April 2016 to February 2017 on the Standing Rock Reservation.
Eidelman points to one section of the order from Judge Lawence Piersol where he writes about the vagueness of the laws.
Construction of the pipeline has not started in South Dakota, as of July 31. However, TC Energy (formally TransCanada) said in a public filing that the company has been conducting “pre-construction activities.”
The pipeline would enter from Montana at South Dakota’s northwest corner, make its way across 315 miles through nine counties — Harding, Butte, Perkins, Meade, Pennington, Haakon, Jones, Lyman and Tripp — and leave at northcentral Nebraska.
Seven pump stations are proposed in South Dakota counties: two in Harding, two in Tripp and one apiece in Meade, Haakon and Jones.
The sentences highlighted in yellow were blocked by Judge Piersol.