Lawmakers question constitutionality of rushed pipeline bills

By Rich Winter

Throughout the 2019 South Dakota Legislative Session, State Senator (D) Troy Heinert figured some kind of legislation was coming regarding Keystone XL Pipeline.

Every week he went to the Trans-Canada pipeline lobbyists, and every week he stopped in Governor Kristi Noem’s office, asking both entities to let him know if anything was coming down so he could inform the people he represents of impending pipeline legislation.

On a Sunday night, late in this year’s session, Heinert received a phone call.

“I got a call that said there was a new legislative item that needed to be talked about first-thing Monday,” Heinert said. “I knew instantly what it was about.”

Senate Bills 189 and 190 were introduced that Monday morning. By Wednesday the bills had passed through appropriations and by Thursday both were presented and cleared through the House and the Senate.

“Senate Bill 189 and 190 came about in a fashion I’ve never seen during my seven years in the Legislature,” he said.

After the Bills passed and before they were signed, Governor Noem talked about SB 189 and SB 190 with the Associated Press.

SB 189 establishes a legal avenue and funding source for the state to pursue out-of-state sources that “riot boost,” or, according to Noem, fund violent protests that aim to shut down pipeline construction.

“I fully support the freedoms of speech and assembly, but we must also have clear expectations and the rule of law,” Noem said in Wednesday’s release. “My pipeline bills make clear that we will not let rioters control our economic development. These bills support constitutional rights while also protecting our people, our counties, our environment, and our state.”

SB 190 would establish the Pipeline Engagement Activity Coordination Expenses (PEACE) Fund to go toward extraordinary costs attributed to pipeline protests, sourced from local, state and federal dollars, as well as the pipeline company (in Keystone XL’s case, TransCanada).

Those bills were passed into law on March 27.

Senate Democratic leader Troy Heinert, an opponent, told the Associated Press and the Todd County Tribune in an exclusive interview, the now laws have “constitutional issues” and he suspects they will be challenged in court.

In a mid-March interview with the Tribune, Heinert questioned the “riot-boosting” language, a term he’s never heard of before.

“If you financially support someone and they end up in a riot a person can be held civilly liable,” Heinert said. “What if I help someone with a load of wood or some gas? A person could be potentially liable for millions of dollars if it is proven they financially backed someone involved in protests.”

Heinert adds, “To me it really stifles people’s ability to support causes they believe in.”

Republican Rep. Jon Hansen says the measure to go after so-called riot boosting is about upholding the rule of law and holding accountable people who incite violence. The ACLU of South Dakota says it’s currently “weighing all options” to make sure residents’ First Amendment rights are upheld.

Heinert’s take on Senate Bill 190:

“It actually makes Trans-Canada put up a bond and pay into an ongoing fund, but if something happens Trans-Canada can access those funds so they would actually be paying themselves back.”

While both bills passed the House and Senate easily, Heinert maintains a number of reasons why these Bills are unconstitutional.

1. Little Debate

2. Suspended the Rules

3. No Tribes Consulted

4. No Tribal Leaders Consulted

“We don’t want violence either,” Heinert said. “But the way this was done, with complete disregard for people’s opposition to this pipeline in South Dakota is alarming.”

The Republican governor’s bills would require pipeline companies to chip in on protest-related expenses and create a way to pursue money from those who fund destructive demonstrations. Republican Sen. Lee Schoenbeck, a supporter, says the bill going after protest funders seeks to protect families and communities who would be victims of “terrorist conduct.”

At numerous times during this year’s Legislation Session, the pipeline and its exact proximity were discussed at length.

“I think they are on what was once traditionally allotted land. Trans-Canada knew they were going right by Bridger, and right by Ideal,” Heinert said. “There is Tribal land in the area and around the pipeline. Same thing with Cheyenne River, and those original land claims are not being acknowledged.”

Heinert adds that “By Treaty,” all of western South Dakota is Tribal Land.

In addition to what Heinert calls the unconstitutionality of the bills and how they moved through the South Dakota legislature, the State Senator said he was once again disappointed that Tribal Leaders weren’t given notice.

“If you are going to do this through our state then we need to be at the forefront of these talks and not an after thought,” he said.

Heinert also pointed out the potential financial culpability South Dakota Tribes may become responsible for.

“Say there is a protest at the camp up by Ideal and say there is a clean-up cost or whatever,” Heinert said. “Tribes wouldn’t have access to funds/dollars for cleaning that up.”

With news popping up nearly every day regarding lawsuits to stymie the pipeline progress, or that United States President Donald Trump  just signed a new permit for the pipeline Friday, Keystone XL and potential construction continues to stir South Dakota.

Trump said the permit issued Friday replaces one granted in March 2017. The order is intended to speed up development of the controversial pipeline, which would ship crude oil from tar sands in western Canada to the U.S. Gulf Coast.

A federal judge blocked the project in November, saying the Trump administration had not fully considered potential oil spills and other impacts. U.S. District Judge Brian Morris ordered a new environmental review.

A White House spokesman said the new permit issued by Trump “dispels any uncertainty” about the project. “Specifically, this permit reinforces, as should have been clear all along, that the presidential permit is indeed an exercise of presidential authority that is not subject to judicial review under the Administrative Procedure Act,” the spokesman said.

For Heinert, and other Tribal Leaders across South Dakota, the passage of Senate Bills 189 and 190 only amps up what could be a summer of looming tension.

“Tribal leaders are working this on every level. Tribes have a direct line to the Federal Government and they are relying on us at the State Level,” Heinert said. “This really puts us behind the 8-ball. This never should have happened, especially in the time frame it went down.”

As the count-down to construction season begins, Heinert said he’s shocked more South Dakotans aren’t standing up and paying attention to the pipeline proceedings.

“This pipeline has the ability to wreck everything in South Dakota, including the Missouri River,” he said. “All of our tourist dollars are wrapped around water, all of the hunting and fishing revolves around water. If we do not protect that which is  most precious to us, what are we doing?”

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