A western South Dakota sheriff is seeking to be dismissed from a lawsuit challenging new state laws that target disruptive demonstrations by anti-oil pipeline activists.

Attorney Rebeca L. Mann said Pennington County Sheriff Kevin Thom must enforce state laws but isn’t responsible for defending them.

“Pennington County is not a proper party to defend the constitutionality of state statues nor should it be burdened with the expense of defending statutes it has no power to change,” Mann argued in court documents filed last week.

Pennington County is one of eight South Dakota counties along the route of TransCanada Corp.’s planned Keystone XL pipeline to move Canadian crude through Montana and South Dakota to Nebraska, where it would connect with lines to Gulf Coast refineries. The $8 billion project has the backing of President Donald Trump but is being fought in the courts by opponents.

Activists and American Indian tribes also plan on-the-ground protests against construction. Such protests against the Dakota Access oil pipeline in North Dakota in 2016 and 2017 resulted in 761 arrests and cost the state and Morton County $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 is fighting.

In March, South Dakota Republican Gov. Kristi Noem and GOP leaders passed legislation allowing 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. Noem has said the law is meant to address problems caused by “out-of-state rioters funded by out-of-state interests.”


The American Civil Liberties Union and tribes contend the law stifles free speech, and the ACLU is suing Noem, Attorney General Jason Ravnsborg and Thom in federal court on behalf of activists.

Thom is named as a defendant because he’s sheriff in the county in which the activists are working, according to Courtney Bowie, legal director for the ACLU of South Dakota, North Dakota and Wyoming. Plaintiffs include the Rapid City-based NDN Collective nonprofit, which advocates for indigenous peoples and climate change awareness.

Mann argued “there is no jurisdictional basis for suing Sheriff Thom to challenge the constitutionality of state statues.” She also argued more broadly that since activists have pledged peaceful protests against Keystone XL, there is no “realistic fear of prosecution.” Attorneys for Noem and Ravnsborg made a similar argument earlier this month.

Plaintiffs’ attorneys have not yet responded to Thom’s argument, but Bowie in a statement to The Associated Press said “our complaint alleges a chilling of free speech, which is itself an injury that our clients have suffered and continue to suffer.”

“They do not have to wait for prosecution to bring a claim and, with the way the laws are written, they are subject to later civil or criminal liability for their organizing work,” Bowie said.

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. The ACLU maintains it fails to adequately describe the speech or conduct that could subject protesters and organizations to penalties.


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