Dakota Rural Action v. Noem

• Decision Date: 18 September 2019
• Docket Number: CIV 19-5026
• Parties: DAKOTA RURAL ACTION; Dallas Goldtooth; Indigenous Environmental Network ; NDN Collective; Sierra Club; and Nicholas Tilsen; Plaintiffs, v. Kristi NOEM, in her official capacity as Governor of the State of South Dakota; Jason Ravnsborg, in his official capacity as Attorney General; and Kevin Thom, in his official capacity as Sheriff of Pennington County, Defendants.
• Court: U.S. District Court — District of South Dakota

416 F.Supp.3d 874

DAKOTA RURAL ACTION; Dallas Goldtooth; Indigenous Environmental Network ; NDN Collective; Sierra Club; and Nicholas Tilsen; Plaintiffs,

v.Kristi NOEM, in her official capacity as Governor of the State of South Dakota; Jason Ravnsborg, in his official capacity as Attorney General; and Kevin Thom, in his official capacity as Sheriff of Pennington County, Defendants.

CIV 19-5026

United States District Court, D. South Dakota, Western Division.

Signed September 18, 2019

Brendan V. Johnson, Erica A. Ramsey, Timothy W. Billion, Robins Kaplan LLP, Courtney A. Bowie, Pro Hac Vice, American Civil Liberties Union of South Dakota, Sioux Falls, SD, Stephen L. Pevar, Hartford, CT, Vera Eidelman, Pro Hac Vice, New York, NY, for Plaintiffs.

Holly R. Farris, Attorney General of South Dakota, Pierre, SD, Robert L. Morris, Morris Law Firm, Belle Fourche, SD, Richard M. Williams, J. Crisman Palmer, Rebecca L. Mann, Gunderson, Palmer, Nelson & Ashmore, LLP, Rapid City, SD, for Defendants.

ORDER

Lawrence L. Piersol, United States District Judge

Plaintiffs have brought suit challenging the constitutionality under the Constitution of the United States of a riot boosting statute passed in 2019 by the South Dakota Legislature, Senate Bill 189, and two felony riot statutes, SDCL § 22-10-6 and § 22-10-6.1. Plaintiffs request injunctive and declaratory relief.

BACKGROUND

The riot boosting statute was introduced and passed in the final week of the 2019 legislative session with an emergency clause to make it immediately effective. The publicly made claims by the Governor and others were that the legislation was to address costs of various persons and entities from anticipated rioting as a result of the building of the Keystone XL pipeline through South Dakota. The pipeline is to carry petroleum product from Canada though Montana, North Dakota, and South Dakota to connect with another pipeline in Nebraska which will take product to shipment though the Gulf of Mexico. Extensive protests did occur during Keystone pipeline construction in North Dakota. The project was stayed by a federal court order in Montana, Indigenous Environmental Network v. U.S. Dept. of State , 369 F.Supp.3d 1045 (D. Mont. 2018) ; see also 317 F.Supp.3d 1118 (D. Mont. 2018), 347 F.Supp.3d 561 (D. Mont. 2018) (same case). The appeal from that decision was dismissed as moot on June 6, 2019 by the Ninth Circuit Court of Appeals as President Trump had issued a new permit for the construction on March 29, 2019. The new permit is now the subject of litigation requesting an enjoining of the project. A motion to consolidate the two cases is pending in Indigenous Environmental Network v. Trump, et al. , Civ 4:19-cv-000028 (D.Mont. 2019).

At the hearing on June 12, 2019, the parties represented that construction is not now under way in South Dakota as the owner has reported that it is too late in the construction season to commence work in South Dakota this year. Pre-construction activities are, however, apparently in progress. Sioux Falls Argus Leader, July 1, 2019, page 2A. Plaintiffs and others claim by affidavit that they do in various ways intend to protest and otherwise provide and seek and provide support, financial and otherwise, for resistance, including protests, to the building of the pipeline in South Dakota. As a result of the threat presented by the riot boosting and criminal riot statutes, the Plaintiffs and others claim these laws have a chilling effect on their free speech and association rights and they are prevented from soliciting support or contributing or otherwise supporting peaceful protest of the construction of the project as they are afraid of criminal prosecution as well as substantial and unwarranted damage awards against them.

STANDING TO SUE

Standing issues were not raised by the parties except as to the claims against Kevin Thom in his official capacity as Sheriff of Pennington County. By separate Order, that claim is dismissed for lack of standing. The Court will address that issue as to the remaining parties as it can be raised at any time.

Governor Noem and Attorney General Ravnsborg do not contest Plaintiffs' standing in this case. The Court will address, however, why standing is appropriate against those defendants because Article III standing to bring a First Amendment free speech challenge is "an inescapable threshold question," Advantage Media, L.L.C. v. Eden Prairie , 456 F.3d 793, 799 (8th Cir. 2006), and it "requires a showing that each defendant caused [the plaintiff's] injury and that an order of the court against each defendant could redress the injury." Calzone v. Hawley , 866 F.3d 866, 869 (8th Cir. 2017) ; See Lujan v. Defenders of Wildlife , 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (a plaintiff must establish "a causal connection between the injury and the conduct complained of—the injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court.").

In the Order granting Defendant Kevin Thorn's Motion to Dismiss, the Court determined that Plaintiffs have alleged an injury in fact that meets the first requirement of standing. For the following reasons, Plaintiffs also meet the causation and redressability requirements as to Governor Noem and Attorney General Ravnsborg.

"[W]hen a plaintiff brings a pre-enforcement challenge to the constitutionality of a particular statutory provision, the causation element of standing requires the named defendants to possess authority to enforce the complained-of provision." Calzone , 866 F.3d at 869 (citing Dig. Recognition Network, Inc. v. Hutchinson , 803 F.3d 952, 957–58 (8th Cir. 2015) ). Whether a defendant possesses enforcement authority sufficient for standing purposes turns on whether he or she has "some connection with the enforcement of [the] state law." Dig. Recognition Network , 803 F.3d at 957 (citation and quotation marks omitted).

In Citizens for Equal Protection v. Bruning , 455 F.3d 859 (8th Cir. 2006), the plaintiffs challenged a state constitutional amendment stating that only marriage "between a man and a woman" was valid. The Eighth Circuit concluded that the Nebraska Attorney General's and Governor's broad power to enforce Nebraska's constitution and statutes was a sufficient basis to satisfy causation and redressability elements of standing. Id. at 864. The Eighth Circuit concluded that injunctive relief restraining the Attorney General and the Governor from enforcing the statute would redress at least part of the Plaintiffs' alleged injury. See id. Thus the "case or controversy requirement of Article III" was satisfied. Id.

Similarly, the Court concludes in this case that the general enforcement powers of the South Dakota Attorney General and Governor¹ meet the causation and redressability requirements, and Plaintiffs have standing to assert their claims for injunctive relief against Governor Noem and Attorney General Ravnsborg.

DISCUSSION

The 2019 riot boosting statutes are additions to Chapter 20-9 of South Dakota Codified Laws. Chapter 20-9 is entitled "Liability for Torts." Senate Bill 189 is now codified as SDCL § 20-9-53 through SDCL § 20-9-57. These civil law additions borrow heavily from the felony riot statutes in Chapter 22-10, entitled "Riot and Unlawful Assembly."

For purposes of this analysis, protected speech can be speech and other expressive activity including money or other material contributions as well as statements of support by speech or written word including ads, e-mail, texts and personal participation in protest. A person's support of a cause can be protected speech and also protected by the right of assembly in the First Amendment.

There are criminal statutes in South Dakota defining and punishing anyone convicted of rioting. South Dakota law specifies four riot felonies.

SDCL § 22-10-1 defines riot as:

Any use of force or violence or 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, is riot. Riot is a Class 4 felony.

SDCL § 22-10-5 states:

Any person who carries a dangerous weapon while participating in a riot is guilty of aggravated riot. Aggravated riot is a Class 3 felony.

SDCL § 22-10-6 states:

Any person who participates in any riot and who directs, advises, encourages, or solicits other persons participating in the riot to acts of force or violence is guilty of a Class 2 felony.

SDCL § 22-10-6.1 states:

Any person who does not personally participate in any riot but who directs, advises, encourages, or solicits other persons participating in the riot to acts of force or violence is guilty of a Class 5 felony.

Standard of Review

Defendants urge an intermediate scrutiny standard of review, relying upon United States v. Daley , 378 F.Supp.3d 539, 553 (W.D. Va. 2019), appeal docketed, United States v. Gillen , No. 19-4553 (4th Cir. Jul. 30, 2019). Plaintiffs claim the standard of review should be strict scrutiny. This Court is guided in part by Phelps-Roper v. Ricketts , 867 F.3d 883 (8th Cir. 2017) (en banc ) which applied an intermediate standard of review to Nebraska's Funeral Picketing Law. That law provided for criminal misdemeanor punishment. Phelps-Roper involved a determination of whether the Picketing Law dealt with true threats, which are not constitutionally protected.

In determining the standard of review the Phelps-Roper court stated:

The constitutionality of a statute regulating the exercise of protected speech in a public forum depends in large part on whether it is content based or content neutral. A statute is content neutral so long as it is justified without reference to the content of regulated speech. Content based regulations, such as those which impose special prohibitions on those speakers who express views on disfavored subjects, are presumptively invalid, are subject to the most exacting scrutiny, and

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