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Protest sparks series of bills, penalties

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Dakota Access Pipeline protesters demonstrate at the state Capitol in Bismarck in November.

The head of the state’s defense attorney group and a policy director for the American Civil Liberties Union say a spate of bills aimed at the Dakota Access Pipeline protest will unfairly impact citizens when the protest is long over, and some could be unconstitutional.

Legislative leaders say the bills will go through the process, lawmakers will learn if there are unintended consequences and common sense will prevail.

At latest count, seven bills — nearly all of them with criminal consequences — are in the hopper in response to the protest against the $3.8 billion pipeline. The project is legally stalled at the Missouri River/Lake Oahe near the Standing Rock Sioux Reservation due to federal court action brought by the tribe.

House Majority Leader Al Carlson, R-Fargo, said he’s not sure how many of the bills will pass, but says they are intended to give law enforcement more tools and answer citizen worries.

“I think we’ve been fortunate in our little state not to have had anything like this in the past. This could escalate with the new administration; this is about public safety, not retaliation,” Carlson said.

Protest impact

The tribe’s opposition to the pipeline for fear of water contamination and disruption of sacred sites has become an unprecedented national and indigenous cause. It’s resulted in the encampment of thousands of protesters since August, more than 600 arrests, a jammed court docket, mounting law enforcement and judicial costs and the manned blockade of N.D. Highway 1806 between the reservation and Bismarck-Mandan. One bill asking Congress to give North Dakota land and minerals at Lake Oahe to help repay the state’s costs has been withdrawn.

Two bills have caught the public’s attention. One removes liability for a driver who unintentionally strikes or kills someone, including a protester, obstructing a public roadway. It was heard in committee Friday, with plenty of impassioned testimony but no committee action. Another one introduced by Carlson makes it illegal to wear an identity-concealing mask on public property, in response to protesters who covered their faces with bandannas or hoods.

Assistant minority leader Sen. Joan Heckaman, D-New Rockford, said she’d be surprised if either bill makes it through House, where they’ve been introduced.

She said she isn’t familiar with all the bills sparked by the protest since most are on the House side, but the one that makes wearing a mask illegal is an example “of overstepping and overreacting to a situation that causes constituents to be concerned.”

Carlson said he hopes the “mask” bill will pass. He said he’ll support it with photos when it’s in committee to make a case that Dakota Access protesters — some repeat arrestees — were hiding their identity for a reason.

Heckaman said she has reservations about the no-liability bill as well.

“I would be hesitant about a bill where you can hit a person and not be charged. I don’t think anybody in North Dakota would be excited about that bill,” she said.

However, everyone has an interest in the protest ending peacefully and the possibility that President Donald Trump will bring pro-energy policy to bear on the standoff, she said.

Under the radar

While public attention has been focused on those bills, Jennifer Cook, state ACLU policy director, and Jackson Lofgren, president of the North Dakota Association of Defense Lawyers, are watching bills that are under the public radar, but that they say would bring serious and unintended consequences in non-protest situations.

“There are so many emotions with this protest, but we don’t make it better by passing laws that hurt more than they help in the long run,” Lofgren said.

He cited a bill that would make disorderly conduct a felony rather than the misdemeanor crime it is now in North Dakota and every other state, if the conduct causes $1,000 in economic harm to a business.

“This would apply in a situation where a union wants to picket or boycott a business, and it’s an example of legislating to an event,” Lofgren said.

A new definition of loitering would make it a crime to tarry somewhere without a lawful purpose.

“That’s so broad and vague, it could just be used to oust someone who is just sitting there,” Lofgren said.

Yet another is a new fine attached to a criminal trespass conviction that says the individual has to pay an additional $1,000 fine to the county sheriff, even if the sheriff’s department didn’t make the arrest.

“You can tell all these bills are designed to address the protest, but they will apply to all and will be on the books well after the protest. I thought there would be some bills related to the protest, but the things that I see being proposed don’t make sense,” Lofgren said. “Now a person hunting on posted land (possible criminal trespass) would be treated the same as someone in the protest? That’s the plan.”

Litigation possibility

Cook said the bills ramp up penalties for charges commonly used to handle protesters and could interfere with constitutional freedoms.

“There’s a failure to recognize that #NODAPL is not just a protest against a pipeline. It’s also an indigenous-led civil rights movement by people who have been long oppressed. These backlash laws will capture indigenous people in their grip. It doesn’t bode well for race relations,” she said. “Some of these do invite litigation.”

She points out that, while the Legislature may not agree with the pipeline protest, they are looking at laws that could affect an anti-abortion protest, something many of them would support.

Senate Majority Leader Sen. Rich Wardner, R-Dickinson, says the Legislature has seen other topical matters, such as abortion and gun rights, set off a flurry of bills in past sessions.

“We’ll go through the process and look for different points of view and unintended consequences. If the bill has merit, it’ll stand; if it doesn’t, it won’t,” Wardner said. “I believe North Dakota has one of the most democratic processes in the country. This is the people’s chamber.”

Carlson said the bills have been carefully drafted with an eye toward court rulings in other states.

“Some will pass, some probably won’t. It’s an important issue to talk about,” he said.

Carlson said he’s looking forward to the day when the protest is over, life at the Capitol returns to normal and a new security check-in there can be dismantled. He said the few protesters who have shown up have moved off as directed by law enforcement and he’s proud of the work by the North Dakota Highway Patrol in the current heightened atmosphere.

These bills were proposed in response to the pipeline protest:

• HB1203: Removes liability from a driver who unintentionally injures or kills a pedestrian obstructing highway. This was heard by House Transportation Committee Friday with no endorsement.

• HB1304: Prohibits wearing masks to conceal identity while on public property, or without permission on private property. Exceptions include those younger than 17 years old, a Halloween costume, for sports, or occupational safety, during a parade, theater production or masquerade ball, for civil defense, for religious reasons or weather protection. Violation is a Class A misdemeanor. House Judiciary is holding a hearing at 10:45 a.m. Tuesday.

• HB1332: Anyone convicted of criminal trespass, a Class A misdemeanor, pays a new additional $1,000 fine to support the county sheriff. House Judiciary Committee will hold a hearing at 9:35 a.m. Monday.

• HB1383: New loitering bill makes it illegal and a Class B misdemeanor for an individual to be in a place, in an unusual manner, that warrants alarm, or to tarry in a public place without a lawful reason. Before arrest, police must give individual a chance to identify and explain himself. This has been referred to the House Judiciary Committee with no hearing set.

• HB1193: Disorderly conduct, normally Class B misdemeanor, becomes Class C felony if the conduct causes direct or indirect financial harm in excess of $1,000. If person charged claims harm is due to free speech activity, court can decide. This was heard by the House Judiciary Committee on Tuesday.

• HB1426: Increases riot penalties — a common charge for anti-Dakota Access protesters — from Class C to Class B felony if a riot involves more than 100 people and from Class A misdemeanor to Class C felony otherwise. This is an emergency measure and is referred to the House Judiciary Committee with no hearing date yet set.

• HB1281: (Withdrawn) Encourages Congress to return lands and mineral rights under Lake Oahe as compensation for protest costs.

• SB2174: Allows the adjutant general to borrow up to $8 million from the Bank of North Dakota to pay law enforcement costs for Dakota Access Pipeline protests. This emergency measure was passed in the Senate and moved to the House calendar.

• SB2246: Makes it illegal to remain on property once ordered to leave, in face of a flood or natural disaster. This emergency measure would be effective March 1. Individuals cited would be subject to a $5,000 penalty. No committee hearing yet scheduled.

(Reach Lauren Donovan at 701-220-5511 or


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