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Muddying the Keystone XL issue

When much is made over what would appear to be a relatively peripheral issue in a lawsuit as compared to the core legal question, it begs the question of whether those pushing the issue are more interested in causing havoc and uncertainty — and creating headlines — than actually resolving the situation.

That question comes to mind in regard to the attorneys for opponents of the proposed Keystone XL pipeline. They are fighting a South Dakota sheriff’s attempt to be dismissed as a defendant in a lawsuit that challenges new state laws that aim to prevent disruptive demonstrations against the pipeline.

The legislation that passed in March allows officials to pursue criminal or civil penalties from demonstrators who engage in “riot boosting,” which is defined as encouraging violence during a riot.

Supporters of the legislation proposed and passed the legislation as a way to head off protests of the Keystone XL like those mounted against the Dakota Access oil pipeline in North Dakota in 2016 and 2017. North Dakota spent $38 million on policing those protests, which resulted in 761 arrests over a six-month span.

We are not suggesting that the lawsuit filed by the pipeline opponents is without merit. It raises the question of how far can a state go legally to try to discourage the kind of illegal actions that took place in North Dakota without infringing on constitutional rights. That’s an issue for the courts to decide.

What we are suggesting is that Pennington County Sheriff Kevin Thom should be dismissed as a remaining defendant in the suit spearheaded by the American Civil Liberties Union. Also named as a plaintiff is the South Dakota governor and attorney general. Pennington County is one of eight South Dakota counties along the proposed route of the XL pipeline.

An attorney for Mr. Thom last month asked that the sheriff be dismissed from the lawsuit, saying he must enforce state laws but isn’t responsible for defending them. The attorney argued that Pennington County shouldn’t have to defend state laws that it doesn’t have the power to change.

Valid points.

What doesn’t seem as valid is that the ACLU said it named Mr. Thom as a defendant in the lawsuit because he’s sheriff in the county in which the anti-pipeline activists are working.

It strikes us as more of a situation where opponents are trying every possible legal argument simply as a way to muddy the issue and delay the pipeline project for as long as possible.

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