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OMAHA -- Three environmental groups are alleging that the U.S. Fish and Wildlife Service authorized the removal of endangered American burying beetles from the proposed route of the controversial Keystone XL pipeline in Nebraska this past summer.

The allegations are contained in a federal lawsuit filed Wednesday in Omaha by the Center for Biological Diversity, the Western Nebraska Resources Council and Friends of the Earth Inc. It asks for an injunction to halt work on the $7 billion, 1,700-mile pipeline proposed by TransCanada that would carry oil from tar-sands deposits near Alberta, Canada, to refineries along the U.S. Gulf Coast.

Capturing insects on the federal endangered list would have been done prior to the issuing of a presidential permit for the TransCanada project, and the issue of timing was a key point in the lawsuit.

"It's our contention that this makes a mockery of this process and of our democracy in general," said Noah Greenwald with the Center for Biological Diversity, who was among those in Omaha for a press conference outside the federal courthouse.

Sought out later, Fish and Wildlife biologist Bob Harms confirmed that a team experienced in capturing the beetles did indeed gather up 2,400 of them between Aug. 1 and Sept. 1 and move them a minimum of 5 miles from the pipeline area.

Harms declined to answer when asked if the agency authorized that mission.

"We have no comment on this question at this time," he said, "given this is pending litigation."

Harms also was unwilling to address questions about why insect capturing would be going on along a route that has yet to be approved by the U.S. State Department.

But he said beetle capturing itself is nothing new. "We've been doing this for quite some time for lots of projects in the state of Nebraska, most notably road projects."

The lawsuit becomes another flash point for a controversial project that produced an outpouring of public comment at State Department listening sessions in Lincoln and Atkinson last week.

This week, there have been intense discussions among state lawmakers about the need for a special session to create siting authority and to move the pipeline out of the Nebraska Sandhills and away from the Ogallala Aquifer.

A decision on the federal permit by Secretary of State Hillary Rodham Clinton is expected by the end of the year.

The pipeline path preferred by TransCanada would pass near Atkinson, Chambers and Ericson.

Harms described the Chambers area as "a really hot spot" for beetles.

Greenwald contended that removal of beetles and a related decision that he attributed to the Fish and Wildlife Service to mow the removal area northwest of Stuart amounted to steps in construction.

That and other points quickly were disputed in a prepared statement issued by TransCanada.

"Like so many other claims made by professional activists who are opposing the Keystone," said a response from company headquarters in Calgary, "these claims are false -- no construction has taken place in Nebraska."

The statement said TransCanada acted at the direction of the U.S. Fish and Wildlife Service in undertaking surveys and studies of the American burying beetle and in implementing "certain approved conservation measures" designed to protect it.

That included moving beetles and mowing -- "not construction."

Erich Pica, national president of Friends of Earth, and Gothenburg attorney P. Stephen Potter also spoke out against the project and the insect action portrayed as a violation of the National Environmental Policy Act.

Pica directed much of his criticism at the State Department, also named as a defendant in the case, along with the U.S. Department of the Interior.

"Plain and simple, this lawsuit is about holding the State Department accountable," he said.

He said there was plenty of evidence that the agency and the pipeline company had "a cozy relationship" and he asserted that "the State Department allowed TransCanada illegally to start constructing the Keystone XL pipeline."

Potter said he stepped forward to defend the interests of "the small guy against the big guys."

According to Potter, "that's what this case is about. We Nebraskans, the farmers, the people are the little guys."

The 21-page lawsuit described agency authorizations as wrong for several reasons, including that they were "arbitrary, capricious, (and) an abuse of the agencies' discretion."

Fish and Wildlife biologist Harms said the mowing of the beetle area was done after the removal "as a way to keep them out."

Previous experience has shown that they won't come back when those on the intervention team "reduce the value of the habitat after they're taken out."

Harms said Nebraska is home to two populations of the black, carrion-eating beetles, one in the Sandhills and one near North Platte. "The population in the Sandhills is doing very well," he said.

The beetles typically grow to more than an inch in length, they can fly and they're recognizable by the distinctive orange marking behind their heads.

Leon Higley, an insect expert at the University of Nebraska-Lincoln, was skeptical about mowing to keep beetles away. "There's no published scientific research to support that," he said.

Amy Atwood, an attorney for the Center for Biological Diversity, conceded that the lawsuit could become moot if a presidential permit is granted.

But up to that point, "what we're trying to do is protect the integrity of this process."

Reach Art Hovey at 402-473-7223 or at ahovey@journalstar.com

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