O’NEILL – The men and women, many sporting the rural uniform of blue jeans, Carhartt Jackets and sensible haircuts, filled six rows of wooden benches and a few chairs set up in the aisle of the old-fashioned Holt County District Courtroom.
They watched and listened as six men in dark suits addressed Judge Mark Kozisek, who issued a temporary injunction Thursday afternoon in a landowner lawsuit against TransCanada, halting condemnation cases along the proposed Keystone XL pipeline route in northern Nebraska.
The order followed a hearing at which lawyers for landowners squared off against lawyers for the Canadian company that wants to build a pipeline to move as many as 830,000 barrels of tar-sands oil a day through the American heartland.
After the hearing, Omaha attorney Dave Domina stood up from a worn wooden table and turned to face his landowner clients. The audience erupted in applause.
“The county court hearing dates you received in your notices, they will not happen. The county courts are stopped,” he said once the clapping had died down. “There will be no appraisers' meeting, there will be nobody coming out to look at your land. There will be no evaluation process … all of that is enjoined.”
His words lifted a burden from the shoulders of Lloyd and Vencille Hipke.
“It takes the pressure off. We got to fight, but we don’t have to do it today,” Vencille Hipke said.
The proposed pipeline path runs a mile through their cattle ranch about 17 miles northeast of Stuart. Lloyd Hipke said it would cross over the springs they use to water their cows and the well that provides their drinking water.
He doesn't think a foreign corporation should be allowed to use eminent domain to take land for a for-profit project, he said. And he also worries about what will happen with the pipeline after it has outlived its useful life. He thinks TransCanada should be required to take the pipeline out when it's done with it, and that's not included in current easement offers.
Jim Powers and Patrick Pepper of the Omaha-based McGrath North law office, attorneys for TransCanada, did not challenge the injunction and said the Alberta-based company will seek similar stays in all cases it has filed in Nebraska to get leases it would need to build and maintain the 36-inch diameter pipeline.
“We want to maintain the status quo and move forward with this litigation,” Powers said.
TransCanada spokesman Mark Cooper said attorneys for both sides agreed before the hearing to ask for the stays. Part of that agreement includes an accelerated trial schedule to expedite a conclusion to the case.
“This was a mutual agreement. We too want clarity and finality,” Cooper said in an email. “TransCanada believes the laws at issue in the case are valid and its actions are proper. But TransCanada respects the Nebraska legal system and process.”
In previous litigation, landowners were pitted against the state Attorney General's Office rather than TransCanada. The Attorney General is an interested party in the new lawsuits with the right to be heard because the cases have to do with issues of state constitutionality. Blake Johnson, who attended the hearing on behalf of the Attorney General’s Office, also declined to challenge the injunction.
In January, the Nebraska Supreme Court split in a decision over whether three landowners had the legal standing as taxpayers to challenge the law TransCanada must rely on to acquire land in Nebraska. The high court fell one vote short of the five required to address issues of constitutionality and the law stood by default.
Shortly after, on Jan. 16, Domina filed two suits seeking to halt TransCanada’s land acquisition. The pipeline company filed about 90 eminent domain cases in seven Nebraska counties on Jan. 20 seeking to get the 10 percent of easements it still needs.
The $8 billion pipeline would carry tar-sands oil from Hardisty, Alberta, to Steele City, Nebraska, where it would connect with an existing pipeline that goes to refineries along the U.S. Gulf Coast.
Domina said he plans to take the new lawsuits back to the Supreme Court. This time, he said, the plaintiffs will meet the legal requirements to have the case heard because they filed as landowners being damaged by TransCanada’s actions rather than as taxpayers.
Kozisek’s order halts the process on the land owned by the parties who filed the suit, which was 36 at last count. Domina has repeatedly added people to the suit since filing it.
"We have always known our constitutional law arguments are very strong," he said after the hearing. "The law holds things in their status quo until substantial issues like those we have raised are decided. We expected the temporary injunction order to be issued as it was.
Domina and the landowners contend the Legislature improperly empowered then-Gov. Dave Heineman to give TransCanada the power to take land by the process of eminent domain. The law allowed for a bypass of the Nebraska Public Service Commission, which regulates common carriers, including pipelines.
A second case with about 24 landowner parties will be heard in York County, where Domina plans to request a similar injunction.
The company had to file the cases by Jan. 22 or lose its ability to use eminent domain powers due to a two-year deadline state lawmakers included in the legislation that let Heineman approve the Nebraska route. By filing condemnation paperwork and then asking for a stay, TransCanada gets to keep the powers while working through the legal issues.
Meanwhile, the U.S. House passed legislation Wednesday giving TransCanada approval to build the Keystone XL across the border between the United States and Canada. President Barack Obama has pledged to veto the bill, saying it would circumvent an ongoing process for a presidential permit.
The U.S. State Department is in the process of writing a report on whether building the pipeline would be in the nation’s best interest. Once that is complete, it will be up to Obama to give the project thumbs up or down.
The pipeline has become a political lightning rod, with a coalition of landowners, Natives and environmentalists saying the carbon-heavy tar sands that will be pumped through the pipe should be left in the ground.
The project’s supporters say it will create jobs and provide oil to U.S. refineries from a friendly trade partner, Canada.