O'NEILL — The stage has been set for the next showdown between attorneys for TransCanada Corp. and the landowners who stand defiantly in the path of its plans to build the Keystone XL pipeline.

In a pretrial hearing Monday at the Holt County Courthouse, attorneys tied up loose ends, asked Holt County District Judge Mark Kozisek to set deadlines and agreed on an Oct. 19 trial date.

Attorneys did not bring up a disclosure made by the judge last month, that he had recently co-owned stock in TransCanada. Kozisek is one of 19 members of an investment club that owns about 25 common stocks.

Kozisek attends club meetings only occasionally and in June became aware it had bought about 100 shares of TransCanada Corp. in April 2014. Those shares were sold in June.

Kozisek considers any interest he had in TransCanada minimal but made the disclosure under the Nebraska Revised Code of Judicial Conduct. Neither side of the lawsuit has asked him to recuse himself from the trial. He will hear and decide the case, rather than a jury, since it centers on constitutional issues.

Dave Domina, the Omaha attorney representing landowners in their challenge of TransCanada’s eminent domain powers, said after the hearing that he is confident in Kozisek’s ability to proceed without bias.

Filed by about 40 landowner parties, the Holt County lawsuit is one of two challenging the 2012 state law that gave TransCanada the ability to force land agreements for its planned $8 billion pipeline, which would cross Nebraska on its way from Canada to U.S. Gulf Coast refineries. The second lawsuit, filed by 23 landowners, is proceeding in York County.

The landowners’ legal team, headed by Domina, plans to take the case to the Nebraska Supreme Court. They hope this challenge will succeed where a previous lawsuit over eminent domain powers failed. This time the plaintiffs filed as landowners being damaged by TransCanada’s actions rather than as taxpayers.

In the previous lawsuit, which was decided in January, the state's high court split in a decision over whether three landowners had the legal standing as taxpayers to challenge the state eminent domain law. The Supreme Court fell one vote short of the five needed to address issues of constitutionality and the law stood by default.

Success this time would void TransCanada’s path in Nebraska and the condemnation cases, which could mean significant delays for the project in Nebraska.

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Both opponents and proponents of the pipeline are awaiting a decision from President Barack Obama on whether TransCanada will be given a permit allowing it to build the Keystone XL across the border between the United States and Canada.

On Monday, Gov. Pete Ricketts said he'd sent a letter to Obama urging him to approve the pipeline.

The Canadian company wants to build the 1,179-mile pipeline from Hardisty, Alberta, to Steele City near the border between Nebraska and Kansas. It would move up to 830,000 barrels of crude oil a day through the American heartland. The majority of the oil would come from Western Canada Sedimentary Basin oil sands but some could also originate from the Bakken area of Montana and North Dakota.

Supporters of the Keystone XL say it's a needed infrastructure project that will improve the United States' energy security and strengthen the economy by creating construction jobs and bringing property tax dollars to local governments.

A coalition of property rights advocates, environmentalists and tribal nations have created a coalition to oppose the pipeline.

They say it will worsen greenhouse gas emissions and encourage oil exploration and development at the expense of Canadian wilderness. They also fear a spill from the pipeline polluting land and water sources, such as the Ogallala Aquifer, a valuable source of groundwater for irrigation and drinking water for millions of people in eight states.

Opponents include Bonny and Richard Kilmurry, who own property north of Atkinson on the path of the proposed pipeline. Richard, one of the plaintiffs in the Holt County lawsuit, said he will never willingly give TransCanada an easement on his property.

He questioned TransCanada’s ability to clean up heavy, chemical-laden bitumen if it would spill into the Sandhills and the Ogallala Aquifer, which provides drinking water for his home and cattle.

“It’s just too great a risk,” he said.

TransCanada says it has about 90 percent of the easements it needs in Nebraska. To get the remaining 10 percent, the Canadian company has filed nearly 80 condemnation cases but voluntarily put those proceedings on hold while the constitutional challenge is sorted out.

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Reach the writer at 402-473-7304 or nbergin@journalstar.com.

Follow him on Twitter at @ljsbergin.


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