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Landowners continue fight with TransCanada

Landowners continue fight with TransCanada

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Keystone plaintiffs

Lead plaintiffs Susan and Bill Dunavan stand with Bold Nebraska's Jane Kleeb (right) in a courtroom in York in February 2015.

O'NEILL — The staunch opposition of some Nebraska landowners to a Canadian company's planned $8 billion crude oil pipeline has brought the state a seemingly unending stream of international attention.

More attention than the state saw after Charles Starkweather murdered 11 people in the 1950s, more than it got when it executed three murderers in the 1990s, more than when it was debated whether slavery would be allowed in the Nebraska territory prior to the Civil War, said Omaha attorney Dave Domina, who represents the property owners in a lawsuit against TransCanada. He spoke Monday during an hour-long hearing.

That attention shows there is a vested public interest in the continuation of landowners' lawsuits challenging the constitutionality of the state statute that granted TransCanada eminent domain powers to get its proposed Keystone XL pipeline built, he said.

Behind Domina, about 90 people filled the Holt County courtroom, with the crowd overflowing into the hallway and a backroom. The owners of about 60 properties along the proposed route filed two suits in Holt and York counties.

TransCanada earlier this month mothballed its eminent domain cases and applied to get its Keystone XL route through Nebraska reapproved and eminent domain powers reissued by the Nebraska Public Service Commission, a five-member board made up of independently elected representatives.

TransCanada previously had its route approved using a 2012 law (LB1161) that let it bypass the commission, and instead get the green light from former Gov. Dave Heineman after a review by the Nebraska Department of Environmental Quality.

The property owners responded with two lawsuits, contending that the 2012 law is unconstitutional and TransCanada should have gotten its route approved by the Nebraska Public Service Commission. Landowners hope to take the case to the Nebraska Supreme Court.

TransCanada on Monday argued that since the company dismissed its eminent domain cases and is now seeking approval from the Public Service Commission, landowners no longer have a case and the lawsuit should be thrown out.

"There is nothing left. By dismissing the cases at the county court level, Keystone no longer has the ability to proceed under Governor Heineman's approval," said Omaha attorney James Powers, who is representing TransCanada.

The former governor's approval in January 2013 came with a two-year sunset clause that said TransCanada had to use its powers of eminent domain within that timeframe.

Powers argued that the lack of pending condemnation cases leaves landowners without legal standing for a lawsuit. The issue of standing is what caused a previous challenge of the law brought by landowners to fail.

The Nebraska Supreme Court in January fell one vote shy of the supermajority required to review constitutional statutes, allowing the law to stand.

In the newest case, Domina argued the issues brought up in the lawsuit are far from moot and property owners still have legal footing to challenge the 2012 law.

"We did not sue to get TransCanada to go to the Public Service Commission. We sued to get this court to declare a state statute unconstitutional," Domina said.

Domina went through a checklist of criteria he said proves the case should be allowed to continue, including that it is in the public interest the case goes forward; TransCanada or another company could still try and use the statute if it stands; the Public Service Commission needs guidance from the courts to do its review; and "There is no mootness here. This issue could not be more alive and well in the eyes and ears and lives of these landowners," Domina said.

Domina said landowners filed their lawsuit before the condemnation cases started. They had standing then and still have standing now that TransCanada has dismissed them.

If the case is allowed to continue, a hearing is scheduled for December.

TransCanada says it remains committed to seeing the 1,700-mile underground pipeline built from Hardisty, Alberta, to Steele City near Nebraska’s southern border, where it would hook up with an existing network of pipelines. It would move as many as 830,000 barrels of crude oil per day, mostly bitumen mined from Canada’s oil sands, although up to 100,000 barrels of space would be reserved for Bakken oil from North Dakota.

TransCanada, which has been trying to get the pipeline built for the past seven years, still needs approval of a federal permit allowing the Keystone XL to pierce the border between the United States and Canada. The White House has not said when a decision will be made.

When TransCanada announced plans to drop eminent domain cases earlier this month, the company said it hopes the Public Service Commission will be a faster option than going through the courts. If it gets the approval it needs from the commission, and if President Obama approves the federal application, it will restart the condemnation cases.

The Public Service Commission's review is limited to the pipeline's path through the state and is expected to take seven months to a year to complete.

For landowners like Art Tanderup -- who last year hosted a fundraising concert on his Neligh area farm headlined by Neil Young and Willie Nelson -- Monday's hearing was just one more step in the fight against the Keystone XL project.

"There is no need for it, and I think we're one step closer every time to stopping it from being put in the ground," Tanderup said after the hearing.

The attorneys also addressed other issues, including that an injunction stopping condemnation cases in county courts is no longer needed and is actually holding up proceedings in those courts, such as motions by landowners seeking payment of attorney fees by TransCanada.

Reach the writer at 402-473-7304 or nbergin@journalstar.com. Follow him on Twitter at @ljsbergin.

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Obama announced the rejection of the Keystone XL pipeline during a late-morning news conference, citing the urgency of climate change. He appeared with Secretary of State John Kerry and Vice President Joe Biden, saying the pipeline would have neither been the economic silver bullet proponents said in terms of job creation and lower gas prices nor the environmental disaster opponents claimed.

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