Landowners Take Legal Action in Face of Eminent Domain Threats from TransCanada

Mark Hefflinger
News
Diane and Terry Steskal
Diana and Terry Steskal, who are among the Nebraska landowners who sued TransCanada to halt eminent domain on their land for Keystone XL (Photo: Mary Anne Andrei)

Update: 12/4/15

Judge Mark Kosizek on Friday dismissed the lawsuit brought by landowners in Holt County against TransCanada and the unconstitutional pipeline siting law passed by the Legislature as a handout to the foreign corporation, LB 1161.

“The legislature broke this, so they must be the ones to fix it,” said Bold Nebraska director Jane Kleeb. “In our state we have two paths a pipeline company can take to get a route reviewed — a political path through the Governor’s office, or a public path through the Public Service Commission. The legislature needs to get the politics out of pipelines, and repeal LB 1161 which was a handout to the foreign company TransCanada from the beginning.”

Judge Kosizek dismissed the case because after Keystone XL’s rejection by President Obama, TransCanada gave up on all of its eminent domain condemnation claims, and the judge found the landowners’ case to now be moot.

Bold Nebraska and landowners will continue to press the Legislature to repeal the unconstitutional LB 1161, and begin a serious dialogue about fair treatment of landowners on issues including better easement terms, liability, annual payments, and removal of pipelines at companies’ cost.

Update: 10/19/15

Judge Mark Kozisek heard arguments from attorneys for landowners and TransCanada on Oct. 19, and is expected to rule on TransCanada’s motion to dismiss the case sometime around Thanksgiving or early December.

If the case moves forward, the next court hearing in the Holt County landowners’ case is Dec. 14 at 1:00 p.m. at the Holt County Courthouse in O’Neill.

Also scheduled is a Dec. 18 hearing for York County landowners suing TransCanada — similar to the Oct. 19 hearing in Holt County — which will still take place, pending what happens in the Holt County proceedings.

Update: 9/21/2015

On Monday, Oct. 19, landowners in Holt County who are suing TransCanada over the state law that granted the Keystone XL pipeline company eminent domain for private gain will appear in court for oral arguments in their case. No witnesses will testify, as all testimony will be submitted in writing ahead of time, but we will be standing with landowners as they battle to protect our land and water.

  • WHEN: Monday, Oct. 19 1:00 p.m. – 3:00 p.m.
  • WHERE: Holt County Courthouse, 204 N 4th St #3, O’Neill, NE 68763
  • POST-HEARING MEETUP: We will host a meeting for landowners and supporters at Westside Restaurant, 3-5 PM. Drinks and pie will be served. US-20, O’Neill, NE 68763
  • DETAILS: https://www.facebook.com/events/140122092993668

Update: 8/31/2015

Lawyers for Nebraska landowners submitted written arguments in Court on Monday, August 31st. The 30-page brief was filed with Holt County District Judge Mark D. Kozisek by Nebraska lawyers Dave Domina and Brian Jorde. The case will be heard in O’Neill on October 19th. “Our positions are strong. We are eager to be in Court on October 19 for trial, and are optimistic for the legal positions of our Nebraska landowner clients,” said attorney Dave Domina.

Click here to read the landowners’ opening brief in full.

Update: 7/28/2015

Holt County District Court Judge Mark Kozisek today set a trial date of Oct. 19, 2015 to hear a lawsuit filed by Nebraska landowners against the foreign pipeline corporation TransCanada, challenging the law (LB 1161) that gave the company the power to invoke eminent domain for private gain for its proposed Keystone XL pipeline as well as the route in the state.

Attorneys Dave Domina and Brian Jorde of Domina Law Group represented landowners suing TransCanada. Attorneys on both sides agreed that there will be no live witnesses during the Oct. 19 hearing — all evidence and affidavits from landowners will be submitted in writing ahead of the hearing date.

There will be no jury at the hearing, as the case centers on constitutional issues.

Today’s hearing was one more step towards protecting property rights and taking the case back to the Nebraska Supreme Court.

When landowners addressed the Supreme Court previously, four of the seven justices agreed with the merits of the landowners’ case, but since TransCanada had not yet invoked eminent domain rights, the remaining three justices did not render an opinion on constitutionality.

Standing is now conceded by TransCanada, and the landowners press forward challenging the law (LB 1161) that gave the Governor sole power to grant eminent domain rights to foreign corporations.

“Landowners remain united and resilient in the lawsuit to ensure no foreign company can use eminent domain for private gain,” said Bold Nebraska director Jane Kleeb. “Former Gov. Heineman violated our state constitution by granting a route to TransCanada, and as citizens we will not let politicians step over our rights, our land and our water. President Obama can reject the pipeline any day, and we will remain committed to getting this bad law off the books and property rights protected.”

Update: 7/20/15

Join us on Monday, July 27 to stand alongside landowners in Holt and York counties who will be in court battling against eminent domain and TransCanada’s Keystone XL pipeline.

  • WHAT: Holt County Eminent Domain Hearing
  • WHEN: Monday, July 27 at 11:00 a.m.
  • WHERE: Holt County Courthouse 
  • (204 N 4th St, O’Neill, NE 68763)
  • WHAT: Meetup at Westside Restaurant
  • WHERE: 49134 US Highway 20, O’Neill, NE 68763
  • WHEN:
  • 9:00 – 10:30 a.m: OPEN MEETUP 
  • (coffee and rolls served)
  • 12:30 – 2:00 p.m: LANDOWNER-PLAINTIFFS ONLY MEETUP (drinks served)

RSVP to join us here:
http://boldnebraska.org/july-27-stand-with-landowners-at-eminent-domain-court-hearings

Update: 2/26/15

The District Court in York County, Nebraska today granted local landowners’ motion for a preliminary injunction to halt TransCanada’s use of eminent domain to take their land for the proposed Keystone XL pipeline.

Screen Shot 2015-02-26 at 9.45.24 AM
Landowners Susan and Bill Dunavan, among the plaintiffs suing TransCanada over eminent domain for Keystone XL (Photo by Alex Matzke)

*CHIP IN $10 NOW TO FUND THE LANDOWNERS’ LAWSUIT*

WATCH: York News-Times interview with plaintiffs and Jane Kleeb of Bold Nebraska:

WATCH: 10/11 News interviews plaintiffs:

FOR IMMEDIATE RELEASE: Thursday, Feb. 26, 2015

Contact:
Jane Kleeb, 402-705-3622, jane@boldnebraska.org

York County Landowners Win Injunction to Halt Eminent Domain
for TransCanada’s Keystone XL Pipeline

Eminent domain now halted throughout Nebraska for est. 12-18 months as
LB 1161 constitutional issues return to Nebraska Supreme Court

York, NE — The District Court in York County, Nebraska on Thursday granted local landowners’ motion for a preliminary injunction to halt TransCanada’s use of eminent domain to take their land for the proposed Keystone XL pipeline.

This legal process surrounding the pipeline’s route in Nebraska could go on for anywhere from 12-18 months, until the Nebraska Supreme Court reconsiders landowners’ arguments. If landowners win at the Nebraska Supreme Court, TransCanada must reapply for a permit with the state Public Service Commission. Bottom line, the foreign pipeline company is facing up to three years of delay in Nebraska.

“TransCanada was forced to stop using eminent domain for private gain by the Nebraska courts and the landowners who have the courage to stand up to a foreign corporation,” said Bold Nebraska director Jane Kleeb. “If TransCanada wants to show they are being a ‘good neighbor,’ then they will stop sending endless contract proposals and allow the legal process to take place without their constant harassment of landowners.”

“Once again, TransCanada distorts the facts,” added farmer Art Tanderup, a landowner on the proposed pipeline route near Neligh, NE. “They filed eminent domain condemnation proceedings against close to 100 Nebraska landowners. Many of those landowners filed lawsuits that have now halted those eminent domain proceedings. Filing eminent domain claims is not being a responsible good neighbor. In the meantime, TransCanada continues to bully and cash whip hardworking rural Americans who are trying to protect their land, water and livelihood.”

“I wish to thank Judge Gilbride for hearing our request for the injunction to prevent TransCanada from proceeding with eminent domain condemnation,” said landowner Susan Dunavan. “This gives us the time we need to pursue the resolution of the constitutionality of LB 1161. It also gives Nebraskans time to reflect on the unbelievable phenomenon of a foreign corporation taking control of privately owned land for their own private gain.”

“Where was the ‘working with landowners respectfully’ when TransCanada thought it was getting the permit approved?” said landowner Jim Tarnick. “Back then it was, ‘Sign up, or we will take your land with eminent domain.’ Funny how the company’s tone changes when the wheels of justice start turning.”

“TransCanada has recently said that they are agreeing to pause eminent domain condemnation proceedings on landowners as a ‘demonstration of our commitment to work respectively with landowners,'” said landowner Bill Dunavan. “I believe that the justices in this and in future hearings will acknowledge the years and years of threats to landowners from TransCanada and easily recognize that they have been neither gracious nor respectful.”

The ruling in York County follows a Holt County District Court decision on Feb. 13 that similarly granted a preliminary injunction halting TransCanada’s eminent domain proceedings against Nebraska farmers and ranchers. Faced with certain defeat, attorneys for TransCanada at the Feb. 13 hearing said they would make filings to stay every one of their pending eminent domain claims against landowners until the Nebraska Supreme Court hears their case on its merits.

Today’s preliminary injunction granted by District Judge Mary Gilbride in York County officially halts eminent domain proceedings against those specific York County landowners who filed suit against TransCanada over the constitutionality of LB 1161, the state law that eventually granted them eminent domain authority.

The landowners filed suit against TransCanada on Jan. 16, challenging the constitutionality of the Canadian oil company’s authority to invoke eminent domain under LB 1161, the law passed by the Nebraska legislature that took power to grant eminent domain from the Public Service Commission and put it in the hands of then-Governor Dave Heineman.

Landowners’ attorneys with Domina Law Group believe there is a substantial likelihood that the Nebraska Supreme Court will in this new lawsuit revisit their previous challenge to the constitutionality of LB 1161 (Thompson v. Heineman). In that case, four of seven justices ruled the law is unconstitutional, but a supermajority of five was needed to win. However, the remaining three justices refused to rule on the actual merits of the case, finding instead that the plaintiffs lacked standing to bring the lawsuit.

The filing of eminent domain condemnation claims by TransCanada in January satisfies the “standing” issue for landowners to bring this new suit against TransCanada, and landowners have now been granted an injunction to halt these eminent domain proceedings while the issue of constitutionality of LB 1161 is brought back before the Nebraska Supreme Court.

# # #

 

Update 2/12/15:
Holt County District Court Judge Mark Kozisek has issued a temporary injunction halting eminent domain proceedings against landowners while our case proceeds back to the Nebraska Supreme Court. (Read Judge Kozisek’s ruling below.)

Landowner members of the Nebraska Easement Action Team (N.E.A.T.) who have received direct threats of eminent domain against their land by TransCanada today filed suit against the company, laying the groundwork to bring another constitutional challenge of the proposed pipeline route to the Nebraska Supreme Court.

The landowners from two Nebraska counties–York and Holt–filed now because TransCanada made direct threats to them both in mailed correspondence and publicly in the media that their intention was to use eminent domain before Jan. 22, 2015, when their legal right to use it expires. The landowners are represented by the Domina Law Group.

Jane Kleeb with Bold Nebraska said, “We stand with landowners to protect property rights and a constitutional pipeline routing process. While we fight to ensure TransCanada and the state of Nebraska do not run roughshod over farmers and ranchers, we also call upon President Obama to reject Keystone XL now. In fact, it is only the President who can provide peace of mind to farmers and ranchers–and our Native allies–along the route.”

Our fight will continue, even if the President rejects the pipeline, in order to protect property rights for any other pipeline that might try to come across Nebraska. Nothing TransCanada or Nebraska politicians say in misleading ads and press releases erases the basic fact that eminent domain is being used for private gain.

Landowners need your financial (and emotional) support. Please donate today to help their legal fund.

**Click here to make a donation to help fund their legal challenge**

Temporary Injunction Halts Eminent Domain

Holt County Complaint for Declaratory Judgment Temporary and Permanent Injunction

York County Complaint for Declaratory Judgment Temporary and Permanent Injunction


Join the Discussion

Related News

Oct. 8: Help Harvest the Sacred Ponca Corn in Neligh

Join us on Saturday, Oct. 8 for the third annual harvest of Sacred Ponca Corn “Seeds of Resistance” that the Cowboy & Indian Alliance planted on land that lies in the path of where the Keystone XL pipeline would have gone, that also crosses the historic Ponca Trail of Tears. Bring a rock from your […]
Read Post

Bold Nebraska Supports LR 455 to Empower Nebraskans to Combat Climate Change

Bold Nebraska supports LR 455 as it examines opportunities for Nebraskans to empower themselves to impact climate change. Whether that is in methods they use to produce food, generate power or protect the land and water. LR 455 will assess how Nebraskans can mitigate climate change to preserve their way of life while providing jobs […]
Read Post

WATCH: Bold’s Jane Kleeb and Standing Rock Tribe Chair Dave Archambault on MSNBC’s “AM Joy” to Discuss Pres. Obama Order to Halt Dakota Access Pipeline Construction

Bold Nebraska director and Bold Alliance president Jane Kleeb and Standing Rock Sioux Tribe Chairman David Archambault II appeared on MSNBC’s “AM Joy” with host Joy Reid on Saturday, Sept. 10 to discuss the Obama administration’s move late Friday to order a halt to construction on the Dakota Access pipeline across the Missouri River near the Sacred […]
Read Post

PETITION: Pledge to Join Us in the Streets to Protest TransCanada’s $15 Billion NAFTA Claim Over Keystone XL

SIGN: I pledge to join fellow U.S. taxpayers and Pipeline Fighters in the streets to protest TransCanada’s $15 billion NAFTA lawsuit claim for “lost revenues” over its rejected Keystone XL tarsands export pipeline project. In our country, TransCanada sued every single one of us for $15 billion on Friday. (1) Under our bad international trade […]
Read Post

Bold Nebraska Launches “Made In the Neb” Online Hub and Interactive Map to Promote Nebraska’s Bold Businesses and Clean Energy Production

Bold Nebraska Launches “Made In the Neb” Online Hub and Interactive Map to Promote Nebraska’s Bold Businesses and Clean Energy Production Participating businesses include local wind and solar installers and Nebraska farms, ranches, restaurants, bakeries, hardware stores, skateboard shops, and service providers Lincoln, NE — Bold Nebraska on Tuesday launched “Made In the Neb,” a new web-based, […]
Read Post

Dakota Access Pipeline Opposition Continues to Grow

Across the country allies are pulling together, just like we did on Keystone XL, to help stop the risky and unnecessary Dakota Access pipeline. Below is an update that groups such as IEN, 350, CREDO Action, Honor the Earth, Sierra Club, Oil Change and Bold pulled together to help make sure advocates and press understand the process […]
Read Post

Help build a Bold Nebraska

Join our email list to get the latest updates on key issues, online actions and events to attend.