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Background: Nebraska Unconstitutional Pipeline Process

Final Decision Announcement

If you want to sign up for announcements on the rally we will hold on Decision Day, click here.

A final decision by the Nebraska Supreme Court could come any Friday at 8am CT. Watch the Supreme Court website for the opinion ruling. The decision will determine if TransCanada, and all future oil pipelines, must go thru the Public Service Commission to get their route modified, denied or approved. The lawsuit will also clarify the process/timing for eminent domain. As of right now, because LB 1161 was deemed unconstitutional, TransCanada has no legal route and they have no power of eminent domain.

TransCanada is now in a lose-lose situation. If the lower court ruling is upheld, then they must go through the PSC for route consideration, which takes at least 7 months. If the lower court ruling is overturned, TransCanada is left with a risky route that crosses the Sandhills and the Ogallala Aquifer which both resources the President, who makes the final call on the pipeline, has said he has concerns.

Donate

Donate now to help fund the lawsuit! We rely on donations from individuals to help protect property rights and ensure valid pipeline routing laws are on the books in our state.

Press

We will issue a press statement on our website and to our press list immeditaely following the ruling. We will then hold a tele-presser one hour after the ruling. Lastly, we will hold a rally, either way the court rules, that same day at 5:30pm CT on the West side of the state capitol in Lincoln.

Further press contacts for landowners and the legal team will be listed here on the day of the decision. The Nebraska Supreme Court public liaison is Janet Bancroft, Janet.Bancroft@nebraska.gov, if you have further questions for the Supreme Court.

Text of lawsuit (further legal documents are all below)

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

Photos and Graphics: Photos and graphics can be used for press use only. Please give photo credits to the photographer listed on each photo and to Bold Nebraska. Graphic credit goes to Justin Kemerling. If higher res versions are needed, please contact mark@boldnebraska.org. Some photos are below.

Citizens v Pipeline Graphics
Randy Thompson Photos
Suz Luebbe Photos
Susan Dunavan Photos

Background

Nebraska citizens filed a lawsuit, Thompson v. Heineman, challenging the constitutional basis of LB 1161, Nebraska’s current pipeline siting/routing law that replaced the work senators did during the Special Session. The landowners, represented by David Domina, are standing up for citizens across the state who deserve laws that protect Nebraska’s land, water and property rights. No amount of political lobbying should trump our state constitution. The Governor is abusing the powers of his office with LB 1161 by taking away the authority from the PSC, which according to our state constitution has authority over pipelines, and instead giving the authority to himself (!) to approve a pipeline and give a foreign corporation the power of eminent domain before they have all their permits in place.

Landowners won in the Lancaster court with a ruling from Judge Stacy. Then, Gov. Heineman appealed the ruling and the case is now before the Nebraska Supreme Court. Oral arguments were heard Sept. 5, 2014.

The lawsuit, Thompson v. Heineman, has four main areas:

•    LB 1161 unconstitutionally delegates authority of a common carrier to the Nebraska DEQ when common carriers are assigned already by Nebraska’s constitution to the Public Service Commission.

•    LB 1161 violates separation of powers because it fails to provide for judicial review.

•     LB 1161 violates separation of powers because it unlawfully delegates to the governor the decision to permit the exercise of eminent domain without adequate and definite standards required to meet constitutional requirement for due process.

•     LB 1161 constitutes special legislation for a single company and not persons in general which violates the Nebraska state constitution.

LB 1161 bill, this is the law that was deemed unconstitutional by Judge Stacey, leaving TransCanada without a legal route and without the powers of eminent domain. TransCanada’s controversial pipeline permit application is being processed under LB 1161, which became law in April—reversing many rules and regulations passed during the historic Special Session last November.

LB 1161 gives the Nebraska Department of Environmental Quality authority to review pipeline routes, and ultimately tasks Governor Heineman with approving a pipeline route and granting the pipeline company immediate eminent domain authority without having to wait for federal permits to be issued for the project.

Critical steps and information for a transparent environmental assessment process was eliminated with LB 1161 giving Nebraska land to a foreign country though eminent domain with insufficient review or oversight.

Landowner Quotes

Randy Thompson: “As a Nebraska landowner and taxpaying citizen I have decided to challenge the validity of Nebraska legislation LB 1161, which was just recently signed into law. I have made this decision because I feel it is not in the best interest of Nebraska, nor the citizens of Nebraska, to have our legislators crafting special legislation to meet the specific demands of an individual corporation. I am also strongly opposed to the eminent domain provisions of this bill, which, as written, would allow a foreign corporation to condemn Nebraska properties prior to having a permit to construct their project within our borders.”

CitizensCVR_Randy

Suz Luebbe: “I believe very strongly in our rights as Nebraska citizens. All of us take it extremely personally when we are threatened with eminent domain. The elected officials of Nebraska should remember that their loyalties should be with Nebraskans first, U.S citizens second, and foreigners last. I owe it to the past, present, and future generations to pursue this action upon our Governor and State Senators to enact common sense laws that are also constitutional.”

CitizensCVR_Suz

Susan Dunavan: “I became involved in this case because our native prairie grassland that we have spent over 30 years protecting is being threatened by a foreign pipeline.  I am also here to be a voice for future generations.  Since 2009 I have attended meetings and hearings about the pipeline.  I have written my concerns to State and Federal Officials, Senators, Congressmen and bureaucrats only to have my voice unheard.  The Nebraska State Motto is “Equality Before the Law.” Our Legislature and Governor gave special favors to a foreign corporation but did not listen to their own Nebraska constituents.  Now we need to go to court to protect the rights to due process which landowners and citizens would lose from this law that improperly delegates eminent domain authority to the Governor.”

CitizensCVR_Susan

CitizensPromo_V-Pipeline

Historical Updates and Legal Briefs/Rulings

Below is a running list of information we have posted on the case, including the briefs and the initial ruling from the lower court.

6/5/2014:
The Nebraska Supreme Court will hear oral arguments in the appeal of Thompson v. Heineman on Friday, Sept. 5 at 9:00 a.m. at the Nebraska State Capitol in the Supreme Court Room located on the 2nd floor. After oral arguments, a press conference is scheduled for the rotunda inside the Capitol, featuring landowners’ attorney Dave Domina and plaintiffs Randy Thompson, Suz Straka and Susan Dunavan.

  • WHAT: Nebraska Supreme Court Hearing and Press Conference
  • WHEN: 9:00 a.m. CT
  • WHERE: Supreme Court hearing room (inside the State Capitol, 2nd floor)
    • 1445 K St, Lincoln, NE 68508 (map)

In the evening on Sept. 5, Bold Nebraska will host a rally featuring attorney Dave Domina and landowners at Vega in downtown Lincoln. The event will feature live musical performances from local artists, and will double as a DVD+CD release party for “Stopping the Pipeline Rocks,” an album recorded by local artists inside the solar-powered barn built in the path of the Keystone XL pipeline. *Click here for details and to RSVP for the Concert Rally*

6/20/14:
Nebraska landowners Randy Thompson, Suz Straka and Susan Dunavan today filed their brief in the case now before the Nebraska Supreme Court challenging the state law (LB 1161) that fast-tracked the Keystone XL pipeline route approval process in Nebraska. Read a press release on the brief and status of the case.

The landowners argue that LB 1161 is unconstitutional because it improperly moved the authority to grant “eminent domain” power from the Public Service Commission to the Governor, and on several other grounds outlined in the brief below. The appellants’ brief, filed by the office of Nebraska Attorney General John Bruning, follows beneath.

Landowners’ Brief in Thompson v. Heineman by hefflinger

Appellants Brief in Thompson v. Heineman

4/18/14:
The U.S. State Department announced today that it will extend the government comment period on the Keystone XL pipeline, citing the uncertainty of the route in Nebraska after Lancaster County District Judge Stephanie Stacy ruled in February that Nebraska’s pipeline siting law is “unconstitutional and void.”The delay will likely postpone Pres. Obama’s final decision on whether or not to grant TransCanada a permit to build the controversial Keystone XL pipeline. until after the Nov. 4 midterm elections, as a decision from the Nebraska Supreme Court is not expected until January 2015 at the earliest.
2/24/14:
Landowners attorney Dave Domina released a statement in response to TransCanada’s public statements on the impact of Judge Stacy’s ruling in Thompson v. Heineman, embedded below.

Domina Response to TransCanada on Nebraska Ruling by hefflinger

2/19/14:
Lancaster County District Court Judge Stephanie Stacy today sided with three Nebraska landowners and ruled that LB 1161 — the law passed by the Nebraska legislature in 2012 that granted the power of eminent domain to Gov. Dave Heineman, and in turn TransCanada for its Keystone XL pipeline — is declared unconstitutional and void. The ruling includes a permanent injunction preventing Gov. Dave Heineman, and the Nebraska Department of Environmental Quality from taking any further action to authorize or advance the pipeline under the unconstitutional law.  Press release with quotes from landowners, attorney Dave Domina, and Jane Kleeb. MSNBC coverage of the ruling here. Judge Stacy’s ruling is embedded below.

Judge Stacy Ruling in Thompson v. Heineman (RE: LB 1161) by hefflinger

9/28/13:
The landowners’ attorneys, with Domina Law Group, presented oral arguments on Friday, Sept. 27 in Thompson v. Heineman. Judge Stacy is expected to enter her decision in several months. The losing side is then expected to appeal the case to the Nebraska Supreme Court. Press coverage:
9/26/13:
Oral arguments in Thompson v. Heineman are tomorrow. Here is a press release. Plaintiffs’ opening brief is embedded below.

Thompson v. Heineman: Plaintiffs Opening Brief

Thompson v. Heineman: Plaintiffs Opening Brief by hefflinger

7/19/13:
Judge Stacy today set a date of Sept. 27, 2013 to hear arguments in the landowners lawsuit. Here is a press release with quotes from landowners and attorneys.
  • WHAT: Landowners vs. KXL (Thompson v. Heineman) Lawsuit Hearing
  • WHEN: Friday, Sept. 27, 2013
    • 2:00 p.m. Rally on steps outside Lancaster County Courthouse
      *Supporters may bring signs to the rally, but they aren’t allowed in the courthouse. (a Bold staffer can hold them for you)
    • 5:00 p.m. (estimated time) Press conference after hearing on courthouse steps
6/11/13:

Judge Stacy ruled in favor of the citizens (again) and is allowing the lawsuit to move forward. The State of Nebraska has 10 days to respond. This was the State of Nebraska’s 3rd attempt to try and get the case dismissed.The Judge did kick out our equal protection claim, which is not critical for our constitutional argument.All other claims PLUS the Judge is allowing a new claim to move forward from our side that argues because Gov. Heineman acted under an unconstitutional law, then any acts flowing from Governor’s approval of the route are also unconstitutional.

This means, if we win the lawsuit, the route and eminent domain process for TransCanada is thrown out and TransCanada must go through the PSC to get their route approved, and they don’t have eminent domain powers unless they get all of their permits, including a presidential permit. This gives landowners the space to not be forced to sign over their land to a foreign corporation unless the project has officially been approved. As it stands now, TransCanada could take land and then if their project was never approved, they could turn around and sell that land easement to anyone they wanted.

There is a July 19th at 3pm court date in the ruling by the judge (see below) and once we have more details on that we will let folks know.

Order on Motion to Dismiss Second Amended Complaint in Thompson v. Heineman

5/13/2013: The legal team at Domina Law Group filed a response to Att. Bruning’s request to have the case dismissed. This is the 2nd time the Attorney General and Governor’s offices are attempting to have the case dismissed. The last time the judge sided with the citizens to allow the case to move forward. Assuming the judge sides with the citizens again, the case could be heard this summer or fall. As a reminder, if the citizens win the lawsuit then the Nebraska route is thrown out and must get approved by the PSC under their rules and regs and any cases of eminent domain TransCanada tried to use during the bast year would also be thrown out.

Thompson v. Heineman: Brief in Opposition to State’s 2nd Motion to Dismiss by hefflinger


3/18/2013 :
Judge Stacy ruled in the citizens favor allowing our side to ammend the lawsuit to make it crystal clear if our side wins at the full trial, then Gov. Heineman’s route (and anything that Obama might do before the case is decided) becomes void. Meaning, the route is far from settled, landowners should not be signing anything with TC (unless you want them to have a lifetime easement that they could turn around and use for a different project) and Congress should back down from any forced approval of the pipeline. This is the second time citizens have won in this case; the first time came when Judge Stacy denied the State of Nebraska’s motion to dismiss the case.

1/22/2013 : Gov. Heineman approved the route even though there is an active legal challenge to that authority and route process. Judge Stacy’s ruling in favor of the citizens to move forward with the challenge is now posted, click here.

1/3/2013 : HUGE GOOD NEWS. Nebraska judge Stacy just ruled to allow the citizens’ lawsuit against LB 1161, the unconstitutional pipeline siting law, to move forward giving a huge victory to citizens. We are unsure if Gov. Heineman will now move with caution on allowing the legally challenged DEQ process to move forward. We will see more on that in the coming days and weeks. The Nebraska DEQ Final Report on the Keystone XL pipeline route and the US State Department Environmental Review will both be released soon.

Action Request: Call Governor Heineman (Phone: 402-471-2244). Ask him to reject this pipeline route and to have the PSC review TransCanada’s application. Demand that he stand by his words and keep the pipeline out of the aquifer.  Ask him to deny the proposed Keystone XL route and put the power back in the hands of the Public Service Commission (PSC), which has clear rules and regulations for pipelines developed through citizen input. LB 1161 is unconstitutional and the judge is moving the lawsuit forward. Heineman should not continue to operate under this law. 

9/14/2012: The first hearing was held with Judge Stephanie Stacy presiding. Judge Stacy was appointed in 2011. The State of Nebraska was asking the judge to dismiss the case on the grounds that the citizens did not have “standing”–meaning from the state’s perspective since they were not a pipeline company or a state agency involved that they had no right to bring the case forward. The State also argued that–according to them–the taxpayers were not paying for the study the case should be dismissed. The legal team for the citizens–led by David Domina and Brian Jorde–hit back on the State’s claims citing various cases that set precedent for the citizens to bring this claim forward. The State has attempted to make similar arguments in lawsuits since 2004 losing each time. Domina went a step further in his argument saying Plaintiffs could amend their lawsuit to challenge the constitutionality of LB 1161 on the grounds the state has and is illegally advancing credit to a private corporation. This certainly had the State’s lawyers writing notes to each other. Judge Stacy will make a decision on the State’s “Motion to Dismiss” in writing after further study of the arguments, she did not issue a ruling today.  We do not have a specific timeframe but expect the decision in thirty days or so. We feel confident in the case and believe the PSC–not the DEQ and Governor–should be routing all oil pipelines, including TransCanada’s proposed Keystone XL which right now, because of LB 1161 (and 15 minutes of debate in the Unicameral), is exempt from the PSC rules and regulations. The entire Special Session was devoted to enacting “MOPSA” (Major Oil Pipeline Siting Act) which consists of 13 separate statutes clearly laying out exactly what pipelines must do and what specific criteria the PSC (Public Service Commission) must utilize in its evaluation of a major pipeline route.  If the case moves forward, we could be looking at several months before a decision is made on the constitutionality of LB 1161. The decision will certainly have an impact on TransCanada’s route in Nebraska, who has authority over common carriers and eminent domain powers.

 

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BOLD Nebraska
208 S. Burlington Ave., Ste 103, Box 325, Hastings, NE 68901