After half a decade of pandering, pestering, patronizing, promising, threatening,
and doing its best to intimidate landowners, TransCanada turned its tail
and ran from the courthouse in Nebraska.
The Canadian pipeline company says it will
dismiss all condemnation lawsuits it filed in January 2015 against Nebraska landowners represented by Domina
Law Group pc llo.
The announcement follows a long history for Nebraska landowners with their
pipeline nemesis. The landowners’ lawyer,
Dave Domina, recalled the events:
“We started the battle against
TransCanada for the landowners in early 2011. Our first call came from Boyd County
farmer and rancher, Dave Fisher. He asked ‘Who is TransCanada? What
is the pipeline they are threatening to build across my place? Why are
they here telling me they’re taking me to court?’”
Domina continued with this chronology:
The early work eventually led to enough quick resistance to drive the Nebraska
Legislature into a Special Session in the Fall of 2011.
Brian Jorde issued a “Green Paper” on condemnation. It was distributed
to the Legislature and widely used during a November Special Session.
The Legislature’s Special Session produced law called the Major Oil
Pipeline Siting Act or “MOPSA.” Landowners did not like TransCanada, but generally thought the
Legislature did a reasonable job in the special session.
Then came the 2012 regular session.
After all committee hearings and public comment were closed, TransCanada’s
lobbyist cajoled Legislators to amend a bill. “They gutted something
innocuous, and replaced virtually every word,” Domina said. The
LB 1161, was passed in April 2012 with nearly no debate and no public hearings
on the amendments.
It was quickly signed by the Governor.
Governor Dave Heineman’s approval was part of a parade of his failures: early prisoner releases, deaths
at the Beatrice State Home, failure of the Child Protection System, unchecked
Medicare billing fraud, failure to get Medicaid funds for Nebraskans,
mismanagement of the State’s water, and others including the KXL
pipeline controversy in Nebraska.
“Five weeks later, in May 2012, our
landowner clients filed suit to declare LB 1161 unconstitutional. Randy Thompson, Susan Dunavan, and
Suze Straka stepped forward as plaintiffs,” Brian Jorde said.
As the case was progressing, Governor Heineman compounded his mistakes.
He wrote a letter to President Barak Obama declaring TransCanada’s
KXL pipeline route “approved” in Nebraska.
“We said, ‘Not so fast, Governor.’ We asked the Court
to declare his letter void because it was based on an unconstitutional
law,” Domina explained.
Even worse, the “approved” pipeline had no precise route. TransCanada
filed with the Governor no legal descriptions, no property owners’
names, and no specifics. It never alerted people they or their land were
certain to be involved.
The landowners went to trial in September 2013. The case was decided in
February 2014 by District Court Judge Stephanie Stacy.
She declared LB 1161 unconstitutional in February 2014. Judge Stacy is now a member of the Nebraska Supreme Court.
TransCanada and Heineman were furious.
Heineman appealed to the Nebraska Supreme Court.
In an unprecedented ruling, the seven-member Court
effectively tied. Four Justices voted for the landowners on all issues. Three refused to
vote because of the legal description problem created by TransCanada and
approved by Heineman.
The State Constitution requires five votes to declare a law invalid. No
Judge voted in favor of the TransCanada-Heineman position. Four on the
Supreme Court, plus Judge Stacy in District Court, ruled for the landowners.
Three refused to speak on the merits.
After the Supreme Court’s
failure to decide because of the five-member vote rule, TransCanada declared victory and
filed over 60 condemnation lawsuits. They proclaimed victory in the halls
of Congress, the press, and everywhere.
TransCanada’s trumpet was soon silenced. Nebraska landowners were
not finished. Not by a long shot.
Within days after the Supreme Court’s failure to decide, landowners
met with Domina Law Group. Domina and Jorde filed
two new landowner lawsuits. They asked District Court Judges in Holt and York Counties to issue injunctions
stopping TransCanada’s condemnations in their tracks.
Both District Judges agreed.
Injunctions were issued. TransCanada condemnations halted, and its self-proclaimed “victory”
The lawsuits progressed. Trial is scheduled for October 19, 2015. The issues
involved the same constitutional questions not decided by the Supreme
Landowners completed their entire discovery, filed all their evidence,
and submitted their comprehensive written legal briefs as ordered by the
court in Holt County. The landowners completed filings on August 30.
TransCanada’s legal brief is due September 30.
On September 29, 2015, the day before its critical brief was due in court
and 20 days before trial, TransCanada set flight to avoid trial.
The big foreign corporation, with its hundreds of millions or more spent
on lobbyists and TV ads, yes the company that spent half a decade pandering,
pestering, patronizing, promising, threatening, and doing its best to
intimidate landowners decided on a new tactic.
It turned its tail and ran!
But, as Brian Jorde clarifies, “It’s up to the court to decide
whether the lawsuit is over. TransCanada is the defendant. We sued
them! TransCanada can dismiss its condemnation cases in County Court but only
the District Judges or our clients can dismiss the constitutional challenges.”
Domina added, “We do not yet know whether the new TransCanada tactic
renders the District Court suits about LB 1161 moot. That remains to be
Domina Law Group’s clients reacted to the “tactics” announced
by TransCanada. Susan and Bill Dunavan of York County made it clear that,
“We want this terrible law, LB 1161, stricken from Nebraska’s
law books”. The Dunavans were plaintiffs in the 2012 case that the
Supreme Court did not decide and again are lead plaintiffs in the current
round of challenges to the law.
Byron Steskal of Holt County, a landowner who resisted TransCanada from
the beginning and is the lead plaintiff in Holt County said, “We
are relieved to have the condemnations against our property removed, but
we know better than to rely on what TransCanada says. We want to have
the Courts pass on the terrible law so used against us by TransCanada
and Governor Dave Heineman.”
Domina and Jorde turned the attention to the legal issues. Jorde’s
statements about future proceedings will be answered as events unfold.
For Domina, the legal inquiry adds a second direction. “If TransCanada
is true to its word, we will look at how matters work for Nebraskans before
their Public Service Commission.”
Read more on this recent update in the news: