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TransCanada Afraid to Go to Court: Nebraska Landowners Stare Down Pipeline Company!

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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.

Domina and 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 replacement Bill, 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.

Then 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.

Randy Thompson, Suz Straka, Susan Dunavan“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.

Nebraska Supreme Court

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” evaporated.

The lawsuits progressed. Trial is scheduled for October 19, 2015. The issues involved the same constitutional questions not decided by the Supreme Court earlier.

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 seen.”

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:

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