Originally published in Prairie Fire, June, 2013.
By Kietryn Zychal
Retired rancher Randy Thompson has become the face of the fight against TransCanada’s Keystone XL pipeline. His image appears on banners and cardboard cutouts around the city of Lincoln, Nebraska. “Stand with Randy” is a popular slogan for the pipeline fighters. As one of three taxpayers suing the state of Nebraska over LB 1161, the 2012 bill that may—or may not—determine how pipelines are sited in Nebraska, Thompson stands to lose nothing personally if Keystone XL goes in the ground. The pipeline was rerouted away from his family’s farm on an island in the middle of the Platte River in Merrick County. So, why is he suing the state?
“People should be outraged by what the legislature did. They threw us under the bus,” he said during an interview at his home in Martell, southwest of Lincoln.
In the fall of 2007 Thompson received his first call from TransCanada. “We were totally unaware that there was any type of pipeline project,” he said. He was also unaware that a 1963 Nebraska law, 57-1101, granted oil pipelines the power of eminent domain, even companies owned by foreign corporations. Thompson wrote a letter to Gov. Heineman and received a form letter in return that did not answer any of his questions. “It was just a brochure about the pipeline,” he said. A subsequent letter to the attorney general complaining about his treatment by TransCanada did not receive a response.
TransCanada eventually sent Thompson a letter in 2010 with an easement agreement offering him a one-time payment of $18,900 for a perpetual right of way across 80 acres of his land. They directed him to sign in 30 days or they would initiate condemnation proceedings in court, an option for those who have eminent domain powers. At the time, TransCanada did not even have a permit to build the pipeline.
Originally published in Prairie Fire, July, 2013.
By Kietryn Zychal
Nebraska Gov. Heineman slammed his fist on a table and raised his voice as he said, “Do you mean to tell me that the DEQ doesn’t know what they are talking about and they didn’t do their jobs?”
The governor was addressing a group of Holt and York County residents on Feb. 2, 2012. Most had driven four-and-a-half hours to Lincoln to show him lab results from soil samples taken throughout the Keystone XL reroute that the state Department of Environmental Quality and TransCanada claimed had been “moved out of the Sand Hills.” The landowners paid $600 of their own money to have 11 soil samples analyzed by Midwest Labs of Omaha. Amy Schaffer, daughter of rancher Bruce Boettcher, attempted to show the governor a PowerPoint presentation illustrating that soil on the north shore of the Elkhorn River—deemed outside the Sandhills by an EPA ecoregion map—was as sandy and porous as soil on the south shore of the river inside the area labeled Sandhills. Sample A, taken at the entry point of KXL into Nebraska, was an astounding 87.2 percent sand. The governor was unmoved.
“After that meeting, I kind of lost respect for him,” Schaffer said. “He has a very hot temper. I dressed in a suit, and I tried to be professional. I didn’t expect him to attack us at the beginning of the meeting like that. To me, it seemed as though he came in with his mind made up.”
At one point during the heated 90-minute meeting, Gov. Heineman reminded the ranchers he had authority to call out the National Guard to ensure that TransCanada would bury its pipeline on their land, regardless of whether they consented or not.
Susan Dunavan from York County and Susan Luebbe of Holt County were also at that meeting. Luebbe and Dunavan would eventually become the other two plaintiffs in Thompson v. Heineman, a lawsuit challenging the constitutionality of LB 1161, the pipeline-siting law passed in May 2012 that gave the DEQ and the governor authority to evaluate and approve Keystone XL instead of the Public Service Commission.
Luebbe owns a cattle ranch outside Stuart and still lives in the house where she grew up almost 50 years ago. Her parents have a ranch a few miles away. Speaking of the governor, she said, “We were in there showing him bags of sand from along the reroute. He acted like we came off Mars with this sand. We invited him to come tour it. His demeanor was like we were just a bunch of redneck hicks in his office. I gave up halfway through the meeting, knowing we were not getting anywhere.”
Luebbe returned to Lincoln in April for the final reading of LB 1161 in the legislature. “I was so appalled, watching our senators walking around, drinking coffee, not even listening to the final reading.” The bill passed 44-5. “We knew we going to sue,” she said.
The Keystone XL pipeline that both the Senate and House have voted in the past two weeks to approve just ran into another possible hang-up. Joe Duggan reports:
Holt County District Judge Mark Kozisek granted a temporary injunction Thursday to landowners who challenged the ability of TransCanada to use eminent domain to acquire land for the controversial pipeline.
The judge made the ruling after landowners filed new lawsuits challenging the state’s pipeline routing law, which was narrowly upheld by the Nebraska Supreme Court in a decision last month.
A spokesman for TransCanada said Thursday the company agreed to the injunction in exchange for an accelerated trial schedule. Although the judge’s order affects just the landowners along the northern part of the pipeline route, the company will offer to stall land condemnation for the roughly 90 property owners along the route who have refused to sign easement contracts.
Last month, the Nebraska Supreme Court ruled against a lower court decision in a case that had found the authority for approving the pipeline’s route had been unconstitutionally taken from the state’s Public Service Commission and given to the governor instead. The high court’s justices voted 4-3 that the change in authority was unconstitutional, but the state requires a supermajority of at least five justices to overturn a law. The decision left the door open to the additional litigation that Judge Kozisek issued his injunction on Thursday.
When a property is acquired by the government, it is called “taking.” Pursuant to the Fifth Amendment of the United States Constitution, government can acquire real and personal belongings of a citizen for public purpose and the person should be provided just compensation. See Dowling v. City of Barberton, 2008 U.S. Dist. LEXIS 73162 (N.D. Ohio Sept. 24, 2008). The Fifth Amendment’s public use clause is applicable to state governments through the Fourteenth Amendment Clause. The taking of property for private purpose is thus unconstitutional.