Keystone XL on Trial

SUBHEAD: Susan Dunavan has been fighting to keep foreign corporation TransCanada from crossing her 80 Nebraskan acres.

By Ted Genoways on 27 september 2013 for On Earth -

Image above: Dunavan stands among native prairie grasses on her property in McCool Junction, Nebraska. From original article.

Susan Dunavan has stacks of white binders, piled high on a side table in her farmhouse near McCool Junction, Nebraska. There are the binders filled with clipped newspaper and magazine articles about plans to build the Keystone XL pipeline. There are the binders of letters and notices from TransCanada officials—their easement offers, their threats to use eminent domain to condemn Dunavan’s property. And there are the binders of legal briefs and pretrial motions relating to Dunavan’s lawsuit against Governor Dave Heineman and the State of Nebraska.

For more than five years, she has been fighting to keep TransCanada, the pipeline’s corporate owner, from crossing her 80 acres here. And for the last 18 months, while national attention has focused on trying to divine which way Secretary of State John Kerry and President Barack Obama might be leaning on TransCanada’s request to build the northern portion of the Keystone XL pipeline—which would extend nearly 1,200 miles from the Alberta tar sands to the so-called Cushing extension in Oklahoma—Dunavan and two co-plaintiffs have been awaiting their day in court on a lawsuit that could be activists’ best chance of blocking the project.

Nebraska Attorney General Jon Bruning has twice tried to have the citizen lawsuit thrown out. But in January, Lancaster County District Court Judge Stephanie Stacy issued a ruling upholding five of the six original counts—and two months later allowed citizens to amend the suit to include new accusations of unconstitutional behavior by the state.

According to Brian Jorde of the Domina Law Group, the attorneys representing the citizen complaint, if Judge Stacy rules in favor of the plaintiffs, it would effectively nullify any route previously approved across Nebraska—even if that route already has a State Department permit—and would force TransCanada to start from scratch on matters relating to siting and approval.

Privately, pipeline opponents in Nebraska acknowledge that, were it to lose in district court, the state would almost certainly appeal to the Nebraska Supreme Court (and might, in the meantime, attempt to cram through legislation approving the route). “But a ruling here is likely to take months—with an s,” Jorde told me earlier this week. “An appeal might take years. This suit is a wrench in the works, and buys time for turning public opinion.”

Today, at the courthouse in Lincoln, that suit finally comes to trial—and Dunavan admits to feeling apprehensive. “I’m normally a very quiet person,” she says. “I don’t usually speak out. I stand up for what I believe in, but I’m not an activist-type person.

So to have a spotlight on me is just very intimidating.” She says she did everything she could to avoid taking legal action, but was forced to file suit when it became clear that none of the elected officials she had contacted in Nebraska would listen to her concerns.

So she turned over her binders of documentation to Domina Law and braced for the day that public attention would inevitably fall on her. She dislikes talking to the press, she admits, but she made up her mind early last year that this issue was too important to allow her to sit quietly. “This is millions and millions of dollars, this is people’s livelihoods, this is people’s heritage, this is the future of our state—and nobody is doing anything.”

Susan Dunavan walks through waist-deep prairie grass, pinching seeds between her fingers and scattering them as she goes. She points up the ridge to a group of cattle, a neighbor’s tiny herd that she and her husband allow to graze here. “This has been pastureland for a long time,” she says. “But much of it is native prairie. It’s so rare now that land like this hasn’t been turned into cropland. When we moved here in 1979, our dream was to restore this to its native state.”

Dunavan’s property is part of a narrow ribbon of tallgrass prairie that stretches from southern Canada to eastern Oklahoma. It sustains a surprising amount of biodiversity, she says, and the varied insects, frogs, and rodents are critical to supporting the migration of numerous birds. As if on cue, a pair of migrating broad-winged hawks circles out from a stand of cottonwoods in the creek bottoms, riding the stiff wind in search of prey.

Dunavan and her husband met when they were natural resource majors at Humboldt State University in northern California and later spent three years in Lesotho in southern Africa, helping to establish local agriculture in an area stricken by drought.

When they returned to the United States, they and their three children moved to Nebraska and had an old farmhouse loaded onto a flatbed trailer and trucked in from 16 miles away. (“I’ve always been into recycling,” Dunavan jokes.) But she says that the effort was worthwhile, because this acreage was special.

“There were a lot of invasives. So the first few years we cut thistles and made an inventory of the native species we had, and over-seeded with more native plants.” So far she has identified more than 100 native grasses and plants on the property.
“This is millions and millions of dollars, this is people’s livelihoods, this is people’s heritage, this is the future of our state—and nobody is doing anything.”

In October of 2009, however, when TransCanada sent its initial easement offer, the company made no acknowledgment of the rare condition of Dunavan’s land. The draft agreement promised that TransCanada would perform several “restoration activities” after trenching and installing the pipeline, including “reseeding,” but, Dunavan says, “when I asked them for more details—and when you go through the Department of State Environmental Impact Statement—you find that their idea of restoring tallgrass prairie covers six species.”

So Dunavan sent a list of the 21 native grasses and more than 80 native plants that she had documented on the property. TransCanada sent an engineer to conduct a one-day survey and declared that the property was home to only seven species of grass and a few flowering plants. Dunavan began mailing TransCanada photographs as each native plant flowered throughout June and July of 2010.

At the end of July, TransCanada appeared to have had enough. Tim M. Irons, senior land coordinator on the Keystone project, sent a third easement agreement—with all language regarding reseeding identical to the original—accompanied by a letter informing Dunavan that this was “Keystone’s final offer.” If she did not sign, Irons wrote, “we will be forced to invoke the power of eminent domain and will initiate condemnation proceedings against the property.”

Dunavan says she knew that TransCanada hadn’t been granted such power by the state, so she wrote to Attorney General Bruning to ask whether it was legal to threaten use of eminent domain in order to secure a contract, when the company had no such power in the state. Dunavan was advised to find her own legal representation. She did exactly that.

In April of 2011, she received her fourth easement agreement, this one allowing that because “of certain re-seeding considerations required by the landowner, the landowner may provide for his own contractor to provide special seeding and Keystone Pipeline will pay.” However, the agreement also stipulated that “Keystone shall not be held responsible in any way if the reseeding does not meet the landowner’s expectations.” For the second time, Irons included a letter threatening to use eminent domain if Dunavan didn’t agree to his terms.

But instead of agreeing, Dunavan wrote again to Bruning; citing specific Nebraska statutes against “frightening someone to do something against his or her will” and “coercion by implying authority such as impersonation of a sovereign,” she asked for the attorney general to investigate TransCanada for “fraudulent and deceptive business practices.” She received no reply.

“People talk about poverty and how much money this pipeline is going to bring to the state,” Dunavan says. She looks out over the sweep of her property, the tall grass whipping as the wind picks up again. “But the people in Nebraska right now are experiencing a huge poverty of morals.”

A casual observer could easily mistake today’s proceedings for a typical eminent domain case. In such litigation, one side usually argues that the project in question serves the common good and should be allowed to go forward, while the other side argues that not enough good is served to merit abridging the rights of an individual landowner whose property may be adversely affected.

But even as a version of that familiar argument rages in the court of public opinion, the central legal issue for Judge Stacy to weigh in this case will be a different one: who, within the Nebraska state government, gets to determine that the seizure of private property based on the principle of eminent domain is appropriate.

As I reported back in April, a review of county records by the Nebraska Easement Action Team (or NEAT) found that only about 60 percent of landowners whose property would be crossed by Keystone XL had signed easement agreements—well below TransCanada’s stated target of 98 percent voluntary participation.

And so, the lawsuit alleges, TransCanada enlisted allies on the Nebraska legislature’s Natural Resources committee to draft and approve a bill transferring the power to approve pipeline siting from the five elected members of the Nebraska Public Service Commission (which had already held public hearings and instituted comment periods) to the Nebraska Department of Environmental Quality, political appointees of the governor.

More significantly, the bill vested ultimate approval of the pipeline route in that same governor, Dave Heineman—who, as it happens, was forced in 2010 to return campaign contributions made by TransCanada amid allegations that the gifts violated state law against receiving donations from foreign corporations.

But most troublingly, perhaps, the same proposed legislation authorized Governor Heineman to grant the power of eminent domain to TransCanada. Despite the seeming outrageousness of a law that would allow a foreign corporation to condemn the properties of hundreds of Nebraska landowners, the bill was brought to the floor in the final hours of the state’s 2012 legislative session.

Susan Dunavan says she was appalled by what the legislature did next. “It was the very end of the session—the last ten minutes,” she says, now back at her kitchen table, her white binders of clippings and correspondence laid out before her. Legislators hastily tacked on some amendments, she recalls. “I don’t think the bill even had a final reading” before it passed.

After a NEAT meeting in Albion, Nebraska, Brian Jorde approached Dunavan about joining two of her fellow local landowners, Randy Thompson and Susan Luebbe, in a citizens’ lawsuit against the state. Dunavan agreed. Their formal complaint argues that the legislature had no authority to seize the right of approval from the Public Service Commission, nor to transfer it to the governor, nor to allow him to delegate that power to any third-party, much less to a clearly interested party like TransCanada.

This law, they say, violates the Nebraska Constitution—first by transferring a power reserved by the legislative branch (the Public Service Commission) to the executive branch (the governor), and second by eliminating the opportunity for judicial review, which had been allowed under previous legislation governing the siting of pipelines.

Today, Judge Stacy will finally hear these arguments in open court. After such a long wait, the judge has scheduled only one hour to take statements from both sides. Most analysts believe that a ruling is unlikely before the end of the year. When it does come, the losing side—whichever side that is—will appeal to the Nebraska Supreme Court, further delaying a final decision. Jorde sees these delays as a net positive. “The groundswell of support and opposition and questioning and critical thinking going on is huge,” he told me. The more time that passes, the greater the opportunity there is to turn public opinion against the pipeline in his home state.

But the years of uncertainty and fear have taken their toll on landowners like Dunavan. “It’s exhausting,” she says. “You never get away. Every day I’m on the Internet, looking up the latest article, finding out who said what.” She looks at the open binders spread out before us, now covering most of her kitchen table. Out the open window, the cicadas are ratcheting in the trees. “They not only want to steal my land,” she says, “but they’ve stolen five-and-a-half years of my life.”


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