Holt County supervisors deny pipeline construction permit

Six Holt County Supervisors listened as nearly 50 citizens presented testimony last Friday afternoon.

A public hearing regarding TC Energy's application for a pipeline construction permit was held in the district courtroom at the Holt County courthouse. Pipeline opponents, from elementary students to 90-year-old grandparents, packed the courtroom, filling approximately 100 seats, and spilled out to the second-floor hallway.

Speakers were called in order of sign-up, which had begun in the morning at the county clerk's office. Each was allowed three minutes on the floor. As the hearing began, 41 had signed up, with names added to the list throughout the hearing. By hearing's end, 56 had testified, including a half dozen TC Energy representatives.

After two hours of testimony, the county leaders voted to deny the permit application, until conditions laid out by the county planning commission are met. The motion came from supervisor Steve Boshart of O'Neill, who presided over the hearing. All six supervisors present voted aye. Supervisor chair Bill Tielke was absent.

During the morning session of the regular supervisor's meeting, Diana Steskal of Stuart questioned sign-up and speaking-order procedures, asking clerk Cathy Pavel if each TCE representative on the list had signed in person. Pavel replied one TCE individual had signed for several potential speakers.

The TCE employees and attorneys spoke first, except for attorney Jim Powers, who deferred his statements to the end of the hearing.

Pipeline officials were accompanied by TCE security personnel, one who sat facing the courtroom door and another who quietly paced the second-floor corridor. Holt County sheriff Ben Matchett and other law enforcement officers stood by at the rear of the room.

Robert Latimer of Omaha, began by introducing several colleagues.

Latimer said, "TC Energy is here today to talk about the significant work that's been done in bringing forth our permit application to construct an oil pipeline. Over the last five to six months, we've spent time with county staff, county zoning administrator, the planning and zoning committee, working through a significant amount of information to demonstrate our compliance to that process and we're here today to talk about the recommendation the planning and zoning committee made to you as the board of supervisors to deny the permit until TC Energy gains access to all lands by voluntary easements, or when and if condemnation actions are successful, and identify all private drainage tiles and comply with section 2.1, paragraph three, of the ordinance."

Five TCE speakers indicated the conditions had been met. Pipeline opponents disagreed.

A TCE attorney, Patrick Pepper with Omaha law firm, McGrath North, addressed conditions set forth by the planning board.

"As of last week, TransCanada has acquired all the right of way necessary. In the records they provided, as a courtesy copy, is a supplement listing all easements acquired. That condition the planning and zoning put on approval is now satisfied," he said. "The second condition...is that all private drain tile be identified. What you have in front of you is the known private drain tile in Holt County. We have a fundamental disagreement with the word drainage in your ordinance...The context in which the word drainage is used in the ordinance is that with other open and publicly known utilities, right of way and roadways. To convert the word drainage into some private unknown, unseeable feature would be taking that word out of context. It would also, frankly, put an impossibility on compliance with your statute...There may be people who don't know where their drainage tile is. There may be people who are unwilling to provide that. Putting a construction on this regulation that requires impossibility, we are left with very few options. It is perilously close to a regulatory taking and that's something we will certainly need to evaluate...it is very dangerous and limits our options quite considerably."

A second McGrath North attorney, Ronald Comes, reviewed a list of documents contained in a binder that comprised the permit application.

"TransCanada commits to continue to revise its alignment sheets to show any additional drain tile found either before construction or in the course of construction," he said.

Holt County attorney Brent Kelly addressed the supervisors as the hearing neared an end, prior to the motion and vote.

"I need to clear something up," he said. "I think several representatives from TransCanada said or testified that they have obtained 100% of the easements. I think that we need to clarify that point, so that there's no misunderstanding. I believe what TransCanada has represented, what they are referring to is a legal fiction that says, while these condemnation actions are still pending, once the board of appraisers has entered, there is a retroactive easement. So, it's a legal fiction that they already have the easement. I just want to clarify this because I don't think it was made clear. There's cases still pending. I went and grabbed a file here, 'In the county court of Holt County Nebraska, TransCanada Pipeline vs Ronald Crumly and Jeanne Crumly.' As of Feb. 21 and Feb. 25, ... they're appealing those awards. So it's not a final matter. It was kind of made to sound like it is. It's not."

TCE attorney Powers, who had deferred his comments earlier, rebutted Kelly's comments.

"TransCanada has shown you today they do have 100% of the easements. On the point of legal fiction, it's Nebraska law and if you're going to make the basis of that decision on his interpretation...it's not right. There is a statute in Nebraska that is very clear. And if you go to register of deeds, you will see that there is an order from county court on file. It gives TransCanada complete access of that property, for purposes of the condemnation or improving on it.

"The interpretation of the drain tile or the drainage zoning regulation, to require that we have to identify every private drain tile. We've done, they have identified the drain tile. We supplemented it. There are only two ways to figure that out at this point. If they won't provide it to us, the landowners, then we'll figure it out when we start construction. That's it. You can't impose a condition on an applicant to a building permit and be in a position to never fulfill. And so, we've met the requirements and it's not a legal fiction."

He finished with the following statement, "I'm not anxious to come back here someday to this court, but you have to follow the law and the law's clear. We met the conditions."

Other than TCE representatives, all speakers voiced opposition to issuing the permit. Many of those who testified were Holt County landowners. Others came from nearby Antelope and Boyd counties, as well as greater Nebraska.

"We are trying to protect our things and want you to deny it because it's already causing so many problems and it's destroying crops and water," said the youngest hearing speaker, Dalton Kopecky.

Dalton's two younger siblings had also signed the registration sheet to speak, but they got cold feet when their names were called. As Karley Kopecky stood in front of the supervisors, she whispered in her mother's ear. Deborah Kopecky said her daughter had signed up to speak, intending convey her birthday wish for "no pipeline."

"At meetings, I heard about the revenue this pipeline will be bringing in, in regards to power companies or the money to fix bridges," said Deborah Kopecky. "Please remember to not sell your own people out, as we are already your customers."

Adams County resident Cathie Genung and her husband, Lewis Genung, own land in Holt County. Cathie Genung was raised on the Doolittle Ranch near Amelia, where she said she was taught to be a steward of the land.

"That love of the land carried over into adulthood - way into adulthood, it's my 75th birthday today...The Nebraska Sandhills and the native prairie are national treasures. The Ogallala Aquifer is beyond priceless...Will you protect the people who have elected you or will you sell out to a foreign corporation?" she asked.

Earl and Beverly Miller of O'Neill own land on the pipeline path, where water flows from three springs in the ground, to form the mouth of the Red Bird Creek. The creek flows into the Niobrara River, then on to the Missouri. They both testified, asking the supervisors to vote no.

"They (TCE) don't have all that they need as far as the drain tile," Byron Steskal of Stuart said. "In talking to the landowners, I know how many there are, but I am not going to divulge that information now."

Steskal said TCE had appealed all but two of the eminent domain appraisals in Holt County. According to Nebraska.gov court records, about 24 appeals to condemnation values were filed in Holt County district court by Pepper and Powers during the previous week. Values were established earlier this year by a three-person panel of appraisers, sworn in Holt County court, Travis Dougherty and Dean Sidak of O'Neill, and Steven Brewster of Stuart.

Mary Jean Adams of Atkinson reminded the supervisors of a statement made by TCE, that it is a pipeline-building company.

"Be the leading energy infrastructure company in North America and develop a significant, competitive advantage," she read from the company's vision statement. "Sounds like a private company to me. They admitted it and they want to make money off of us – private gain. eminent domain is not for private gain. You have the opportunity to stop it."

Diana Steskal addressed reclamation procedure, "TransCanada only wants to compensate the landowners for three years and each year the percentage of the loss of crops decrease. But, at the same time, TransCanada will receive a profit from whatever product they say is in that pipe for 30 to 50 years."

Jeanne Crumly said studies published were not done on the current route.

"Studies were done on the 'preferred route.' That's not the route being applied for, the route being applied for is the 'mainline alternative route,' so you do not have documentation on the route being applied for, according to what I can see," she said.

Crumly also voiced concern with language in the application.

"Landowners will be compensated 'reasonably.' Define that term to me. Most recently our local appraisers, following all the rules of the game here, assigned values to each of the landowners' land, reasonable compensation, yet TransCanada has now challenged that because they don't want to pay us what Holt County considered reasonable," she said. "I ask that you read every single Page of this document. I ask that you understand every single Page of this document. I don't."

"These guys, they are really not very decent people," said Wynn Hipke, from Stuart. He alleged TCE contacted his and others' lenders in an attempt to "get the lenders to sign over our ground to them."

Randy Goeke of Atkinson said, "We need to always remember the faces of those young people we saw, remember the faces of our grandchildren, when you make any kind of decision related to the land and the water...We owe it to them to give what we've already received."

Art Tanderup is an Antelope County farmer, but spent part of his youth in Holt County, where he learned many "good values."

"You learn you have to be very skeptical of people who come in and want to sell you something with a little silver in their hand and start pulling these shenanigans on you," he said. "There are court cases pending right here in Holt County and all across this state, dealing with the eminent domain, dealing with due process, dealing with the constitutionality of the eminent domain law that took this land that the Constitution of the state of Nebraska says, 'public use,' it does not say 'public interest.'"

He encouraged the supervisors to study the matter further, "Take your time, do the right thing. Use those Holt County values and respect the people that live here."

"Concerned about keeping people here? Try not poisoning their water," said Mahmud Fitil, an activist from Omaha. "If this gets into our water, we are done. You cannot clean dilbit out of water, the U.S. Coast Guard has said so...Think about what we are doing for the future generations of this state."

Four officers of the O'Neill FFA chapter sat near the front of the room.

"I know we, as a generation, catch a lot of grief for being on our phones too much," Taya Rainforth, president, told the supervisors. "But I just want to say that we are listening, and we are learning. There has been a lot of talk about our future and I want you to know how much we do appreciate what you are doing for us. You are giving us a big opportunity and we won't let you down."