Injunction Issued to Prevent Condemnation of Property for XL Pipeline in Nebraska

This guest post has been authored by OCA Nebraska Member Bill Blake and follows his previous guest posts here and here.  As events continue to unfold relating to the Keystone XL pipeline, we hope to feature more of Bill’s insights.

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The Judge of the District Court of Holt County, Nebraska issued a temporary injunction on February 12, 2015, halting Transcanada’s efforts in Nebraska to acquire easement rights for the XL pipeline through eminent domain proceedings. Transcanada had filed over one hundred proceedings in county courts along the proposed route in January, to obtain the permanent and temporary easements needed to complete the pipeline corridor. Over 80% of the easement rights were already been obtained through negotiations with landowners. The condemnation proceedings were filed on the on the eve of expiration of a permit issued by the Governor to use the selected route through Nebraska. The condemnees in Holt county joined together to file the action to enjoin the condemnations.

The Nebraska Supreme Court temporarily opened the way for condemnation in an opinion that failed to hold the routing procedure unconstitutional, but may have also failed to hold it to be constitutional. Only four judges of the Court’s seven judges voiced an opinion on the issue.   It takes five judges to declare a statute unconstitutional. The remaining three judges opined that the plaintiffs did not have standing and refused to give an opinion on the constitutional issue.  See Thompson v. Heineman, 289Neb. 798 (2015) (or Bill’s previous guest posts here and here).

Included in the list of bizarre twists and turns in the XL saga is the fact that Transcanada agreed to issuance of the injunction. This leaves the condemnation proceedings in limbo until the Nebraska Supreme Court has been given a chance to revisit the constitutionality issue in a case where the plaintiffs meet the standing test of the remaining three judges. Interestingly, the Court could also add even one more twist by determining that the Court had accepted jurisdiction in the prior case by a vote of four to three and that the matter has already been decided, even though no judge to date has given an opinion that the routing statute is constitutional. The Court could also avoid the issue altogether by focusing on any one of several other challenges to the route approval process.

William G. Blake
Baylor Evnen Law
Firm

Lincoln, Nebraska

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