Nebraska Supreme Court Upholds Law that Ignores Landowners’ Property Rights, Indigenous Sovereignty in Flawed Decision on Keystone XL Pipeline Route

Nebraska landowners and Tribal Nations said they would continue to fight the Trump administration’s rubber-stamp approval of a federal permit for the proposed Keystone XL pipeline, after the Nebraska Supreme Court ignored due process rights, property rights, and indigenous sovereignty in a flawed decision on the “Mainline Alternative” route through Nebraska. This new route has undergone no legitimate environmental, property rights or cultural reviews and was approved without any proper notice to landowners and Ponca members along the new route.

WHAT: Telepresser for Media on Nebraska Supreme Court KXL Decision

WHEN: Friday, August 23, 10:30 a.m. E.T. / 9:30 a.m. C.T.

CALL-IN DETAILS: DIAL-IN FOR MEDIA: 877-876-9173; PASSWORD: KXL

Landowners’ attorneys with Domina Law Group argued that the proposed pipeline route’s approval by the Nebraska Public Service Commission in November 2017 was illegal on a number of grounds -- including the violation of due process rights for landowners on the route who were never afforded a chance to participate in public hearings or comment as affected landowners. Likewise, attorneys for the Ponca Tribe of Nebraska and Yankton Sioux Tribe argued before the Court that the route’s approval was illegal without notice to landowners and Ponca members on the route and without any survey of sacred and cultural sites on the proposed route, including the Ponca Trail of Tears.

The risky pipeline project’s fate is still very much in doubt, as three separate federal lawsuits continue to proceed that challenge the controversial project’s permits.

President Trump essentially has tried to start the process over, by ending the Executive Order which has governed cross-border pipelines. In its place, Trump issued an “Executive Memorandum” saying TransCanada’s “permit” was approved, without any need for standard reviews that govern critical water crossings and other environmental permits. This action in turn prompted three new federal lawsuits, outlined below:

• Bold, Sierra Club, NRDC, Center for Biological Diversity, Northern Plains Resource Council suit: Filed July 1, 2019. This case is in its early briefing stages. Challenges the Army Corps’ illegal approval without evaluating Keystone XL’s impacts as required by the National Environmental Policy Act and the Clean Water Act. The lawsuit also makes Endangered Species Act claims against Trump, the Army Corps, TransCanada, and local power-line builders -- over the project’s lethal threats to endangered species, including the whooping crane. (http://boldnebraska.org/conservation-groups-launch-new-legal-challenges-to-keystone-xl-pipeline-approval/)
• Indigenous Environmental Network, North Coast Rivers Alliance suit: Filed April 5, 2019. This case challenges Trump’s unilateral permit for Keystone XL, and seeks a new preliminary injunction on construction; oral arguments are scheduled for Oct. 9 in Montana federal court re: the challenge to Trump’s “permit,” and a U.S. government motion to dismiss case. (https://www.ienearth.org/9th-court-of-appeals-throws-out-case-blocking-keystone-xl-pipeline/)
• Native American Rights Fund, Rosebud Sioux Tribe, Fort Belknap, Gros Ventre suit: Filed June 7, 2019. Rosebud Sioux Tribe v Trump seeks to rescind Trump’s unilateral “permit.” In conjunction, the Rosebud Sioux Tribe held its own Utility Commission public hearings on KXL, and rejected the project, refusing permission for TransCanada to use their roads to move equipment to the proposed pipeline route. (https://www.narf.org/cases/keystone/)

Meanwhile, TransCanada has not yet announced a Final Investment Decision on whether to even move forward and build Keystone XL, should it finally resolve these numerous outstanding permitting and legal challenges.

“The Nebraska legislature and a Democratic President can fix this very bad ruling coming out of the Nebraska Supreme Court. At some point in our country’s history, property rights of farmers and sovereign rights of Tribal Nations should trump Big Oil’s land grab,” said Jane Kleeb, Bold Nebraska founder. “The Nebraska legislature can fix our broken state laws that give too much power to Big Oil. There is nothing American about the KXL pipeline—it is a project with foreign steel and foreign tarsands all headed to the export market. Our water is on the line here, and for the past decade too many politicians sat on their hands while the people did the work. It’s time for our elected officials to now step up and make it clear that pipelines are not in our public interest.”

"The Ponca Tribe is extremely disappointed with the Supreme Court's decision.  Not only did the Court ignore the due process rights of landowners along the route that never got notice or an opportunity to be heard about a pipeline going through their land, but it disregarded the potential destruction of the Tribe's cultural resources by TransCanada, including the Ponca Trail of Tears," said Larry Wright, Jr., Chairman of the Ponca Tribe of Nebraska.  "The reality is neither TransCanada nor the PSC has any idea what cultural and historic resources are along the route because surveys have never been done.  We've seen what pipeline companies do to cultural and historic resources in South Dakota with DAPL -- they intentionally plow through them and destroy them. Even the federal court in Montana recognized that the pipeline cannot be built until cultural and historic surveys are done, but the Supreme Court of Nebraska doesn't seem to care about those resources in its own state. Regardless, the Ponca Tribe will continue to fight this pipeline that threatens all of our land, water, and resources in Nebraska."