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7,
2015
Attorney
General
Doug
Peterson
2115
State
Capitol
Lincoln,
NE
68509
RE:
Open
Meetings
Law
Violations
by
the
Nebraska
Oil
and
Gas
Conservation
Commission
Dear
Attorney
General
Peterson:
We
are
writing
as
individuals
and
on
behalf
of
the
members
of
our
respective
organizations,
the
Nebraska
Sierra
Club
and
Bold
Nebraska,
and
on
behalf
of
all
the
people
who
testified
at
the
hearing
of
the
Nebraska
Oil
and
Gas
Conservation
Commission
(NOGCC)
at
922
Illinois
St.,
Sidney,
Nebraska
on
March
24,
2015,
regarding
violations
of
the
Nebraska
Open
Meetings
Act
related
to
that
hearing.
Representatives
from
both
organizations
testified
at
the
hearing,
and
observed
various
aspects
of
the
way
it
was
conducted
by
NOGCC.
The
NOGCC
falls
under
the
definition
of
public
body
under
Neb.
Rev.
Stat.
section
84-1409(1)(a)
and
the
hearing
falls
under
the
definition
of
a
meeting
under
Neb.
Rev.
Stat.
section
84-1409(2).
We
request
that
your
investigation
into
this
matter
be
expedited,
since
this
is
a
matter
of
great
importance
for
many
people
of
the
area
and
throughout
the
state,
and
the
NOGCC
is
required
to
make
a
decision
on
the
matter
within
30
days
of
the
hearing.
NOGCC
conducted
the
hearing
in
a
manner
which
appears
to
violate
the
Nebraska
Open
Meetings
Act,
Neb.
Rev.
Stat.
sections
84-1407
to
84-1414,
in
several
serious
aspects,
including
the
following:
1. The
NOGCC
failed
to
publicly
post
a
sufficiently
descriptive
agenda
for
the
hearing
at
least
24
hours
in
advance
as
required
by
Neb.
Rev.
Stat.
section
84-1411.
2. Staff
and
Commissioners
of
the
NOGCC
attempted
to
deter
members
of
the
public
from
speaking
at
the
public
hearing
by
telling
members
of
the
public
and
the
media
that
testimony
at
the
hearing
would
be
limited
to
persons
who
owned
property
within
mile
of
the
proposed
site.
This
message
was
disseminated
by
the
Commission
through
news
articles
that
ran
on
several
occasions,
the
latest
on
March
19th,
three
working
days
before
the
hearing
on
March
24th.
This
appears
to
violate
Neb.
Rev.
Stat.
section
84-1412
(1).
http://www.starherald.com/news/regional_statewide/nebraska-fracking-water-disposal-
opponents-cannot-testify/article_ce811576-ce74-11e4-a22f-634e2776e361.html
The
NOGCC
has
disclosed
no
rule
which
would
have
permitted
it
to
limit
testimony
to
persons
owning
property
within
mile
of
the
proposed
site.
The
NOGCC
rule
which
appears
to
most
closely
govern
the
conduct
of
testimony
at
the
hearing,
Chapter
6,
Rule
007.10
states:
All
persons who wish to speak for the record at any public hearing before the Commission
or
its
examiners
shall
register
their
appearance
at
the
door
on
a
form
to
be
provided
by
the
Commission.
3. The
NOGCC
did
not
change
its
position
to
permit
the
public
to
testify
until
Friday,
March
20th,
two
business
days
before
the
hearing.
Commission
staff
was
quoted
at
that
time
the
weve
always
allowed
public
comment
at
public
hearings.
This
change
of
position
was
not
done
with
adequate
time
to
remedy
the
earlier
violations
caused
by
the
NOGCCs
messages
that
appeared
intended
to
deter
the
public
from
participating
in
the
hearing.
http://www.starherald.com/news/local_news/oil-and-gas-commission-will-now-allow-
public-comment-at/article_26c50308-cf17-11e4-82c2-5f7bbe7df802.html
4. The
NOGCC
failed
to
make
arrangements
to
hold
the
meeting
in
a
facility
large
enough
to
accommodate
the
anticipated
crowd
in
violation
of
Neb.
Rev.
Stat.
section
84-1412(4).
The
issue
of
disposal
of
fracking
waste
had
attracted
widespread
attention,
including
NET
Radio,
the
Lincoln
Journal-Star
and
Omaha
World-Herald
as
well
as
media
throughout
the
Scottsbluff
and
Panhandle
area.
Earlier
meetings
about
the
issue
had
attracted
audiences
of
50
or
more
individuals.
The
hearing
on
LB
512,
a
bill
related
to
the
issue,
attracted
more
than
40
people
in
two
locations.
The
NOGCC
hearing
was
originally
scheduled
for
January
but
had
been
postponed
twice.
The
NOGCC
had
ample
opportunity
to
arrange
for
a
facility
which
would
accommodate
the
anticipated
crowd.
5. The
NOGCC
required
attendees
to
leave
the
room
after
testifying,
preventing
them
from
hearing
other
peoples
comments
and
witnessing
the
NOGCCs
proceedings.
This
is
an
apparent
violation
of
Neb.
Rev.
Stat.
section
84-1412
(1)
which
states
the
public
has
the
right
to
attend
.
meetings
of
public
bodies.
(emphasis
added).
Requiring
people
to
leave
after
testifying
appears
to
violate
Neb.
Rev.
Stat.
section
84-1412(2)
by
limiting
their
ability
to
film
and
record
the
proceedings
as
well
as
section
84-1412(7),
which
requires
a
public
body
to
make
reasonable
efforts
to
accommodate
the
publics
right
to
hear
the
discussion
and
testimony
presented
at
the
meeting.
The
NOGCC
also
arbitrarily
told
some
people
to
leave
and
allowed
others
to
stay
in
the
room
after
testifying.
6. The
NOGCC
violated
Neb.
Rev.
Stat.
section
84-1412(3)
by
requiring
people
to
fill
out
a
form
that
identified
themselves
as
a
condition
of
admission
into
the
hearing.
7. The
NOGCC
stated
during
the
afternoon
session
of
the
hearing
that
none
of
the
public
testimony,
including
that
provided
by
Senator
Ken
Haar
and
a
letter
from
Senator
John
Stinner,
would
be
included
in
the
record
of
the
hearing,
despite
providing
no
citation
to
a
rule
that
permitted
or
required
them
to
do
that.
This
violates
the
basic
intent
of
public
meetings
law
as
set
forth
in
Neb.
Rev.
Stat.
sections
84-1408
and
84-1412,
as
well
as
fundamental
principles
of
democracy.
The
right
to
speak
at
the
hearing
would
be
rendered
meaningless
if
it
is
not
considered
part
of
the
official
proceedings.
It
also
appears
to
violate
their
own
rules,
as
follows:
Chapter
6,
rule
007.05
provides:
Full
opportunity
shall
be
afforded
all
persons
registering
their
appearance
to
present
evidence.
Rule
007.10,
previously
cited,
appears
to
define
persons
entitled
to
speak
rather
broadly.
Chapter
6,
rule
008.03
provides:
No
decision
shall
be
rendered,
sanction
imposed
or
rule
or
order
issued
except
in
consideration
of
the
whole
record.
The
NOGCC
appears
to
be
arbitrarily
choosing
which
parts
of
the
record
to
consider
in
this
matter.
8. The
NOGCC
has
stated
they
intend
to
make
a
decision
on
this
matter
without
reconvening
and
voting
on
the
matter
in
a
public
meeting
in
violation
of
Neb.
Rev.
Stat.
section
1413(2).
9. The
NOGCC
supposedly
maintained
an
audio
recording
of
the
hearing.
However,
the
recording
is
inaudible
and
no
transcript
exists,
in
violation
Neb.
Rev.
Stat.
section
84-1413(4).
10. The
NOGCC
may
argue
that
the
hearing
was
a
quasi-judicial
proceeding
and
therefore
exempt
under
Neb.
Rev.
Stat.
section
84-1409(2)(ii).
However,
the
NOGCCs
rules
do
not
specifically
state
that
its
proceedings
are
judicial
in
nature.
On
the
other
hand,
the
NOGCCs
conduct,
including
referring
to
the
event
as
a
Public
Hearing
on
the
NOGCCs
website
imply
that
it
was
a
public
meeting.
Other
factors,
including
the
statement
from
Commissioners
that,
weve
always
allowed
public
comment,
implies
that
the
hearing
was
indeed
a
public
meeting.
The
Nebraska
Supreme
Court
has
held
that
public
meetings
laws
are
to
be
broadly
interpreted
and
liberally
construed
to
obtain
the
objective
of
openness
in
favor
of
the
public.
Another
factor
which
weighs
against
the
proceeding
being
considered
a
quasi-judicial
proceeding
is
fact
that
the
applicant
and
NOGCC
staff
made
numerous
public
comments
about
the
merits
of
the
application
and
attempted
to
minimize
the
publics
concerns
about
it
prior
to
the
hearing,
in
violation
of
generally
recognized
standards
for
judicial
proceedings.
There
are
also
serious
questions
about
whether
the
record
was
appropriately
created
and
maintained,
as
noted
in
paragraph
9
above.
If
there
is
a
conclusion
that
the
later
portion
of
the
hearing
was
indeed
quasi-judicial,
it
is
so
tainted
by
the
violations
set
forth
herein,
as
well
as
generally
accepted
standards
for
such
proceedings
that
it
should
be
declared
void
as
well.
The
following
is
a
link
to
a
story
that
includes
comments
from
NOGCC
Executive
Director
Bill
Sydow
that
imply
the
public
shouldnt
be
concerned
about
the
application,
therefore
suggesting
the
NOGCC
had
taken
a
position
in
favor
of
the
application
prior
to
the
hearing.
http://www.starherald.com/news/local_news/fracking-wastewater-site-proposed-for-sioux-
county/article_f39494ce-6195-58a3-9547-7f4311124d2f.html
We
request
that
you
take
action
as
soon
as
possible
to
remedy
these
violations.
We
would
be
glad
to
provide
supporting
documentation
or
additional
information
regarding
this
matter.
We
would
appreciate
regular
updates
on
the
status
of
this
matter.
Sincerely,
Kenneth
C.
Winston
Nebraska
Sierra
Club
kwinston@inebraska.com
402-212-3737
Jane
Kleeb
Bold
Nebraska
jane@boldnebraska.org
402-705-3622