Nebraska

Chapter

P.O. Box 4664, Omaha, NE

68104
http://sierranebraska.org/
www.facebook.com/NebraskaSierraClub
April 20, 2015
William Austin
Baylor Even
1248 O St., Suite 600
Lincoln, NE 68508
Sent by email
waustin@baylorevnen.com
RE: Follow up to Open Meetings Violations Complaint
Dear Bill:
General presumptions of legal construction and analysis:
1. Words are to be given their normally understood meaning unless they
are specifically defined otherwise.
2. Laws and rules are construed liberally for the benefit of the public and
strictly against the state or agency which promulgated them.
3. A general rule applies unless it is contradicted by a specific rule.
4. An agency only has the authority granted by statute.
5. Laws and rules must be sufficiently definite and clear in their definition
to enable a person of ordinary intelligence to understand their
meaning.
6. No agency may create or promulgate a rule without appropriate
statutory authority.
7. Laws and rules should be construed rationally and in a way that avoids
an absurd result.
This complaint is a citizen complaint, and my role is that of a citizen and
citizen advocate, both individually and on behalf of the Nebraska Sierra Club,
since I appeared at the hearing on March 24th as a citizen advocate on their
behalf, rather than as an attorney representing a party in this matter.
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The Nebraska Oil and Gas Commission is a public body as defined by Neb.
Rev. Stat. section 84-1409 (1) and the March 24 th hearing is a meeting as
defined by section 84-1409 (2) since it involved discussion of public
business and taking of action of the public body.
Hearing notice and agenda issues.
I have been unable to find any publication of notice in any newspaper of
general circulation in the county in which the proposed site is located
regarding the March 24th hearing. Notices appear only to have been sent to
persons who own property within one-half mile of the proposed site. This fails
to meet the requirements of Neb. Rev. Stat. section 84-1411(1) that
reasonable advance publicized notice be given to the public.
Likewise no one who I have spoken with is aware of an agenda for the March
24th hearing as required by Neb. section 84-1411(1). The notice sent to
individuals only states the NOGCC will hear the above entitled matter,
which fails both to meet the requirements of section 84-1411(1) to be
sufficiently descriptive to give the public reasonable notice of the matters to
be considered at the meeting and NOGCC rule Chapter 6, 006.02 which
requires notice to include the purpose of the proceeding and the issues
involved.
The heading on the NOGCC website entitled Special Notice March 24, 2015
Hearing Posted March 19, 2015 fails to cure the notice issues involved. It
provides a link to an unsigned, undated document that lacks any indicia of
official status entitled Press Release. While it may have been a good faith
attempt to address notice issues, there are several major issues with this
document. First of all, an unsigned and undated Press Release, which is not
on official letterhead and does not bear the name of any official of the agency
has questionable authority as a legal document on behalf of an agency of
state government. Secondly, it refers to interested parties as define (sic)
by statute. There is no statutory definition of interested parties under the
statutes authorizing the NOGCC. Third, the notice appeared only on the
NOGCC website, which is not adequate notice for people who do not have a
computer or other device that will enable them to connect to the internet.
Fourth, as noted in the original complaint it is questionable whether the
Press Release is sufficiently timely to provide reasonably advance
publicized notice to the public since it was not published in the media until
Friday March 20th, two business days before the hearing.
As previously noted, the Press Release is defective as an official notice by a
state agency. However, due to the fact that it appears on the NOGCC website,
it provides an acknowledgement from the agency that the hearing was
intended to be a public meeting by stating: After the public input process
through the Open Meetings Act is complete, the Commission will recess the
hearing. Based upon their own representations, they are bound by the
requirements of the Open Meetings Act and failed to fulfill those requirements
as set out in our letter of April 7th to the Attorney General and amplified
herein.
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The Press Release also appears intended to indicate that the second portion
of the meeting is different from the first part of the meeting, although it does
not specify the difference in a way that can be understood by people of
reasonable intelligence. The Press Release states: After recess, the
Commission will reconvene and hear Case No. UIC 14-14 as required by state
statutes and the rules of procedure of the Oil and Gas Conservation
Commission. The difficulty with this statement is that there is no indication
which statutes and rules of procedure the NOGCC intended to follow. Further
there is no way the public can determine which rules and statutes apply since
the statutes and rules regarding such matters are jumbled together.
Issues with NOGCC Statutes and Rules of Procedure
Many of the issues in this matter stem from a claim by the NOGCC that
testimony would be limited to persons owning property within one-half mile
of the proposed site. From statements by officials of the NOGCC it appears
the second portion of the March 24th hearing was intended to be limited to
landowners within that radius. However, as noted in the April 7 th letter, there
is no statute and no rule which would require or permit the NOGCC to limit
testimony to such landowners. On the contrary, neb. Rev. Stat. section 57911(2) states: No rule, regulation, or order, or amendment thereof,
except in an emergency, shall be made by the commission without a public
hearing upon at least fifteen days notice. The public hearing shall be held
at such time and place as may be prescribed by the commission, and any
interested person shall be entitled to be heard. (emphasis added). This
clearly states that a public hearing must be held and any interested person is
entitled to be heard.
Similarly, Chapter 6, rule 007.05, Full opportunity shall be provided for all
persons registering their appearances to present evidence. NOGCC Rule
Chapter 1, 024 states: All other words used herein shall be given their usual
and customary meaning. Read in combination with section 57-911(2), it
implies that all the testimony from the public input section of the hearing
must be included as part of the record to be considered by the members of
the NOGCC in making its decision on the application which was heard on
March 24th.
There is no definition of interested person in either the NOGCC statutes or
its rules. There are several definitions of the term interested parties in their
rules but the definitions do not refer to testimony. The most closely analogous
provision refers merely to persons who must be given notice. To add to the
confusion, section 57-911(4) refers to interested persons, interested
parties and such persons without defining any of these terms. Neb. Rev.
Stat. section 57-903(3) defines person expansively. Using the normal and
customary meaning of any interested person, it is logical to conclude that
it means any person who has an interest in the outcome of the proceeding.
This could include any taxpayer who might have to pay for clean-up from a
leak or spill, any person concerned about damage to roads, and any mother
concerned about the safety of her children.
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Although it is unclear, one may infer the NOGCC was attempting to claim the
second portion of the March 24th hearing was quasi-judicial in nature.
However, nothing in the notice they mailed to a few people and nothing in
the Press Release states that was their intent. It merely states it is to be
conducted pursuant to their statutes and rules of procedure. In addition, to
the extent the NOGCC may have authority to conduct quasi-judicial hearings,
their statutes and rules commingle those provisions with those governing the
conduct of rule-making hearings, e.g., section 57-911(2), no rule, regulation,
or order. Since the NOGCC was unable to provide clear delineation of the
rules governing either part of the hearing, the two portions of the hearing
must be considered all part of the same hearing and the testimony from the
public input session made part of the record of the entire hearing. The
attempt by the NOGCC to exclude testimony from the earlier portion of the
hearing appears to violate Neb. Rev. Stat. section 84-1412, because the right
to speak would be meaningless if it is not part of the record.
In addition, the NOGCC may claim that they are entitled to limit testimony to
persons owning property within in one-half mile based upon the language of
an addendum to an agreement with the EPA from 1982. That provision
defined interested persons as those owning an interest in property within
one-half mile of the site of a proposed injection well. Although this agreement
has questionable legal authority due to the passage of time and significant
amendments to federal law in this area, there are several reasons this
provision has no validity to permit the NOGCC to limit testimony in the
manner they suggested. 1. The provision says nothing about who is
authorized or permitted to testify, only who must be given notice. 2. The
provision was never codified in the statutes of the NOGCC or its rules. 3. This
provision is not readily available to the public, who would have little or no
ability to become aware of its existence. 4. If one takes the proposition that
only people owning property can testify at NOGCC hearings to its logical
conclusion, it yields an absurd result. Since NOGCC procedures for rule and
regulation hearings are governed by the same statute which governs as
hearings relating to orders, section 57-911, this would mean that no one
would be permitted to testify about a proposed rule or regulation, since there
would be no particular site in question at the time of the hearing on the
proposed rule or regulation and no one would have an ownership interest that
would entitle him or her to testify. This is an absurd result and would be
inconsistent with established rules of law.
It is also noteworthy that there is no statute which refers to the one-half mile
limitation. The fact the NOGCC has promulgated several rules in this area,
albeit inconsistent rules which state nothing about limiting testimony, may
exceed their statutory authority in this area. There are several cases in which
the Nebraska Supreme Court has held that agencies only have the authority
specifically authorized by the Legislature.
In addition, there are communications from the applicant which implies the
NOGCC was already favoring the application before the hearing. Terex sent
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letters to individuals who sent letters of protest, signed by Donald Walford,

CEO. In it Terex stated that According to your Commission, our proposed well
will be as safe or safer than any of them. It also states Your State
Commissioner has prepared a thorough and detailed presentation covering
water disposal engineering, history, risks and operations. This implies the
NOGCC has already considered the merits of their application and is
supportive of it. This flies in the face of any quasi-judicial proceeding, which
requires judgment only on the evidence presented at the hearing. In addition,
in Terexs letter to Rosemary Enloe of Morrill, Nebraska, there is a handwritten
message dated 3,14,15 stating: you probably will not get a chance to testify
at the hearing as you live outside the mile area around the proposed well.
This message from the applicant to an outspoken opponent is highly improper
on several levels. First, it appears intended to chill her rights to speak
granted by the Nebraska Open Meetings Act. Second, as indicated previously,
it misstates the law. Third, it appears to be an attempt by a non-attorney to
give legal advice. Finally, it may be a violation of 42 USC section 1983 since it
is a representation made under color of state law which attempts to chill Ms.
Enloes rights of free speech guaranteed by the First Amendment to the
United States Constitution. A copy of that letter and handwritten postscript
are attached.
Additional information
There is the matter of the April 22, 2015 special meeting called by the
NOGCC to address the application which was the subject of the March 24 th
hearing. It is notable in several aspects. First, the NOGCC has created an
agenda for the meeting, unlike the March 24 th hearing. Second, the third item
on the agenda refers to the Open Meetings Act, an acknowledgement by the
Commission that their meetings are governed by this act, also unlike the
March 24th hearing. We are currently examining the notices related to that
meeting and will examine the manner in which it is conducted to determine
whether it is in compliance with the Open Meetings Act.
However, the NOGCCs current acknowledgement of the applicability of the
Open Meetings Act to their procedures does not cure the many violations of
the act which occurred prior to and during the March 24 th hearing as set forth
in the April 7th letter and this letter. Since any action the NOGCC may take on
April 22nd is tied to the hearing on March 24th, it would be the fruit of the
poisoned tree. As such it would be void under Nebraska Law.
We respectfully ask that you find that the NOGCC violated the Nebraska Open
Meetings Act as well as their own rules of procedure and void any action
taken related to the March 24th hearing.
Sincerely,
/s/Kenneth C. Winston
Kenneth C. Winston
Nebraska Sierra Club
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