Eminent Domain – Nebraska Legislative Bill 155

February 21, 2019. Eminent domain. Grant County News 134(30): 1, 6.

A stalwart Nebraska legislator had a bunch of concerned and supportive sandhillers in his office on February 7th. It was time for a public hearing associated with legislative action to remove the use of eminent domain by public entities to benefit private companies.

The advocate was Sen. Tom Brewer of the 43rd legislative district. More than a dozen sandhillers came driving for hours on a frigid winter day – leaving their ranch – so their voice could be heard.

Before dawn at Valentine upon one particular departure, the temperature was sub-zero. Add in the extent of wind chill and the extreme polar cold was obvious. Our group represented one of several travelers across snow swept land so we could speak to the future of the sandhills.

We went to speak at a public hearing scheduled for the Natural Resources Committee at the Nebraska capitol in Lincoln. Sen. Brewer’s request to the fine senators of this committee was to strike a single sentence from legal statutes “to eliminate provisions relating to eminent domain” as indicated in a state law.

The words are: “The exercise of eminent domain to provide needed transmission lines and related facilities for a privately developed renewable energy generation is a public use.”

The legislation was introduced by Sen. Brewer, as he stated: “Public entities using the power of government against their neighbors so they can make money.”

“It is wrong,” Brewer said. There was then a public hearing. People spoke and the state senators listened and asked fine questions.

Proponents for approval of the LB 155 spoke first, obvious in their opposition to allow a public entity to act for the benefit of private landowners. There were ca. 15 people that presented personal testimony in support. Their words were indicative and convey what sandhills residents have realized and how they want to continue the essential cattle land legacy and other special values.

“Our legacy runs really deep,” said Wayne Eatinger, a fifth generation rancher in southeast Cherry county.

Barbara Welch was so very personable in regard to making sure that landmarks continue to be special places. Her analogy was so poignant that Sen. Hughes, chairman of the committee asked her to share a key tenet that she has adhered to since her days of high school. It was the result of a bunch of mice in a box so many few years ago. She brought many smiles to those present.

Dan Welch then spoke to the heritage of his ranch unit south of Thedford. The r-project would traverse the couple’s ranch property and create a health threat and diminish the value of the rangeland which has been scientifically studied.

“Take away our property rights and you take away our dignity,” Mr. Welch said. ”NPPD has been using eminent domain as a big stick over our heads for four years.”

Mr. Welch is an outspoken advocate for private property rights and this was obvious during his more than five minute testimony on Thursday.

Barb and Dan Welch presented a late December letter that arrived in their mail-box. It was an indication from NPPD that they would use eminent domain and all of its legal conundrums to condemn Welch ranchland to construct an industrial powerline across his range for heritage cattle.

“If you do not truly own your property, you are property,” said Brett Steffen of Thedford. The proposed r-project would traverse his property south of Thedford.

Sam Sampson, of Lincoln, conveyed his personal advocacy again wind turbines based upon his appreciation of a haven for hunters and outdoor enthusiasts at Brewster. “We need to protect some of us from the tyranny of others,” he said while wearing his best suit to speak his heart-felt words to the legislators.

Dean Smith from Antelope county – a newly elected county commissioner – was supportive as he referred to the nearly 300 industrial wind turbines in the county, with more being considered. His comments indicated the negative impacts during turbine project construction.

A significant presentation was a map graphic of Cherry county that indicates the extent of land-owners opposed to wind turbines. This document of record indicated the situation to each member of the Natural Resources Committee. The extent of opposition as obvious with the color red. The presentation provided an opportunity to convey other details associated with industrial wind turbines and necessary powerlines, based upon the currently known situation in Cherry county.

Some minutes beyond the five minutes allotted was provided to speak to what is being done within Cherry county. There were questions regarding the current county commissioners. Industrial wind turbines could not be placed on lands enrolled within the for-wind land owners because their surrounding neighbors do not want industrial wind turbines on their property. This is probably the case with industrial transmission lines. There were words said in regard to the request by Wayne Eatinger to ban industrial wind turbines within the county. It was also an opportunity to discuss the importance of state-level legislation as well as actions being done by the Bureau of Educational Lands and Funds.

A detail oriented cost-analysis evaluation was provided by Douglas P. Nelson, from Wayne. The economics for establishing a wind turbine project meant a loss due to the reality of costs.

“Take care of residents first,” said Amy Ballagh, a ranch-wife from the eastern hills and a long-time opponent to the r-project. There should be no eminent domain for private gain, she said.

Dave Hutchison, operator of a bison ranch near Rose, conveyed a common theme that the r-project would threaten whooping cranes and diminish the value of visitors to the region. He provided handouts with details.

Other names associated with comments included Mike Young, Marjorie Manning Warren and Ann Manning-Warren.

The opponents to this bill wore suits and represented some group, and were paid representatives of some groups with an obvious agenda, including the Advance Power Alliance, the Center for Rural Affairs and the Nebraska Farmers Union. They talked extensively, yet when asked a particular question the answers were lacking. Supposed economic development was a primary reason to not change the current legislation.

There was no utility company or industrial wind turbine developer present at the hearing.

Sen. Brewer ended the public hearing with his passionate comments. His concern for the sandhills and its people was blatantly obvious as he has actively been working to continue appreciated values. His staff worked with the landowner map to enhance it in relation to the proposed r-project corridor.

Sen. Brewer has selected this legislative action to be his priority bill, as he and his staff, including legislative aide Tony Baker continue to strongly work for residents of the 43rd district.

“What gives developer the right to impact neighbors,” he said. There is “smoke and mirrors by big wind.”

The efforts of many meant significant words were given to support Senator Brewer’s request to revise state legislation.

This day of action started in the dark during a realized 4o upon departure a few minutes after 6 a.m. at Valentine. Cold was everywhere during the day hours during the travel time when ranch employees stayed at the ranch to do chores and take care of the stock.

Finally after a long drive and getting back to the home place the temperature – including an excessively abhorrent wind chill – was at least -8^o upon returning to Cherry county and the heart city so many hours later during one day.

Legislator Brewer Visits Valentine for Meeting

About 25 people attended the town hall meeting held by Nebraska senator Tom Brewer at Valentine on March 25th.

During the first half of the meeting, senator Brewer summarized pertinent legislative activities during the first 53 days of the session, noting the 13 bills he’d introduced and mentioning that he was a sponsor of 26 others.

He indicated there has been a “battle” between those that want to increase taxes (property, income and sales) and those that want to reduce the tax burden. Property taxes were specifically noted as they are “bleeding people” and putting “in jeopardy farms and ranches” that struggle on limited income to have the money needed to pay yearly taxes.

Senator Brewer’s priority bill was LB 340, and this legislation has been approved. An especially “radioactive bill” has been LB 505, or the refugee resettlement act. Dialog has been “ugly,” he said, indicating he has been called a “racist” and “horrible human being,” he said. The intent of the legislation is not to stop refugee resettlement, but to get some accountability. The ongoing influx of refugees has made it difficult to balance the state’s budget, he said.

A question and answer period followed.

A particular point of discussion was why one particular legislator has such an influence on legislative proceedings. This Omaha senator has used filibusters to delay action on legislative bills and kept other legislative measures from being considered. Sen. Brewer noted that this was because the eastern Nebraskan uses every means of legally available means to act, based upon his more than 40 years of legislative involvement.

Whiteclay was another topic of a question, and sen. Brewer indicated that $100,000 is available to clean up the place, which would include removal of abandoned buildings. There is also the potential that the liquor licenses may be revoked by early summer, which could result in other businesses being established, he said.

Brewer was supportive of a request by the Niobrara Council for additional funding. No action has been taken on this, since the revenue committee has not submitted state funding proposals, so any action by the appropriations committee is stalled. The budgetary request is very minimal.

A west-Cherry county rancher asked why LB 504 would be a legislative priority for Brewer in 2018, noting how the bill would affect local control, such as county zoning regulations.

This legislation – which is stalled in committee – would place a moratorium on the development of wind turbine facilities in the sandhill’s region and allow detailed consideration of associated aspects.

Wind energy development is “disjointed,” in the region, Brewer said, adding that more information is needed to for there to be proper decisions.
Brewer and his legislative assistance Tony Baker, then gave special recognition to the many sandhill residents that came to Lincoln to present testimony at the committee hearing for LB 504. At the recent legislative hearing in Lincoln with the natural resources committee, Brewer said there were 21 lawyers present, including some from Omaha firms and others from prominent wind-turbine developers. They spoke against this legislative bill as they are in favor developing wind turbine facilities, with money a primary topic, personally heard at the hearing in Lincoln.

Because of the decision by the committee chairman, this bill is being held in committee, despite the majority of personal and written testimony asking that the bill be presented to the full legislature for consideration.

“There will be no more wind energy once subsidies are gone,” Brewer said. Tax subsidies for wind turbine facilities are now being reduced every year by 20%, and by 2020, according to known details, there will no longer be any sort of subsidy provided by U.S.A. taxpayers in support of these sorts of facilities.

Brewer also commented that a potential change in the placement of the R-Project to a southerly corridor would influence any placement of turbines in Cherry county.

A draft environmental impact assessment prepared by the U.S. Fish and Wildlife Service indicates such a potential corridor, based upon a draft copy, available in early March. A final version of this document is expected to be made available for public review in June?

The situation with lobbyists working to influence legislators was also conveyed in response to a question from a Valentine resident. There are 49 senators and 488 lobbyists, Brewer said, noting that there are regular events held for the senators so a particular interest group can present a perspective in favor of legislation. Lobbyists take every opportunity available to express their particular view, he said, and they are especially prevalent in the capitol rotunda outside the legislative chamber.

A bit of discussion was given two other items, including enacting legislation that would require Country-Of-Origin-Labeling for beef in Nebraska and bringing an end to the change in the spring and autumn time changes.

Brewer noted that a special feature in his office is a mounted buffalo-head, and visitors enjoy getting their picture of them and the senator with the shaggy mount in the background. The stuffed head came from a bison taken by his daughter and had been a “Butch” Shadbolt animal. It took particular effort to get it properly placed in a manner that conformed to building strictures, he said.

Sen. Brewer suggested that if there are any local or regional issues that may require legislation, effort should be made to define the needs in the next few months so legislation can be written for consideration during the legislative session in 2018.

People from Ainsworth, Wood Lake, Valentine, Kilgore, Nenzel, Cody and Thedford attended the meeting. Prominent among the crowd at a Valentine restaurant, early on a Saturday morning, were numerous opponents and a few proponents of wind turbines in Cherry county. Sen. Brewer answered every question asked during the 70 minute meeting.

Hearing Held on Moratorium on Turbines in the Sandhills

It was country boots versus city suits during the hearing on legislative bill 504 at the Nebraska state capitol on March 1^st.

The natural resources committee held a hearing on a bill introduced by senator Tom Brewer, who represents the 43^rd district. The legislation would establish a two-year moratorium on development of industrial wind turbines within the sandhills, and that a study of wind turbines impacts or influences occur during this period.

Senator Brewer opened the hearing. The primary reason for the moratorium would be to have a “time-out” to “give everyone a voice and a chance to be heard.” Turbine proposals, especially in Cherry county have been obviously contentious, resulting in families divided and friend and neighbor disagreements. Tax subsidies were also mentioned as developers are rushing to build before the end of federal tax subsidies in a few years. There is a need to balance the rights of wind companies with those of land owners and other interested parties, he said.

Proponents urging that the bill be moved out of the committee for consideration by the full legislature were primarily ranchland residents, with many having a personal stake in what will happen within the sandhills if turbine facilities and associated power lines get built.

There were Cherry county ranchers from the Goose Creek country and the Brownlee vicinity. Others also drove hundreds of miles from the Thedford area. A ranchwife from north of Burwell came to express her concern about turbines and the tactics of the Nebraska Public Power District associated with the construction of the proposed R-Project industrial power line. Other concerned citizens came from Valentine, Wood Lake and Taylor, as well as a former state senator from North Platte, from a ranch dating to 1878.

These many people took time out of their schedule – during the busy calving season – to drive many miles to Lincoln because of what they and many others appreciate about the Sand Hills. It is a common consensus that the region is cattle country, not wind turbine country. A common theme was that the sandhills are a unique place that deserves special protection.

There was a comment about the region being a “national natural wonder” and a “magical and amazing place.” Ann Manning-Warren, drove from the Goose creek country of southeast Cherry county. She said “there is no other place in the world quite like the sandhills.” Her ranch, like many others, represent generations of ranch families that have conserved the grassland range and other unique land features.

Fourth generation rancher Craig Miles said the positions on wind turbine facility development was the “difference between cowboys and paid suits.” His testimony conveyed a sense of place from prominent landmark, Hackberry Point, where the view towards the North Loup River, the wind among the grass and the sound of the wild birds can be enjoyed. The “wisdom behind LB 504 is taking the high road.”

Also present was a spokesman for the Lincoln-based Wachiska chapter of the National Audubon Society, a group that has for many years worked to conserve tracts of tall-grass prairie in southeast Nebraska. Bruce Kennedy has also been involved in getting the Niobrara River designated as a national scenic river.

The Nebraska Sierra Club spokesman George Cunningham said that though the group are proponents of “sustainable alternative energy systems” there is “no need for energy developments in native grasslands.” They should be on converted land.

The massive development of wind turbine facilities in Antelope county was indicated by Dean Smith, a farmer from near Brunswick. He indicated that 50% of the county has easements that allow wind turbine placement, with about one-half of that property owners being absentee landowners. There are already 220 industrial turbines within the county, with another 168 proposed. His three primary concerns are viewscape, timely collection of taxes and wind turbine syndrome. A tactic used by developers is that once there is one turbine, why not put in others, he said.

Developers are now intent on placing industrial development on land in the vicinity of ranches cared for by multiple generations of families. Within Cherry county, there is the Kilgore project and the newly identified Cascade project that would place 147 turbines on land along the Cherry county line, north of Thedford along Highway 83.

Opponents were most notably represented by lawyers and lobbyists for wind energy development companies. The men in suits were paid to talk.

They included someone from Berkshire-Hathaway Energy, or was it BSH Renewables, the current owner and operator of the Grande Prairie turbine facility in northern Holt county. This company is looking for additional opportunities to purchase wind turbine developments. The Sand Hills is one of their top three locales for future development, lawyer Alan Butler said.

Invenergy, the developer of turbine facilities in Boone and Antelope counties, had representative Joshua Framel proclaim that their projects “maximize benefits with minimal impacts.”

A lawyer from an Omaha law firm said the legislation is “unwarranted and will dangerously chill opportunities for wind development in Nebraska.” Mike Degan also said that there is an advantage to placing turbines in the sandhills because there is “less residential development so turbines could be placed in remote areas.”

Also speaking in opposition to LB 504 was Kathy Torpy of The Nature Conservancy. This group is pro-wind and wants more turbines in Nebraska, and she asked for “thoughtful and well done placement of turbines” with a request for meetings to be held within the sandhills on this issue. She also said that “ecologically sensitive areas” need to be protected and asked – for some reason not indicated – that the Nebraska Game and Parks Commission lead the study.

The Center for Rural Affairs was also opposed to the legislative bill, since it was “focused on removal of local communities to regulate wind turbines.” Spokesman Lucas Nelsen also said that the boundary indicated with the legislative bill needs further consideration.

Bree DeNaeyer secretary of Cherry County Wind, L.L.C. also spoke, stating the need to “dispense with 504.” Her husband is a county commissioner operating a ranch on land owned by his mother, an enrolled member of the group. Her opinion was that the state legislation would conflict with local zoning regulations and impinge on private property rights. Rancher Dave Hamilton, also an enrolled member of Cherry County Wind, said wind turbines would mean economic development that would “ripple down main streets” and the bill was a “stall tactic.”

Bluestem Energy Solutions, an Omaha-based company, was well represented. They have plans – one which was rejected by the Cherry county commissioners – for a turbine facility south of Kilgore, and the Cascade project along Highway 83 at the Cherry county line, north of Thedford.

Testimony was also expressed by a wind coalition lobbyist that works to remove barriers to wind development wherever.

Other groups opposed to the bill were the Saline County Wind Association (comes down to the not in my backyard opinion), the Nebraska League of Conservation Voters (wind is a resource that needs to be taken advantage of, just like land and water), the Nebraska Chamber of Commerce and Nebraska Farmer’s Union (the bill is “heavy-handed” and anti-business, anti-property rights and anti-local control).

There were also two speakers with a neutral position. Ken Winston of Bold Alliance asked that amendments be added to the bill to address pipelines, injection wells and powerlines. A representative of the Nebraska Association of County Officials also spoke.

Everyone had a chance to present their representative testimony, with nearly every speaker limited to three minutes. Letters that had been sent in were also indicated.

Sen. Brewer indicated his view upon making comments at the end of the hearing. “This is an issue that effects many. Bring this legislation to the floor … to let the committee decide is ridiculous. Counties don’t know what will be right or what will be wrong.” He noted how some wind energy developers “put a gun to our head” as they said “give us wind or we will go elsewhere.” This threat was not acceptable to Sen. Brewer, who also said it was “wrong-headed and ridiculous to bring in turbines because there are already roads and railroad tracks.”

According to the clerk of the hearing committee, there were 23 people that testified in favor of the legislation, with 40 letters received that indicated the same view. Opponents were represented by 16 speakers, with 20 letters received.

Response to District 43 Legislator Column

Jim Ducey. September 1, 2016. Letter to the editor. Grant County News 132(5): 4.

The so-called most recent district news from Al Davis, is a blatant representation of a politician in action. He starts his column with what he has done to promote wind turbine development via state legislation to promote. He finishes with more words indicating the need that counties need to make the decision.

What is it Senator Davis? You promote wind energy via state measures – as you seemingly represent your constituents - then go to a local meeting where county commissioners are present, yet say nothing to the dozens at the public venue.

Do you not have the verve to address the residents which you supposedly represent? You say in your opiniation that the speakers only represented one side of the view. Yet, you said nothing to the attendees, although you did apparently speak to those few that directly asked you questions.

If anyone such as you and others convey or promote a view, please have the ability to speak in public and let people know your perspective.

One item of interest is where you stand in regards to the OLO Ranch property in southwest Cherry county. An item you mention in your opposition is the 54,000 acres development in Holt county where Warren Buffett is taking advantage of tax subsidies, as others have documented. Isn’t that about the approximate size of the holdings you inherited from your elders, who created the ranch based upon cattle and range land. I’m don't know what Essie Davis would think about wind turbines spread across the land where she looked out to see the large herds of cattle she raised to live on.

Do you, Sen. Davis, hope to place multiple turbines there in the north Hyannis country of southwest Cherry county? Do you even ranch now, or have any cattle and personally harvest hay each summer? It seems that you are just a proponent for views that fit your legislative perspective.

Please explain how you are representing the people, as the job of every governmental representative is to speak for the people, not the government.

Are you a member of the Cherry County Wind Energy Association? Answer this question and let the public know the reality of your perspective. Are your views based upon some potential personal profit? Have you voted for legislation that will put money in your pocket? Do you promote powerlines so that any power developed in the western Cherry county will be placed on the national electrical grid so local features are diminished by access lines, turbine towers, substations and industrial powerlines?

Looking further at your political essay, when will you cite references for the facts you refer to? Details without a factual basis are nothing more than an opinion! Show Nebraska residents the facts on how Holt county will benefit, rather than citing statistics you pulled from some unknown source.

Ending your public opinion article by stating the need for local decisions, once again indicates your lack of effort on the local level. How have you been actively involved in discussions with county commissioners in Cherry county? How in Grant county, or anywhere else within your district?

Local involvement is obviously a necessity, but has no worth based upon opinions of many useless words in a newspaper, actions on a state level which do not represent district communities, as well as a complete failure to convey what the situation is on your own property in Cherry county.

By the way Sen. Davis, you did not even care enough about this community event to compliment the wonderful cookies provided by volunteers.