Excavating company's efforts to remove beaver dams from path of pipeline caused fuel leaks in 2007 and a lawsuit. Omaha.com

Mid-America Pipeline LLC filed a federal lawsuit against Wilson Excavating this week.

The lawsuit says Wilson Excavating caused the pipeline leak while trying to remove beaver dams in eastern Nebraska.

Nebraska Supreme Court affirms Seward County District Court's dismissal of landowner's suit for lacking standing against the Nebraska Game and Parks Commission in which plaintiff tried to force the Game and Parks Commission to halt power line construction over the Twin Lakes Recreation Area. State ex rel. Reed v. State, S-08-1261, 278 Neb. 564. A proposed power line project over the Twin Lakes area would allegedly disturb the livelihood of the the Western Prairie Fringed Orchid, which has been identified as a "threatened and/or endangered species" by the U.S. Department of the Interior and the State of Nebraska. Plaintiff sought to impose upon NGPC his opinions regarding the administration of the state’s wildlife management areas. By law, NGPC is charged with this responsibility. See § 37-336. Plaintiff's claim that NGPC has breached its duties does not give Plaintiff the right to seek relief in the courts. Such concerns are better left to the policy decisions of the legislative and executive branches. Certainly, the public has a right to influence NGPC’s policies regarding the administration of the state’s wildlife management areas. However, the mechanism for doing so is through our representative form of government, and not through the courts. See Ritchhart v. Daub, 256 Neb. 801, 594 N.W.2d 288 (1999). Plaintiff has not shown that he has standing to bring the action."

Nebraska Supreme Court affirms summary judgment in favor of heating repair business's liability and umbrella insurer against personal representative of decedents who died of carbon monoxide poisoning from allegedly faulty heating repairs. Harleysville Ins. Group v. Omaha Gas Appliance Co., S-07-1235, 278 Neb. 547 . The Douglas County District Court ruled in favor of insurer Harleysville did not owe liability and umbrella coverage for carbon monoxide poisoning that resulted from faulty heating repairs. The estate appealed. While the Supreme Court agrees that the estate could intervene in the action and did not expand the issues therein, it agrees that the policy "pollution" exception covered injuries from carbon monoxide poisoning. "(Personal Representative had) standing to bring this appeal and to present the arguments that she makes. PR was a proper party defendant to Harleysville’s declaratory judgment action alleging that it had no duty in relation to the alleged incident that killed the decedents. While PR presented somewhat different assertions as to why the policy should cover the incident, those did not interject any factual or legal questions extraneous to the action. As to whether the CO2 poisoning would be covered, the Court states "we need not engage in PR’s extensive semantic discussion of whether the isolated phrase referring to "liability caused by pollutants" refers solely to legal obligations stemming from the pollutants themselves without any human causal element The umbrella policy, like the general liability policy, excluded coverage for liability occasioned by the release of pollutants—regardless of what level of human culpability was involved"(emphasis supplied).

Neighboring property owners in rural Douglas County win reversal of their injunction action against dog groomers who wanted to open a dog kennel. Conley v. Brazer, S-08-974, 278 Neb. 508 Supreme Court reverses the District Court's summary judgment in favor of the dog kennel owners. "Section 23-168.02(1) states that "[a]n appeal to the board of adjustment may be taken by any person or persons aggrieved . . . by any decision of an administrative officer or planning commission ..§ 23-114.05 establishes that an appeal to a board of adjustment is not the exclusive remedy for challenging a land use alleged to be in violation of zoning regulations. an aggrieved party may use § 23-114.05 to seek injunction of land use in violation of regulations. The kennel's neighbors were authorized to sue by § 23-114.05 independent of the remedies offered by §§ 23-168.01 to 23-168.04 . We conclude that the Conleys were entitled to seek injunctive relief without first resorting to the appeal procedure set forth in §§ 23-168.01 to 23-168.04. We further conclude that the district court erred in granting summary judgment to the Brazers, Paradise Pet Suites, Douglas County, the City of Omaha, and the other named defendants because there are genuine issues of material fact pertaining to the Conleys’ requests for injunctive and declaratory relief

Nebraska State Unicameral kills LB1148 that proposed banning confinement crates for gestating sows. Omaha.com Peripatetic Lincoln Senator Dianna Schimek found other priorities after introducing LB1148 that was former Mayor Don Wesley's and the Humane Society's brainchild. Sponsors of the withdrawn bill sought to phase out confinement pens for pregnant sows. Livestock producers consider it an economical practice that allows farmers to monitor food, water, health and pregnancies. "LB 1148 came to life after Kevin Fulton, a Litchfield farmer, made repeated calls to the Humane Society of the United States, prodding them to promote Nebraska legislation to phase out gestation crates as it had done in Oregon. The national organization hired Lincoln lobbyist Don Wesely, a former state senator and former Lincoln mayor, to find someone to introduce the proposal, which would have phased out gestation crates by 2014.Sen. Phil Erdman, chairman of the Legislature's Agriculture Committee, filed the kill motion against LB 1148. He said he was prepared to find 24 co-sponsors, had that been necessary.Hog operations are being bullied and targeted by the Humane Society of the United States, Erdman said. Fulton said the humane society was reluctant to tackle the issue in a major farm state.Fulton, who raises grass-fed cattle, is a public speaker who supports sustainable agriculture. The Humane Society of the United States has organized successful petition drives against gestation crates in Florida and Arizona, two states with minimal hog numbers.The society maintains that confinement, which restricts animals from turning around and socializing with other animals, is cruel and inhumane.Pressure from the society and the public has prompted some major food retailers, including Burger King, Wendy's and Hardees, to issue statements encouraging a phase-out of gestation crates. Smithfield Foods Inc., the world's largest hog producer, has said it would phase out the use of gestation crates. Advocates and some veterinarians, however, say confinement is preferable to group housing partly because it avoids the tendency of pregnant sows to become violent with one another. In a policy statement on hog confinement, the American Veterinary Medical Association says that all current forms of housing have advantages and disadvantages for animal welfare.The veterinary group recommends more research into technology and study of economical viability before ending current confinement practices.Smaller pork producers would be affected most if they were forced to change their method of handling sows, said Larry Sitzman, executive director of the Nebraska Pork Producers Association. "The large producers have the resources and the ability to make major changes," Sitzman said, "whereas a family producer will just drop out of the marketplace."

Follow up: Nebraska Supreme Court agrees that the Papio -Missouri Natural Resources District could subsidize private developments in Sarpy County while allowing taxpayers in its district to foot the bill. Japp v. Papio-Missouri River NRD, S-06-045, 273 Neb. 779. Justice William Connolly patron of death row inmates and the municipal bulldozer over private property rules that the Papio-Missouri NRD could enter into sweetheart deals with two high end real estate McMansion developments, because the developments would promote overall good water management. "under § 2-3235(1), the District has express authority to cooperate, enter agreements, and furnish aid to them to carry out projects that benefit the District." Even if the developers hold the property for very short times, they count! The Supreme Court chose to ignore the NRD's own concerns that their actions were illegal when the challenging taxpayers asked to introduce the legislatures 2005 proposed legislation LB552 which the unicameral voted down. That was irrelevant evidence. Finally setting up expensive water developments in a depressed housing market was not an improper extension of credit to the private developers (XIII, § 3, of the Nebraska Constitution). Thank you Justice Connolly!

Ah country life: the Nebraska Supreme Court affirms that even families living in the country are entitled to have their air floating over(head) free from noxious and unnatural impurities , a right as absolute as the right to the soil itself. Johnson v. Knox Cty. Partnership, S-05-853, 273 Neb. 123 Although the defendants' Knox county feedlot complied with zoning requirements, the Nebraska Supreme Court permits a nuisance suit against the feed lot from neighboring residents, who themselves raised livestock. Heres another environmental activist suit that will help drive agricultural businesses out of the state. we conclude that there are genuine issues of material fact as to whether the cattle confinement facility caused a substantial invasion of or interfer- ence with the Johnsons’ private use and enjoyment of their prop- erty. Accordingly, the Partnership and Feeders were not entitled to summary judgment with respect to the private nuisance claim.

Another case from the Eighth Circuit Court of Appeals going up to the Supremes: Atlantic Research v. USA 05-3152 (WD Ark 2006) whether parties may seek contribution for superfund cleanup costs. See Scotusblog. Atlantic Research contaminated its area where the company retrofitted rocket motors for the federal government during the 80's. Bloggers note that industry, state governments and enviromentalists came together on the same side. The issue’s importance to owners of Superfund sites, which include many industrial corporations, is self evident: remediation of these “brownfield” sites can be so costly that, without a legal mechanism to share costs prior to EPA-initiated clean-ups, these properties remain abandoned until EPA turns its attention to them. But EPA has so many sites to attend to that it could be years before it seeks to compel clean-up at any given site. Granting a pre-enforcement contribution right, landowners contend, allows them to clean up property much earlier than they otherwise would and reap the benefit from idling assets, and the Eighth Circuit along with the 2nd circuit agreed. The United States Supreme Court earlier in Cooper Industries, Inc. v. Aviall Services, Inc., 543 U.S. 157, 125 S. Ct. 577, 160 L. Ed. 2d 548 (2004) (“Aviall”) found that a party could only attempt to obtain § 113(f) contribution “during or following” a §§ 106 or 107(a) CERCLA civil action. Id. at 161, 125 S. Ct. at 580. Atlantic Research amended its complaint to seek Section 107(a) contribution. The Western District of Arkansas Federal Court dismissed the complaint on the federal governments 12b6 motion. The Eighth Circuit reversed finding that after Aviall, Section 107a provides a distinct avenue to recover cleanup costs, following a 2nd Circuit opinion holding this, Consolidated Edison Co. v. UGI Utilities, Inc., 423 F.3d 90, 100 (2d Cir. 2005 at 99. {“it no longer makes sense” to view section 113(f)(1) as the exclusive route by which liable parties may recover cleanup costs. } Therefore [the eighth circuit] concluded that the broad language of § 107 supports not only a right of cost recovery but also an implied right to contribution.

follow up: United States Supreme Court denies cert on North Dakota's Missouri River suit against Army Corps of Engineers The Kansan

The 8th U.S. Circuit Court of Appeals court ruled earlier that North Dakota could not enforce its anti-pollution laws against the corps if doing so would hamper its ability to manage Missouri River navigation. A federal law called the Clean Water Act 33 U.S.C. §§1251 et seq. ("CWA")shields the corps from lawsuits over its Missouri River management decisions, the appeals ruling said. A second case, brought by North Dakota and South Dakota, is still awaiting the Supreme Court's decision on whether it will consider it. In that dispute, the two states are challenging the same appeals court's ruling that Missouri River navigation trumps other water interests when the corps makes decisions on managing river flows.