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Complaint filed with NE Atty General Doug Peterson on April 7, 2015, alleging violations of state open meeting laws by the Nebraska Oil & Gas Conservation Commission.
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April 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 ½ 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 ½ 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 “we’ve 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 NOGCC’s 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 people’s comments and witnessing the NOGCC’s 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 public’s 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 NOGCC’s rules do not specifically state that its proceedings are judicial in nature. On the other hand, the NOGCC’s conduct, including referring to the event as a “Public Hearing” on the NOGCC’s website imply that it was a public meeting. Other factors, including the statement from Commissioners that, “we’ve 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 public’s 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 shouldn’t 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 Jane Kleeb Nebraska Sierra Club Bold Nebraska [email protected] [email protected] 402-‐212-‐3737 402-‐705-‐3622
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