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Across the Region Dec. 15


Both sides appeased by limits on SD Keystone case

South Dakota regulators agreed Tuesday to limit the scope of information opponents could receive in a case about the Keystone XL oil pipeline from the company trying to build it, but not as strictly as TransCanada Corp. requested.

The state Public Utilities Commission also decided Tuesday to hear final arguments in early May as part of its decision on whether to re-approve the portion of the Keystone XL pipeline that would run through South Dakota. The commission partially approved TransCanada’s request to limit the discovery — or information disclosure — process in the case, but the decision is broad enough to appease opponents who are seeking as much evidence as possible. The discovery process will inform the commission’s decision on the pipeline.

Commissioners must confirm that the conditions for construction of the pipeline haven’t changed since the permits were first issued in 2010. Opponents point out, for example, that there could be newer technologies than those included in the original permit for detecting oil spills.

Discovery is a key tool for opponents of the pipeline, who are looking for evidence of discrepancies — and other information — regarding the project. State rules dictate permits must be reapproved if the construction of the project does not start within four years of their issuance.

Extracting now-private information from TransCanada will help opponents “learn the facts from the fiction,” said Tracey Zephier, an attorney representing the Cheyenne River Sioux Tribe, which opposes the pipeline.

William Taylor, an attorney for TransCanada, said the firm is satisfied with the results of Tuesday’s commission meeting.

The pipeline would transport oil from Canadian tar sands through Montana and South Dakota to Nebraska, where it would connect with existing pipelines to carry more than 800,000 barrels of crude oil a day to refineries along the Gulf Coast. It could also transport some crude from the Bakken oil field in Montana and North Dakota.

Supporters of the pipeline say it will create thousands of jobs and aid energy independence, but environmentalists warn of possible spills and say transporting oil will eventually contribute to global warming.

The commission scheduled a hearing in early May for final arguments — if they don’t decide to reject TransCanada’s request before then. Commissioners could decide in January on the Yankton Sioux Tribe’s motion to dismiss the re-approval request from TransCanada.


SD hospital prevails in doctor-filed lawsuit

A South Dakota hospital has prevailed in a civil lawsuit filed by a cardiothoracic surgeon trying to recover more than $750,000 in wages and damages.

The Rapid City Journal  reports that a jury has sided with Rapid City Regional Hospital in the case brought by 76-year-old James Oury. The doctor filed the complaint against the hospital and its physician network in 2013.

Oury says his contract with the network was breached and his reputation was damaged when his contract was not renewed in 2009. Oury said he wasn’t given a required 90-day notice.

The hospital, however, says Oury received a letter in November 2008 that was clearly a termination notice.

A federal judge two years ago dismissed an age-discrimination suit filed by Oury against the network.



Railroad attorney makes case for compensation

A Canadian Pacific Railway attorney tried Tuesday to persuade the state Claims Board to hand the railroad more than half a million dollars for helping develop a high-speed rail plan before Gov. Scott Walker killed the project.

The railroad wants $500,715 for work performed in 2009 and 2010 to help the state prepare a bid for federal funding to build the line between Madison and Milwaukee. The railroad’s attorney, Brian Baird, said Canadian Pacific employees developed construction plans, designs for passenger depots and even moved into state Department of Transportation offices full-time to help the agency.

But Walker, a Republican, abandoned the project shortly after he won election to his first term in 2010, saying the line would be too expensive to maintain. Canadian Pacific was never compensated, Baird said.

“(Canadian Pacific employees) gave tremendous effort and provided tremendous value,” Baird told the board.

State Department of Transportation attorney Kathleen Chung said the agency can’t pay the railroad because the company never entered into a written contract with the state. The two sides were close to a deal when Walker abandoned the project, she said.

“The truth is, a contract would have solved a lot of these issues,” Chung said.

Baird countered that the railroad acted without a contract because then-Gov. Jim Doyle, a Democrat, asked for help and the railroad felt an obligation to be a responsible corporate citizen. The railroad also had to move quickly to make deadlines, he added. Democrats had touted the project as a key job creator and wanted it well on its way before the 2010 elections because Doyle had decided not to run again.


Milwaukee judge Bradley won’t run for high court

Milwaukee County Circuit Judge Rebecca Bradley says she is not going to run for the Wisconsin Supreme Court.

Bradley had been mentioned as a possible candidate for the spring election against incumbent Justice Ann Walsh Bradley. Rock County Circuit Judge James Daley is the only other announced candidate.

Rebecca Bradley said in a statement Friday that she was “proud and heartened” to know so many people wanted her to run, but after much thought she has decided not to enter the race.

If a third candidate enters the Supreme Court race and they all qualify for the ballot, they will face off in a Feb. 17 primary.

The general election is April 7.



Iowa group wants lawyers to pay $100 annual fee

Iowa Legal Aid wants the state’s lawyers to be required to contribute $100 annually to the charity, which represents people with low incomes.

Some lawyers say it’s wrong to require such contributions, even to a valuable organization that provides legal services in civil cases.

The group’s executive director says the number of people eligible for services has increased by almost 40 percent between 2000 and 2010.

According to a report from Supreme Court staff, the money the nonprofit receives from two big donors has declined.

The Des Moines Register  reported the mandatory fee could raise $903,400 of about $1.8 million needed to increase the number of staff attorneys.


Iowa inmate’s family files lawsuit against company

The family of an Iowa inmate who died while working at a job assignment has filed a lawsuit.

The family of 26-year-old Willie Mercer says Sully Truck Wash in Sully failed to follow federal safety requirements. They say those actions resulted in Mercer’s death.

Mercer and two employees were found unconscious inside a tank trailer in January. Mercer was pronounced dead and the others were hospitalized.

The Newton Daily News reported that several federal violations were issued against the truck wash business after the incident. The company later paid $5,000 in fines.

The lawsuit seeks damages for pain and suffering, past medical expenses, funeral expenses, loss of value to Mercer’s estate and loss of support to his children.



Nominees for Workers’ Comp court picked

Nebraska’s Judicial Nominating Commission for the Workers’ Compensation Court has forwarded the names of three nominees to Gov. Dave Heineman for his consideration.

The nominees are Shirley Williams and Anne Winner, both of Lincoln, and Julie Martin, of Omaha.

The vacancy comes following the resignation of Judge Michael K. High.

Heineman’s office says he will schedule interviews with the nominees in the coming weeks.


Douglas County settling psychiatrist’s lawsuit

Officials for Douglas County have reached a lawsuit settlement with a psychiatrist who testified that he thought a man accused of killing four Omaha residents was “crazy.”

The county Board of Commissioners was expected to decide whether to approve paying $125,000 to Dr. Eugene Oliveto. Oliveto contended in a $1 million federal lawsuit filed in March that the county Corrections Department ousted him in retaliation for his courtroom candor. He said that after he testified, department director Mark Foxall accused him of being unethical and unprofessional.

Foxall has declined to comment about Oliveto’s accusations.

Oliveto testified in February at a hearing to determine whether Nikko Jenkins was competent to stand trial for the August 2013 slayings of four people in Omaha, just weeks after he left prison. Oliveto said he had diagnosed Jenkins with schizophrenia and a post-traumatic stress disorder in 2010 and 2011.

He said that when he re-evaluated Jenkins for the hearing, he determined Jenkins was still schizophrenic, “crazy” and “one of the most dangerous people I have ever evaluated.”

Another psychiatrist agreed with Oliveto’s diagnosis, but three state psychiatrists said they thought Jenkins was faking mental illness.

Jenkins later pleaded guilty to all four slayings. He has since been found mentally unfit for sentencing and is being treated by state psychiatrists at a Lincoln prison.



Board looks to refine rules on ag rail shipments

The U.S. Surface Transportation Board is working on improving reporting rules that should give North Dakota grain producers and others better information on rail shipments, the agency’s head said Monday.

The board in October issued an order requiring railways to give more details on shipping, following a hearing in Fargo with producers who were worried about getting their crops from a record harvest to market in a timely fashion. The order included data on average speeds, the weekly number of grain cards ordered and overdue and the number of cars cancelled by state.

Board Chairman Daniel Elliott, who was part Monday’s panel discussion at a conference on agriculture shipping issues, said people have interpreted the order differently and that the rules need to be clearer and more specific.

“I think things have improved, but there’s a lot of work to be done,” Elliott said. “We are in the process of getting you better information.”


Bismarck inmates work as Santa’s elves for charity

North Dakota inmates are helping to bring holiday cheer to Bismarck by working as Santa’s elves for a charity gift-giving program.

The minimum-security inmates at the Missouri River Correctional Center have been fixing toys and bicycles as part of the 2014 Christmas Playpen project, the Bismarck Tribune  reported. The project is a partnership between several local entities, including the newspaper and the North Dakota Department of Corrections, to collect and refurbish toys that the Salvation Army distributes to qualifying families during the holidays.

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