The American Civil Liberties Union filed a lawsuit in federal court Thursday challenging actions of an attorney with the Kansas Corporation Commission who accused two environmental activists of illegally conducting business as lawyers.
Dustin Kirk, who was the KCC's deputy general counsel, submitted complaints last year to the Kansas attorney general's office asserting activists Cindy Hoedel and Scott Yeargain engaged in the unauthorized practice of law while communicating with environmentalists who questioned permits issued by the state to fracking industry operators.
Subsequently, the office of Attorney General Derek Schmidt absolved Hoedel. Status of the case involving Yeargain was clouded because he's never received notice from the attorney general regarding outcome of an investigation.
"There was no legitimate basis for believing Hoedel or Yeargain were engaged in the unauthorized practice of law,” said Lauren Bonds, legal director for ACLU of Kansas. "As an attorney, he really should’ve known that Cindy and Scott’s activism didn’t constitute a law practice."
Bonds said Kirk's intent was "just a way to punish them for exercising their First Amendment rights and for trying to defend their homes."
Kirk, who no longer works for the KCC, wasn't available for comment. His complaint triggering a state law authorizing the attorney general to investigate alleged consumer-oriented misconduct was outlined in an August 2018 story published by The Topeka Capital-Journal. Yeargain and Hoedel viewed Kirk's complaint as retaliation for their advocacy before the KCC.
Linda Berry, a spokeswoman for the KCC, said the agency hadn't fully reviewed the ACLU lawsuit and couldn't comment on substance of the case. She said Kirk left the KCC nearly one year ago, shortly after filing the allegations against Yeargain and Hoedel.
"It is important to note that it is not a practice or policy of the KCC to file complaints against protestors," Berry said. "By the time we first learned from the media of Mr. Kirk’s complaint filed with the AG’s office, Mr. Kirk had left the agency. This is the only complaint of this type the agency is aware of."
She said the regulatory commission was obligated to be responsive to citizen protests and "we take that responsibility seriously."
In the lawsuit, both plaintiffs sought compensatory damages, as well as punitive damages for emotional distress and lost income.
Kirk submitted as evidence to the attorney general an email from Hoedel offering advice to others on how to avoid being removed from the KCC speakers' docket. In terms of Yeargain, Kirk highlighted an email indicating an individual asked Yeargain to submit to KCC staff some scheduling information on that person's behalf.
The ACLU said Hoedel and Yeargain, after subjected to Kirk's complaints, curtailed or ceased advocacy activities before the KCC and reduced their collaboration with fellow activists.
Hoedel began looking into KCC proceedings during 2017 after she experienced earthquakes at her Chase County home related to the process of fracking to increase oil extraction. She filed application protests with the KCC opposing injection well sites near her house. She also discovered more than 2,000 permits had been approved by the KCC in violation of commission policy.
She said action taken by Kirk was an effort by a KCC attorney to silence critics attempting to legally involve themselves in the regulatory process.
"I took that as a threat and I feel like I am operating under that threat to this day," she said. "I want to make sure this doesn't happen ever again to any citizen exercising their legal right to file a protest. Environmental law was designed to allow citizen participation, and it is even more critical now in this era of deregulation and self-regulation."
Hoedel said she left newspaper journalism so she could put her skills to use protecting the environment. She received satisfaction from her activism and was effective navigating the KCC bureaucracy, and believes she was harassed as a result.
"I have stopped lobbying legislators in Topeka to tighten oil regulations and advocating for more citizens to get involved in monitoring and protesting wells that pose a threat because I don't want anyone else to be targeted with for retribution," she said.
The suit said Kirk's allegations cost Hoedel $20,000 in freelance public relations consulting income, adversely influenced her campaign for the Chase County Commission and damaged her future earning capacity.
Yeargain, who holds a doctorate in philosophy and farms near Ottawa, has contested more than a dozen injection well applications since 2016. He's concerned wells in floodplain areas could damage water resources, especially the Marais des Cygnes River in eastern Kansas. The river is of personal recreational value to him, but it also provides drinking water to a rural water district.
"Rural Water District No. 6 is at risk," Yeargain said. "These are our longtime friends."