Aug. 15–OTTAWA — Scott Yeargain’s appreciation for clean water and suspicion about injection wells designed to extract reticent oil from the ground in eastern Kansas led the retiree from simple pleasures of running a small cow-calf operation into complex regulatory cauldrons at the Kansas Corporation Commission.
To the west in the Flint Hills, journalist Cindy Hoedel’s apprehension about the onset of earthquakes in Kansas attributable to disposing of large quantities of wastewater from oil and gas production into wells deep underground pulled her into the same KCC orbit.
They participated in KCC proceedings related to oversight of injection wells and permits for new drilling. It brought both into contact with commission staff, including Dustin Kirk, who served as the KCC’s deputy general counsel.
Now, Yeargain and Hoedel stand accused by Kirk of potentially violating state statute forbidding people from practicing law without a license. The Kansas attorney general’s office officially notified them a consumer-protection inquiry would be conducted. Those guilty of this misdemeanor offense could be jailed for six months and fined $1,000.
“This is retaliation. I think they’re irritated at me,” said Yeargain, who lives outside Ottawa and serves on a regional advisory committee for the Marais des Cygnes watershed. “Typically, I do homework and share information with others. I don’t represent them. There is no contractual relationship. I’m not an attorney and don’t aspire to be one.”
In October and December 2017, Yeargain filed protests with the KCC about proposed injection wells in Franklin County. In one instance, an oil company withdrew its application. He turned his focus to a proposed injection project 6 miles from his home in March. During a recent procedural hearing, Kirk asked Yeargain if he was an attorney. His answer: “No.”
Yeargain, a retired community college philosophy professor convinced that injection wells pose a hazard to surface and underground water supplies, said a representative of Attorney General Derek Schmidt informed him last month about his alleged unauthorized practice of law. No complaint document was attached to that email, however, and attempts by Yeargain to obtain a copy have failed, he said.
Jennifer Montgomery, spokeswoman for the attorney general, confirmed Tuesday the KCC referral related to the purported illegal practice of law. The attorney general’s office sent identical notification letters July 12 to Yeargain and Hoedel.
“The matter remains under review,” Montgomery said.
Linda Berry, public affairs director at the KCC, said Tuesday the KCC no longer employed Kirk. She said the commission wasn’t in possession of a complaint authored by Kirk that targeted Hoedel and Yeargain nor was the commission “aware of the details of that complaint.” She said individual lawyers in Kansas had the authority to report alleged malfeasance on their own.
“Mr. Kirk is no longer employed at the KCC as deputy general counsel,” Berry said. “His resignation was effective last Friday, Aug. 10.”
Attempts to locate Kirk, who also worked in 2015 as a staff attorney with the Kansas bank commissioner, weren’t successful.
Hoedel, who moved to Matfield Green as her career at The Kansas City Star wound down, didn’t experience earthquakes in that region of the Flint Hills as recently as five years ago. Seismic activity since then became common in south-central Kansas with escalation in the amount of salty water pumped into wells. Hoedel said her effort to convince government officials to grapple with the issue placed her in conflict with the oil and gas industry and KCC regulators.
She was among activists who disclosed last year that more than 2,000 injection wells hadn’t been properly permitted by the KCC. Those wells spanned nearly 300 operators and were located in 79 of the state’s 105 counties.
A subsequent KCC review indicated more than 1,000 permit applications for 2,111 injection wells were approved by the agency based on a 15-day public notice period. The legal standard in Kansas remains 30 days.
Twenty-one state legislators urged the KCC to revoke all the permits and require each to reapply. That approach was opposed by dozens of oil companies, and the legislative effort fizzled, Hoedel said.
In late July, Hoedel was told Kirk spawned the attorney general’s investigation into her alleged unauthorized practice of law. Kirk forwarded emails to the attorney general that had been written by Hoedel to other activists considering whether to write the KCC.
Hoedel said her involvement didn’t equate to impersonation of an attorney. The response by Kirk smacked of “retaliation, intimidation and abuse of power,” she said.
“I do feel like they’re trying to silence us,” Hoedel said. “To me, the First Amendment is not an abstract thing. I hope the attorney general does the right thing and that this doesn’t happen to anybody else.”
Shawna Meyer, an investigator for the attorney general, sent the original email notice to Hoedel about the inquiry. For nearly a week, Hoedel said, she was led to believe Kirk submitted a formal complaint against her. Lynette Bakker, an assistant attorney general, clarified that no written complaint was submitted. Instead, the investigation was based on Kirk’s interpretation of Hoedel’s emails.
She said a fair reading of the emails shouldn’t lead a person to believe she engaged in the practice of law. The investigation by the attorney general prompted her to hire an attorney, she said.
“I’m really disappointed,” Hoedel said. “It’s really harmful to try to block citizens from participating in this process.”
In Yeargain’s case, he allegedly violated state law by suggesting in an email that he and his wife, Polly Shteamer, and “any other protestants” could represent others in their group during a preliminary date-setting conference with KCC staff. The role of Shteamer, Yeargain and others wouldn’t extend beyond expressing preferences for a hearing date in 2018.
Kenneth and Sue Petersen, of Ottawa, liked Yeargain’s idea and sent an email to Kirk explaining they would be out of town for much of the summer and didn’t want to complicate scheduling of the pending complaint about an injection well application.
Kirk, who served as chief administrative counsel to the KCC, informed the Petersens that Yeargain couldn’t stand in for them because he wasn’t a licensed attorney.
Yeargain said Kirk’s decision to view his communication with the Petersens as the work of someone illegally practicing law reflected negatively on the KCC. In addition, he said, Kirk appeared uninterested in the federal Safe Drinking Water Act, which urged government to create greater “opportunity for public education and participation” in preservation of water supply.
“It is my strongest conviction that they are antithetical to that finding,” Yeargain said.
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