Lesson 6: Hold On
With a federal permit approved and state officials supporting the project, in the spring of 2021 the Byhalia Pipeline has momentum on its side. But opponents aren’t giving up as they bring national attention to the project and turn to local elected officials for help, all while still in court questioning a private oil company’s right to take property owners’ land. It’s a season of two steps forward, one step back.
BG S5 Episode 6: Final Transcript
September 7, 2022
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Host: For months, Memphis Community Against the Pipeline had been hoping the federal government would put an end to the Byhalia crude oil pipeline project by denying the last big permit. So when federal regulators approve that permit in February 2021, it’s a gut-punch. But MCAP regroups.
Justin J. Pearson: This permit is not the end for us.
Host: Co-founder Justin J. Pearson leads their virtual meetings.
Justin J. Pearson: We cannot rest just yet. Because the real fight is right here in Memphis.
Host: There are still landowners holding out, he explains. Still city council action to pursue. Lawsuits to see through. It’s just now we know that the federal government isn’t going to help. Which means …
Justin J. Pearson: Power now rests with the people, uh, which we’ve always believed. So don’t stop Memphis. Let’s keep going Let’s take our deep breaths, drink our water and let’s keep marching on.
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Host: This is Broken Ground, a podcast by the Southern Environmental Law Center. I’m Lee-anna First-Arai, your host. Here at Broken Ground, we dig up environmental stories in the South, and introduce you to the people at the heart of them. People like Ms. Scottie Fitzgerald, who stood up against the pipeline company and refused to surrender her family land.
Scottie Fitzgerald: I was upset about the letters they had written me, they were going to take this much of your property. And you can never this, that and, and I mean just writing me their ownership about it. And so I just told them NO.
Host: If you missed her story in our last episode, you missed a lot. So be sure to check it out.
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Host: In this episode, we see the Byhalia pipeline fight shift. With the approval of both the state and federal permits, it was clear:
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Amanda Garcia: Neither the Army Corps nor the state were taking responsibility for protecting the city’s drinking water source.
Host: Attorney Amanda Garcia, Director of SELC’s Nashville office remembers the shift this way.
Amanda Garcia: And so our partners on the ground in Memphis turned to the politicians who are closest to them, who also drink the water, to try to address that gap.
Host: Remember that anti-pipeline resolution MCAP worked on with city councilman Jeff Warren?
Jeff Warren: The Memphis City Council hereby opposes the Byhalia Connection pipeline …
Host: They delayed last time, but It’s up for a vote again. And that’s not all. In the weeks since they began working together, councilman Warren and MCAP have also been collaborating with the environmental lawyers at SELC to draw up something with more teeth – an ordinance.
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Host: Basically a whole new law that would require pipeline companies to get approval from the Council before crossing city property and therefore the aquifer.
Justin J. Pearson: Thank you all so much for being here. Thank you. Let’s move!
Host: So, as it now frequently does, MCAP holds a rally just before the vote. They gather at the National Civil Rights Museum, and march a mile and a half to City Hall.
Justin J. Pearson: (to crowd) We’re going to stay together.
Justin J. Pearson: (to Facebook stream) Hey, y’all we’re back. I’m sorry. I had to put you in my pocket. I got a call from somebody at the council’s office who was saying, uh, they could hear the protest and the marching going on.
Justin J. Pearson: (to crowd) You can join this meeting on YouTube, City Council Memphis.
Host: Outside City Hall, Justin calls into the Council Committee’s Zoom meeting. Council Chairman J.B. Smiley starts with a note of caution, seemingly directed at the ralliers.
Chairman J.B. Smiley: The Memphis City Council has heard your concerns. We hear you loud and clear. But we do not have the power to overturn or tell the federal government what to do. Attorney Wade, the floor is yours.
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Host: Because they’ll be considering a new law, the Council has invited the City Attorney Allan Wade to speak.
Allan Wade: I have had the pleasure, or displeasure, of reading a lot about pipelines in the past week.
Host: Wade is not an expert on pipelines or energy infrastructure or environmental law, but he is the guy who will have to defend the city if the pipeline company sues. And he’s afraid the Council is overstepping its authority by inserting itself into the pipeline approval process.
Allan Wade: And quite frankly, I think the jury is out on the question of what authority that we have. I don’t want to get into a knockdown drag out about it.
George Nolan: All of this controversy frankly caught the Memphis city council off guard.
Host: This is SELC attorney George Nolan, who attended many of the City Council meetings about the ordinance.
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George Nolan: The pipeline company was, uh, making fairly, overt remarks indicating that if it passed such an ordinance, there would be litigation against the city.
Jeff Warren: We got a lot of threatening. you know, sort of bullying tactics, in my opinion.
Host: Councilman Jeff Warren.
Jeff Warren: We had a local lawyer that was hired by them that said essentially that they were going to sue us if we did it.
Host: It’s actually not unprecedented for a pipeline company to sue a city council. Pipeline operator Kinder Morgan sued over a city council ordinance in Kyle, Texas in 2019. The city of South Portland, Maine just spent six years locked in a legal battle over a pipeline ordinance it passed in 2014. The possibility that the same thing might happen in Memphis made everyone nervous, including resolution co-sponsor Edmund Ford, Sr.
Edmund Ford, Sr.: Dr. Warren, I appreciate you and Mr. Pearson and all the rest but these are legal issues now and we cannot afford any lawsuits right now, okay.
Host: That fear of a lawsuit, along with persistent concerns that any limitations the council put on pipelines could hurt Memphis businesses, leads to months of revisions and negotiations. I’ll spare you the details, but these meetings will drag on for NINE MONTHS in both the city council and county commission. But here, at this virtual meeting in late February, well before anybody knew just how much time this ordinance would consume, the Council decides again to postpone their vote.
Chairman J.B. Smiley: So we’ll move onto item number 10, that is the solid waste …
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Host: And in one little square on the Zoom screen, you can see Justin outside, megaphone in hand, shaking his head.
Justin J. Pearson: (at rally) We’ll be back here …
Host: The decision to delay is a disappointment, but Justin’s not going to frame it that way to the marchers outside City Hall.
Justin J. Pearson: (at rally) There is no more passing the buck to the federal government. There’s no cavalry from the White House about to save us
Host: The delay just means that MCAP now has time to gather more supporters.
Justin J. Pearson: (at rally) I’m not a gambling man, but if I had to gamble on Byhalia Connection pipeline or Plains All American, or Valero Energy Corporation who’s suffocating the people in 38109 … or put my money on these people …
Host: I’d put all my money on you, Justin shouts.
Justin J. Pearson: (at rally) We’re going to win. Right here in Memphis, we’re going to win. Right here in Memphis, we’re going to win!
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Host: Up until this point, one major local figure, perhaps the city’s most powerful, has been silent about the pipeline.
Kathy Robinson: Jim Strickland, Memphis mayor. We never really heard from him.
Host: This is MCAP cofounder Kathy Robinson.
Kathy Robinson: He eventually made a statement that even though the state and the feds approved the permits, well, y’all don’t do a study, I’m not signing these city permits.
Host: Turns out the city had a few street-crossing permits of its own to sign off on for the pipeline.
Reporter: Mayor, welcome to Live at 9. Good to see you as always.
Mayor Strickland: Good morning. Good to see you.
Host: The mayor tells WREG that he’ll require an environmental study before pipeline construction can begin in the city. Believe it or not – despite all of the concerns about the pipeline’s potential impact on the aquifer – no environmental study of that impact has been done up to this point.
Mayor Strickland: Also, legally does local government, city government, or county government have the authority, to put any roadblocks.
Host: Kathy Robinson saw the mayor’s move as the city finally standing up for itself.
Kathy Robinson: You know the state ain’t with us, the feds ain’t with us. It’s Memphis versus everybody.
Host: Memphis versus everybody – sort of a mantra in a Democratic town that has been repeatedly overruled and undermined by the Republican state legislature in Nashville.
Kathy Robinson: Memphis has always felt like that as a city, that the state don’t care about us.
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Host: Just in the last several years, state legislators have tried to overturn local decisionmaking on all kinds of fronts. Like city efforts to decriminalize marijuana or mandate that police live in the city they serve. Memphis versus everybody.
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Host: One way Memphians across the city come together is in court, in support of landowners Clyde Robinson and Ms. Scottie Fitzgerald. Early on in the process, attorney George Nolan advocates for MCAP to join the eminent domain case. It’s called “intervening.”
Scott Crosby: It was a bold move.
Host: Scott Crosby, the attorney representing the landowners pro bono, thought intervening was a long shot.
Scott Crosby: One company wants to take one person’s land. How anybody else is interested in that and could intervene successfully. It would be a tall order.
Host: If MCAP is allowed to intervene, it would mean that they could keep the case going, even if the landowners drop out. Unlikely, sure, but say Byhalia chooses a different route nowhere near their property, or, less likely, it coughs up a million dollars for each of them. If that happens, MCAP could continue fighting Byhalia’s right to use eminent domain – not just here, but ANYWHERE in Tennessee. And the icing on the cake? Because MCAP is an organization, not an individual, George and his colleagues at SELC could represent them. So, George says, not surprisingly …
George Nolan: The pipeline company did not want the court to let us in the case.
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Judge Corbin-Johnson: (in hearing) Uh, we have a motion to intervene that’s been filed by MCAP.
George Nolan: (in hearing) Your honor, MCAP hopes to intervene because …
Host: In a virtual hearing with Judge Felicia Corbin-Johnson, George makes the case that a crude oil pipeline would change the character of the entire community, not just the properties it crosses. He also argues that Byhalia shouldn’t be allowed to use the PUBLIC power of eminent domain if it’s going to exclude PUBLIC voices.
George Nolan: (in hearing) Your honor, that’s wrong. It’s unfair. It’s hypocritical and it is contrary …
Host: After an hour of oral arguments, the judge rules: MCAP can intervene. And with that win in their pocket SELC and MCAP get to work.
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Host: At every virtual hearing that follows, community members from neighborhoods across the city join the call. Which was a new experience for George Nolan.
George Nolan: Different ballpark, different I mean, I’ve, I’ve never seen anything like it in 30 years of practice.
Judge Corbin-Johnson: (in hearing) Let me just go around as we normally do, let everyone introduce themselves so that we all know who’s present today…
George Nolan: We would have these status conferences with the judge that we, you would think ordinarily would be perfunctory things that folks wouldn’t want to come watch. And there might be 40 or 50 spectators on the Zoom call.
Judge Corbin-Johnson: (in hearing) Okay I’m going to move on to Mr. Joe. Mr. Joe, good morning
George Nolan: And the judge, before she ever let the lawyers talk, would say, I would like everyone who’s on the call to identify themselves and just explain why they’re here.
Citizen #1: (in hearing) Good morning your honor. I’m a concerned citizen from South Haven, Mississippi, uh, kind of coming in on the behalf of MCAP.
Citizen #2: (in hearing) I am a citizen of 38109, and I am here in support of MCAP.
Citizen #3: (in hearing) Yes, ma’am I’m just a concerned citizen …
George Nolan: So the roll call would take 30 or 40 minutes. It just created an energy in the case that, I knew the pipeline company, or I suspected the pipeline company, didn’t like.
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Host: During this winter of 2021, it must be becoming increasingly obvious to the pipeline company that the quick and quiet development process they had hoped for is now a pipe dream.
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Host: It’s no longer just older Black folks in Boxtown pressing for answers in community meetings. It’s activists and allies from all over the city – including wealthier, whiter neighborhoods – attending rallies, calling into City Council meetings, speaking to reporters. In other words, the Memphis community has come together to fight the pipeline on its own turf.
Justin J. Pearson: (on video) Y’all it is below freezing here in Memphis and we are still canvassing.
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Host: One frigid afternoon that winter, Justin and his brother KeShaun are out knocking on doors in Boxtown to let residents know about the next City Council meeting.
Justin J. Pearson: (on video) We just saw Mike, and was, uh, uh, giving him some literature, he’s totally against it, doesn’t want it to go anywhere. And Mike was like, I got something for y’all. And look hand warmers. In the fight against injustice, uh, there are people and angels all around.
Host: As they go door to door, there’s no doubt that this is hyper-local, grassroots advocacy. But then, while the brothers are warming up in their car, it VERY SUDDENLY becomes clear: this little local fight has sparked something in the national conscience.
Justin J. Pearson: (on video) Oh my God! Oh my God!
Host: Former vice president and high-profile climate activist Al Gore tweets his support for the Byhalia pipeline fight.
Justin J. Pearson: (on video) Vice President Al Gore said this only 30 minutes ago.” Building more fossil fuel pipelines is reckless and many proposed routes are racist. I stand with those opposing Keystone, opposing DAPL, MVP, Line Three, and Byhalia pipelines.” You did it! (Keshaun & Justin shouting in joy) We’re doing it! We’re building momentum and we’re going to change the future of this city and the future of this country together.
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Host: With that momentum behind them, MCAP holds its biggest rally yet.
Justin J. Pearson: (at rally) Welcome to the Memphis Community Against the Pipeline rally with vice-president Al Gore!
Host: After tweeting his opposition to Byhalia, Gore gets more involved. In mid-March, he arrives in Memphis to speak at a rally in Alonzo Weaver Park. Kizzy Jones is one of the first speakers.
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Kizzy Jones: (at rally) The representative from this oil company stated that this pipeline is being built in the path of least resistance. Wrong. I’m here to tell you our community is the path of resistance, okay?
Al Gore: (at rally) This is true grassroots leadership.
Host: After more than a dozen local speakers, former Vice President Al Gore, a Tennessean himself, rises to speak.
Al Gore: (at rally) Least resistance? I see a lot of resistance here today. And if this does not suffice to convince the County Commission and the City Council to make the right decisions, this resistance ain’t nothing compared to what they’re going to see if they try to keep going with this.
Host: And then he delivers the most memorable line of the afternoon.
Al Gore: (at rally) This pipeline project is a reckless, racist, rip off. Reckless, racist, rip off. Remember the three R’s.
Kizzy Jones: Oh my gosh. The three R’s. That made chills.
Host: Kizzy is thrilled with Gore’s speech.
Kizzy Jones: When he got up there and spoke – It’s racist, reckless, rip off. Oh my gosh. It was like it was right on time.
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Host: Right on time, because the next day the City Council is once again set to consider their pipeline resolution, as well as that city ordinance that would give them a say in whether and how pipelines are built in Memphis.
Council: Councilman Colvett? Yes. Councilwoman Easter Thomas? Yes. Councilman Ford? Yes … Yeah … Aye … Aye … Yes…Aye … Aye.
J.B. Smiley: All members of the Memphis city council have signed on to the resolution.
Host: The resolution passes, as does the first reading of the ordinance. Two more votes are still needed before the ordinance becomes law, but this is progress. Three days later, another win.
Parliamentarian: Two ayes and nine no’s.
Host: The Shelby County Commission votes down the sale of the two county-owned properties Commissioner Edmund Ford Jr. was encouraging them to sell to the pipeline company. He’s absent for the vote.
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Gerald Richardson: (at rally) Good afternoon, everybody.
Host: In April, MCAP holds yet another big rally with hundreds of attendees. And let me just say – if it wasn’t already clear from the rally with Vice President Gore – these events have EVOLVED.
Gerald Richardson: (singing at rally) It’s been toooooooo hard living. I’m not afraid to die. No, no. Lord I know what’s up there yeah yeah beyond the sky …
Host: After a song by Memphis musician Gerald Richardson, Justin comes to the mic.
Justin J. Pearson: (at rally) I am honored and privileged beyond words to be able to introduce the next speaker, who is an icon for civil rights…
Rev. Barber: (at rally) I want to thank you for standing up and showing the nation how to stand up.
Host: Reverend William J. Barber the second, co-chair of the Poor People’s Campaign, a national economic justice movement, has come to Memphis to support MCAP with a speech that’s live streamed to a national audience.
Rev. Barber: (at rally) Truth of the matter is people get sick here, not because God called them home, but because of bad laws and legislation that robs people of their lives.
Host: It’s a powerful reminder that this is not just a fight to protect the city’s drinking water. It’s also a fight for environmental justice for the Black communities in Southwest Memphis.
Rev. Barber: (at rally) They said the reason that they brought the pipeline through South Memphis, because it would be a point of least resistance. Wellllll, you woke us up now!
Host: Justin is one of a handful of people standing on stage behind the reverend, and you can see the speech has him so energized, he’s bouncing up and down on his toes and waving his arms in the air.
Justin J. Pearson: I couldn’t contain my joy. He’s so good. It was church. We were having church.
Rev. Barber: (at rally) It’s time for everybody, red, yellow, black, and white, whatever your color is, everybody that loves justice, that loves right, that loves people to say … not here, not now, not ever on our watch! Glory hallelujah!
Justin J. Pearson: With no certain victory, in a fight that was getting a little prolonged, you know?
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Justin J. Pearson: It’s good when someone comes and can help to inspire and articulate the clarion call that began as a whisper in Boxtown to a national platform.
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Ms. Scottie Fitzgerald: (singing at rally) Hold on just a little while longer ….
Rally Attendee: (at rally) Yeah! Yeah!
Ms. Scottie Fitzgerald: (singing at rally) Hold on. Hoooooold on.
Host: On the 53rd anniversary of Doctor Martin Luther King Junior’s assassination, Ms. Scottie Fitzgerald sings at an MCAP rally to honor him at the former Lorraine Motel. It was here, in 1968, that Dr. King was killed – while in town to support the Sanitation Workers strike. It’s now the National Civil Rights museum and a frequent backdrop for rallies against Byhalia. The location is a reminder of one of the last times the national spotlight shown on environmental racism in Memphis.
Ms. Scottie Fitzgerald: (singing at rally) Everything is going to be alright.
Host: It’s right around this time that national media begins covering the pipeline fight.
CBS This Morning Reporter: Critics are calling a proposed pipeline project in Memphis, Tennessee, environmental racism.
Al Jazeera Reporter: But the company has defended the project, promising the pipeline will meet environmental standards.
Vice News Reporter: Legal experts say that disputes like this could last for years and neither side is backing down.
Host: All of this attention must be making the pipeline company nervous, because …
Reporter: Monday, council members received two letters from an attorney on behalf of Plain’s pipeline …
Host: When City Council is once again set to consider the pipeline ordinance at the end of April, they receive a surprising communication from Byhalia.
Reporter: … asking for a “mutual pause”…
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Brad Leone: (echoing in virtual meeting) Can you hear me now … can you hear me now … can you hear me now …
Host: Brad Leone director of communications at Plains All American joins the virtual City Council meeting to explain the pause this way:
Brad Leone: (in virtual meeting) Circumstances with our project have changed and construction of our pipeline is not imminent.
Host: They’re going to pause their work to consider a re-route – one that would presumably avoid the land owned by Clyde Robinson and Scottie Fitzgerald.
Brad Leone: (in virtual meeting) With that, we’ll be dismissing eminent domain and condemnation proceedings for the time being. In short, we’re committed to pausing and we encourage you to do the same …
Host: It’s clear that the pipeline company doesn’t want the ordinance to pass. Not just because it may jeopardize the pipeline’s current route, but any re-routes as well. And it’s not just the pipeline reps objecting to the ordinance. The city council’s own attorney Allan Wade seems no more comfortable with it than he was when the original version was first introduced weeks ago.
Allan Wade: (in virtual meeting) Y’all can do whatever y’all want, but I’m just telling you, there are a lot of problems.
Host: Ultimately the council agrees to a two-month ceasefire – but not before double and triple checking what Byhalia was promising.
Jeff Warren: (in virtual meeting) I just want to make sure that we know what we’re voting on …
Host: Councilman Jeff Warren puts the pipeline rep on the spot.
Jeff Warren: (in virtual meeting) They’re gonna put a pause on their legal lawsuits at this point. And not buying future easements. Is that one of those specifics that we’re agreeing to?
Brad Leone: Um … we, uh, as, as I mentioned, we, we did, uh, we are planning to, to, um …
Host: The pipeline rep is obviously hesitant to promise that the company won’t pursue new properties during the pause, so lots of folks around town are understandably skeptical of their motivation.
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Host: But when Byhalia’s lawyer officially withdraws the eminent domain cases in court the following week …
George Nolan: I realized that we had really turned the tables. This big company thought it was just going to run roughshod over the rights of these Black landowners in Memphis. And now the pipeline company’s saying, ‘Wait a minute, uh, we want to get out of court.’
Host: George knows that the lawsuits against Scottie Fitzgerald and Clyde Robinson could still come back.
George Nolan: We said, whoa, whoa, whoa, whoa, not so fast. It’s a good thing if the pipeline company wants to drop its condemnation claims against these landowners. We’re all for that. Great idea.
Host: (as an aside) But here’s where the genius of having MCAP intervene in the case really becomes apparent.
George Nolan: Our client, Memphis Community Against the Pipeline, we are now suing the pipeline company asking the judge to tell us whether this company does or does not have the power of eminent domain. We don’t want to drop those claims.
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Host: The judge agrees to continue the case, and sets a hearing date: July 9th … three days after the ceasefire is set to end.
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Host: It’s anybody’s guess what the pipeline company is doing over the next two months. … Are they looking for new ways to pressure city council? … Lobbying the state legislature to override the city? … Are they digging in? … Or, God willing, dipping out?
Host: Then, with less than a week to go before the rescheduled hearing on the eminent domain questions, Plains All American releases an obscure bit of financial news. Ward Archer, founder of Protect Our Aquifer, is one of the first to see it.
Ward Archer: I got this alert that they had filed a new K-8 form, or something. And I said, well, I wonder what this is.
Host: He reads it. His first reaction? … Disbelief.
Ward Archer: What convinced me it was real was the fact that it was Friday afternoon before the 4th of July, and that’s where you plant the bad stuff.
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Host: Next time on Broken Ground, (in our final episode this season), fireworks in Memphis for the fourth of July.
Kizzy Jones: I’m literally crying on the expressway.
Kathy Robinson: We knew it was absolutely a crock of crap.
Jeff Warren: You know, I wanted to say, okay, what’s the catch? What’s really going on here?
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Pria Mahadevan: Broken Ground is a podcast by the Southern Environmental Law Center, one of the nation’s most powerful defenders of the environment rooted in the south. It’s produced by Emily Richardson-Lorente, Pria Mahadevan, Leanna First-Arai and Jennie Daley with assistance from Eli Motcyka and Ko Bragg. Our theme music is by Eric Knutson. Special thanks to Ward Archer who provided archival audio for this episode. To learn more about SELC, MCAP or Protect Our Aquifer, head to Broken ground podcast.org. And if you’ve enjoyed this episode, we’d love it if you’d subscribe and write us a review on your favorite podcast app. Thanks for listening.
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