2425 S. 144th St.

Omaha NE 68144-3267 (402) 493-4100

Contact Info: David A. Domina 402-493-4100 Domina Law Group pc llo


Response to TransCanada’s February 24, 2014, “Updated Statement”

OMAHA, Neb. – February 24, 2014 – TransCanada’s comments released this morning demonstrate a deeply rooted misperception of the legal environment in Nebraska. Not only has it failed to understand the land, water, and people of the State, apparently this foreign company does not appreciate the law either.

TransCanada says the District Court ruling declaring a State law invalid, and invalidating action by the Governor under that law, is not significant. TransCanada is wrong.

First, TransCanada is not a party to the lawsuit decided by Judge Stephanie Stacy’s 50-page, 248 footnote Opinion of February 19. So, TransCanada cannot appeal the ruling and has no voice in the proceedings. Down the road the company might ask for permission to file an outsider’s “friend of court” Brief. Such a request may, or may not, be allowed; even if allowed, it does not become part of the merits or core of the case.

Second, LB 1161 has been declared unconstitutional and void by the Nebraska District Court. The Court issued an injunction against enforcement of the law. The Governor, Secretary of State and acting Director of the Department of Environmental Quality are enjoined from action. TransCanada is not a party so it is not enjoined.

Third, the officials who are defendants in the case are duty bound by the State Constitution and the law governing their offices to “support the constitution of the State of Nebraska, and …faithfully discharge”… all duties. Neb Const Art XV, Sec 1.

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The Court found that the State Constitution trumps the law declared invalid. The Defendant officials are bound to abide by this decision until it is altered by the Supreme Court. This oath-based foundational duty of public office makes a supersedeas (pronounced: super-seed-ee -aas) bond unnecessary. Governors and State Treasurers cannot ignore court orders as TransCanada suggests.

TransCanada’s reference to Neb Rev Stat § 25-21,213 is misplaced. This statute would be of interest in a case where the State might be ordered to pay money, or deliver an asset to a litigant. It has no real role in the current context. The “limbo” in which the

pipeline project now exists in Nebraska, is not affected by § 25-21,213 since nothing can be done by the Governor or other Defendants until the Supreme Court speaks, and until the President of the United States acts on a border crossing permit application that remains pending.

The Governor’s declaration of route validity pursuant to unconstitutional LB 1161 is a nullity. The State Department and President cannot know what route the pipeline will follow, or whether TransCanada will be deemed competent to operate a pipeline, when and if it applies for permission to do so under a valid Nebraska procedure.

If TransCanada’s press statement is to be read as its threat that it will now start filing condemnation cases in Nebraska, it will find itself at an abrupt halt at the starting gate. A display of such corporate hubris would not go over well with the Nebraska judiciary.

TransCanada continues to display disregard – first for Nebraska’s important natural resources, second for its citizens and land owners, and now, for Nebraska’s court system.

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