FILED

May 22, 2018
IMAGE ID N1814259ZNSC, FILING ID 0000006196

CLERK
NEBRASKA SUPREME COURT
IN THE SUPREME COURT OF THE STATE OF NEBRASKA COURT OF APPEALS
______________________________________________________________________________

No. S-17-001331
______________________________________________________________________________

IN THE MATTER OF
THE APPLICATION OF
TRANSCANADA KEYSTONE PIPELINE, L.P.
FOR ROUTE APPROVAL OF
THE KEYSTONE PIPELINE PROJECT
PURSUANT TO
THE MAJOR PIPELINE SITING ACT
______________________________________________________________________________

APPEAL FROM THE NEBRASKA PUBLIC SERVICE COMMISSION
APPLICATION NO. OP-003
______________________________________________________________________________

APPELLEE YANKTON SIOUX TRIBE’S BRIEF AND CROSS-APPEAL
______________________________________________________________________________

Prepared and Submitted by:

Jennifer S. Baker, pro hac vice Leonika R. Charging, NE Bar # 23058
FREDERICKS PEEBLES & MORGAN LLP FREDERICKS PEEBLES & MORGAN LLP
1900 Plaza Drive 3610 North 163rd Plaza
Louisville, CO 80027 Omaha, NE 68116
Email: jbaker@ndnlaw.com Email: lcharging@ndnlaw.com
Telephone: (303) 673-9600 Telephone: (402) 333-4053
Facsimile: (303) 673-9155 Facsimile: (402) 333-4761
Attorneys for Yankton Sioux Tribe Attorneys for Yankton Sioux Tribe
TABLE OF CONTENTS

APPELEE’S BRIEF........................................................................................................................ 1
Jurisdictional Basis...................................................................................................................... 1
Statement of the Case .................................................................................................................. 1
Propositions of Law .................................................................................................................... 1
Statement of Facts ....................................................................................................................... 2
Argument ..................................................................................................................................... 2
Conclusion................................................................................................................................... 2
CROSS-APPEAL ........................................................................................................................... 2
Jurisdictional Basis...................................................................................................................... 2
Record ......................................................................................................................................... 2
Statement of the Case .................................................................................................................. 3
Assignment of Errors .................................................................................................................. 3
Propositions of Law .................................................................................................................... 5
Statement of Facts ....................................................................................................................... 6
Summary of Argument ................................................................................................................ 8
I. The PSC Lacked Jurisdiction. .................................................................................................. 8
II.The Applicant Never Applied for the Approved Route. ......................................................... 8
III.The PSC Improperly Accepted Unsworn Hearsay Evidence in Violation of the Tribe’s
Due Process Rights...................................................................................................................... 9
IV.Neb. Rev. Stat. §§ 57-1407(2) and 57-1407(3) are Unconstitutional. ................................... 9
V.Neb. Rev. Stat. § 57-1403(3) is Unconstitutional. .................................................................. 9
VI.The PSC Unconstitutionally Restricted the Tribe’s Participation. ...................................... 10
Argument ................................................................................................................................... 10
I.The PSC Lacked Jurisdiction. ................................................................................................. 10
II.The Applicant Never Applied for the Approved Route. ....................................................... 11
A. Error 2: The PSC erred when it exceeded its jurisdiction by approving a route that the
Applicant did not apply for, without notice to the Tribe, in violation of the Tribe’s due
process rights. ................................................................................................................. 11
B. Error 3: The PSC erred when it approved a route that the Applicant did not apply for
because the approved route does not serve the public interest. ...................................... 12

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C. Error 4: The PSC erred when it approved a route that the Applicant did not apply for
because the Applicant did not sustain its burden of proof. ............................................ 12
III. The PSC Improperly Accepted Unsworn Hearsay Evidence in Violation of the Tribe’s
Due Process Rights. ............................................................................................................ 17
A. Error 5: The PSC erred when it accepted unsworn hearsay evidence through public
meetings and public comments without providing the Tribe the ability to confront or
cross-examine the witnesses and other due process protections. ................................... 17
B. Error 6: The PSC erred when it accepted unsworn hearsay evidence from consultants
without providing the Tribe the ability to confront or cross-examine the witnesses or
other due process protections. ........................................................................................ 18
IV.Neb. Rev. Stat. §§ 57-1407(2) and 57-1407(3) are Unconstitutional. ................................. 19
A. Error 7: The PSC erred when it applied Neb. Rev. Stat. § 57-1407(2), which allows the
PSC to hold public meetings to receive public input and make the public input part of
the record, because the statute is unconstitutional in that it denies procedural due
process of law. ................................................................................................................ 19
B. Error 8: The PSC erred when it applied Neb. Rev. Stat. § 57-1407(3) which allows the
PSC to accept the reports of consultants and other agencies, including opinions
regarding approving, denying, or modifying the location of the proposed route of the
major oil pipeline, because the statute is unconstitutional in that it denies procedural due
process of law. ................................................................................................................ 20
V.Neb. Rev. Stat. § 57-1403(3) is Unconstitutional. ................................................................ 21
A. Error 9: The PSC erred when it applied Neb. Rev. Stat. § 57-1403(3) which states that
“construction of major oil pipelines . . . is in the public interest of Nebraska.” This
statute is unconstitutional, as it violates Article II, § 1 of the Nebraska Constitution. .. 21
B. Error 10: The PSC erred when it applied Neb. Rev. Stat. § 57-1403(3) which states that
“construction of major oil pipelines . . . is in the public interest of Nebraska.” This
statute is unconstitutional, as it violates Article IV, § 20 of the Nebraska Constitution by
usurping the authority of the PSC conveyed by Article IV, § 20. ................................. 22
VI.The PSC Unconstitutionally Restricted the Tribe’s Participation as a Formal Intervenor. . 23
A. The PSC Improperly Relied upon the Administrative Procedure Act Instead of Its Own
Rules to Restrict the Tribe’s Participation. .................................................................... 24
B. The PSC Violated the Tribe’s Constitutional Right to Procedural Due Process. .......... 26
C. The PSC Violated the Tribe’s Equal Protection Rights. ................................................ 29
Conclusion................................................................................................................................. 33

ii
TABLE OF AUTHORITIES

Cases
Cain v. Custer Cty. Bd. of Equalization, 298 Neb. 834, 840, 906 N.W.2d 285, 292 (2018) .. 5, 27, 28
Carmelo G, 896 N.W.2d 902, 812 (Neb. 2017) ................................................................................ 27
Citizens of Decatur for Equal Educ. v. Lyons-Decatur Sch. Dist., 739 N.W.2d 742, 762
(Neb. 2007) ................................................................................................................................... 30
Hass v. Neth, 657 N.W.2d 11 (Neb. 2003) ........................................................................................ 20
Henry Friendly, Some Kind of Hearing, 123 U. Pa. L. Rev. 1267 (1975) ....................................... 27
In re Application of NPPD, 798 N.W.2d 572, 578 (Neb. 2001) ........................................................ 1
Jantzen v. Diller Telephone Co. 245 Neb. 81, 100, 511 N.W.2d 504, 517 (Neb. 1994) ................. 26
Kozal v. Nebraska Liquor Control Com’n, 902 N.W.2d 147, 157-158 (Neb. 2017) ......................... 1
Landrum v. City of Omaha Planning Bd., 899 N.W.2d 598, 614 (Neb. 2017) ............................ 6, 27
Maack v. School Dist. of Lincoln, 491 N.W.2d 341, 350 (Neb. 1992) ............................................. 30
Mach v. County of Douglas, 612 N.W.2d 237 (Neb. 2000) ....................................................... 30, 31
Marshall v. Wimes, 626 N.W.2d 229 (Neb. 2001) ....................................................................... 6, 18
Matthews v. Eldridge, 424 U.S. 319 (1976) ............................................................................... 20, 27
McCleskey v. Kemp, 481 U.S. 279, 292 (1987) ................................................................................ 30
Morrissey v. Brewer, 408 U.S. 471, 489 (1972) ............................................................................... 27
Personnel Admin. Of Mass. v. Feeney, 442 U.S. 256, 279 (1979) ................................................... 31
State ex rel Spire v. Northwestern Bell Tel. Co., 445 N.W.2d 284 (Neb. 1989) ................................ 2
State v. Shawn M. (in Re Ty M.), 655 N.W.2d 672, 683 (Neb. 2003) .............................................. 27
United States v. Armstrong, 517 U.S. 456, 465 (1996) .................................................................... 30
Wolff v. McDonnell, 418 U.S. 539, 559 (1974) ................................................................................ 27
Yick Wo v. Hopkins, 118 U.S. 356, 373-374 (1886) ......................................................................... 30
Statutes
NEB. CONST. art. I, § 3 .............................................................................................................. 5, 6, 29
NEB. CONST. art. II, § 1 ....................................................................................................... 4, 9, 21, 22
NEB. CONST. art. IV, § 20 ................................................................................................. 4, 10, 22, 23
Neb. Rev. Stat. § 57-1401............................................................................................................. 5, 11
Neb. Rev. Stat. § 57-1403(2) .............................................................................................................. 9

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Neb. Rev. Stat. § 57-1403(3) ..................................................................................................... passim
Neb. Rev. Stat. § 57-1405................................................................................................... 1, 5, 10, 11
Neb. Rev. Stat. § 57-1407(2) .............................................................................................. 4, 9, 17, 20
Neb. Rev. Stat. § 57-1407(3) ..................................................................................................... passim
Neb. Rev. Stat. § 57-1407(4) .................................................................................................. 5, 12, 13
Neb. Rev. Stat. § 57-1407(4)(d) ......................................................................................................... 6
Neb. Rev. Stat. § 57-1408................................................................................................................. 11
Neb. Rev. Stat. § 57-1503............................................................................................................. 5, 10
Neb. Rev. Stat. § 75-110(1) .............................................................................................................. 25
Neb. Rev. Stat. § 840912.02 ............................................................................................. 4, 24, 25, 31
U.S. CONST. amend. XIV, § 1 ............................................................................................ 5, 6, 26, 30
Other Authorities
Administrative Procedure Act .......................................................................................................... 24
Treaty of Prairie du Chien in 1830 ..................................................................................................... 7
Rules
291 Neb. Admin Code § 9-023.07.................................................................................................... 13
291 Neb. Admin. Code § 1-015.01C .................................................................................... 24, 28, 29
291 Neb. Admin. Code § 1-016.11 ................................................................................................... 28
Neb. Ct. R. of Disc. § 6-326 ............................................................................................................. 29
Rule 201 of the Nebraska Rules of Evidence ..................................................................................... 7

iv
APPELLEE’S BRIEF

Jurisdictional Basis

The Yankton Sioux Tribe (“Tribe”) accepts Appellants’ statement of jurisdictional basis as

correct, with one exception. The date of the Public Service Commission (“PSC”) Order sought to

be reviewed is November 20, 2017, rather than November 29, 2017.

Statement of the Case

The Tribe accepts Appellants Landowner Intervenors’ (“Landowners” or “Appellants”)

statement of the case as correct. With respect to the nature of the case, the Tribe adds that the

route for which Appellee TransCanada Keystone Pipeline, LP (“TransCanada” or the “Applicant”)

applied, as well as the route the PSC approved, traverses the Tribe’s ancestral territory and lie in

close proximity to the Tribe’s Nemaha Reserve. (ECU25, 3, 18, 43:986, 8019, 8034, 8059).

Propositions of Law

1. “If a pipeline carrier proposes to construct a major oil pipeline to be placed in

operation in Nebraska after November 23, 2011, and the pipeline carrier has submitted a route for

an oil pipeline within, through or across Nebraska, but the route is not approved by the Governor

pursuant to section 57-1503, the pipeline carrier shall file an application with the Commission and

receive approval pursuant to section 57-1408 prior to beginning construction . . . .” Neb. Rev. Stat.

§ 57-1405.

2. Where the court or body appealed from lacked jurisdiction, the appellate tribunal

also lacks it. Kozal v. Nebraska Liquor Control Com’n, 902 N.W.2d 147, 157-158 (Neb. 2017).

3. An agency “did not have the authority to substitute its selection of a route in lieu of

[the Applicant’s] route described in its application.” In re Application of NPPD, 798 N.W.2d 572,

578 (Neb. 2001).

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4. The PSC’s role in passing on an Application like this one is adjudicative and subject

to procedural due process requirements. State ex rel Spire v. Northwestern Bell Tel. Co., 445

N.W.2d 284 (Neb. 1989).

Statement of Facts

The Tribe accepts Appellants’ statement of facts as correct.

Argument

As discussed in sections I-V of the Cross-Appeal Argument, supra, the Tribe largely agrees

with Appellants’ arguments and asserts similar arguments in sections I-V.

Conclusion

The Tribe respectfully urges the Court to reverse the PSC’s decision, deny TransCanada’s

Application for route approval, and award costs to the Tribe.

CROSS-APPEAL

Jurisdictional Basis

The Tribe accepts Appellants’ statement of jurisdictional basis as correct, with one

exception. The date of the PSC Order sought to be reviewed is November 20, 2017, rather than

November 29, 2017.

Record

For ease of reference, the Tribe shall use the same formats for citations to the record as

were used in Appellants Landowner Intervenors’ Opening Brief (“Appellants’ Brief”). The Tribe’s

exhibits shall be referred to as CU__; Applicant/Appellee’s exhibits as KXL__; and the PSC’s as

PSC__.

2
Statement of the Case

The Tribe accepts Appellants’ statement of the case as correct. With respect to the nature

of the case, the Tribe adds that the route for which the Applicant applied, as well as the route that

the PSC approved, traverse the Tribe’s ancestral territory and lie in close proximity to the Tribe’s

Nemaha Reserve. (ECU25, 3, 18, 43:986, 8019, 8034, 8059).

Assignment of Errors

Error 1: The PSC erred when it purported to exercise jurisdiction over the proceeding

below because the PSC lacked jurisdiction to approve the proposed (or any) route. Neb. Rev. Stat.

§ 57-1405 only permits a pipeline carrier to apply for route approval if the route has not been

approved by the governor. Furthermore, Neb. Rev. Stat. § 57-1503 only grants the PSC

jurisdiction over applications for pipeline route approval if the governor does not approve the

route. However, the proposed route has been approved by the governor.

Error 2: The PSC erred when it exceeded its jurisdiction by approving a route that the

Applicant did not apply for, without notice to the Tribe, in violation of the Tribe’s due process

rights.

Error 3: The PSC erred when it approved a route that the Applicant did not apply for

because the approved route does not serve the public interest.

Error 4: The PSC erred when it approved a route that the Applicant did not apply for

because the Applicant did not sustain its burden of proof.

Error 5: The PSC erred when it accepted unsworn hearsay evidence through public

meetings and public comments without providing the Tribe the ability to confront or cross-examine

the witnesses and other due process protections.

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Error 6: The PSC erred when it accepted unsworn hearsay evidence from consultants and

other agencies without providing the Tribe the ability to confront or cross-examine the witnesses

or other due process protections.

Error 7: The PSC erred when it applied Neb. Rev. Stat. § 57-1407(2), which allows the

PSC to hold public meetings to receive public input and make the public input part of the record,

because the statute is unconstitutional in that it denies procedural due process of law.

Error 8: The PSC erred when it applied Neb. Rev. Stat. § 57-1407(3), which allows the

PSC to accept the reports of consultants and other agencies, including opinions regarding

approving, denying, or modifying the location of the proposed route of a major oil pipeline,

because the statute is unconstitutional, as it denies procedural due process of law.

Error 9: The PSC erred when it applied Neb. Rev. Stat. § 57-1403(3), which states that

“construction of major oil pipelines . . . is in the public interest of Nebraska.” This statute is

unconstitutional, as it violates Article II, § 1 of the Nebraska Constitution.

Error 10: The PSC erred when it applied Neb. Rev. Stat. § 57-1403(3) which states that

“construction of major oil pipelines . . . is in the public interest of Nebraska.” This statute is

unconstitutional, as it violates Article IV, § 20 of the Nebraska Constitution.

Error 11: The PSC erred when it applied the Administrative Procedure Act, Neb. Rev. Stat.

§ 840912.02, to limit the Tribe’s participation rights as a formal intervenor instead of using its own

rules of procedure.

Error 12: The PSC erred when it limited the scope of the Tribe’s discovery to social and

cultural issues in violation of the Tribe’s right to procedural due process.

Error 13: The PSC erred when it limited the Tribe to just one witness in violation of the

Tribe’s right to procedural due process.

4
Error 14: The PSC erred when it restricted the Tribe’s ability to cross-examine Appellee

Ponca Tribe of Nebraska’s (“Ponca”) witness in violation of the Tribe’s right to procedural due

process.

Error 15: The PSC erred when it restricted the Tribe’s ability to cross-examine Ponca’s

witness in violation of the Tribe’s equal protection rights.

Propositions of Law

1. Gubernatorial denial of a proposed route is a prerequisite for PSC jurisdiction; the

PSC has no authority to conduct a proceeding for approval of a route that has never been denied

by the Governor. Neb. Rev. Stat. §§ 57-1405, 57-1503.

2. The PSC does not have authority to approve a route for which the applicant did not

apply. Neb. Rev. Stat. § 57-1401, et seq.

3. “An application under the Major Oil Pipeline Siting Act shall be approved if the

proposed route of the major oil pipeline is determined by the Public Service Commission to be in

the public interest. The pipeline carrier shall have the burden to establish that the proposed route

of the major oil pipeline would serve the public interest.” Neb. Rev. Stat. § 57-1407(4).

4. “Due process principles protect individuals from arbitrary deprivation of life,

liberty, or property without due process of law. A party appearing in an adjudication hearing

before an agency or tribunal is entitled to due process protections similar to those given to litigants

in a judicial proceeding.” Cain v. Custer Cty. Bd. of Equalization, 298 Neb. 834, 840, 906 N.W.2d

285, 292 (2018).

5. An agency of the State of Nebraska cannot deprive a person of life, liberty, or

property without due process of law. NEB. CONST. art. I, § 3; U.S. CONST. amend. XIV, § 1.

5
6. An agency of the State of Nebraska cannot deny a person equal protection of the

laws. NEB. CONST. art. I, § 3; U.S. CONST. amend. XIV, § 1.

7. Agency decisions cannot be made on hearsay where the rules of evidence apply.

Marshall v. Wimes, 626 N.W.2d 229 (Neb. 2001).

8. “A court reviewing an order of an administrative agency must determine whether

there has been due process of law; and this includes an inquiry into the jurisdiction of the agency,

whether there was reasonable notice and an opportunity for fair hearing, and whether the finding

was supported by evidence.” Landrum v. City of Omaha Planning Bd., 899 N.W.2d 598, 614

(Neb. 2017).

9. When considering an application for route approval, the PSC must evaluate

evidence regarding the social impacts, which include cultural impacts, of the proposed pipeline.

Neb. Rev. Stat. § 57-1407(4)(d).

Statement of Facts

The Tribe adopts and incorporates by reference the Statement of Facts contained in

Appellants’ Brief, and further asserts as follows.

The Tribe and its members have unseverable ties to the land that would be impacted by

construction and operation of the pipeline. (ECU25, 2:986, 8018). The pipeline route traverses

the Tribe’s ancestral territory, and untold numbers of burials and cultural resources lie in the

pipeline path proposed by TransCanada. Id. The route approved by the PSC also crosses the

Tribe’s ancestral territory, which the Tribe’s witness, Jason Cooke, would have testified to had the

Tribe known the PSC might approve that route. In addition, the Tribe’s Nemaha Reserve is

situated downriver from the location where the proposed pipeline would cross the South Platte

River and downriver from where the South Platte River runs into the Missouri River in southeast

6
present-day Nebraska. Id. at 4. The Reserve was originally established through the Treaty of

Prairie du Chien in 1830 as a home for “mixed-blood” Indians. Id.; (ECU25, 46-47:986, 8062-

63). The existence of the Reserve means that the entire region is likely full of cultural resources

and even burials as its inhabitants would have traveled, hunted, fished, and held ceremony there.

Id. A possible construction spill or similar accident to the pipeline would mean that these

resources, such as traditional gathering areas for medicine, would be at serious risk of irreplaceable

destruction by the effects of the accident being carried downriver and onto the Reserve. Id. at 4-

5. In addition, the loss of these cultural resources would affect not only the physical resources,

but would likely deal psychological damage to multiple generations of Tribal members. Id. at 5-

6.

Relevant to the Tribe’s social and cultural resource concerns, in 2010, the Department of

State, the Nebraska State Historic Preservation Officer, and other agencies entered into a

Programmatic Agreement with TransCanada to govern the treatment of unanticipated discoveries

of cultural resources during construction of the proposed pipeline. The Tribe asks the Court to

take judicial notice of the Programmatic Agreement, found at https://2012-keystonepipeline-

xl.state.gov/documents/organization/182362.pdf, pursuant to Rule 201 of the Nebraska Rules of

Evidence. In 2013, those state and federal agencies entered into the Amended Programmatic

Agreement with TransCanada for the same purpose. (EKXL23, 1-156:53, 58, 784). The Tribe

did not sign either agreement. (1067:15-22).

During the proceeding below, the hearing officer issued an order that, as discussed in

section VI, infra, violated the Tribe’s due process and equal protection rights. This

unconstitutional infringement included restricting the Tribe’s ability to put on its case by limiting

the Tribe to just one witness. (T705). The Tribe chose then-Business and Claims Committee

7
Member, now-Vice Chairman Jason Cooke, an elected leader, to represent its interests in the PSC

proceeding. Due to the witness limitation imposed by the Hearing Officer, the Tribe had no

opportunity to produce a witness to provide testimony about cultural resources, and no opportunity

to produce a witness to testify about the social and community dangers posed by man camps. Jason

Cooke is not the Tribe’s Tribal Historic Preservation Officer. The Tribe has other witnesses who

would have been able to testify to these topics. To find any one person capable of competently

testifying about both the Tribe’s culture, history, and spiritual practices and the risks communities

face when there is an influx of out of state pipeline workers would be impossible.

Summary of Argument

I. The PSC Lacked Jurisdiction.

The PSC decision must be reversed because the PSC lacked jurisdiction over the

underlying proceeding. The statutory prerequisites for the PSC to exercise authority were not met

because the proposed route was never denied by the Governor of Nebraska. Only when the

Governor fails to approve a proposed route does the PSC have authority to accept, grant, or deny

an application for pipeline route approval.

II. The Applicant Never Applied for the Approved Route.

TransCanada submitted an application for approval of its proposed route. The PSC,

however, exceeded its jurisdiction in this matter by choosing and approving an alternate route (the

“Mainline Alternative Route”). Because the Tribe had no notice that the PSC might approve a

route that TransCanada never requested, the PSC’s approval of the alternate route violated the

Tribe’s due process rights. Furthermore, the approved route is not in the public interest as required

by statute. Ultimately, because TransCanada’s case focused solely on the proposed route, the

company failed to meet its burden of proof with respect to the approved route.

8
III. The PSC Improperly Accepted Unsworn Hearsay Evidence in Violation of the Tribe’s

Due Process Rights.

The PSC accepted public comments received at public meetings, as well as reports of

consultants and other agencies, and introduced these reports and comments at trial. The public

meetings were not governed by the rules of evidence, and were not presided over by a hearing

officer. Likewise, the consultants and agencies who issued reports were not properly sworn and

the reports were not authenticated. By admitting the public comments and reports into the trial,

the PSC improperly accepted unsworn hearsay evidence, denying the Tribe’s right to procedural

due process.

IV. Neb. Rev. Stat. §§ 57-1407(2) and 57-1407(3) are Unconstitutional.

Neb. Rev. Stat. § 57-1403(2) allows the PSC to “hold additional public meetings for the

purpose of receiving input from the public” and to “make the public input part of the record.”

Similarly, § 57-1403(3) allows the PSC to accept consultant reports and reports from other

agencies, including opinions regarding approving, denying, or modifying the location of the

proposed route of the major oil pipeline. These statutory provisions are unconstitutional on their

face or as applied in that they permit the PSC to violate procedural due process rights guaranteed

by the United States and Nebraska Constitutions.

V. Neb. Rev. Stat. § 57-1403(3) is Unconstitutional.

Neb. Rev. Stat. § 57-1403(3) declares that the “construction of major oil pipelines . . . is in

the public interest of Nebraska.” In doing so, the statute takes away the PSC’s discretion and

infringes on the judicial function to decide whether or not a pipeline is in the public interest and

violates the judicial power set forth in Article II, § 1 of the Nebraska Constitution. Moreover, the

statute is an unconstitutional invasion of the PSC’s authority bestowed pursuant to Article IV, §

9
20 of the Nebraska Constitution. As such, § 57-1403(3) is unconstitutional on its face and as

applied.

VI. The PSC Unconstitutionally Restricted the Tribe’s Participation.

When the Hearing Officer issued the Order on Formal Intervention Petitions, unlawful

restrictions were placed on the Tribe’s participation in the proceeding. Those restrictions limited

the Tribe’s ability to seek discovery, its ability to offer witness testimony, and its ability to cross-

examine. The same limitations were placed on the Ponca Tribe of Nebraska. Because the Tribe’s

procedural rights were curtailed, the PSC’s actions violated the Due Process Clause of the

Nebraska Constitution and the United States Constitution. Because the basis for imposing the

restriction on cross-examination for the Tribe is the Tribe’s status as an Indian tribe, the PSC’s

actions violated the Equal Protection Clauses of the Nebraska Constitution and the United States

Constitution which prohibit disparate treatment on the basis of race or national origin.

Argument

I. The PSC Lacked Jurisdiction.

Error 1: The PSC erred when it purported to exercise jurisdiction over the proceeding

below because the PSC lacked jurisdiction to approve the proposed (or any) route.

As explained in Error 1 of Appellants’ Brief, the PSC had no jurisdiction over the

proceeding below because the statutory prerequisite for PSC jurisdiction regarding Governor

approval was not met. Specifically, because the Governor has never disapproved the proposed

pipeline route, Neb. Rev. Stat. §§ 57-1405, and 57-1503 could not convey jurisdiction on the PSC.

Neb. Rev. Stat. § 57-1405 only permits a pipeline carrier to apply for route approval if the route

has not been approved by the governor. Furthermore, Neb. Rev. Stat. § 57-1503 only grants the

PSC jurisdiction over applications for pipeline route approval if the governor does not approve the

10
route. However, the proposed route has been approved by the governor. (T125-127). There was

therefore no statutory authority for the PSC to consider the proposed, or any other, route and its

order must be overturned.

Because this matter was covered thoroughly in Appellants’ Brief and the Tribe agrees with

Appellants’ arguments, in the interest of conserving judicial resources the Tribe hereby adopts and

incorporates by reference pages 13-17 of Appellants’ Brief. For the foregoing reasons and the

reasons contained in Appellants’ Brief, the PSC lacked jurisdiction over the underlying proceeding

and its decision must be reversed.

II. The Applicant Never Applied for the Approved Route.

A. Error 2: The PSC erred when it exceeded its jurisdiction by approving a route that the

Applicant did not apply for, without notice to the Tribe, in violation of the Tribe’s due

process rights.

As Appellants show in their discussion of Error 2 in Appellants’ Brief, the PSC violated

the Parties’ due process rights when it approved a route TransCanada did not apply for without

first providing notice to the Parties that it might do so. The Major Oil Pipeline Siting Act

(“MOPSA”), Neb. Rev. Stat. § 57-1401, et seq., grants the PSC no authority to approve a pipeline

route that has not been requested by the applicant.

Through its application to the PSC, an applicant for route approval applies for a specific

route pursuant to Neb. Rev. Stat. § 57-1405. The PSC must then, within seven months, enter an

order approving or denying the application for the proposed route. Neb. Rev. Stat. § 57-1408.

Nothing in MOPSA grants the PSC authority to approve (or deny) a route for which the applicant

did not apply.

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The PSC’s approval of a route for which TransCanada never applied violated the Tribe’s

and other Parties’ procedural due process rights because the Parties had no notice that anything

other than the route proposed in the Application might be approved. Because this matter was

covered thoroughly in Appellants’ Brief and the Tribe agrees with Appellants’ arguments, in the

interest of conserving judicial resources the Tribe hereby adopts and incorporates by reference

pages 17-22 of Appellants’ Brief. For the foregoing reasons and the reasons contained in

Appellants’ Brief, the PSC acted outside the scope of its authority and violated the Tribe’s due

process rights, thus its decision must be reversed.

B. Error 3: The PSC erred when it approved a route that the Applicant did not apply for

because the approved route does not serve the public interest.

The PSC’s decision must be reversed because the proposed route runs contrary to the public

interest. Neb. Rev. Stat. 57-1407(4) mandates the PSC’s approval of a proposed route “if the

proposed route of the major oil pipeline is determined by the [PSC] to be in the public interest.”

The PSC has no authority to approve a route that is not in the public interest.

As discussed in detail in Appellants’ Brief, this proposed route is not in the public interest

and the PSC should have denied the Application. Because this error was covered thoroughly in

Appellants’ Brief and the Tribe agrees with Appellants’ arguments, in the interest of conserving

judicial resources the Tribe hereby adopts and incorporates by reference pages 22-27 of

Appellants’ Brief. For the foregoing reasons and the reasons contained in Appellants’ Brief,

approval of the proposed route was not in the public interest and the PSC’s decision must be

reversed.

C. Error 4: The PSC erred when it approved a route that the Applicant did not apply for

because the Applicant did not sustain its burden of proof.

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The PSC must also reverse its decision granting approval of the Mainline Alternative Route

because TransCanada did not sustain its burden of proof to show that the Mainline Alternative

Route was in the public interest. In accordance with Neb. Rev. Stat. § 57-1407(4) and 291 Neb.

Admin Code § 9-023.07, “[t]he pipeline carrier shall have the burden to establish that the proposed

route of the major oil pipeline would serve the public interest.” TransCanada failed to sustain its

burden in this regard, not because the evidence it offered to show that the Mainline Alternative

Route was in the public interest was insufficient, but rather because it offered no evidence at all in

support of that proposition. Because the Mainline Alternative Route was not the route for which

TransCanada applied, TransCanada submitted no evidence regarding the Mainline Alternative

Route. TransCanada did submit some evidence on why its proposed route was in the public

interest, including addressing some of the factors that the PSC must consider when making a public

interest determination as set forth under § 57-1407(4), but it did not do the same for the Mainline

Alternative Route since it never applied to have that route approved. Because the Tribe’s

participation was limited to social and cultural issues, the Tribe will focus its argument here on

those issues.

1. The Pipeline’s Impact on Cultural Resources Must Be Considered as Part of the

Social Element of the Public Interest.

MOPSA requires the PSC to evaluate the social impacts of a major oil pipeline as part of

its determination that the pipeline is (or is not) in the public interest. Neb. Rev. Stat. § 57-1407(4).

The Hearing Officer for the proceeding below found, properly, that social impacts include

“cultural, anthropological, and historical impacts.” (T705). A multitude of Landowner witnesses

testified that it is important to them, as Nebraskans, to preserve and protect Native American

cultural resources in Nebraska. (754:1-16; 780:5-11; 817:12-19; 875:22-876:3; 891:9-15; 917:17-

13
918:21; 931:15-24). In fact, as one witness testified, “Nebraska is a [N]ative word.” (817:18-25).

The PSC was therefore required to evaluate the impacts of the proposed Keystone XL pipeline on

the cultural and historical resources of significance to the Tribe. Moreover, TransCanada had the

burden to prove that the pipeline route is in the public interest, taking into account the impacts on

the Tribe’s cultural and historical resources.

2. Native American Cultural Resources and Burials are at Risk from the Proposed

Pipeline.

Irreplaceable cultural and historical resources of significance to the Tribe and many other

Indian tribes would be placed in peril if the pipeline is constructed. This is a matter of common

sense. Construction of the pipeline requires digging, among a number of ground-disturbing

activities. (262:10-13). Some stretches of the pipeline would be constructed using horizontal

directional drilling (“HDD”), boring into the earth to build the pipeline under a body of water.

(501:14-15; 914:7-8). Even maintenance activities can disturb a site. (664:11-18). Any ground-

disturbing activity conducted in the presence of human remains or other cultural or historical

resources has the potential to harm the resource. (The Tribe is unable to cite to the record because

it was unable to offer an expert on cultural resources.) Even boring under a resource through HDD

can harm resources located above the borehole. (T1590). The propensity for construction projects

like this pipeline to damage cultural resources is significant, and is the reason why companies like

TransCanada conduct cultural and historical resource surveys. TransCanada’s surveys in this

instance, however, are insufficient and not comprehensive, as discussed in section II(C)(3), infra.

At the final hearing, TransCanada touted the Amended Programmatic Agreement as

protecting cultural resources during the construction process. (384:18-385:4). However, the

Amended Programmatic Agreement only addresses cultural and historical resources that are

14
eligible for listing in the National Register of Historic Places (“National Register”). (1116:23-

1117:6). Sites that are not eligible for the National Register are nonetheless important and must

be preserved, as TransCanada’s cultural resource witness, Erin Salisbury, testified during the

hearing. (1117:10-13). These sites, however, will receive no protection under the Amended

Programmatic Agreement.

Land and water are also cultural resources that receive no protection under the Amended

Programmatic Agreement. (T1595-96; 930:6-9; CUL-25 at 2). For the Ihanktonwan, or Yankton,

and many other tribes, water is a priceless cultural and spiritual resource. “The land and water are

sacred to us. Any destruction or contamination of the land or water would damage [the People’s

relationship with the land].” (CUL-25 at 2).

The Tribe’s historical presence in the area the pipeline would traverse means that the area

is replete with cultural resources, historical resources, and even burials of significance to the Tribe.

Because the pipeline crosses the Tribe’s ancestral territory and is in close proximity to the Tribe’s

Nemaha Reserve, construction of the pipeline poses a threat to the integrity of cultural and

historical resources of significance to the Tribe.

3. TransCanada Failed to Produce Sufficient Evidence to Assess the Social

Impacts of the Pipeline for the Public Interest Determination.

Not only is the record void of any evidence about the impacts of the Mainline Alternative

Route on cultural resources, but the paltry evidence offered with respect to the proposed route is

wholly inadequate to make a reasoned, informed decision about the proposed route’s impact on

cultural resources such as sacred sites, burials, historic sites, artifacts, and places used for

ceremony. This is largely because TransCanada was actually unable to produce the requisite

evidence due to its failure to survey the entire area to be impacted. TransCanada relied only on

15
the Programmatic Agreement as evidence that cultural resources would be protected, which, as

explained in section II(C)(2), supra, is woefully inadequate to preserve such resources.

Cultural resources for the Tribe also include plants (CUL-25, 6 (sage and other medicinal

plants are gathered throughout Nebraska and water); 981:21-982:10 (“water is life because we’re

nourished in the womb and we use it for – it’s our first medicine we’re in. And we also use it for

our ceremonial uses.”). However, TransCanada took no measures to study the impacts of, or even

identify, medicinal plants (385:22-386:1; 606:11-23) and failed to present any evidence of this

nature. TransCanada also failed to offer any evidence of the cultural and social effects any impact

on water (including spills during construction) would have.

No evidence was offered that cultural resource surveys have been conducted on the

portions of the Mainline Alternative Route that diverge from the proposed route, presumably

because TransCanada did not seek approval of the Mainline Alternative Route. As TransCanada’s

witness Erin Salisbury admitted, TransCanada did not complete archaeological surveys of all the

routes mentioned in its application. (1108:14-18). In fact, TransCanada has not even surveyed

the entire proposed route – 58 miles of centerline alone remain unsurveyed. (1121:25-1122:2;

257:5-16). Likewise, TransCanada admitted that it did not know whether the peripheral areas

where ground will be disturbed, such as workforce camp sites and locations of ground structures,

have been fully surveyed yet. (1122:6-10; 1123:10-12; 1125:11-14). Without the invaluable

knowledge gained from cultural resource surveys, the PSC had insufficient information to make a

public interest determination with respect to the social impacts of either route.

Another obvious reason for TransCanada’s failure to produce evidence is that its

“Environmental Project Manager for the Keystone XL Pipeline Project with responsibility to

manage [TransCanada’s] cultural resources efforts in Montana, South Dakota, and Nebraska”

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(T1874) was not even aware of the existence of the Tribe’s Nemaha Reserve until after the Tribe

raised it in the pre-filed testimony of Jason Cooke. (1127:25-1128:3). This means that the

company was unaware of the Reserve at the time the limited cultural resource surveys were

conducted. Clearly TransCanada’s efforts to identify cultural resources and its knowledge of the

history of the region are lacking. TransCanada, therefore, cannot possibly demonstrate that either

route is in the public interest due to the impacts on cultural and historic resources.

Because TransCanada’s failure to meet its burden of proof was covered thoroughly in

Appellants’ Brief and the Tribe agrees with Appellants’ arguments, in the interest of conserving

judicial resources the Tribe hereby adopts and incorporates by reference pages 22-27 of

Appellants’ Brief. For the foregoing reasons and the reasons contained in Appellants’ Brief,

TransCanada did not sustain its burden of proof to show that approval of the Mainline Alternative

Route was in the public interest and the PSC’s decision must be reversed.

III. The PSC Improperly Accepted Unsworn Hearsay Evidence in Violation of the

Tribe’s Due Process Rights.

A. Error 5: The PSC erred when it accepted unsworn hearsay evidence through public

meetings and public comments without providing the Tribe the ability to confront or

cross-examine the witnesses and other due process protections.

Pursuant to Neb. Rev. Stat. § 57-1407(2), the PSC held public comment sessions prior to

the final hearing. Despite the fact that these public comment sessions were not governed by the

rules of evidence and were not presided over by a hearing officer, the PSC allowed the comments

received from these sessions to be made part of the record. (EPSC7, 1-406:52, 1230; EPSC8, 1-

262:52, 1636; EPSC9, 1-316:52, 1878; EPSC10, 1-338:52, 2214). As a result, the PSC openly

17
violated the procedural due process rights of the Tribe and allowed unsworn hearsay evidence to

be considered in its decision on route approval.

The thousands of pages of comments received from the public comment sessions constitute

unverified, unsworn hearsay evidence lacking any foundation. Before the final hearing, the PSC

ordered that the Rules of Evidence would apply at the final hearing. (T1836). As noted in the

case of Marshall v. Wimes, 261 Neb. 846, 853 (2001), agencies cannot make decisions on the basis

of consideration of hearsay evidence where the rules of evidence apply. Therefore, allowing the

comments received from the public sessions constituted a violation of the Tribe’s procedural due

process rights. The Tribe was provided with no opportunity to confront or cross-examine the

public citizens and entities that submitted comments to the PSC and, therefore, had no opportunity

to rebut the public comments.

Because this error was covered thoroughly in Appellants’ Brief and the Tribe agrees with

Appellants’ arguments, in the interest of conserving judicial resources the Tribe hereby adopts and

incorporates by reference pages 27-30 of Appellants’ Brief. For the foregoing reasons and the

reasons contained in Appellants’ Brief, the receipt of public comments by the PSC and the

introduction of those comments into the record, (EPSC7, 1-406:52, 1230; EPSC8, 1-262:52, 1636;

EPSC9, 1-316:52, 1878; EPSC10, 1-338:52, 2214), constituted violations of the hearsay rule and

a deprivation of the Tribe’s procedural due process rights. For these reasons, the PSC’s decision

must be reversed.

B. Error 6: The PSC erred when it accepted unsworn hearsay evidence from consultants

without providing the Tribe the ability to confront or cross-examine the witnesses or

other due process protections.

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In accordance with Neb. Rev. Stat. § 57-1407(3), the PSC is allowed to accept the reports

of consultants and other state agencies, including opinions regarding the approval, denial, or

modification of the location of the proposed route of a major oil pipeline. These reports from

consultants and agencies outside of, and not parties to, the PSC proceeding constitute hearsay and

their acceptance deprived the Tribe of its fundamental procedural due process rights.

The consultants offering reports to the PSC are not sworn or under oath and the reports are

not properly authenticated and lack the proper foundation to be introduced at trial. (EPSC6, 1-

112:52, 1118; 48:6-12; 52:4-11). Similar to the arguments made regarding Error 5, supra, these

reports violate the hearsay rule because they are effectively the comments of outside parties put

forth to prove the truth of the matter asserted. Moreover, the reports deprived the Tribe of its

procedural due process rights because there was no opportunity to confront or rebut them.

Because this error was covered thoroughly in Appellants’ Brief, and under Error 5, supra,

and the Tribe agrees with Appellants’ arguments, in the interest of conserving judicial resources

the Tribe hereby adopts and incorporates by reference pages 30-31 of Appellants’ Brief. For the

foregoing reasons and the reasons contained in Appellants’ Brief, the receipt of the reports of

consultants and agencies, and the introduction of those reports into the record, constituted a

violation of the hearsay rule and a deprivation of the Tribe’s procedural due process rights. For

these reasons, the PSC’s decision must be reversed.

IV. Neb. Rev. Stat. §§ 57-1407(2) and 57-1407(3) are Unconstitutional.

A. Error 7: The PSC erred when it applied Neb. Rev. Stat. § 57-1407(2), which allows

the PSC to hold public meetings to receive public input and make the public input

part of the record, because the statute is unconstitutional in that it denies procedural

due process of law.

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Neb. Rev. Stat. § 57-1407(2) authorizes the PSC the ability to hold public comment

sessions and accept comments received into the record, the statute is facially unconstitutional.

Section 57-1407(2), by its plain terms, allows the PSC to openly violate the procedural due process

rights of parties before it.

Among the protections afforded by procedural due process, one fundamental protection is

that parties that may be deprived of a property or liberty interest are afforded adequate notice and

an opportunity to be heard. Hass v. Neth, 657 N.W.2d 11 (Neb. 2003); Matthews v. Eldridge, 424

U.S. 319 (1976). The public comment sessions, however, deprive parties of their procedural due

process rights by accepting comments – essentially, testimony – made not under oath and not

subject to cross-examination.

Because this error was covered thoroughly in Appellants’ Brief and the Tribe agrees with

Appellants’ arguments, in the interest of conserving judicial resources the Tribe hereby adopts and

incorporates by reference pages 27-30 of Appellants’ Brief. For the foregoing reasons and the

reasons contained in Appellants’ Brief, Neb. Rev. Stat. § 57-1407(2) is unconstitutional and void,

and the PSC’s decision must be reversed as a result.

B. Error 8: The PSC erred when it applied Neb. Rev. Stat. § 57-1407(3) which allows

the PSC to accept the reports of consultants and other agencies, including opinions

regarding approving, denying, or modifying the location of the proposed route of

the major oil pipeline, because the statute is unconstitutional in that it denies

procedural due process of law.

Neb. Rev. Stat. § 57-1407(3) is also unconstitutional in that it deprives participants in PSC

proceedings of their procedural due process rights under the Nebraska and United States

Constitutions. Very similar to the arguments made under Error 6, supra, the acceptance of

20
consultant and agency reports by the PSC is a violation of procedural due process rights because

the consultants and agencies are not under oath when offering their comments and parties are not

allowed to cross-examine the consultants or agencies.

Because this error was covered thoroughly in Appellants’ Brief and under Error 7, supra,

and the Tribe agrees with Appellants’ arguments, in the interest of conserving judicial resources

the Tribe hereby adopts and incorporates by reference pages 30-31 of Appellants’ Brief. For the

foregoing reasons and the reasons contained in Appellants’ Brief, Neb. Rev. Stat. § 57-1407(3) is

unconstitutional and void, and the PSC’s decision must be reversed.

V. Neb. Rev. Stat. § 57-1403(3) is Unconstitutional.

A. Error 9: The PSC erred when it applied Neb. Rev. Stat. § 57-1403(3) which states that

“construction of major oil pipelines . . . is in the public interest of Nebraska.” This

statute is unconstitutional, as it violates Article II, § 1 of the Nebraska Constitution.

Neb. Rev. Stat. § 57-1403(3) makes a broad, generalized statement that “construction of

major oil pipelines…is in the public interest of Nebraska.” This public interest statement

constitutes a violation of the Nebraska Constitution because it invades the constitutional powers

of the state judiciary.

Pursuant to Article II, § 1 of the Nebraska Constitution, the powers of the state government

are divided into the three departments—the legislative, executive, and judicial. For effective

operation of the government, none of the three departments are allowed to exercise any powers

that belong to another department. The legislature, by stating that the construction of all major oil

pipelines is in the public interest of Nebraska, effectively encroached upon the PSC’s judicial

function to decide, as it should, whether a certain project or activity is in the public interest. While

the legislature can make broad generalizations, it is a judicial function to decide if a certain project

21
or activity is in the public interest. In addition, Neb. Rev. Stat. § 57-1403(3) violates Article IV,

§ 20 of the Nebraska Constitution because the statute’s blanket declaration that major oil pipelines

are in the public interest deprives the PSC of its constitutional authority.

Because this error was covered thoroughly in Appellants’ Brief, and the Tribe agrees with

Appellants’ arguments, in the interest of conserving judicial resources the Tribe hereby adopts and

incorporates by reference pages 31-33 of Appellants’ Brief. For the foregoing reasons and the

reasons contained in Appellants’ Brief, Neb. Rev. Stat. § 57-1403(3) is unconstitutional and void,

and the PSC’s decision must be reversed as a result.

B. Error 10: The PSC erred when it applied Neb. Rev. Stat. § 57-1403(3) which states

that “construction of major oil pipelines . . . is in the public interest of Nebraska.” This

statute is unconstitutional, as it violates Article IV, § 20 of the Nebraska Constitution

by usurping the authority of the PSC conveyed by Article IV, § 20.

Beyond the fact that it violates the separation of powers principle as codified in Article II,

§ 1 of the Nebraska Constitution, the statement in Neb. Rev. Stat. § 57-1403(3) stating as fact that

construction of pipelines is in Nebraska’s public interest is unconstitutional because it invades the

PSC’s authority afforded under Article IV, § 20 of the Nebraska Constitution. The blanket

declaration that major oil pipelines are in the public interest deprives the PSC of its constitutional

authority.

Article IV, § 20 deals solely with the PSC and gives the PSC power and authority over “the

regulation of rates, service and general control of common carriers as the Legislature may provide

by law.” A determination of whether a common carrier is in the public interest is within the PSC’s

authority to decide under its power of “general control of common carriers.” “The determination

of public interest is the Commission’s task . . . .” (T1665). The legislature, by purporting to decide

22
issues of public interest dealing with common carriers, has taken the PSC’s constitutional authority

away in violation of Article IV, § 20. The PSC must be able to exercise its judicial authority

without any interference from other branches of the government.

Because this error was covered thoroughly in Appellants’ Brief, and the Tribe agrees with

Appellants’ arguments, in the interest of conserving judicial resources the Tribe hereby adopts and

incorporates by reference pages 31-33 of Appellants’ Brief. For the foregoing reasons and the

reasons contained in Appellants’ Brief, Neb. Rev. Stat. § 57-1403(3) is unconstitutional and void,

and the PSC’s decision must be reversed as a result.

VI. The PSC Unconstitutionally Restricted the Tribe’s Participation as a Formal

Intervenor.

The limitations placed on the Tribe as a formal intervenor are illegal, are contrary to the

PSC’s own rules, and impeded the Tribe’s ability to fully participate as a formal intervenor in the

PSC proceeding. In the order granting the Tribe formal intervenor status, the presiding hearing

officer identified the Tribe and Ponca as “Petitioners asserting social and cultural interests” and

unlawfully restricted the Tribes in the following ways:

1. The Tribes’ formal intervenor status was “limited to social and cultural issues.”

2. The Tribes could offer the testimony of just one shared witness.

3. The Tribes could “conduct discovery only for the limited purposes of exploring

[social and cultural issues].”

4. The Tribes were “entitled to collaborate to cross-examine witnesses at the

hearing, not to exceed one-hour of time per witness.”

5. The Tribes were required to submit one joint brief.

23
(T705). The hearing officer did subsequently modify these restrictions, but only to permit the

testimony of two witnesses (one per tribe) at the public hearing and to permit each tribe to submit

a separate brief, but requiring that the two briefs combined not exceed the page limit for one brief.

(1235:18-23).

These restrictions violated the PSC’s rules of procedure and violated the Tribe’s procedural

due process and equal protection rights. The Tribe challenged these restrictions, to no avail, on

multiple occasions: in its Consolidated Motion for Reconsideration of the Commission’s Order

on Formal Intervention and Memorandum in Support of Motion (T771-76); the Objections filed

by the Tribe, Ponca, and Bold Alliance and Sierra Club, Nebraska Chapter (T5587-91); and during

the hearing (1065:5-7; 1234:20-25).

A. The PSC Improperly Relied upon the Administrative Procedure Act Instead of Its

Own Rules to Restrict the Tribe’s Participation.

Error 11: The PSC erred when it applied the Administrative Procedure Act, Neb.

Rev. Stat. § 84-912.02, to limit the Tribe’s participation rights as a formal

intervenor instead of using its own rules of procedure.

When it imposed these limitations on the Tribe, the PSC relied on rules under the

Administrative Procedure Act (“APA”), Neb. Rev. Stat. § 84-912.02, rather than the PSC’s own

rules of procedure, 291 Neb. Admin. Code 1 § 015.01C. This is especially significant because

much broader participation rights are afforded under the PSC’s rules of procedure as compared to

those rights under the APA. The PSC rule regarding participation of a formal intervenor in

proceedings, 291 Neb. Admin. Code 1 § 015.01C, reads: “A formal intervenor shall be entitled to

participate in the proceeding to the extent of his/her express interest in the matter. Such

participation shall include, without limitation, presentation of evidence and argument, cross-

24
examination of witnesses and submission of rebuttal evidence.” (Emphasis added.) On the other

hand, the APA allows agencies to “impose conditions upon the intervenor’s participation in the

proceedings,” including “[l]imiting the intervenor’s participation to designated issues” and

“[r]equiring two or more intervenors to combine their presentation of evidence and argument.”

Neb. Rev. Stat. § 84-912.02.

The PSC is required to follow its own agency rules and does not have discretion to

substitute the APA rules for its own rules in these proceedings. Neb. Rev. Stat. § 75-110(1)

required the PSC to adopt and promulgate rules of procedure, and also requires that “[t]he

commission shall not take any action affecting persons subject to the commission's jurisdiction

unless such action is taken pursuant to a rule, regulation or statute.” This Court has also spoken

on the issue and ruled that an agency must follow its own rules.

In the case of Douglas County Welfare Admin. v. Parks the Nebraska Supreme Court noted

that:

[g]enerally, rules and regulations of an administrative agency governing

proceedings before it, duly adopted and within the authority of the agency, are as

binding as if they were statutes enacted by the Legislature. Likewise, procedural

rules are binding upon the agency which enacts them as well as upon the public,

and the agency does not, as a general rule, have the discretion to waive, suspend,

or disregard, in a particular case, a validly adopted rule so long as such rule remains

in force . . . . To be valid, the action of the agency must conform to its rules which

are in effect at the time the action is taken, particularly those designed to provide

procedural safeguards for fundamental rights.

204 Neb. 570, 572, 284 N.W.2d 10, 11-12 (Neb. 1979).

25
The Nebraska Supreme Court again voiced its opinion on the binding nature of the PSC’s

rules in Jantzen v. Diller Telephone Co., 245 Neb. 81, 100, 511 N.W.2d 504, 517 (Neb. 1994).

When discussing the PSC’s rules regarding the procedure of intervention, the Court wrote,

In summary, the rules set forth who may be a party, how a party may intervene, and

what rights the parties may have based on the type of intervention. These rules and

regulations are binding on the Commission in the same manner as if they were

statutes. The Commission is required to conform to these rules.

Id.

For the foregoing reasons, the PSC plainly erred when it applied the APA rules to impose

limitations on the Tribe as a formal intervenor.

B. The PSC Violated the Tribe’s Constitutional Right to Procedural Due Process.

Error 12: The PSC erred when it limited the scope of the Tribe’s discovery to social

and cultural issues in violation of the Tribe’s right to procedural due process.

Error 13: The PSC erred when it limited the Tribe to just one witness in violation of

the Tribe’s right to procedural due process.

Error 14: The PSC erred when it prohibited the Tribe from cross-examining Ponca’s

witness in violation of the Tribe’s right to procedural due process.

Under the United States and Nebraska Constitutions, state administrative agencies, such as

the PSC, must provide individuals with procedural due process. The Nebraska State Constitution

provides that “No person shall be deprived of life, liberty, or property, without due process of law.”

NEB. CONST. art. 1, § 3. Almost identically, the Fourteenth Amendment of the United States

Constitution states, “nor shall any state deprive any person of life, liberty, or property, without due

process of law.” U.S. CONST. amend. XIV, § 1.

26
The requirements of procedural due process are not satisfied unless “a person has

reasonable notice and an opportunity to be heard appropriate to the nature of the proceeding and

the character of the rights which might be affected by it.” Cain v. Custer Cty Bd. of Equal, 906

N.W.2d 285, 292 (Neb. 2018); Matthews v. Eldridge, 424 U.S. 319 (1976). It is a question of law

whether the process an administrative agency provides complies with the requirements for

procedural due process. Cain, 906 N.W.2d at 292; In re Carmelo G, 896 N.W.2d 902, 812 (Neb.

2017). “A court reviewing an order of an administrative agency must determine whether there has

been due process of law; and this includes an inquiry into the jurisdiction of the agency, whether

there was reasonable notice and an opportunity for fair hearing, and whether the finding was

supported by evidence.” Landrum v. City of Omaha Planning Bd, 899 N.W.2d 598, 614 (Neb.

2017). The PSC decision must be overturned if the Court finds, as it must, that the Tribe’s due

process rights were violated.

The PSC violated the Tribe’s due process rights when it limited the Tribe to call just one

witness. As Judge Henry Friendly once wrote, one of the fundamental elements of a fair hearing

is the right to call witnesses. Henry Friendly, Some Kind of Hearing, 123 U. Pa. L. Rev. 1267

(1975). This same sentiment has been followed by the Supreme Court in its decisions regarding

procedural due process rights. In Morrissey v. Brewer, 408 U.S. 471, 489 (1972), the Supreme

Court held that the “minimum requirements of due process” include, among other things, an

“opportunity to be heard in person and to present witnesses and documentary evidence.” See also

Wolff v. McDonnell, 418 U.S. 539, 559 (1974); State v. Shawn M. (in Re Ty M.), 655 N.W.2d 672,

683 (Neb. 2003).

Despite the amount of precedent noting that a fundamental right of due process is to be

able to present witnesses to strengthen the points being argued, the PSC unjustifiably limited the

27
Tribe to only calling one witness on its behalf. In addition to violating Supreme Court and other

legal precedent, the PSC also violated its own governing regulations in limiting the Tribe to one

witness. Formal intervenors, like the Tribe, are allowed to participate in PSC proceedings and

such participation “[s]hall include, without limitation, presentation of evidence and argument,

cross-examination of witnesses and submission of rebuttal evidence.” 291 Neb. Admin. Code §

1-015.01C. The right of formal intervenors to present evidence and argument, without limitation,

allows the formal intervenor to call multiple witnesses to help substantiate and strengthen the

formal intervenor’s claims, yet the Tribe was denied this right. Moreover, the PSC effectively

treated the Tribe as if it were an informal intervenor. Informal intervenors are limited in their

participation in PSC proceedings “to the presentation of a pre-filed statement of a single witness

together with exhibits by such witness.” 291 Neb. Admin. Code § 1-015.02C. Like an informal

intervenor, the Tribe was limited to calling just one witness.

This limitation by the PSC violates Supreme Court precedent, violates the PSC’s governing

regulations, and constitutes a violation of the Tribe’s procedural due process rights. As a result,

the PSC’s decision must be overturned.

As explained in section IV(A), supra, quasi-judicial administrative proceedings such as the

proceeding below must afford parties due process protections. “A party appearing in an

adjudication hearing before an agency or tribunal is entitled to due process protections similar to

those given to litigants in a judicial proceeding.” Cain, 906 N.W.2d at 292. Nothing in MOPSA

permits the PSC to infringe on a party’s due process rights in this manner. Furthermore, the

regulations of the PSC state, “[t]he use of depositions and discovery in proceedings before the

Commission is governed by the rules and regulations of the Nebraska Supreme Court.” 291 Neb.

Admin. Code § 1-016.11. Under the Nebraska Supreme Court’s rules regarding discovery, parties

28
are afforded a broad range of discovery in terms of both the methods to be used and the scope of

the discovery. See Neb. Ct. R. of Disc. § 6-326. Nowhere in the rules of the Nebraska Supreme

Court is the scope of discovery allowed to be limited in the manner that the PSC limited the Tribe’s

discovery.

The Tribe should have been allowed to seek discovery related to environmental issues

because, due to the nature of the Tribe’s “cultural” interests, threats or damage to the environment

will result in threats or damage to the Tribe’s cultural interests. In accordance with the PSC’s

governing regulations, formal intervenors are entitled to participate in PSC proceedings to the

extent of their express interest in the matter. 291 Neb. Admin. Code § 1-015.01C. The Tribe’s

interest in halting the Pipeline is much broader than just cultural and social issues. However, even

if it were limited to those issues, degradation of the surrounding environment and lands could very

well compromise and damage the Tribe’s social well-being, cultural values, and cultural practices,

thus social and cultural issues must encompass environmental issues. Therefore, the Tribe should

have been allowed to seek discovery on environmental and other related issues.

C. The PSC Violated the Tribe’s Equal Protection Rights.

Error 15: The PSC erred when it limited the scope of the Tribe’s discovery to social

and cultural issues in violation of the Tribe’s equal protection rights.

Error 16: The PSC erred when it limited the Tribe to just one witness in violation of

the Tribe’s equal protection rights.

Error 17: The PSC erred when it restricted the Tribe’s ability to cross-examine in

violation of the Tribe’s equal protection rights.

The United States and Nebraska constitutions similarly provide for equal protection of the

laws for all people. NEB. CONST. art. 1, § 3 (“No person shall . . . be denied equal protection of

29
the laws”); U.S. CONST. amend. XIV, § 1 (“nor shall any state . . . deny to any person within its

jurisdiction the equal protection of the laws.”). “The Nebraska Constitution and the U.S.

Constitution have identical requirements for equal protection challenges.” Citizens of Decatur for

Equal Educ. v. Lyons-Decatur Sch. Dist., 739 N.W.2d 742, 762 (Neb. 2007). The Equal Protection

Clause prevents “governmental decisionmakers from treating differently persons who are in all

relevant respects alike.” Maack v. School Dist. of Lincoln, 491 N.W.2d 341, 350 (Neb. 1992).

“State action, for the purpose of the Equal Protection Clause of the 14th Amendment to the U.S.

Constitution, may emanate from a ruling of an administrative agency as well as from legislative

or judicial action.” Id.

A law on its face may not discriminate between two classes of individuals in violation of

the Equal Protection Clause. However,

Though the law itself be fair on its face and impartial in appearance, yet, if it is

applied and administered by public authority with an evil eye and an unequal hand,

so as practically to make unjust and illegal discriminations between persons in

similar circumstances, material to their rights, the denial of equal justice is still

within the prohibition of the Constitution.

Yick Wo v. Hopkins, 118 U.S. 356, 373-374 (1886); see Mach v. County of Douglas, 612 N.W.2d

237 (Neb. 2000).

In selective-prosecution cases, where a party asserts that a prosecutor has brought a charge

in violation of the Equal Protection Clause, the requirements for such a claim generally draw on

the ordinary equal protection standard. See United States v. Armstrong, 517 U.S. 456, 465 (1996).

Thus, a party will likely have to “prove that the decisionmakers in his case acted with

discriminatory purpose.” McCleskey v. Kemp, 481 U.S. 279, 292 (1987); Mach, 612 N.W.2d at

30
241 (“A discriminatory purpose will not be presumed; there must be a showing of clear and

intentional discrimination.”). The ordinary equal protection standard should also apply in cases

where a claimant asserts that a hearing officer of an administrative agency presiding over a case

issued procedural decisions in violation of the Equal Protection Clause.

“‘Discriminatory purpose’ . . . implies more than intent as volition or intent as awareness

of consequences. It implies that the decisionmaker . . . selected a particular course of action at

least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group.”

Personnel Admin. Of Mass. v. Feeney, 442 U.S. 256, 279 (1979); Mach, 612 N.W.2d at 242.

The APA allows agencies to “impose conditions upon the intervenor’s participation in the

proceedings,” including “[l]imiting the intervenor’s participation to designated issues” and

“[r]equiring two or more intervenors to combine their presentation of evidence and argument.”

Neb. Rev. Stat. § 84-912.02. As explained above, the PSC incorrectly relied on rules under the

APA, Neb. Rev. Stat. § 84-912.02, rather than the PSC’s own rules of procedure when it restricted

the Tribe’s ability to participate in the proceedings. Even if the APA rules did apply to this

proceeding, these rules do not allow the PSC to restrict due process rights arbitrarily or, worse yet

(and as is the case here), with discriminatory purpose.

Finally, the PSC violated the Tribe’s equal protection rights when it restricted its ability to

cross-examine Ponca’s witness at the final hearing. (T1061). Notably, the other Parties were

permitted to cross-examine friendly witnesses. For example, United Association of the Plumbing

and Pipe Fitting Industry of the United States and Canada, AFL-CIO, which intervened in the PSC

proceeding on the side of TransCanada, was permitted to cross examine TransCanada’s witnesses

(178:17; 265:23-24; 332:6-7; 386:7; 449:11; 524:6-7; 625:18-19), and Midwest Region of the

Laborers’ International Union of North America and International Brotherhood of Electrical

31
Workers Local Union No. 265, which also intervened in favor of route approval, was permitted to

cross examine TransCanada’s witnesses (178:20; 266:2; 332:10-11; 338:10-11). In addition, the

Landowners, who intervened in opposition to route approval, were allowed to cross-examine other

opposition witnesses (980:15; 983:9; 1050:14-1053:7; 993:9-1016:12) and the Tribe was largely

allowed to cross-examine other opposition witnesses (750:21-754:18; 780:5-12; 798:3-19; 817:12-

818:2; 875:22-876:4; 886:4-893:20; 917:15-918:22; 930:3-932:20).

The judge, though, restricted the Tribe’s ability to cross-examine the Ponca witness,

(1060:3-1071:17), presumably because it views Indian tribes as the same or, at least, having the

same interests. The tribes, however, do not share a common history, their historical migrations

and areas of ancestral lands are different, their spiritual practices and sacred sites are unique, and

their anthropological backgrounds are distinct. (T773). Put simply, Ponca and the Tribe have

separate and distinct interests, concerns, and perspectives. The Tribe should have been permitted

to cross-examine a friendly witness as the other Parties were. Notably, at the end of the public

hearing, the Hearing Officer indicated that one of the reasons for a certain limitation on the Tribe

was because “there is so much that is common” between Ponca and the Tribe. (1235:15-16).

Additionally, nothing in the Order on Formal Intervention Petitions, Nebraska Public

Service Commission entered March 31, 2017, or the order amending it, expressly prohibits the

Tribe from cross-examining the witness for Ponca. (T700-08; 1058-60). The order merely states

that the two tribes are “entitled” to collaborate to cross-examine witnesses. (T705) (emphasis

added). This means that they may collaborate, but collaboration is not required. Furthermore,

collaboration does not mean that one tribe is prohibited from cross-examining the witness for the

other tribe. This restriction is not contained in any order entered in this proceeding, yet the Tribe

was restricted in this manner during the public hearing. (T1060-68).

32
The PSC’s refusal to allow the Tribe to cross-examine the Ponca witness appears to be at

least in part because of its adverse effects upon an identifiable group for a racially discriminatory

purpose. It was therefore unreasonable and unconstitutional for the PSC to prohibit the Tribe from

cross-examining the Ponca witness.

Conclusion

The Tribe respectfully urges the Court to reverse the PSC’s decision, deny TransCanada’s

Application for route approval, and award costs to the Tribe.

Respectfully submitted this 22nd day of May, 2018.

/s/ Jennifer S. Baker /s/ Leonika R. Charging
Jennifer S. Baker, pro hac vice Leonika R. Charging, NE Bar # 23058
FREDERICKS PEEBLES & MORGAN LLP FREDERICKS PEEBLES & MORGAN LLP
1900 Plaza Drive 3610 North 163rd Plaza
Louisville, CO 80027 Omaha, NE 68116
Email: jbaker@ndnlaw.com Email: lcharging@ndnlaw.com
Telephone: (303) 673-9600 Telephone: (402) 333-4053
Facsimile: (303) 673-9155 Facsimile: (402) 333-4761
Attorneys for Yankton Sioux Tribe Attorneys for Yankton Sioux Tribe

33
IN THE SUPREME COURT OF THE STATE OF NEBRASKA
______________________________________________________________________________

No. S-17-001331
______________________________________________________________________________

IN THE MATTER OF
THE APPLICATION OF
TRANSCANADA KEYSTONE PIPELINE, L.P.
FOR ROUTE APPROVAL OF
THE KEYSTONE PIPELINE PROJECT
PURSUANT TO
THE MAJOR PIPELINE SITING ACT
______________________________________________________________________________

APPEAL FROM THE NEBRASKA PUBLIC SERVICE COMMISSION
APPLICATION NO. OP-003
______________________________________________________________________________

AFFIDAVIT OF SERVICE
______________________________________________________________________________

STATE OF COLORADO )
) ss
COUNTY OF BOULDER )

On May 22, 2018, Jennifer S. Baker caused to be served one (1) copy of APPELLEE

YANKTON SIOUX TRIBE’S BRIEF AND CROSS-APPEAL by electronic filing, on the

Clerk of the Supreme Court.

On May 22, 2018, Jenifer S. Baker caused to be served a copy of APPELLEE YANKTON

SIOUX TRIBE’S BRIEF AND CROSS-APPEAL and this Affidavit of Service, by US Mail,

postage prepaid to:

Doug Peterson, Nebraska Attorney General

L. Jay Bartel, Esq.
Assistant Attorney General, State of Nebraska
2115 State Capitol P.O. Box 98920
Lincoln, NE 68509-8920
Jay.bartel@nebraska.gov

1
On May 22, 2018, Jennifer S. Baker also caused to be served a copy of APPELLEE

YANKTON SIOUX TRIBE’S BRIEF AND CROSS-APPEAL to all parties of record via e-

mail and via US mail to those without email addresses of record as follows:

James G Powers First National Omaha NE 68102 jpowers@mcgrathnorth.com
Tower Ste 3700
1601 Dodge
Street
Patrick D Pepper First National Omaha NE 68102 ppepper@mcgrathnorth.com
Tower Ste. 3700
1601 Dodge
Street
Jayne Antony 16064 Sprint St Omaha NE 68130-
2030

Wrexie Bardaglio 9748 Arden Road Trumansburg NY 14886 wrexie.bardaglio@gmail.com

Leverne A Barrett 1909 Co Rd E Ceresco NE 68017

Mia Bergman 86424 514 Ave. Orchard NE 68764 mbergman85@hotmail.com

Ellen O Boardman 4748 Wisconsin Washington DC 20016 eboardman@odonoghuelaw.com
Avenue, NW

Anna Friedlander 4748 Wisconsin Washington DC 20016 afriedlander@odonoghuelaw.co
Avenue, NW m

Robert O'Connor, Jr PO Box 45116 Omaha NE 68145 reolaw@aol.com

Dara Illowsky 1650 38th Boulder CO 80301 dara.illowsky@sierraclub.org
Street Suite
102w
Kimberly E Craven 33 King Canyon Chadron NE 69337 Kimecraven@gmail.com
Road

Cathie Genung 902 East 7th St Hastings NE 68901 tg64152@windstream.net
(Kathryn)
Louis (Tom) Genung 902 East 7th St Hastings NE 68901 tg64152@windstream.net

Andy Grier 916 S. 181st St. Elkhorn NE 68022 griea01@cox.net

2
Christy J Hargesheimer 620 S 30th St Lincoln NE 68510 chrispaz@neb.rr.com

Richard S Hargesheimer 620 South 30th St Lincoln NE 68510 rshargy@gmail.com

Robert J Henry 753 State Avenue Kansas CityKS 66101 rjh@blake-uhlig.com
Ste. 475

Michael J Stapp 753 State Avenue Kansas CityKS 66101 mjs@blake-uhlig.com
Ste 475

Michael E Amash 753 State Avenue Kansas CityKS 66101 mea@blake-uhlig.com
Ste 475

Becky Hohnstein PO Box 272 Minatare NE 69356 jimhohnstein@gmail.com

Marvin E Hughes 714 W 5th St Ste Hastings NE 68901 bhughes@gtmc.net
120

John Jarecki 6112 Bedford Ave Omaha NE 68104 johnjarecki110@gmail.com

Karen Jarecki 6112 Bedford Ave Omaha NE 68104 tenbuckstwo@yahoo.com

Brad S Jolly 15355 Gadsen Dr Brighton CO 80603 bsj@bsjlawfirm.com

Brian E Jorde 2425 S 144th Street Omaha NE 68144- bjorde@dominalaw.com
3267

Dave Domina 2425 S 144th Street Omaha NE 68144- ddomina@dominalaw.com
3267

Taylor R M Keen 5022 Hamilton St Omaha NE 68132- taylorkeen7@gmail.com
1448

Judy King 1261 Fall Creek Rd Lincoln NE 68510 kingjud@gmail.com

Michelle C LaMere PO Box 514 Winnebago NE 68071

Pamela Luger 8732 Granville LaVista NE 68128 pam1181@yahoo.com
Pkwy

Kendall Maxey 20 Jay Street Brooklyn NY 11201 kendall@350.org

Elizabeth Mensinger 6509 Wirt St. Omaha NE 68104 lizmensinger@gmail.com
(Liz)

3
Cindy Myers PO Box 104 Stuart NE 68780 csmyers77@hotmail.com

Crystal Miller 7794 Greenleaf LaVista NE 68128 neccmiller@juno.com
Drive

Janice Mollhoff 2354 Euclid Street Ashland NE 68003 wjmollhoff@windstream.net

Greg Nelson 3700 Sumner St Lincoln NE 68506 gnelson@inetnebr.com

Julie Nichols 1995 Park Ave Lincoln NE 68502

Jana Osborn 1112 Meadowlark Alliance NE 69301 janajearyb@gmail.com

James Osborn 43110 879th Rd Ainsworth NE 69210
Douglas
Christine Polson 4923 Valley St Omaha NE 68106 snpolson@cox.net

Dave Polson 4923 Valley Street Omaha NE 68106 honk@cox.net

Joseph Pomponio 551B Sand Creek Albany NY 12205 lukaz@msn.com
Rd

Collin A Rees 4721 Heather Lane Kearney NE 68845 collin@priceofoil.org

Donna Roller 2000 Twin Ridge Lincoln NE 68506 rollerski@gmail.com
Rd.

Cecilia Rossiter 949 N 30th St Lincoln NE 68503 punion@gmail.com

Corey Runmann 2718 S. 12th St. Lincoln NE 68502 rumannc@gmail.com

Lois Schreur 2544 N. Omaha NE 68104 leschreur@centurylink.net
61st Street
PO Box
Tristan Scorpio 208 S Burlington Hasting NE 68901
Ave Ste 103 Box
325

Julie Shaffer 5405 Northern Hills Omaha NE 68152
Dr
Sandra Slaymaker 102 E 3rd St #2 Atkinson NE 68713 sandyslaymaker@gmail.com

4
Susan Soriente 11 10 Rockhurst Lincoln NE 68510 ssoriente@gmail. com
Drive

Lorne Stockman 714 G St, SE Suite Washington DC 20003 lorne@priceofoi l.org
202

Susan Straka-Heyden46581 875th Rd Stuart NE 68780 suzie_sl@hotmail.com

Kimberly L Stuhr 19303 Buffalo Rd Springfield NE 68059 kimberlystuhr13@yahoo.com

Jacques Tallichet 282 1 S. 79th St Lincoln NE 68506 jacques.tallichet@gmail .com

Paul Theobald 857 1 8 544th Foster NE 68765 ptheobald36@gmail.com
Avenue

Jonathan H Thomas 960 S Cotner Blvd Lincoln NE 68510 thewild_things@yahoo.com

Elizabeth L Troshynski 87769 484th Ave Atk inson NE 687 13 btroshyn@hotmail. com

Christine Troshynski 101 S. 1st St. Emmet NE 68734 ctroshynski@gmail .com

Julie Walker 2570 West Luther Martell NE 68404 jw9095@yahoo.com
St.

Susan C Watson 2035 N 28th St. Lincoln NE 68503 scwat son I 965@gmai l.com
Apt 213

Susan J Weber 2425 Folkways Blvd Lincoln NE 6852 1 susan jweber4@yahoo.com
Apt 329

Douglas Whitmore 8856 N 83rd Ave. Omaha NE 68122 douglas@whitmore4congress .com

Kenneth Winston 1327 H St Ste 300 Lincoln NE 68508 kwinston @inebraska.com

Sandy Zdan 4817 Douglas Omaha NE 68132 sandywz@cox.net

Sarah Zuekerman 1729 K St. #7 Lincoln NE 68508 sarahj1182@gmail.com

Lisa May 1 008 13th Avenue Kearney NE 68845 doodlesand_dollies@hotmail.com

Michael Whatley 1666 K Street Washington DC 20006 EHaggstrom@consumerenergyallian
NW, Ste. 500 ce.org

5
Michael Reeves 5401 N. M LK #395 Lubbock TX 79403 EHaggs
trom@consumerenergyalliance .org

Adam Martin PO Box 3224 Rapid City SD 57709 adam.martin@sdoil.org

Steven M. Kramer 900 17th Street, Washington DC 20006 skramer@aopl.org
NW,
Ste. 600

Ronald J. Sedlacek PO Box 95128 Lincoln NE 68509 rsedlacek@nechamber.com

Judith Thorman 216 West Jackson Chicago IL 60606 thormanj@api.org
Blvd.,
Ste. 915
Ross Eisenberg 733 10th Street , Washington DC 20001 ross.e.eisenberg@nam.org
NW, Ste.

Nebraska Executive Lincoln NE 68508 psc.kxlfil ings@nebraska.gov
700 1200 N Street,
Public Director Suite 300
Service
Commission
Nebraska Mike Hybl Lincoln NE 68509- Mike.Hybl@nebraska.gov
1200 N. Street, 4927
Public Suite 300
Lincoln, NE 68509-
Service 4927
Nebraska Doug Lincoln NE 68509 Kimberly.daughety@nebraska.gov
Peterson 21 15 State Capital
Attorney Building
General

/s/ Jennifer S. Baker /s/ Leonika R. Charging
Jennifer S. Baker, pro hac vice Leonika R. Charging, NE Bar # 23058
FREDERICKS PEEBLES & MORGAN LLP FREDERICKS PEEBLES & MORGAN LLP
1900 Plaza Drive 3610 North 163rd Plaza
Louisville, CO 80027 Omaha, NE 68116
Email: jbaker@ndnlaw.com Email: lcharging@ndnlaw.com
Telephone: (303) 673-9600 Telephone: (402) 333-4053
Facsimile: (303) 673-9155 Facsimile: (402) 333-4761
Attorneys for Yankton Sioux Tribe Attorneys for Yankton Sioux Tribe

6
Certificate of Service
I hereby certify that on Tuesday, May 22, 2018 I provided a true and correct copy of this Replacement Brief of
Appellee Yankton to the following:

Allpress Brothers LLC represented by Brian Emmanuel Jorde (23613) service method: Electronic Service to
bjorde@dominalaw.com
Allpress Brothers LLC represented by David A Domina (11043) service method: Electronic Service to
ddomina@dominalaw.com

Ann A & Richard J Pongratz represented by Brian Emmanuel Jorde (23613) service method: Electronic
Service to bjorde@dominalaw.com
Ann A & Richard J Pongratz represented by David A Domina (11043) service method: Electronic Service to
ddomina@dominalaw.com

Arla & Bryce Naber represented by Brian Emmanuel Jorde (23613) service method: Electronic Service to
bjorde@dominalaw.com
Arla & Bryce Naber represented by David A Domina (11043) service method: Electronic Service to
ddomina@dominalaw.com

Arthur R & Helen J Tanderup represented by Brian Emmanuel Jorde (23613) service method: Electronic
Service to bjorde@dominalaw.com
Arthur R & Helen J Tanderup represented by David A Domina (11043) service method: Electronic Service to
ddomina@dominalaw.com

Bartel Farms Inc represented by Brian Emmanuel Jorde (23613) service method: Electronic Service to
bjorde@dominalaw.com
Bartel Farms Inc represented by David A Domina (11043) service method: Electronic Service to
ddomina@dominalaw.com

Beverly & Earl Miller represented by Brian Emmanuel Jorde (23613) service method: Electronic Service to
bjorde@dominalaw.com
Beverly & Earl Miller represented by David A Domina (11043) service method: Electronic Service to
ddomina@dominalaw.com

Beverly & Robert Krutz represented by Brian Emmanuel Jorde (23613) service method: Electronic Service to
bjorde@dominalaw.com
Beverly & Robert Krutz represented by David A Domina (11043) service method: Electronic Service to
ddomina@dominalaw.com

Bonnie Brauer represented by Brian Emmanuel Jorde (23613) service method: Electronic Service to
bjorde@dominalaw.com
Bonnie Brauer represented by David A Domina (11043) service method: Electronic Service to
ddomina@dominalaw.com

Bonnie Kilmurry represented by Brian Emmanuel Jorde (23613) service method: Electronic Service to
bjorde@dominalaw.com
Bonnie Kilmurry represented by David A Domina (11043) service method: Electronic Service to
ddomina@dominalaw.com
Byron Terry "Stix" & Diana Steskal represented by Brian Emmanuel Jorde (23613) service method:
Electronic Service to bjorde@dominalaw.com
Byron Terry "Stix" & Diana Steskal represented by David A Domina (11043) service method: Electronic
Service to ddomina@dominalaw.com

Carol Manganaro represented by Brian Emmanuel Jorde (23613) service method: Electronic Service to
bjorde@dominalaw.com
Carol Manganaro represented by David A Domina (11043) service method: Electronic Service to
ddomina@dominalaw.com

Cheri G & Michael J Blocher represented by Brian Emmanuel Jorde (23613) service method: Electronic
Service to bjorde@dominalaw.com
Cheri G & Michael J Blocher represented by David A Domina (11043) service method: Electronic Service to
ddomina@dominalaw.com

CHP 4 Farms LLC represented by Brian Emmanuel Jorde (23613) service method: Electronic Service to
bjorde@dominalaw.com
CHP 4 Farms LLC represented by David A Domina (11043) service method: Electronic Service to
ddomina@dominalaw.com

Connie & Verdon Smith represented by Brian Emmanuel Jorde (23613) service method: Electronic Service to
bjorde@dominalaw.com
Connie & Verdon Smith represented by David A Domina (11043) service method: Electronic Service to
ddomina@dominalaw.com

Constance Myers represented by Brian Emmanuel Jorde (23613) service method: Electronic Service to
bjorde@dominalaw.com
Constance Myers represented by David A Domina (11043) service method: Electronic Service to
ddomina@dominalaw.com

CRC Inc represented by Brian Emmanuel Jorde (23613) service method: Electronic Service to
bjorde@dominalaw.com
CRC Inc represented by David A Domina (11043) service method: Electronic Service to
ddomina@dominalaw.com

Dan & Clifford Shotkoski represented by Brian Emmanuel Jorde (23613) service method: Electronic Service
to bjorde@dominalaw.com
Dan & Clifford Shotkoski represented by David A Domina (11043) service method: Electronic Service to
ddomina@dominalaw.com

Daniel A & Joyce K Graves represented by Brian Emmanuel Jorde (23613) service method: Electronic
Service to bjorde@dominalaw.com
Daniel A & Joyce K Graves represented by David A Domina (11043) service method: Electronic Service to
ddomina@dominalaw.com

Dave & Sharyn Troester represented by Brian Emmanuel Jorde (23613) service method: Electronic Service to
bjorde@dominalaw.com
Dave & Sharyn Troester represented by David A Domina (11043) service method: Electronic Service to
ddomina@dominalaw.com

Deborah Ann Stieren represented by Brian Emmanuel Jorde (23613) service method: Electronic Service to
bjorde@dominalaw.com
Deborah Ann Stieren represented by David A Domina (11043) service method: Electronic Service to
ddomina@dominalaw.com

Donald C. & Wanda G. Loseke represented by Brian Emmanuel Jorde (23613) service method: Electronic
Service to bjorde@dominalaw.com
Donald C. & Wanda G. Loseke represented by David A Domina (11043) service method: Electronic Service
to ddomina@dominalaw.com

Donald D Widga represented by Brian Emmanuel Jorde (23613) service method: Electronic Service to
bjorde@dominalaw.com
Donald D Widga represented by David A Domina (11043) service method: Electronic Service to
ddomina@dominalaw.com

Donald Rech represented by Brian Emmanuel Jorde (23613) service method: Electronic Service to
bjorde@dominalaw.com
Donald Rech represented by David A Domina (11043) service method: Electronic Service to
ddomina@dominalaw.com

Edna & Glen Miller represented by Brian Emmanuel Jorde (23613) service method: Electronic Service to
bjorde@dominalaw.com
Edna & Glen Miller represented by David A Domina (11043) service method: Electronic Service to
ddomina@dominalaw.com

Edythe Sayer represented by Brian Emmanuel Jorde (23613) service method: Electronic Service to
bjorde@dominalaw.com
Edythe Sayer represented by David A Domina (11043) service method: Electronic Service to
ddomina@dominalaw.com

Frank C & Lynn H Morrison represented by Brian Emmanuel Jorde (23613) service method: Electronic
Service to bjorde@dominalaw.com
Frank C & Lynn H Morrison represented by David A Domina (11043) service method: Electronic Service to
ddomina@dominalaw.com

Frankie & Sandra Maughan represented by Brian Emmanuel Jorde (23613) service method: Electronic
Service to bjorde@dominalaw.com
Frankie & Sandra Maughan represented by David A Domina (11043) service method: Electronic Service to
ddomina@dominalaw.com

Gary Choat Farms LLC represented by Brian Emmanuel Jorde (23613) service method: Electronic Service to
bjorde@dominalaw.com
Gary Choat Farms LLC represented by David A Domina (11043) service method: Electronic Service to
ddomina@dominalaw.com

Germaine G Berry represented by Brian Emmanuel Jorde (23613) service method: Electronic Service to
bjorde@dominalaw.com
Germaine G Berry represented by David A Domina (11043) service method: Electronic Service to
ddomina@dominalaw.com

Gregory & Joanne Walmer represented by Brian Emmanuel Jorde (23613) service method: Electronic Service
to bjorde@dominalaw.com
Gregory & Joanne Walmer represented by David A Domina (11043) service method: Electronic Service to
ddomina@dominalaw.com
J D Mudloff represented by Brian Emmanuel Jorde (23613) service method: Electronic Service to
bjorde@dominalaw.com
J D Mudloff represented by David A Domina (11043) service method: Electronic Service to
ddomina@dominalaw.com

James & Christine Carlson represented by Brian Emmanuel Jorde (23613) service method: Electronic Service
to bjorde@dominalaw.com
James & Christine Carlson represented by David A Domina (11043) service method: Electronic Service to
ddomina@dominalaw.com

Jeanne & Ronald C Crumly represented by Brian Emmanuel Jorde (23613) service method: Electronic
Service to bjorde@dominalaw.com
Jeanne & Ronald C Crumly represented by David A Domina (11043) service method: Electronic Service to
ddomina@dominalaw.com

Jerry & Charlayne Carpenter represented by Brian Emmanuel Jorde (23613) service method: Electronic
Service to bjorde@dominalaw.com
Jerry & Charlayne Carpenter represented by David A Domina (11043) service method: Electronic Service to
ddomina@dominalaw.com

Jim Tarnick represented by Brian Emmanuel Jorde (23613) service method: Electronic Service to
bjorde@dominalaw.com
Jim Tarnick represented by David A Domina (11043) service method: Electronic Service to
ddomina@dominalaw.com

John F & Ginette M Small represented by Brian Emmanuel Jorde (23613) service method: Electronic Service
to bjorde@dominalaw.com
John F & Ginette M Small represented by David A Domina (11043) service method: Electronic Service to
ddomina@dominalaw.com

Johnnie & Maxine Bialas represented by Brian Emmanuel Jorde (23613) service method: Electronic Service
to bjorde@dominalaw.com
Johnnie & Maxine Bialas represented by David A Domina (11043) service method: Electronic Service to
ddomina@dominalaw.com

Joshua R Stelling represented by Brian Emmanuel Jorde (23613) service method: Electronic Service to
bjorde@dominalaw.com
Joshua R Stelling represented by David A Domina (11043) service method: Electronic Service to
ddomina@dominalaw.com

Karen G Berry represented by Brian Emmanuel Jorde (23613) service method: Electronic Service to
bjorde@dominalaw.com
Karen G Berry represented by David A Domina (11043) service method: Electronic Service to
ddomina@dominalaw.com

Ken Dittrich represented by Brian Emmanuel Jorde (23613) service method: Electronic Service to
bjorde@dominalaw.com
Ken Dittrich represented by David A Domina (11043) service method: Electronic Service to
ddomina@dominalaw.com

Kenneth & Karen Prososki represented by Brian Emmanuel Jorde (23613) service method: Electronic Service
to bjorde@dominalaw.com
Kenneth & Karen Prososki represented by David A Domina (11043) service method: Electronic Service to
ddomina@dominalaw.com

L A & Sandra K Breiner represented by Brian Emmanuel Jorde (23613) service method: Electronic Service to
bjorde@dominalaw.com
L A & Sandra K Breiner represented by David A Domina (11043) service method: Electronic Service to
ddomina@dominalaw.com

Larry D Cleary represented by Brian Emmanuel Jorde (23613) service method: Electronic Service to
bjorde@dominalaw.com
Larry D Cleary represented by David A Domina (11043) service method: Electronic Service to
ddomina@dominalaw.com

Larry D Mudloff represented by Brian Emmanuel Jorde (23613) service method: Electronic Service to
bjorde@dominalaw.com
Larry D Mudloff represented by David A Domina (11043) service method: Electronic Service to
ddomina@dominalaw.com

Leonard & Joyce Skoglund represented by Brian Emmanuel Jorde (23613) service method: Electronic Service
to bjorde@dominalaw.com
Leonard & Joyce Skoglund represented by David A Domina (11043) service method: Electronic Service to
ddomina@dominalaw.com

LJM Farm LLC represented by Brian Emmanuel Jorde (23613) service method: Electronic Service to
bjorde@dominalaw.com
LJM Farm LLC represented by David A Domina (11043) service method: Electronic Service to
ddomina@dominalaw.com

Lloyd Z & Vencille M Hipke represented by Brian Emmanuel Jorde (23613) service method: Electronic
Service to bjorde@dominalaw.com
Lloyd Z & Vencille M Hipke represented by David A Domina (11043) service method: Electronic Service to
ddomina@dominalaw.com

Lori Mudloff represented by Brian Emmanuel Jorde (23613) service method: Electronic Service to
bjorde@dominalaw.com
Lori Mudloff represented by David A Domina (11043) service method: Electronic Service to
ddomina@dominalaw.com

Mary Jane Nyberg represented by Brian Emmanuel Jorde (23613) service method: Electronic Service to
bjorde@dominalaw.com
Mary Jane Nyberg represented by David A Domina (11043) service method: Electronic Service to
ddomina@dominalaw.com

Mary Lou Robak represented by Brian Emmanuel Jorde (23613) service method: Electronic Service to
bjorde@dominalaw.com
Mary Lou Robak represented by David A Domina (11043) service method: Electronic Service to
ddomina@dominalaw.com

Milliron Ranch LLC represented by Brian Emmanuel Jorde (23613) service method: Electronic Service to
bjorde@dominalaw.com
Milliron Ranch LLC represented by David A Domina (11043) service method: Electronic Service to
ddomina@dominalaw.com
Nicholas Family Limited Partnership represented by Brian Emmanuel Jorde (23613) service method:
Electronic Service to bjorde@dominalaw.com
Nicholas Family Limited Partnership represented by David A Domina (11043) service method: Electronic
Service to ddomina@dominalaw.com

Patricia A Grosserode represented by Brian Emmanuel Jorde (23613) service method: Electronic Service to
bjorde@dominalaw.com
Patricia A Grosserode represented by David A Domina (11043) service method: Electronic Service to
ddomina@dominalaw.com

R Wynn & Jill Hipke represented by Brian Emmanuel Jorde (23613) service method: Electronic Service to
bjorde@dominalaw.com
R Wynn & Jill Hipke represented by David A Domina (11043) service method: Electronic Service to
ddomina@dominalaw.com

Richard & Darlene Stelling represented by Brian Emmanuel Jorde (23613) service method: Electronic Service
to bjorde@dominalaw.com
Richard & Darlene Stelling represented by David A Domina (11043) service method: Electronic Service to
ddomina@dominalaw.com

Richard Kilmurry represented by Brian Emmanuel Jorde (23613) service method: Electronic Service to
bjorde@dominalaw.com
Richard Kilmurry represented by David A Domina (11043) service method: Electronic Service to
ddomina@dominalaw.com

Rosemary Kilmurry represented by Brian Emmanuel Jorde (23613) service method: Electronic Service to
bjorde@dominalaw.com
Rosemary Kilmurry represented by David A Domina (11043) service method: Electronic Service to
ddomina@dominalaw.com

Schultz Brothers Farms Inc represented by Brian Emmanuel Jorde (23613) service method: Electronic Service
to bjorde@dominalaw.com
Schultz Brothers Farms Inc represented by David A Domina (11043) service method: Electronic Service to
ddomina@dominalaw.com

Shirley Choat Farms LLC represented by Brian Emmanuel Jorde (23613) service method: Electronic Service
to bjorde@dominalaw.com
Shirley Choat Farms LLC represented by David A Domina (11043) service method: Electronic Service to
ddomina@dominalaw.com

Susan & William Dunavan represented by Brian Emmanuel Jorde (23613) service method: Electronic Service
to bjorde@dominalaw.com
Susan & William Dunavan represented by David A Domina (11043) service method: Electronic Service to
ddomina@dominalaw.com

Terri Harrington represented by Brian Emmanuel Jorde (23613) service method: Electronic Service to
bjorde@dominalaw.com
Terri Harrington represented by David A Domina (11043) service method: Electronic Service to
ddomina@dominalaw.com

Terry J & Rebecca Lynn Van Housen represented by Brian Emmanuel Jorde (23613) service method:
Electronic Service to bjorde@dominalaw.com
Terry J & Rebecca Lynn Van Housen represented by David A Domina (11043) service method: Electronic
Service to ddomina@dominalaw.com

Timothy Choat represented by Brian Emmanuel Jorde (23613) service method: Electronic Service to
bjorde@dominalaw.com
Timothy Choat represented by David A Domina (11043) service method: Electronic Service to
ddomina@dominalaw.com

TMAG Ranch LLC represented by Brian Emmanuel Jorde (23613) service method: Electronic Service to
bjorde@dominalaw.com
TMAG Ranch LLC represented by David A Domina (11043) service method: Electronic Service to
ddomina@dominalaw.com

Todd & Lisa Stelling represented by Brian Emmanuel Jorde (23613) service method: Electronic Service to
bjorde@dominalaw.com
Todd & Lisa Stelling represented by David A Domina (11043) service method: Electronic Service to
ddomina@dominalaw.com

Tree Corners Farm LLC represented by Brian Emmanuel Jorde (23613) service method: Electronic Service to
bjorde@dominalaw.com
Tree Corners Farm LLC represented by David A Domina (11043) service method: Electronic Service to
ddomina@dominalaw.com

Andy Grier (Self Represented Litigant) service method: Email

Bold Alliance represented by Kenneth C Winston (16961) service method: Electronic Service to
kwinston@inebraska.com

Cathie & Louis Genung (Self Represented Litigant) service method: Email

Cecilia Rossiter (Self Represented Litigant) service method: Email

Christine Troshynski (Self Represented Litigant) service method: Email

Christy J & Richard S Hargesheimer (Self Represented Litigant) service method: Email

Corey Runmann (Self Represented Litigant) service method: Email

Crystal C Miller (Self Represented Litigant) service method: Email

Dave Polson (Self Represented Litigant) service method: Email

Donna Roller (Self Represented Litigant) service method: Email

Doug Peterson, Attorney General represented by Douglas J Peterson (18146) service method: Electronic
Service to pat.selk@nebraska.gov

Douglas Whitmore (Self Represented Litigant) service method: Email

Elizabeth L Troshynski (Self Represented Litigant) service method: Email

Elizabeth Mensinger (Self Represented Litigant) service method: Email
Greg Nelson (Self Represented Litigant) service method: Email

Intl Brotherhood of Electrical Workers represented by Michael E Amash (0) service method: Email
Intl Brotherhood of Electrical Workers represented by Michael James Stapp (22519) service method: Email
Intl Brotherhood of Electrical Workers represented by Robert J Henry (20331) service method: Email

James Douglas Osborn (Self Represented Litigant) service method: First Class Mail

Jana Osborn (Self Represented Litigant) service method: Email

Janece Mollhoff represented by Kenneth C Winston (16961) service method: Electronic Service to
kwinston@inebraska.com

Judy King (Self Represented Litigant) service method: Email

Julie Nichols (Self Represented Litigant) service method: First Class Mail

Julie Walker (Self Represented Litigant) service method: Email

Kendall Maxey (Self Represented Litigant) service method: Email

Kimberly E Craven (Self Represented Litigant) service method: Email

Kimberly L Stuhr (Self Represented Litigant) service method: Email

Laborers Intl Union of America represented by Michael E Amash (0) service method: Email
Laborers Intl Union of America represented by Michael James Stapp (22519) service method: Email
Laborers Intl Union of America represented by Robert J Henry (20331) service method: First Class Mail

Lois Schreur (Self Represented Litigant) service method: Email

Lorne Stockman (Self Represented Litigant) service method: Email

Marvin E Hughes (Self Represented Litigant) service method: Email

Mia Bergman (Self Represented Litigant) service method: Email

Nebraska Sierra Club represented by Kenneth C Winston (16961) service method: Electronic Service to
kwinston@inebraska.com

Pamela Luger (Self Represented Litigant) service method: Email

Paul Theobald (Self Represented Litigant) service method: Email

Ponca Tribe of Nebraska represented by Brad Stephen Jolly (23720) service method: Electronic Service to
bsj@bsjlawfirm.com

Public Service Commission represented by David Andrew Lopez (24947) service method: Electronic Service
to dave.lopez@nebraska.gov
Public Service Commission represented by L Jay Bartel (17247) service method: Electronic Service to
jay.bartel@nebraska.gov
Public Service Commission represented by Lynn A Melson (17363) service method: Email
Public Service Commission represented by Matthew John Effken (19524) service method: Email
Public Service Commission represented by Nichole Underhill Mulcahy (22492) service method: Email

Sandra Slaymaker (Self Represented Litigant) service method: Email

Sandy Zdan (Self Represented Litigant) service method: Email

Sarah Zuekerman (Self Represented Litigant) service method: Email

Susan C Watson (Self Represented Litigant) service method: Email

Susan J Weber (Self Represented Litigant) service method: Email

Susan Soriente (Self Represented Litigant) service method: Email

Susan Straka-Heyden (Self Represented Litigant) service method: Email

TransCanada Pipeline Co LP represented by James G Powers (17780) service method: Electronic Service to
jpowers@mcgrathnorth.com
TransCanada Pipeline Co LP represented by Patrick D Pepper (23228) service method: Electronic Service to
ppepper@mcgrathnorth.com

TransCanada Pipeline LP represented by James G Powers (17780) service method: Electronic Service to
jpowers@mcgrathnorth.com
TransCanada Pipeline LP represented by James P. White (0) service method: Email
TransCanada Pipeline LP represented by Patrick D Pepper (23228) service method: Electronic Service to
ppepper@mcgrathnorth.com

Tristan Scorpio (Self Represented Litigant) service method: First Class Mail

United Assoc Journeymen/Apprentices represented by Anna Friedlander (0) service method: Email
United Assoc Journeymen/Apprentices represented by Ellen O Boardman (0) service method: Email

Signature: /s/ Leonika Rose Charging (23058)