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 XL PIPELINE PROJECT
PURSUANT TO
THE MAJOR OIL PIPELINE SITING ACT

APPEAL FROM THE NEBRASKA PUBLIC SERVICE COMMISSION

BRIEF OF APPELLEE AND CROSS-APPELLANT
PONCA TRIBE OF NEBRASKA
BRIEF ON CROSS-APPEAL

Prepared and Submitted by:

Brad S. Jolly (#23720)
BRAD S. JOLLY & ASSOCIATES
15355 Gadsden Drive
Brighton, Colorado 80603
Telephone: (720) 685-7105
Facsimile: (206) 339-7209
Email: bsj@bsjlawfirm.com
ATTORNEYS FOR PONCA TRIBE OF NEBRASKA
TABLE OF CONTENTS

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

BRIEF ON CROSS-APPEAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF JURISDICTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

ASSIGNMENTS OF ERROR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

PROPOSITIONS OF LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

I. THE PSC VIOLATED ITS RULES GOVERNING INTERVENTION BY LIMITING
THE SCOPE OF THE TRIBE’S INTERVENTION AND ITS ABILITY TO PRESENT
EVIDENCE, MAKING THE LIMITS ARBITRARY AND CAPRICIOUS. . . . . . . . . . 12

A. The PSC Violated its Rules Governing Intervention by Limiting the Tribe to
“Social and Cultural Issues” When it Expressed Other Interests.. . . . . . . . . . . . . 12

B. The PSC Violated its Own Rules Governing Intervention by Limiting the Tribe’s
Presentation of Evidence, Argument, and Cross-examination. . . . . . . . . . . . . . . 15

II. THE PSC HAD NO AUTHORITY TO APPROVE THE MAINLINE ALTERNATIVE
ROUTE AND, EVEN IF IT DID, IT COULD NOT DO SO SINCE TRANSCANADA
DID NOT PRESENT ANY EVIDENCE IT IS IN THE PUBLIC INTEREST.. . . . . . . . 18

A. The PSC Could Not Approve the Mainline Alternative Route Because
Transcanada Did Not Apply for Approval of That Route. . . . . . . . . . . . . . . . . . . 19

B. The PSC Could Not Consider or Approve the Mainline Alternative Route Because
Proper Notice and Service Was Not Made on Landowners, Governments, or Other
Interested Parties along the Mainline Alternative Route. . . . . . . . . . . . . . . . . . . . 22

C. Even If the PSC Could Consider the Mainline Alternative Route, it Could Not
Approve it Because TransCanada Did Not Provide Evidence for That Route. . . 25

III. THE PSC APPLIED THE INCORRECT STANDARD TO CONSIDERATION OF
CULTURAL AND HISTORIC RESOURCES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

ii
TABLE OF AUTHORITIES

CASES

Application of Jantzen, 245 Neb. 81, 511 N.W.2d 504 (1994). . . . . . . . . . . . . . . . . . . . . . 3, 15, 18

Application of Lincoln Elec. System, 207 Neb. 289, 298 N.W.2d 366 (1980) . . . . . . . . . . . . . 4, 22

Applications of Little Blue Natural Res., 194 Neb. 55, 230 N.W.2d 190 (1975) . . . . . . . . . . . 2, 32

Blakely v. Lancaster County, 284 Neb. 659, 825 N.W.2d 149 (2012) . . . . . . . . . . . . . . . . . . . . . 12

Cain v . Custer Cty. Bd. of Equal., 298 Neb. 834 (2018) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 12

Caruso v. City of Omaha, 222 Neb. 257, 383 N.W.2d 41 (1986) . . . . . . . . . . . . . . . . . . . . . . 5, 31

Celotex Corp. v. Catrett, 477 U.S. 317 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Chase 3000 v. Nebraska Pub. Ser. Comm., 273 Neb. 133, 728 N.W.2d 560 (2007) . . . . . . . . . . 13

Chebatoris v. Moyer, 276 Neb. 733, 757 N.W.2d 212 (Neb. 2008). . . . . . . . . . . . . . . . . . . . . . . . 2

First Federal Sav. & Loan Ass’n. v. Dep’t. of Banking,
187 Neb. 562, 192 N.W.2d 736 (1971). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 24

Greeley Airport Authority v. Dugan, 259 Neb. 860, 612 N.W.2d 913 (2000) . . . . . . . . . . . . . 4, 23

Hopkins v. Hopkins, 294 Neb. 417, 883 N.W.2d 363 (2016) . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 26

In Re Kim, 71 B.R. 1011 (Bankr. C.D. Cal. 1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 26, 29

Metro. Utilities Dist. of Omaha v. Aquila, 271 Neb. 454, 712 N.W.2d 280 (2006). . . . . . . . . 5, 29

Miodowski v. Miodowski, No. 8:06-cv-00443-JFB-TDT (D. Neb. Nov. 19, 2006) . . . . . . . . . . . . 7

Office of Workers’ Comp. v. Greenwich Collieries, 512 U.S. 267 (1994) . . . . . . . . . . . . . . . . . . 26

O’Neill Prod. Credit Ass’n v. Schnoor, 208 Neb. 105, 302 N.W.2d 376 (1981) . . . . . . . . . . . 5, 31

Sanitary & Imp. Dist. v. Neb. Public Power Dist., 253 Neb. 917, 573 N.W.2d 460 (1998) . . . . 16

Schneider v. Chavez-Munoz, 616 N.W.2d 46, 9 Neb. App. 579 (Neb. Ct. App. 2000) . . . 5, 26, 29

School Dist. No. 8 v. State Bd. of Ed., 176 Neb. 722, 127 N.W.2d 458 (1964) . . . . . . . . . 4, 24, 25

Telrite Corp. v. Neb. Pub. Serv. Comm’n, 288 Neb. 866, 852 N.W.2d 910 ( 2014) . . . . . . . . . . . 2

United States v. Mazurie, 419 U.S. 544 (1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

United States v. Wheeler, 435 U.S. 313 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

iii
Young v. Midwest Fam. Mut. Ins. Co., 272 Neb. 385, 722 N.W.2d 13 (2006). . . . . . . . . . . . . . . . 2

STATUTES

54 U.S.C. § 300101. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

54 U.S.C. § 300308. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 30

NEB. REV. STAT. § 57-1401 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

NEB. REV. STAT. § 57-1402 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

NEB. REV. STAT. § 57-1405 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 4, 19, 21, 23-25

NEB. REV. STAT. § 57-1407 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5, 21, 26, 28-30

NEB. REV. STAT. § 57-1408 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 21, 22

NEB. REV. STAT. § 57-1409 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

NEB. REV. STAT. § 75-134.02 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

NEB. REV. STAT. § 75-136 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

NEB. REV. STAT. § 75-136(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

NEB. REV. STAT. § 84-912.02 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 16, 17

Ponca Restoration Act, Pub. L. No. 101-484, 104 Stat. 1167 (1990) . . . . . . . . . . . . . . . . . . . . 6, 7

Pub. L. No. 104-109, 110 Stat. 763 (1996). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7

REGULATIONS

291 Neb. Admin. Code, ch. 1, §015.01. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 3, 12, 13, 16-18

291 Neb. Admin. Code, ch. 9, § 023.02 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

83 Fed. Reg. 4,235 (2018). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

RULES

Neb. Ct. R. App. P. § 2-102(C). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

iv
OTHER AUTHORITIES

BLACK’S LAW DICTIONARY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 31

FELIX S. COHEN’S HANDBOOK OF FEDERAL INDIAN LAW
(Rennard Strickland, et al. eds., 1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Hearing on LB1 Before the Natural Res. Comm., 102nd Leg., 1st Spec. Sess. (Neb. 2011) . . . . 31

Ponca Tribe of Nebraska, Office Locations,
https://www.poncatribe-ne.org/contact/office-locations/ . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Ponca Tribe of Nebraska, Tribal Court,
https://www.poncatribe-ne.org/departments/tribal-court/. . . . . . . . . . . . . . . . . . . . . . . . . . 7

v
BRIEF ON CROSS-APPEAL

STATEMENT OF JURISDICTION

This is an appeal of the November 20, 2018 Order of the Public Service Commission

(“PSC”) approving a route for a major oil pipeline to be constructed by Appellee TransCanada

Keystone Pipeline, L.P. (“TransCanada”). (T6140). This appeal is brought pursuant to Neb. Rev.

Stat. § 75-136 and § 57-1409, which, respectively, provide for appeals of final orders of the PSC

generally and under the Major Oil Pipeline Siting Act (“MOPSA”) specifically. TransCanada,

Appellant Landowners, Appellee Ponca Tribe of Nebraska (“Tribe”), and Appellee Sierra Club each

filed motions for reconsideration, (T6212-35), which suspended the time for filing an appeal

pursuant to Neb. Rev. Stat. § 75-134.02. The PSC denied the motions for reconsideration in a

December 19, 2018 Order. (T6248). The Landowners filed their notice of appeal to the Court of

Appeals and deposited the docket fee on December 27, 2017. The Supreme Court has jurisdiction

over this appeal pursuant to its March 14, 2018 Order moving the appeal from the Court of Appeals

pursuant to Neb. Ct. R. App. P. § 2-102(C).

STATEMENT OF CASE

1. Nature of the Case. On February 16, 2017, TransCanada filed an application with the

PSC pursuant to MOPSA seeking approval of a route for the Keystone XL Pipeline it designated the

“Preferred Route” (“Application”). (T54). Pursuant to 291 Neb. Admin. Code, ch. 1, §015.01, the

Tribe filed a petition to formally intervene in the proceedings. (T633).

2. Issues Tried Below. The issues tried below are the scope of the Tribe’s allowed

participation as a formal intervenor in the proceedings and whether the Preferred Route requested

in the Application meets the requirements of MOPSA and should be approved by the PSC.
3. How the Issues Were Decided and What Judgment or Decree Was Entered. The PSC

limited the Tribe’s participation to “social and cultural issues,” to only two witnesses and one hour

of cross-examination, each to be shared with the Yankton Sioux Tribe. (T705). With respect to the

merits of the Application, the PSC did not expressly state whether it approved or denied the

Application for the Preferred Route, but presumably denied it by not approving the Application.

(T6140-T6210). By a vote of three to two, the PSC purportedly approved a route mentioned in

TransCanada’s Application solely for comparison purposes, and not applied for, referred to as the

“Mainline Alternative Route.” Id.

4. Scope of Review. Pursuant to Neb. Reb. Stat. § 75-136(2), the Supreme Court

reviews an order of the PSC de novo on the record, which means the Court “reappraises the evidence

as presented by the record and reaches its own independent conclusions concerning the matters at

issue.” Telrite Corp. v. Neb. Pub. Serv. Comm’n, 288 Neb. 866, 873, 852 N.W.2d 910, 915 ( 2014).

When faced with a question which does not involve a factual dispute, the Court reviews the case

solely as a matter of law independently of the lower tribunal’s conclusions. Chebatoris v. Moyer,

276 Neb. 733, 737, 757 N.W.2d 212, 215 (Neb. 2008). “When an appeal calls for statutory

interpretation or presents questions of law, an appellate court must reach an independent, correct

conclusion irrespective of the determination made... below.” Young v. Midwest Fam. Mut. Ins. Co.,

272 Neb. 385, 385, 722 N.W.2d 13, 15 (2006). For purposes of considering a petition to intervene,

the allegations of the petition are assumed to be true. Applications of Little Blue Natural Res., 219

Neb. 372, 374, 363 N.W.2d 500, 501 (1985).

ASSIGNMENTS OF ERROR

1. The PSC erred in limiting the Tribe’s participation in the proceedings to “social and

cultural issues,” denying the Tribe’s right to fully participate as a party to the extent of its full

2
expressed interests in the proceedings and limiting it to two witnesses and one hour of cross-

examination to be shared with another separate party.

2. The PSC did not have authority to approve the Mainline Alternative Route because

TransCanada never applied for approval of that route, the statutory requirements of publishing and

serving notice related to the Mainline Alternative Route were not met, and TransCanada did not meet

its burden of proof with respect to the Mainline Alternative Route.

3. The PSC erred in limiting its consideration of historic and cultural resources to those

covered by the National Historic Preservation Act (“NHPA”), 54 U.S.C. § 300101 et seq., because

MOPSA requires the PSC to consider historic and cultural resources that are in the public interest

of Nebraska and not simply reiterate federal agency responsibilities.

PROPOSITIONS OF LAW

1. Agency action taken in disregard of its own rules is arbitrary and capricious. Cain

v . Custer Cty. Bd. of Equal., 298 Neb. 834, 839-840 (2018).

2. Under certain circumstances, agencies can depart from their own rules, but not from

rules that protect the interests of parties or provide them with rights or protections and, when they

do so, the action is invalid. Application of Jantzen, 245 Neb. 81, 90, 511 N.W.2d 504, 512 (1994).

3. The PSC’s rules which apply to all proceedings before it plainly provide “[a] formal

intervenor shall be entitled to participate in the proceeding to the extent of his/her express interest

in the matter” and that participation “shall include, without limitation, presentation of evidence and

argument, cross-examination of witnesses and submission of rebuttal evidence.” 291 Neb. Admin.

Code, ch. 1, § 015.01C (emphasis added).

4. MOPSA requires an application to list the counties and municipalities “through which

the proposed route of the major oil pipeline would be located,” NEB. REV. STAT. § 57-1405(2)(d),

3
and “consideration of alternative routes,” id. § 57-1405(2)(b) and also requires the PSC to consider

“[w]hether any other utility corridor exists that could feasibly and beneficially be used for the route

of the major oil pipeline,” id. § 57-1407(4)(e).

5. MOPSA provides that, with an application, the PSC has only two choices when

entering an order with respect to an application: “approving the application or denying the

application.” Id. § 57-1408(1).

6. When a statute provides for an administrative board to consider an application for a

utility route and “approve or deny the application,” the statute does not provide any power or

authority for that administrative board to select a particular route other than one in the application.

Application of Lincoln Elec. System, 207 Neb. 289, 292, 298 N.W.2d 366, 368 (1980).

7. MOPSA requires that an applicant for a major oil pipeline route “shall publish notice

of the application in at least one newspaper of general circulation in each county in which the major

oil pipeline is to be constructed” and “serve notice of the application upon the governing bodies of

the counties and municipalities” through which the pipeline would be located NEB. REV. STAT. §

57-1405(3).

8. Failure to provide notice in accordance with statutory requirements makes an agency

action invalid. Greeley Airport Authority v. Dugan, 259 Neb. 860, 612 N.W.2d 913 (2000).

9. Statutory provisions for notice and publication of agency proceedings are necessary

to ensure the statute and agency proceedings are constitutional. School Dist. No. 8 v. State Bd. of

Ed., 176 Neb. 722, 730, 127 N.W.2d 458, 463 (1964).

10. Parties with interests and rights which are affected by administrative agency action

are “‘interested parties’ entitled to constitutional due process.” First Fed. Sav. & Loan Ass’n. v.

Dep’t. of Banking, 187 Neb. 562, 568, 192 N.W.2d 736, 740 (1971).

4
11. An applicant for a route under MOPSA “shall have the burden to establish that the

proposed route... would serve the public interest.” NEB. REV. STAT. § 57-1407(4).

12. The burden of proof consists of two separate and distinct elements – the burden of

persuasion and the burden of production, Schneider v. Chavez-Munoz, 616 N.W.2d 46, 58, 9 Neb.

App. 579 (Neb. Ct. App. 2000), the burden of production requiring “parties to present particular

evidence, regardless of whether that evidence actually persuades the finder of fact.” Hopkins v.

Hopkins, 294 Neb. 417, 428, 883 N.W.2d 363, 373 (2016).

13. “[T]he impact of the burden of producing evidence is substantive if the burden is not

met: The party who fails to carry his burden loses on the issue.” In Re Kim, 71 B.R. 1011, 1015-16

(Bankr. C.D. Cal. 1987).

14. When a statute requires a public interest determination and sets forth specific factors

to consider in determining whether a utility route is in the public interest, those factors require

specific evidence, not general statements or representations. Metro. Utilities Dist. of Omaha v.

Aquila, 271 Neb. 454, 712 N.W.2d 280, 286 (2006).

15. MOPSA requires the PSC to determine whether a proposed major oil pipeline is in

the public interest and to evaluate specific factors, including social and cultural issues, to determine

whether it is in the public interest. NEB. REV. STAT. § 57-1407(4).

16. One of the basic rules of statutory construction is that language in a statute is given

its plain and ordinary meaning, which is generally the dictionary definition of the term. Caruso v.

City of Omaha, 222 Neb. 257, 260, 383 N.W.2d 41, 44 (1986); O’Neill Prod. Credit Ass’n v.

Schnoor, 208 Neb. 105, 109, 302 N.W.2d 376, 379 (1981).

17. The NHPA limits “historic property” to sites and resources “included on, or eligible

for inclusion on, the National Register [of Historic Places],” 54 U.S.C. § 300308, while Black’s Law

5
Dictionary defines “public interest” as the “general welfare of the public that warrants recognition

and protection” and “something in which the public as a whole has a stake.” BLACK’S LAW

DICTIONARY.

STATEMENT OF FACTS

On February 16, 2017, TransCanada filed an application with the PSC seeking approval of

a route for its Keystone XL Pipeline pursuant to MOPSA, NEB. REV. STAT. § 57-1401 et seq. (T54).

In its Application, TransCanada only requested approval of the “Preferred Route,” which it stated

was “the subject of [its] Application.” (T61). The Application only requested “an order from the

PSC that the Preferred Route is in the public interest” and did not seek review or approval of any

other route. (T123). The Application did reference the “Mainline Alternative Route,” but only “for

comparison as required by the PSC regulations.” (T62). TransCanada never proposed the Mainline

Alternative Route or requested that the PSC consider it for approval. The Application even stated,

“the Keystone Mainline Alternative Route is not considered preferable or beneficial.” (T72).

On or about March 22, 2017, the Tribe filed a petition to formally intervene in the

proceedings. (T633). At about the same time, the Yankton Sioux Tribe filed its own separate

petition for formal intervention. (T679). The tribes did not file their petitions jointly, each asserted

unique interests, and each was represented by their own legal counsel.

The Ponca Tribe of Nebraska is a federally recognized Indian nation, 83 Fed. Reg. 4,235,

4,238 (2018), which exercises sovereignty and self-government over both its members and its

territory. Congress has legislatively established specific areas where the Tribe and its members

“shall be deemed to be residing on or near a reservation.” Ponca Restoration Act, Pub. L. No. 101-

484, § 5, 104 Stat. 1167, 1168 (1990). Those areas are geographically defined by fifteen specific

counties in Nebraska, South Dakota, and Iowa. Id.; Pub. L. No. 104-109, §12, 110 Stat. 763, 765

6
(1996). Under federal law, the areas where the Tribe is deemed to be on or near a reservation are

where the United States recognizes the Tribe as having governmental jurisdiction. Each

congressionally-designated area “is viewed as an extension of the reservation” where the Tribe

exercises jurisdiction and sovereignty. Miodowski v. Miodowski, No. 8:06-cv-00443-JFB-TDT, at

7-8 (D. Neb. Nov. 19, 2006). In Nebraska, that jurisdictional area consists of Sarpy, Burt, Platte,

Stanton, Holt, Hall, Wayne, Knox, Boyd, Madison, Douglas, and Lancaster Counties. Ponca

Restoration Act, § 5, 104 Stat. at 1168; Pub. L. No. 104-109, §12, 110 Stat. at 765.

TransCanada’s proposed Preferred Route would cross through two of the Tribe’s

jurisdictional areas – Boyd and Holt Counties. (T635). The Mainline Alternative Route would cross

through five of the Tribe’s jurisdictional areas – Boyd, Holt, Madison, Stanton, and Platte Counties.

Id. Madison County is the location of one of the Tribe’s four governmental headquarters, housing

numerous government agencies, a federally-funded transit building, and a federally-funded and

contracted health facility. Ponca Tribe of Nebraska, Office Locations, https://www.poncatribe-

ne.org/contact/office-locations/. It is also the central location of the Tribe’s Court. Ponca Tribe of

Nebraska, Tribal Court, https://www.poncatribe-ne.org/departments/tribal-court/.

In its Petition of Formal Intervention, the Tribe discussed its interests in historic, cultural,

sacred and archaeological resources that would be impacted by TransCanada’s pipeline. (T635).

However, the Tribe also expressly pointed out that its congressionally-designated service areas are

where the Tribe is recognized as exercising sovereignty and self-government, that they are the

equivalent of the Tribe’s formal reservation, and that TransCanada proposed running its oil pipeline

through the Tribe’s territory where it exercises governmental jurisdiction. (T634-T635). The Tribe

expressly asserted its “significant legal interests... as the pipeline will cross through its...

congressionally designated territory and jurisdictional area where it exercises sovereignty.” (T636).

7
On March 31, 2017, the PSC issued its decision on all filed petitions for intervention. The

PSC granted the Tribe “formal intervenor status,” but ignored the Tribe’s asserted legal interests in

the proposed pipeline crossing through its governmental territory, ordering that the Tribe’s “status

shall be limited to social and cultural issues.” (T705). Additionally, despite their asserted different

interests and distinct status as two separate parties and federally recognized tribes, the PSC ordered

that the Tribe and the Yankton Sioux Tribe be treated as one party, “cooperate and combine their

efforts to offer the testimony of one witness,” “collaborate to cross-examine witnesses at the hearing,

not to exceed one-hour of time per witness,” and “submit one joint brief” after the hearing. Id.

On April 12, 2017, the Tribe filed a motion to reconsider the limits on its intervention.

(T796). The Tribe noted its petition for intervention was not limited to social and cultural issues and

asserted a specific interest in the “proposed pipeline routes’ impact on the Tribe’s sovereignty and

self-government.” (T798). The Tribe pointed out that where the pipeline would cross through the

Tribe’s service areas, “the Tribe has primary responsibility for providing health care to its members

and others... [and] regulates and monitors the environment... through its Environmental Protection

Department, a governmental agency of the Tribe.” Id. The Tribe explained its interests “are similar

to any other government through whose jurisdiction the pipeline would route.” Id.

The Tribe also requested that the PSC reconsider requiring the Tribe and Yankton Sioux

Tribe to present a single witness and combine cross-examination. (T799). The Tribe noted that the

PSC failed “to recognize that the Ponca Tribe of Nebraska and the Yankton Sioux Tribe are two

different nations with different languages, different cultures, different traditions, and different

histories unique to each tribe” and that “[s]ites and resources that are historic or significant to one

tribe are not necessarily historic or significant to the other tribe.” Id. On April 13, 2017, the PSC

denied the Tribe’s motion to reconsider without even bothering to acknowledge or discuss a single

8
issue raised by the Tribe, blatantly ignoring the Tribe’s asserted governmental interests and the

reality that it severely limited both tribes’ ability to assert their independent interests. (T815).

However, the PSC did later permit the two tribes to present two combined witnesses. (T1059).

The PSC ultimately held a hearing on TransCanada’s Application from August 7 to 10, 2017.

(T6154). During the hearing, TransCanada presented its evidence on the Preferred Route. At no

time did it present any evidence supporting the Mainline Alternative Route. Each route would cross

a recently discovered earthlodge village on one Landowner’s property, (CUL19,17-18:1048-49;

1050:17-1053:5; 1078:5-1079:10), and historically identified Ponca village sites (CUL8,2:1175;

CUL9,1:1176; 1175:25-1176:3; 1177:15-1178:3). Each route would also cross through the location

where a historic variety of Ponca corn is planted and grown – a variety of corn that would otherwise

be wiped out. (756:1-4,8-13). Both routes would also cross the Ponca Trail of Tears in at least two

locations. (CUL1,1:618-619; CUL16,1:1151; 619:23-620:11; 1153:7-1154-6). The Ponca Trail of

Tears is the path the Tribe was forced to walk from its home near Niobrara to Oklahoma when the

United States attempted to forcefully remove the Tribe from its lands in 1877. (CUL19,10:17-18;

1079:11-1079:18). Campsites exist along the Trail and nine Tribal members died and were buried

along the Trail. (1079:20-1079:23; 1080:4-1050:23). Every witness who was asked identified the

Trail as a significant part of Nebraska’s history and public interest. (818:12-819:2; 876:22-876:25;

899:1-899:5; 919:6-919:23; 933:3-933:15; 1077:22-78:1). No witness testified otherwise.

SUMMARY OF ARGUMENT

The Tribe is a sovereign government pre-dating the United States possessing governmental

authority recognized and protected by federal law. When the Tribe intervened in the proceedings

before the PSC, it expressly asserted its interest in the fact the Keystone XL Pipeline will run through

the areas where it exercises its sovereignty and governmental jurisdiction. Yet, the PSC refused to

9
allow the Tribe to discuss or present any evidence on those significant interests and federally

protected rights, limiting the Tribe to “social and cultural issues.” But, the PSC’s own rules provide

that a formal intervenor shall be entitled to participate in the proceeding to the extent of his/her

express interest in the matter. Limiting the Tribe to “social and cultural issues” when it expressed

other interests was a direct violation of the PSC’s own rules.

In addition, the PSC limited the number of witnesses and amount of cross-examination the

Tribe could present. Yet, the PSC’s rules plainly provide an intervenor’s participation shall include

presentation of evidence and cross-examination without limitation. The PSC purported to limit the

Tribe’s participation pursuant to a provision of the Administrative Procedure Act (“APA”) generally

permitting agencies to limit an intervenor’s presentation of evidence. But, in promulgating its rules,

the PSC did not preserve the ability to exercise that authority under the APA, instead providing that

it would permit formal intervenors to present evidence and cross-examination “without limitation.”

The limits on the Tribe’s presentation of evidence was also a direct violation of its rules.

Aside from the limits on the Tribe’s intervention, the PSC had no authority to approve the

Mainline Alternative Route. TransCanada never requested that the PSC approve that route and the

purported approval of that route blatantly violated MOPSA’s requirements of notice and service on

governments and landowners along the Mainline Alternative Route. MOPSA only permits the PSC

to either approve or deny an application. It grants no authority for the PSC to approve a route for

which no application was ever made. It also mandates that counties and municipalities through

which the pipeline would run be served with the application, and notice be published in local

newspapers. None of that was done with the Mainline Alternative Route. But, those provisions are

not optional or subject to waiver. They are necessary requirements and steps to ensure that MOPSA

and the PSC’s proceedings comply with due process under the state and federal Constitutions. The

10
PSC’s purported approval of route without an application and without proper notice and service to

those impacted by that route is a violation of both MOPSA and the requirements of due process.

Regardless of the PSC’s authority to consider or approve the Mainline Alternative Route

without an application or proper notice and service, the PSC could not approve the Mainline

Alternative Route under MOPSA because that statute requires TransCanada to prove that the route

is in the public interest. That burden of proof includes first and foremost TransCanada’s burden of

production – the obligation of TransCanada to at least present some evidence in support of the

Mainline Alternative Route. But, TransCanada never bothered to present any evidence whatsoever

related to the Mainline Alternative Route. Instead, it only presented evidence on its Preferred Route,

admitting it never even bothered to study the Mainline Alternative Route, only discussed it for

comparison purposes, and believed it to not be in the public interest. Under those circumstances,

the PSC simply could not approve the Mainline Alternative Route as a matter of law. If the PSC

wanted to consider the Mainline Alternative Route, it had to expressly deny the Preferred Route and

invite TransCanada to apply for the Mainline Alternative Route.

Finally, in considering impacts on historic and cultural resources, the PSC entirely abandoned

its duty to consider matters in the public interest. Instead, the PSC simply bowed down to federal

agencies with respect to historic and cultural resources, performing no review under MOPSA. The

entire purpose of MOPSA was for the PSC to actually go beyond the considerations of federal

agencies and ensure that consideration of any route of a major oil pipeline took account of the

specifics and uniqueness of Nebraska. The PSC’s abandonment of its primary purpose to serve the

interests of the public by acceding to federal agencies was entirely in error, requiring the PSC to go

back and conduct a proper review of the impacts of the Keystone XL Pipeline on historic and cultural

resources in accordance with the requirements of MOPSA.

11
ARGUMENT

I. THE PSC VIOLATED ITS RULES GOVERNING INTERVENTION BY LIMITING
THE SCOPE OF THE TRIBE’S INTERVENTION AND ITS ABILITY TO PRESENT
EVIDENCE, MAKING THE LIMITS ARBITRARY AND CAPRICIOUS.

The Tribe formally intervened in the proceedings below pursuant to the PSC’s own rules

governing intervention, 291 Neb. Admin. Code, ch. 1, § 015.01C. That rule requires the PSC to

allow a formal intervenor to participate to the full extent of its expressed interests. Yet, the PSC

violated that rule by limiting the Tribe to “social and cultural issues” and refusing to allow the Tribe

to participate with respect to the governmental and environmental issues expressed in the Tribe’s

petition for formal intervention. At the same time, while that same rule does not permit the PSC to

limit a formal intervenor’s presentation of evidence or cross-examination, the PSC limited the

number of witnesses the Tribe could present and the amount of time it could cross-examine.

Fundamentally, agencies must follow their rules. Agency action taken in disregard of its own

rules is arbitrary and capricious. Cain v . Custer Cty. Bd. of Equal., 298 Neb. 834, 839-840 (2018);

Blakely v. Lancaster County, 284 Neb. 659, 825 N.W.2d 149 (2012). With respect to the Tribe’s

intervention, the PSC entirely failed to follow its own rules. While the PSC purported to limit the

Tribe’s participation pursuant to the Nebraska APA, (T703, T816), it cannot utilize optional general

provisions in the APA to supplant its own specific rules governing proceedings before it. The PSC’s

limitations on the Tribe’s intervention were a violation of its rules and arbitrary and capricious.

A. The PSC Violated its Rules Governing Intervention by Limiting the Tribe to
“Social and Cultural Issues” When it Expressed Other Interests.

The PSC’s rules governing formal intervention provide that a “formal intervenor shall be

entitled to participate in the proceeding to the extent of his/her express interest in the matter.” 291

Neb. Admin. Code, ch. 1, § 015.01C (emphasis added). The language of the rule is unambiguous.

12
And though it is a rule and not a statute, “for purposes of construction, a rule or order of an

administrative agency is treated like a statute.” Chase 3000 v. Nebraska Pub. Ser. Comm., 273 Neb.

133, 142, 728 N.W.2d 560, 568 (2007). Consequently, if the language of a rule is clear, the words

“are the end of any judicial inquiry regarding its meaning.” Id. at 140, 728 N.W.2d at 567. The rule

applies to “any proceeding pending before the Commission.” 291 Neb. Admin Code, ch. 1, §

015.01. In terms of the scope of a formal intervenor’s participation, it is entirely clear and is

mandatory – a formal intervenor “shall be entitled” to participate to “the extent of his/her express

interest in the matter.” Id. § 015.01C. The rule in no manner allows the PSC to limit a formal

intervenor’s participation to only “some” of their express interests – it must permit a formal

intervenor to participate with respect to all of “his/her express interest in the matter.”

The Ponca Tribe of Nebraska is a federally-recognized Indian tribe whose existence pre-dates

by centuries that of the United States and Nebraska, and which possesses unique attributes of

sovereignty of which it has never been divested. “The present right of tribes to govern their

members and their territories flows from a preexisting sovereignty limited, but not abolished, by their

inclusion within the territorial bounds of the United States.” FELIX S. COHEN’S HANDBOOK OF

FEDERAL INDIAN LAW 231 (Rennard Strickland, et al. eds., 1982). As a government pre-dating the

United States, the Tribe retains “inherent powers of a limited sovereignty which has never been

extinguished.” United States v. Wheeler, 435 U.S. 313, 322 (1978).

The Tribe’s inherent powers and sovereignty extend “over both [its] members and [its]

territory.” United States v. Mazurie, 419 U.S. 544, 557 (1975). The Tribe’s territory has been

expressly defined by the United States as encompassing fifteen counties in three different states. The

Keystone XL Pipeline is proposed to cross through up to five of the counties where the Tribe is

recognized as having jurisdiction over its members and its territory. The Tribe’s petition for formal

13
intervention expressly pointed out that it is recognized as exercising sovereignty and self-government

over those congressionally-designated areas, that they are the equivalent of the Tribe’s reservation,

and that the pipeline would run through areas where it exercises governmental jurisdiction and

authority. (T634-T635). The Tribe expressly asserted its “significant legal interests... as the pipeline

will cross through its... congressionally designated territory and jurisdictional area where it exercises

sovereignty.” (T636). But, the PSC simply ignored the Tribe’s “express interest” and limited it

solely to “social and cultural issues,” refusing to allow the Tribe to participate with respect to its

governmental issues, which include health, environmental, natural resources, law enforcement, and

every other interest any government would have with respect to a major tar sands pipeline traversing

its jurisdiction. The Tribe’s governmental interests are on par with those of the State as well as

counties and municipalities where the pipeline would run. But, the PSC acted as though the Tribe

never raised its governmental status and interests, relegating it to only “social and cultural issues.”

The PSC’s limitation on the scope of the Tribe’s intervention is completely contrary to the

Tribe’s right to participate fully to the extent of its interests. The PSC asserted that it could limit the

Tribe’s participation pursuant to Section 84-912.02(3) of the APA, (T703, T816), but that is entirely

incorrect. Setting aside the language of the PSC’s rules and pretending it can selectively choose

when to follow them, that section of the APA does not permit an agency to reduce the scope of an

intervenor’s participation below its expressed interests. That section of the APA provides the same

standard as the PSC’s rules for an intervenor’s scope of participation: “issues in which the intervenor

has a particular interest demonstrated by the petition.” NEB. REV. STAT. § 84-912.02(3)(a). So, the

APA provides no basis for the PSC to limit the scope of the Tribe’s intervention.

The PSC had no authority to limit the Tribe to social and cultural issues when the Tribe

expressed governmental, sovereignty, self-government, environmental, and natural resource interests.

14
The PSC’s rules and the APA both require the PSC to allow the Tribe to participate with respect to

all of its expressed interests. It is true, under certain circumstances, agencies are permitted to depart

from their own regulations. Application of Jantzen, 245 Neb. 81, 90, 511 N.W.2d 504, 512 (1994).

But, that authority does not apply to the scope of the Tribe’s intervention. Agencies may waive or

depart from procedural rules, such as time limits, but not rules that protect the interests of parties or

provide them with substantive rights or protections. Id. “The applicability of an agency’s discretion

in waiving a regulation turns on whether it was intended to aid the agency or, instead, to benefit

outside parties. [] Agency violations of regulations which have been promulgated to benefit a party,

by entitling the party to a substantive benefit or exemption or to a procedural safeguard, have been

invalidated by courts.” Id. at 92, 511 N.W.2d at 513 (internal citations omitted).

The PSC rule governing the scope of a formal intervenor’s participation is not a procedural

rule intended to benefit the PSC. On the contrary, it is a rule promulgated precisely to benefit

outside parties and entitling them to a substantive benefit – full participation to the extent of their

express interests. The regulation itself provides that a formal intervenor is “entitled” to participate

to the extent of its interests. It establishes a substantive right and benefit in favor of formal

intervenors. As such, it is not a rule subject to waiver or departure. The Tribe has a substantive right

under the PSC’s rules to participate to the full extent of its interests. The PSC’s purported limit of

the Tribe to matters less than its express interests must be overturned as contrary to the PSC’s rules

and the APA and, therefore, arbitrary and capricious.

B. The PSC Violated its Own Rules Governing Intervention by Limiting the
Tribe’s Presentation of Evidence, Argument, and Cross-examination.

Not only did the PSC violate its rule with the scope of the Tribe’s participation, it also

violated its rule with respect to the evidence the Tribe could present. The PSC limited the Tribe,

15
jointly with another intervenor, to two witnesses and one hour of cross-examination. But, that was

entirely contrary to the PSC’s rules. The PSC’s rule governing a formal intervenor’s participation

plainly provides that it “shall include, without limitation, presentation of evidence and argument,

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

1, § 015.01C (emphasis added). Once again, the language is clear – the evidence, argument, and

cross-examination “shall” be “without limitation.” Yet, the PSC precisely did the opposite – it

limited the Tribe’s evidence to two witnesses and limited its cross-examination to one hour, both to

be shared with another party.

The PSC, once again, suggested that it had the authority to limit the Tribe’s participation

under the APA. (T703, T816). And, it is true that the APA provides that, generally, a hearing officer

of an administrative agency may limit an intervenor’s “use of discovery, cross-examination, and

other procedures so as to promote the orderly and prompt conduct of the proceedings” and may even

require “two or more intervenors to combine their presentation of evidence and argument, cross-

examination, discovery, and other participation in the proceedings.” NEB. REV. STAT. § 84-

912.02(3)(b), (c). But, the PSC cannot avail itself of those provisions of the APA.

The APA is a general statute applicable to all administrative agencies, but the PSC’s rule is

specific to “any proceeding pending before the Commission.” 291 Neb. Admin Code, ch. 1, §

015.01. It is a fundamental rule of construction that when two provisions of law can apply to an

issue and they conflict, the more specific law overrides the general one. Sanitary & Imp. Dist. v.

Neb. Public Power Dist., 253 Neb. 917, 923, 573 N.W.2d 460, 465 (1998). In this case, the PSC’s

own rule is mandatory and specific to intervention in proceedings before it; the APA is optional and

general to intervention with agencies broadly. The PSC cannot use an optional general provision in

the APA to override its specific mandatory rule applicable to proceedings before the PSC.

16
The PSC’s rule is mandatory – it provides an intervenor’s presentation of evidence “shall”

be “without limitation.” The APA provision, on the other hand, is discretionary. In other words, the

APA leaves administrative agencies the option of allowing limitations on intervenors – it merely says

a hearing officer “may impose conditions” and those “[c]onditions may include.” NEB. REV. STAT.

§ 84-912.02(3) (emphasis added). That language is in contrast to the same section’s mandatory

language that a hearing officer “shall grant a petition for intervention.” Id. § 84-912.02(1) (emphasis

added). The legislature knew how to mandate an agency’s actions with respect to intervention versus

making its actions optional. And that distinction is important here – the legislature did not want to

allow agencies to prohibit intervention, but it wanted to allow agencies flexibility with respect to

handling the scope and participation of intervention. If the legislature had intended agencies to

always maintain the authority to limit the presentation of evidence, it would have used appropriate

language, such as saying a hearing officer “shall have the authority” to limit presentation. But, it did

not do so. Instead, it simply left agencies the option of limiting the participation of intervenors as

provided in the statute, choosing not do so, or something in between.

In essence, with respect to limiting participation of intervenors, the APA permits agencies

to vary their practice from the provisions of the statute. And that is precisely what the PSC chose

to do when it promulgated its rules governing intervention in proceedings before it. The PSC’s rules

certainly do preserve the PSC’s authority to limit intervenors’ “to designated issues in which the

intervenor has a particular interest” under Section 84-912.02(3)(a) – the PSC rule provides for an

intervenor’s participation “to the extent of his/her express interest in the matter,” 291 Neb. Admin

Code, ch. 1, § 015.01C. But, the PSC did not preserve its ability to limit an intervenor’s “use of

discovery, cross-examination, and other procedures” under Section 84-912.02(3)(b). Instead, the

PSC decided an intervenor’s participation “shall include, without limitation, presentation of evidence

17
and argument, cross-examination of witnesses and submission of rebuttal evidence,” Id. In other

words, it chose to not allow limitations on presentation in the manner the APA would allow.

If the PSC wanted to retain its ability to limit an intervenor’s presentation of evidence, it

needed to draft its rules to preserve that authority. But, the PSC chose to take a different approach

– it waived its authority to limit an intervenor’s presentation of evidence under the APA by

promulgating a rule that says an intervenor’s presentation of evidence shall be “without limitation.”

The PSC cannot promulgate a specific rule applicable to proceedings before it and then decide not

to apply that rule to those proceedings – to do so is arbitrary and capricious.

Again, under certain circumstances, administrative agencies can depart from their own rules,

but not rules that protect the interests of parties or provide them with substantive rights. Application

of Jantzen, 245 Neb. at 90, 511 N.W.2d at 512. When an agency violates its own regulations which

provide a party a substantive benefit, the agency action is invalid. Id. at 92, 511 N.W.2d at 513. And

the PSC’s rule governing an intervenor’s presentation of evidence “without limitation” is precisely

a substantive benefit to parties who intervene. Consequently, the PSC cannot depart from that rule

and the fact it did so by limiting the number of the Tribe’s witnesses and the length of its cross-

examination was a clear violation of the PSC’s rules and must be overturned.

II. THE PSC HAD NO AUTHORITY TO APPROVE THE MAINLINE ALTERNATIVE
ROUTE AND, EVEN IF IT DID, IT COULD NOT DO SO SINCE TRANSCANADA
DID NOT PRESENT ANY EVIDENCE IT IS IN THE PUBLIC INTEREST.

TransCanada’s Application requested “an order from the PSC that the Preferred Route is in

the public interest.” (T123). The Mainline Alternative Route was mentioned in the Application, but

only “for comparison as required by the PSC regulations.” (T62). Notably absent from the

Application was any information required by MOPSA or PSC rules for the Mainline Alternative

Route. It simply was not part of the Application. TransCanada recognized this when it requested

18
that the PSC reconsider its decision and allow it to provide notice and produce evidence on the

Mainline Alternative Route. (T6213). Yet, the PSC purported to approve that route despite the fact

that TransCanada never requested approval, never provided the required application information,

never provided proper notice and service, and never presented any evidence in support of that route.

Without the legally required information, legally required notice and service, and legally required

meeting of TransCanada’s burden of proof, the PSC simply could not approve the Mainline

Alternative Route and, consequently, its decision must be overturned as a matter of law.

A. The PSC Could Not Approve the Mainline Alternative Route Because
Transcanada Did Not Apply for Approval of That Route.

TransCanada applied only for a single route – the route it termed the “Preferred Route.” It

at no time applied for or requested approval of the Mainline Alternative Route and no reasonable

construction of the Application supports any request for approval of any route other than the

Preferred Route. The Application begins very straightforwardly stating, TransCanada “submits this

application for approval of the Preferred Route as defined in this application.” (T54). The

Application then sets forth in separate sections each item required by MOPSA and the PSC’s rules

for the Preferred Route – the name and address of the pipeline carrier, description and map of the

proposed route, reasons for selecting the proposed route, a list of governing bodies, etc. NEB. REV.

STAT. § 57-1405(2); 291 Neb. Admin. Code, ch. 9, § 023.02A.

In each of those sections of the Application, the required information is only provided for

“the Preferred Route that is the subject of this Application.” (T61). For example, in accordance with

MOPSA and the PSC’s rules, the Application lists the counties and municipalities “through which

the proposed route of the major oil pipeline would be located.” NEB. REV. STAT. § 57-1405(2)(d);

291 Neb. Admin. Code, ch. 9, § 023.02A4. However, the Application only lists the counties where

19
the Preferred Route would be located. (T74). Noticeably absent from TransCanada’s list of counties

are Madison, Stanton, Platte, Colfax, Butler, and Seward Counties or any municipalities in those

counties – all counties where the Mainline Alternative Route would be located, but not the Preferred

Route. (T74, T64). The Application’s “plan to comply with the Oil Pipeline Reclamation Act” only

discusses “lands disturbed by construction along the Preferred Route” and “manag[ing] erosion on

the Preferred Route.” (T75). There is no discussion or plan to comply with the Oil Pipeline

Reclamation Act for the Mainline Alternative Route. Id. Impacts on natural resources only involve

the Preferred Route, nothing about impacts of the Mainline Alternative Route. (T83-T90).

The Mainline Alternative Route is most certainly discussed in the Application, but not as a

proposed route. The Application states that TransCanada identified “two alternative routes for

comparison as required by the PSC regulations... the Sandhills Alternative Route and Keystone

Mainline Alternative Route.” (T62). The primary discussion of the Mainline Alternative Route

appears in the section of the Application dedicated to “consideration of alternative routes.” (T67).

The Application then uses the Mainline Alternative Route to allege that it demonstrates the Preferred

Route is the best route, concluding “the Keystone Mainline Alternative Route is not considered

preferable or beneficial in relation to the Preferred Route.” (T72). The only other discussion of the

Mainline Alternative Route in the Application is in reference to considering using existing utility

corridors for TransCanada’s pipeline. (T119). Nowhere in the Application is there any suggestion

of considering the Mainline Alternative Route as a proposed route or even providing the required

information to consider the existence of an application for the Mainline Alternative Route. It exists

in the Application solely for comparison purposes, not for the PSC’s consideration.

While the Application clearly only seeks approval of the Preferred Route, it more importantly

only provides the statutory and regulatory requirements for the Preferred Route. Nowhere in the

20
Application are any of the application requirements for the Mainline Alternative Route. MOPSA

mandates that each of those requirements be included in an application; it is not optional or

suggestive. NEB. REV. STAT. § 57-1405(2). And MOPSA provides that, with an application, the

PSC has only two choices when entering an order with respect to an application – “approving the

application or denying the application.” Id. § 57-1408(1). MOPSA requires the order to include “the

reasons for approving or denying the application,” id., and provides for subsequent actions

depending on “[i]f the commission approves the application” or [i]f the commission denies the

application,” id. § 57-1408(3), (4). There is nothing in MOPSA or the PSC’s rules that permits the

PSC to select a different route or designate any route other than the route in the application. When

the PSC reviews an application under MOPSA, it can approve the application or it can deny the

application – it cannot rewrite the application or grant an application that was never filed. But, that

is precisely what it did in this case – it purported to approve a route that had no application to

approve or deny. That was simply beyond its authority.

The PSC was completely aware of the fact that the Application did not request approval of

the Mainline Alternative Route or include the required informationfor that route. In its order

granting interventions, the PSC “encourage[d] all parties to provide evidence regarding the feasibility

and potential benefits and/or drawbacks of the Keystone Mainline Alternative Route.” (T708). The

PSC said it was acting pursuant to Neb. Rev. Stat. § 57-1407(4)(e), which provides that, in reviewing

an application, the PSC “shall evaluate... [w]hether any other utility corridor exists that could

feasibly and beneficially be used.” However, that subsection does not provide authority for the PSC

to grant a route using another utility corridor. That subsection is an element of consideration for the

PSC in deciding whether to approve or deny an application. And the PSC’s order is essentially that

– an encouragement to present evidence on the Mainline Alternative Route to compare it to the

21
Preferred Route for purposes of determining whether to deny the Application because another

feasible utility corridor exists. If the PSC determines that there is another utility corridor that could

be used, then the PSC must deny the application on the grounds another utility corridor exists. Then,

the applicant “may amend the denied application in accordance with the findings of the commission

and submit the amended application.” NEB. REV. STAT. § 57-1408(4). It is a factor of evaluation

of the route applied for and a grounds for denial, not an authority to select a different route.

“[A]n administrative board has no power or authority other than that specifically conferred

upon it by statute or by construction necessary to accomplish the purpose of the act.” Application

of Lincoln Elec. System, 207 Neb. 289, 292, 298 N.W.2d 366, 368 (1980). When a statute provides

for an administrative board to consider an application for a utility route and “approve or deny the

application,” this Court has held that the statute does not provide any power or authority for that

administrative board to select a particular route other than one in the application. Id. That is

precisely the case here. The statutory language of MOPSA is clear and unambiguous – it requires

the PSC to consider whether a proposed route in an application is in the public interest and, based

on that determination, either approve or deny the application. It nowhere provides authority for the

PSC to select a different route or consider an alternative route summarily presented solely for

comparison purposes. The PSC simply could not approve the Mainline Alternative Route without

an application for that route and its decision must be overturned. If that route is to be approved,

TransCanada must file an application for it with the PSC.

B. The PSC Could Not Consider or Approve the Mainline Alternative Route
Because Proper Notice and Service Was Not Made on Landowners,
Governments, or Other Interested Parties along the Mainline Alternative Route.

In addition to the Application not including the Mainline Alternative Route, the PSC’s

purported approval of that route presents significant and serious issues of statutory compliance and

22
due process. MOPSA requires that an applicant for a major oil pipeline route “shall publish notice

of the application in at least one newspaper of general circulation in each county in which the major

oil pipeline is to be constructed.” NEB. REV. STAT. § 57-1405(3). TransCanada did publish notice

of the Application, but only in Antelope, Boone, Boyd, Fillmore, Holt, Jefferson, Keya Paha,

Merrick, Nance, Polk, Saline, and York Counties. (T521). These are precisely the counties

TransCanada listed in its Application where the Preferred Route would be located. (T74).

TransCanada never published notice of the application in newspapers of general circulation in

Madison, Stanton, Platte, Colfax, Butler, or Seward Counties – all counties impacted by the Mainline

Alternative Route, but not the Preferred Route.

Along with newspaper publication, MOPSA also requires an applicant to “serve notice of the

application upon the governing bodies of the counties and municipalities” through which the pipeline

would be located. NEB. REV. STAT. § 57-1405(3). Again, TransCanada did serve the Application

– on Antelope, Boone, Boyd, Fillmore, Holt, Jefferson, Keya Paha, Merrick, Nance, Polk, Saline,

and York Counties as well as the Village of McColl and Steel City. (T485-T486). And, again, these

are only the counties and municipalities covered by the Preferred Route. The Application was not

served on the governing bodies of Madison, Stanton, Platte, Colfax, Butler, or Seward Counties or

any municipalities in those counties.

There was absolutely no publication or service for any of the counties or municipalities along

the Mainline Alternative Route where it deviates from the Preferred Route. This is a clear and plain

failure to meet the requirements of MOPSA and by itself prohibits the PSC from approving that

route. Failure to provide notice in accordance with statutory requirements makes an agency action

invalid. Greeley Airport Authority v. Dugan, 259 Neb. 860, 612 N.W.2d 913 (2000). But, the

provisions for notice and publication in MOPSA are also necessary requirements of due process.

23
Those provisions for notice and service ensure that MOPSA and PSC proceedings pursuant to it are

constitutional. School Dist. No. 8 v. State Bd. of Ed., 176 Neb. 722, 730, 127 N.W.2d 458, 463

(1964). “It is a familiar rule that a statute which does not provide for notice and hearing to those

whose interests would necessarily be affected by the exercise of a granted power is violative of the

due process clauses of the state and federal Constitutions.” Id. Thus, the requirement of notice and

service under MOPSA is not a mere irrelevant procedural requirement that can be ignored.

Parties with interests and rights which are affected by agency action are “‘interested parties’

entitled to constitutional due process.” First Fed. Sav. & Loan Ass’n. v. Dep’t. of Banking, 187 Neb.

562, 568, 192 N.W.2d 736, 740 (1971). The failure of the Applicant and the PSC to provide proper

notice and service under MOPSA in the counties impacted by the Mainline Alternative Route

violated the due process rights of the counties, municipalities, landowners, and the Tribe. The PSC

could not dispense with, waive, or excuse the notice and service requirements of MOPSA. “Due

process of law requires notice and an opportunity to be heard, as a matter of right and not by the let

or leave of administrative officers or agencies.” Id.

It is true the PSC sent letters to the counties and municipalities where the Mainline

Alternative Route would be located, (e.g., T1003), but those letters do not suffice to comply with

MOPSA. MOPSA requires formal service of the application itself. NEB. REV. STAT. § 57-1405(3).

The letters the PSC sent to counties and municipalities along the Mainline Alternative Route did not

include the Application and only requested “the Board’s views” and “invite[d] the Board[s] to

participate in any or all of these meetings and/or provide comments to the Commission in written

form.” (E.g., T1003). The letters were not formal notice or service. By their own terms, they were

sent by the PSC for the purpose of complying with MOPSA’s requirement that the PSC consider the

views of local governments, not formal service under the Act. E.g., id.

24
Furthermore, letters to county and municipal governments requesting comments cannot

substitute for notice to landowners and others affected by the Mainline Alternative Route. MOPSA

requires publication of notice of the application in a newspaper of general circulation in the affected

counties. NEB. REV. STAT. § 57-1405(3). That publication is designed to inform individuals in those

counties of the application and the proposed pipeline, provide those individuals with an opportunity

to intervene, and assist with constitutional due process compliance. Even if the PSC’s letters to local

governments could be considered to meet constitutional due process requirements for local

governments, they do not suffice to avoid the violation of the due process rights of landowners, other

members of the public, and the Tribe and its members in those counties. And the impact of that

failure to provide proper notice to interested parties in those counties is evident from the parties who

intervened – the landowners are limited to those along the Preferred Route; no landowners along the

Mainline Alternative Route where it deviates from the Preferred Route ever intervened.

The failure of proper notice and service within the counties impacted by the Mainline

Alternative Route by itself means the PSC had no authority to approve the Mainline Alternative

Route and automatically invalidates the PSC’s decision on statutory and constitutional grounds.

“The statute requires the agency to afford notice and hearing... [I]f notice and hearing in such a case

are not afforded, the power to act does not exist.” School Dist. No. 8, 176 Neb. at 731, 127 N.W.2d

at 464. The PSC had no power to approve the Mainline Alternative Route and its order is void. Id.

Consequently, the Court must vacate the approval of the Mainline Alternative Route.

C. Even If the PSC Could Consider the Mainline Alternative Route, it Could Not
Approve it Because TransCanada Did Not Provide Evidence for That Route.

There can be no serious question that the PSC had no authority to approve the Mainline

Alternative Route without an appropriate application, notice, service, and due process. But, even

25
if the PSC did have the authority, it could not approve the Mainline Alternative Route because

TransCanada in no manner met its burden of proving that route is in the public interest. MOPSA

expressly and unambiguously provides that 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). Consequently, if the PSC could grant the Mainline Alternative Route, it could only

do so if TransCanada proved that the Mainline Alternative Route would serve the public interest.

The burden of proof consists of two separate and distinct elements – the burden of persuasion

and the burden of production. Schneider v. Chavez-Munoz, 9 Neb. App. 579, 616 N.W.2d 46, 58

(Neb. Ct. App. 2000). The burden of persuasion is the part of the burden of proof where

TransCanada had to convince the PSC the proposed route is in the public interest. Hopkins v.

Hopkins, 294 Neb. 417, 428, 883 N.W.2d 363, 373 (2016). But, more importantly here, the burden

of production “requires parties to present particular evidence, regardless of whether that evidence

actually persuades the finder of fact.” Id. In other words, the burden of production is “a party’s

obligation to come forward with evidence to support its claim.” Office of Workers’ Comp. v.

Greenwich Collieries, 512 U.S. 267, 272 (1994).

The burden of production is fundamental. It is the legal standard which must be met before

the PSC can even consider approving the Mainline Alternative Route. Schneider, 616 N.W.2d at

58. It is not an issue of fact, but an issue of law. Id. The PSC could not even consider whether

TransCanada had meet its burden of persuasion unless and until TransCanada met its initial burden

of production. Celotex Corp. v. Catrett, 477 U.S. 317, 330-31 (1986) (Brennan, J., dissenting).

“[T]he impact of the burden of producing evidence is substantive if the burden is not met: The party

who fails to carry his burden loses on the issue to which the burden applies, and the ultimate burden

of persuasion... plays no role.” In Re Kim, 71 B.R. 1011, 1015-16 (Bankr. C.D. Cal. 1987).

26
Despite the PSC informing TransCanada it wanted evidence on the Mainline Alternative

Route, (T708), TransCanada never bothered to present any such evidence. Each and every one of

TransCanada’s witnesses only discussed the Preferred Route. Tony Palmer said he was only

providing “testimony in support of Keystone’s request that it receive approval of the Preferred

Route.” (KXL-2,2:53,58) (emphasis added). Ernie Goss “prepared a socio-economic analysis of the

impacts of the Keystone XL Pipeline on the State of Nebraska and the counties through which the

Preferred Route will cross.” (KXL-4,2:53,58) (emphasis added). Sandra Barnett said she was

“offering... testimony in support of the Project’s application, which seeks approval for the Preferred

Route.” (KXL-5,2:53,58) (emphasis added). John Beaver testified he was responsible for

“managing and participating in reclamation planning and noxious weed and special-status species

surveys on the Preferred Route” and has “overseen the design of the reclamation and revegetation

plan for the Preferred Route.” (KXL-6,2:53,58) (emphasis added). Michael Portnoy “assisted

Keystone with preparing its application for approval of the Preferred Route.” (KXL-7,2:53,58)

(emphasis added). The only witness that even mentioned the Mainline Alternative Route was John

Schmidt, but only to say that route does not “confer[] a distinct environmental advantage over the

Preferred Route.” (KXL-8,2-3:53,58). In all other respects, he only discussed the Preferred Route.

TransCanada’s exhibits similarly only reference the Preferred Route – the Environmental Impact

Statements submitted from the Department of State (“DOS”) and Nebraska Department of

Environmental Quality (“NDEQ”) merely review the Preferred Route without any specific

consideration of the Mainline Alternative Route. (KXL-19,1-7500:53,58, KXL-20,1-1826:53,58).

Even on rebuttal, each witness TransCanada presented only discussed the Preferred Route.

(E.g., KXL-11,1-10:1201,1203); KXL12,1-3:1199,1201). Erin Salisbury testified about conducting

shovel tests, literature searches, and field surveys for cultural and historic resources, but only along

27
the Preferred Route. (KXL-14,4-5:1098,1100). In his rebuttal testimony, Mr. Schmidt did again

mention the Mainline Alternative Route, but once more only to demonstrate it is not in the public

interest, noting the Mainline Alternative Route impacts more threatened and endangered species and

crosses more highly erodible soils. (KXL-13,1-2,6-10:1192,1197).

Even when questioned about the Mainline Alternative Route, TransCanada’s witnesses

admitted that there was no evidence to present. On cross-examination, Mr. Portnoy admitted

TransCanada conducted no depth of groundwater or soil permeability studies along the Mainline

Alternative Route. (523:8-13). Ms. Kothari acknowledged that the NDEQ, the Department of

Natural Resources, the Department of Revenue, the Department of Roads, the Game and Parks

Commission, the Oil and Gas Conservation Commission, the State Historical Society, the Fire

Marshal, and the Board of Educational Lands & Funds were never even asked by TransCanada to

evaluate or study the Mainline Alternative Route. (639:16-641:15). Ms. Salisbury also admitted that

the Tribe was correct in stating that TransCanada never bothered to conduct historical or cultural

resource surveys along the Mainline Alternative Route. (1108:7-18). She confirmed that, indeed,

TransCanada believed such surveys “are not required,” presumably because TransCanada never

applied for and never intended to introduce any evidence in support of that route. Id.

This is not a question of whether TransCanada’s evidence was sufficient or persuasive, it is

about the legal issue of TransCanada presenting something – anything – in support of the Mainline

Alternative Route. TransCanada had the affirmative duty to prove that the Mainline Alternative

Route is in the public interest. NEB. REV. STAT. § 57-1407(4). But, it never applied for, requested,

studied, or presented any evidence in support of it. When it mentioned the Mainline Alternative

Route, it discounted it and reinforced its claim it was not in the public interest. “[A] party is not

permitted to prevail on an issue... unless the party introduces a certain quantum of evidence sufficient

28
to put his opponent to the burden of producing evidence.” In Re Kim, 71 B.R. at 1016. And without

the introduction of that evidence, there is no way the PSC could find the Mainline Alternative Route

is in the public interest – the very standard required to approve an application.

TransCanada’s failure to produce evidence in support of the Mainline Alternative Route is

a legal failure which prevents the PSC from even considering whether it was in the public interest.

Schneider, 616 N.W.2d at 58. Furthermore, when a statute requires a public interest determination

for a utility route and sets forth specific factors to consider, as MOPSA does, this Court has held

those factors require specific evidence, not general statements or representations. Metro. Utilities

Dist. of Omaha v. Aquila, 271 Neb. 454, 712 N.W.2d 280, 286 (2006). In particular, the Court has

specifically rejected the notion that the factors can be considered met by an applicant merely

considering or paying attention to the factors later during construction or operation – the factors

require specific study and analysis. Id. But, no such specific study or analysis exists for the

Mainline Alternative Route, prohibiting the PSC from finding it is in the public interest.

TransCanada completely failed to meet its burden of production with respect to the Mainline

Alternative Route. Consequently, even if the PSC had the authority to consider approving that route,

it legally could not do so. As a result, the PSC’s order approving the Mainline Alternative Route

must be vacated and overturned.

III. THE PSC APPLIED THE INCORRECT STANDARD TO CONSIDERATION OF
CULTURAL AND HISTORIC RESOURCES.

Setting aside the fact the PSC had no authority to consider or approve the Mainline

Alternative Route, the PSC’s analysis of the Keystone XL Pipeline’s impacts on historic and cultural

resources was entirely incorrect. MOPSA requires the PSC to determine whether a proposed major

oil pipeline is in the public interest and to evaluate specific factors to make that determination. NEB.

29
REV. STAT. § 57-1407(4). In particular, MOPSA requires the PSC to evaluate “[e]vidence regarding

the... social impacts of the major oil pipeline,” id. § 57-1407(4)(d), which the PSC properly

determined included cultural and historical resources, (T705). However, in its decision, the PSC

held, “The public interest with respect to the preservation of cultural resources along the pipeline

route is a matter of federal law, and governed by the National Historic Preservation Act.” (T6187).

It then discussed the Programmatic Agreement (“PA”) between the DOS and state agencies, finding

that it sufficiently protects cultural and historic resources. (T6188-89). But, the NHPA defines

“historic property” in a limited manner that only includes sites and resources “included on, or

eligible for inclusion on, the National Register [of Historic Places].” 54 U.S.C. § 300308. The PA

mimics that definition of “historic property,” limiting it to sites and resources included in or eligible

for the National Register, adding only that, with respect to Indian tribal cultural resources, it covers

those “that meet the National Register criteria.” (KXL-14,16:1098,1100). In other words, the PA

and the NHPA only consider and deal with resources that are in or could be in the National Register

of Historic Places, not resources that are of public interest.

The PSC’s determination that cultural and historic resources are a matter of federal law rather

than evaluating them under the standard of MOPSA was entirely contrary to MOPSA. MOPSA is

not limited to considerations of cultural and historic resources under federal law. On the contrary,

MOPSA is specifically designed to go beyond the considerations and reviews of federal agencies and

look specifically at matters that are important to the State of Nebraska.

MOPSA requires TransCanada to “establish that the proposed route of the major oil pipeline

would serve the public interest.” NEB. REV. STAT. § 57-1407(4). It then lists specific factors that the

PSC must consider to determine whether TransCanada has proven the pipeline would serve the

public interest. Those factors are not separate or limiting factors, but are specific items the PSC must

30
consider as part of its larger public interest analysis. In other words, each of the listed factors needs

to be considered in light of the public interest. In fact, the legislature specifically noted the PSC

would look to the listed factors to determine whether a proposed route passed the public interest test.

Hearing on LB1 Before the Natural Res. Comm., 102nd Leg., 1st Spec. Sess., 4 (Neb. 2011).

“One of the basic rules of statutory construction is that statutory language will be given its

plain and ordinary meaning.” Caruso v. City of Omaha, 222 Neb. 257, 260, 383 N.W.2d 41, 44

(1986). The ordinary meaning of a word or phrase generally means the dictionary definition. E.g.,

id.; O’Neill Prod. Credit Ass’n v. Schnoor, 208 Neb. 105, 109, 302 N.W.2d 376, 379 (1981).

Black’s Law Dictionary defines “public interest” as the “general welfare of the public that warrants

recognition and protection” and “something in which the public as a whole has a stake.” BLACK’S

LAW DICTIONARY. Consequently, when considering cultural and historic resources, MOPSA

requires the PSC to consider those resources which the general welfare of the public warrants

recognition and protection or in which the public as whole has a stake. This is quite different than

the limited definition of resources in the National Register.

Considering matters that are important to the public of Nebraska and not just considered

valuable or protectable under federal law was precisely the intent of the legislature when it enacted

MOPSA. In discussing what MOPSA would consider differently than the National Environmental

Policy Act, Senator Dubas stated, “we’re looking more specifically to our specific state... and all of

the uniqueness of our state.” Hearing on LB1 at 9. He said MOPSA would allow the state“to look

at it from a Nebraska perspective.” Id. Thus, the legislature specifically intended the PSC to go

beyond what federal review provides. The legislature wanted to ensure the citizens of Nebraska,

through the PSC, could consider the unique issues and resources of Nebraska, not mimic federal

review. But, mimic federal review is precisely what the PSC did for historic and cultural resources.

31
“Public interest” is much more broad than “historic property” under the NHPA. MOPSA is

concerned with resources which are in the public interest of Nebraska, not merely those eligible for

the National Register. The PSC ignored this requirement of MOPSA. Resources that are in the

public interest of Nebraska are not always in the National Register. (1076:2-22). For example, the

Keystone XL Pipeline would undisputably cross the Ponca Trail of Tears. (CUL1,1:618-619;

CUL16,1:1151; 619:23-620:11; 1153:7-1154-6). The Trail is not in the National Register, but

Nebraska has been attempting to seek recognition and protection of it. (CUL19,11:1048). In

addition, every witness who was asked identified the Trail as a significant part of Nebraska’s history

and important to its public interest. (818:12-819:2; 876:22-876:25; 899:1-899:5; 919:6-919:23;

933:3-933:15; 1077:22-78:1). Under the PSC’s analysis, the Trail is not a consideration because it

is not in the National Register and, regardless, not an issue for Nebraska, just for federal law. That

is contrary to MOPSA.

MOPSA is designed to be an exercise of the sovereign powers of Nebraska. NEB. REV. STAT.

§ 57-1402(2). It is designed to make sure that Nebraska’s interests are considered and protected and

not subordinated or negated by federal agencies and law. But, the PSC dismissed Nebraska’s

sovereignty and interests in violation of MOPSA by simply bowing to federal agencies and only

concerning itself with “historic properties” the DOS would recognize and protect. The PSC’s

primary purpose is “first and at all times, to serve the interests of the public.” In re: Application No.

30466, 194 Neb. 55, 62, 230 N.W.2d 190, 196 (1975). The PSC was required to consider historic

and cultural resources that, under Nebraska’s unique view, “warrant recognition and protection” or

“in which the public as a whole has a stake.” It failed to do so and, consequently, failed to apply the

proper legal standard under MOPSA. As a result, the PSC’s order must be overturned and the PSC

directed to reconsider its decision under the proper legal standard.

32
CONCLUSION

The PSC violated its rules and the APA when it refused to allow the Tribe to participate in

the proceedings to the extent of its express interests in the matter. When the Tribe stated its interests

included its governmental interests of the pipeline traversing its jurisdiction, the Tribe was entitled

to participate with respect to those interests, not simply “social and cultural issues.” The PSC further

violated it rules by limiting the Tribe’s number of witnesses and amount of cross-examination. The

PSC’s rules do not permit such limitations and, while the APA permits agencies to place limits on

an intervenor’s presentation, the PSC gave up that right by promulgating rules to the contrary.

The PSC also entirely lacked authority to approve the Mainline Alternative Route.

TransCanada never applied for that route, notice and service of the application for that roue were

never made, and TransCanada never produced any evidence in support of it. If the PSC is to ever

approve the Mainline Alternative Route, TransCanada must file an application for that route,

properly provide notice and service, and present actual evidence and studies of the Mainline

Alternative Route proving it is in the public interest.

Finally, in considering whether a major oil pipeline serves the public interest, the PSC cannot

abandon its duty to serve the interests of the public by mimicking and bowing to federal agency

review. It must consider more than federal agencies – it must review the pipeline with respect to

matters which are important to Nebraska and in which the public has an interest. It entirely failed

to do so with historic and cultural resources.

The Tribe requests the Court overturn the PSC’s limits on the Tribe’s intervention with

directions to allow the Tribe to participate with respect to all of its interests without limits on

presentation of evidence. The Tribe also requests that the Court vacate and overturn the PSC’s

decision approving the Mainline Alternative Route.

33
RESPECTFULLY SUBMITTED this 16th day of May, 2018,

____________________________________
Brad S. Jolly, #23720
BRAD S. JOLLY & ASSOCIATES
15355 Gadsden Drive
Brighton, CO 80603
Telephone: (720) 685-7105
Facsimile: (206) 339-7209
Email: bsj@bsjlawfirm.com
ATTORNEY FOR PONCA TRIBE OF NEBRASKA

34
CERTIFICATE OF SERVICE

The undersigned attorney hereby certifies that on May 16, 2018, a copy of the above and foregoing
brief was served by electronic filing and mail and via U.S. Mail to those without an email address
of record to the following:

James G. Powers Julie Nichols
McGrath, North, et al. 1995 Park Ave.
First National Tower, Ste. 3700 Lincoln, NE 68502
1601 Dodge Street
Omaha, NE 68102 Jana Osborn
jpowers@mcgrathnorth.com 1112 Meadowlark
Alliance, NE 69301
Patrick D. Pepper janajearyb@gmail.com
McGrath, North, et al.
First National Tower, Ste. 3700 James Douglas Osborn
1601 Dodge Street 43110 879th Rd.
Omaha, NE 68102 Ainsworth, NE 69210
ppepper@mcgrathnorth.com
Christine Polson
L. J. Bartel 4923 Valley St
Nebraska Attorney General’s Office Omaha, NE 68106
2115 State Capitol snpolson@cox.net
P.O. Box 98920
Lincoln, NE 68509-8920 Dave Polson
jay.bartel@nebraska.gov 4923 Valley Street
Omaha, NE 68106
Jayne Antony honk@cox.net
16064 Sprint Street
Omaha, NE 68130-2030 Joseph Pomponio
551B Sand Creek Rd.
Jennifer S. Baker Albany, NY 12205
Leonika Charging-Davidson lukaz@msn.com
Fredericks Peebles and Morgan, LLP
1900 Plaza Drive Collin A. Rees
Louisville, CO 80027 4721 Heather Lane
jbaker@ndnlaw.com Kearney, NE 68845
collin@priceofoil.org
Wrexie Bardaglio
9748 Arden Road Donna Roller
Trumansburg, NY 14886 2000 Twin Ridge Rd.
wrexie.bardaglio@gmail.com Lincoln, NE 68506
rollerski@gmail.com

35
Leverne A. Barrett Cecilia Rossiter
1909 Co. Rd. E 949 N 30th St.
Ceresco, NE 68017 Lincoln, NE 68503
punion@gmail.com
Mia Bergman
O’Donoghue & O’Donoghue LLP Corey Runmann
86424 514 Ave. 2718 S. 12th St.
Orchard, NE 68764 Lincoln, NE 68502
mbergman85@hotmail.com rumannc@gmail.com

Ellen O. Boardman Lois Schreur
O’Donoghue & O’Donoghue LLP 2544 N. 61st Street
4748 Wisconsin Avenue, NW P.O. Box 4376
Washington, DC 20016 Omaha, NE 68104
eboardman@odonoghuelaw.com leschreur@centurylink.net

Anna Friedlander Tristan Scorpio
O’Connor Law Firm 208 S Burlington Ave., Ste. 103
4748 Wisconsin Avenue, NW Box 325
Washington, DC 20016 Hasting, NE 68901
afriedlander@odonoghuelaw.com
Julie Shaffer
Robert O’Connor, Jr 5405 Northern Hills Dr.
P.O. Box 45116 Omaha, NE 68152
Omaha, NE 68145
reolaw@aol.com Sandra Slaymaker
102 E 3rd St. #2
Dara Illowsky Atkinson, NE 68713
1650 38th Street, Suite 102w sandyslaymaker@gmail.com
Boulder, CO 80301
dara.illowsky@sierraclub.org Susan Soriente
1110 Rockhurst Drive
Kimberly E Craven Lincoln, NE 68510
33 King Canyon Road ssoriente@gmail.com
Chadron, NE 69337
Kimecraven@gmail.com Lorne Stockman
Oil Change International
Cathie (Kathryn) Genung 714 G St., SE, Suite 202
902 East 7th St. Washington, DC 20003
Hastings, NE 68901 lorne@priceofoil.org
tg64152@windstream.net
Susan Straka-Heyden
46581 875th Rd.
Stuart, NE 68780
suzie_sl@hotmail.com

36
Louis (Tom) Genung Kimberly L. Stuhr
902 East 7th St. 19303 Buffalo Rd.
Hastings, NE 68901 Springfield, NE 68059
tg64152@windstream.net kimberlystuhr13@yahoo.com

Andy Grier Jacques Tallichet
916 S. 181st St. 2821 S. 79th St.
Elkhorn, NE 68022 Lincoln, NE 68506
griea01@cox.net jacques.tallichet@gmail.com

Christy J. Hargesheimer Paul Theobald
620 S 30th St. 85718 544th Avenue
Lincoln, NE 68510 Foster, NE 68765
chrispaz@neb.rr.com ptheobald36@gmail.com

Richard S. Hargesheimer Jonathan H. Thomas
620 South 30th St. 960 S Cotner Blvd.
Lincoln, NE 68510 Lincoln, NE 68510
rshargy@gmail.com thewild_things@yahoo.com

Robert J. Henry Elizabeth L. Troshynski
Blake & Uhlig, PA 87769 484th Ave.
753 State Avenue, Ste. 475 Atkinson, NE 68713
Kansas City, KS 66101 btroshyn@hotmail.com
rjh@blake-uhlig.com
Christine Troshynski
Michael J. Stapp 101 S. 1st St.
Blake & Uhlig, PA Emmet, NE 68734
753 State Avenue, Ste. 475 ctroshynski@gmail.com
Kansas City, KS 66101
mjs@blake-uhlig.com Julie Walker
2570 West Luther St.
Michael E. Amash Martell, NE 68404
Blake & Uhlig, PA jw9095@yahoo.com
753 State Avenue, Ste. 475
Kansas City, KS 66101 Susan C. Watson
mea@blake-uhlig.com 2035 N 28th St., Apt. 213
Lincoln, NE 68503
Becky Hohnstein scwatson1965@gmail.com
P.O. Box 272
Minatare, NE 69356 Susan J. Weber
jimhohnstein@gmail.com 2425 Folkways Blvd., Apt. 329
Lincoln, NE 68521
susanjweber4@yahoo.com

37
Marvin E. Hughes Douglas Whitmore
714 W 5th St, Ste. 120 8856 N 83rd Ave.
Hastings, NE 68901 Omaha, NE 68122
bhughes@gtmc.net douglas@whitmore4congress.com

John Jarecki Kenneth C. Winston
6112 Bedford Ave. 1327 H St., Ste. 300
Omaha, NE 68104 Lincoln, NE 68508
johnjarecki110@gmail.com kwinston@inebraska.com

Karen Jarecki Sandy Zdan
6112 Bedford Ave. 4817 Douglas
Omaha, NE 68104 Omaha, NE 68132
tenbuckstwo@yahoo.com sandywz@cox.net

Brian F. Jorde Sarah Zuekerman
Domina Law Group PC LLO 1729 K St. #7
2425 S 144th Street Lincoln, NE 68508
Omaha, NE 68144-3267 sarahj1182@gmail.com@gmail.com
bjorde@dominalaw.com
Lisa May
Dave Domina 1008 13th Avenue
Domina Law Group PC LLO Kearney, NE 68845
2425 S 144th Street doodlesand dollies@hotmail.com
Omaha, NE 68144-3267
ddomina@dominalaw.com
Michael Whatley
Taylor R. M Keen Consumer Energy Alliance
5022 Hamilton St. 1666 K Street NW, Ste. 500
Omaha, NE 68132-1448 Washington, DC 20006
taylorkeen7@gmail.com EHaggstrom@consumerenergyalliance.org

Judy King Michael Reeves
1261 Fall Creek Rd. Ports to Plains Alliance
Lincoln, NE 68510 5401 N. MLK #395
kingjud@gmail.com Lubbock, TX 79403
EHaggstrom@consumerenergyalliance.org
Michelle C. LaMere
P.O. Box 514 Adam Martin
Winnebago, NE 68071 South Dakota Oil & Gas Association
P.O. Box 3224
Pamela Luger Rapid City, SD 57709
8732 Granville Pkwy. adam.martin@sdoil.org
LaVista, NE 68128
pam1181@yahoo.com

38
Kendall Maxey Steven M. Kramer
350.org Association of Oil Pipe Lines
20 Jay Street 900 17th Street, NW, Ste. 600
Brooklyn, NY 11201 Washington, DC 20006
kendall@350.org skramer@aopl.org

Elizabeth (Liz) Mensinger Ronald J. Sedlacek
6509 Wirt St. Nebraska Chamber of Commerce & Industry
Omaha, NE 68104 P.O. Box 95128
lizmensinger@gmail.com Lincoln, NE 68509
rsedlacek@nechamber.com
Cindy Myers
P.O. Box 104 Judith Thorman
Stuart, NE 68780 American Petroleum Institute
csmyers77@hotmail.com 216 West Jackson Blvd., Ste. 915
Chicago, IL 60606
Crystal Miller thormanj@api.org
7794 Greenleaf Drive
LaVista, NE 68128 Ross Heisenberg
neccmiller@juno.com National Association of Manufacturers
733 10th Street, NW, Ste. 700
Janece Mollhoff Washington, DC 20001
2354 Euclid Street ross.e.eisenberg@nam.org
Ashland, NE 68003
wjmollhoff@windstream.net

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

________________________________
Brad S. Jolly

39