FILED

May 21, 2018
IMAGE ID N1814159JNSC, FILING ID 0000006181

CLERK
NEBRASKA SUPREME COURT
CASE NO. S-17-1331 COURT OF APPEALS

______________________________________________________________________

IN THE NEBRASKA SUPREME COURT
______________________________________________________________________

TRANSCANADA KEYSTONE PIPELINE, L.P. FOR ROUTE APPROVAL, et al.,

Applicant/Appellees,

v.

SUSAN AND WILLIAN DUNAVAN, et al.,

Intervenors/Appellants.
______________________________________________________________________

Appeal from the Nebraska Public Service Commission
(Application No. OP-003)
______________________________________________________________________

BRIEF OF APPELLEE NEBRASKA PUBLIC SERVICE COMMISSION
______________________________________________________________________

DOUGLAS J. PETERSON, #18146
Attorney General

L. Jay Bartel, #17247
David A. Lopez, #24947
Lynn A. Melson, #17363
Assistant Attorneys General
2115 State Capitol
Lincoln, NE 68509-8920
Tel: (402) 471-2682
Facsimile: (402) 471-4725
E-mail: jay.bartel@nebraska.gov
dave.lopez@nebraska.gov
lynn.melson@nebraska.gov

Attorneys for Appellee Nebraska Public Service Commission
TABLE OF CONTENTS

TABLE OF CONTENTS ................................................................................................................. i

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

JURISDICTIONAL STATEMENT ................................................................................................1

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

CITATIONS TO THE RECORD ....................................................................................................3

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

STATEMENT OF FACTS ..............................................................................................................8

ARGUMENT .................................................................................................................................18

I. THE PSC HAD AUTHORITY TO ACT ON KEYSTONE’S ROUTE
APPLICATION ...........................................................................................................18

II. THE PSC HAD AUTHORITY TO APPROVE THE MAINLINE
ALTERNATIVE ROUTE ...........................................................................................24

III. THE RECORD EVIDENCE SUPPORTS THE PSC’S FINDING THAT
APPROVAL OF THE MAINLINE ALTERNATIVE ROUTE IS IN THE
PUBLIC INTEREST ...................................................................................................28

A. Compliance With Applicable State Statutes, Rules And Regulations, And Local
Ordinances .............................................................................................................29

B. Evidence Of Impact On Natural Resources ...........................................................30

C. Evidence Of Methods To Minimize Or Mitigate Potential Impacts ......................31

D. Evidence Regarding Economic And Social Impacts .............................................32

1. Economic Impact .............................................................................................32

2. Social Impact ...................................................................................................33

E. Existence Of Other Utility Corridors .....................................................................34

F. Impact Of The Pipeline On Orderly Development Of The Area ...........................35

G. Reports Of State Agencies .....................................................................................36

H. Views Of The Counties And Municipalities ..........................................................36

i
I. Ultimate Public Interest Finding ............................................................................37

IV. THE PSC PROPERLY MADE PUBLIC INPUT A PART OF THE RECORD ........37
A. Alleged Errors Must Be Both Specifically Assigned and Specifically Argued.....37

B. The Public Comments Offered As Exhibits PSC 7 Through 12 Are Not
Inadmissible Hearsay .............................................................................................38

C. Admission Of The PSC Exhibits Was Harmless Error ..........................................40

D. Landowner Intervenors’ Motion For A Mistrial Was Correctly Overruled ..........41

E. Neb. Rev. Stat. § 57-1407(2) Is Constitutional .....................................................43

V. THE PSC WAS AUTHORIZED TO OBTAIN REPORTS FROM
CONSULTANTS .........................................................................................................44
A. Neb. Rev. Stat. § 57-1412 Authorizes The PSC To Obtain Expert Assistance .....44

B. PSC 6, Reports Of Consultants, Was Properly Received In Evidence ..................44

VI. THE LANDOWNERS’ CHALLENGES TO THE CONSTITUTIONALITY OF
MOPSA ARE MERITLESS ........................................................................................46
A. Challenges To MOPSA, Including The Eminent Domain Process, Are Not Ripe
For Review .............................................................................................................46

B. MOPSA Does Not Improperly Invade The Constitutional Authority Of The
PSC ........................................................................................................................48

C. MOPSA In No Way Restricts Judicial Authority Or Access To The Courts ........49

CONCLUSION ..............................................................................................................................50

CERTIFICATE OF SERVICE ......................................................................................................51

ii
TABLE OF AUTHORITIES
Cases

Archer Daniels Midland Co. v. State,
290 Neb. 780, 861 N.W.2d 733 (2015)................................................................................. 4, 21

Bentz v. Nebraska Public Power Dist.,
211 Neb. 844, 320 N.W.2d 763 (1982)................................................................................. 8, 50

Benzel v. Keller Industries,
253 Neb. 20, 567 N.W.2d 552 (1997)................................................................................... 5, 38

Bonge v. County of Madison,
253 Neb. 903, 573 N.W.2d 448 (1998)................................................................................. 7, 47

Cookson v. Ramge,
299 Neb. 128, 907 N.W.2d 296 (2018)........................................................................... 4, 21, 24

Davis v. State,
297 Neb. 955, 902 N.W.2d 165 (2017)..................................................................................... 19

Engelhaupt v. Village of Butte,
248 Neb. 827, 539 N.W.2d 430 (1995)..................................................................................... 50

Forget v. State,
265 Neb. 488, 658 N.W.2d 271 (2003)................................................................................. 5, 37

Franco v. District of Columbia,
422 F.Supp.2d 216 (D.D.C. 2006) ........................................................................................ 7, 48

Galyen v. Balka,
253 Neb. 270, 570 N.W.2d 519 (1999)..................................................................................... 46

Gourley v. Nebraska Methodist Health System, Inc.,
265 Neb. 918, 663 N.W.2d 43 (2003)................................................................................ passim

Hamer v. Neighborhood Hous. Servs. of Chicago,
583 U.S. ___, 138 S. Ct. 13 (2017) ........................................................................................... 20

Hike v. State Dep't of Roads,
288 Neb. 60, 846 N.W.2d 205 (2014)................................................................................... 6, 42

Hoeft v. Five Points Bank,
248 Neb. 772, 539 N.W.2d 637 (1995)................................................................................. 6, 40

In re Application of Lincoln Elec. System,
207 Neb. 289, 298 N.W.2d 366 (1980)..................................................................................... 28

iii
In re Application of Neb. Pub. Power Dist.,
281 Neb. 350, 798 N.W.2d 572 (2011)............................................................................... 27, 28

In re Application of SID No. 384,
259 Neb. 351, 609 N.W.2d 679 (2000)................................................................................. 6, 40

In re Application No. B-1829,
293 Neb. 485, 880 N.W.2d 51 (2016)......................................................................................... 2

In re Applications A-16027,
242 Neb. 315, 495 N.W. 2d 23 (1993).................................................................................. 7, 43

In re Applications T-851 and T-852,
268 Neb. 620, 686 N.W.2d 360 (2004)................................................................................. 6, 41

In re Golden Plains Transportation, Inc.,
297 Neb. 105, 898 N.W.2d 670 (2017)....................................................................................... 3

Karo v. Nau Country Ins. Co.,
297 Neb. 798, 901 N.W.2d 689 (2017)..................................................................................... 20

Kozal v. Neb. Liquor Control Comm’n,
297 Neb. 938, 902 N.W.2d 147 (2017)........................................................................... 3, 21, 22

Krauter v. Lower Big Blue NRD,
199 Neb. 431, 259 N.W.2d 472 (1977)................................................................................. 8, 50

Langenheim v. City of Seward,
200 Neb. 740, 265 N.W.2d 446 (1978)....................................................................... 4, 8, 25, 50

Marshall v. Wimes,
261 Neb. 846, 626 N.W.2d 229 (2001)................................................................................. 6, 42

Nebraska Pub. Serv. Comm'n v. Nebraska Pub. Power Dist.,
256 Neb. 479, 590 N.W.2d 840 (1999).............................................................................. passim

Prendergast v. Nelson,
199 Neb. 97, 256 N.W.2d 657 (1977)................................................................................... 7, 49

Rodgers v. Nebraska Railway Comm’n,
134 Neb. 832, 279 N.W. 800 (1938)......................................................................................... 48

Ross v. Blake,
136 S. Ct. 1850 (2016) .............................................................................................................. 21

Sebelius v. Auburn Regional Medical Center,
568 U.S. 145 (2013) .................................................................................................................. 20

iv
Southeast Rur. Vol. Fire Dep’t v. Nebraska Dep’t of Revenue,
251 Neb. 852, 560 N.W.2d 436 (1997)................................................................................. 6, 41

State ex rel. Spire v. Northwestern Bell Telephone Co.,
233 Neb. 262, 445 N.W.2d 284 (1989)............................................................................... 48, 49

State v. Duncan,
294 Neb. 162, 882 N.W.2d 650 (2016)................................................................................. 5, 27

State v. Hansen,
259 Neb. 764, 612 N.W.2d 477 (2000)................................................................................. 7, 46

State v. Ortega,
290 Neb. 172, 859 N.W.2d 305 (2015)................................................................................. 3, 18

Stewart v. Nebraska Dep’t of Revenue,
294 Neb. 1010, 885 N.W.2d 723 (2016)............................................................................... 4, 24

Stoneman v. United Neb. Bank,
254 Neb. 477, 577 N.W.2d 271 (1998)................................................................................. 7, 42

Sturzenegger v. Father Flanagan’s Boys’ Home,
276 Neb. 327, 754 N.W.2d 406 (2008)................................................................................. 6, 42

Swanson v. Sorensen,
181 Neb. 312, 148 N.W.2d 197 (1967)..................................................................................... 25

Thompson v. Heineman,
289 Neb. 798, 857 N.W.2d 731 (2015).............................................................................. passim

U.S. Ecology v. State,
258 Neb. 10, 601 N.W.2d 775 (1999)....................................................................................... 46

Vokal v. Nebraska Acct. and Disclosure Comm'n,
276 Neb. 988, 759 N.W.2d 75 (2009)................................................................................... 5, 37

Weeder v. Cent. Cmty. Coll.,
269 Neb. 114, 691 N.W.2d 508 (2005)................................................................................. 3, 19

Worth v. Kolbeck,
273 Neb. 163, 728 N.W.2d 282 (2007)................................................................................. 7, 45

Yellow Cab Co. v. Nebraska State Railway Comm’n,
175 Neb. 150, 120 N.W.2d 922 (1963)..................................................................................... 41

Statutes

56 U.S.C. § 300101 ....................................................................................................................... 33

v
Neb. Rev. Stat. § 13-906 (2012) ................................................................................................... 23

Neb. Rev. Stat. § 25-21,194 (2016) .............................................................................................. 24

Neb. Rev. Stat. § 27-602 (2016) ................................................................................................... 45

Neb. Rev. Stat. § 27-801 (2016) ................................................................................................... 38

Neb. Rev. Stat. § 27-802 (2016) ............................................................................................. 38, 39

Neb. Rev. Stat. § 57-1101 (Cum. Supp. 2016) ........................................................... 22, 46, 47, 49

Neb. Rev. Stat. §§ 57-1401 to 57-1413 (Cum. Supp. 2016) ........................................................... 1

Neb. Rev. Stat. § 57-1401(2) (Cum. Supp. 2016)......................................................................... 26

Neb. Rev. Stat. § 57-1402 (Cum. Supp. 2016) ....................................................................... 27, 49

Neb. Rev. Stat. § 57-1403(1) (Cum. Supp. 2016)......................................................................... 27

Neb. Rev. Stat. § 57-1403(3) (Cum. Supp. 2016)................................................................... 48, 49

Neb. Rev. Stat. § 57-1405 (Cum. Supp. 2016) ............................................................................. 23

Neb. Rev. Stat. § 57-1405(1) (Cum. Supp. 2016)............................................................. 22, 23, 24

Neb. Rev. Stat. § 57-1405(2)(b) (Cum. Supp. 2016) .................................................................... 27

Neb. Rev. Stat. § 57-1407(2) (Supp. 2017) ........................................................................... passim

Neb. Rev. Stat. § 57-1407(3) (Supp. 2017) ...................................................................... 27, 36, 44

Neb. Rev. Stat. § 57-1407(4) (Supp. 2017) .............................................................................. 2, 29

Neb. Rev. Stat. § 57-1407(4)(a) (Supp. 2017) .............................................................................. 29

Neb. Rev. Stat. § 57-1407(4)(a)-(h) (Supp. 2017) ........................................................................ 28

Neb. Rev. Stat. § 57-1407(4)(b) (Supp. 2017).............................................................................. 30

Neb. Rev. Stat. § 57-1407(4)(c) (Supp. 2017) .............................................................................. 31

Neb. Rev. Stat. § 57-1407(4)(d) (Supp. 2017).............................................................................. 32

Neb. Rev. Stat. § 57-1407(4)(e) (Supp. 2017) ........................................................................ 27, 34

Neb. Rev. Stat. § 57-1407(4)(f) (Supp. 2017) .............................................................................. 35

Neb. Rev. Stat. § 57-1407(4)(h) (Supp. 2017).............................................................................. 36

vi
Neb. Rev. Stat. § 57-1412 (Cum. Supp. 2016) ....................................................................... 44, 46

Neb. Rev. Stat. § 75-134.02(1) (Cum. Supp. 2016)........................................................................ 1

Neb. Rev. Stat. § 75-136(2) (Cum. Supp. 2016)......................................................................... 1, 2

Neb. Rev. Stat. § 77-1935 (2009) ................................................................................................. 23

Neb. Rev. Stat. § 81-8,213 (2014) ................................................................................................ 23

Neb. Rev. Stat. § 84-912.02 (2014) .............................................................................................. 42

Neb. Rev. Stat. §§ 76-704 to 76-724 (2009, Cum. Supp. 2016) ............................................. 47, 49

Neb. Rev. Stat. §§ 84-901 to 84-920 (2014, Cum. Supp. 2016, Supp. 2017) .............................. 41

Other Authorities

5 Neb. Prac. Civil Procedure § 11:4 ......................................................................................... 3, 19

Neb. Const. art. I, § 13 .............................................................................................................. 7, 49

Neb. Const. art. I, § 21 .................................................................................................................. 47

Neb. Const. art. IV, § 20 ........................................................................................................ passim

vii
JURISDICTIONAL STATEMENT

This is an appeal pursuant to Neb. Rev. Stat. § 75-136(2) (Cum. Supp. 2016) from a final

order entered by the Nebraska Public Service Commission [“PSC” or “Commission”] on

November 20, 2017, approving a route application under the Major Oil Pipeline Siting Act, Neb.

Rev. Stat. §§ 57-1401 to 57-1413 (Cum. Supp. 2016) [“MOPSA”], filed by TransCanada Keystone

Pipeline, L.P. [“Keystone”]. (T6146-6210). The PSC’s order approved the Mainline Alternative

Route, one of three routes proposed in Keystone’s application. (T6196). Keystone and certain

intervenors filed motions for reconsideration within ten days of the effective date of the order.

(T6218-6235). Pursuant to Neb. Rev. Stat. § 75-134.02(1) (Cum. Supp. 2016), the filing of the

motions for reconsideration suspended the time for filing a notice of appeal pending resolution of

the motions. The PSC denied the motions to reconsider on December 19, 2017. (T6248-6254).

A group of landowners that intervened in the proceedings before the PSC [the “Landowner

Intervenors” or “Landowners”] filed a notice of appeal of the PSC’s order on December 27, 2017.

STATEMENT OF THE CASE

1. Nature of the Case.

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

route for the Keystone XL Pipeline Project pursuant to MOPSA. (T54-456; KXL 1, 1-403, Vol.

X). The application included information on three (3) proposed routes, one of which was

designated as the Preferred Route, and the other two (2) designated as alternative routes (the

Mainline Alternative Route and the Sandhills Alternative Route). (KXL 1, §§ 2.0-3.0, 8-20, Vol.

X). Petitions for formal and informal intervention were filed by various individuals and groups.

(T543-559, 566-576, 580-680, 685-86). In addition to granting the Landowner Intervenors status

as formal intervenors, the hearing officer granted limited formal intervention to other individuals

1
and entities by group, including: (1) The “Cultural Intervenors” (Ponca Tribe of Nebraska and

Yankton Sioux Tribe of South Dakota); (2) The “Natural Resource Intervenors” (Bold Alliance,

Sierra Club, Nebraska Chapter, and thirty-six (36) other individuals and groups); and (3) The

“Economic Intervenors” (Midwest Regional Office of the Laborers International Union of

America, International Brotherhood of Electrical Workers Local Union No. 265, and Pipe Fitting

Industry of the United States and Canada, AFL-CIO). (T699-708). Several informal intervention

petitions were also granted. (T2325-2348, 5237-39, 5240-48). Following discovery and the

disposition of numerous motions and other filings, the PSC held an evidentiary hearing on the

application on August 7 through 10, 2017. (36:1-1236:22).

2. Issue Before the PSC.

The issue before the PSC was whether Keystone’s application for a route to construct a

major oil pipeline should be approved as being in the “public interest” under Neb. Rev. Stat. § 57-

1407(4) (Supp. 2017).

3. How the Issue Was Decided by the PSC.

By order dated November 20, 2017, a majority of Commissioners approved the route

identified in Keystone’s application as the “Mainline Alternative Route.” (T6146-6196).

4. Scope of Review in the Supreme Court.

The Supreme Court’s review of the PSC’s order is “de novo on the record.” Neb. Rev.

Stat. § 75-136(2) (Cum. Supp. 2016). “In a review de novo on the record, an appellate court

reappraises the evidence as presented by the record and reaches its own independent conclusions

concerning the matters at issue.” In re Application No. B-1829, 293 Neb. 485, 488-89, 880 N.W.2d

51, 54 (2016). “The meaning and interpretation of statutes and regulations are questions of law

for which an appellate court has an obligation to reach an independent conclusion irrespective of

2
the decision made by the court below.” In re Golden Plains Transportation, Inc., 297 Neb. 105,

107, 898 N.W.2d 670, 673 (2017).

CITATIONS TO THE RECORD

Due to the manner in which exhibits from the PSC proceeding were marked and identified

for the record, those exhibits will be cited by the shorthand abbreviation adopted for applicant

Keystone and each group of intervenors. Accordingly, Keystone exhibits are cited as “KXL”

followed by the exhibit number and volume of the bill of exceptions in which the exhibit is found.

Landowner Intervenors’ exhibits are cited in the same manner with the abbreviation “LO.” PSC

exhibits are cited as “PSC.” Natural Resources Intervenors’ exhibits are cited as “NR.” Cultural

Intervenors’ exhibits are identified as “CUL.” Finally, Economic Intervenors’ exhibits are

identified as “ECO.” Citations to the transcript and testimony from the bill of exceptions will be

made pursuant to Neb. Ct. R. App. Prac. § 2-109(C)(1) and (2).

PROPOSITIONS OF LAW

I. Appellate courts do not generally consider arguments and theories raised for the

first time on appeal. State v. Ortega, 290 Neb. 172, 859 N.W.2d 305 (2015).

II. Conditions precedent are typically not considered jurisdictional prerequisites, but

rather procedural requirements which can be waived. Weeder v. Cent. Cmty. Coll., 269 Neb. 114,

691 N.W.2d 508 (2005); 5 Neb. Prac. Civil Procedure § 11:4.

III. A pipeline carrier has the choice to either receive the approval of the Governor for

a major oil pipeline route or to comply with the MOPSA approval process through the PSC.

Thompson v. Heineman, 289 Neb. 798, 857 N.W.2d 731 (2015).

IV. Statutory interpretation begins with the text. Kozal v. Neb. Liquor Control

Comm’n, 297 Neb. 938, 902 N.W.2d 147 (2017).

3
V. Statutory language is to be given its plain and ordinary meaning, and an appellate

court will not resort to interpretation to ascertain the meaning of statutory words which are plain,

direct, and unambiguous. Archer Daniels Midland Co. v. State, 290 Neb. 780, 861 N.W.2d 733

(2015).

VI. In discerning the meaning of a statute, a court must determine and give effect to the

purpose and intent of the Legislature as ascertained from the entire language of the statute

considered in its plain, ordinary, and popular sense. If the language of a statute is clear, the words

of such statute are the end of any judicial inquiry regarding its meaning. An appellate court will

not read into a statute a meaning that is not there. Archer Daniels Midland Co. v. State, 290 Neb.

780, 861 N.W.2d 733 (2015).

VII. An appellate court will not read into a statute a meaning that is not there. Cookson

v. Ramge, 299 Neb. 128, 907 N.W.2d 296 (2018).

VIII. The intent of the Legislature may be found through its omission of words from a

statute as well as its inclusion of words in a statute. Cookson v. Ramge, 299 Neb. 128, 907 N.W.2d

296 (2018).

IX. The Legislature is presumed to know the general condition surrounding the subject

matter of the legislative enactment, and it is presumed to know and contemplate the legal effect

that accompanies the language it employs to make effective the legislation. Stewart v. Nebraska

Dep’t of Revenue, 294 Neb. 1010, 885 N.W.2d 723 (2016).

X. A party may not complain of error which he has invited. Langenheim v. City of

Seward, 200 Neb. 740, 265 N.W.2d 446 (1978).

XI. The PSC has ‘independent legislative, judicial, and executive or administrative

powers’ over common carriers, which powers are plenary and self-executing. Thompson v.

4
Heineman, 289 Neb. 798, 857 N.W.2d 731 (2015).

XII. Absent specific legislation, the PSC’s enumerated powers over common carriers

are absolute and unqualified. Thompson v. Heineman, 289 Neb. 798, 857 N.W.2d 731 (2015);

Nebraska Pub. Serv. Comm'n v. Nebraska Pub. Power Dist., 256 Neb. 479, 590 N.W.2d 840

(1999).

XIII. In construing a statute, a court must look to the statutory objective to be

accomplished, the evils and mischiefs sought to be remedied, and the purpose to be served, and

then must place on the statute a reasonable or liberal construction that best achieves the statute's

purpose, rather than a construction that defeats the statutory purpose. State v. Duncan, 294 Neb.

162, 171, 882 N.W.2d 650, 656 (2016).

XIV. To be considered by an appellate court, an alleged error must be both specifically

assigned and specifically argued by the party asserting the error. Forget v. State, 265 Neb. 488,

658 N.W.2d 271 (2003).

XV. Errors argued but not assigned will not be considered on appeal. Vokal v. Nebraska

Acct. and Disclosure Comm’n, 276 Neb. 988, 759 N.W.2d 75 (2009).

XVI. A party may not on appeal assert a different ground for excluding evidence than

was raised in the objection made at the time of trial. Benzel v. Keller Industries, 253 Neb. 20, 567

N.W.2d 552 (1997); Gourley v. Nebraska Methodist Health System, Inc., 265 Neb. 918, 663

N.W.2d 43 (2003).

XVII. Out-of-court statements, if not offered for the purpose of proving the truth of the

facts asserted, are not hearsay. Gourley v. Nebraska Methodist Health System, Inc., 265 Neb. 918,

663 N.W.2d 43 (2003).

5
XVIII. To constitute reversible error in a civil case, the admission or exclusion of evidence

must unfairly prejudice a substantial right of a litigant complaining about evidence admitted or

excluded. In re Application of SID No. 384, 259 Neb. 351, 609 N.W.2d 679 (2000); Hoeft v. Five

Points Bank, 248 Neb. 772, 539 N.W.2d 637 (1995).

XIX. Error without prejudice provides no ground for appellate relief. In re Applications

T-851 and T-852, 268 Neb. 620, 686 N.W.2d 360 (2004).

XX. The PSC is an agency within the meaning of the Administrative Procedure Act.

Nebraska Pub. Serv. Comm’n v. Nebraska Pub. Power Dist., 256 Neb. 479, 590 N.W.2d 840

(1999).

XXI. Administrative agencies have only that authority specifically conferred upon them

by statute or by construction necessary to achieve the purpose of the relevant act. Southeast Rur.

Vol. Fire Dep’t v. Nebraska Dep’t of Revenue, 251 Neb. 852, 560 N.W.2d 436 (1997).

XXII. Decisions regarding motions for mistrial are directed to the discretion of the trial

court, and will be upheld in the absence of an abuse of discretion. Hike v. State Dep’t of Roads,

288 Neb. 60, 846 N.W.2d 205 (2014).

XXIII. A mistrial is appropriate when an event occurs during the course of a trial which

is of such a nature that its damaging effects would prevent a fair trial. And in addition to being

timely, a motion for mistrial must be premised upon actual prejudice, not the mere possibility of

prejudice. Sturzenegger v. Father Flanagan’s Boys’ Home, 276 Neb. 327, 754 N.W.2d 406

(2008).

XXIV. In a contested case before an administrative agency, opportunity shall be afforded

to all parties to the proceeding to present evidence and argument. Marshall v. Wimes, 261 Neb.

846, 626 N.W.2d 229 (2001).

6
XXV. When an administrative body acts in a quasi-judicial manner, due process requires

notice and an opportunity for a full and fair hearing at some stage of the agency proceedings.

Stoneman v. United Neb. Bank, 254 Neb. 477, 577 N.W.2d 271 (1998).

XXVI. Statutes are presumed constitutional and the party challenging the

constitutionality of a statute has the burden of demonstrating that the statute is unconstitutional.

In re Applications A-16027, 242 Neb. 315, 495 N.W. 2d 23 (1993).

XXVII. Statutes are afforded a presumption of constitutionality, and the

unconstitutionality of a statute must be clearly established before it will be declared void. Gourley

v. Nebraska Methodist Health System, Inc., 265 Neb. 918, 663 N.W.2d 43 (2003).

XXVIII. Erroneous admission of evidence is harmless error and does not require reversal

if the evidence is cumulative and other relevant evidence, properly admitted, supports the finding

by the trier of fact. Worth v. Kolbeck, 273 Neb. 163, 728 N.W.2d 282 (2007).

XXIX. While not a constitutional prerequisite for jurisdiction existence of an actual case

or controversy, nevertheless, is necessary for the exercise of judicial power in Nebraska. State v.

Hansen, 259 Neb. 764, 612 N.W.2d 477 (2000).

XXX. A takings claim is not ripe for review until there is a final determination of the

type and intensity of development legally permitted on the subject property. Bonge v. County of

Madison, 253 Neb. 903, 573 N.W.2d 448 (1998).

XXXI. A takings claim is not ripe where the party may seek compensation through state

procedures. Franco v. District of Columbia, 422 F.Supp.2d 216 (D.D.C. 2006).

XXXII. The access to court provision in Neb. Const. art. I, § 13, does not create any new

rights, but is merely a declaration of a general fundamental principle. Prendergast v. Nelson, 199

Neb. 97, 256 N.W.2d 657 (1977).

7
XXXIII. In a condemnation case issues as to the amount of property needed and the estate

or interest in such property are questions of fact for the court. Likewise, issues as to what

constitutes a public use and whether a taking is lawful are judicial issues for the court. Krauter v.

Lower Big Blue NRD, 199 Neb. 431, 259 N.W.2d 472 (1977).

XXXIV. The amount of damages sustained in an eminent domain action normally is to be

determined by the jury. Bentz v. Nebraska Public Power Dist., 211 Neb. 844, 320 N.W.2d 763,

(1982); Langenheim v. City of Seward, 200 Neb. 740, 265 N.W.2d 446 (1978).

STATEMENT OF FACTS

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

route for the Keystone XL Pipeline Project pursuant to MOPSA. (T6148; KXL 1, Vol. X). The

application included information on three (3) proposed routes, one of which was designated as the

Preferred Route, and the other two (2) designated as alternative routes (the Mainline Alternative

Route and the Sandhills Alternative Route). (KXL 1, §§ 2.0-3.0, 8-20, Vol. X). The PSC

published notice of the application on February 20, 2017. (T6148; PSC 1, 1, Vol. VIII). Petitions

for formal and informal intervention were filed by various individuals and groups. (T543-559,

566-576, 580-680, 685-86). The Landowner Intervenors were granted status as formal intervenors,

and limited formal intervention was allowed to other individuals and entities by group, including:

(1) The “Cultural Intervenors;” (2) The “Natural Resource Intervenors;” and (3) The “Economic

Intervenors.” (T699-708). The order granting intervention stated “[t]he Application includes

information regarding three potential routes for the proposed major oil pipeline through the State

of Nebraska...”, and that “[o]ne of the alternative routes, designated by the Applicant as the

Keystone Mainline Alternative Route, partially parallels the route of an existing Keystone

pipeline….” (T707-08). Noting that MOPSA required the PSC “to consider whether any other

8
utility corridor exists that could feasibly and beneficially be used for the route of the major oil

pipeline….” the order “encourage[d] all parties to provide evidence regarding the feasibility and

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

Pursuant to the case management plan order (T742-58), all parties were required to submit

pre-filed direct witness testimony. (T748). Pre-filed direct testimony was submitted by Keystone

and the Landowner Intervenors, as well as other intervenors, and received in evidence at the

hearing. (KXL 2-9, Vol. X; LO 1, 11, 13, 17, 19, 21, 23, 25, 29, 33, 35, 39, 42, 44, 48, 50, 52, 54,

56, 60, 65, 67, 71, 73, 76, 80, 82, 84, 88, 92, 96, 100, 102, 106, 108, 112, 116, 118, 122, 124, 126,

127, 129, 131, 133, 137, 139, 141, 145, 148, 152, 153, 155, 159, 161, 163, 167, 171, 178, 181,

185, 186, 168, 169, Vols. XV-XVII; NR 1, 3, 4, Vol. XIX; CUL 19, 25, Vol. XIX; ECO 1-2,

XIX). Keystone also submitted pre-filed rebuttal testimony that was admitted in evidence at the

hearing. (KXL 11-15, Vol. X). Prior to hearing, various objections by Keystone to the direct

testimony of the Landowner Intervenors’ witnesses and others were sustained. (T5548-5553).

Numerous other exhibits were received by the PSC at the hearing, including exhibits to which the

hearing officer sustained various objections. (KXL 1, 17-40, 42-58, 61-63, Vols. X-XIV; LO 2-

10, 12, 14-16, 18, 20, 22, 24, 26-28, 30-32, 34, 36-38, 40-41, 43, 45-47, 49, 51, 53, 55, 57-59, 61-

64, 66, 68-70, 72, 74-75, 77-78, 81, 83, 85-87, 89-91, 93-95, 97-99, 101, 103-105, 107, 109-111,

113-115, 117, 119-121, 123, 125, 128, 130, 132, 134-136, 138, 140, 142-144, 146-147, 149-151,

154, 156-158, 160, 162, 164-166, 168-170, 172-177, 182-184, 187, 192, 205-206, 208, 210, 214,

235, 243-244, and 254, Vols. XV-XIX; NR 2, 5-8, Vol. XIX; CUL 1, 8-16, 20, 22-24, Vol. XIX).

At hearing, Keystone presented testimony from all witnesses that filed direct and rebuttal

testimony. (T6154). Ten of the Landowner Intervenors testified at the hearing. (T6162). Two

witnesses testified for the Cultural Intervenors, and the Natural Resources Intervenors and

9
Economic Intervenors each presented testimony from one witness. (T6167-6170). The PSC’s

order describes in detail the witness testimony and related evidence. (T6154-6172). Accordingly,

only a brief summary is provided below.

Keystone Witnesses.

Tony Palmer, President of TransCanada Keystone Pipeline GP, LLC, and TransCanada

Keystone, LLC, testified that these entities, respectively, were the managing partner and majority

owner of Keystone. (61:4-21, 87:4-7, 186:20-187:8; 187:15-21; KXL 2, 2, Vol. X). Mr. Palmer

is responsible for development and oversight of the Keystone project. (KXL 2, 1, Vol. X). He

confirmed that Keystone would be primarily responsible for all reclamation costs associated with

the project. (143:14-18; KXL 2, 4, Vol. X). Mr. Palmer committed that neither Keystone nor any

of its affiliates would apply for or seek any tax benefits under the Nebraska Advantage Act.

(155:6-19; 157:22-158:5). He further testified that Keystone did not consider selling the route, if

approved, to be an option. (188:3-9).

Paul Fuhrer, a Project Manager for TransCanada Corporation, testified regarding the

construction process for the proposed pipeline and pumping stations. (KXL 3, 2, Vol. X).

Mr. Fuhrer stated the pipeline general elevation will be four feet below the surface of the land to

the top of the pipe. (202:18-23). He testified that each pumping station would utilize

approximately eight to ten acres of land. (216:20-217:5). Mr. Fuhrer stated that shut-off values

would be placed at intervals along the pipeline based upon hydraulics of the pipeline and other

factors. (250:12-20).

Dr. Ernie Goss, Professor of Economics at Creighton University and principal of the Goss

Institute, testified regarding his report on the “socio-economic” impacts of the Keystone XL

Pipeline on the State and counties along the Preferred Route. (274:25-275:8; KXL 4, 1-2; KXL 1,

10
App. H, 335-372, Vol. X). Dr. Goss’s report concluded that the pipeline project would constitute

an economic benefit to Nebraska and the counties along the Preferred Route and would contribute

to both the state and local tax bases. (KXL 1, App. H, 344, Vol. X). He estimated construction of

the pipeline would result in positive tax revenue in an amount estimated to exceed $264 million

through the year 2034. (KXL 1, App. H, 341, Vol. X). During the two-year construction period,

Dr. Goss concluded the project would have a significant positive economic impact, generating a

total impact of over $890 million, with labor income of $326.6 million supporting an average of

3,397 jobs per year. (KXL 1, App. H, 340, Vol. X). During the operations period, he estimated

an economic impact from output/sales of $1.2 billion, with labor income of $415.5 million

supporting an average of 353.9 jobs per year. (KXL 1, App. H, 340, Vol. X). Dr. Goss testified

his report was updated from a report initially prepared in 2013. (298:14-299:4). He used IMPLAN

software to forecast the number of jobs and economic impact of the project. (291:13-17).

IMPLAN is an input-output model used to analyze economic impact. (KXL 1, App. H, 365,

Vol. X). It is one of “two of the most widely-used multiplier models.” (Id. at 366).

Sandra Barnett, an Environmental Specialist for TransCanada Corporation, testified

regarding environmental issues associated with liquid pipeline facilities, including the Keystone

XL Pipeline Project. (339:19-341:1; KXL 5, 1, Vol. X). Her direct testimony supported those

portions of the Application relating to the Project’s plans and commitment to comply with the Oil

Pipeline Reclamation Act, and to methods to minimize or mitigate the potential impacts of the

Project to land areas and connected resources, as well as the impact to natural resources. (KXL 5,

2-3, Vol. X). Ms. Barnett testified regarding Keystone’s commitment to return the land to

equivalent capability after construction by working with the affected landowners. (344:6-347:2).

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She stated Keystone will reclaim and revegetate the right-of-way to return it “as close as we can

make it” to pre-construction condition. (353:10-354:6).

John Beaver, a Project Manager, Ecologist, and Reclamation Specialist with Westech

Environmental Services, Inc., has been the Senior Reclamation Specialist and Special-Status

Species Biologist for the Keystone XL Project since 2009. (390:14-18, KXL 6, 1-2, Vol. X). He

testified that the term “Sandhills” as used in the Application refers to a defined ecological region

identified by the Nebraska Department of Environmental Quality [“NDEQ”], as opposed to sandy

soil, which can occur in many places. (393:3-8; 464:14-465:20). Mr. Beaver confirmed that,

during construction, topsoil will be segregated along the entirety of the project where trenching

will be utilized. (415:7-416:6). He further testified that Keystone will monitor the condition of the

right-of-way for reclamation purposes during the entire operational life of the right-of-way.

(432:24-433:7).

Michael Portnoy, the President and CEO of PEI, an environmental consulting and

engineering firm, provided testimony as the lead hydrologist and project manager for the surveys

on soil permeability and distance-to-groundwater conducted in connection with the Keystone XL

Project. (470:14-19; KXL 7, 2, Vol. X). Mr. Portnoy has academic degrees in geology,

geochemistry, hydrology, and business administration. (469:24-470:13; KXL 7, 1-2, Vol. X). He

testified in general that there was a wide diversification of soil permeabilities along the Preferred

Route. (478:16-25). The surface-to groundwater study contained information on the registration

of wells and data included in well registration, including ownership, location, the perpendicular

distance from the pipeline center line to the wellhead, the type of well, depth of well to terminus,

and the static water level of the well. (500:21-505:10; KXL 1, App. G, 260-62, Vol. X).

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Dr. Jon Schmidt, Vice President of exp Energy Services, Inc., the management contractor

for the Keystone XL Pipeline Project, testified he was responsible for the environmental and

regulatory management of the Project. (528:11-14; KXL 8, 1-2, Vol. X). He was also involved

in the consideration of alternative routes, including those identified in the Application. (529:10-

19, KXL 8, 2-3, Vol. X). He testified the factors considered in comparing the different routes

included number of acres disturbed, federally listed threatened and endangered species, amount of

highly erodible soils, ecologically sensitive areas, and the number of crossings of perennial

streams, railroads, and roads. (556:16-557:11). Dr. Schmidt did not analyze a route that would

co-locate the entire length of the KXL Pipeline with the existing Keystone Mainline, as “[t]hat

wasn’t an alternative that was filed.” (547:16-21). He explained that an approximately 29.8 mile

deviation on the Mainline Alternative Route from the co-location with the Keystone Mainline in

Seward was designed to avoid a wellhead protection area. (545:13-25; 550:10-18). On cross-

examination, he agreed that the Mainline Alternative Route “ha[d] potential environmental

benefits due to its co-location with the Keystone main line.” (561:8-20). He confirmed that both

the Preferred Route and the Mainline Alternative Routes would cross the Ponca Removal Trail

two times. (619:23-620:11). Dr. Schmidt stated additional fieldwork, engineering, and survey

work would need to be completed to accommodate the needs of the approximately 40 new

landowners along the Mainline Alternative Route. (624:25-625:22).

Meera Kothari, a Professional Engineer and Manager for TransCanada’s US Liquids

Projects, assisted in preparation of the portion of the Application addressing the preferred and

alternative routes. (KXL 9, 2-3, Vol. X). On cross-examination, she agreed that the Mainline

Alternative Route could “feasibly” and “beneficially” be used in Nebraska. (638:9-16). She also

confirmed that, with the route deviation proposed in Seward County, “there are no wellhead

13
protection area issues on either the” Preferred Route or the Mainline Alternative Route. (648:14-

18). Ms. Kothari testified the deviation from the Keystone I Mainline pipeline in Seward County

was to “avoid the wellhead protection area based on feedback from the NDEQ that we received

during [the] consultation and feedback process.” (651:6-19).

Landowner Intervenors Witnesses.

Pre-filed direct testimony was received from over 60 Landowners, subject to objections

sustained by the Hearing Officer. (T6162). Ten Landowners testified at the hearing. (Id.).

The Landowners’ testimony focused on concerns related to location and construction of

the pipeline. Common among the issues raised were concerns regarding soil compaction, topsoil

loss, wind and water erosion, and construction in areas with sandy soils susceptible to blowouts

and slides. (Tanderup, 723:4-10, 725:3-25, 728:2-6, 730:8-17; Crumly, 766:17-25, 768:21-

769:25; Kilmurry, 803:25-804:17; 810:11-19; Steskal, 870:25-874:22; Allpress, 884:14-885:1).

Several landowners also expressed concerns related to the proximity of the pipeline to wells and

other water sources. (Tanderup, 744:6-25; Crumly, 773:25-774:25; Kilmurry, 813:22-816:17;

Grier, 980:8-17; Morrison, 913:19-914:18). Some also stated concerns that increased soil

temperature from the pipeline could adversely affect crops and other plant life. (Tanderup, 734:14-

740:7; Dunavan, 791:19-792:9).

The Landowners also offered testimony from Dr. Michael O’Hara, a College of Business

Administration Professor at the University of Nebraska at Omaha. (LO 189, 4, Vol. XVII).

Dr. O’Hara was retained by the Landowner Intervenors to do an analysis of the economic impact

of the proposed pipeline in Nebraska and to review Dr. Goss’s socioeconomic report. (LO 189, 1-

2, Vol. XVII). Dr. O’Hara opined that the pipeline’s presence would decrease the value of property

on the route by approximately fifteen percent. (829:16-18; LO 189, 6-7, Vol. XVII). He stated

14
this analysis included a review of the “hedonic value” of the affected real estate, concluding the

pipeline would “reduce the emotional attitude of property owners towards their property.”

(849:24-851:8). On cross-examination, he confirmed that he did not evaluate or analyze the

Department of State’s [“DOS”] analysis concluding the project would not have an impact on

property values, and would have a positive economic through job creation and earnings. (835:1-

836:4). He also took issue with Dr. Goss’s estimate of the amount of increased property tax

revenues generated by the pipeline, but acknowledged that “TransCanada will be obligated to pay

significant sales/use taxes.” (LO 189, 23, 25, Vol. XVII).

Cultural Intervenors Witnesses.

Jason Cooke, a member of the Yankton Sioux Tribe Business and Claims Committee, the

executive body of the Yankton Sioux Tribe [“YST”], testified the pipeline route would run through

territory recognized as part of the YST’s “ancestral territory.” (CUL 25, 2, Vol. XIX). He

expressed concern that cultural resources would “be disturbed by digging into the ground to lay a

pipeline.” (Id.)

Shannon Wright, the Tribal Historic Preservation Officer for the Ponca Tribe of Nebraska,

noted that both the Preferred Route and the Mainline Alternative Route would cross the Ponca

Removal Trail. (CUL 19, 3, Vol. XIX). He opined that construction of the pipeline on either route

could “damage or destroy” historic sites. (CUL 19, 14-19, Vol. XIX). On cross-examination,

Mr. Wright agreed that concerns regarding the effect of pipeline construction on such sites would

be alleviated if Keystone correctly conducted the cultural surveys identified in the Programmatic

Agreement [“PA”] for the Keystone XL Project. (1053:16-1055:3). He also agreed that Keystone

has time to complete these surveys before construction. (1055:4-7). Mr. Wright confirmed that

the Ponca Tribe had been invited by the Department of State and Keystone to consult on the

15
Keystone Project, but that no consultation has occurred recently. (1056:9-1057:13). He agreed

that the Ponca Removal Trail in Nebraska typically coincided with land used for agricultural

purposes, and has often been tilled. (1058:21-1059:2).

Natural Resources Intervenors Witnesses.

Dr. Paul Johnsgard, a University of Nebraska-Lincoln professor of biological sciences

emeritus, has concentrated his research on the comparative biology of several major bird groups,

with special emphasis on the migratory birds of the Great Plains, including whooping cranes.

(NR 1, 1-2, Vol. XIX). Dr. Johnsgard expressed concern that additional electric transmission lines

that would be placed in the central migration corridor due to the Keystone XL Project posed a

threat to whooping cranes from collisions with power lines. (1000:10-1001:8, NR 1, 6-8, Vol.

XIX). He agreed, however, that the risk posed by the project is “small.” (1028:3-8).

Dr. Thomas Hayes, Lead Scientist and Executive Director of Texas Conservation Services,

a non-profit corporation providing research and technical services on various environmental

matters, testified the Keystone XL project would adversely impact natural resources “due to

decreased soil permeability and increased soil compaction in both natural areas and croplands.”

(NR 3, 5, Vol. XIX). He further stated that construction of the pipeline would “seriously deplete

native prairie.” (NR 3, 10, Vol. XIX). Comparing the Preferred Route and the Mainline

Alternative Route, Mr. Hayes concluded that “the Keystone Mainline Alternative Route’s impact

upon federally listed species is significantly less than that of the Preferred Route, primarily due to

the Keystone Mainline Alternative Route impacting 84.6 fewer miles of whooping crane habitat,

compared to the Preferred Route.” (NR 1, 3, Vol. XIX). He also stated that the “Application

downplays the measurable benefits of co-locating the Keystone Mainline Alternative Route. With

88.3 and 102.2 miles, respectively, of pipeline and total co-location, compared to the Preferred

16
Route, the Keystone Mainline Alternative Route substantially decreases its overall impact by

reworking far more industrially impacted areas and, consequently, reducing impacts to relatively

undisturbed land.” (NR 1, 3-5, Vol. XIX).

Joseph Trungale, a consultant with Trungale Engineering and Science specializing in

hydrology and in-stream flows, expressed concerns related to the lack of site specific information

on physical, chemical, and biological impacts associated with construction of the pipeline at stream

channels. (NR 4, 3, Vol. XIX). He also expressed concern that there was insufficient information

regarding stream channel erosion and migration and mitigation efforts, and that the pipeline would

pass through areas of shallow aquifers which could impact those systems during construction.

(Id.).

Economic Intervenor Witnesses.

David Barnett, an International Representative assigned to the Pipeline and Gas

Distribution Department for the United Association of Journeymen and Apprentices of the

Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO [“UA”], testified

about the positive economic impacts of using union labor on the Keystone XL Project. (ECO 1,

1, Vol. XIX). He stated UA had worked with TransCanada on several recent projects and

estimated that UA could expect 564 jobs for its members on construction of the Keystone XL

Project. (ECO 1, 10-11, Vol. XIX).

Bill Gerhard, a special representative for the Midwest Region of Laborers International

Union of North America [“LiUNA”], also testified regarding the positive economic impact of the

Keystone XL construction project on LiUNA and its members. He stated the project presented a

significant opportunity for the creation of several different types of energy-related jobs, including

pipeline construction jobs and pump station jobs. (ECO 2, 5, Vol. XIX).

17
ARGUMENT

I. THE PSC HAD AUTHORITY TO ACT ON KEYSTONE’S ROUTE

APPLICATION.

The Landowners’ leadoff argument is that the PSC lacked authority to act on Keystone’s

route application because MOPSA requires an application to be first submitted to and rejected by

the Governor before the PSC may consider it. Brief of Appellants at 14. In other words, as the

Landowners put it, “gubernatorial denial of the KXL Application was a prerequisite for the PSC.”

Brief of Appellants at 13 (emphasis in original).

This argument is without merit for several reasons. First and foremost, although the

Landowners label their argument as a “jurisdictional” defect, what they actually describe is an

alleged failure to satisfy a condition precedent. Since that argument is decidedly not one they

pressed below, it has been waived. Second, it is foreclosed by this Court’s unambiguous holding

that MOPSA provides applicants a “procedural choice” between the Governor and the PSC. Third,

it is unsupported by the plain text of the statute. It rests on a hyper-restrictive interpretation of

MOPSA that reads into the statute’s text a prerequisite for PSC authority which the Legislature

did not enact.

First, the Landowners’ PSC authority argument was never asserted below and should be

deemed waived. Appellate courts do not generally consider arguments and theories raised for the

first time on appeal. State v. Ortega, 290 Neb. 172, 182, 859 N.W.2d 305, 314 (2015). Here, not

only do the Landowners press their argument for the first time on appeal, they took a contrary

position below. (T6012) (“The Landowners urge you to decide that the Application should be

denied. But, if approved, it should be for the Mainline route…”; (T6011) (“If there is, in your

majority’s view, enough proof for conditional approval of the alternate route…this is within your

18
power.”)).

Likely realizing this, the Landowners dress their assertion as jurisdictional, Brief of

Appellants at 13, presumably in the hope that it will be viewed as a “jurisdictional bar” argument

that can permissibly be raised for the first time on appeal. See, e.g., Davis v. State, 297 Neb. 955,

975, 902 N.W.2d 165, 184 (2017). Their argument should enjoy no such protection.

In substance, the Landowners argue not a jurisdictional bar, but rather that MOPSA

established gubernatorial denial as a condition precedent to the PSC considering a major oil

pipeline application. Indeed, they even include the term “conditions precedent” in their argument.

Brief of Appellants at 16. This is critical, since conditions precedent are typically not considered

jurisdictional prerequisites, but rather procedural requirements which can be waived. See, e.g.,

Weeder v. Cent. Cmty. Coll., 269 Neb. 114, 120, 691 N.W.2d 508, 513 (2005); 5 Neb. Prac. Civil

Procedure § 11:4. To that extent, the attempt to inject this issue into this litigation for the first time

on appeal should be rejected.

The Landowners’ argument should not be spared this consequence simply because they

attempt to use the term “jurisdictional” as a talisman. In recent years, both this Court and the U.S.

Supreme Court have criticized the over-classification of rules as “jurisdictional” in nature. This

Court recently quoted the U.S. Supreme Court as follows:

To ward off profligate use of the term “jurisdiction,” we have adopted a “readily

administrable bright line” for determining when to classify a statutory limitation as

jurisdictional.... We inquire whether Congress has “clearly state[d]” that the rule is

jurisdictional; absent such a clear statement, we have cautioned, “courts should treat the

restriction as nonjurisdictional in character.” ...This is not to say that Congress must incant

magic words in order to speak clearly. We consider “context, including this Court's

19
interpretations of similar provisions in many years past,” as probative of whether Congress

intended a particular provision to rank as jurisdictional.

Karo v. Nau Country Ins. Co., 297 Neb. 798, 811-12, 901 N.W.2d 689, 699 (2017) (quoting

Sebelius v. Auburn Regional Medical Center, 568 U.S. 145, 153-54 (2013)); see also Hamer v.

Neighborhood Hous. Servs. of Chicago, 583 U.S. ___, 138 S. Ct. 13, 20 n.9 (2017).

These principles apply here. As discussed below, MOPSA and its related statutes are

devoid of any language clearly stating that gubernatorial denial is even a condition precedent to

PSC action, much less that the Legislature intended such denial to serve as a jurisdictional

prerequisite. As such, the Landowners’ primary argument can enjoy no shield from the principle

that its failure to be pressed below means it has been waived on appeal.

Second, the Landowners’ argument is squarely foreclosed by this Court’s decision in

Thompson v. Heineman, 289 Neb. 798, 857 N.W.2d 731 (2015). There, the Court described the

Legislature as having “enacted a regulatory choice for major oil pipeline carriers seeking to

exercise eminent domain power.” Id. at 806-07, 857 N.W.2d at 742 (emphasis added). As the

Court described, “a pipeline carrier had two choices: It could . . . receive the approval of the

Governor for [a major oil pipeline] route, or it could comply with the MOPSA approval process

through the PSC.” Id. (internal quotation omitted; emphasis added); see also id. at 825, 857

N.W.2d at 753 (“TransCanada, in particular, and all major pipeline carriers, benefited from having

a procedural choice.” (emphasis added)). The Landowners mention Thompson v. Heineman but,

notably, do not even attempt to address or distinguish its procedural/regulatory choice holdings.

Brief of Appellants at 14.

Third, even if somehow Thompson v. Heineman is not independently dispositive on this

issue, the Landowner’ argument finds no support in the plain language of the relevant statutes.

20
Statutory interpretation “begins with the text.” Kozal v. Neb. Liquor Control Comm’n, 297 Neb.

938, 947 n.27, 902 N.W.2d 147, 155 (2017) (quoting Ross v. Blake, 136 S. Ct. 1850, 1856 (2016)).

Statutory language is to be given its plain and ordinary meaning, and an appellate court will not

resort to interpretation to ascertain the meaning of statutory words which are plain, direct, and

unambiguous. Archer Daniels Midland Co. v. State, 290 Neb. 780, 788, 861 N.W.2d 733, 739

(2015). In discerning the meaning of a statute, a court must determine and give effect to the

purpose and intent of the Legislature as ascertained from the entire language of the statute

considered in its plain, ordinary, and popular sense. Id., 861 N.W.2d at 739-40. If the language

of a statute is clear, the words of such statute are the end of any judicial inquiry regarding its

meaning. Id., 861 N.W.2d at 740. An appellate court will not read into a statute a meaning that is

not there. Cookson v. Ramge, 299 Neb. 128, 132, 907 N.W.2d 296, 300 (2018).

As a general matter, the Nebraska Constitution provides that “[t]he powers and duties of

[the PSC] shall include the . . . general control of common carriers as the Legislature may provide

by law.” Neb. Const. art. IV, § 20. The Legislature so provided when it enacted MOPSA, which

provides, in relevant part:

(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 of the major oil pipeline within Nebraska. If a pipeline carrier proposes a

substantive change to the route of a major oil pipeline and the pipeline carrier has submitted

a route for an oil pipeline within, through, or across Nebraska but the route is not approved

21
by the Governor pursuant to section 57-1503, the pipeline carrier shall file an application

for the proposed change with the commission and receive approval pursuant to section 57-

1408 prior to beginning construction relating to the proposed change.

Neb. Rev. Stat. § 57-1405(1). It is the “but the route is not approved by the Governor” clauses in

the quoted sentences—and exclusively those clauses—on which the Landowners rest their

argument that PSC jurisdiction must be preceded by a gubernatorial denial. Brief of Appellants at

14.

The Landowners’ argument primarily fails to account for Neb. Rev. Stat. § 57-1101, which

provides, in relevant part:

“for any major oil pipeline as defined in section 57-1404 to be placed in operation in the

State of Nebraska after November 23, 2011, any such person, company, corporation, or

association shall comply with section 57-1503 and receive the approval of the Governor

for the route of the pipeline under such section or shall apply for and receive an order

approving the application under the Major Oil Pipeline Siting Act, prior to having the

[eminent domain] rights provided under this section.”

(emphasis added).

Section 57-1101, critically, is the statute that authorizes the exercise of eminent domain

power after an applicant has obtained approval of a proposed pipeline pursuant to the use of one

of the procedural/regulatory choices available—i.e., either by application to the Governor or

through MOPSA. See Thompson, 289 Neb. at 806-07, 857 N.W.2d at 742. As such, MOPSA, and

specifically § 57-1405(1), must be interpreted in harmony with § 57-1101, given their relation.

Kozal, 297 Neb. at 947-48, 902 N.W.2d at 155 (“[The Court] ascertain[s] the meaning of a statute

by reading it in pari materia, in light of the broader structure of the relevant act and related

22
statutes.”). The Landowners’ proposal should thus be rejected because it asks the Court to interpret

MOPSA in direct contradiction to its related eminent domain authorization statute.

Likewise, the Landowners ask the Court to read into MOPSA a requirement its plain text

does not contain and cannot support. In neither Neb. Rev. Stat. § 57-1405(1) nor in any other

MOPSA provision will the Court find language expressly stating that gubernatorial denial must

precede PSC jurisdiction. A careful review of the statute reveals no “if-then” phrasing, no

language that the PSC shall not act “unless” there is a gubernatorial denial, no “shall apply to the

Governor first” requirement, or anything similar. In sum, the Landowners’ notion that

gubernatorial denial serves as a condition precedent rises or falls on the “but the route is not

approved by the Governor” clauses in § 57-1405.

But the Legislature knows how to enact a condition precedent before some other act may

proceed. It has done so in multiple instances elsewhere in statute and it has done so with clear,

unambiguous language. One example is Neb. Rev. Stat. § 81-8,213 (2014), which provides that

“[n]o suit shall be permitted under the State Tort Claims Act unless the Risk Manager or State

Claims Board has made final disposition of the claim,” or, alternatively, if no disposition is made

within six months. (emphasis added). The Political Subdivisions Tort Claims act likewise

provides that a governing body must be presented with a claim as a condition precedent to a suit

in district court and uses the same “unless” term to delineate the condition precedent to suit. Neb.

Rev. Stat. § 13-906 (2012).

Other statutes contain “condition precedent” as an express term. One is found in the tax

foreclosure statutes and provides that the payment into escrow of unpaid property taxes and certain

court costs shall be “a condition precedent” to the institution of an action to contest the validity of

tax foreclosure proceedings. Neb. Rev. Stat. § 77-1935 (2009). Another example, Neb. Rev. Stat.

23
§ 25-21,194 (2016), frames the possible condition precedent in the negative by authorizing

shoplifter civil liability to shoplifting victims, but providing that the shoplifter’s criminal

conviction “shall not be a condition precedent” to maintaining the civil action.

Although the subjects of these statutes differ markedly from major oil pipeline siting, that

in no way diminishes the relevance of their condition precedent language to the instant question.

They show that the Legislature knows how to mandate a condition precedent. The Legislature’s

decision to omit such language from MOPSA is significant. “The intent of the Legislature may be

found through its omission of words from a statute as well as its inclusion of words in a statute.”

Cookson, 299 Neb. at 133, 907 N.W.2d at 300. “The Legislature is presumed to know the general

condition surrounding the subject matter of the legislative enactment, and it is presumed to know

and contemplate the legal effect that accompanies the language it employs to make effective the

legislation.” Stewart v. Nebraska Dep’t of Revenue, 294 Neb. 1010, 1019-20, 885 N.W.2d 723,

731 (2016).

Here, the omission of the language the Legislature has used in other instances to establish

conditions precedent supports the proposition that no such condition precedent exists in MOPSA.

See Cookson, 299 Neb. at 133, 907 N.W.2d at 300. Had the Legislature intended the “but the route

is not approved by the Governor” clauses in Neb. Rev. Stat. § 57-1405(1) to establish gubernatorial

denial as a condition precedent, it would have used language similar to the above-cited examples

to evidence such an intent. See id. at 134, 907 N.W.2d at 300.

II. THE PSC HAD AUTHORITY TO APPROVE THE MAINLINE ALTERNATIVE

ROUTE.

The Landowners’ second assignment of error asserts that the PSC lacked authority to

approve the Mainline Alternative Route because, as they put it, Keystone did not actually apply

24
for any route except the Preferred Route and the PSC’s authority does not allow it to approve

alternative routes. Brief of Appellants at 12, 17-22. The Landowners paint the PSC’s authority as

narrow and binary; an application may be deemed to propose only a single route and the PSC’s

authority is restricted to either approving or denying that route, full stop.

This argument is likewise without merit. As a threshold matter, the Landowners have

flipped their argument on this issue. As noted in Argument I, the Landowners expressly argued

below that the PSC had precisely the authority they now claim it lacks. (T6011-12). They were

not alone among the intervenors making such arguments below, as Natural Resource Intervenor

Sierra Club/Bold Alliance made the same argument in their final briefing before the PSC. (T5884

(“PSC has the authority to approve or disapprove of each route location by considering the benefits

and feasibility of each of the proposed routes.”). “A party may not complain of error which he has

invited.” Langenheim v. City of Seward, 200 Neb. 740, 747, 265 N.W.2d 446, 451 (1978). Having

urged the PSC to approve an alternative to the Preferred Route, the Landowners cannot now argue

it was error for the PSC to do so.

Consistent with the Landowners’ position below, the PSC had statutory authority to

approve a feasible alternative route such as the Mainline Alternative. At the outset, the common

carrier regulatory authority conferred upon the PSC is broad. Neb. Const. art. IV, § 20 (“The

powers and duties of [the PSC] shall include the . . . general control of common carriers as the

Legislature may provide by law.”). As a majority of this Court reiterated in Thompson v.

Heineman, consistent with the PSC’s constitutional history, “the PSC has ‘independent legislative,

judicial, and executive or administrative powers’ over common carriers, which powers are plenary

and self-executing.” 289 Neb. at 832, 857 N.W.2d at 757 (quoting Swanson v. Sorensen, 181 Neb.

312, 316, 148 N.W.2d 197, 200 (1967)). “Absent specific legislation, the PSC’s enumerated

25
powers over common carriers are absolute and unqualified.” Thompson, 289 Neb. at 832, 857

N.W.2d at 757; Nebraska Pub. Serv. Comm'n v. Nebraska Pub. Power Dist., 256 Neb. 479, 490,

590 N.W.2d 840, 848 (1999).

Against this constitutional backdrop, and to overcome the default “plenary” powers of the

PSC, the Landowners must identify some provision in MOPSA that specifically restricts the PSC’s

authority to approve a feasible alternative route when considering a major oil pipeline application.

That is a tall order. The Landowners rely on 18 references within MOPSA “to the applied for

‘route.’” Brief of Appellants at 20-21. Those provisions’ inclusion of the term “route” in the

singular, according to the Landowners, reveals the Legislature’s intent to restrict the PSC to either

approving or denying an applicant’s stated preferred route, but no other.

Those 18 “route” mentions cannot bear the weight the Landowners seek to place upon

them. Not one contains a limitation against an applicant’s presenting alternative routes for the

PSC’s consideration, nor do any of those statutes impose on the PSC the profoundly restrictive

“up or down on a single route” rule the Landowners imagine. All the Landowners can point to is

the happenstance of “route” in the singular in a few (but not all, as discussed next) of MOPSA’s

provisions. That is not nearly enough to constitute the “specific legislation” required to find a

limitation on the PSC’s “plenary,” “self-executing,” “absolute,” and “unqualified” default

authority. Thompson, 289 Neb. at 832, 857 N.W.2d at 757; Nebraska Pub. Power Dist., 256 Neb.

at 490, 590 N.W.2d at 848.

Indeed, multiple MOPSA provisions squarely contradict the Landowners’ position.

Among MOPSA’s express purposes is to empower the PSC to “deal solely with the issue of siting

or choosing the location of the route . . . .” Neb. Rev. Stat. § 57-1401(2) (emphasis added). Among

the Legislature’s findings was its statement that the State’s sovereign authority may be validly

26
exercised by “regulation through approval or disapproval of major oil pipeline siting and the

location of routes . . . .” Neb. Rev. Stat. § 57-1403(1) (emphasis added). A major oil pipeline

application must contain “evidence of consideration of alternative routes.” Neb. Rev. Stat. § 57-

1405(2)(b) (emphasis added). Among the PSC’s powers in considering an application is its

authority to request outside agency reports opining on “the advisability of approving, denying, or

modifying the location of the proposed route of the major oil pipeline.” Neb. Rev. Stat. § 57-

1407(3) (emphasis added). Among the factors the PSC must evaluate is “[w]hether any other

utility corridor exists that could feasibly and beneficially be used for the route of the major oil

pipeline.” Neb. Rev. Stat. § 57-1407(4)(e) (emphasis added).

These provisions support the proposition that the PSC possesses regulatory flexibility in

carrying out its duties under MOPSA, a conclusion that is fully consistent with—and, indeed,

mandated by—the “plenary,” “self-executing,” “absolute,” and “unqualified” authority the

Constitution confers upon the PSC by default. Neb. Const. art. IV, § 20; Thompson, 289 Neb. at

832, 857 N.W.2d at 757; Nebraska Pub. Power Dist., 256 Neb. at 490, 590 N.W.2d at 848.

In construing a statute, a court must look to the statutory objective to be accomplished, the

evils and mischiefs sought to be remedied, and the purpose to be served, and then must place on

the statute a reasonable or liberal construction that best achieves the statute's purpose, rather than

a construction that defeats the statutory purpose. State v. Duncan, 294 Neb. 162, 171, 882 N.W.2d

650, 656 (2016). The Landowners’ argument would foist a restrictive, wooden, and binary set of

options upon the PSC, frustrating its ability to execute its duties in a manner consistent with all of

MOPSA’s equally-weighted purposes set forth under Neb. Rev. Stat. § 57-1402.

Finally, the Power Review Board cases provide no support to the Landowners’ position.

Brief of Appellants at 17 (citing In re Application of Neb. Pub. Power Dist. (“In re NPPD”), 281

27
Neb. 350, 798 N.W.2d 572 (2011); In re Application of Lincoln Elec. System (“In re LES”), 207

Neb. 289, 298 N.W.2d 366 (1980)). Simply put, the authority analysis is inverted as compared to

that of the PSC here. As the In re NPPD Court held, the Power Review Board, “as an

administrative board, had no power or authority other than that specifically conferred upon it by

statute or by construction necessary to accomplish the purpose of the act.” 281 Neb. at 356, 798

N.W.2d at 578 (emphasis added; internal quotation omitted). On that basis, and in the context of

that particular statute, the suggestion that the Power Review Board could “investigate other

possible [transmission line] routes [was] contrary to the statute and case law.” Id. at 357, 798

N.W.2d at 578. In other words, the Power Review Board has only those enumerated powers

conferred upon it by statute.

Contrast that to the PSC, with its “plenary,” “self-executing,” “absolute,” and “unqualified”

powers conferred upon it directly by the Constitution. Neb. Const. art. IV, § 20; Thompson, 289

Neb. at 832, 857 N.W.2d at 757; Nebraska Pub. Power Dist., 256 Neb. at 490, 590 N.W.2d at 848.

The PSC, unlike the Power Review Board, is vested with a great deal more inherent authority

which, in the absence of some “specific legislation” providing otherwise, see Thompson, 289 Neb.

at 832, 857 N.W.2d at 757, retains flexible authority to regulate common carriers, including to

approve feasible alternative major oil pipeline routes. The Power Review Cases simply do not

assist the Landowners’ argument.

III. THE RECORD EVIDENCE SUPPORTS THE PSC’S FINDING THAT

APPROVAL OF THE MAINLINE ALTERNATIVE ROUTE IS IN THE PUBLIC

INTEREST.

MOPSA required the PSC to evaluate eight factors in determining whether approval of a

proposed route for the Keystone XL pipeline was in the “public interest.” Neb. Rev. Stat. § 57-

28
1407(4)(a) to (h) (Supp. 2017). Keystone, as the applicant, had “the burden to establish that the

proposed route of the major oil pipeline would serve the public interest.” § 57-1407(4). The

Landowners’ Assignments of Error 3 and 4 assert that Keystone did not meets its burden of proof

to sustain approval of its application, and that the route approved is not in the public interest. In

determining whether Keystone met its burden, the PSC properly relied on all record evidence in

evaluating the statutory factors to find that approval of the Mainline Alternative Route was in the

public interest.

A. Compliance with Applicable State Statutes, Rules and Regulations, and Local

Ordinances.

The first “public interest” consideration is “whether the pipeline carrier has demonstrated

compliance with all applicable state statutes, rules, and regulations and local ordinances.” § 57-

1407(4)(a). In its Application, Keystone stated it would “comply with all applicable state statutes,

rules, regulations, and local ordinances.” (KXL 1, § 12.0, 38, Vol. X). Keystone has obtained, or

will obtain, all required permits required to comply with state laws, regulations, and local

ordinances, including zoning requirements. (Id.). Tony Palmer, President of the two entities that

own Keystone, reaffirmed these commitments in his pre-filed testimony and at the hearing. (KXL

2, 4-5; 162:20-163:3; 186:15-187:21).

The PSC recognized that “[t]o expect an applicant to list each and every law, rule,

regulation, or ordinance they have, or may have to comply with during a construction project of

this magnitude would be impractical.” (T6179). The PSC properly found that Keystone’s

commitments satisfied this factor.

29
B. Evidence of Impact on Natural Resources.

The PSC was also required to consider “[e]vidence of the impact due to intrusion upon

natural resources and not due to safety of the proposed route of the major oil pipeline to natural

resources of Nebraska, including evidence regarding the irreversible and irretrievable

commitments of land areas and connected natural resources and the depletion of beneficial uses of

the natural resources.” § 57-1407(4)(b). Both the Preferred and Mainline Alternative Routes avoid

the NDEQ defined area of the Nebraska Sandhills. (KXL 1, § 3.0, 19-20 (Fig. 3.0-1), Vol. X). As

a large percentage of the land crossed by the pipeline is agricultural in nature, impacts on

vegetation are short term. (KXL 1, §§ 13-18, 38-63, KXL-5, 1-3, KXL 6, 1-4, KXL 7, 2-3, KXL

8, 1-4, Vol. X). The impact of construction will be largely temporary and not major. (Id.).

Keystone witness Beaver testified that construction of the pipeline would not significantly increase

the impermeability of the soil. (KXL 11, 1-2, Vol. X). The PSC found that, compared to the

Preferred Route, the Mainline Alternative Route was more beneficial in that it involved “one fewer

river crossing, fewer wells within 500 feet of the pipeline, fewer acres of pivot irrigated land

crossed, fewer crossing of intermittent and perennial streams, fewer miles of pipeline placed in

areas of shallow groundwater, and fewer state highways and natural gas facilities to be crossed.”

(T6195; KXL 1, Table 2-1, 16-18, Vol. X).

While the Natural Resources Intervenors focused on alleged negative impacts on the

whooping crane of locating the pipeline on the Preferred Route, the PSC noted that the Mainline

Alternative Route “would impact 84.6 fewer miles of whooping crane migratory path as compared

to the Preferred Route,” as well as impacting “fewer miles of the ranges” of other “threatened and

endangered species”, including the interior least tern, piping plover, Massauga rattlesnake, river

otter, and small white lady’s slipper.” (T6195; KXL 1, Table 2-1, 15, Vol. X). Natural Resources

30
Intervenors witness Dr. Hayes noted this fact in concluding “the Keystone Mainline Alternative

Route’s impact upon federally listed species is significantly less than that of the Preferred Route.”

(NR 1, 3, Vol. XIX).

The PSC requested the NDEQ to analyze the environmental impact of the Mainline

Alternative Route. (T1334). NDEQ’s response concluded that location of the pipeline on the

Mainline Alternative Route would have minimal environmental impacts in Nebraska. (PSC 4, 10-

84, Vol. VIII). The evidence supports finding the Mainline Alternative Route would not have a

significant negative impact on natural resources.

C. Evidence of Methods to Minimize or Mitigate Potential Impacts.

The PSC was also required to evaluate “evidence of methods to minimize or mitigate the

potential impacts of the major oil pipeline to natural resources.” § 57-1407(4)(c). Keystone

provided a Construction Mitigation and Reclamation Plan [“CMRP”] containing “construction,

operation, and maintenance measures that are designed to reduce the likelihood and severity of

impacts along the pipeline construction corridor and during operations.” (KXL 1, § 9.6, 34, App.

D, 90-199, Vol. X). The CMRP outlines procedures for soil protection, water-crossing methods,

vegetation reclamation, and aquatic resources protection to be used by Keystone to minimize

environmental disturbance and bring the land impacted by the pipeline as close as reasonably

practicable to the condition, contour, and vegetation that existed prior to construction. (KXL 1,

§ 8, 22-30, App. D, 90-199, Vol. X). The CMRP measures are based on best practices within the

pipeline construction industry. (KXL 11, 3, Vol. X). Keystone also provided Construction

Reclamation [“Con/Rec”] Units for the project and a Noxious Weed Management Plan that are

intended to work in conjunction with the CMRP. (KXL 1, App. F, 228-252; App. E, 202-227,

Vol. X). Keystone also committed to developing and implementing a Construction Spill

31
Prevention, Control, and Countermeasure Plan, which will be finalized when construction

contractors are engaged for the project. (KXL 1, § 9.11, 36, KXL 5, 2-3, Vol. X). The record

supports the PSC’s finding that “the procedures set forth by [Keystone] conform to industry

standards and are reasonable.” (T6184).

D. Evidence Regarding Economic and Social Impacts.

The PSC must also evaluate “evidence regarding the economic and social impacts of the

major oil pipeline.” § 57-1407(4)(d). The PSC separately addressed the economic and social

impacts, recognizing “there is overlap between the two areas.” (T6184-85).

1. Economic Impact.

Keystone offered evidence of the socio-economic impacts of the project in Dr. Goss’s

testimony and report. (KXL 4, 1-2; KXL 1, App. H, 335-372, Vol. X). Dr. Goss’s report

concluded that the pipeline project would constitute an economic benefit to Nebraska and would

contribute to both the state and local tax bases. (KXL 1, App. H, 344, Vol. X). He estimated

construction of the pipeline would result in positive tax revenue in an amount estimated to exceed

$264 million through the year 2034. (KXL 1, App. H, 341, Vol. X). The NDEQ and DOS also

found the pipeline would produce significant, positive tax effects for Nebraska and the United

States. (KXL 19, 25-26, Vol. X; KXL 20, 8-9, 26-27, Vol. XIII). The Economic Intervenors also

presented evidence of the positive economic impacts of using union labor on the Keystone XL

Project. (ECO 1, 1, Vol. XIX). David Barnett testified the UA worked with TransCanada on

several recent projects and estimated that UA could expect 564 jobs for its members on

construction of the Keystone XL Project. (ECO 1, 10-11, Vol. XIX). Bill Gerhard of “LiUNA”

also testified the project presented a significant opportunity for the creation of several different

types of energy-related jobs, including pipeline construction jobs and pump station jobs. (ECO 2,

32
5, Vol. XIX). The Landowners countered with Dr. O’Hara’s testimony asserting the project would

not provide long-term tax benefits, would create few permanent jobs, and would adversely impact

property values of land in the pipeline’s path. (LO 189, 6-7, 23, 25, Vol. XVII).

The PSC, while finding “much of the economic testimony was conflicting,” concluded

“what wasn’t disputed was that Nebraska will accrue economic benefit from the Keystone XL

Project.” (T6187). The record supports the PSC’s conclusion that the State will “benefit from the

investment and activity that is associated with the pipeline construction and operation.” (T6187).

2. Social Impact.

Under the National Historic Preservation Act [“NHPA”] (56 U.S.C. § 300101 et seq.), the

DOS is the lead federal agency for review of the proposed pipeline and tribal consultation.

(KXL 19, 271, Vol. X). Pursuant to Section 106 of the NHPA, the DOS, the Nebraska State

Historical Preservation Officer, Keystone, and various other state and federal agencies entered into

an amended PA in December, 2013. (KXL 14, 7-160, Vol. X). The PA requires Keystone to

avoid, whenever feasible, adverse effects on known cultural resources. (KXL 23, 13, 16-19, Vol.

XIV). In the event of unanticipated discovery of cultural resources, construction activities in the

area must cease and may only resume after the resources are evaluated and protected. (KXL 23,

13, 16-19, Vol. XIV). The PA includes a Tribal Monitoring Plan which allows tribal monitors

with experience in identification of cultural resources to monitor construction along the pipeline

route. (KXL 23, 16-17, 92, 97-104, Vol. XIV). Keystone’s CMRP also contains an express

commitment to comply with any PA in order to minimize the impact on cultural sites along the

route and address any unanticipated cultural discoveries during construction. (KXL 1, App. D,

105, Vol. X). Shannon Wright, the Tribal Historic Preservation Officer for the Ponca Tribe of

Nebraska, while expressing concern that construction of the pipeline could “damage or destroy”

33
historic sites, acknowledged this concern would be alleviated if Keystone correctly conducted the

cultural surveys identified in the PA. (CUL 19, 14-19, Vol. XIX; 1053:16-1055:3). The record

supports the PSC’s finding that Keystone demonstrated “compl[iance] with federal law and made

alterations of the route to accommodate culturally important sites and it is reasonable to expect

that Keystone will continue to do so…”, and that Keystone’s “compliance with the PA and NHPA

will help to assure that the route of the pipeline will be in the public interest.” (T6189).

E. Existence of Other Utility Corridors.

The PSC was also required to consider “[w]hether any other utility corridor exist[ed] that

could feasibly and beneficially be used for the route of the major oil pipeline.” § 57-1407(4)(e).

As the term “utility corridor” is not defined in MOPSA, the PSC found the plain meaning of the

term “is a passageway for facilities providing public services.” (T6191). The Mainline Alternative

Route, which runs near the existing Keystone I Pipeline for approximately 95 miles, “was

developed to maximize the length of co-location with the existing Keystone Mainline Pipeline,”

otherwise referred to as Keystone I, in eastern Nebraska. (KXL 1, § 20.3, 66, Vol. X). The PSC

found that, “while it does not 100% co-locate the Keystone I line,” the Mainline Alternative Route

“does utilize an existing utility corridor, the Keystone I Pipeline, for approximately two-thirds of

the route through Nebraska...,” providing “the opportunity to utilize at least a portion of an

alternative utility corridor that does exist.” (T6192).

Keystone’s Application proposed three alternatives: (1) the Sandhills Alternative Route;

(2) the Mainline Alternative Route; and (3) the Preferred Route. (KXL 1, §§ 2.0-3.0, 8-20, Vol.

X). The PSC rejected the Sandhills Alternative Route, the original proposed Keystone XL route,

which was subsequently modified in consultation with NDEQ after concerns regarding the

Sandhills region were raised by Nebraskans. (T6193-94). The PSC also rejected the Preferred

34
Route, which was previously reviewed by NDEQ and approved by the Governor, finding it

“fail[ed] to take advantage of any opportunity to co-locate with the existing utility corridor

represented by Keystone I” and thus was not “in the public interest.” (T6194). A majority of the

PSC, however, approved the Mainline Alternative Route. In finding this route was in the public

interest, the PSC noted that the Mainline Alternative Route “would co-locate near the Keystone I

Mainline Route for approximately 100 miles for a total route length of 280.5 miles long, which is

only 5 miles longer than the Preferred Route.” (T6194). The PSC also cited testimony by

Keystone’s engineer that the Mainline Alternative Route was viable, and could “feasibly” and

“beneficially” be used in Nebraska. (Id.; 638:8-22). The PSC also noted that NDEQ had found

the Mainline Alternative Route “would have minimal environmental impacts in Nebraska,” and

outlined a number of specific benefits over the Preferred Route in terms of impacts on wildlife and

natural resources. (T6194-95; PSC 4, 10-84, Vol. VIII). While the Mainline Alternative Route is

five miles longer than the Preferred Route, and requires construction of an additional pumping

station, the record supports the PSC’s finding that “the benefits of maximizing co-location

opportunities and utilizing the existing utility corridor that is the Keystone I Mainline

Route,…outweigh the additional five (5) miles added to the length of the pipeline and a pumping

station.” (T6195).

F. Impact of the Pipeline on Orderly Development of the Area.

Another factor the PSC considered was “[t]he impact of the major oil pipeline on the

orderly development of the area around the proposed route of the major oil pipeline.” § 57-

1407(4)(f). The pipeline, including pump stations, will be constructed primarily on agricultural

land and located in rural areas. (KXL 1, § 21, 69; KXL 3, 2-3, Vol. X). The presence of the

pipeline after construction is completed will not interfere with normal agricultural operations.

35
(Id.). Moreover, the Mainline Alternative Route promotes orderly development by maximizing

the length of co-location with the existing Keystone I Pipeline. (T6194). The record supports the

PSC’s finding that “[t]he impact on development of the area along the location of the pipeline

seems minimal.” (T6191).

G. Reports of State Agencies.

MOPSA provides that the PSC may request nine state agencies to file reports “regarding

information within the respective agencies’ area of expertise relating to the impact of the major oil

pipeline on any area within the agencies’ jurisdiction, including in such report opinions regarding

the advisability of approving, denying, or modifying the location of the proposed route of the major

oil pipeline.” § 57-1407(3). In determining if a pipeline route is in the public interest, the PSC is

to evaluate “[t]he reports of the agencies filed pursuant to” § 57-1407(3). § 57-1704(4)(g). The

PSC requested opinions and information on both the Preferred Route and the Mainline Alternative

Route from all nine of the listed agencies. (T459-467, 1334-1337). All agencies responded and

none expressed any concerns regarding approval, denial, or relocating either route. (PSC 4, 1, 2-

7, 88, 89-94, 116-17, 118-20, 121-42, 143, 144, 145-56, 147-50, Vol. VIII).

H. Views of the Counties and Municipalities.

The PSC is also required to evaluate “[t]he views of the governing bodies of the counties

and municipalities in the area along the proposed route of the major oil pipeline.” § 57-1407(4)(h).

The PSC sent letters soliciting input on the proposed routes to 18 counties and 32 cities along both

the Preferred Route and the Mainline Alternative Route. (T99-1038). Six counties responded,

with four expressing support (Boone, Nance, Saline, and Seward) and two expressing opposition

(Boyd and Holt). (T1051, 1056, 1065-67, 1324, 1344-51, 1711-12; PSC 5, 1-9, 11, Vol. VIII).

36
Two cities (Seward and Steele City) submitted responses favorable toward the project. (T1052,

1074; PSC 5, 10, 12, Vol. VIII).

I. Ultimate Public Interest Finding.

The PSC considered and addressed all record evidence and evaluated each of the eight

statutory factors required to be considered in determining if approving a route for the Keystone

XL was in the public interest. The PSC’s approval of the Mainline Alternative Route is supported

by the record evidence, and is the product of reasoned decision-making. After conducting its de

novo review of the record, the Court should affirm the PSC’s findings and approval of the Mainline

Alternative Route.

IV. THE PSC PROPERLY MADE PUBLIC INPUT A PART OF THE RECORD.

A. Alleged Errors Must Be Both Specifically Assigned and Specifically Argued.

As an initial matter with regard to Assignments of Error 5 through 8, this Court has stated

that, in order to be considered by an appellate court, an alleged error must be both specifically

assigned and specifically argued by the party asserting the error. Forget v. State, 265 Neb. 488,

492, 658 N.W.2d 271, 275 (2003). The Landowners have assigned four errors concerning

evidentiary rulings, Assignments of Error 5 through 8. Brief of Appellants at 4-5. However, only

Assignment of Error 7 specifically identifies an exhibit, PSC 6, asserted to have been received in

error. The admissibility of exhibits other than PSC 6 thus should not be considered by the Court.

Further, to the extent that the Landowners then argue, in their brief, that additional errors

occurred with regard to receipt of exhibits PSC 6 through PSC 10, those arguments should be

disregarded. “We have repeatedly said that errors argued but not assigned will not be considered

on appeal.” Vokal v. Nebraska Acct. and Disclosure Comm’n, 276 Neb. 988, 996, 759 N.W.2d

75, 82 (2009).

37
B. The Public Comments Offered As Exhibits PSC 7 Through 12 Are Not

Inadmissible Hearsay.

As noted above, Assignment of Error 5 asserts that the PSC “erred when it received

unsworn hearsay evidence [of] ‘public meetings’ under Neb. Rev. Stat. § 57-1407(2)” and that it

erred by denying a timely mistrial motion. Assignment of Error 8 makes reference to receiving

“unsworn statements from those meetings.” We assume that the Landowners refer to PSC 7

through PSC 10, the transcripts of public meetings held in York, O’Neill, Norfolk, and Ralston,

which were offered by the PSC at the hearing on August 7, 2017. The only objection made to

those four exhibits at trial was a hearsay objection. (49:8– 50:17).

The Landowners now make reference to these exhibits as evidence “without foundation”

and argue that their due process rights were violated. Brief of Appellants at 28-29. To the extent

that the Landowners now attempt to raise any objections to the admissibility of the transcripts of

public meetings other than hearsay those arguments should not be considered. A party may not

on appeal assert a different ground for excluding evidence than was raised in the objection made

at the time of trial. Benzel v. Keller Industries, 253 Neb. 20, 567 N.W.2d 552 (1997); Gourley v.

Nebraska Methodist Health System, Inc., 265 Neb. 918, 663 N.W.2d 43 (2003). Therefore, the

only issue for the Court to consider with regard to exhibits PSC 7 through PSC 10 is the

Landowners’ hearsay objection.

First, exhibits PSC 7 through PSC 10 were properly received and included in the agency

record because these transcripts of public meetings are not hearsay as defined in Neb. Rev. Stat.

§ 27-801 (2016) and because, even if hearsay, they would be admissible in evidence pursuant to

Neb. Rev. Stat. § 27-802 (2016). Neb. Rev. Stat. § 27-801 [“Rule 801”] provides that a statement

is hearsay if “offered in evidence to prove the truth of the matter asserted.” As stated by the hearing

38
officer, Judge Flowers, MOPSA requires certain matters to be made part of the agency record.

(39:3-16). Neb. Rev. Stat. § 57-1407(2) specifically provides that, if the Commission holds public

meetings in order to receive input from the public, the Commission “shall make the public input

part of the record.” The transcripts of these public meetings were not offered by the PSC to prove

the truth of the comments and varying points of view expressed at those public meetings, but

instead to comply with Neb. Rev. Stat. § 57-1407(2). “Out-of-court statements, if not offered for

the purpose of proving the truth of the facts asserted, are not hearsay.” Gourley, 265 Neb. at 935,

663 N.W.2d at 63.

Furthermore, even if the transcripts were found to be hearsay under Rule 801, Neb. Rev.

Stat. § 27-802 [“Rule 802”] provides that hearsay is admissible “as provided by these rules, by

other rules adopted by the statutes of the State of Nebraska, or by the discovery rules of the

Supreme Court.” Here, the allegedly hearsay public comments are made admissible by § 57-

1407(2), which requires that the public input from the public meetings be made part of the record.

Indeed, all PSC exhibits were received “for the purposes set forth in MOPSA.” (52:4-8). The

Landowners’ claims regarding the admissibility of the PSC public input exhibits are without merit.

It is not clear whether the Landowners have sufficiently assigned as error the admission

into evidence of exhibits PSC 11 and PSC 12, the public comments received by the PSC by email

and letter through August 11, 2017. However, the Landowners now argue that exhibits PSC 11

and PSC 12 were also received in error. Brief of Appellants at 28. At the hearing the Landowners

made only hearsay objections to both exhibits. (50:7-17, 1223:5-1225:21). Therefore, the issue

as to the admission of these two exhibits is again limited to the hearsay objection. As discussed

above with regard to the public meeting transcripts, these exhibits were properly admitted as they

were not offered to prove the truth of their contents and, thus, are not hearsay. And, as the PSC

39
allowed the public to submit written comments in the form of emails and letters as an extension of

the public’s opportunity to comment at the public meetings, these written comments are authorized

by § 57-1407(2) and would be admissible in evidence, even if hearsay, pursuant to Rule 802.

C. Admission Of The PSC Exhibits Was Harmless Error.

Landowners’ claims as to all of the exhibits discussed above must also fail, as they have

made no showing that the receipt of these exhibits was prejudicial. “To constitute reversible error

in a civil case, the admission or exclusion of evidence must unfairly prejudice a substantial right

of a litigant complaining about evidence admitted or excluded.” In re Application of SID No. 384,

259 Neb. 351, 353, 609 N.W.2d 679, 682 (2000); Hoeft v. Five Points Bank, 248 Neb. 772, 784,

539 N.W.2d 637, 646 (1995).

Landowners have not pointed to even one comment from the public input exhibits (PSC 7

through PSC 12) that impacted, to their prejudice, the PSC’s final determination on the Keystone

application. In fact, many of the public input comments are likely supportive of the Landowners’

positions. Moreover, a review of the PSC’s final order in this matter shows that none of these

exhibits were relied upon or even referred to by the PSC in reaching its decision. (T6140-6210).

The Order of November 20, 2017 reviews in some detail the pre-filed direct testimony and cross-

examination testimony of 10 Keystone witnesses, the pre-filed direct testimony and cross-

examination testimony of 11 witnesses called by the Landowners, and the testimony of witnesses

called by other intervenors. (T6154-6172). In the “Opinion and Findings” section of that Order,

the PSC makes reference to numerous exhibits offered by Keystone, the Landowners and other

intervenors. (T6172-6196). But there is not a single reference to exhibits PSC 7 through PSC 12.

Any claim of prejudice by the Landowners due to placing the public input into the record is simply

misguided. When a review of the record reveals that evidence wrongfully admitted or excluded

40
did not affect the result of the trial, its reception is not prejudicial error. In re Applications T-851

and T-852, 268 Neb. 620, 631, 686 N.W.2d 360, 368 (2004) (“[E]rror without prejudice provides

no ground for appellate relief.” (citation omitted)).

D. Landowner Intervenors’ Motion For A Mistrial Was Correctly Overruled.

Assignment of Error 5 also asserts that the PSC “erred by denying a timely mistrial

motion.” Landowners appear to be referring to their motion for mistrial, on the basis of a due

process violation, made shortly after the PSC exhibits were received in evidence, which was

overruled. (52:14-53:3). Assignment of Error 8 also asserts that holding the public meetings

authorized by Neb. Rev. Stat. § 57-1407(2) and receiving in evidence comments from those

meetings violates the Landowners’ procedural due process rights.

First, as to the motion for mistrial, this was not a trial before a court. This was a contested

case hearing before the PSC governed by MOPSA and the Administrative Procedure Act [“APA”].

Neb. Rev. Stat. §§ 84-901 to 84-920 (2014, Cum. Supp. 2016, Supp. 2017). The PSC “is an

‘agency’ within the meaning of the Administrative Procedure Act . . . [and] the APA’s provisions

apply to the PSC.” Nebraska Pub. Serv. Comm’n v. Nebraska Pub. Power Dist., 256 Neb. 479,

486, 590 N.W.2d 840, 846 (1999) (citing Yellow Cab Co. v. Nebraska State Railway Comm’n, 175

Neb. 150, 120 N.W.2d 922 (1963)). “Administrative agencies likewise have only that authority

specifically conferred upon them by statute or by construction necessary to achieve the purpose of

the relevant act.” Southeast Rur. Vol. Fire Dep’t v. Nebraska Dep’t of Revenue, 251 Neb. 852,

867, 560 N.W.2d 436, 446 (1997) (holding that the APA does not authorize the granting of a

summary judgment motion). The provisions of the APA also provide no authority for the granting

of a mistrial motion in a contested case hearing.

41
Further, even assuming that a mistrial motion was authorized here, it was correctly

overruled. “Decisions regarding motions for mistrial are directed to the discretion of the trial court,

and will be upheld in the absence of an abuse of discretion.” Hike v. State Dep’t. of Roads, 288

Neb. 60, 66, 846 N.W.2d 205, 213 (2014). “A mistrial is appropriate when an event occurs during

the course of a trial which is of such a nature that its damaging effects would prevent a fair trial.

And in addition to being timely, a motion for mistrial must be premised upon actual prejudice, not

the mere possibility of prejudice.” Sturzenegger v. Father Flanagan’s Boys’ Home, 276 Neb. 327,

352, 754 N.W.2d 406, 429 (2008). The Landowners are unable to make any showing that making

the public input comments, or any of the PSC exhibits, a part of the agency record was in any

manner prejudicial to them.

With regard to Landowners’ claims of a due process violation, they received the process

that MOPSA and the APA provide. Landowners rely, in part, on Marshall v. Wimes, 261 Neb.

846, 626 N.W.2d 229 (2001), which recognized “Nebraska law provides that in a contested case

before an administrative agency, opportunity shall be afforded to all parties to the proceeding to

present evidence and argument.” Id. at 850, 626 N.W.2d at 234. This Court has also held “that

when an administrative body acts in a quasi-judicial manner, due process requires notice and an

opportunity for a full and fair hearing at some stage of the agency proceedings.” Stoneman v.

United Neb. Bank, 254 Neb. 477, 484, 577 N.W.2d 271, 277 (1998). The Landowners were

allowed to fully participate as formal intervenors in the PSC’s hearing on Keystone’s application.

Landowners filed a petition for formal intervention on March 10, 2017 (T543-559), as

authorized by the APA at Neb. Rev. Stat. § 84-912.02 (2014). Their petition was granted on

March 31, 2017. (T699-708). A notice of hearing for the evidentiary hearing to begin on August

7, 2017, was entered by the hearing officer on April 5, 2017. (T742-758). There is no question

42
that the Landowner Intervenors fully participated in various pretrial matters and the four-day

evidentiary hearing. They received the due process to which they were entitled. There is no due

process right to have particular exhibits admitted in or excluded from the record. And, in this case,

Neb. Rev. Stat. § 57-1407(2) specifically requires that the PSC “shall make the public input part

of the record.”

E. Neb. Rev. Stat. § 57-1407(2) Is Constitutional.

In Assignment of Error 8, the Landowners erroneously contend that Neb. Rev. Stat. § 57-

1407(2) is unconstitutional as applied in this case. Brief of Appellants at 5. Although not entirely

clear, their argument seems to be it is unconstitutional because holding the public meetings which

the statute authorizes and making the public comments received at those meetings part of the

agency record, as required by statute, violated their due process rights. Brief of Appellants at 28-

30. Their argument fails for several reasons.

Statutes are presumed constitutional and the party challenging the constitutionality of a

statute has the burden of demonstrating that the statute is unconstitutional. In re Applications A-

16027, 242 Neb. 315, 495 N.W. 2d 23 (1993). “Statutes are afforded a presumption of

constitutionality, and the unconstitutionality of a statute must be clearly established before it will

be declared void.” Gourley v. Nebraska Methodist Health System, Inc., 265 Neb. 918, 942, 663

N.W.2d 43, 68 (2003).

The Landowners fall far short of clearly establishing the unconstitutionality of § 57-

1407(2). They offer no reason why simply allowing a state agency to hold public meetings, which

all members of the public, including the Landowners, could attend, violated their due process

rights. There is no support for a suggestion that public meetings of governmental bodies should

43
be subject to the rules of evidence or presided over by a hearing officer. Brief of Appellants at 27-

28.

The Landowners are then left with their previous argument that the transcripts of the public

meetings and other public comments were erroneously made a part of the record. The

Landowners’ hearsay objections have already been discussed in full above as have their rights to

due process afforded them by MOPSA and the APA. They received the due process to which they

were entitled. Therefore, contrary to the Landowners’ claims, because their argument is based on

procedural due process grounds and because they have received the due process to which they are

entitled, they are unable to clearly establish that § 57-1407(2) is unconstitutional.

V. THE PSC WAS AUTHORIZED TO OBTAIN REPORTS FROM CONSULTANTS.

A. Neb. Rev. Stat. § 57-1412 authorizes the PSC to obtain expert assistance.

Assignments of Error 6, 7 and 8 contend that the PSC erred in receiving hearsay evidence

from “consultants,” identified as exhibit PSC 6. Landowners also assert in their sixth assignment

of error that the PSC erred by construing Neb. Rev. Stat. § 57-1407(3) to authorize the consultant

reports and they briefly discuss that statute in their argument. Brief of Appellants at 5, 30.

However, they discuss the wrong statute. They have overlooked Neb. Rev. Stat. § 57-1412 (Cum.

Supp. 2016) which provides that the PSC “may contract for professional services and expert

assistance, including, but not limited to, the services of engineers, hydrogeologists, accountants,

attorneys, and economists, to assist with reviewing applications….” PSC 6 consists of reports

obtained by the PSC for the purpose of obtaining that technical assistance authorized by the statute.

B. PSC 6, Reports Of Consultants, Was Properly Received In Evidence.

As noted in Argument IV. B., this Court’s review is limited to those evidentiary objections

made at trial. The Landowners’ objection to PSC 6 was “competence and hearsay, Rule 602 and

44
802.” (48:6-9). First, while the Landowners made an objection based on Neb. Rev. Stat. § 27-602

(2016) (lack of personal knowledge) at trial, they have not assigned as error the ruling on their

Rule 602 objection. That objection need not be considered by this Court.

Second, as with exhibits PSC 7 through 12, the PSC consultant memos are not hearsay as

defined in Rule 801. They were not offered in evidence to prove the truth of the contents and they

were not received for that purpose. As the hearing officer stated, “these are being offered as

required to make the record under MOPSA. And they will be received for that purpose.” (49:4-

7). “Pursuant to the authority granted . . . the commission has engaged consultants to assist it. In

the interest of transparency . . . the reports of those consultants are also included in the exhibits the

commission intends to offer.” (39:17-24).

Also, as was the case with PSC 7 through PSC 12, the admission of PSC 6 was, at most,

harmless error. The consultant reports merely assisted the PSC in explaining certain technical

aspects of the Keystone application. Even if the reports were considered to be more than the

authorized assistance with technical matters, they would be cumulative of the evidence offered by

the parties in this matter and, therefore, their admission would be harmless error. “Erroneous

admission of evidence is harmless error and does not require reversal if the evidence is cumulative

and other relevant evidence, properly admitted, supports the finding by the trier of fact.” Worth v.

Kolbeck, 273 Neb. 163, 177, 728 N.W.2d 282, 295 (2007). Moreover, the Landowners have made

no showing that the admission of this exhibit was in any manner prejudicial, nor could they, as a

review of the final order reveals that PSC 6 was not relied upon or even mentioned by the PSC in

reaching its decision. (T6140-6210).

Finally, while the Landowners make brief mention of due process and their motion for

mistrial (Brief of Appellants at 30-1), those contentions have been addressed fully in

45
Argument IV. D., and need not be repeated here. The PSC was not required to make any of the

consultant reports authorized by § 57-1412 available to the parties. It chose to make those reports

available, in the interest of transparency, and so that all parties could take that information into

account in their preparation for the hearing. There is no merit to the Landowners’ claims that the

admission of PSC 6 constituted prejudicial error or violated their due process rights.

VI. THE LANDOWNERS’ CHALLENGES TO THE CONSTITUTIONALITY OF

MOPSA ARE MERITLESS.

A. Challenges To MOPSA, Including The Eminent Domain Process, Are Not Ripe

For Review.

Assignments of Error 9, 10, 11 and 12 pertain to the constitutionality of MOPSA and § 57-

1101 and assert that particular statutory provisions impermissibly invade PSC’s authority, invade

the judicial power, deny the Landowners’ access to the courts, and fail to protect against “excess

takings.” None of those claims are ripe for review. “While not a constitutional prerequisite for

jurisdiction . . . existence of an actual case or controversy, nevertheless, is necessary for the

exercise of judicial power in Nebraska.” State v. Hansen, 259 Neb. 764, 769, 612 N.W.2d 477,

481 (2000) (citations omitted). In Hansen, the Court declined to address the defendant’s

constitutional challenge to a particular DUI statute. The claim was not ripe for adjudication

because it depended upon “contingent future events” that might never occur. Id. See also Galyen

v. Balka, 253 Neb. 270, 570 N.W.2d 519 (1999) (holding there was no case or controversy when

the claim for relief was dependent upon future events); U.S. Ecology v. State, 258 Neb. 10, 601

N.W.2d 775 (1999) (holding that the mere threat of denial of an application for the construction

and operation of a facility did not create an actual case or controversy).

46
The Landowners’ claims concerning MOPSA and the eminent domain process are not ripe

for review. While Neb. Rev. Stat. § 57-1101 (Cum. Supp. 2016) authorizes a pipeline carrier to

exercise the power of eminent domain, the exercise of that power depends first upon whether the

pipeline carrier’s application is approved. And, once the application has been approved, the

applicant will then determine whether to proceed with the pipeline project, will enter into

negotiations with affected landowners, and will initiate eminent domain proceedings when

necessary. Here, the Landowners’ claims as they relate to the exercise of eminent domain are not

ripe as they depend upon contingent future events that may not occur as anticipated, or may not

occur at all.

Furthermore, the “takings” clause does not prohibit the taking of private property. Rather,

it allows the government to take private property as needed for public purposes as long as it pays

compensation. Neb. Const. art. I, § 21. Consequently, there can be no violation of the takings

clause unless or until the State, or an entity authorized by the State, refuses to compensate the

owner. Here, the Landowners have an adequate post deprivation remedy. Section 57-1101

specifically provides a remedy at the time a taking occurs, the eminent domain procedures set forth

in Neb. Rev. Stat. §§ 76-704 through 76-724. The Landowners may raise their claims within the

eminent domain proceedings.

This Court has held that, in the context of a regulatory taking, a takings claim is not ripe

for review until there is “a final determination of the type and intensity of development legally

permitted on the subject property.” Bonge v. County of Madison, 253 Neb. 903, 906-7, 573

N.W.2d 448, 451 (1998). In Bonge, the landowners sought damages allegedly sustained when the

County enacted flood plain management regulations, but they had not yet sought a variance to

those regulations. Their inverse condemnation action was not ripe for appellate review.

47
Generally, “a takings claim is not ripe where the party may seek compensation through

state procedures.” Franco v. District of Columbia, 422 F.Supp.2d 216, 224 (D.D.C. 2006). In

Franco, shopping center owners and tenants sought a declaratory judgment that legislation

granting eminent domain authority to a local entity was unconstitutional. The federal district court

for the District of Columbia held that the claims of the owners and tenants were not ripe as a taking

had not yet occurred and that the parties would have an opportunity to raise their constitutional

claims in a state condemnation proceeding if a condemnation action was initiated.

B. MOPSA Does Not Improperly Invade The Constitutional Authority Of The PSC.

Assignment of Error 9 mistakenly asserts that Neb. Rev. Stat. § 57-1403(3) is “an

unconstitutional invasion of PSC authority” contrary to Neb. Const. art. IV, § 20. Brief of

Appellants at 5. In § 57-1403(3), the Legislature finds that “construction of major oil pipelines in

Nebraska is in the public interest of Nebraska and the nation to meet the increasing need for

energy.” The Landowners’ argument appears to be that this general expression of legislative intent

with regard to MOPSA impermissibly invades the PSC’s constitutional authority to regulate

“common carriers as the Legislature may provide by law.” Neb. Const. art. IV, § 20. It is not

clear that the Landowners have standing to vindicate any constitutional rights which the PSC may

have. However, even assuming that they have standing, the Legislature may divest the PSC of

jurisdiction of common carriers if, through specific legislation, it preempts Commission control.

Rodgers v. Nebraska Railway Comm’n, 134 Neb. 832, 279 N.W. 800 (1938). In State ex rel. Spire

v. Northwestern Bell Telephone Co., 233 Neb. 262, 445 N.W.2d 284 (1989), the Court considered

whether certain legislation which altered the PSC’s authority to regulate local telephone rates

unconstitutionally divested the PSC of its authority to regulate rates. The Court held that “[the

act] does not violate Neb. Const. art. IV § 20, by nullifying PSC jurisdiction over

48
telecommunications companies. Rather, the act constitutes specific legislation prescribing the

method and manner in which the PSC will exercise its regulatory activities concerning telephone

companies.” Id. at 277-79, 445 N.W.2d at 294-95.

Here, the Legislature, in MOPSA, provided that, if an application is filed, it will be

approved if a route of a major oil pipeline is determined by the PSC to be in the public interest and

set out eight factors for the PSC to evaluate in making that determination. In other words, although

the Legislature has made a finding as to the general public interest in the construction of pipelines

in Nebraska, it has also left to the PSC the duty to determine whether a particular application for a

route of a major oil pipeline is in the public interest. There is no conflict with the PSC’s

constitutional authority to regulate common carriers and the Landowners have failed to meet their

burden to clearly establish that § 57-1403(3) is unconstitutional.

C. MOPSA In No Way Restricts Judicial Authority Or Access To The Courts.

Assignments of Error 10 and 11 assert that Neb. Rev. Stat. §§ 57-1402 and 57-1408

somehow deprive property owners of access to the courts contrary to Neb. Const. art. I, § 13. The

Court has held that this constitutional provision does not create any new rights, but “is merely a

declaration of a general fundamental principle.” Prendergast v. Nelson, 199 Neb. 97, 103, 256

N.W.2d 657, 663 (1977). Prendergast held that a provision of the Nebraska Hospital-Medical

Liability Act creating a medical review panel did not violate the open courts provision, as claimants

were merely required to follow a certain procedure before submitting their claims to the courts.

The Landowners have the same right of access to the courts as they had before MOPSA

was enacted. They may raise their claims and defenses if and when eminent domain proceedings

are commenced pursuant to Neb. Rev. Stat. § 57-1101. That statute expressly provides that the

“procedure to condemn property shall be exercised in the manner set forth in sections 76-704 to

49
76-724.” While they contend that MOPSA deprives them of their ability to raise issues such as

the character and extent of the taking, a review of eminent domain cases reveals this is incorrect.

Brief of Appellants at 34-5. In Engelhaupt v. Village of Butte, 248 Neb. 827, 539 N.W.2d 430

(1995), the issues included a determination of the amount of property needed and the character of

the taking. “In a condemnation case issues as to the amount of property needed and the estate or

interest in such property are questions of fact for the court. . . . Likewise, issues as to what

constitutes a public use and whether a taking is lawful are judicial issues for the court.” Krauter

v. Lower Big Blue NRD, 199 Neb. 431, 439, 259 N.W.2d 472, 476 (1977) (citations omitted).

The Landowners also argue that MOPSA violates their right to a jury trial. They have

failed to assign this as error. In any event, they point to no provision of MOPSA which deprives

them of that right. Further, while certain issues in an eminent domain proceeding are questions of

law to be determined by the judge, a jury may determine the amount of damages or compensation.

Bentz v. Nebraska Public Power Dist., 211 Neb. 844, 849, 320 N.W.2d 763, 767 (1982). (“The

amount of damages sustained in an eminent domain action . . . normally is to be determined by the

jury.”); accord Langenheim v. City of Seward, 200 Neb. 740, 265 N.W.2d 446 (1978). The

Landowners’ contention pertaining to a right to a jury trial is also incorrect.

Finally, Assignment of Error 12 asserts that MOPSA is somehow unconstitutional because

it fails to restrict takings to those within the public use. This argument is not entirely clear.

However, as discussed above, an issue as to what constitutes a public use can, indeed, be raised in

an eminent domain proceeding and this argument is also without merit.

CONCLUSION

The PSC requests that the Court affirm its Order approving the Mainline Alternative Route.

50
Dated: May 21, 2018

NEBRASKA PUBLIC SERVICE
COMMISSION, Appellee,

BY: DOUGLAS J. PETERSON, #18146
Attorney General

BY: s/L. Jay Bartel, #17247
L. Jay Bartel, #17247
David A. Lopez, #24947
Lynn A. Melson, #17363
Assistant Attorneys General
2115 State Capitol
Lincoln, NE 68509-8920
Tel: (402) 471-2682
jay.bartel@nebraska.gov
dave.lopez@nebraska.gov
lynn.melson@nebraska.gov

Attorneys for Said Appellee.

CERTIFICATE OF SERVICE
It is hereby certified that on this 21st day of May, 2018, a copy of the foregoing Brief of

Appellee Nebraska Public Service Commission was filed with the Clerk of the Court using the E-

filing system, which will electronically serve a copy on counsel registered for E-filing below at

the designated email address, and also was served by email to the following:

Jayne Antony Wrexie Bardaglio
16064 Spring Street 9748 Arden Road
Omaha, NE 68130 Trumansburg, NY 14886
jaynevan@yahoo.com Wrexie.bardaglio@gmail.com

Fredericks Peebles and Morgan LLP Leverne A. Barrett
Jennifer S Baker 1909 Co Rd E
Leonika Rose Charging Ceresco, NE 68017
1900 Plaza Drive vernbarrett@fururetk.com
Louisville, CO 80027
jbaker@ndnlaw.com O'Donoghue & O'Donoghue LLP
lcharging@ndnlaw.com Ellen O Boardman
4748 Wisconsin Avenue, NW
Washington, DC 20016
eboardman@odonoghuelaw.com

51
James P. Cavanaugh Christy J Hargesheimer
Cavanaugh Law Firm, PC LLO 620 S 30th St
6035 Binney St., Ste 100 Lincoln, NE 68510
Omaha, NE 68104 chrispaz@neb.rr.com
cavanaughlawfirm@aol.com
Richard S Hargesheimer
O'Donoghue & O'Donoghue LLP 620 South 30th St
Anna Friedlander Lincoln, NE 68510
4748 Wisconsin Avenue, NW rshargy@gmail.com
Washington, DC 20016
afriedlander@odonoghuelaw.com Blake & Uhlig,PA
Robert J Henry
O'Connor Law Firm 753 State Avenue Ste 475
Robert O'Connor, Jr Kansas City, KS 66101
PO Box 45116 rjh@blake-uhlig.com
Omaha, NE 68145
reolaw@aol.com Blake & Uhlig,PA
Michael J Stapp
Sierra Club 753 State Avenue Ste 475
Dara Illowsky Kansas City, KS 66101
1650 38th Street Ste 102W mjs@blake-uhlig.com
Boulder, CO 80301
Dara.illowsky@sierraclub.org Blake & Uhlig,PA
Michael E Amash
Kimberly E Craven 753 State Avenue Ste 475
33 King Canyon Road Kansas City, KS 66101
Chadron, NE 69337 mea@blake-uhlig.com
kimecraven@gmail.com
Becky Hohnstein
Cathie (Kathryn) Genung PO Box 272
902 East 7th St Minatare, NE 69356
Hastings, NE 68901 jimhohnstein@gmail.com
Tg64152@windstream.net
Marvin E Hughes
Louis (Tom) Genung 714 W 5th St Ste 120
902 East 7th St Hastings, NE 68901
Hastings, NE 68901 bhughes@gtmc.net
Tg64152@windstream.net
John Jarecki
Andy Grier 6112 Bedford Ave
916 S. 181st St. Omaha, NE 68104
Elkhorn, NE 68022 Johnjarecki110@gmail.com
Griea01@cox.net

52
Karen Jarecki 350.org
6112 Bedford Ave Kendall Maxey
Omaha, NE 68104 20 Jay Street
tenbuckstwo@yahoo.com Brooklyn, NY 11201
kendall@350.org
Brad S Jolly & Associates
Brad S Jolly Elizabeth (Liz) Mensinger
15355 Gadsen Dr 6509 Wirt St.
Brighton, CO 80603 Omaha, NE 68104
bsj@bsjlawfirm.com lizmensinger@gmail.com

Domina Law Group PC LLO Cindy Myers
Brian F Jorde PO Box 104
2425 S 144th Street Stuart, NE 68780
Omaha, NE 68144 Csmyers77@hotmail.com
bjorde@dominalaw.com
Crystal Miller
Domina Law Group PC LLO 7794 Greenleaf Drive
Dave Domina LaVista, NE 68128
2425 S 144th Street neccmiller@juno.com
Omaha, NE 68144
ddomina@dominalaw.com Janece Mollhoff
2354 Euclid Street
Taylor R M Keen Ashland, NE 68003
5022 Hamilton St wjmollhoff@windstream.net
Omaha, NE 68132
Taylorkeen7@gmail.com Greg Nelson
3700 Sumner St
Judy King Lincoln, NE 68506
1261 Fall Creek Rd gnelson@inetnebr.com
Lincoln, NE 68510
kingjud@gmail.com Julie Nichols
1995 Park Ave
Michelle C. LaMere Lincoln, NE 68502
PO Box 514 Willpower2@earthlink.net
Winnebago, NE 68071
lamere@rocketmail.com Jana Osborn
1112 Meadowlark
Pamela Luger Alliance, NE 69301
8732 Granville Pkwy janajearyb@gmail.com
LaVista, NE 68128
Pam1181@yahoo.com James Douglas Osborn
43110 879th Rd
Ainsworth, NE 69210
Jdosborn3@yahoo.com

53
Dave Polson Julie Shaffer
4923 Valley Street 5405 Northern Hills Dr
Omaha, NE 68106 Omaha, NE 68152
honk@cox.net Jshaffer59@gmail.com

Christine Polson Sandra Slaymaker
4923 Valley Street 102 E 3rd St #2
Omaha, NE 68106 Atkinson, NE 68713
cnpolson@cox.net sandyslaymaker@gmail.com

Joseph Pomponio Susan Soriente
551B Sand Creek Rd 1110 Rockhurst Drive
Albany, NY 12205 Lincoln, NE 68510
lukaz@msn.com ssoriente@gmail.com

Collin A Rees Oil Change International
4721 Heather Lane Lorne Stockman
Kearney, NE 68845 714 G St., SE Suite 202
collin@priceofoil.org Washington, DC 20003
lorne@priceofoil.org
Donna Roller
2000 Twin Ridge Rd. Susan Straka-Heyden
Lincoln, NE 68506 46581 875th Rd
rollerski@gmail.com Stuart, NE 68780
Suzie_sl@hotmail.com
Cecilia Rossiter
949 N 30th St Kimberly L Stuhr
Lincoln, NE 68503 19303 Buffalo Rd
punion@gmail.com Springfield, NE 68059
Kimberlystuhr13@yahoo.com
Corey Runmann
2718 S. 12th St. Jacques Tallichet
Lincoln, NE 68502 2821 S. 79th St
rumannc@gmail.com Lincoln, NE 68506
Jacques.tallichet@gmail.com
Lois Schreur
2544 N. 61st Street Paul Theobald
PO Box 4376 85718 544th Avenue
Omaha, NE 68104 Foster, NE 68765
leschreur@centruylink.net Ptheobald36@gmail.com

Tristan Scorpio Jonathan H Thomas
208 S Burlington Ave Ste 103 960 S Cotner Blvd
Box 325 Lincoln, NE 68510
Hasting, NE 68901 Thewild_things@yahoo.com
tom@boldnebraska.org

54
Elizabeth L Troshynski Lisa May
87769 484th Ave 1008 13th Avenue
Atkinson, NE 68713 Kearney, NE 68845
btroshyn@hotmail.com doodlesanddollies@hotmail.com

Christine Troshynski Michael Whatley
101 S. 1st St. 1666 K Street NW, Ste 500
Emmet, NE 68734 Washington, DC 20006
ctroshynski@gmail.com ehaggstrom@consumerenergyalliance.org

Julie Walker Michael Reeves
2570 West Luther St. 5101 N MLK #395
Martell, NE 68404 Lubbock, TX 79403
Jw9095@yahoo.com michael.reeves@portstoplains.com

Susan C Watson Adam Martin
2035 N 28th St Apt 213 PO Box 3224
Lincoln, NE 68503 Rapid City, SD 57709
Scwatson1965@gmail.com Adam.martin@sdoil.org

Susan J Weber Steven M. Kramer
2425 Folkways Blvd Apt 329 900 17th Street, NW, Ste 600
Lincoln, NE 68521 Washington, DC 20006
Susanjweber4@yahoo.com skramer@aopl.org

Douglas Whitmore Ronald J. Sedlacek
8856 N 83rd Ave PO Box 95128
Omaha, NE 68122 Lincoln, NE 68509
douglas@whitmore4congress.com rsedlacek@nechamber.com

Kenneth C Winston Judith Thorman
1327 H St Ste 300 216 West Jackson Blvd, Ste 9
Lincoln, NE 68508 Chicago, IL 60606
kwinston@inebraska.com thormanj@api.org

Sandy Zdan Ross Eisenberg
4817 Douglas 733 10th Street, NW, Ste 700
Omaha, NE 68132 Washington, DC 20001
sandywz@cox.net Ross.e.eisenberg@nam.org

Sarah Zuekerman
1729 K St #7
Lincoln, NE 68508
Sarahj1182@gmail.com

55
Matthew John Effken Public Service Commission
Public Service Commission 300 The Atrium
300 The Atrium 1200 N Street
1200 N Street PO Box 94927
PO Box 94927 Lincoln, NE 68508
Lincoln, NE 68508 Mike.Hybl@nebraska.gov
Matt.effken@nebraska.gov
James G. Powers
Nichole U. Mulcahy Patrick D. Pepper
Public Service Commission McGrath North Mullin & Kratz, PC LLO
300 The Atrium First National Tower, Suite 3700
1200 N Street 1601 Dodge Street
PO Box 94927 Omaha, NE 68102
Lincoln, NE 68508 jpowers@mcgrathnorth.com
Nichole.mulcahy@nebraska.gov ppepper@mcgrathnorth.com

s/L. Jay Bartel, #17247
Assistant Attorney General
07-1164-29

56
Certificate of Service
I hereby certify that on Monday, May 21, 2018 I provided a true and correct copy of this Brief of Appellee
State 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: Email

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: Email

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: Email

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

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: Email

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

Yankton Sioux Tribe of South Dakota represented by Jennifer S Baker (0) service method: Email
Yankton Sioux Tribe of South Dakota represented by Leonika Rose Charging (23058) service method:
Electronic Service to lcharging@ndnlaw.com

Signature: /s/ Jay Bartel (17247)