Yankton Sioux Tribe Appellee Brief

FILED
May 22, 2018

IMAGE ID N1814259ZNSC, FILING ID 0000006196
CLERK
NEBRASKA SUPREME COURT
IN THE SUPREME COURT OF THE STATE OF NEBRASKA COURT OF APPEALS
______________________________________________________________________________
No. S-17-001331
______________________________________________________________________________
IN THE MATTER OF
THE APPLICATION OF
TRANSCANADA KEYSTONE PIPELINE, L.P.
FOR ROUTE APPROVAL OF
THE KEYSTONE PIPELINE PROJECT
PURSUANT TO
THE MAJOR PIPELINE SITING ACT
______________________________________________________________________________
APPEAL FROM THE NEBRASKA PUBLIC SERVICE COMMISSION

APPLICATION NO. OP-003
______________________________________________________________________________
APPELLEE YANKTON SIOUX TRIBE’S BRIEF AND CROSS-APPEAL

______________________________________________________________________________
Prepared and Submitted by:
Jennifer S. Baker, pro hac vice Leonika R. Charging, NE Bar # 23058

FREDERICKS PEEBLES & MORGAN LLP FREDERICKS PEEBLES & MORGAN LLP
1900 Plaza Drive 3610 North 163rd Plaza
Louisville, CO 80027 Omaha, NE 68116
Email: jbaker@ndnlaw.com Email: lcharging@ndnlaw.com
Telephone: (303) 673-9600 Telephone: (402) 333-4053
Facsimile: (303) 673-9155 Facsimile: (402) 333-4761
Attorneys for Yankton Sioux Tribe Attorneys for Yankton Sioux Tribe
TABLE OF CONTENTS
APPELEE’S BRIEF........................................................................................................................ 1
Jurisdictional Basis...................................................................................................................... 1
Statement of the Case .................................................................................................................. 1
Propositions of Law .................................................................................................................... 1
Statement of Facts ....................................................................................................................... 2
Argument ..................................................................................................................................... 2
Conclusion................................................................................................................................... 2
CROSS-APPEAL ........................................................................................................................... 2
Jurisdictional Basis...................................................................................................................... 2
Record ......................................................................................................................................... 2
Statement of the Case .................................................................................................................. 3
Assignment of Errors .................................................................................................................. 3
Propositions of Law .................................................................................................................... 5
Statement of Facts ....................................................................................................................... 6
Summary of Argument ................................................................................................................ 8
I. The PSC Lacked Jurisdiction. .................................................................................................. 8
II.The Applicant Never Applied for the Approved Route. ......................................................... 8
III.The PSC Improperly Accepted Unsworn Hearsay Evidence in Violation of the Tribe’s
Due Process Rights...................................................................................................................... 9
IV.Neb. Rev. Stat. §§ 57-1407(2) and 57-1407(3) are Unconstitutional. ................................... 9
V.Neb. Rev. Stat. § 57-1403(3) is Unconstitutional. .................................................................. 9
VI.The PSC Unconstitutionally Restricted the Tribe’s Participation. ...................................... 10
Argument ................................................................................................................................... 10
I.The PSC Lacked Jurisdiction. ................................................................................................. 10
II.The Applicant Never Applied for the Approved Route. ....................................................... 11
A. Error 2: The PSC erred when it exceeded its jurisdiction by approving a route that the
Applicant did not apply for, without notice to the Tribe, in violation of the Tribe’s due
process rights. ................................................................................................................. 11
B. Error 3: The PSC erred when it approved a route that the Applicant did not apply for
because the approved route does not serve the public interest. ...................................... 12
i
C. Error 4: The PSC erred when it approved a route that the Applicant did not apply for
because the Applicant did not sustain its burden of proof. ............................................ 12
III. The PSC Improperly Accepted Unsworn Hearsay Evidence in Violation of the Tribe’s
Due Process Rights. ............................................................................................................ 17
A. Error 5: The PSC erred when it accepted unsworn hearsay evidence through public
meetings and public comments without providing the Tribe the ability to confront or
cross-examine the witnesses and other due process protections. ................................... 17
B. Error 6: The PSC erred when it accepted unsworn hearsay evidence from consultants
without providing the Tribe the ability to confront or cross-examine the witnesses or
other due process protections. ........................................................................................ 18
IV.Neb. Rev. Stat. §§ 57-1407(2) and 57-1407(3) are Unconstitutional. ................................. 19
A. Error 7: The PSC erred when it applied Neb. Rev. Stat. § 57-1407(2), which allows the
PSC to hold public meetings to receive public input and make the public input part of
the record, because the statute is unconstitutional in that it denies procedural due
process of law. ................................................................................................................ 19
B. Error 8: The PSC erred when it applied Neb. Rev. Stat. § 57-1407(3) which allows the
PSC to accept the reports of consultants and other agencies, including opinions
regarding approving, denying, or modifying the location of the proposed route of the
major oil pipeline, because the statute is unconstitutional in that it denies procedural due
process of law. ................................................................................................................ 20
V.Neb. Rev. Stat. § 57-1403(3) is Unconstitutional. ................................................................ 21
A. Error 9: The PSC erred when it applied Neb. Rev. Stat. § 57-1403(3) which states that
“construction of major oil pipelines . . . is in the public interest of Nebraska.” This
statute is unconstitutional, as it violates Article II, § 1 of the Nebraska Constitution. .. 21
B. Error 10: The PSC erred when it applied Neb. Rev. Stat. § 57-1403(3) which states that
statute is unconstitutional, as it violates Article IV, § 20 of the Nebraska Constitution by
usurping the authority of the PSC conveyed by Article IV, § 20. ................................. 22
VI.The PSC Unconstitutionally Restricted the Tribe’s Participation as a Formal Intervenor. . 23
A. The PSC Improperly Relied upon the Administrative Procedure Act Instead of Its Own
Rules to Restrict the Tribe’s Participation. .................................................................... 24
B. The PSC Violated the Tribe’s Constitutional Right to Procedural Due Process. .......... 26
C. The PSC Violated the Tribe’s Equal Protection Rights. ................................................ 29
Conclusion................................................................................................................................. 33
ii
TABLE OF AUTHORITIES
Cases
Cain v. Custer Cty. Bd. of Equalization, 298 Neb. 834, 840, 906 N.W.2d 285, 292 (2018) .. 5, 27, 28
Carmelo G, 896 N.W.2d 902, 812 (Neb. 2017) ................................................................................ 27
Citizens of Decatur for Equal Educ. v. Lyons-Decatur Sch. Dist., 739 N.W.2d 742, 762
(Neb. 2007) ................................................................................................................................... 30
Hass v. Neth, 657 N.W.2d 11 (Neb. 2003) ........................................................................................ 20
Henry Friendly, Some Kind of Hearing, 123 U. Pa. L. Rev. 1267 (1975) ....................................... 27
In re Application of NPPD, 798 N.W.2d 572, 578 (Neb. 2001) ........................................................ 1
Jantzen v. Diller Telephone Co. 245 Neb. 81, 100, 511 N.W.2d 504, 517 (Neb. 1994) ................. 26
Kozal v. Nebraska Liquor Control Com’n, 902 N.W.2d 147, 157-158 (Neb. 2017) ......................... 1
Landrum v. City of Omaha Planning Bd., 899 N.W.2d 598, 614 (Neb. 2017) ............................ 6, 27
Maack v. School Dist. of Lincoln, 491 N.W.2d 341, 350 (Neb. 1992) ............................................. 30
Mach v. County of Douglas, 612 N.W.2d 237 (Neb. 2000) ....................................................... 30, 31
Marshall v. Wimes, 626 N.W.2d 229 (Neb. 2001) ....................................................................... 6, 18
Matthews v. Eldridge, 424 U.S. 319 (1976) ............................................................................... 20, 27
McCleskey v. Kemp, 481 U.S. 279, 292 (1987) ................................................................................ 30
Morrissey v. Brewer, 408 U.S. 471, 489 (1972) ............................................................................... 27
Personnel Admin. Of Mass. v. Feeney, 442 U.S. 256, 279 (1979) ................................................... 31
State ex rel Spire v. Northwestern Bell Tel. Co., 445 N.W.2d 284 (Neb. 1989) ................................ 2
State v. Shawn M. (in Re Ty M.), 655 N.W.2d 672, 683 (Neb. 2003) .............................................. 27
United States v. Armstrong, 517 U.S. 456, 465 (1996) .................................................................... 30
Wolff v. McDonnell, 418 U.S. 539, 559 (1974) ................................................................................ 27
Yick Wo v. Hopkins, 118 U.S. 356, 373-374 (1886) ......................................................................... 30
Statutes
NEB. CONST. art. I, § 3 .............................................................................................................. 5, 6, 29
NEB. CONST. art. II, § 1 ....................................................................................................... 4, 9, 21, 22
NEB. CONST. art. IV, § 20 ................................................................................................. 4, 10, 22, 23
Neb. Rev. Stat. § 57-1401............................................................................................................. 5, 11
Neb. Rev. Stat. § 57-1403(2) .............................................................................................................. 9
iii
Neb. Rev. Stat. § 57-1403(3) ..................................................................................................... passim
Neb. Rev. Stat. § 57-1405................................................................................................... 1, 5, 10, 11
Neb. Rev. Stat. § 57-1407(2) .............................................................................................. 4, 9, 17, 20
Neb. Rev. Stat. § 57-1407(3) ..................................................................................................... passim
Neb. Rev. Stat. § 57-1407(4) .................................................................................................. 5, 12, 13
Neb. Rev. Stat. § 57-1407(4)(d) ......................................................................................................... 6
Neb. Rev. Stat. § 57-1408................................................................................................................. 11
Neb. Rev. Stat. § 57-1503............................................................................................................. 5, 10
Neb. Rev. Stat. § 75-110(1) .............................................................................................................. 25
Neb. Rev. Stat. § 840912.02 ............................................................................................. 4, 24, 25, 31
U.S. CONST. amend. XIV, § 1 ............................................................................................ 5, 6, 26, 30
Other Authorities
Administrative Procedure Act .......................................................................................................... 24
Treaty of Prairie du Chien in 1830 ..................................................................................................... 7
Rules
291 Neb. Admin Code § 9-023.07.................................................................................................... 13
291 Neb. Admin. Code § 1-015.01C .................................................................................... 24, 28, 29
291 Neb. Admin. Code § 1-016.11 ................................................................................................... 28
Neb. Ct. R. of Disc. § 6-326 ............................................................................................................. 29
Rule 201 of the Nebraska Rules of Evidence ..................................................................................... 7
iv
APPELLEE’S BRIEF
Jurisdictional Basis
The Yankton Sioux Tribe (“Tribe”) accepts Appellants’ statement of jurisdictional basis as
correct, with one exception. The date of the Public Service Commission (“PSC”) Order sought to
be reviewed is November 20, 2017, rather than November 29, 2017.
Statement of the Case
The Tribe accepts Appellants Landowner Intervenors’ (“Landowners” or “Appellants”)
statement of the case as correct. With respect to the nature of the case, the Tribe adds that the
route for which Appellee TransCanada Keystone Pipeline, LP (“TransCanada” or the “Applicant”)
applied, as well as the route the PSC approved, traverses the Tribe’s ancestral territory and lie in
close proximity to the Tribe’s Nemaha Reserve. (ECU25, 3, 18, 43:986, 8019, 8034, 8059).
Propositions of Law
1. “If a pipeline carrier proposes to construct a major oil pipeline to be placed in
operation in Nebraska after November 23, 2011, and the pipeline carrier has submitted a route for
an oil pipeline within, through or across Nebraska, but the route is not approved by the Governor
pursuant to section 57-1503, the pipeline carrier shall file an application with the Commission and
receive approval pursuant to section 57-1408 prior to beginning construction . . . .” Neb. Rev. Stat.
§ 57-1405.
2. Where the court or body appealed from lacked jurisdiction, the appellate tribunal
also lacks it. Kozal v. Nebraska Liquor Control Com’n, 902 N.W.2d 147, 157-158 (Neb. 2017).
3. An agency “did not have the authority to substitute its selection of a route in lieu of
[the Applicant’s] route described in its application.” In re Application of NPPD, 798 N.W.2d 572,
578 (Neb. 2001).
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4. The PSC’s role in passing on an Application like this one is adjudicative and subject
to procedural due process requirements. State ex rel Spire v. Northwestern Bell Tel. Co., 445
N.W.2d 284 (Neb. 1989).
Statement of Facts
The Tribe accepts Appellants’ statement of facts as correct.
Argument
As discussed in sections I-V of the Cross-Appeal Argument, supra, the Tribe largely agrees
with Appellants’ arguments and asserts similar arguments in sections I-V.
Conclusion
The Tribe respectfully urges the Court to reverse the PSC’s decision, deny TransCanada’s
Application for route approval, and award costs to the Tribe.
CROSS-APPEAL
Jurisdictional Basis
The Tribe accepts Appellants’ statement of jurisdictional basis as correct, with one
exception. The date of the PSC Order sought to be reviewed is November 20, 2017, rather than
November 29, 2017.
Record
For ease of reference, the Tribe shall use the same formats for citations to the record as
were used in Appellants Landowner Intervenors’ Opening Brief (“Appellants’ Brief”). The Tribe’s
exhibits shall be referred to as CU__; Applicant/Appellee’s exhibits as KXL__; and the PSC’s as
PSC__.
2
Statement of the Case
The Tribe accepts Appellants’ statement of the case as correct. With respect to the nature
of the case, the Tribe adds that the route for which the Applicant applied, as well as the route that
the PSC approved, traverse the Tribe’s ancestral territory and lie in close proximity to the Tribe’s
Nemaha Reserve. (ECU25, 3, 18, 43:986, 8019, 8034, 8059).
Assignment of Errors
Error 1: The PSC erred when it purported to exercise jurisdiction over the proceeding
below because the PSC lacked jurisdiction to approve the proposed (or any) route. Neb. Rev. Stat.
§ 57-1405 only permits a pipeline carrier to apply for route approval if the route has not been
approved by the governor. Furthermore, Neb. Rev. Stat. § 57-1503 only grants the PSC
jurisdiction over applications for pipeline route approval if the governor does not approve the
route. However, the proposed route has been approved by the governor.
Error 2: The PSC erred when it exceeded its jurisdiction by approving a route that the
Applicant did not apply for, without notice to the Tribe, in violation of the Tribe’s due process
rights.
Error 3: The PSC erred when it approved a route that the Applicant did not apply for
because the approved route does not serve the public interest.
Error 4: The PSC erred when it approved a route that the Applicant did not apply for
because the Applicant did not sustain its burden of proof.
Error 5: The PSC erred when it accepted unsworn hearsay evidence through public
meetings and public comments without providing the Tribe the ability to confront or cross-examine
the witnesses and other due process protections.
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Error 6: The PSC erred when it accepted unsworn hearsay evidence from consultants and
other agencies without providing the Tribe the ability to confront or cross-examine the witnesses
or other due process protections.
Error 7: The PSC erred when it applied Neb. Rev. Stat. § 57-1407(2), which allows the
PSC to hold public meetings to receive public input and make the public input part of the record,
because the statute is unconstitutional in that it denies procedural due process of law.
Error 8: The PSC erred when it applied Neb. Rev. Stat. § 57-1407(3), which allows the
PSC to accept the reports of consultants and other agencies, including opinions regarding
approving, denying, or modifying the location of the proposed route of a major oil pipeline,
because the statute is unconstitutional, as it denies procedural due process of law.
Error 9: The PSC erred when it applied Neb. Rev. Stat. § 57-1403(3), which states that
“construction of major oil pipelines . . . is in the public interest of Nebraska.” This statute is
unconstitutional, as it violates Article II, § 1 of the Nebraska Constitution.
Error 10: The PSC erred when it applied Neb. Rev. Stat. § 57-1403(3) which states that
“construction of major oil pipelines . . . is in the public interest of Nebraska.” This statute is
unconstitutional, as it violates Article IV, § 20 of the Nebraska Constitution.
Error 11: The PSC erred when it applied the Administrative Procedure Act, Neb. Rev. Stat.
§ 840912.02, to limit the Tribe’s participation rights as a formal intervenor instead of using its own
rules of procedure.
Error 12: The PSC erred when it limited the scope of the Tribe’s discovery to social and
cultural issues in violation of the Tribe’s right to procedural due process.
Error 13: The PSC erred when it limited the Tribe to just one witness in violation of the
Tribe’s right to procedural due process.
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Error 14: The PSC erred when it restricted the Tribe’s ability to cross-examine Appellee
Ponca Tribe of Nebraska’s (“Ponca”) witness in violation of the Tribe’s right to procedural due
process.
Error 15: The PSC erred when it restricted the Tribe’s ability to cross-examine Ponca’s
witness in violation of the Tribe’s equal protection rights.
Propositions of Law
1. Gubernatorial denial of a proposed route is a prerequisite for PSC jurisdiction; the
PSC has no authority to conduct a proceeding for approval of a route that has never been denied
by the Governor. Neb. Rev. Stat. §§ 57-1405, 57-1503.
2. The PSC does not have authority to approve a route for which the applicant did not
apply. Neb. Rev. Stat. § 57-1401, et seq.
3. “An application under the Major Oil Pipeline Siting Act shall be approved if the
proposed route of the major oil pipeline is determined by the Public Service Commission to be in
the public interest. The pipeline carrier shall have the burden to establish that the proposed route
of the major oil pipeline would serve the public interest.” Neb. Rev. Stat. § 57-1407(4).
4. “Due process principles protect individuals from arbitrary deprivation of life,
liberty, or property without due process of law. A party appearing in an adjudication hearing
before an agency or tribunal is entitled to due process protections similar to those given to litigants
in a judicial proceeding.” Cain v. Custer Cty. Bd. of Equalization, 298 Neb. 834, 840, 906 N.W.2d
285, 292 (2018).
5. An agency of the State of Nebraska cannot deprive a person of life, liberty, or
property without due process of law. NEB. CONST. art. I, § 3; U.S. CONST. amend. XIV, § 1.
5
6. An agency of the State of Nebraska cannot deny a person equal protection of the
laws. NEB. CONST. art. I, § 3; U.S. CONST. amend. XIV, § 1.
7. Agency decisions cannot be made on hearsay where the rules of evidence apply.
Marshall v. Wimes, 626 N.W.2d 229 (Neb. 2001).
8. “A court reviewing an order of an administrative agency must determine whether
there has been due process of law; and this includes an inquiry into the jurisdiction of the agency,
whether there was reasonable notice and an opportunity for fair hearing, and whether the finding
was supported by evidence.” Landrum v. City of Omaha Planning Bd., 899 N.W.2d 598, 614
(Neb. 2017).
9. When considering an application for route approval, the PSC must evaluate
evidence regarding the social impacts, which include cultural impacts, of the proposed pipeline.
Neb. Rev. Stat. § 57-1407(4)(d).
Statement of Facts
The Tribe adopts and incorporates by reference the Statement of Facts contained in
Appellants’ Brief, and further asserts as follows.
The Tribe and its members have unseverable ties to the land that would be impacted by
construction and operation of the pipeline. (ECU25, 2:986, 8018). The pipeline route traverses
the Tribe’s ancestral territory, and untold numbers of burials and cultural resources lie in the
pipeline path proposed by TransCanada. Id. The route approved by the PSC also crosses the
Tribe’s ancestral territory, which the Tribe’s witness, Jason Cooke, would have testified to had the
Tribe known the PSC might approve that route. In addition, the Tribe’s Nemaha Reserve is
situated downriver from the location where the proposed pipeline would cross the South Platte
River and downriver from where the South Platte River runs into the Missouri River in southeast
6
present-day Nebraska. Id. at 4. The Reserve was originally established through the Treaty of
Prairie du Chien in 1830 as a home for “mixed-blood” Indians. Id.; (ECU25, 46-47:986, 8062-
63). The existence of the Reserve means that the entire region is likely full of cultural resources
and even burials as its inhabitants would have traveled, hunted, fished, and held ceremony there.
Id. A possible construction spill or similar accident to the pipeline would mean that these
resources, such as traditional gathering areas for medicine, would be at serious risk of irreplaceable
destruction by the effects of the accident being carried downriver and onto the Reserve. Id. at 4-
5. In addition, the loss of these cultural resources would affect not only the physical resources,
but would likely deal psychological damage to multiple generations of Tribal members. Id. at 5-
6.
Relevant to the Tribe’s social and cultural resource concerns, in 2010, the Department of
State, the Nebraska State Historic Preservation Officer, and other agencies entered into a
Programmatic Agreement with TransCanada to govern the treatment of unanticipated discoveries
of cultural resources during construction of the proposed pipeline. The Tribe asks the Court to
take judicial notice of the Programmatic Agreement, found at https://2012-keystonepipeline-
xl.state.gov/documents/organization/182362.pdf, pursuant to Rule 201 of the Nebraska Rules of
Evidence. In 2013, those state and federal agencies entered into the Amended Programmatic
Agreement with TransCanada for the same purpose. (EKXL23, 1-156:53, 58, 784). The Tribe
did not sign either agreement. (1067:15-22).
During the proceeding below, the hearing officer issued an order that, as discussed in
section VI, infra, violated the Tribe’s due process and equal protection rights. This
unconstitutional infringement included restricting the Tribe’s ability to put on its case by limiting
the Tribe to just one witness. (T705). The Tribe chose then-Business and Claims Committee
7
Member, now-Vice Chairman Jason Cooke, an elected leader, to represent its interests in the PSC
proceeding. Due to the witness limitation imposed by the Hearing Officer, the Tribe had no
opportunity to produce a witness to provide testimony about cultural resources, and no opportunity
to produce a witness to testify about the social and community dangers posed by man camps. Jason
Cooke is not the Tribe’s Tribal Historic Preservation Officer. The Tribe has other witnesses who
would have been able to testify to these topics. To find any one person capable of competently
testifying about both the Tribe’s culture, history, and spiritual practices and the risks communities
face when there is an influx of out of state pipeline workers would be impossible.
Summary of Argument
I. The PSC Lacked Jurisdiction.
The PSC decision must be reversed because the PSC lacked jurisdiction over the
underlying proceeding. The statutory prerequisites for the PSC to exercise authority were not met
because the proposed route was never denied by the Governor of Nebraska. Only when the
Governor fails to approve a proposed route does the PSC have authority to accept, grant, or deny
an application for pipeline route approval.
II. The Applicant Never Applied for the Approved Route.
TransCanada submitted an application for approval of its proposed route. The PSC,
however, exceeded its jurisdiction in this matter by choosing and approving an alternate route (the
“Mainline Alternative Route”). Because the Tribe had no notice that the PSC might approve a
route that TransCanada never requested, the PSC’s approval of the alternate route violated the
Tribe’s due process rights. Furthermore, the approved route is not in the public interest as required
by statute. Ultimately, because TransCanada’s case focused solely on the proposed route, the
company failed to meet its burden of proof with respect to the approved route.
8
III. The PSC Improperly Accepted Unsworn Hearsay Evidence in Violation of the Tribe’s
Due Process Rights.
The PSC accepted public comments received at public meetings, as well as reports of
consultants and other agencies, and introduced these reports and comments at trial. The public
meetings were not governed by the rules of evidence, and were not presided over by a hearing
officer. Likewise, the consultants and agencies who issued reports were not properly sworn and
the reports were not authenticated. By admitting the public comments and reports into the trial,
the PSC improperly accepted unsworn hearsay evidence, denying the Tribe’s right to procedural
due process.
IV. Neb. Rev. Stat. §§ 57-1407(2) and 57-1407(3) are Unconstitutional.
Neb. Rev. Stat. § 57-1403(2) allows the PSC to “hold additional public meetings for the
purpose of receiving input from the public” and to “make the public input part of the record.”
Similarly, § 57-1403(3) allows the PSC to accept consultant reports and reports from other
agencies, including opinions regarding approving, denying, or modifying the location of the
proposed route of the major oil pipeline. These statutory provisions are unconstitutional on their
face or as applied in that they permit the PSC to violate procedural due process rights guaranteed
by the United States and Nebraska Constitutions.
V. Neb. Rev. Stat. § 57-1403(3) is Unconstitutional.
Neb. Rev. Stat. § 57-1403(3) declares that the “construction of major oil pipelines . . . is in
the public interest of Nebraska.” In doing so, the statute takes away the PSC’s discretion and
infringes on the judicial function to decide whether or not a pipeline is in the public interest and
violates the judicial power set forth in Article II, § 1 of the Nebraska Constitution. Moreover, the
statute is an unconstitutional invasion of the PSC’s authority bestowed pursuant to Article IV, §
9
20 of the Nebraska Constitution. As such, § 57-1403(3) is unconstitutional on its face and as
applied.
VI. The PSC Unconstitutionally Restricted the Tribe’s Participation.
When the Hearing Officer issued the Order on Formal Intervention Petitions, unlawful
restrictions were placed on the Tribe’s participation in the proceeding. Those restrictions limited
the Tribe’s ability to seek discovery, its ability to offer witness testimony, and its ability to cross-
examine. The same limitations were placed on the Ponca Tribe of Nebraska. Because the Tribe’s
procedural rights were curtailed, the PSC’s actions violated the Due Process Clause of the
Nebraska Constitution and the United States Constitution. Because the basis for imposing the
restriction on cross-examination for the Tribe is the Tribe’s status as an Indian tribe, the PSC’s
actions violated the Equal Protection Clauses of the Nebraska Constitution and the United States
Constitution which prohibit disparate treatment on the basis of race or national origin.
Argument
I. The PSC Lacked Jurisdiction.
Error 1: The PSC erred when it purported to exercise jurisdiction over the proceeding
below because the PSC lacked jurisdiction to approve the proposed (or any) route.
As explained in Error 1 of Appellants’ Brief, the PSC had no jurisdiction over the
proceeding below because the statutory prerequisite for PSC jurisdiction regarding Governor
approval was not met. Specifically, because the Governor has never disapproved the proposed
pipeline route, Neb. Rev. Stat. §§ 57-1405, and 57-1503 could not convey jurisdiction on the PSC.
Neb. Rev. Stat. § 57-1405 only permits a pipeline carrier to apply for route approval if the route
has not been approved by the governor. Furthermore, Neb. Rev. Stat. § 57-1503 only grants the
PSC jurisdiction over applications for pipeline route approval if the governor does not approve the
10
route. However, the proposed route has been approved by the governor. (T125-127). There was
therefore no statutory authority for the PSC to consider the proposed, or any other, route and its
order must be overturned.
Because this matter was covered thoroughly in Appellants’ Brief and the Tribe agrees with
Appellants’ arguments, in the interest of conserving judicial resources the Tribe hereby adopts and
incorporates by reference pages 13-17 of Appellants’ Brief. For the foregoing reasons and the
reasons contained in Appellants’ Brief, the PSC lacked jurisdiction over the underlying proceeding
and its decision must be reversed.
II. The Applicant Never Applied for the Approved Route.
A. Error 2: The PSC erred when it exceeded its jurisdiction by approving a route that the
Applicant did not apply for, without notice to the Tribe, in violation of the Tribe’s due
process rights.
As Appellants show in their discussion of Error 2 in Appellants’ Brief, the PSC violated
the Parties’ due process rights when it approved a route TransCanada did not apply for without
first providing notice to the Parties that it might do so. The Major Oil Pipeline Siting Act
(“MOPSA”), Neb. Rev. Stat. § 57-1401, et seq., grants the PSC no authority to approve a pipeline
route that has not been requested by the applicant.
Through its application to the PSC, an applicant for route approval applies for a specific
route pursuant to Neb. Rev. Stat. § 57-1405. The PSC must then, within seven months, enter an
order approving or denying the application for the proposed route. Neb. Rev. Stat. § 57-1408.
Nothing in MOPSA grants the PSC authority to approve (or deny) a route for which the applicant
did not apply.
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The PSC’s approval of a route for which TransCanada never applied violated the Tribe’s
and other Parties’ procedural due process rights because the Parties had no notice that anything
other than the route proposed in the Application might be approved. Because this matter was
covered thoroughly in Appellants’ Brief and the Tribe agrees with Appellants’ arguments, in the
interest of conserving judicial resources the Tribe hereby adopts and incorporates by reference
pages 17-22 of Appellants’ Brief. For the foregoing reasons and the reasons contained in
Appellants’ Brief, the PSC acted outside the scope of its authority and violated the Tribe’s due
process rights, thus its decision must be reversed.
B. Error 3: The PSC erred when it approved a route that the Applicant did not apply for
because the approved route does not serve the public interest.
The PSC’s decision must be reversed because the proposed route runs contrary to the public
interest. Neb. Rev. Stat. 57-1407(4) mandates the PSC’s approval of a proposed route “if the
proposed route of the major oil pipeline is determined by the [PSC] to be in the public interest.”
The PSC has no authority to approve a route that is not in the public interest.
As discussed in detail in Appellants’ Brief, this proposed route is not in the public interest
and the PSC should have denied the Application. Because this error was covered thoroughly in
Appellants’ Brief and the Tribe agrees with Appellants’ arguments, in the interest of conserving
judicial resources the Tribe hereby adopts and incorporates by reference pages 22-27 of
Appellants’ Brief. For the foregoing reasons and the reasons contained in Appellants’ Brief,
approval of the proposed route was not in the public interest and the PSC’s decision must be
reversed.
C. Error 4: The PSC erred when it approved a route that the Applicant did not apply for
because the Applicant did not sustain its burden of proof.
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The PSC must also reverse its decision granting approval of the Mainline Alternative Route
because TransCanada did not sustain its burden of proof to show that the Mainline Alternative
Route was in the public interest. In accordance with Neb. Rev. Stat. § 57-1407(4) and 291 Neb.
Admin Code § 9-023.07, “[t]he pipeline carrier shall have the burden to establish that the proposed
route of the major oil pipeline would serve the public interest.” TransCanada failed to sustain its
burden in this regard, not because the evidence it offered to show that the Mainline Alternative
Route was in the public interest was insufficient, but rather because it offered no evidence at all in
support of that proposition. Because the Mainline Alternative Route was not the route for which
TransCanada applied, TransCanada submitted no evidence regarding the Mainline Alternative
Route. TransCanada did submit some evidence on why its proposed route was in the public
interest, including addressing some of the factors that the PSC must consider when making a public
interest determination as set forth under § 57-1407(4), but it did not do the same for the Mainline
Alternative Route since it never applied to have that route approved. Because the Tribe’s
participation was limited to social and cultural issues, the Tribe will focus its argument here on
those issues.
1. The Pipeline’s Impact on Cultural Resources Must Be Considered as Part of the
Social Element of the Public Interest.
MOPSA requires the PSC to evaluate the social impacts of a major oil pipeline as part of
its determination that the pipeline is (or is not) in the public interest. Neb. Rev. Stat. § 57-1407(4).
The Hearing Officer for the proceeding below found, properly, that social impacts include
“cultural, anthropological, and historical impacts.” (T705). A multitude of Landowner witnesses
testified that it is important to them, as Nebraskans, to preserve and protect Native American
cultural resources in Nebraska. (754:1-16; 780:5-11; 817:12-19; 875:22-876:3; 891:9-15; 917:17-
13
918:21; 931:15-24). In fact, as one witness testified, “Nebraska is a [N]ative word.” (817:18-25).
The PSC was therefore required to evaluate the impacts of the proposed Keystone XL pipeline on
the cultural and historical resources of significance to the Tribe. Moreover, TransCanada had the
burden to prove that the pipeline route is in the public interest, taking into account the impacts on
the Tribe’s cultural and historical resources.
2. Native American Cultural Resources and Burials are at Risk from the Proposed
Pipeline.
Irreplaceable cultural and historical resources of significance to the Tribe and many other
Indian tribes would be placed in peril if the pipeline is constructed. This is a matter of common
sense. Construction of the pipeline requires digging, among a number of ground-disturbing
activities. (262:10-13). Some stretches of the pipeline would be constructed using horizontal
directional drilling (“HDD”), boring into the earth to build the pipeline under a body of water.
(501:14-15; 914:7-8). Even maintenance activities can disturb a site. (664:11-18). Any ground-
disturbing activity conducted in the presence of human remains or other cultural or historical
resources has the potential to harm the resource. (The Tribe is unable to cite to the record because
it was unable to offer an expert on cultural resources.) Even boring under a resource through HDD
can harm resources located above the borehole. (T1590). The propensity for construction projects
like this pipeline to damage cultural resources is significant, and is the reason why companies like
TransCanada conduct cultural and historical resource surveys. TransCanada’s surveys in this
instance, however, are insufficient and not comprehensive, as discussed in section II(C)(3), infra.
At the final hearing, TransCanada touted the Amended Programmatic Agreement as
protecting cultural resources during the construction process. (384:18-385:4). However, the
Amended Programmatic Agreement only addresses cultural and historical resources that are
14
eligible for listing in the National Register of Historic Places (“National Register”). (1116:23-
1117:6). Sites that are not eligible for the National Register are nonetheless important and must
be preserved, as TransCanada’s cultural resource witness, Erin Salisbury, testified during the
hearing. (1117:10-13). These sites, however, will receive no protection under the Amended
Programmatic Agreement.
Land and water are also cultural resources that receive no protection under the Amended
Programmatic Agreement. (T1595-96; 930:6-9; CUL-25 at 2). For the Ihanktonwan, or Yankton,
and many other tribes, water is a priceless cultural and spiritual resource. “The land and water are
sacred to us. Any destruction or contamination of the land or water would damage [the People’s
relationship with the land].” (CUL-25 at 2).
The Tribe’s historical presence in the area the pipeline would traverse means that the area
is replete with cultural resources, historical resources, and even burials of significance to the Tribe.
Because the pipeline crosses the Tribe’s ancestral territory and is in close proximity to the Tribe’s
Nemaha Reserve, construction of the pipeline poses a threat to the integrity of cultural and
historical resources of significance to the Tribe.
3. TransCanada Failed to Produce Sufficient Evidence to Assess the Social
Impacts of the Pipeline for the Public Interest Determination.
Not only is the record void of any evidence about the impacts of the Mainline Alternative
Route on cultural resources, but the paltry evidence offered with respect to the proposed route is
wholly inadequate to make a reasoned, informed decision about the proposed route’s impact on
cultural resources such as sacred sites, burials, historic sites, artifacts, and places used for
ceremony. This is largely because TransCanada was actually unable to produce the requisite
evidence due to its failure to survey the entire area to be impacted. TransCanada relied only on
15
the Programmatic Agreement as evidence that cultural resources would be protected, which, as
explained in section II(C)(2), supra, is woefully inadequate to preserve such resources.
Cultural resources for the Tribe also include plants (CUL-25, 6 (sage and other medicinal
plants are gathered throughout Nebraska and water); 981:21-982:10 (“water is life because we’re
nourished in the womb and we use it for – it’s our first medicine we’re in. And we also use it for
our ceremonial uses.”). However, TransCanada took no measures to study the impacts of, or even
identify, medicinal plants (385:22-386:1; 606:11-23) and failed to present any evidence of this
nature. TransCanada also failed to offer any evidence of the cultural and social effects any impact
on water (including spills during construction) would have.
No evidence was offered that cultural resource surveys have been conducted on the
portions of the Mainline Alternative Route that diverge from the proposed route, presumably
because TransCanada did not seek approval of the Mainline Alternative Route. As TransCanada’s
witness Erin Salisbury admitted, TransCanada did not complete archaeological surveys of all the
routes mentioned in its application. (1108:14-18). In fact, TransCanada has not even surveyed
the entire proposed route – 58 miles of centerline alone remain unsurveyed. (1121:25-1122:2;
257:5-16). Likewise, TransCanada admitted that it did not know whether the peripheral areas
where ground will be disturbed, such as workforce camp sites and locations of ground structures,
have been fully surveyed yet. (1122:6-10; 1123:10-12; 1125:11-14). Without the invaluable
knowledge gained from cultural resource surveys, the PSC had insufficient information to make a
public interest determination with respect to the social impacts of either route.
Another obvious reason for TransCanada’s failure to produce evidence is that its
“Environmental Project Manager for the Keystone XL Pipeline Project with responsibility to
manage [TransCanada’s] cultural resources efforts in Montana, South Dakota, and Nebraska”
16
(T1874) was not even aware of the existence of the Tribe’s Nemaha Reserve until after the Tribe
raised it in the pre-filed testimony of Jason Cooke. (1127:25-1128:3). This means that the
company was unaware of the Reserve at the time the limited cultural resource surveys were
conducted. Clearly TransCanada’s efforts to identify cultural resources and its knowledge of the
history of the region are lacking. TransCanada, therefore, cannot possibly demonstrate that either
route is in the public interest due to the impacts on cultural and historic resources.
Because TransCanada’s failure to meet its burden of proof was covered thoroughly in
Appellants’ Brief and the Tribe agrees with Appellants’ arguments, in the interest of conserving
judicial resources the Tribe hereby adopts and incorporates by reference pages 22-27 of
Appellants’ Brief. For the foregoing reasons and the reasons contained in Appellants’ Brief,
TransCanada did not sustain its burden of proof to show that approval of the Mainline Alternative
Route was in the public interest and the PSC’s decision must be reversed.
III. The PSC Improperly Accepted Unsworn Hearsay Evidence in Violation of the
Tribe’s Due Process Rights.
A. Error 5: The PSC erred when it accepted unsworn hearsay evidence through public
meetings and public comments without providing the Tribe the ability to confront or
cross-examine the witnesses and other due process protections.
Pursuant to Neb. Rev. Stat. § 57-1407(2), the PSC held public comment sessions prior to
the final hearing. Despite the fact that these public comment sessions were not governed by the
rules of evidence and were not presided over by a hearing officer, the PSC allowed the comments
received from these sessions to be made part of the record. (EPSC7, 1-406:52, 1230; EPSC8, 1-
262:52, 1636; EPSC9, 1-316:52, 1878; EPSC10, 1-338:52, 2214). As a result, the PSC openly
17
violated the procedural due process rights of the Tribe and allowed unsworn hearsay evidence to
be considered in its decision on route approval.
The thousands of pages of comments received from the public comment sessions constitute
unverified, unsworn hearsay evidence lacking any foundation. Before the final hearing, the PSC
ordered that the Rules of Evidence would apply at the final hearing. (T1836). As noted in the
case of Marshall v. Wimes, 261 Neb. 846, 853 (2001), agencies cannot make decisions on the basis
of consideration of hearsay evidence where the rules of evidence apply. Therefore, allowing the
comments received from the public sessions constituted a violation of the Tribe’s procedural due
process rights. The Tribe was provided with no opportunity to confront or cross-examine the
public citizens and entities that submitted comments to the PSC and, therefore, had no opportunity
to rebut the public comments.
Because this error was covered thoroughly in Appellants’ Brief and the Tribe agrees with
reasons contained in Appellants’ Brief, the receipt of public comments by the PSC and the
introduction of those comments into the record, (EPSC7, 1-406:52, 1230; EPSC8, 1-262:52, 1636;
EPSC9, 1-316:52, 1878; EPSC10, 1-338:52, 2214), constituted violations of the hearsay rule and
a deprivation of the Tribe’s procedural due process rights. For these reasons, the PSC’s decision
must be reversed.
B. Error 6: The PSC erred when it accepted unsworn hearsay evidence from consultants
without providing the Tribe the ability to confront or cross-examine the witnesses or
other due process protections.
18
In accordance with Neb. Rev. Stat. § 57-1407(3), the PSC is allowed to accept the reports
of consultants and other state agencies, including opinions regarding the approval, denial, or
modification of the location of the proposed route of a major oil pipeline. These reports from
consultants and agencies outside of, and not parties to, the PSC proceeding constitute hearsay and
their acceptance deprived the Tribe of its fundamental procedural due process rights.
The consultants offering reports to the PSC are not sworn or under oath and the reports are
not properly authenticated and lack the proper foundation to be introduced at trial. (EPSC6, 1-
112:52, 1118; 48:6-12; 52:4-11). Similar to the arguments made regarding Error 5, supra, these
reports violate the hearsay rule because they are effectively the comments of outside parties put
forth to prove the truth of the matter asserted. Moreover, the reports deprived the Tribe of its
procedural due process rights because there was no opportunity to confront or rebut them.
Because this error was covered thoroughly in Appellants’ Brief, and under Error 5, supra,
and the Tribe agrees with Appellants’ arguments, in the interest of conserving judicial resources
the Tribe hereby adopts and incorporates by reference pages 30-31 of Appellants’ Brief. For the
foregoing reasons and the reasons contained in Appellants’ Brief, the receipt of the reports of
consultants and agencies, and the introduction of those reports into the record, constituted a
violation of the hearsay rule and a deprivation of the Tribe’s procedural due process rights. For
these reasons, the PSC’s decision must be reversed.
IV. Neb. Rev. Stat. §§ 57-1407(2) and 57-1407(3) are Unconstitutional.
A. Error 7: The PSC erred when it applied Neb. Rev. Stat. § 57-1407(2), which allows
the PSC to hold public meetings to receive public input and make the public input
part of the record, because the statute is unconstitutional in that it denies procedural
due process of law.
19
Neb. Rev. Stat. § 57-1407(2) authorizes the PSC the ability to hold public comment
sessions and accept comments received into the record, the statute is facially unconstitutional.
Section 57-1407(2), by its plain terms, allows the PSC to openly violate the procedural due process
rights of parties before it.
Among the protections afforded by procedural due process, one fundamental protection is
that parties that may be deprived of a property or liberty interest are afforded adequate notice and
an opportunity to be heard. Hass v. Neth, 657 N.W.2d 11 (Neb. 2003); Matthews v. Eldridge, 424
U.S. 319 (1976). The public comment sessions, however, deprive parties of their procedural due
process rights by accepting comments – essentially, testimony – made not under oath and not
subject to cross-examination.
Because this error was covered thoroughly in Appellants’ Brief and the Tribe agrees with
reasons contained in Appellants’ Brief, Neb. Rev. Stat. § 57-1407(2) is unconstitutional and void,
and the PSC’s decision must be reversed as a result.
B. Error 8: The PSC erred when it applied Neb. Rev. Stat. § 57-1407(3) which allows
the PSC to accept the reports of consultants and other agencies, including opinions
regarding approving, denying, or modifying the location of the proposed route of
the major oil pipeline, because the statute is unconstitutional in that it denies
procedural due process of law.
Neb. Rev. Stat. § 57-1407(3) is also unconstitutional in that it deprives participants in PSC
proceedings of their procedural due process rights under the Nebraska and United States
Constitutions. Very similar to the arguments made under Error 6, supra, the acceptance of
20
consultant and agency reports by the PSC is a violation of procedural due process rights because
the consultants and agencies are not under oath when offering their comments and parties are not
allowed to cross-examine the consultants or agencies.
Because this error was covered thoroughly in Appellants’ Brief and under Error 7, supra,
and the Tribe agrees with Appellants’ arguments, in the interest of conserving judicial resources
the Tribe hereby adopts and incorporates by reference pages 30-31 of Appellants’ Brief. For the
foregoing reasons and the reasons contained in Appellants’ Brief, Neb. Rev. Stat. § 57-1407(3) is
unconstitutional and void, and the PSC’s decision must be reversed.
V. Neb. Rev. Stat. § 57-1403(3) is Unconstitutional.
A. Error 9: The PSC erred when it applied Neb. Rev. Stat. § 57-1403(3) which states that
statute is unconstitutional, as it violates Article II, § 1 of the Nebraska Constitution.
Neb. Rev. Stat. § 57-1403(3) makes a broad, generalized statement that “construction of
major oil pipelines…is in the public interest of Nebraska.” This public interest statement
constitutes a violation of the Nebraska Constitution because it invades the constitutional powers
of the state judiciary.
Pursuant to Article II, § 1 of the Nebraska Constitution, the powers of the state government
are divided into the three departments—the legislative, executive, and judicial. For effective
operation of the government, none of the three departments are allowed to exercise any powers
that belong to another department. The legislature, by stating that the construction of all major oil
pipelines is in the public interest of Nebraska, effectively encroached upon the PSC’s judicial
function to decide, as it should, whether a certain project or activity is in the public interest. While
the legislature can make broad generalizations, it is a judicial function to decide if a certain project
21
or activity is in the public interest. In addition, Neb. Rev. Stat. § 57-1403(3) violates Article IV,
§ 20 of the Nebraska Constitution because the statute’s blanket declaration that major oil pipelines
are in the public interest deprives the PSC of its constitutional authority.
Because this error was covered thoroughly in Appellants’ Brief, and the Tribe agrees with
B. Error 10: The PSC erred when it applied Neb. Rev. Stat. § 57-1403(3) which states
that “construction of major oil pipelines . . . is in the public interest of Nebraska.” This
statute is unconstitutional, as it violates Article IV, § 20 of the Nebraska Constitution
by usurping the authority of the PSC conveyed by Article IV, § 20.
Beyond the fact that it violates the separation of powers principle as codified in Article II,
§ 1 of the Nebraska Constitution, the statement in Neb. Rev. Stat. § 57-1403(3) stating as fact that
construction of pipelines is in Nebraska’s public interest is unconstitutional because it invades the
PSC’s authority afforded under Article IV, § 20 of the Nebraska Constitution. The blanket
declaration that major oil pipelines are in the public interest deprives the PSC of its constitutional
authority.
Article IV, § 20 deals solely with the PSC and gives the PSC power and authority over “the
regulation of rates, service and general control of common carriers as the Legislature may provide
by law.” A determination of whether a common carrier is in the public interest is within the PSC’s
authority to decide under its power of “general control of common carriers.” “The determination
of public interest is the Commission’s task . . . .” (T1665). The legislature, by purporting to decide
22
issues of public interest dealing with common carriers, has taken the PSC’s constitutional authority
away in violation of Article IV, § 20. The PSC must be able to exercise its judicial authority
without any interference from other branches of the government.
Because this error was covered thoroughly in Appellants’ Brief, and the Tribe agrees with
VI. The PSC Unconstitutionally Restricted the Tribe’s Participation as a Formal
Intervenor.
The limitations placed on the Tribe as a formal intervenor are illegal, are contrary to the
PSC’s own rules, and impeded the Tribe’s ability to fully participate as a formal intervenor in the
PSC proceeding. In the order granting the Tribe formal intervenor status, the presiding hearing
officer identified the Tribe and Ponca as “Petitioners asserting social and cultural interests” and
unlawfully restricted the Tribes in the following ways:
1. The Tribes’ formal intervenor status was “limited to social and cultural issues.”
2. The Tribes could offer the testimony of just one shared witness.
3. The Tribes could “conduct discovery only for the limited purposes of exploring
[social and cultural issues].”
4. The Tribes were “entitled to collaborate to cross-examine witnesses at the
hearing, not to exceed one-hour of time per witness.”
5. The Tribes were required to submit one joint brief.
23
(T705). The hearing officer did subsequently modify these restrictions, but only to permit the
testimony of two witnesses (one per tribe) at the public hearing and to permit each tribe to submit
a separate brief, but requiring that the two briefs combined not exceed the page limit for one brief.
(1235:18-23).
These restrictions violated the PSC’s rules of procedure and violated the Tribe’s procedural
due process and equal protection rights. The Tribe challenged these restrictions, to no avail, on
multiple occasions: in its Consolidated Motion for Reconsideration of the Commission’s Order
on Formal Intervention and Memorandum in Support of Motion (T771-76); the Objections filed
by the Tribe, Ponca, and Bold Alliance and Sierra Club, Nebraska Chapter (T5587-91); and during
the hearing (1065:5-7; 1234:20-25).
A. The PSC Improperly Relied upon the Administrative Procedure Act Instead of Its
Own Rules to Restrict the Tribe’s Participation.
Error 11: The PSC erred when it applied the Administrative Procedure Act, Neb.
Rev. Stat. § 84-912.02, to limit the Tribe’s participation rights as a formal
intervenor instead of using its own rules of procedure.
When it imposed these limitations on the Tribe, the PSC relied on rules under the
Administrative Procedure Act (“APA”), Neb. Rev. Stat. § 84-912.02, rather than the PSC’s own
rules of procedure, 291 Neb. Admin. Code 1 § 015.01C. This is especially significant because
much broader participation rights are afforded under the PSC’s rules of procedure as compared to
those rights under the APA. The PSC rule regarding participation of a formal intervenor in
proceedings, 291 Neb. Admin. Code 1 § 015.01C, reads: “A formal intervenor shall be entitled to
participate in the proceeding to the extent of his/her express interest in the matter. Such
participation shall include, without limitation, presentation of evidence and argument, cross-
24
examination of witnesses and submission of rebuttal evidence.” (Emphasis added.) On the other
hand, the APA allows agencies to “impose conditions upon the intervenor’s participation in the
proceedings,” including “[l]imiting the intervenor’s participation to designated issues” and
“[r]equiring two or more intervenors to combine their presentation of evidence and argument.”
Neb. Rev. Stat. § 84-912.02.
The PSC is required to follow its own agency rules and does not have discretion to
substitute the APA rules for its own rules in these proceedings. Neb. Rev. Stat. § 75-110(1)
required the PSC to adopt and promulgate rules of procedure, and also requires that “[t]he
commission shall not take any action affecting persons subject to the commission's jurisdiction
unless such action is taken pursuant to a rule, regulation or statute.” This Court has also spoken
on the issue and ruled that an agency must follow its own rules.
In the case of Douglas County Welfare Admin. v. Parks the Nebraska Supreme Court noted
that:
[g]enerally, rules and regulations of an administrative agency governing
proceedings before it, duly adopted and within the authority of the agency, are as
binding as if they were statutes enacted by the Legislature. Likewise, procedural
rules are binding upon the agency which enacts them as well as upon the public,
and the agency does not, as a general rule, have the discretion to waive, suspend,
or disregard, in a particular case, a validly adopted rule so long as such rule remains
in force . . . . To be valid, the action of the agency must conform to its rules which
are in effect at the time the action is taken, particularly those designed to provide
procedural safeguards for fundamental rights.
204 Neb. 570, 572, 284 N.W.2d 10, 11-12 (Neb. 1979).
25
The Nebraska Supreme Court again voiced its opinion on the binding nature of the PSC’s
rules in Jantzen v. Diller Telephone Co., 245 Neb. 81, 100, 511 N.W.2d 504, 517 (Neb. 1994).
When discussing the PSC’s rules regarding the procedure of intervention, the Court wrote,
In summary, the rules set forth who may be a party, how a party may intervene, and
what rights the parties may have based on the type of intervention. These rules and
regulations are binding on the Commission in the same manner as if they were
statutes. The Commission is required to conform to these rules.
Id.
For the foregoing reasons, the PSC plainly erred when it applied the APA rules to impose
limitations on the Tribe as a formal intervenor.
B. The PSC Violated the Tribe’s Constitutional Right to Procedural Due Process.
Error 12: The PSC erred when it limited the scope of the Tribe’s discovery to social
and cultural issues in violation of the Tribe’s right to procedural due process.
Error 13: The PSC erred when it limited the Tribe to just one witness in violation of
the Tribe’s right to procedural due process.
Error 14: The PSC erred when it prohibited the Tribe from cross-examining Ponca’s
witness in violation of the Tribe’s right to procedural due process.
Under the United States and Nebraska Constitutions, state administrative agencies, such as
the PSC, must provide individuals with procedural due process. The Nebraska State Constitution
provides that “No person shall be deprived of life, liberty, or property, without due process of law.”
NEB. CONST. art. 1, § 3. Almost identically, the Fourteenth Amendment of the United States
Constitution states, “nor shall any state deprive any person of life, liberty, or property, without due
process of law.” U.S. CONST. amend. XIV, § 1.
26
The requirements of procedural due process are not satisfied unless “a person has
reasonable notice and an opportunity to be heard appropriate to the nature of the proceeding and
the character of the rights which might be affected by it.” Cain v. Custer Cty Bd. of Equal, 906
N.W.2d 285, 292 (Neb. 2018); Matthews v. Eldridge, 424 U.S. 319 (1976). It is a question of law
whether the process an administrative agency provides complies with the requirements for
procedural due process. Cain, 906 N.W.2d at 292; In re Carmelo G, 896 N.W.2d 902, 812 (Neb.
2017). “A court reviewing an order of an administrative agency must determine whether there has
been due process of law; and this includes an inquiry into the jurisdiction of the agency, whether
there was reasonable notice and an opportunity for fair hearing, and whether the finding was
supported by evidence.” Landrum v. City of Omaha Planning Bd, 899 N.W.2d 598, 614 (Neb.
2017). The PSC decision must be overturned if the Court finds, as it must, that the Tribe’s due
process rights were violated.
The PSC violated the Tribe’s due process rights when it limited the Tribe to call just one
witness. As Judge Henry Friendly once wrote, one of the fundamental elements of a fair hearing
is the right to call witnesses. Henry Friendly, Some Kind of Hearing, 123 U. Pa. L. Rev. 1267
(1975). This same sentiment has been followed by the Supreme Court in its decisions regarding
procedural due process rights. In Morrissey v. Brewer, 408 U.S. 471, 489 (1972), the Supreme
Court held that the “minimum requirements of due process” include, among other things, an
“opportunity to be heard in person and to present witnesses and documentary evidence.” See also
Wolff v. McDonnell, 418 U.S. 539, 559 (1974); State v. Shawn M. (in Re Ty M.), 655 N.W.2d 672,
683 (Neb. 2003).
Despite the amount of precedent noting that a fundamental right of due process is to be
able to present witnesses to strengthen the points being argued, the PSC unjustifiably limited the
27
Tribe to only calling one witness on its behalf. In addition to violating Supreme Court and other
legal precedent, the PSC also violated its own governing regulations in limiting the Tribe to one
witness. Formal intervenors, like the Tribe, are allowed to participate in PSC proceedings and
such participation “[s]hall include, without limitation, presentation of evidence and argument,
cross-examination of witnesses and submission of rebuttal evidence.” 291 Neb. Admin. Code §
1-015.01C. The right of formal intervenors to present evidence and argument, without limitation,
allows the formal intervenor to call multiple witnesses to help substantiate and strengthen the
formal intervenor’s claims, yet the Tribe was denied this right. Moreover, the PSC effectively
treated the Tribe as if it were an informal intervenor. Informal intervenors are limited in their
participation in PSC proceedings “to the presentation of a pre-filed statement of a single witness
together with exhibits by such witness.” 291 Neb. Admin. Code § 1-015.02C. Like an informal
intervenor, the Tribe was limited to calling just one witness.
This limitation by the PSC violates Supreme Court precedent, violates the PSC’s governing
regulations, and constitutes a violation of the Tribe’s procedural due process rights. As a result,
the PSC’s decision must be overturned.
As explained in section IV(A), supra, quasi-judicial administrative proceedings such as the
proceeding below must afford parties due process protections. “A party appearing in an
adjudication hearing before an agency or tribunal is entitled to due process protections similar to
those given to litigants in a judicial proceeding.” Cain, 906 N.W.2d at 292. Nothing in MOPSA
permits the PSC to infringe on a party’s due process rights in this manner. Furthermore, the
regulations of the PSC state, “[t]he use of depositions and discovery in proceedings before the
Commission is governed by the rules and regulations of the Nebraska Supreme Court.” 291 Neb.
Admin. Code § 1-016.11. Under the Nebraska Supreme Court’s rules regarding discovery, parties
28
are afforded a broad range of discovery in terms of both the methods to be used and the scope of
the discovery. See Neb. Ct. R. of Disc. § 6-326. Nowhere in the rules of the Nebraska Supreme
Court is the scope of discovery allowed to be limited in the manner that the PSC limited the Tribe’s
discovery.
The Tribe should have been allowed to seek discovery related to environmental issues
because, due to the nature of the Tribe’s “cultural” interests, threats or damage to the environment
will result in threats or damage to the Tribe’s cultural interests. In accordance with the PSC’s
governing regulations, formal intervenors are entitled to participate in PSC proceedings to the
extent of their express interest in the matter. 291 Neb. Admin. Code § 1-015.01C. The Tribe’s
interest in halting the Pipeline is much broader than just cultural and social issues. However, even
if it were limited to those issues, degradation of the surrounding environment and lands could very
well compromise and damage the Tribe’s social well-being, cultural values, and cultural practices,
thus social and cultural issues must encompass environmental issues. Therefore, the Tribe should
have been allowed to seek discovery on environmental and other related issues.
C. The PSC Violated the Tribe’s Equal Protection Rights.
Error 15: The PSC erred when it limited the scope of the Tribe’s discovery to social
and cultural issues in violation of the Tribe’s equal protection rights.
Error 16: The PSC erred when it limited the Tribe to just one witness in violation of
the Tribe’s equal protection rights.
Error 17: The PSC erred when it restricted the Tribe’s ability to cross-examine in
violation of the Tribe’s equal protection rights.
The United States and Nebraska constitutions similarly provide for equal protection of the
laws for all people. NEB. CONST. art. 1, § 3 (“No person shall . . . be denied equal protection of
29
the laws”); U.S. CONST. amend. XIV, § 1 (“nor shall any state . . . deny to any person within its
jurisdiction the equal protection of the laws.”). “The Nebraska Constitution and the U.S.
Constitution have identical requirements for equal protection challenges.” Citizens of Decatur for
Equal Educ. v. Lyons-Decatur Sch. Dist., 739 N.W.2d 742, 762 (Neb. 2007). The Equal Protection
Clause prevents “governmental decisionmakers from treating differently persons who are in all
relevant respects alike.” Maack v. School Dist. of Lincoln, 491 N.W.2d 341, 350 (Neb. 1992).
“State action, for the purpose of the Equal Protection Clause of the 14th Amendment to the U.S.
Constitution, may emanate from a ruling of an administrative agency as well as from legislative
or judicial action.” Id.
A law on its face may not discriminate between two classes of individuals in violation of
the Equal Protection Clause. However,
Though the law itself be fair on its face and impartial in appearance, yet, if it is
applied and administered by public authority with an evil eye and an unequal hand,
so as practically to make unjust and illegal discriminations between persons in
similar circumstances, material to their rights, the denial of equal justice is still
within the prohibition of the Constitution.
Yick Wo v. Hopkins, 118 U.S. 356, 373-374 (1886); see Mach v. County of Douglas, 612 N.W.2d
237 (Neb. 2000).
In selective-prosecution cases, where a party asserts that a prosecutor has brought a charge
in violation of the Equal Protection Clause, the requirements for such a claim generally draw on
the ordinary equal protection standard. See United States v. Armstrong, 517 U.S. 456, 465 (1996).
Thus, a party will likely have to “prove that the decisionmakers in his case acted with
discriminatory purpose.” McCleskey v. Kemp, 481 U.S. 279, 292 (1987); Mach, 612 N.W.2d at
30
241 (“A discriminatory purpose will not be presumed; there must be a showing of clear and
intentional discrimination.”). The ordinary equal protection standard should also apply in cases
where a claimant asserts that a hearing officer of an administrative agency presiding over a case
issued procedural decisions in violation of the Equal Protection Clause.
“‘Discriminatory purpose’ . . . implies more than intent as volition or intent as awareness
of consequences. It implies that the decisionmaker . . . selected a particular course of action at
least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group.”
Personnel Admin. Of Mass. v. Feeney, 442 U.S. 256, 279 (1979); Mach, 612 N.W.2d at 242.
The APA allows agencies to “impose conditions upon the intervenor’s participation in the
proceedings,” including “[l]imiting the intervenor’s participation to designated issues” and
“[r]equiring two or more intervenors to combine their presentation of evidence and argument.”
Neb. Rev. Stat. § 84-912.02. As explained above, the PSC incorrectly relied on rules under the
APA, Neb. Rev. Stat. § 84-912.02, rather than the PSC’s own rules of procedure when it restricted
the Tribe’s ability to participate in the proceedings. Even if the APA rules did apply to this
proceeding, these rules do not allow the PSC to restrict due process rights arbitrarily or, worse yet
(and as is the case here), with discriminatory purpose.
Finally, the PSC violated the Tribe’s equal protection rights when it restricted its ability to
cross-examine Ponca’s witness at the final hearing. (T1061). Notably, the other Parties were
permitted to cross-examine friendly witnesses. For example, United Association of the Plumbing
and Pipe Fitting Industry of the United States and Canada, AFL-CIO, which intervened in the PSC
proceeding on the side of TransCanada, was permitted to cross examine TransCanada’s witnesses
(178:17; 265:23-24; 332:6-7; 386:7; 449:11; 524:6-7; 625:18-19), and Midwest Region of the
Laborers’ International Union of North America and International Brotherhood of Electrical
31
Workers Local Union No. 265, which also intervened in favor of route approval, was permitted to
cross examine TransCanada’s witnesses (178:20; 266:2; 332:10-11; 338:10-11). In addition, the
Landowners, who intervened in opposition to route approval, were allowed to cross-examine other
opposition witnesses (980:15; 983:9; 1050:14-1053:7; 993:9-1016:12) and the Tribe was largely
allowed to cross-examine other opposition witnesses (750:21-754:18; 780:5-12; 798:3-19; 817:12-
818:2; 875:22-876:4; 886:4-893:20; 917:15-918:22; 930:3-932:20).
The judge, though, restricted the Tribe’s ability to cross-examine the Ponca witness,
(1060:3-1071:17), presumably because it views Indian tribes as the same or, at least, having the
same interests. The tribes, however, do not share a common history, their historical migrations
and areas of ancestral lands are different, their spiritual practices and sacred sites are unique, and
their anthropological backgrounds are distinct. (T773). Put simply, Ponca and the Tribe have
separate and distinct interests, concerns, and perspectives. The Tribe should have been permitted
to cross-examine a friendly witness as the other Parties were. Notably, at the end of the public
hearing, the Hearing Officer indicated that one of the reasons for a certain limitation on the Tribe
was because “there is so much that is common” between Ponca and the Tribe. (1235:15-16).
Additionally, nothing in the Order on Formal Intervention Petitions, Nebraska Public
Service Commission entered March 31, 2017, or the order amending it, expressly prohibits the
Tribe from cross-examining the witness for Ponca. (T700-08; 1058-60). The order merely states
that the two tribes are “entitled” to collaborate to cross-examine witnesses. (T705) (emphasis
added). This means that they may collaborate, but collaboration is not required. Furthermore,
collaboration does not mean that one tribe is prohibited from cross-examining the witness for the
other tribe. This restriction is not contained in any order entered in this proceeding, yet the Tribe
was restricted in this manner during the public hearing. (T1060-68).
32
The PSC’s refusal to allow the Tribe to cross-examine the Ponca witness appears to be at
least in part because of its adverse effects upon an identifiable group for a racially discriminatory
purpose. It was therefore unreasonable and unconstitutional for the PSC to prohibit the Tribe from
cross-examining the Ponca witness.
Conclusion
The Tribe respectfully urges the Court to reverse the PSC’s decision, deny TransCanada’s
Application for route approval, and award costs to the Tribe.
Respectfully submitted this 22nd day of May, 2018.
/s/ Jennifer S. Baker /s/ Leonika R. Charging

33
IN THE SUPREME COURT OF THE STATE OF NEBRASKA
______________________________________________________________________________
No. S-17-001331
______________________________________________________________________________
IN THE MATTER OF
THE APPLICATION OF
TRANSCANADA KEYSTONE PIPELINE, L.P.
FOR ROUTE APPROVAL OF
THE KEYSTONE PIPELINE PROJECT
PURSUANT TO
THE MAJOR PIPELINE SITING ACT
______________________________________________________________________________
APPEAL FROM THE NEBRASKA PUBLIC SERVICE COMMISSION

APPLICATION NO. OP-003
______________________________________________________________________________
AFFIDAVIT OF SERVICE
______________________________________________________________________________
STATE OF COLORADO )
) ss
COUNTY OF BOULDER )
On May 22, 2018, Jennifer S. Baker caused to be served one (1) copy of APPELLEE
YANKTON SIOUX TRIBE’S BRIEF AND CROSS-APPEAL by electronic filing, on the
Clerk of the Supreme Court.
On May 22, 2018, Jenifer S. Baker caused to be served a copy of APPELLEE YANKTON
SIOUX TRIBE’S BRIEF AND CROSS-APPEAL and this Affidavit of Service, by US Mail,
postage prepaid to:
Doug Peterson, Nebraska Attorney General
L. Jay Bartel, Esq.

Assistant Attorney General, State of Nebraska
2115 State Capitol P.O. Box 98920
Lincoln, NE 68509-8920
Jay.bartel@nebraska.gov
1
On May 22, 2018, Jennifer S. Baker also caused to be served a copy of APPELLEE
YANKTON SIOUX TRIBE’S BRIEF AND CROSS-APPEAL to all parties of record via e-
mail and via US mail to those without email addresses of record as follows:
James G Powers First National Omaha NE 68102 jpowers@mcgrathnorth.com

Tower Ste 3700
1601 Dodge
Street
Patrick D Pepper First National Omaha NE 68102 ppepper@mcgrathnorth.com
Tower Ste. 3700
1601 Dodge
Street
Jayne Antony 16064 Sprint St Omaha NE 68130-
2030
Wrexie Bardaglio 9748 Arden Road Trumansburg NY 14886 wrexie.bardaglio@gmail.com
Leverne A Barrett 1909 Co Rd E Ceresco NE 68017
Mia Bergman 86424 514 Ave. Orchard NE 68764 mbergman85@hotmail.com
Ellen O Boardman 4748 Wisconsin Washington DC 20016 eboardman@odonoghuelaw.com

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

Avenue, NW m
Robert O'Connor, Jr PO Box 45116 Omaha NE 68145 reolaw@aol.com
Dara Illowsky 1650 38th Boulder CO 80301 dara.illowsky@sierraclub.org

Street Suite
102w
Kimberly E Craven 33 King Canyon Chadron NE 69337 Kimecraven@gmail.com
Road
Cathie Genung 902 East 7th St Hastings NE 68901 tg64152@windstream.net

(Kathryn)
Louis (Tom) Genung 902 East 7th St Hastings NE 68901 tg64152@windstream.net
Andy Grier 916 S. 181st St. Elkhorn NE 68022 griea01@cox.net
2
Christy J Hargesheimer 620 S 30th St Lincoln NE 68510 chrispaz@neb.rr.com
Richard S Hargesheimer 620 South 30th St Lincoln NE 68510 rshargy@gmail.com
Robert J Henry 753 State Avenue Kansas CityKS 66101 rjh@blake-uhlig.com

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

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

Ste 475
Becky Hohnstein PO Box 272 Minatare NE 69356 jimhohnstein@gmail.com
Marvin E Hughes 714 W 5th St Ste Hastings NE 68901 bhughes@gtmc.net

120
John Jarecki 6112 Bedford Ave Omaha NE 68104 johnjarecki110@gmail.com
Karen Jarecki 6112 Bedford Ave Omaha NE 68104 tenbuckstwo@yahoo.com
Brad S Jolly 15355 Gadsen Dr Brighton CO 80603 bsj@bsjlawfirm.com
Brian E Jorde 2425 S 144th Street Omaha NE 68144- bjorde@dominalaw.com

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

3267
Taylor R M Keen 5022 Hamilton St Omaha NE 68132- taylorkeen7@gmail.com

1448
Judy King 1261 Fall Creek Rd Lincoln NE 68510 kingjud@gmail.com
Michelle C LaMere PO Box 514 Winnebago NE 68071
Pamela Luger 8732 Granville LaVista NE 68128 pam1181@yahoo.com

Pkwy
Kendall Maxey 20 Jay Street Brooklyn NY 11201 kendall@350.org
Elizabeth Mensinger 6509 Wirt St. Omaha NE 68104 lizmensinger@gmail.com

(Liz)
3
Cindy Myers PO Box 104 Stuart NE 68780 csmyers77@hotmail.com
Crystal Miller 7794 Greenleaf LaVista NE 68128 neccmiller@juno.com

Drive
Janice Mollhoff 2354 Euclid Street Ashland NE 68003 wjmollhoff@windstream.net
Greg Nelson 3700 Sumner St Lincoln NE 68506 gnelson@inetnebr.com
Julie Nichols 1995 Park Ave Lincoln NE 68502
Jana Osborn 1112 Meadowlark Alliance NE 69301 janajearyb@gmail.com
James Osborn 43110 879th Rd Ainsworth NE 69210

Douglas
Christine Polson 4923 Valley St Omaha NE 68106 snpolson@cox.net
Dave Polson 4923 Valley Street Omaha NE 68106 honk@cox.net
Joseph Pomponio 551B Sand Creek Albany NY 12205 lukaz@msn.com

Rd
Collin A Rees 4721 Heather Lane Kearney NE 68845 collin@priceofoil.org
Donna Roller 2000 Twin Ridge Lincoln NE 68506 rollerski@gmail.com

Rd.
Cecilia Rossiter 949 N 30th St Lincoln NE 68503 punion@gmail.com
Corey Runmann 2718 S. 12th St. Lincoln NE 68502 rumannc@gmail.com
Lois Schreur 2544 N. Omaha NE 68104 leschreur@centurylink.net

61st Street
PO Box
Tristan Scorpio 208 S Burlington Hasting NE 68901
Ave Ste 103 Box
325
Julie Shaffer 5405 Northern Hills Omaha NE 68152

Dr
Sandra Slaymaker 102 E 3rd St #2 Atkinson NE 68713 sandyslaymaker@gmail.com
4
Susan Soriente 11 10 Rockhurst Lincoln NE 68510 ssoriente@gmail. com
Drive
Lorne Stockman 714 G St, SE Suite Washington DC 20003 lorne@priceofoi l.org

202
Susan Straka-Heyden46581 875th Rd Stuart NE 68780 suzie_sl@hotmail.com
Kimberly L Stuhr 19303 Buffalo Rd Springfield NE 68059 kimberlystuhr13@yahoo.com
Jacques Tallichet 282 1 S. 79th St Lincoln NE 68506 jacques.tallichet@gmail .com
Paul Theobald 857 1 8 544th Foster NE 68765 ptheobald36@gmail.com

Avenue
Jonathan H Thomas 960 S Cotner Blvd Lincoln NE 68510 thewild_things@yahoo.com
Elizabeth L Troshynski 87769 484th Ave Atk inson NE 687 13 btroshyn@hotmail. com
Christine Troshynski 101 S. 1st St. Emmet NE 68734 ctroshynski@gmail .com
Julie Walker 2570 West Luther Martell NE 68404 jw9095@yahoo.com

St.
Susan C Watson 2035 N 28th St. Lincoln NE 68503 scwat son I 965@gmai l.com
Apt 213
Susan J Weber 2425 Folkways Blvd Lincoln NE 6852 1 susan jweber4@yahoo.com

Apt 329
Douglas Whitmore 8856 N 83rd Ave. Omaha NE 68122 douglas@whitmore4congress .com
Kenneth Winston 1327 H St Ste 300 Lincoln NE 68508 kwinston @inebraska.com
Sandy Zdan 4817 Douglas Omaha NE 68132 sandywz@cox.net
Sarah Zuekerman 1729 K St. #7 Lincoln NE 68508 sarahj1182@gmail.com
Lisa May 1 008 13th Avenue Kearney NE 68845 doodlesand_dollies@hotmail.com
Michael Whatley 1666 K Street Washington DC 20006 EHaggstrom@consumerenergyallian

NW, Ste. 500 ce.org
5
Michael Reeves 5401 N. M LK #395 Lubbock TX 79403 EHaggs
trom@consumerenergyalliance .org
Adam Martin PO Box 3224 Rapid City SD 57709 adam.martin@sdoil.org
Steven M. Kramer 900 17th Street, Washington DC 20006 skramer@aopl.org

NW,
Ste. 600
Ronald J. Sedlacek PO Box 95128 Lincoln NE 68509 rsedlacek@nechamber.com
Judith Thorman 216 West Jackson Chicago IL 60606 thormanj@api.org

Blvd.,
Ste. 915
Ross Eisenberg 733 10th Street , Washington DC 20001 ross.e.eisenberg@nam.org
NW, Ste.
Nebraska Executive Lincoln NE 68508 psc.kxlfil ings@nebraska.gov

700 1200 N Street,
Public Director Suite 300
Service
Commission
Nebraska Mike Hybl Lincoln NE 68509- Mike.Hybl@nebraska.gov
1200 N. Street, 4927
Public Suite 300
Lincoln, NE 68509-
Service 4927
Nebraska Doug Lincoln NE 68509 Kimberly.daughety@nebraska.gov
Peterson 21 15 State Capital
Attorney Building
General
/s/ Jennifer S. Baker /s/ Leonika R. Charging

6
Certificate of Service
I hereby certify that on Tuesday, May 22, 2018 I provided a true and correct copy of this Replacement Brief of
Appellee Yankton to the following:
Allpress Brothers LLC represented by Brian Emmanuel Jorde (23613) service method: Electronic Service to
bjorde@dominalaw.com
Allpress Brothers LLC represented by David A Domina (11043) service method: Electronic Service to
ddomina@dominalaw.com
Ann A & Richard J Pongratz represented by Brian Emmanuel Jorde (23613) service method: Electronic
Service to bjorde@dominalaw.com
Ann A & Richard J Pongratz represented by David A Domina (11043) service method: Electronic Service to
Arla & Bryce Naber represented by Brian Emmanuel Jorde (23613) service method: Electronic Service to
Arla & Bryce Naber represented by David A Domina (11043) service method: Electronic Service to
Arthur R & Helen J Tanderup represented by Brian Emmanuel Jorde (23613) service method: Electronic
Arthur R & Helen J Tanderup represented by David A Domina (11043) service method: Electronic Service to
Bartel Farms Inc represented by Brian Emmanuel Jorde (23613) service method: Electronic Service to
Bartel Farms Inc represented by David A Domina (11043) service method: Electronic Service to
Beverly & Earl Miller represented by Brian Emmanuel Jorde (23613) service method: Electronic Service to
Beverly & Earl Miller represented by David A Domina (11043) service method: Electronic Service to
Beverly & Robert Krutz represented by Brian Emmanuel Jorde (23613) service method: Electronic Service to
Beverly & Robert Krutz represented by David A Domina (11043) service method: Electronic Service to
Bonnie Brauer represented by Brian Emmanuel Jorde (23613) service method: Electronic Service to
Bonnie Brauer represented by David A Domina (11043) service method: Electronic Service to
Bonnie Kilmurry represented by Brian Emmanuel Jorde (23613) service method: Electronic Service to
Bonnie Kilmurry represented by David A Domina (11043) service method: Electronic Service to
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
Carol Manganaro represented by David A Domina (11043) service method: Electronic Service to
Cheri G & Michael J Blocher represented by Brian Emmanuel Jorde (23613) service method: Electronic
Cheri G & Michael J Blocher represented by David A Domina (11043) service method: Electronic Service to
CHP 4 Farms LLC represented by Brian Emmanuel Jorde (23613) service method: Electronic Service to
CHP 4 Farms LLC represented by David A Domina (11043) service method: Electronic Service to
Connie & Verdon Smith represented by Brian Emmanuel Jorde (23613) service method: Electronic Service to
Connie & Verdon Smith represented by David A Domina (11043) service method: Electronic Service to
Constance Myers represented by Brian Emmanuel Jorde (23613) service method: Electronic Service to
Constance Myers represented by David A Domina (11043) service method: Electronic Service to
CRC Inc represented by Brian Emmanuel Jorde (23613) service method: Electronic Service to
CRC Inc represented by David A Domina (11043) service method: Electronic Service to
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
Daniel A & Joyce K Graves represented by Brian Emmanuel Jorde (23613) service method: Electronic
Daniel A & Joyce K Graves represented by David A Domina (11043) service method: Electronic Service to
Dave & Sharyn Troester represented by Brian Emmanuel Jorde (23613) service method: Electronic Service to
Dave & Sharyn Troester represented by David A Domina (11043) service method: Electronic Service to
Deborah Ann Stieren represented by Brian Emmanuel Jorde (23613) service method: Electronic Service to
Deborah Ann Stieren represented by David A Domina (11043) service method: Electronic Service to
Donald C. & Wanda G. Loseke represented by Brian Emmanuel Jorde (23613) service method: Electronic
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
Donald D Widga represented by David A Domina (11043) service method: Electronic Service to
Donald Rech represented by Brian Emmanuel Jorde (23613) service method: Electronic Service to
Donald Rech represented by David A Domina (11043) service method: Electronic Service to
Edna & Glen Miller represented by Brian Emmanuel Jorde (23613) service method: Electronic Service to
Edna & Glen Miller represented by David A Domina (11043) service method: Electronic Service to
Edythe Sayer represented by Brian Emmanuel Jorde (23613) service method: Electronic Service to
Edythe Sayer represented by David A Domina (11043) service method: Electronic Service to
Frank C & Lynn H Morrison represented by Brian Emmanuel Jorde (23613) service method: Electronic
Frank C & Lynn H Morrison represented by David A Domina (11043) service method: Electronic Service to
Frankie & Sandra Maughan represented by Brian Emmanuel Jorde (23613) service method: Electronic
Frankie & Sandra Maughan represented by David A Domina (11043) service method: Electronic Service to
Gary Choat Farms LLC represented by Brian Emmanuel Jorde (23613) service method: Electronic Service to
Gary Choat Farms LLC represented by David A Domina (11043) service method: Electronic Service to
Germaine G Berry represented by Brian Emmanuel Jorde (23613) service method: Electronic Service to
Germaine G Berry represented by David A Domina (11043) service method: Electronic Service to
Gregory & Joanne Walmer represented by Brian Emmanuel Jorde (23613) service method: Electronic Service
Gregory & Joanne Walmer represented by David A Domina (11043) service method: Electronic Service to
J D Mudloff represented by Brian Emmanuel Jorde (23613) service method: Electronic Service to
J D Mudloff represented by David A Domina (11043) service method: Electronic Service to
James & Christine Carlson represented by Brian Emmanuel Jorde (23613) service method: Electronic Service
James & Christine Carlson represented by David A Domina (11043) service method: Electronic Service to
Jeanne & Ronald C Crumly represented by Brian Emmanuel Jorde (23613) service method: Electronic
Jeanne & Ronald C Crumly represented by David A Domina (11043) service method: Electronic Service to
Jerry & Charlayne Carpenter represented by Brian Emmanuel Jorde (23613) service method: Electronic
Jerry & Charlayne Carpenter represented by David A Domina (11043) service method: Electronic Service to
Jim Tarnick represented by Brian Emmanuel Jorde (23613) service method: Electronic Service to
Jim Tarnick represented by David A Domina (11043) service method: Electronic Service to
John F & Ginette M Small represented by Brian Emmanuel Jorde (23613) service method: Electronic Service
John F & Ginette M Small represented by David A Domina (11043) service method: Electronic Service to
Johnnie & Maxine Bialas represented by Brian Emmanuel Jorde (23613) service method: Electronic Service
Johnnie & Maxine Bialas represented by David A Domina (11043) service method: Electronic Service to
Joshua R Stelling represented by Brian Emmanuel Jorde (23613) service method: Electronic Service to
Joshua R Stelling represented by David A Domina (11043) service method: Electronic Service to
Karen G Berry represented by Brian Emmanuel Jorde (23613) service method: Electronic Service to
Karen G Berry represented by David A Domina (11043) service method: Electronic Service to
Ken Dittrich represented by Brian Emmanuel Jorde (23613) service method: Electronic Service to
Ken Dittrich represented by David A Domina (11043) service method: Electronic Service to
Kenneth & Karen Prososki represented by Brian Emmanuel Jorde (23613) service method: Electronic Service
Kenneth & Karen Prososki represented by David A Domina (11043) service method: Electronic Service to
L A & Sandra K Breiner represented by Brian Emmanuel Jorde (23613) service method: Electronic Service to
L A & Sandra K Breiner represented by David A Domina (11043) service method: Electronic Service to
Larry D Cleary represented by Brian Emmanuel Jorde (23613) service method: Electronic Service to
Larry D Cleary represented by David A Domina (11043) service method: Electronic Service to
Larry D Mudloff represented by Brian Emmanuel Jorde (23613) service method: Electronic Service to
Larry D Mudloff represented by David A Domina (11043) service method: Electronic Service to
Leonard & Joyce Skoglund represented by Brian Emmanuel Jorde (23613) service method: Electronic Service
Leonard & Joyce Skoglund represented by David A Domina (11043) service method: Electronic Service to
LJM Farm LLC represented by Brian Emmanuel Jorde (23613) service method: Electronic Service to
LJM Farm LLC represented by David A Domina (11043) service method: Electronic Service to
Lloyd Z & Vencille M Hipke represented by Brian Emmanuel Jorde (23613) service method: Electronic
Lloyd Z & Vencille M Hipke represented by David A Domina (11043) service method: Electronic Service to
Lori Mudloff represented by Brian Emmanuel Jorde (23613) service method: Electronic Service to
Lori Mudloff represented by David A Domina (11043) service method: Electronic Service to
Mary Jane Nyberg represented by Brian Emmanuel Jorde (23613) service method: Electronic Service to
Mary Jane Nyberg represented by David A Domina (11043) service method: Electronic Service to
Mary Lou Robak represented by Brian Emmanuel Jorde (23613) service method: Electronic Service to
Mary Lou Robak represented by David A Domina (11043) service method: Electronic Service to
Milliron Ranch LLC represented by Brian Emmanuel Jorde (23613) service method: Electronic Service to
Milliron Ranch LLC represented by David A Domina (11043) service method: Electronic Service to
Nicholas Family Limited Partnership represented by Brian Emmanuel Jorde (23613) service method:
Nicholas Family Limited Partnership represented by David A Domina (11043) service method: Electronic
Patricia A Grosserode represented by Brian Emmanuel Jorde (23613) service method: Electronic Service to
Patricia A Grosserode represented by David A Domina (11043) service method: Electronic Service to
R Wynn & Jill Hipke represented by Brian Emmanuel Jorde (23613) service method: Electronic Service to
R Wynn & Jill Hipke represented by David A Domina (11043) service method: Electronic Service to
Richard & Darlene Stelling represented by Brian Emmanuel Jorde (23613) service method: Electronic Service
Richard & Darlene Stelling represented by David A Domina (11043) service method: Electronic Service to
Richard Kilmurry represented by Brian Emmanuel Jorde (23613) service method: Electronic Service to
Richard Kilmurry represented by David A Domina (11043) service method: Electronic Service to
Rosemary Kilmurry represented by Brian Emmanuel Jorde (23613) service method: Electronic Service to
Rosemary Kilmurry represented by David A Domina (11043) service method: Electronic Service to
Schultz Brothers Farms Inc represented by Brian Emmanuel Jorde (23613) service method: Electronic Service
Schultz Brothers Farms Inc represented by David A Domina (11043) service method: Electronic Service to
Shirley Choat Farms LLC represented by Brian Emmanuel Jorde (23613) service method: Electronic Service
Shirley Choat Farms LLC represented by David A Domina (11043) service method: Electronic Service to
Susan & William Dunavan represented by Brian Emmanuel Jorde (23613) service method: Electronic Service
Susan & William Dunavan represented by David A Domina (11043) service method: Electronic Service to
Terri Harrington represented by Brian Emmanuel Jorde (23613) service method: Electronic Service to
Terri Harrington represented by David A Domina (11043) service method: Electronic Service to
Terry J & Rebecca Lynn Van Housen represented by Brian Emmanuel Jorde (23613) service method:
Terry J & Rebecca Lynn Van Housen represented by David A Domina (11043) service method: Electronic
Timothy Choat represented by Brian Emmanuel Jorde (23613) service method: Electronic Service to
Timothy Choat represented by David A Domina (11043) service method: Electronic Service to
TMAG Ranch LLC represented by Brian Emmanuel Jorde (23613) service method: Electronic Service to
TMAG Ranch LLC represented by David A Domina (11043) service method: Electronic Service to
Todd & Lisa Stelling represented by Brian Emmanuel Jorde (23613) service method: Electronic Service to
Todd & Lisa Stelling represented by David A Domina (11043) service method: Electronic Service to
Tree Corners Farm LLC represented by Brian Emmanuel Jorde (23613) service method: Electronic Service to
Tree Corners Farm LLC represented by David A Domina (11043) service method: Electronic Service to
Andy Grier (Self Represented Litigant) service method: Email
Bold Alliance represented by Kenneth C Winston (16961) service method: Electronic Service to
kwinston@inebraska.com
Cathie & Louis Genung (Self Represented Litigant) service method: Email
Cecilia Rossiter (Self Represented Litigant) service method: Email
Christine Troshynski (Self Represented Litigant) service method: Email
Christy J & Richard S Hargesheimer (Self Represented Litigant) service method: Email
Corey Runmann (Self Represented Litigant) service method: Email
Crystal C Miller (Self Represented Litigant) service method: Email
Dave Polson (Self Represented Litigant) service method: Email
Donna Roller (Self Represented Litigant) service method: Email
Doug Peterson, Attorney General represented by Douglas J Peterson (18146) service method: Electronic
Service to pat.selk@nebraska.gov
Douglas Whitmore (Self Represented Litigant) service method: Email
Elizabeth L Troshynski (Self Represented Litigant) service method: Email
Elizabeth Mensinger (Self Represented Litigant) service method: Email

Greg Nelson (Self Represented Litigant) service method: Email
Intl Brotherhood of Electrical Workers represented by Michael E Amash (0) service method: Email
Intl Brotherhood of Electrical Workers represented by Michael James Stapp (22519) service method: Email
Intl Brotherhood of Electrical Workers represented by Robert J Henry (20331) service method: Email
James Douglas Osborn (Self Represented Litigant) service method: First Class Mail
Jana Osborn (Self Represented Litigant) service method: Email
Janece Mollhoff represented by Kenneth C Winston (16961) service method: Electronic Service to
Judy King (Self Represented Litigant) service method: Email
Julie Nichols (Self Represented Litigant) service method: First Class Mail
Julie Walker (Self Represented Litigant) service method: Email
Kendall Maxey (Self Represented Litigant) service method: Email
Kimberly E Craven (Self Represented Litigant) service method: Email
Kimberly L Stuhr (Self Represented Litigant) service method: Email
Laborers Intl Union of America represented by Michael E Amash (0) service method: Email
Laborers Intl Union of America represented by Michael James Stapp (22519) service method: Email
Laborers Intl Union of America represented by Robert J Henry (20331) service method: First Class Mail
Lois Schreur (Self Represented Litigant) service method: Email
Lorne Stockman (Self Represented Litigant) service method: Email
Marvin E Hughes (Self Represented Litigant) service method: Email
Mia Bergman (Self Represented Litigant) service method: Email
Nebraska Sierra Club represented by Kenneth C Winston (16961) service method: Electronic Service to
Pamela Luger (Self Represented Litigant) service method: Email
Paul Theobald (Self Represented Litigant) service method: Email
Ponca Tribe of Nebraska represented by Brad Stephen Jolly (23720) service method: Electronic Service to
bsj@bsjlawfirm.com
Public Service Commission represented by David Andrew Lopez (24947) service method: Electronic Service
to dave.lopez@nebraska.gov
Public Service Commission represented by L Jay Bartel (17247) service method: Electronic Service to
jay.bartel@nebraska.gov
Public Service Commission represented by Lynn A Melson (17363) service method: Email
Public Service Commission represented by Matthew John Effken (19524) service method: Email
Public Service Commission represented by Nichole Underhill Mulcahy (22492) service method: Email
Sandra Slaymaker (Self Represented Litigant) service method: Email
Sandy Zdan (Self Represented Litigant) service method: Email
Sarah Zuekerman (Self Represented Litigant) service method: Email
Susan C Watson (Self Represented Litigant) service method: Email
Susan J Weber (Self Represented Litigant) service method: Email
Susan Soriente (Self Represented Litigant) service method: Email
Susan Straka-Heyden (Self Represented Litigant) service method: Email
TransCanada Pipeline Co LP represented by James G Powers (17780) service method: Electronic Service to
jpowers@mcgrathnorth.com
TransCanada Pipeline Co LP represented by Patrick D Pepper (23228) service method: Electronic Service to
ppepper@mcgrathnorth.com
TransCanada Pipeline LP represented by James G Powers (17780) service method: Electronic Service to
jpowers@mcgrathnorth.com
TransCanada Pipeline LP represented by James P. White (0) service method: Email
TransCanada Pipeline LP represented by Patrick D Pepper (23228) service method: Electronic Service to
ppepper@mcgrathnorth.com
Tristan Scorpio (Self Represented Litigant) service method: First Class Mail
United Assoc Journeymen/Apprentices represented by Anna Friedlander (0) service method: Email
United Assoc Journeymen/Apprentices represented by Ellen O Boardman (0) service method: Email
Signature: /s/ Leonika Rose Charging (23058)

Yankton Sioux Tribe Appellee Brief

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Yankton Sioux Tribe Appellee Brief

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FILED

May 22, 2018

APPEAL FROM THE NEBRASKA PUBLIC SERVICE COMMISSION

APPELLEE YANKTON SIOUX TRIBE’S BRIEF AND CROSS-APPEAL

Prepared and Submitted by:

Jennifer S. Baker, pro hac vice Leonika R. Charging, NE Bar # 23058

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

Statement of the Case

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

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

578 (Neb. 2001).

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

The Tribe accepts Appellants’ statement of facts as correct.

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

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

November 29, 2017.

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

because the Applicant did not sustain its burden of proof.

the witnesses and other due process protections.

or other due process protections.

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

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

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

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

Tribe’s right to procedural due process.

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

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

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

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

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

285, 292 (2018).

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

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

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

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

Neb. Rev. Stat. § 57-1407(4)(d).

Appellants’ Brief, and further asserts as follows.

Programmatic Agreement with TransCanada to govern the treatment of unanticipated discoveries

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

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

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

I. The PSC Lacked Jurisdiction.

an application for pipeline route approval.

II. The Applicant Never Applied for the Approved Route.

Due Process Rights.

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

by the United States and Nebraska Constitutions.

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

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

I. The PSC Lacked Jurisdiction.

order must be overturned.

and its decision must be reversed.

II. The Applicant Never Applied for the Approved Route.

route that has not been requested by the applicant.

did not apply.

process rights, thus its decision must be reversed.

because the Applicant did not sustain its burden of proof.

TransCanada applied, TransCanada submitted no evidence regarding the Mainline Alternative

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

Social Element of the Public Interest.

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

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

the Tribe’s cultural and historical resources.

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