Escolar Documentos
Profissional Documentos
Cultura Documentos
No. S-17-001331
IN THE MATTER OF
THE APPLICATION OF
TRANSCANADA KEYSTONE PIPELINE, L.P.
FOR ROUTE APPROVAL OF
THE KEYSTONE XL PIPELINE PROJECT
PURSUANT TO
THE MAJOR OIL PIPELINE SITING ACT
BRIEF ON CROSS-APPEAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF JURISDICTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ASSIGNMENTS OF ERROR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
PROPOSITIONS OF LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
A. The PSC Violated its Rules Governing Intervention by Limiting the Tribe to
“Social and Cultural Issues” When it Expressed Other Interests.. . . . . . . . . . . . . 12
B. The PSC Violated its Own Rules Governing Intervention by Limiting the Tribe’s
Presentation of Evidence, Argument, and Cross-examination. . . . . . . . . . . . . . . 15
A. The PSC Could Not Approve the Mainline Alternative Route Because
Transcanada Did Not Apply for Approval of That Route. . . . . . . . . . . . . . . . . . . 19
B. The PSC Could Not Consider or Approve the Mainline Alternative Route Because
Proper Notice and Service Was Not Made on Landowners, Governments, or Other
Interested Parties along the Mainline Alternative Route. . . . . . . . . . . . . . . . . . . . 22
C. Even If the PSC Could Consider the Mainline Alternative Route, it Could Not
Approve it Because TransCanada Did Not Provide Evidence for That Route. . . 25
CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
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TABLE OF AUTHORITIES
CASES
Application of Jantzen, 245 Neb. 81, 511 N.W.2d 504 (1994). . . . . . . . . . . . . . . . . . . . . . 3, 15, 18
Application of Lincoln Elec. System, 207 Neb. 289, 298 N.W.2d 366 (1980) . . . . . . . . . . . . . 4, 22
Applications of Little Blue Natural Res., 194 Neb. 55, 230 N.W.2d 190 (1975) . . . . . . . . . . . 2, 32
Blakely v. Lancaster County, 284 Neb. 659, 825 N.W.2d 149 (2012) . . . . . . . . . . . . . . . . . . . . . 12
Chase 3000 v. Nebraska Pub. Ser. Comm., 273 Neb. 133, 728 N.W.2d 560 (2007) . . . . . . . . . . 13
Chebatoris v. Moyer, 276 Neb. 733, 757 N.W.2d 212 (Neb. 2008). . . . . . . . . . . . . . . . . . . . . . . . 2
Greeley Airport Authority v. Dugan, 259 Neb. 860, 612 N.W.2d 913 (2000) . . . . . . . . . . . . . 4, 23
Metro. Utilities Dist. of Omaha v. Aquila, 271 Neb. 454, 712 N.W.2d 280 (2006). . . . . . . . . 5, 29
O’Neill Prod. Credit Ass’n v. Schnoor, 208 Neb. 105, 302 N.W.2d 376 (1981) . . . . . . . . . . . 5, 31
Sanitary & Imp. Dist. v. Neb. Public Power Dist., 253 Neb. 917, 573 N.W.2d 460 (1998) . . . . 16
Schneider v. Chavez-Munoz, 616 N.W.2d 46, 9 Neb. App. 579 (Neb. Ct. App. 2000) . . . 5, 26, 29
School Dist. No. 8 v. State Bd. of Ed., 176 Neb. 722, 127 N.W.2d 458 (1964) . . . . . . . . . 4, 24, 25
Telrite Corp. v. Neb. Pub. Serv. Comm’n, 288 Neb. 866, 852 N.W.2d 910 ( 2014) . . . . . . . . . . . 2
iii
Young v. Midwest Fam. Mut. Ins. Co., 272 Neb. 385, 722 N.W.2d 13 (2006). . . . . . . . . . . . . . . . 2
STATUTES
54 U.S.C. § 300101. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
54 U.S.C. § 300308. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 30
Ponca Restoration Act, Pub. L. No. 101-484, 104 Stat. 1167 (1990) . . . . . . . . . . . . . . . . . . . . 6, 7
REGULATIONS
RULES
iv
OTHER AUTHORITIES
Hearing on LB1 Before the Natural Res. Comm., 102nd Leg., 1st Spec. Sess. (Neb. 2011) . . . . 31
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BRIEF ON CROSS-APPEAL
STATEMENT OF JURISDICTION
This is an appeal of the November 20, 2018 Order of the Public Service Commission
(“PSC”) approving a route for a major oil pipeline to be constructed by Appellee TransCanada
Keystone Pipeline, L.P. (“TransCanada”). (T6140). This appeal is brought pursuant to Neb. Rev.
Stat. § 75-136 and § 57-1409, which, respectively, provide for appeals of final orders of the PSC
generally and under the Major Oil Pipeline Siting Act (“MOPSA”) specifically. TransCanada,
Appellant Landowners, Appellee Ponca Tribe of Nebraska (“Tribe”), and Appellee Sierra Club each
filed motions for reconsideration, (T6212-35), which suspended the time for filing an appeal
pursuant to Neb. Rev. Stat. § 75-134.02. The PSC denied the motions for reconsideration in a
December 19, 2018 Order. (T6248). The Landowners filed their notice of appeal to the Court of
Appeals and deposited the docket fee on December 27, 2017. The Supreme Court has jurisdiction
over this appeal pursuant to its March 14, 2018 Order moving the appeal from the Court of Appeals
STATEMENT OF CASE
1. Nature of the Case. On February 16, 2017, TransCanada filed an application with the
PSC pursuant to MOPSA seeking approval of a route for the Keystone XL Pipeline it designated the
“Preferred Route” (“Application”). (T54). Pursuant to 291 Neb. Admin. Code, ch. 1, §015.01, the
2. Issues Tried Below. The issues tried below are the scope of the Tribe’s allowed
participation as a formal intervenor in the proceedings and whether the Preferred Route requested
in the Application meets the requirements of MOPSA and should be approved by the PSC.
3. How the Issues Were Decided and What Judgment or Decree Was Entered. The PSC
limited the Tribe’s participation to “social and cultural issues,” to only two witnesses and one hour
of cross-examination, each to be shared with the Yankton Sioux Tribe. (T705). With respect to the
merits of the Application, the PSC did not expressly state whether it approved or denied the
Application for the Preferred Route, but presumably denied it by not approving the Application.
(T6140-T6210). By a vote of three to two, the PSC purportedly approved a route mentioned in
TransCanada’s Application solely for comparison purposes, and not applied for, referred to as the
4. Scope of Review. Pursuant to Neb. Reb. Stat. § 75-136(2), the Supreme Court
reviews an order of the PSC de novo on the record, which means the Court “reappraises the evidence
as presented by the record and reaches its own independent conclusions concerning the matters at
issue.” Telrite Corp. v. Neb. Pub. Serv. Comm’n, 288 Neb. 866, 873, 852 N.W.2d 910, 915 ( 2014).
When faced with a question which does not involve a factual dispute, the Court reviews the case
solely as a matter of law independently of the lower tribunal’s conclusions. Chebatoris v. Moyer,
276 Neb. 733, 737, 757 N.W.2d 212, 215 (Neb. 2008). “When an appeal calls for statutory
interpretation or presents questions of law, an appellate court must reach an independent, correct
conclusion irrespective of the determination made... below.” Young v. Midwest Fam. Mut. Ins. Co.,
272 Neb. 385, 385, 722 N.W.2d 13, 15 (2006). For purposes of considering a petition to intervene,
the allegations of the petition are assumed to be true. Applications of Little Blue Natural Res., 219
ASSIGNMENTS OF ERROR
1. The PSC erred in limiting the Tribe’s participation in the proceedings to “social and
cultural issues,” denying the Tribe’s right to fully participate as a party to the extent of its full
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expressed interests in the proceedings and limiting it to two witnesses and one hour of cross-
2. The PSC did not have authority to approve the Mainline Alternative Route because
TransCanada never applied for approval of that route, the statutory requirements of publishing and
serving notice related to the Mainline Alternative Route were not met, and TransCanada did not meet
3. The PSC erred in limiting its consideration of historic and cultural resources to those
covered by the National Historic Preservation Act (“NHPA”), 54 U.S.C. § 300101 et seq., because
MOPSA requires the PSC to consider historic and cultural resources that are in the public interest
PROPOSITIONS OF LAW
1. Agency action taken in disregard of its own rules is arbitrary and capricious. Cain
2. Under certain circumstances, agencies can depart from their own rules, but not from
rules that protect the interests of parties or provide them with rights or protections and, when they
do so, the action is invalid. Application of Jantzen, 245 Neb. 81, 90, 511 N.W.2d 504, 512 (1994).
3. The PSC’s rules which apply to all proceedings before it plainly provide “[a] formal
intervenor shall be entitled to participate in the proceeding to the extent of his/her express interest
in the matter” and that participation “shall include, without limitation, presentation of evidence and
argument, cross-examination of witnesses and submission of rebuttal evidence.” 291 Neb. Admin.
4. MOPSA requires an application to list the counties and municipalities “through which
the proposed route of the major oil pipeline would be located,” NEB. REV. STAT. § 57-1405(2)(d),
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and “consideration of alternative routes,” id. § 57-1405(2)(b) and also requires the PSC to consider
“[w]hether any other utility corridor exists that could feasibly and beneficially be used for the route
5. MOPSA provides that, with an application, the PSC has only two choices when
entering an order with respect to an application: “approving the application or denying the
utility route and “approve or deny the application,” the statute does not provide any power or
authority for that administrative board to select a particular route other than one in the application.
Application of Lincoln Elec. System, 207 Neb. 289, 292, 298 N.W.2d 366, 368 (1980).
7. MOPSA requires that an applicant for a major oil pipeline route “shall publish notice
of the application in at least one newspaper of general circulation in each county in which the major
oil pipeline is to be constructed” and “serve notice of the application upon the governing bodies of
the counties and municipalities” through which the pipeline would be located NEB. REV. STAT. §
57-1405(3).
action invalid. Greeley Airport Authority v. Dugan, 259 Neb. 860, 612 N.W.2d 913 (2000).
9. Statutory provisions for notice and publication of agency proceedings are necessary
to ensure the statute and agency proceedings are constitutional. School Dist. No. 8 v. State Bd. of
Ed., 176 Neb. 722, 730, 127 N.W.2d 458, 463 (1964).
10. Parties with interests and rights which are affected by administrative agency action
are “‘interested parties’ entitled to constitutional due process.” First Fed. Sav. & Loan Ass’n. v.
Dep’t. of Banking, 187 Neb. 562, 568, 192 N.W.2d 736, 740 (1971).
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11. An applicant for a route under MOPSA “shall have the burden to establish that the
proposed route... would serve the public interest.” NEB. REV. STAT. § 57-1407(4).
12. The burden of proof consists of two separate and distinct elements – the burden of
persuasion and the burden of production, Schneider v. Chavez-Munoz, 616 N.W.2d 46, 58, 9 Neb.
App. 579 (Neb. Ct. App. 2000), the burden of production requiring “parties to present particular
evidence, regardless of whether that evidence actually persuades the finder of fact.” Hopkins v.
Hopkins, 294 Neb. 417, 428, 883 N.W.2d 363, 373 (2016).
13. “[T]he impact of the burden of producing evidence is substantive if the burden is not
met: The party who fails to carry his burden loses on the issue.” In Re Kim, 71 B.R. 1011, 1015-16
14. When a statute requires a public interest determination and sets forth specific factors
to consider in determining whether a utility route is in the public interest, those factors require
specific evidence, not general statements or representations. Metro. Utilities Dist. of Omaha v.
15. MOPSA requires the PSC to determine whether a proposed major oil pipeline is in
the public interest and to evaluate specific factors, including social and cultural issues, to determine
16. One of the basic rules of statutory construction is that language in a statute is given
its plain and ordinary meaning, which is generally the dictionary definition of the term. Caruso v.
City of Omaha, 222 Neb. 257, 260, 383 N.W.2d 41, 44 (1986); O’Neill Prod. Credit Ass’n v.
Schnoor, 208 Neb. 105, 109, 302 N.W.2d 376, 379 (1981).
17. The NHPA limits “historic property” to sites and resources “included on, or eligible
for inclusion on, the National Register [of Historic Places],” 54 U.S.C. § 300308, while Black’s Law
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Dictionary defines “public interest” as the “general welfare of the public that warrants recognition
and protection” and “something in which the public as a whole has a stake.” BLACK’S LAW
DICTIONARY.
STATEMENT OF FACTS
On February 16, 2017, TransCanada filed an application with the PSC seeking approval of
a route for its Keystone XL Pipeline pursuant to MOPSA, NEB. REV. STAT. § 57-1401 et seq. (T54).
In its Application, TransCanada only requested approval of the “Preferred Route,” which it stated
was “the subject of [its] Application.” (T61). The Application only requested “an order from the
PSC that the Preferred Route is in the public interest” and did not seek review or approval of any
other route. (T123). The Application did reference the “Mainline Alternative Route,” but only “for
comparison as required by the PSC regulations.” (T62). TransCanada never proposed the Mainline
Alternative Route or requested that the PSC consider it for approval. The Application even stated,
“the Keystone Mainline Alternative Route is not considered preferable or beneficial.” (T72).
On or about March 22, 2017, the Tribe filed a petition to formally intervene in the
proceedings. (T633). At about the same time, the Yankton Sioux Tribe filed its own separate
petition for formal intervention. (T679). The tribes did not file their petitions jointly, each asserted
unique interests, and each was represented by their own legal counsel.
The Ponca Tribe of Nebraska is a federally recognized Indian nation, 83 Fed. Reg. 4,235,
4,238 (2018), which exercises sovereignty and self-government over both its members and its
territory. Congress has legislatively established specific areas where the Tribe and its members
“shall be deemed to be residing on or near a reservation.” Ponca Restoration Act, Pub. L. No. 101-
484, § 5, 104 Stat. 1167, 1168 (1990). Those areas are geographically defined by fifteen specific
counties in Nebraska, South Dakota, and Iowa. Id.; Pub. L. No. 104-109, §12, 110 Stat. 763, 765
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(1996). Under federal law, the areas where the Tribe is deemed to be on or near a reservation are
where the United States recognizes the Tribe as having governmental jurisdiction. Each
congressionally-designated area “is viewed as an extension of the reservation” where the Tribe
7-8 (D. Neb. Nov. 19, 2006). In Nebraska, that jurisdictional area consists of Sarpy, Burt, Platte,
Stanton, Holt, Hall, Wayne, Knox, Boyd, Madison, Douglas, and Lancaster Counties. Ponca
Restoration Act, § 5, 104 Stat. at 1168; Pub. L. No. 104-109, §12, 110 Stat. at 765.
TransCanada’s proposed Preferred Route would cross through two of the Tribe’s
jurisdictional areas – Boyd and Holt Counties. (T635). The Mainline Alternative Route would cross
through five of the Tribe’s jurisdictional areas – Boyd, Holt, Madison, Stanton, and Platte Counties.
Id. Madison County is the location of one of the Tribe’s four governmental headquarters, housing
ne.org/contact/office-locations/. It is also the central location of the Tribe’s Court. Ponca Tribe of
In its Petition of Formal Intervention, the Tribe discussed its interests in historic, cultural,
sacred and archaeological resources that would be impacted by TransCanada’s pipeline. (T635).
However, the Tribe also expressly pointed out that its congressionally-designated service areas are
where the Tribe is recognized as exercising sovereignty and self-government, that they are the
equivalent of the Tribe’s formal reservation, and that TransCanada proposed running its oil pipeline
through the Tribe’s territory where it exercises governmental jurisdiction. (T634-T635). The Tribe
expressly asserted its “significant legal interests... as the pipeline will cross through its...
congressionally designated territory and jurisdictional area where it exercises sovereignty.” (T636).
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On March 31, 2017, the PSC issued its decision on all filed petitions for intervention. The
PSC granted the Tribe “formal intervenor status,” but ignored the Tribe’s asserted legal interests in
the proposed pipeline crossing through its governmental territory, ordering that the Tribe’s “status
shall be limited to social and cultural issues.” (T705). Additionally, despite their asserted different
interests and distinct status as two separate parties and federally recognized tribes, the PSC ordered
that the Tribe and the Yankton Sioux Tribe be treated as one party, “cooperate and combine their
efforts to offer the testimony of one witness,” “collaborate to cross-examine witnesses at the hearing,
not to exceed one-hour of time per witness,” and “submit one joint brief” after the hearing. Id.
On April 12, 2017, the Tribe filed a motion to reconsider the limits on its intervention.
(T796). The Tribe noted its petition for intervention was not limited to social and cultural issues and
asserted a specific interest in the “proposed pipeline routes’ impact on the Tribe’s sovereignty and
self-government.” (T798). The Tribe pointed out that where the pipeline would cross through the
Tribe’s service areas, “the Tribe has primary responsibility for providing health care to its members
and others... [and] regulates and monitors the environment... through its Environmental Protection
Department, a governmental agency of the Tribe.” Id. The Tribe explained its interests “are similar
to any other government through whose jurisdiction the pipeline would route.” Id.
The Tribe also requested that the PSC reconsider requiring the Tribe and Yankton Sioux
Tribe to present a single witness and combine cross-examination. (T799). The Tribe noted that the
PSC failed “to recognize that the Ponca Tribe of Nebraska and the Yankton Sioux Tribe are two
different nations with different languages, different cultures, different traditions, and different
histories unique to each tribe” and that “[s]ites and resources that are historic or significant to one
tribe are not necessarily historic or significant to the other tribe.” Id. On April 13, 2017, the PSC
denied the Tribe’s motion to reconsider without even bothering to acknowledge or discuss a single
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issue raised by the Tribe, blatantly ignoring the Tribe’s asserted governmental interests and the
reality that it severely limited both tribes’ ability to assert their independent interests. (T815).
However, the PSC did later permit the two tribes to present two combined witnesses. (T1059).
The PSC ultimately held a hearing on TransCanada’s Application from August 7 to 10, 2017.
(T6154). During the hearing, TransCanada presented its evidence on the Preferred Route. At no
time did it present any evidence supporting the Mainline Alternative Route. Each route would cross
CUL9,1:1176; 1175:25-1176:3; 1177:15-1178:3). Each route would also cross through the location
where a historic variety of Ponca corn is planted and grown – a variety of corn that would otherwise
be wiped out. (756:1-4,8-13). Both routes would also cross the Ponca Trail of Tears in at least two
Tears is the path the Tribe was forced to walk from its home near Niobrara to Oklahoma when the
United States attempted to forcefully remove the Tribe from its lands in 1877. (CUL19,10:17-18;
1079:11-1079:18). Campsites exist along the Trail and nine Tribal members died and were buried
along the Trail. (1079:20-1079:23; 1080:4-1050:23). Every witness who was asked identified the
Trail as a significant part of Nebraska’s history and public interest. (818:12-819:2; 876:22-876:25;
SUMMARY OF ARGUMENT
The Tribe is a sovereign government pre-dating the United States possessing governmental
authority recognized and protected by federal law. When the Tribe intervened in the proceedings
before the PSC, it expressly asserted its interest in the fact the Keystone XL Pipeline will run through
the areas where it exercises its sovereignty and governmental jurisdiction. Yet, the PSC refused to
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allow the Tribe to discuss or present any evidence on those significant interests and federally
protected rights, limiting the Tribe to “social and cultural issues.” But, the PSC’s own rules provide
that a formal intervenor shall be entitled to participate in the proceeding to the extent of his/her
express interest in the matter. Limiting the Tribe to “social and cultural issues” when it expressed
In addition, the PSC limited the number of witnesses and amount of cross-examination the
Tribe could present. Yet, the PSC’s rules plainly provide an intervenor’s participation shall include
presentation of evidence and cross-examination without limitation. The PSC purported to limit the
Tribe’s participation pursuant to a provision of the Administrative Procedure Act (“APA”) generally
permitting agencies to limit an intervenor’s presentation of evidence. But, in promulgating its rules,
the PSC did not preserve the ability to exercise that authority under the APA, instead providing that
it would permit formal intervenors to present evidence and cross-examination “without limitation.”
The limits on the Tribe’s presentation of evidence was also a direct violation of its rules.
Aside from the limits on the Tribe’s intervention, the PSC had no authority to approve the
Mainline Alternative Route. TransCanada never requested that the PSC approve that route and the
purported approval of that route blatantly violated MOPSA’s requirements of notice and service on
governments and landowners along the Mainline Alternative Route. MOPSA only permits the PSC
to either approve or deny an application. It grants no authority for the PSC to approve a route for
which no application was ever made. It also mandates that counties and municipalities through
which the pipeline would run be served with the application, and notice be published in local
newspapers. None of that was done with the Mainline Alternative Route. But, those provisions are
not optional or subject to waiver. They are necessary requirements and steps to ensure that MOPSA
and the PSC’s proceedings comply with due process under the state and federal Constitutions. The
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PSC’s purported approval of route without an application and without proper notice and service to
those impacted by that route is a violation of both MOPSA and the requirements of due process.
Regardless of the PSC’s authority to consider or approve the Mainline Alternative Route
without an application or proper notice and service, the PSC could not approve the Mainline
Alternative Route under MOPSA because that statute requires TransCanada to prove that the route
is in the public interest. That burden of proof includes first and foremost TransCanada’s burden of
production – the obligation of TransCanada to at least present some evidence in support of the
Mainline Alternative Route. But, TransCanada never bothered to present any evidence whatsoever
related to the Mainline Alternative Route. Instead, it only presented evidence on its Preferred Route,
admitting it never even bothered to study the Mainline Alternative Route, only discussed it for
comparison purposes, and believed it to not be in the public interest. Under those circumstances,
the PSC simply could not approve the Mainline Alternative Route as a matter of law. If the PSC
wanted to consider the Mainline Alternative Route, it had to expressly deny the Preferred Route and
Finally, in considering impacts on historic and cultural resources, the PSC entirely abandoned
its duty to consider matters in the public interest. Instead, the PSC simply bowed down to federal
agencies with respect to historic and cultural resources, performing no review under MOPSA. The
entire purpose of MOPSA was for the PSC to actually go beyond the considerations of federal
agencies and ensure that consideration of any route of a major oil pipeline took account of the
specifics and uniqueness of Nebraska. The PSC’s abandonment of its primary purpose to serve the
interests of the public by acceding to federal agencies was entirely in error, requiring the PSC to go
back and conduct a proper review of the impacts of the Keystone XL Pipeline on historic and cultural
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ARGUMENT
The Tribe formally intervened in the proceedings below pursuant to the PSC’s own rules
governing intervention, 291 Neb. Admin. Code, ch. 1, § 015.01C. That rule requires the PSC to
allow a formal intervenor to participate to the full extent of its expressed interests. Yet, the PSC
violated that rule by limiting the Tribe to “social and cultural issues” and refusing to allow the Tribe
to participate with respect to the governmental and environmental issues expressed in the Tribe’s
petition for formal intervention. At the same time, while that same rule does not permit the PSC to
limit a formal intervenor’s presentation of evidence or cross-examination, the PSC limited the
number of witnesses the Tribe could present and the amount of time it could cross-examine.
Fundamentally, agencies must follow their rules. Agency action taken in disregard of its own
rules is arbitrary and capricious. Cain v . Custer Cty. Bd. of Equal., 298 Neb. 834, 839-840 (2018);
Blakely v. Lancaster County, 284 Neb. 659, 825 N.W.2d 149 (2012). With respect to the Tribe’s
intervention, the PSC entirely failed to follow its own rules. While the PSC purported to limit the
Tribe’s participation pursuant to the Nebraska APA, (T703, T816), it cannot utilize optional general
provisions in the APA to supplant its own specific rules governing proceedings before it. The PSC’s
limitations on the Tribe’s intervention were a violation of its rules and arbitrary and capricious.
A. The PSC Violated its Rules Governing Intervention by Limiting the Tribe to
“Social and Cultural Issues” When it Expressed Other Interests.
The PSC’s rules governing formal intervention provide that a “formal intervenor shall be
entitled to participate in the proceeding to the extent of his/her express interest in the matter.” 291
Neb. Admin. Code, ch. 1, § 015.01C (emphasis added). The language of the rule is unambiguous.
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And though it is a rule and not a statute, “for purposes of construction, a rule or order of an
administrative agency is treated like a statute.” Chase 3000 v. Nebraska Pub. Ser. Comm., 273 Neb.
133, 142, 728 N.W.2d 560, 568 (2007). Consequently, if the language of a rule is clear, the words
“are the end of any judicial inquiry regarding its meaning.” Id. at 140, 728 N.W.2d at 567. The rule
applies to “any proceeding pending before the Commission.” 291 Neb. Admin Code, ch. 1, §
015.01. In terms of the scope of a formal intervenor’s participation, it is entirely clear and is
mandatory – a formal intervenor “shall be entitled” to participate to “the extent of his/her express
interest in the matter.” Id. § 015.01C. The rule in no manner allows the PSC to limit a formal
intervenor’s participation to only “some” of their express interests – it must permit a formal
intervenor to participate with respect to all of “his/her express interest in the matter.”
The Ponca Tribe of Nebraska is a federally-recognized Indian tribe whose existence pre-dates
by centuries that of the United States and Nebraska, and which possesses unique attributes of
sovereignty of which it has never been divested. “The present right of tribes to govern their
members and their territories flows from a preexisting sovereignty limited, but not abolished, by their
inclusion within the territorial bounds of the United States.” FELIX S. COHEN’S HANDBOOK OF
FEDERAL INDIAN LAW 231 (Rennard Strickland, et al. eds., 1982). As a government pre-dating the
United States, the Tribe retains “inherent powers of a limited sovereignty which has never been
The Tribe’s inherent powers and sovereignty extend “over both [its] members and [its]
territory.” United States v. Mazurie, 419 U.S. 544, 557 (1975). The Tribe’s territory has been
expressly defined by the United States as encompassing fifteen counties in three different states. The
Keystone XL Pipeline is proposed to cross through up to five of the counties where the Tribe is
recognized as having jurisdiction over its members and its territory. The Tribe’s petition for formal
13
intervention expressly pointed out that it is recognized as exercising sovereignty and self-government
over those congressionally-designated areas, that they are the equivalent of the Tribe’s reservation,
and that the pipeline would run through areas where it exercises governmental jurisdiction and
authority. (T634-T635). The Tribe expressly asserted its “significant legal interests... as the pipeline
will cross through its... congressionally designated territory and jurisdictional area where it exercises
sovereignty.” (T636). But, the PSC simply ignored the Tribe’s “express interest” and limited it
solely to “social and cultural issues,” refusing to allow the Tribe to participate with respect to its
governmental issues, which include health, environmental, natural resources, law enforcement, and
every other interest any government would have with respect to a major tar sands pipeline traversing
its jurisdiction. The Tribe’s governmental interests are on par with those of the State as well as
counties and municipalities where the pipeline would run. But, the PSC acted as though the Tribe
never raised its governmental status and interests, relegating it to only “social and cultural issues.”
The PSC’s limitation on the scope of the Tribe’s intervention is completely contrary to the
Tribe’s right to participate fully to the extent of its interests. The PSC asserted that it could limit the
Tribe’s participation pursuant to Section 84-912.02(3) of the APA, (T703, T816), but that is entirely
incorrect. Setting aside the language of the PSC’s rules and pretending it can selectively choose
when to follow them, that section of the APA does not permit an agency to reduce the scope of an
intervenor’s participation below its expressed interests. That section of the APA provides the same
standard as the PSC’s rules for an intervenor’s scope of participation: “issues in which the intervenor
has a particular interest demonstrated by the petition.” NEB. REV. STAT. § 84-912.02(3)(a). So, the
APA provides no basis for the PSC to limit the scope of the Tribe’s intervention.
The PSC had no authority to limit the Tribe to social and cultural issues when the Tribe
14
The PSC’s rules and the APA both require the PSC to allow the Tribe to participate with respect to
all of its expressed interests. It is true, under certain circumstances, agencies are permitted to depart
from their own regulations. Application of Jantzen, 245 Neb. 81, 90, 511 N.W.2d 504, 512 (1994).
But, that authority does not apply to the scope of the Tribe’s intervention. Agencies may waive or
depart from procedural rules, such as time limits, but not rules that protect the interests of parties or
provide them with substantive rights or protections. Id. “The applicability of an agency’s discretion
in waiving a regulation turns on whether it was intended to aid the agency or, instead, to benefit
outside parties. [] Agency violations of regulations which have been promulgated to benefit a party,
by entitling the party to a substantive benefit or exemption or to a procedural safeguard, have been
invalidated by courts.” Id. at 92, 511 N.W.2d at 513 (internal citations omitted).
The PSC rule governing the scope of a formal intervenor’s participation is not a procedural
rule intended to benefit the PSC. On the contrary, it is a rule promulgated precisely to benefit
outside parties and entitling them to a substantive benefit – full participation to the extent of their
express interests. The regulation itself provides that a formal intervenor is “entitled” to participate
to the extent of its interests. It establishes a substantive right and benefit in favor of formal
intervenors. As such, it is not a rule subject to waiver or departure. The Tribe has a substantive right
under the PSC’s rules to participate to the full extent of its interests. The PSC’s purported limit of
the Tribe to matters less than its express interests must be overturned as contrary to the PSC’s rules
B. The PSC Violated its Own Rules Governing Intervention by Limiting the
Tribe’s Presentation of Evidence, Argument, and Cross-examination.
Not only did the PSC violate its rule with the scope of the Tribe’s participation, it also
violated its rule with respect to the evidence the Tribe could present. The PSC limited the Tribe,
15
jointly with another intervenor, to two witnesses and one hour of cross-examination. But, that was
entirely contrary to the PSC’s rules. The PSC’s rule governing a formal intervenor’s participation
plainly provides that it “shall include, without limitation, presentation of evidence and argument,
cross-examination of witnesses and submission of rebuttal evidence.” 291 Neb. Admin. Code, ch.
1, § 015.01C (emphasis added). Once again, the language is clear – the evidence, argument, and
cross-examination “shall” be “without limitation.” Yet, the PSC precisely did the opposite – it
limited the Tribe’s evidence to two witnesses and limited its cross-examination to one hour, both to
The PSC, once again, suggested that it had the authority to limit the Tribe’s participation
under the APA. (T703, T816). And, it is true that the APA provides that, generally, a hearing officer
other procedures so as to promote the orderly and prompt conduct of the proceedings” and may even
require “two or more intervenors to combine their presentation of evidence and argument, cross-
examination, discovery, and other participation in the proceedings.” NEB. REV. STAT. § 84-
912.02(3)(b), (c). But, the PSC cannot avail itself of those provisions of the APA.
The APA is a general statute applicable to all administrative agencies, but the PSC’s rule is
specific to “any proceeding pending before the Commission.” 291 Neb. Admin Code, ch. 1, §
015.01. It is a fundamental rule of construction that when two provisions of law can apply to an
issue and they conflict, the more specific law overrides the general one. Sanitary & Imp. Dist. v.
Neb. Public Power Dist., 253 Neb. 917, 923, 573 N.W.2d 460, 465 (1998). In this case, the PSC’s
own rule is mandatory and specific to intervention in proceedings before it; the APA is optional and
general to intervention with agencies broadly. The PSC cannot use an optional general provision in
the APA to override its specific mandatory rule applicable to proceedings before the PSC.
16
The PSC’s rule is mandatory – it provides an intervenor’s presentation of evidence “shall”
be “without limitation.” The APA provision, on the other hand, is discretionary. In other words, the
APA leaves administrative agencies the option of allowing limitations on intervenors – it merely says
a hearing officer “may impose conditions” and those “[c]onditions may include.” NEB. REV. STAT.
§ 84-912.02(3) (emphasis added). That language is in contrast to the same section’s mandatory
language that a hearing officer “shall grant a petition for intervention.” Id. § 84-912.02(1) (emphasis
added). The legislature knew how to mandate an agency’s actions with respect to intervention versus
making its actions optional. And that distinction is important here – the legislature did not want to
allow agencies to prohibit intervention, but it wanted to allow agencies flexibility with respect to
handling the scope and participation of intervention. If the legislature had intended agencies to
always maintain the authority to limit the presentation of evidence, it would have used appropriate
language, such as saying a hearing officer “shall have the authority” to limit presentation. But, it did
not do so. Instead, it simply left agencies the option of limiting the participation of intervenors as
In essence, with respect to limiting participation of intervenors, the APA permits agencies
to vary their practice from the provisions of the statute. And that is precisely what the PSC chose
to do when it promulgated its rules governing intervention in proceedings before it. The PSC’s rules
certainly do preserve the PSC’s authority to limit intervenors’ “to designated issues in which the
intervenor has a particular interest” under Section 84-912.02(3)(a) – the PSC rule provides for an
intervenor’s participation “to the extent of his/her express interest in the matter,” 291 Neb. Admin
Code, ch. 1, § 015.01C. But, the PSC did not preserve its ability to limit an intervenor’s “use of
discovery, cross-examination, and other procedures” under Section 84-912.02(3)(b). Instead, the
PSC decided an intervenor’s participation “shall include, without limitation, presentation of evidence
17
and argument, cross-examination of witnesses and submission of rebuttal evidence,” Id. In other
words, it chose to not allow limitations on presentation in the manner the APA would allow.
If the PSC wanted to retain its ability to limit an intervenor’s presentation of evidence, it
needed to draft its rules to preserve that authority. But, the PSC chose to take a different approach
– it waived its authority to limit an intervenor’s presentation of evidence under the APA by
promulgating a rule that says an intervenor’s presentation of evidence shall be “without limitation.”
The PSC cannot promulgate a specific rule applicable to proceedings before it and then decide not
Again, under certain circumstances, administrative agencies can depart from their own rules,
but not rules that protect the interests of parties or provide them with substantive rights. Application
of Jantzen, 245 Neb. at 90, 511 N.W.2d at 512. When an agency violates its own regulations which
provide a party a substantive benefit, the agency action is invalid. Id. at 92, 511 N.W.2d at 513. And
the PSC’s rule governing an intervenor’s presentation of evidence “without limitation” is precisely
a substantive benefit to parties who intervene. Consequently, the PSC cannot depart from that rule
and the fact it did so by limiting the number of the Tribe’s witnesses and the length of its cross-
examination was a clear violation of the PSC’s rules and must be overturned.
TransCanada’s Application requested “an order from the PSC that the Preferred Route is in
the public interest.” (T123). The Mainline Alternative Route was mentioned in the Application, but
only “for comparison as required by the PSC regulations.” (T62). Notably absent from the
Application was any information required by MOPSA or PSC rules for the Mainline Alternative
Route. It simply was not part of the Application. TransCanada recognized this when it requested
18
that the PSC reconsider its decision and allow it to provide notice and produce evidence on the
Mainline Alternative Route. (T6213). Yet, the PSC purported to approve that route despite the fact
that TransCanada never requested approval, never provided the required application information,
never provided proper notice and service, and never presented any evidence in support of that route.
Without the legally required information, legally required notice and service, and legally required
meeting of TransCanada’s burden of proof, the PSC simply could not approve the Mainline
Alternative Route and, consequently, its decision must be overturned as a matter of law.
A. The PSC Could Not Approve the Mainline Alternative Route Because
Transcanada Did Not Apply for Approval of That Route.
TransCanada applied only for a single route – the route it termed the “Preferred Route.” It
at no time applied for or requested approval of the Mainline Alternative Route and no reasonable
construction of the Application supports any request for approval of any route other than the
Preferred Route. The Application begins very straightforwardly stating, TransCanada “submits this
application for approval of the Preferred Route as defined in this application.” (T54). The
Application then sets forth in separate sections each item required by MOPSA and the PSC’s rules
for the Preferred Route – the name and address of the pipeline carrier, description and map of the
proposed route, reasons for selecting the proposed route, a list of governing bodies, etc. NEB. REV.
In each of those sections of the Application, the required information is only provided for
“the Preferred Route that is the subject of this Application.” (T61). For example, in accordance with
MOPSA and the PSC’s rules, the Application lists the counties and municipalities “through which
the proposed route of the major oil pipeline would be located.” NEB. REV. STAT. § 57-1405(2)(d);
291 Neb. Admin. Code, ch. 9, § 023.02A4. However, the Application only lists the counties where
19
the Preferred Route would be located. (T74). Noticeably absent from TransCanada’s list of counties
are Madison, Stanton, Platte, Colfax, Butler, and Seward Counties or any municipalities in those
counties – all counties where the Mainline Alternative Route would be located, but not the Preferred
Route. (T74, T64). The Application’s “plan to comply with the Oil Pipeline Reclamation Act” only
discusses “lands disturbed by construction along the Preferred Route” and “manag[ing] erosion on
the Preferred Route.” (T75). There is no discussion or plan to comply with the Oil Pipeline
Reclamation Act for the Mainline Alternative Route. Id. Impacts on natural resources only involve
the Preferred Route, nothing about impacts of the Mainline Alternative Route. (T83-T90).
The Mainline Alternative Route is most certainly discussed in the Application, but not as a
proposed route. The Application states that TransCanada identified “two alternative routes for
comparison as required by the PSC regulations... the Sandhills Alternative Route and Keystone
Mainline Alternative Route.” (T62). The primary discussion of the Mainline Alternative Route
appears in the section of the Application dedicated to “consideration of alternative routes.” (T67).
The Application then uses the Mainline Alternative Route to allege that it demonstrates the Preferred
Route is the best route, concluding “the Keystone Mainline Alternative Route is not considered
preferable or beneficial in relation to the Preferred Route.” (T72). The only other discussion of the
Mainline Alternative Route in the Application is in reference to considering using existing utility
corridors for TransCanada’s pipeline. (T119). Nowhere in the Application is there any suggestion
of considering the Mainline Alternative Route as a proposed route or even providing the required
information to consider the existence of an application for the Mainline Alternative Route. It exists
in the Application solely for comparison purposes, not for the PSC’s consideration.
While the Application clearly only seeks approval of the Preferred Route, it more importantly
only provides the statutory and regulatory requirements for the Preferred Route. Nowhere in the
20
Application are any of the application requirements for the Mainline Alternative Route. MOPSA
suggestive. NEB. REV. STAT. § 57-1405(2). And MOPSA provides that, with an application, the
PSC has only two choices when entering an order with respect to an application – “approving the
application or denying the application.” Id. § 57-1408(1). MOPSA requires the order to include “the
reasons for approving or denying the application,” id., and provides for subsequent actions
depending on “[i]f the commission approves the application” or [i]f the commission denies the
application,” id. § 57-1408(3), (4). There is nothing in MOPSA or the PSC’s rules that permits the
PSC to select a different route or designate any route other than the route in the application. When
the PSC reviews an application under MOPSA, it can approve the application or it can deny the
application – it cannot rewrite the application or grant an application that was never filed. But, that
is precisely what it did in this case – it purported to approve a route that had no application to
The PSC was completely aware of the fact that the Application did not request approval of
the Mainline Alternative Route or include the required informationfor that route. In its order
granting interventions, the PSC “encourage[d] all parties to provide evidence regarding the feasibility
and potential benefits and/or drawbacks of the Keystone Mainline Alternative Route.” (T708). The
PSC said it was acting pursuant to Neb. Rev. Stat. § 57-1407(4)(e), which provides that, in reviewing
an application, the PSC “shall evaluate... [w]hether any other utility corridor exists that could
feasibly and beneficially be used.” However, that subsection does not provide authority for the PSC
to grant a route using another utility corridor. That subsection is an element of consideration for the
PSC in deciding whether to approve or deny an application. And the PSC’s order is essentially that
21
Preferred Route for purposes of determining whether to deny the Application because another
feasible utility corridor exists. If the PSC determines that there is another utility corridor that could
be used, then the PSC must deny the application on the grounds another utility corridor exists. Then,
the applicant “may amend the denied application in accordance with the findings of the commission
and submit the amended application.” NEB. REV. STAT. § 57-1408(4). It is a factor of evaluation
of the route applied for and a grounds for denial, not an authority to select a different route.
“[A]n administrative board has no power or authority other than that specifically conferred
upon it by statute or by construction necessary to accomplish the purpose of the act.” Application
of Lincoln Elec. System, 207 Neb. 289, 292, 298 N.W.2d 366, 368 (1980). When a statute provides
for an administrative board to consider an application for a utility route and “approve or deny the
application,” this Court has held that the statute does not provide any power or authority for that
administrative board to select a particular route other than one in the application. Id. That is
precisely the case here. The statutory language of MOPSA is clear and unambiguous – it requires
the PSC to consider whether a proposed route in an application is in the public interest and, based
on that determination, either approve or deny the application. It nowhere provides authority for the
PSC to select a different route or consider an alternative route summarily presented solely for
comparison purposes. The PSC simply could not approve the Mainline Alternative Route without
an application for that route and its decision must be overturned. If that route is to be approved,
B. The PSC Could Not Consider or Approve the Mainline Alternative Route
Because Proper Notice and Service Was Not Made on Landowners,
Governments, or Other Interested Parties along the Mainline Alternative Route.
In addition to the Application not including the Mainline Alternative Route, the PSC’s
purported approval of that route presents significant and serious issues of statutory compliance and
22
due process. MOPSA requires that an applicant for a major oil pipeline route “shall publish notice
of the application in at least one newspaper of general circulation in each county in which the major
oil pipeline is to be constructed.” NEB. REV. STAT. § 57-1405(3). TransCanada did publish notice
of the Application, but only in Antelope, Boone, Boyd, Fillmore, Holt, Jefferson, Keya Paha,
Merrick, Nance, Polk, Saline, and York Counties. (T521). These are precisely the counties
TransCanada listed in its Application where the Preferred Route would be located. (T74).
Madison, Stanton, Platte, Colfax, Butler, or Seward Counties – all counties impacted by the Mainline
Along with newspaper publication, MOPSA also requires an applicant to “serve notice of the
application upon the governing bodies of the counties and municipalities” through which the pipeline
would be located. NEB. REV. STAT. § 57-1405(3). Again, TransCanada did serve the Application
– on Antelope, Boone, Boyd, Fillmore, Holt, Jefferson, Keya Paha, Merrick, Nance, Polk, Saline,
and York Counties as well as the Village of McColl and Steel City. (T485-T486). And, again, these
are only the counties and municipalities covered by the Preferred Route. The Application was not
served on the governing bodies of Madison, Stanton, Platte, Colfax, Butler, or Seward Counties or
There was absolutely no publication or service for any of the counties or municipalities along
the Mainline Alternative Route where it deviates from the Preferred Route. This is a clear and plain
failure to meet the requirements of MOPSA and by itself prohibits the PSC from approving that
route. Failure to provide notice in accordance with statutory requirements makes an agency action
invalid. Greeley Airport Authority v. Dugan, 259 Neb. 860, 612 N.W.2d 913 (2000). But, the
provisions for notice and publication in MOPSA are also necessary requirements of due process.
23
Those provisions for notice and service ensure that MOPSA and PSC proceedings pursuant to it are
constitutional. School Dist. No. 8 v. State Bd. of Ed., 176 Neb. 722, 730, 127 N.W.2d 458, 463
(1964). “It is a familiar rule that a statute which does not provide for notice and hearing to those
whose interests would necessarily be affected by the exercise of a granted power is violative of the
due process clauses of the state and federal Constitutions.” Id. Thus, the requirement of notice and
service under MOPSA is not a mere irrelevant procedural requirement that can be ignored.
Parties with interests and rights which are affected by agency action are “‘interested parties’
entitled to constitutional due process.” First Fed. Sav. & Loan Ass’n. v. Dep’t. of Banking, 187 Neb.
562, 568, 192 N.W.2d 736, 740 (1971). The failure of the Applicant and the PSC to provide proper
notice and service under MOPSA in the counties impacted by the Mainline Alternative Route
violated the due process rights of the counties, municipalities, landowners, and the Tribe. The PSC
could not dispense with, waive, or excuse the notice and service requirements of MOPSA. “Due
process of law requires notice and an opportunity to be heard, as a matter of right and not by the let
It is true the PSC sent letters to the counties and municipalities where the Mainline
Alternative Route would be located, (e.g., T1003), but those letters do not suffice to comply with
MOPSA. MOPSA requires formal service of the application itself. NEB. REV. STAT. § 57-1405(3).
The letters the PSC sent to counties and municipalities along the Mainline Alternative Route did not
include the Application and only requested “the Board’s views” and “invite[d] the Board[s] to
participate in any or all of these meetings and/or provide comments to the Commission in written
form.” (E.g., T1003). The letters were not formal notice or service. By their own terms, they were
sent by the PSC for the purpose of complying with MOPSA’s requirement that the PSC consider the
views of local governments, not formal service under the Act. E.g., id.
24
Furthermore, letters to county and municipal governments requesting comments cannot
substitute for notice to landowners and others affected by the Mainline Alternative Route. MOPSA
requires publication of notice of the application in a newspaper of general circulation in the affected
counties. NEB. REV. STAT. § 57-1405(3). That publication is designed to inform individuals in those
counties of the application and the proposed pipeline, provide those individuals with an opportunity
to intervene, and assist with constitutional due process compliance. Even if the PSC’s letters to local
governments could be considered to meet constitutional due process requirements for local
governments, they do not suffice to avoid the violation of the due process rights of landowners, other
members of the public, and the Tribe and its members in those counties. And the impact of that
failure to provide proper notice to interested parties in those counties is evident from the parties who
intervened – the landowners are limited to those along the Preferred Route; no landowners along the
Mainline Alternative Route where it deviates from the Preferred Route ever intervened.
The failure of proper notice and service within the counties impacted by the Mainline
Alternative Route by itself means the PSC had no authority to approve the Mainline Alternative
Route and automatically invalidates the PSC’s decision on statutory and constitutional grounds.
“The statute requires the agency to afford notice and hearing... [I]f notice and hearing in such a case
are not afforded, the power to act does not exist.” School Dist. No. 8, 176 Neb. at 731, 127 N.W.2d
at 464. The PSC had no power to approve the Mainline Alternative Route and its order is void. Id.
Consequently, the Court must vacate the approval of the Mainline Alternative Route.
C. Even If the PSC Could Consider the Mainline Alternative Route, it Could Not
Approve it Because TransCanada Did Not Provide Evidence for That Route.
There can be no serious question that the PSC had no authority to approve the Mainline
Alternative Route without an appropriate application, notice, service, and due process. But, even
25
if the PSC did have the authority, it could not approve the Mainline Alternative Route because
TransCanada in no manner met its burden of proving that route is in the public interest. MOPSA
expressly and unambiguously provides that the “pipeline carrier shall have the burden to establish
that the proposed route of the major oil pipeline would serve the public interest.” NEB. REV. STAT.
§ 57-1407(4). Consequently, if the PSC could grant the Mainline Alternative Route, it could only
do so if TransCanada proved that the Mainline Alternative Route would serve the public interest.
The burden of proof consists of two separate and distinct elements – the burden of persuasion
and the burden of production. Schneider v. Chavez-Munoz, 9 Neb. App. 579, 616 N.W.2d 46, 58
(Neb. Ct. App. 2000). The burden of persuasion is the part of the burden of proof where
TransCanada had to convince the PSC the proposed route is in the public interest. Hopkins v.
Hopkins, 294 Neb. 417, 428, 883 N.W.2d 363, 373 (2016). But, more importantly here, the burden
of production “requires parties to present particular evidence, regardless of whether that evidence
actually persuades the finder of fact.” Id. In other words, the burden of production is “a party’s
obligation to come forward with evidence to support its claim.” Office of Workers’ Comp. v.
The burden of production is fundamental. It is the legal standard which must be met before
the PSC can even consider approving the Mainline Alternative Route. Schneider, 616 N.W.2d at
58. It is not an issue of fact, but an issue of law. Id. The PSC could not even consider whether
TransCanada had meet its burden of persuasion unless and until TransCanada met its initial burden
of production. Celotex Corp. v. Catrett, 477 U.S. 317, 330-31 (1986) (Brennan, J., dissenting).
“[T]he impact of the burden of producing evidence is substantive if the burden is not met: The party
who fails to carry his burden loses on the issue to which the burden applies, and the ultimate burden
of persuasion... plays no role.” In Re Kim, 71 B.R. 1011, 1015-16 (Bankr. C.D. Cal. 1987).
26
Despite the PSC informing TransCanada it wanted evidence on the Mainline Alternative
Route, (T708), TransCanada never bothered to present any such evidence. Each and every one of
TransCanada’s witnesses only discussed the Preferred Route. Tony Palmer said he was only
providing “testimony in support of Keystone’s request that it receive approval of the Preferred
Route.” (KXL-2,2:53,58) (emphasis added). Ernie Goss “prepared a socio-economic analysis of the
impacts of the Keystone XL Pipeline on the State of Nebraska and the counties through which the
Preferred Route will cross.” (KXL-4,2:53,58) (emphasis added). Sandra Barnett said she was
“offering... testimony in support of the Project’s application, which seeks approval for the Preferred
Route.” (KXL-5,2:53,58) (emphasis added). John Beaver testified he was responsible for
“managing and participating in reclamation planning and noxious weed and special-status species
surveys on the Preferred Route” and has “overseen the design of the reclamation and revegetation
plan for the Preferred Route.” (KXL-6,2:53,58) (emphasis added). Michael Portnoy “assisted
Keystone with preparing its application for approval of the Preferred Route.” (KXL-7,2:53,58)
(emphasis added). The only witness that even mentioned the Mainline Alternative Route was John
Schmidt, but only to say that route does not “confer[] a distinct environmental advantage over the
Preferred Route.” (KXL-8,2-3:53,58). In all other respects, he only discussed the Preferred Route.
TransCanada’s exhibits similarly only reference the Preferred Route – the Environmental Impact
Statements submitted from the Department of State (“DOS”) and Nebraska Department of
Environmental Quality (“NDEQ”) merely review the Preferred Route without any specific
Even on rebuttal, each witness TransCanada presented only discussed the Preferred Route.
shovel tests, literature searches, and field surveys for cultural and historic resources, but only along
27
the Preferred Route. (KXL-14,4-5:1098,1100). In his rebuttal testimony, Mr. Schmidt did again
mention the Mainline Alternative Route, but once more only to demonstrate it is not in the public
interest, noting the Mainline Alternative Route impacts more threatened and endangered species and
Even when questioned about the Mainline Alternative Route, TransCanada’s witnesses
admitted that there was no evidence to present. On cross-examination, Mr. Portnoy admitted
TransCanada conducted no depth of groundwater or soil permeability studies along the Mainline
Alternative Route. (523:8-13). Ms. Kothari acknowledged that the NDEQ, the Department of
Natural Resources, the Department of Revenue, the Department of Roads, the Game and Parks
Commission, the Oil and Gas Conservation Commission, the State Historical Society, the Fire
Marshal, and the Board of Educational Lands & Funds were never even asked by TransCanada to
evaluate or study the Mainline Alternative Route. (639:16-641:15). Ms. Salisbury also admitted that
the Tribe was correct in stating that TransCanada never bothered to conduct historical or cultural
resource surveys along the Mainline Alternative Route. (1108:7-18). She confirmed that, indeed,
TransCanada believed such surveys “are not required,” presumably because TransCanada never
applied for and never intended to introduce any evidence in support of that route. Id.
about the legal issue of TransCanada presenting something – anything – in support of the Mainline
Alternative Route. TransCanada had the affirmative duty to prove that the Mainline Alternative
Route is in the public interest. NEB. REV. STAT. § 57-1407(4). But, it never applied for, requested,
studied, or presented any evidence in support of it. When it mentioned the Mainline Alternative
Route, it discounted it and reinforced its claim it was not in the public interest. “[A] party is not
permitted to prevail on an issue... unless the party introduces a certain quantum of evidence sufficient
28
to put his opponent to the burden of producing evidence.” In Re Kim, 71 B.R. at 1016. And without
the introduction of that evidence, there is no way the PSC could find the Mainline Alternative Route
a legal failure which prevents the PSC from even considering whether it was in the public interest.
Schneider, 616 N.W.2d at 58. Furthermore, when a statute requires a public interest determination
for a utility route and sets forth specific factors to consider, as MOPSA does, this Court has held
those factors require specific evidence, not general statements or representations. Metro. Utilities
Dist. of Omaha v. Aquila, 271 Neb. 454, 712 N.W.2d 280, 286 (2006). In particular, the Court has
specifically rejected the notion that the factors can be considered met by an applicant merely
considering or paying attention to the factors later during construction or operation – the factors
require specific study and analysis. Id. But, no such specific study or analysis exists for the
Mainline Alternative Route, prohibiting the PSC from finding it is in the public interest.
TransCanada completely failed to meet its burden of production with respect to the Mainline
Alternative Route. Consequently, even if the PSC had the authority to consider approving that route,
it legally could not do so. As a result, the PSC’s order approving the Mainline Alternative Route
Setting aside the fact the PSC had no authority to consider or approve the Mainline
Alternative Route, the PSC’s analysis of the Keystone XL Pipeline’s impacts on historic and cultural
resources was entirely incorrect. MOPSA requires the PSC to determine whether a proposed major
oil pipeline is in the public interest and to evaluate specific factors to make that determination. NEB.
29
REV. STAT. § 57-1407(4). In particular, MOPSA requires the PSC to evaluate “[e]vidence regarding
the... social impacts of the major oil pipeline,” id. § 57-1407(4)(d), which the PSC properly
determined included cultural and historical resources, (T705). However, in its decision, the PSC
held, “The public interest with respect to the preservation of cultural resources along the pipeline
route is a matter of federal law, and governed by the National Historic Preservation Act.” (T6187).
It then discussed the Programmatic Agreement (“PA”) between the DOS and state agencies, finding
that it sufficiently protects cultural and historic resources. (T6188-89). But, the NHPA defines
“historic property” in a limited manner that only includes sites and resources “included on, or
eligible for inclusion on, the National Register [of Historic Places].” 54 U.S.C. § 300308. The PA
mimics that definition of “historic property,” limiting it to sites and resources included in or eligible
for the National Register, adding only that, with respect to Indian tribal cultural resources, it covers
those “that meet the National Register criteria.” (KXL-14,16:1098,1100). In other words, the PA
and the NHPA only consider and deal with resources that are in or could be in the National Register
The PSC’s determination that cultural and historic resources are a matter of federal law rather
than evaluating them under the standard of MOPSA was entirely contrary to MOPSA. MOPSA is
not limited to considerations of cultural and historic resources under federal law. On the contrary,
MOPSA is specifically designed to go beyond the considerations and reviews of federal agencies and
MOPSA requires TransCanada to “establish that the proposed route of the major oil pipeline
would serve the public interest.” NEB. REV. STAT. § 57-1407(4). It then lists specific factors that the
PSC must consider to determine whether TransCanada has proven the pipeline would serve the
public interest. Those factors are not separate or limiting factors, but are specific items the PSC must
30
consider as part of its larger public interest analysis. In other words, each of the listed factors needs
to be considered in light of the public interest. In fact, the legislature specifically noted the PSC
would look to the listed factors to determine whether a proposed route passed the public interest test.
Hearing on LB1 Before the Natural Res. Comm., 102nd Leg., 1st Spec. Sess., 4 (Neb. 2011).
“One of the basic rules of statutory construction is that statutory language will be given its
plain and ordinary meaning.” Caruso v. City of Omaha, 222 Neb. 257, 260, 383 N.W.2d 41, 44
(1986). The ordinary meaning of a word or phrase generally means the dictionary definition. E.g.,
id.; O’Neill Prod. Credit Ass’n v. Schnoor, 208 Neb. 105, 109, 302 N.W.2d 376, 379 (1981).
Black’s Law Dictionary defines “public interest” as the “general welfare of the public that warrants
recognition and protection” and “something in which the public as a whole has a stake.” BLACK’S
LAW DICTIONARY. Consequently, when considering cultural and historic resources, MOPSA
requires the PSC to consider those resources which the general welfare of the public warrants
recognition and protection or in which the public as whole has a stake. This is quite different than
Considering matters that are important to the public of Nebraska and not just considered
valuable or protectable under federal law was precisely the intent of the legislature when it enacted
MOPSA. In discussing what MOPSA would consider differently than the National Environmental
Policy Act, Senator Dubas stated, “we’re looking more specifically to our specific state... and all of
the uniqueness of our state.” Hearing on LB1 at 9. He said MOPSA would allow the state“to look
at it from a Nebraska perspective.” Id. Thus, the legislature specifically intended the PSC to go
beyond what federal review provides. The legislature wanted to ensure the citizens of Nebraska,
through the PSC, could consider the unique issues and resources of Nebraska, not mimic federal
review. But, mimic federal review is precisely what the PSC did for historic and cultural resources.
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“Public interest” is much more broad than “historic property” under the NHPA. MOPSA is
concerned with resources which are in the public interest of Nebraska, not merely those eligible for
the National Register. The PSC ignored this requirement of MOPSA. Resources that are in the
public interest of Nebraska are not always in the National Register. (1076:2-22). For example, the
Keystone XL Pipeline would undisputably cross the Ponca Trail of Tears. (CUL1,1:618-619;
CUL16,1:1151; 619:23-620:11; 1153:7-1154-6). The Trail is not in the National Register, but
Nebraska has been attempting to seek recognition and protection of it. (CUL19,11:1048). In
addition, every witness who was asked identified the Trail as a significant part of Nebraska’s history
933:3-933:15; 1077:22-78:1). Under the PSC’s analysis, the Trail is not a consideration because it
is not in the National Register and, regardless, not an issue for Nebraska, just for federal law. That
is contrary to MOPSA.
MOPSA is designed to be an exercise of the sovereign powers of Nebraska. NEB. REV. STAT.
§ 57-1402(2). It is designed to make sure that Nebraska’s interests are considered and protected and
not subordinated or negated by federal agencies and law. But, the PSC dismissed Nebraska’s
sovereignty and interests in violation of MOPSA by simply bowing to federal agencies and only
concerning itself with “historic properties” the DOS would recognize and protect. The PSC’s
primary purpose is “first and at all times, to serve the interests of the public.” In re: Application No.
30466, 194 Neb. 55, 62, 230 N.W.2d 190, 196 (1975). The PSC was required to consider historic
and cultural resources that, under Nebraska’s unique view, “warrant recognition and protection” or
“in which the public as a whole has a stake.” It failed to do so and, consequently, failed to apply the
proper legal standard under MOPSA. As a result, the PSC’s order must be overturned and the PSC
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CONCLUSION
The PSC violated its rules and the APA when it refused to allow the Tribe to participate in
the proceedings to the extent of its express interests in the matter. When the Tribe stated its interests
included its governmental interests of the pipeline traversing its jurisdiction, the Tribe was entitled
to participate with respect to those interests, not simply “social and cultural issues.” The PSC further
violated it rules by limiting the Tribe’s number of witnesses and amount of cross-examination. The
PSC’s rules do not permit such limitations and, while the APA permits agencies to place limits on
an intervenor’s presentation, the PSC gave up that right by promulgating rules to the contrary.
The PSC also entirely lacked authority to approve the Mainline Alternative Route.
TransCanada never applied for that route, notice and service of the application for that roue were
never made, and TransCanada never produced any evidence in support of it. If the PSC is to ever
approve the Mainline Alternative Route, TransCanada must file an application for that route,
properly provide notice and service, and present actual evidence and studies of the Mainline
Finally, in considering whether a major oil pipeline serves the public interest, the PSC cannot
abandon its duty to serve the interests of the public by mimicking and bowing to federal agency
review. It must consider more than federal agencies – it must review the pipeline with respect to
matters which are important to Nebraska and in which the public has an interest. It entirely failed
The Tribe requests the Court overturn the PSC’s limits on the Tribe’s intervention with
directions to allow the Tribe to participate with respect to all of its interests without limits on
presentation of evidence. The Tribe also requests that the Court vacate and overturn the PSC’s
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RESPECTFULLY SUBMITTED this 16th day of May, 2018,
____________________________________
Brad S. Jolly, #23720
BRAD S. JOLLY & ASSOCIATES
15355 Gadsden Drive
Brighton, CO 80603
Telephone: (720) 685-7105
Facsimile: (206) 339-7209
Email: bsj@bsjlawfirm.com
ATTORNEY FOR PONCA TRIBE OF NEBRASKA
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CERTIFICATE OF SERVICE
The undersigned attorney hereby certifies that on May 16, 2018, a copy of the above and foregoing
brief was served by electronic filing and mail and via U.S. Mail to those without an email address
of record to the following:
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Leverne A. Barrett Cecilia Rossiter
1909 Co. Rd. E 949 N 30th St.
Ceresco, NE 68017 Lincoln, NE 68503
punion@gmail.com
Mia Bergman
O’Donoghue & O’Donoghue LLP Corey Runmann
86424 514 Ave. 2718 S. 12th St.
Orchard, NE 68764 Lincoln, NE 68502
mbergman85@hotmail.com rumannc@gmail.com
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Louis (Tom) Genung Kimberly L. Stuhr
902 East 7th St. 19303 Buffalo Rd.
Hastings, NE 68901 Springfield, NE 68059
tg64152@windstream.net kimberlystuhr13@yahoo.com
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Marvin E. Hughes Douglas Whitmore
714 W 5th St, Ste. 120 8856 N 83rd Ave.
Hastings, NE 68901 Omaha, NE 68122
bhughes@gtmc.net douglas@whitmore4congress.com
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Kendall Maxey Steven M. Kramer
350.org Association of Oil Pipe Lines
20 Jay Street 900 17th Street, NW, Ste. 600
Brooklyn, NY 11201 Washington, DC 20006
kendall@350.org skramer@aopl.org
Greg Nelson
3700 Sumner St.
Lincoln, NE 68506
gnelson@inetnebr.com
________________________________
Brad S. Jolly
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