S-17-1331

NEBRASKA SUPREME COURT

In the Matter of the Application

of
TransCanada Keystone Pipeline, LP
For the Keystone XL Pipeline Project, Pursuant to MOPSA

Appeal from Nebraska Public Service Commission

(Application No. OP-003)

Appellee Sierra Club, Nebraska Chapter’s Brief

Kenneth C. Winston, #16961

1327 H St., Ste 300
Lincoln, NE 68508
(402) 212-3737
kwinston@inebraska.com

Attorney for Appellee Sierra Club, Nebraska Chapter

 Table of Contents

Table of Authorities .................................................................................................................. iii

Jurisdictional Basis .....................................................................................................................1
Statement of the Case ..................................................................................................................1
Propositions of Law ....................................................................................................................1
Statement of Facts .......................................................................................................................3
Standard of Review .....................................................................................................................3
Argument ....................................................................................................................................4
1. Sierra Club supports positions taken by Landowners. ......................................................4
2. The Commission erred by approving the Mainline Alternative Route without evidence
TransCanada had met its burden of proof. ...............................................................................5
a. TransCanada did not support the Mainline Alternative ..................................................5
b. TransCanada did not meet its burden of proof for any route. .........................................7
i. Evidentiary standards .................................................................................................7
ii. TransCanada witnesses failed to demonstrate knowledge and understanding of its
own application ....................................................................................................... 11
iii. Lack of credibility of TransCanada’s evidence ......................................................... 13
3. The Commission erred in finding the KXL Mainline Alternative Route is in the public
interest. ................................................................................................................................. 17
a. Legislative purpose of MOPSA mandates broad consideration of protections for
Nebraska’s citizens and natural resources. ......................................................................... 18
b. Legislative intent provides additional basis for MOPSA public interest analysis. ........ 19
c. TransCanada’s proposed routes pose potential irreversible impacts to Nebraska’s
natural resources. ............................................................................................................... 23
d. The Commission failed to consider appropriate economic and social impacts. ............ 27
e. The Commission’s conclusions about alternative utility corridors is not supported by
the evidence. ..................................................................................................................... 29
4. The Commission failed to provide the Sierra Club with fundamental due process rights
required under the Constitutions of the United States and the State of Nebraska. ................... 30
a. Due Process Standards. ............................................................................................... 31
b. Effect of the proposed KXL pipeline on Nebraska’s natural resources implicates the
public trust doctrine. .......................................................................................................... 32
c. Procedural limitations placed on participation in proceedings by Commission violated
due process rights. ............................................................................................................. 34
d. The Commission’s procedural orders were contrary to its own rules, thereby
constituting a denial of due process rights. ......................................................................... 36

i
 e. The Commission’s procedural rules denied Sierra Club and other intervenors a
meaningful right to be heard. ............................................................................................. 38
Conclusion ................................................................................................................................ 41

ii
 Table of Authorities
Cases
Application of Red Carpet Limousine Serv., Inc.,
221 Neb. 340, 344 (1985) .................................................................................................... 2, 8
Block v. Lincoln Telephone and Telegraph Company,
170 Neb. 531, 540, 103 N.W.2d 312, 317 (1960)) ............................................................. 3, 36
Brock v. Roadway Express, Inc.,
481 U.S. 272 (1987) .............................................................................................................. 35
Brown v. Farmers Mut. Ins. Co.,
237 Neb. 855, 468 N.W.2d 105 (1991) ....................................................................................9
Center for Biological Diversity, Inc. v. FPL Group, Inc.,
166 Cal. App. 4th 1349 (2008) .......................................................................................... 3, 33
Chase 3000, Inc. v. Public Service Commission,
273 Neb. 133, 278 N.W.2d 560 (Neb. 2007) .......................................................................... 36
Cohen v. Beneficial Indus. Loan Corp.,
337 U.S. 541, 559 (1949) ...................................................................................................... 31
County of Sioux v. State Board of Equalization,
185 Neb. 741, 178 N.W.2d 754 (1970) .................................................................................. 13
Davis v. Scherer,
468 U.S. 183, 202 (1984) ...................................................................................................... 36
Hamdi v. Rumsfeld,
542 U.S. 507, 528-29 (2004) ................................................................................................. 31
In re Application A-16642,
236 Neb. 671, 707, 463 N.W.2d 591, 614 (1990) ................................................................... 10
In re Application No. B-1829,
293 Neb. 485, 488 (2016) ........................................................................................................3
In re Application of Renzenberger,
225 Neb. 30, 402 N.W.2d 294 (1987)) ................................................................................. 2, 9
Jantzen v. Diller Telephone Co.,
245 Neb. 81, 100, 511 N.W.2d 504, 517 (1994)..................................................................... 37
Ketteler v. Daniel,
251 Neb. 287, 295 (1996) ...................................................................................................... 16
Marshall v. Wimes,
261 Neb. 846, 851, 626 N.W.2d 229, 235 (2001) ................................................................... 35
National Association for the Advancement of Colored People v. Federal Power Commission,
425 US. 662, 669 (1976) ................................................................................................... 2, 18
Palko v. State of Connecticut,
302 U.S. 319, 324 (1937) ...................................................................................................... 31
State ex. rel. Spire v. Northwestern Bell Tel. Co.,
233 Neb. 262, 445 N.W.2d 284 (1989) ....................................................................................8
State v. Osborn,
241 Neb. 424 (1992).............................................................................................................. 16
State v. Patricia B. (In re Levanta S.),
295 Neb. 151, 165, 887 N.W.2d 502, 512 (2016)............................................................... 3, 40

iii
State v. Schrein,
244 Neb. 136, 504 N.W.2d 827 (1993) ................................................................................ 2, 9
State v. Wood,
245 Neb. 63, 511 N.W.2d 90 (1994) .................................................................................... 2, 9
Telrite Corp. v. Nebraska Pub. Serv. Comm.,
288 Neb. 866, 852 N.W.2d 910 (2014) ....................................................................................4
Statutes and Regulations
50 C.F.R. § 402.16 .................................................................................................................... 26
Magna Carta, ch. 29, in 1 E. Coke, The Second Part of the Institutes of the Laws of England
45 (1797)............................................................................................................................... 30
NE Const. art. 1 § 3 .....................................................................................................................2
NE Const. art. 15 §§ 4, 5 ....................................................................................................... 3, 33
NE Const. art. IV § 20 ............................................................................................................. 2, 8
Neb. Rev Stat. § 84-901 (Reissue 1981) .................................................................................... 10
Neb. Rev. St. § 46-701 .............................................................................................................. 33
Neb. Rev. St. § 46-702 .............................................................................................................. 33
Neb. Rev. St. §§ 46-701, 46-702 .................................................................................................3
Neb. Rev. Stat. § 57-1402 (1) .................................................................................................... 18
Neb. Rev. Stat. § 57-1403 ................................................................................................... 19, 20
Neb. Rev. Stat. § 57-1403(2) ..................................................................................................... 21
Neb. Rev. Stat. § 57-1403(4) ..................................................................................................... 21
Neb. Rev. Stat. § 57-1407(4) ........................................................................................... 2, 21, 23
Neb. Rev. Stat. § 57-1408 ...........................................................................................................4
Neb. Rev. Stat. § 75-136 .............................................................................................................4
Neb. Rev. Stat. § 75-136(2) .........................................................................................................3
Neb. Rev. Stat. § 84-312.02....................................................................................................... 36
Neb. Rev. Stat. § 84-912.02.........................................................................................................2
Neb. Rev. Stat. § 84-914 (1) ...................................................................................................... 10
Neb. Rev. Stat. § 84-914(3) ................................................................................................... 2, 10
Neb. Rev. Stat. §§ 57-1403(2), (4)...............................................................................................1
Neb. Rev. Stat.§ 57-1402(1) ........................................................................................................1
Neb. Rev. Stat.§ 57-1405 ............................................................................................................4
US Const. amend. V § 1 ..............................................................................................................2
US Const. amend. XIV ................................................................................................................2
Rules
291 Neb. Admin. Code 1 § 015.01 ........................................................................................ 2, 37
291 Neb. Admin. Code 9, § 023.06 ....................................................................................... 2, 37
291 Neb. Admin. Code 9, § 023.07B3 ....................................................................................... 20
Other Authorities
Black’s Law Dictionary (10th ed. 2014) .................................................................................... 17
Merriam-Webster Dictionary .................................................................................................... 17
The Public Trust Doctrine: Could a Public Trust Declaration for Wildlife Be Next? (2006)
vol. 2006, No. 9, Cal. Envtl. L. Rptr. 1 ...................................................................................... 33

iv
Walter Wheeler Cook, “Substance” and “Procedure” in the Conflict of Laws,
42 YALE L.J. 333, 335-36 (1933) ............................................................................................. 31

v
 Jurisdictional Basis
The Sierra Club, Nebraska Chapter (the “Sierra Club”) hereby adopts the jurisdictional

statement contained in the Appellant Landowners’ Opening Brief. Furthermore, the Sierra Club

has standing to raise claims in this case by virtue of being granted formal intervenor status by the

Nebraska Public Service Commission (the “Commission”) pursuant to its March 31, 2017 Order

on Formal Intervention Petitions (T699-708).

Statement of the Case

The Sierra Club hereby adopts the Statement of the Case contained in the Appellant

Landowners’ Opening Brief, with the following additions: In its order granting the Sierra Club

formal intervenor status, the Commission lumped the Sierra Club, the Bold Alliance, two other

organizations and 36 individuals under the category of “natural resources intervenors”, limited

them to one witness (later expanded to two witnesses) and limited the issues they could address.

Sierra Club, along with Bold and other formal intervenors filed a series of objections to this

ruling, including continuing objections during the hearing August 7-10, 2017.

Sierra Club offered written evidence pointing out discrepancies and errors in

TransCanada’s application. TransCanada responded by offering rebuttal testimony from three

witnesses, changing several numbers related to natural resources impacts on its application and

offering a 326 page amendment to the application.

Propositions of Law
1. The Commission erred in approval of the Mainline Alternative Route for

TransCanada Keystone Pipeline, LP’s (“TransCanada”) proposed Keystone XL Pipeline project

(“KXL”) in that TransCanada failed to meet its burden of proof. (Neb. Rev. Stat. § 27-401

(Reissue 1989); Neb. Rev. Stat.§ 57-1402(1); Neb. Rev. Stat. §§ 57-1403(2), (4); Neb. Rev. Stat.
1
§ 57-1407; Neb. Rev. Stat. §§ 57-1407(2), (4); Neb. Rev. Stat. § 84-914(3); Application of Red

Carpet Limousine Serv., Inc., 221 Neb. 340, 344 (1985); State v. Wood, supra; State v. Schrein,

supra. In re Application of Renzenberger, 225 Neb. 30, 402 N.W.2d 294 (1987)).

2. The Commission erred in approving the KXL Mainline Alternative Route in that

it was not in the public interest with respect to economic and social impacts of the KXL project.

(Neb. Rev. Stat. § 57-1407(4); In re Application of Northwestern Bell Tel. Co., 218 Neb. 563,

357 N.W.2d 443 (1984); In re Application of GCC License Corp., 264 Neb. 167, 175, 647

N.W.2d 45, 52 (2002); Wells Fargo Armored Serv. Corp of Neb. v. Bankers Dispatch Corp, 186

Neb. 261 (1971))

3. The Commission erred in approving the KXL Mainline Alternative Route in that

it was not in the public interest with respect to consideration of alternative utility corridors.

(Neb. Rev. Stat. 57-1407(4); National Association for the Advancement of Colored People v.

Federal Power Commission, 425 US. 662, 669 (1976); In re Application of Northwestern Bell

Tel. Co., 218 Neb. 563, 357 N.W.2d 443 (1984))

4. The Commission erred in approving the KXL Mainline Alternative Route in that

it was not in the public interest with respect to irreversible impacts on Nebraska’s natural

resources. (MOPSA Neb. Rev. Stat. 57-1407(4); In re Application of Northwestern Bell Tel. Co.,

218 Neb. 563, 357 N.W.2d 443 (1984))

5. The Commission failed to provide Appellee Sierra Club with fundamental rights

under the due process clauses of the U.S. and Nebraska Constitutions. (US Const. amend. V § 1;

US Const. amend. XIV; NE Const. art. 1 § 3; NE Const. art. IV § 20; 291 Neb. Admin. Code 1 §

015.01C; 291 Neb. Admin. Code 9, § 023.06; Neb. Rev. Stat. § 84-912.02; Neb. Rev. Stat. § 57-

1408(2); Hurtado v. California, 110 U.S. 516, 527 (1884); Mathews v. Eldridge, 424 U.S. 319,

2
335 (1976); Hass v. Neth, 265 Neb. 321, 326, 657 N.W.2d 11, 19 (2003); Kerry v. Din, 135 S.

Ct. 2128, 2132 (2015); Douglas Cty. Welfare Admin. v. Parks, 284 N.W.2d 10, 11-12, 204 Neb.

570, 572 (1979); Thompson v. Heineman, 289 Neb. 798, 815, 857 N.W.2d 731, 747 (2015); State

v. Patricia B. (In re Levanta S.), 295 Neb. 151, 165, 887 N.W.2d 502, 512 (2016))

6. The Commission violated the fiduciary duties it owed to the citizens of Nebraska

to protect water resources as required by the public trust doctrine by conducting the evidentiary

hearing on TransCanada’s Application in a manner that precluded a full and meaningful

examination of the effect of the KXL project on Nebraska’s water resources. (NE Const. art. 15

§§ 4, 5; Neb. Rev. St. §§ 46-701, 46-702; Nebraska Mid-State Reclamation Dist. v. Hall County,

152 Neb. 410, 436 (1950); Center for Biological Diversity, Inc. v. FPL Group, Inc., 166 Cal.

App. 4th 1349 (2008); Block v. Lincoln Telephone and Telegraph Company, 170 Neb. 531, 540,

103 N.W.2d 312, 317 (1960)).

Statement of Facts
The Sierra Club adopts the statement of facts contained in the Appellant Landowners’

Opening Brief.

Standard of Review
Under Neb. Rev. Stat. § 75-136(2), an appellate court reviews a Commission order de

novo on the record. In re Application No. B-1829, 293 Neb. 485, 488 (2016).

In a de novo on the record review, the appellate court reappraises the evidence as

presented by the record and reaches its own independent conclusion concerning the matter at

issue. Id.

3
 In Telrite Corp. v. Nebraska Pub. Serv. Comm., 288 Neb. 866, 852 N.W.2d 910 (2014),

the Nebraska Supreme Court addressed whether the Court was required to defer to the

Commission’s determination. Importantly, the Court concluded that a Commission determination

was no longer to be afforded a deferential standard of review, following the Legislature’s

amendment of Neb. Rev. Stat. § 75-136 in 2013.

Prior to this amendment, the Commission’s determinations were to be affirmed, absent

arbitrariness or any abuse of discretion by the Commission. This is no longer the case. Now,

this Court must reappraise the evidence on the record and reach an independent conclusion.

Argument
This is a very simple case. Although the Transcript contains more than 6,000 pages of

documents, and the testimony before the Nebraska Public Service Commission adds more than

1,000 pages to the record, this case boils down to three questions: 1) Did TransCanada meet its

burden of proof? 2) Is the proposed pipeline route in the public interest? and 3) Did the

Commission proceedings meet the standards of due process for the participants? The answer to

each of these questions is a resounding no. Therefore, TransCanada’s Application must be

denied.

1. Sierra Club supports positions taken by Landowners.

The Sierra Club generally supports the propositions put forward by the Landowners in

their opening Appellants’ brief. In particular, the Sierra Club supports the following

propositions: 1) The Commission lacked jurisdiction to hear this matter since the provisions of

Neb. Rev. Stat. § 57-1405 and § 57-1408 were not fulfilled; and 2) The Commission lacked

authority to approve a route for which no application was made.

4
 Since Landowners have eloquently and persuasively put forth these propositions, Sierra

Club will only address issues Landowners have raised to the extent there are additional facts or

legal issues relevant to matters we raise.

2. The Commission erred by approving the Mainline Alternative Route without

evidence TransCanada had met its burden of proof.

Neb. Rev. Stat. 57-1407(4) states: “The pipeline carrier shall have the burden to

establish that the proposed route would serve the public interest.” (emphasis supplied).

However, the Commission made no finding that TransCanada had met its burden of proof for the

Mainline Alternative. The Sierra Club submits that the failure to make this finding was no

accident, that it was impossible to make such a finding due to the factors described in the

following paragraphs, particularly: TransCanada had not applied for approval of the Mainline

Alternative, and there was an utter failure to meet its burden of proof for any route.

It is difficult to imagine a more obvious error than a regulatory body approving an

application for something the applicant did not seek. However, in this case not only did the

Commission approve the Mainline Alternative route despite the fact that TransCanada did not

seek approval of that route, but this error was compounded by additional factors: TransCanada

actively opposed the Mainline Alternative while simultaneously failing to provide evidence that

would sustain their burden of proof for any route. This error was magnified by significant

evidence opposing the application, including unrebutted evidence of irreversible and irretrievable

negative impacts to natural resources.

a. TransCanada did not support the Mainline Alternative

It would take an algorithm to calculate the number of references to the Preferred Route in

the more than 7,000 pages that constitute the record of this case. However, it is undisputed that

5
TransCanada sought approval of its Preferred Route and the overwhelming body of evidence and

documentation by all parties was focused on that proposed route.

It is a logical impossibility for an applicant to meet the burden of proof for something it

did not seek. The issue at hand is not the abstract question of pipelines in general or a general

grant of authority for a pipeline company to operate in the State of Nebraska. It is an application

for a particular route. The focus of TransCanada’s Application was on its Preferred Route and

their presentation of evidence was based on the proposition that the Preferred Route was superior

to the other routes suggested in their Application.

TransCanada’s application, at section 2.1.3, set forth a list of reasons for why they did not

support the Mainline Alternative:

The Keystone Mainline Alternative Route would be 280.5 miles long-adding in an

incremental five miles-and would require an additional pump station, for a total of six pump
stations, including the station at Steele City. ln addition, as compared to the Preferred Route
and as summarized at Section 20.3, the Keystone Mainline Alternative Route would:
 Result in a greater total number of acres disturbed due to the increase in the route length;
 lncrease the crossing of the ranges of federally-listed threatened and endangered species;
 lncrease the crossing of highly erodible soils;
 lncrease the crossing of ecological unusually sensitive areas; and
 lncrease the number of crossings of perennial streams, railroads and total road crossings.”
(T67).

The only witness who provided testimony that could even remotely be construed as

favoring TransCanada’s Mainline Alternative over the Preferred Route was Sierra Club’s own

witness, Dr. Thomas Hayes, and his testimony was actually a harsh indictment of biases and

discrepancies in TransCanada’s application and deficiencies in their procedures rather than a

recommendation of approval. (T2378:1-31, T23801-4). Indeed, Dr. Hayes’s conclusion was that

the permit application should be denied, not support for the Mainline Alternative. (T2388:23-28).

TransCanada responded to Dr. Hayes’s testimony by changing the numbers in Table 2-1, offered

6
testimony by Dr. Jon Schmidt contradicting his earlier testimony, and filed a 300-page

amendment to its application intended to rebut Dr. Hayes. (T2012 to T2305). Although we will

later discuss issues with Schmidt’s credibility, the fact that he devoted three pages of testimony

to reasons the Mainline Alternative was inferior to the Preferred Route is explicit evidence that

TransCanada did not support the Mainline Alternative Route. (T2018:129 to T 2022:225). Given

the fact that TransCanada opposed the Mainline Alternative Route and there was no evidence

introduced in support of it, it is nearly impossible to conclude that TransCanada met its burden of

proof of demonstrating that the Mainline Alternative Route was in the public interest.

b. TransCanada did not meet its burden of proof for any route.

TransCanada failed to present evidence on elements necessary to meet its burden of proof

on specific elements of Neb. Rev. Stat. § 57-1407(4). Those elements will be discussed in detail

in the Section 3, supra.

Given that TransCanada did not support the Mainline Alternative and provided

significant testimony in opposition, the Commission’s approval of the Mainline Alternative

Route was clearly in error. Since TransCanada failed to demonstrate knowledge and

understanding of its own application, failed to present credible evidence and failed to present

evidence on necessary statutory elements, it is clear that TransCanada failed to meet its burden of

proof for any route.

i. Evidentiary standards

The Commission is not a statutorily created state agency; rather, it is an independent

regulatory body for common carriers created by the Nebraska Constitution. Under Article IV,

Section 20, the Nebraska Legislature can restrict the Commission’s plenary powers over

common carriers through specific legislation. See State ex. rel. Spire v. Northwestern Bell Tel.

7
Co., 233 Neb. 262, 445 N.W.2d 284 (1989).). Article IV, Section 20 (“These shall be a Public

Service Commission …the powers and duties of such Commission shall include the regulation of

rates, service and general control of common carriers as the Legislature may provide by law…”).

The Nebraska Legislature has constrained the Commission’s powers by enacting the

Major Oil Pipeline Siting Act (“MOPSA”), Neb. Rev. Stat. 57-1401 through 57-1413. Under

MOPSA, the pipeline carrier has the burden to establish that the proposed route of a major oil

pipe would serve the public interest. Neb. Rev. Stat. 57-1407.

In determining whether the applicant has met its burden, the Commission is required to

evaluate a number of pieces of evidence, including: evidence of the impact due to intrusion upon

natural resources; evidence regarding the irreversible and irretrievable commitment of land areas

and connected natural resources and the depletion of beneficial uses of nature resources;

evidence of methods to minimize the potential impacts of the major oil pipeline to natural

resources; and evidence regarding the economic and social impacts of the major oil pipeline.

Neb. Rev. Stat.§ 57-1407 (emphasis added).

The key word here is “evidence.” In order to find that TransCanada has met its burden of

proof in establishing that the pipeline route is in the public interest, the Commission must be able

to point to specific factual evidence the applicant presented during the course of the

administrative hearing.

TransCanada failed to meet its burden of proof for any route in this case, and thus the

Commission should have denied its application in its entirety. See, e.g, Application of Red

Carpet Limousine Serv., Inc., 221 Neb. 340, 344 (1985) (finding applicant before the

Commission failed to meet its burden of proof necessary to establish public convenience and

necessity). TransCanada’s Application is largely vague and generic, and much of what it

8
presented in the hearing was not factual evidence at all; rather, the direct testimony of

TransCanada’s witnesses primarily consisted of recitations that the witness was responsible for

certain sections of the Application.

Nebraska case law clearly establishes that the record on its face must reflect an adequate

basis from which the Commission can base its decision. See In re Application of Northwestern

Bell Tel. Co., 218 Neb. 563, 357 N.W.2d 443 (1984).

An administrative agency must also have relevant evidence, that is, evidence having any

tendency to make the existence of any fact that is of consequence to the determination of the

action more probable or less probable than it would be without the evidence, to support its

decision. Neb.Rev.Stat. § 27-401 (Reissue 1989); State v. Wood, 245 Neb. 63, 511 N.W.2d 90

(1994); State v. Schrein, 244 Neb. 136, 504 N.W.2d 827 (1993); Brown v. Farmers Mut. Ins.

Co., 237 Neb. 855, 468 N.W.2d 105 (1991).

Relevant evidence is evidence having any tendency to make the existence of any fact that

is of consequence to the determination of the action more probable or less probable than it would

be without the evidence. Neb.Rev.Stat. § 27-401 (Reissue 1989); State v. Wood, supra; State v.

Schrein, supra.. In the case of In re Application of Renzenberger, 225 Neb. 30, 402 N.W.2d 294

(1987), this Court set aside a Commission order because the Commission had relied on witnesses

who knew nothing about the question before the Commission, and who failed to offer any

evidence that would support its finding. In re Application of Renzenberger stands for the

proposition that an agency’s decision is considered arbitrary when it is against the weight of

evidence.

The Commission’s Rule 016.01 on probative evidence states as follows: “Evidence which

is admissible in civil actions under the Revised Statutes of Nebraska will be admissible before

9
the Commission. While the Commission will not be bound to follow the technical rules of

evidence, the record will be supported by evidence which possesses probative value commonly

accepted by reasonable men in the conduct of their affairs.”

The Administrative Procedures Act (“APA”) in Nebraska provides a similar description

related to the kind of evidence an agency can consider when making a determination. Certain

portions of the APA apply to the Commission by definition. "As used in sections 84-901 to 84-

916: (1) Agency shall mean each board, Commission, department, officer, division, or other

administrative office or unit of the state government authorized by law to make rules...." Neb.

Rev Stat. § 84-901 (Reissue 1981). In that regard, Neb. Rev. Stat. Section 84-914 (1) states that

an agency may admit and give probative effect to evidence which possesses probative value

commonly accepted by reasonably prudent persons in the conduct of their affairs, and must

exclude incompetent, irrelevant, immaterial and unduly repetitive evidence. Neb. Rev. Stat. § 84-

914(3) states that all evidence including records and documents in the procession of the agency

of which it desires to avail itself shall be offered and made a part of the record in the case.

Agencies must base their decisions on facts which would lead a reasonable and honest

person to the same conclusion. A decision is arbitrary when it is made in disregard of the facts or

circumstances and without some basis which would lead a reasonable person to the same

conclusion. In re Application A-16642, 236 Neb. 671, 707, 463 N.W.2d 591, 614 (1990).

Here, TransCanada failed to present sufficient probative evidence to meet its burden of

proof for any route. Instead, it made numerous assertions that lacked factual support. The

Commission was not provided with sufficient evidence supported by relevant and admissible

underlying facts needed to make its public interest determination.

10
 ii. TransCanada witnesses failed to demonstrate knowledge and
understanding of its own application

It is axiomatic that an applicant should understand and have knowledge of the application

it seeks to have approved. However, Tony Palmer led a parade of TransCanada witnesses who

repeatedly indicated they did not know the answers to basic questions about sections of the

Application, as well as repeated responses passing the buck to someone else. On more than fifty

occasions in the proceeding, TransCanada witnesses responded with some variation of “I can’t

answer that” or “I don’t know” when questioned about sections of the Application the witness

supposedly prepared. See generally testimony of TransCanada witnesses. (60 to 683). At least

four witnesses referred to Meera Kothari as the person who could answer questions about

sections of the Application, but Kothari repeatedly responded that she was not the person to

answer those questions, meaning significant details of the Application were never addressed

during the course of the hearing. (656 to 658). The following is a sampling of TransCanada

witnesses failing to provide meaningful answers to questions.

Q. And you state that you develop reclamation procedures in conjunction with University
of Nebraska scientists, correct?

A. Yes.

Q. And not one of them is here to testify in support of your application, correct?

A. Correct.

(348:15-24).

Q. Perhaps you encounter something and, before you realize what you have encountered,
the damage has been done. Then how would that be reclaimed?

A. I think that would be a question for Ms. Salisbury to talk in detail about cultural
resources management.

Q. She can speak about reclamation as to that?

11
 A. Yes, I believe so. [Ms. Salisbury did not speak to reclamation issues.]

Q. And what measures has TransCanada taken to identify traditional medicinal plants that
would be impacted by pipeline construction and operation?

A. I'm sorry, I don't know.

(385:12-25).

Q. Okay. Were state threatened and endangered species considered in this process?

A. I can't speak to that.

Q. And this is a state process; correct?

A. Yes.

Q. Isn't it a fact that there's 14 state threatened and endangered species that are being
considered in this application?

A. I can't speak to any of the environmental considerations.

(658:1-8).

Q. (BY MR. WINSTON) Who can tell us about this?

A. Dr. Schmidt.

Q. Okay. So you don't know anything about the factual validity of any of these
statements?

A. Not as it relates to the environmental components.

(676:8-25).

Q. Is there any -- anything that you're aware of in the Sections 2, 3 or 20 of the

application that deals with U.S. Army Corps of Engineers 404 permit applications?

A. No. That's not my area.

Q. Okay. And is there anything in those three sections that you're here to testify about
that you're aware of that deals with irrigation interruption due to excessive electrical
demand?

A. No.

12
 Q. And is there anything that you're aware of in those sections of the report to indicate a
methodology for determining crop yield losses?

A. No.

Q. And is there anything in those sections that you're aware of that deals with the
construction mitigation reclamation process?

A. No.

(656: 6-25).

TransCanada’s witnesses lack of knowledge and understanding of the subject matter of

the application demonstrates a failure to meet its burden of proof for any proposed pipeline route.

iii. Lack of credibility of TransCanada’s evidence

The Nebraska Supreme Court has rejected decisions based on unsubstantiated or

inaccurate testimony. For example, the case of County of Sioux v. State Board of Equalization,

185 Neb. 741, 178 N.W.2d 754 (1970), involved an appeal from the action of the State Board of

Equalization and Assessment ordering increases of assessed valuations in several counties. In

discussing the witnesses, the Court stated:

He was asked if the basic data upon which he based his judgment decisions was
available. He stated that the decisions involved a tremendous amount of material, and that
he did not have the material with him. There would be absolutely no way in this record to
determine the basis on which those decisions were made.

Id.

The Court concluded: “Clearly, none of this evidence can be used to sustain the action of

the state board. To do so would be a clear violation of the Nebraska Administrative Procedures

Act, section 84-914(3).” Id. Similarly, to the extent the Commission relied on inaccurate or

unsupported statements from TransCanada, that reliance would also violate the rules cited above.

The testimony of Dr. Jon Schmidt is especially significant because he was the witness

charged with environmental analysis regarding the proposed route and proposed route

13
alternatives, which are central aspects of this process. Schmidt’s testimony contains numerous

errors, fails to provide necessary documentation and is misleading in several aspects. Although

TransCanada complained in its reply brief that describing the inaccuracies and inconsistencies of

Schmidt’s testimony was a personal attack, there is nothing personal about this. It is merely an

accounting of the evidence. The following is a list of errors and misleading testimony from

Schmidt:

(1) When confronted with testimony from Sierra Club’s expert witness Dr. Thomas

Hayes regarding data in Table 2-1 of the Application showing more miles of erodible soils on the

Preferred route than on the Mainline Alternative, Schmidt asserted that the chart is “incomplete”.

“Incomplete” implies there were numbers missing from the document, when in fact all the cells

in the table were complete. Use of the word “incomplete” in this context is both incorrect and

misleading. (T 2013:19, T 2017:122). He also referred to errors in the Application as

“clarifications” rather than acknowledging the errors. (T2012:8-14, T2013:9-15).

(2) Schmidt’s explanation regarding the inaccurate information in Table 2-1 was that

the information was only partially downloaded. There is no documentation for this statement,

and no foundation to support it. There is likewise no documentation of the source of the

information used to “correct” the data, so neither the Commission nor the Intervenors had any

method of determining whether the new data in Table 2-1 was correct. (T2013:24-25).

(3) Schmidt stated: “Currently, it is estimated that approximately 20 miles of new

power lines associated with the project will be added within the migratory corridor [within

Nebraska]” (T2014:46-47). However, page 18 of Exhibit B attached to his testimony indicates

there will be approximately 70 miles of new transmission lines. (T20151). Schmidt later

14
contradicted himself in his cross-examination testimony, where he agreed that there would

indeed be 70 miles of transmission lines. (601:10).

(4) Schmidt claimed that “the whooping crane merely flies through Nebraska during its

migratory journey”. (2014:57). This was rebutted by the testimony of Dr. Paul Johnsgard.

(1002:12-15).

(5) During cross-examination, Schmidt asserted that the Northern High Plains Aquifer

extended all the way to Texas, which is erroneous, since it is primarily in Nebraska. (574:8-25).

(6) Schmidt asserted that the Preferred Route is the result of years of effort by many

people and agencies. (T 2022: 223, 224). Yet there were errors which were pointed out by the

Sierra Club’s witnesses that required major corrections, as noted above. This hardly sounds like

the work of an applicant which has considered all the necessary ramifications of its proposed

routes.

(7) Most significantly, Schmidt changed his testimony. In February 13, 2017,

Schmidt swore that the facts set out in sections 2.1, 3, 13, 16, 17, and 18 were true and accurate

(T 452:24-30). On July 10, 2017, Schmidt signed an 18-page sworn statement accompanied by a

300-page amendment to the Application making changes to the facts he swore were true in

February. (T2012 to 2305). The fact that a key witness changed significant aspects of the

application late in the process is a reflection on the competence of the applicant and the accuracy

of its application.

Table 2-1 (T68-71) is a crucial element of TransCanada’s Application. Table 2-1 is titled

“Comparison of the Preferred Route to the Two Proposed Alternatives” and is vital to the

Application since it provides numerical comparisons between its Preferred Route and its two

alternatives, in an apparent effort to show the alternatives were inferior to its preferred choice.

15
 However, TransCanada erred in preparing Table 2-1 since it shows aspects of the

Preferred Route have greater negative resources impacts than the Mainline Alternative.

Specifically, original Table 2-1 showed 57.4 miles of highly water erodible soils on the Preferred

Route compared to 33.0 miles on the Mainline Alternative and 47.1 miles of highly wind

erodible soils on the Preferred Route to 43.5 miles on the Mainline Alternative. (T68). After

Sierra Club’s witness Dr. Thomas Hayes pointed out these discrepancies in his testimony

(T2377:30 to 2380:4), TransCanada changed Table 2-1 to indicate there were 61.2 miles of

highly water erodible soils and 48.9 miles of highly wind erodible soils on the Mainline

Alternative. (T2030). By themselves, these changes may be minor, but the fact that TransCanada

chose to pretend they weren’t correcting errors, filed an 18-page rebuttal from Dr. Schmidt,

failed to provide foundation or documentation for the changes, and filed a 300-page amendment

to the application, raises serious questions about the veracity of either version of Table 2-1.

The fact that Schmidt testified under oath to the accuracy of the original Table 2-1 and

then later testified under oath that the changed documents were also true leads to the conclusion

that the Commission should have disregarded his testimony, including attachments, in its

entirety. “This court has held that when a party, acting as a witness, changes his testimony

without offering a reasonable explanation, the altered testimony is discredited and disregarded as

a matter of law.” Ketteler v. Daniel, 251 Neb. 287, 295 (1996), citing State v. Osborn, 241 Neb.

424 (1992).

Schmidt could be viewed as a party since he prepared sections 2.1, 3, 13, 16, 17, and 18

of the Application as well as providing the changes to the Application described herein. If he is

not viewed as a party, but rather as an expert witness, the changed testimony reflects on his

credibility as a witness. The major inconsistencies and contradictions in his testimony described

16
herein further buttress the rationale that all his testimony should be disregarded, including the

exhibits attached to it. TransCanada repeatedly bragged about how it spent many years working

on its Application, yet was unable to get key details correct in its original Application and then

botched its attempts to correct them.

3. The Commission erred in finding the KXL Mainline Alternative Route is in the
public interest.

The Commission based its finding that the Mainline Alternative is in the public interest

by way of a convoluted analysis, using circular reasoning, which concluded it had the authority

to decide what was in the public interest because it didn’t understand the meaning of MOPSA.

However, apparently the Commission decided to determine what it felt was in the public interest

with no analysis as to whether the Applicant had met its burden of proof. This analysis largely

ignored the purposes and intent of MOPSA. This is the wrong analysis.

Nebraska law holds that in the absence of anything to the contrary, statutory language is

to be given its plain and ordinary meaning. In re Application of GCC License Corp., 264 Neb.

167, 175, 647 N.W.2d 45, 52 (2002).

The plain and ordinary meaning of the term “public” means of, relating to, or affecting all

the people or the whole area of a nation or state. See Merriam-Webster Dictionary. The plain and

ordinary meaning of “public interest” means: “1. The general welfare of a populace considered

as warranting recognition and protection. 2. Something in which the public as a whole has a

stake; esp., an interest that justifies governmental regulation.” Black’s Law Dictionary (10th ed.

2014).

Based on this interpretation, the Commission was required to determine if TransCanada

had met its burden of proving that the pipeline would be in the public interest, meaning

something that advances the welfare and well-being of the general populace of Nebraska. Better

17
understanding of the meaning of public interest in this case involves examining the purpose and

intent of MOPSA.

The Commission did correctly note the interpretation of public interest by the Nebraska

Supreme Court in Wells Fargo Armored Serv. Corp of Neb. v. Bankers Dispatch Corp, 186 Neb.

261 (1971), and articulated by the United States Supreme Court: “in order to give content and

meaning to the words ‘public interest’ it is necessary to look to the purposes for which the acts

were adopted.” National Association for the Advancement of Colored People v. Federal Power

Commission, 425 US. 662, 669 (1976). However, the Commission failed to appropriately

consider either the purpose or intent of MOPSA.

a. Legislative purpose of MOPSA mandates broad consideration of protections

for Nebraska’s citizens and natural resources.

The Nebraska Legislature set forth the purposes of MOPSA in Neb. Rev. Stat. § 57-1402

(1) as follows:

(a) Ensure the welfare of Nebraskans, including protection of property rights, aesthetic
values and economic interests;

(b) Consider the lawful protection of Nebraska’s natural resources in determining the
location of routes of major oil pipelines within Nebraska;

(c) Ensure that a major oil pipeline in not constructed within Nebraska without receiving
the approval of the Commission under section 57-1408;

(d) Ensure that the location of routes for major oil pipelines is in compliance with
Nebraska law; and

(e) Ensure that a coordinated and efficient method for the authorization of such
construction is provided.”

Although the Commission recited the provisions of 57-1402 (1), it made no evaluation of

whether the purposes of the statute were being met. It also made no findings related to the

purposes of the statute.

18
 The first two provisions of § 57-1402(1) deal with substantive matters, the latter three

relate to procedure. Based on the authority cited above, TransCanada needed to provide evidence

that the application was consistent with the purposes of MOPSA in order to meet its burden of

proof that the proposed route is in the public interest. This they did not do.

TransCanada offered no evidence to show that its proposed pipeline would protect the

property rights of Nebraskans. It therefore failed to meet its burden pursuant to Neb. Rev. Stat. §

57-1402(1)(a). There could hardly be a more egregious violation of property rights than a foreign

for-profit corporation seeking eminent domain to forcibly acquire perpetual easements from

Nebraska farm families for a pipeline that it has no intention to ever remove from the ground.

TransCanada also offered no evidence to demonstrate that it would protect aesthetic

values as set forth in the purposes of the statute. A pipeline that rips up a fifty-foot wide swath of

the earth for 275 miles through the heart of Nebraska, forever destroys native prairies, and leaves

grass and croplands with years to recover, clearly violates fundamental aesthetic values.

b. Legislative intent provides additional basis for MOPSA public interest

analysis.

In order to determine public interest pursuant to MOPSA, the legislative intent and

history are also instructive. Reviewing the legislative findings of Neb. Rev. Stat.§ 57-1403 can

lead to only one conclusion: the predominant concern of the Legislature in enacting MOPSA was

protecting the land and natural resources of the state. Water is set out as a matter of particular

importance in the siting process for many reasons, including its increasing value in the future and

its vital importance to Nebraska’s agricultural economy. Three of the four findings deal with

these issues and yet the Commission made no reference to them, nor to any evidence in relation

to them.

19
 The legislative findings state: “(1) Nebraska has the authority as a sovereign state to

protect its land and natural resources for economic and aesthetic purposes for the benefit of its

residents and future generations by regulation through approval or disapproval of major oil

pipeline siting and the location of routes, so long as it does not regulate in the area of safety as to

the design, installation, inspection, emergency plans and procedures, testing, construction,

extension, operation, replacement, and maintenance of major oil pipelines and pipeline facilities;

(2) The water and other natural resources in Nebraska will become increasingly valuable, both

economically and strategically, as the demand for agricultural products for both food and fuel

increases; (3) The construction of major oil pipelines in Nebraska is in the public interest of

Nebraska and the nation to meet the increasing need for energy; and (4) The irrigation economy

of Nebraska which relies on quality water adds over one billion dollars annually to net farm

income and increases the gross state product by three billion dollars annually.” Neb. Rev. Stat. §

57-1403.

The overwhelming majority of the testimony and comments in the legislative history

were about protection of Nebraska’s natural resources. Water was cited over and over again by

witnesses who testified in support of the need to establish a siting process. See Legislative

history, LB 1, November 7, 2011. Depth to groundwater is set out as a factor in the

Commission’s regulations. Title 291, Chapter 9, 023.07B3.

The Commission erroneously cited only Neb. Rev. Stat. § 57-1403(3) as a basis for

approving the Mainline Alternative Route. This is improper use of legislative findings, for

several reasons. First, this finding is a general statement, not directly related to approval of the

route sought through this application. Second, the Commission failed to consider the other three

elements of the findings in Neb. Rev. Stat. § 57-1403, as set forth above. Conversely, if one

20
construes the language of 57-1403(3) as a basis for approving a specific project, that would

constitute a violation of the separation of powers doctrine as stated by Landowners.

The lack of evidence concerning aquifers is especially significant. There is nothing in the

Application regarding aquifers and no witness testified about the relationship between the

proposed route and aquifers. Since MOPSA has specific findings regarding the value of water

(Neb. Rev. Stat. § 57-1403(2)) and its benefit to the agricultural economy in Nebraska (Neb.

Rev. Stat. section 57-1403(4)), this omission provides further indication that TransCanada failed

to meet its burden of proof.

MOPSA itself has seven references to “natural resources” in its text, including three

references in a single subdivision. Therefore, the Commission erred when it failed to highlight

the importance of natural resources in its consideration of the public interest and evaluation of

the evidence. In making its determination, the Commission appeared to draw the conclusion that

economic factors outweighed other considerations, which is contrary to both the intent and

purposes of MOPSA, as well as the overwhelming majority of the legislative history.

The Commission stated that its conclusions were guided by Neb. Rev. Stat. § 57-1407(4)

which states as follows:

The pipeline carrier shall have the burden to establish that the proposed route would serve
the public interest. In determining whether the pipeline has met its burden, the
Commission must evaluate:

(a) Whether the pipeline carrier has demonstrated compliance with all applicable state
statutes, rules, and regulations and local ordinances;

(b) Evidence of the impact due to intrusion upon natural resources and not due to safety
of the proposed route of the major oil pipeline to the natural resources of Nebraska,
including evidence regarding the irreversible and irretrievable commitments of land areas
and connected natural resources and the depletion of beneficial uses of the natural
resources;

21
 (c) Evidence of methods to minimize or mitigate the potential impacts of the major oil
pipeline to natural resources;

(d) Evidence regarding the economic and social impacts of the major oil pipeline;

(e) Whether any other utility corridor exists that could feasibly and beneficially be used
for the route of the major oil pipeline;

(f) The impact of the major oil pipeline on the orderly development of the area around the
proposed route of the major oil pipeline;

(g) The reports of the agencies filed pursuant to subsection (3) of this section; and

(h) The views of the governing bodies of the counties and municipalities in the area
around the proposed route of the major oil pipeline.

The Commission discussed each of these provisions but made no findings that

TransCanada had met its burden of proof for any of them. It is significant that the Commission’s

order offers very little attention to the Mainline Alternative in its analysis, so that its conclusion

supporting the Mainline Alternative is a surprise ending. However, this is not a novel or a movie;

it is an administrative proceeding which is supposed to derive conclusions based on law and fact.

Given the fact that TransCanada did not support the Mainline Alternative, there was almost no

evidence supporting any of the statutory categories concerning the Mainline Alternative. Since

there was significant evidence in opposition from intervenors, it is impossible to conclude that

TransCanada met its burden of proof that the public interest is served by the approval of the

Mainline Alternative. Therefore, the Commission erred when it found that the Mainline

Alternative pipeline route was in the public interest.

We will briefly discuss the factors of § 57-1407(4) set out above with more detailed

discussion of the following components: irreversible and irretrievable commitments of land areas

and natural resources, social impacts and other utility corridors.

22
 c. TransCanada’s proposed routes pose potential irreversible impacts to
Nebraska’s natural resources.

Neb. Rev. Stat. 57-1407(4)(b) provides that “evidence regarding the irreversible and

irretrievable commitments of land areas and connected natural resources” is to be evaluated. See

also Commission Rules, chapter 9, Rule 023.07B. Merriam-Webster Dictionary defines

“irreversible” as “not reversible” and Dictionary.com defines “irretrievable” as “not capable of

being retrieved, irrecoverable, irreparable.”

As previously described, TransCanada changed its evidence regarding the comparison of

routes during the proceeding. Because of serious questions about the credibility of whether to

rely on the numbers in Table 2-1 or amended Table 2-1, it is unclear the exact dimensions of the

impacts on natural resources by TransCanada’s proposed routes. In addition, since TransCanada

was not seeking approval of the Mainline Alternative Route, there is an absence of evidence

evaluating the impacts on natural resources, including irreversible and irretrievable

commitments.

However, regardless of the route, it is irrefutable that a 36-inch tar sands pipeline such as

KXL would cause “irreversible and irretrievable commitment of land areas and connected

natural resources” in several ways, including: (a) cutting an 80-110 foot wide construction right-

of-way along the entire pipeline route, through sensitive areas including native grasslands; (b)

creating and maintaining a permanent 50 foot pipeline wide right of way, in which crews will

prevent anything from growing back; (c) converting high-quality forested wetlands to scrub-

shrub wetlands; and (d) heating the soil several feet around the pipeline.

Landowners presented evidence that they will be permanently prevented from using the

land in the pipeline right of way in many ways, including a negative impact on their ability to

grow crops, lack of restoration of native prairie grasses, and dangers of increased erosion. Art

23
Tanderup testified that because he engages no-till farming on the sandy soil, the roots of his

crops would be closer to the pipe and the heat from the pipeline would make it difficult for crops

to grow. (738:18-25, 739:1-23). He is particularly concerned about the impact of the heat on the

Ponca corn which has only recently been re-established in Nebraska and is viewed by the Ponca

Indians and many others as sacred. (756:21-25, 757:1-3). Diana Steskal had concerns about the

pipeline because she has sandy, porous soil on her property. (870:23-25). Rick Hammond

testified that corn production would be impacted. “And the productivity will definitely be

reduced.” (950:22-23)

Robert Allpress (whose property would still be crossed by the Mainline Alternative)

testified it will pass through uplands with a shale/clay base over impermeable hard shale, and

such soil has a high chance of sliding when saturated. (884:13-17). As Allpress explained,

“Within a mile of the proposed route, within – as close as 200 yards we have had significant hill

slides of up to an acre, and maybe a -- 500 cubic yards of soil has moved as much as 50 yards

down the hills.” (884:19-25). A hill slide could threaten natural plants and animals in the area

and it would take years for the area to recover. (902:16-22).

The landowners who testified uniformly stated that the pipeline would have irretrievable

or irreparable impacts. Allpress testified that he believed the pipeline would represent irreparable

damage to natural resources. (884:11-25). Robert Krutz responded to a question about irreparable

harm to natural resources as follows: “Yes. Because it's just like getting a cut on your arm or so.

You know, sometimes it can heal naturally. And then sometimes you have a scar. And with that

construction work, it may just end up leaving a scar of what I call no vegetation on the soil, just

sand and whatnot be left there that vegetation would have a hard, hard time growing back on

dryland – ground.” (929:4-13).

24
 The permanence of these impacts is particularly significant since TransCanada witnesses

testified they have no plans to remove the pipeline after its useful life is over. Installing a

pipeline of this size, length, and magnitude in Nebraska soil represents an irreversible

commitment of land areas and would impact native grasses and wildlife as well as impacting

agricultural operations.

There was also expert testimony raising concerns about irreversible impacts. Dr. Thomas

Hayes testified that locating a pipeline in areas with porous, sandy soils increased the likelihood

of irreversible, irretrievable and irreparable impacts to natural resources, (T2388:10-16). Use of

heavy equipment in the construction process would cause compaction, which would significantly

decrease aeration, percolation and storage of water, drainage, root biomass, and plant

productivity, which in turn significantly reduce agricultural productivity. (T2381:20-23).

Because of this, “the pipeline may be an irreversible commitment of land and natural resources.”

(T 2383: 2-3).

Joseph Trungale, a specialist in hydrology with a focus on in-stream flows, testified that

“simply placing the pipeline with a shallow aquifer could alter flow paths which could result in

irreversible and irretrievable impacts on local springs.” (T2399:25-26). Moreover, the pipeline

trench may act as a conduit for groundwater migration and may act as a barrier to near-surface

flow in areas with shallow ground water. (T2399:16-17). “This could impact spring flows and

the fish and wildlife species that depend on the springs.” (T2399:18-19).

One can hardly consider a more “irreversible and irretrievable impact” than one which

creates the likelihood of threatening the continued existence of the endangered whooping crane.

Proposed transmission lines for pumping stations in areas where there have been documented

increased feeding and roosting activities by whooping cranes would create an “irreversible and

25
irretrievable impact”. Dr. Paul Johnsgard, one of the world’s experts on whooping cranes,

testified that he knows their migration patterns, that transmission lines are the major cause of

whooping crane mortality. (T2406 to T2408). Dr. Johnsgard testified that the proposed route

presents a threat to the continued existence of the endangered whooping crane. This is due to

proposed transmission lines in areas where telemetry data showed that whooping cranes rest and

feed, the locations where they are most vulnerable. (1000:16-25, 1001:1-7, 18-25) None of this

evidence was rebutted. TransCanada’s witness, Salisbury, admitted that the whooping crane was

culturally important to Native American tribes. (1135: 2-5). The Commission failed to consider

factors that have real potential to lead to the demise of the whooping crane, a cherished and

iconic species.

TransCanada relied on the U.S. Fish and Wildlife Service (“USFWS”) Biological

Opinion related to the whooping cranes. (T2033 to T2305) The Commission likewise relied on

that opinion. However, the Biological Opinion is suspect because it relies on data that is at least

8 years old. New telemetry data has been collected which provides more current and more

accurate information. (1041:10-16) Federal law appears to mandate a new consultation under

Section 7 of the Endangered Species Act, 16 U.S.C. § 1531 et seq., when new information

reveals effects of the action that may affect listed species or critical habitat in a manner or to an

extent not previously considered. 50 C.F.R. § 402.16. Updated telemetry data would be “new

information” which would require a new consultation, i.e., a new biological opinion. This leads

to the conclusion that it was error for the Commission to rely on an out of date opinion that does

not comply with the requirements of federal law.

Although Dr. Johnsgard conceded that the risk to any one whooping crane is relatively

small, the reality is that even a relatively small threat to an endangered species is still a threat.

26
The whooping crane was on the brink of extinction just a few years ago and major investments

of time, money and other resources were necessary to bring it back to its current population, but

it is still very rare. (T2410).

Reduced impacts to threatened and endangered species was touted as a reason for the

Commission’s decision to approve the Mainline Alternative Route. However, the Mainline

Alternative Route still crosses more than 160 miles of the whooping crane migration path.

(T6195). The same risk factors still exist; including transmission lines for pumping stations in

areas where telemetry data indicates whooping cranes take off and land, the point where they are

most vulnerable to the greatest source of crane mortality, collision with power lines.

TransCanada failed to present any evidence that risks to cranes would be reduced or eliminated

by the Mainline Alternative Route.

The Commission failed to appropriately consider “irreversible and irretrievable” impacts

on land areas and connected natural resources. Its approval of the Mainline Alternative was not

supported by the evidence. Since there is no finding that TransCanada met its burden of proof

with regard to protection of natural resources, the Commission’s finding that the Mainline

Alterative Route is the public interest is in error.

d. The Commission failed to consider appropriate economic and social impacts.

The Commission placed a great deal of reliance on economic impacts in its decision to

approve the Mainline Alternative. It relied primarily on the testimony of TransCanada’s

economist Dr. Goss and the “economic intervenors.” As previously noted, Landowners’ cross-

examination of Dr. Goss revealed serious questions about his methodology and findings that go

to the heart of his credibility as an expert. (311-314). In addition, Landowners’ economist Dr.

Michael O’Hara rebutted the testimony of Dr. Goss. (LO189). Even giving TransCanada and

27
“economic intervenors” witnesses the benefit of the doubt, any positive economic impact is for a

small number of people for a short period of time and will be far outweighed by negative impacts

over the long haul. There was no consideration of the costs to maintain and eventually remove

the pipeline long after the one-time payment to landowners and any tax revenues have

disappeared. The bottom line is there was no consideration of the interest of the people of the

state of Nebraska, which constitutes the public interest.

TransCanada’s failed to provide any evidence of the economic impacts to natural

resources, despite the fact there is explicit reference to economic impacts to natural resources in

three of the four subdivisions of Neb. Rev. Stat. § 57-1403. (330:19-22). Although the

Commission recognized the benefit of tourism related to the Sandhill cranes and endangered

whooping cranes (T6182), it failed to factor in the annual, long-term benefit of such tourism and

the potential damage a pipeline and its infrastructure could wreak on this industry.

The Commission also erred in its handling of social issues. While the Sierra Club

strongly supports environmental justice and is pleased that the Commission considered the

potential impacts to specific Native American tribes, the social impacts of a pipeline route like

this extend far beyond the parameters of the two tribes granted intervenor status. The pipeline

has had a huge impact on many aspects of society in Nebraska. Many people along the pipeline

route talk about others in their community who no longer speak to them, and of frayed social

relationships among friends and neighbors. There is also the emotional strain of years spent

fighting a foreign pipeline company out of a sense of loyalty to country, to their pioneer heritage,

and to their children and future generations. This strain takes its toll on individuals and is

manifested in the community in which they live. The importance of this issue to a much wider

spectrum of society is undeniable; thousands of people have testified in opposition to this

28
proposed pipeline at hearings before the State Department, the Legislature, the Nebraska

Department of Environmental Quality, and in this process. A special session of the Legislature

was called to address siting and routing of major oil pipelines, which led to the legislation which

led to the creation of MOPSA. Rather than acknowledge and address the interests of the public at

large, the Commission chose a narrow, parochial view. The failure to permit evidence of wider

social impacts by the proposed route and the failure to recognize these social impacts resulted in

a lack of evidence supporting a finding that this section fulfills the public interest.

e. The Commission’s conclusions about alternative utility corridors is not

supported by the evidence.

Neb. Rev. Stat. § 57-1407(4) requires consideration of “[w]hether any other utility

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

pipeline.” This is the primary section which the Commission used to base its decision to approve

the Mainline Alternative Route. (T6193 to T 6195). As previously noted, TransCanada’s

application and evidence did not support the Mainline Alternative Route. There was no evidence

submitted supporting approval of the Mainline Alternative. Both Dr. Hayes and Joseph Trungale

testified that it was their opinion that a route that followed the Keystone I route would

significantly reduce the negative environmental impacts of the pipeline route. (Hayes T 2388:29,

2389:1-8; Trungale T2400:19-29, 2401:1-4). TransCanada chose not to submit any evidence

regarding the Keystone I utility corridor although they could have done so. Since the evidence

TransCanada presented did not support the Mainline Alternative, they failed to meet their burden

of proof to demonstrate that route is in the public interest.

29
4. The Commission failed to provide the Sierra Club with fundamental due process rights
required under the Constitutions of the United States and the State of Nebraska.

The Commission failed to provide intervenors, including the Sierra Club, with

fundamental due process rights required under the U.S. and Nebraska Constitutions. Due process

of law is a core principle of our legal system, and its historical roots in the Magna Carta have

been recognized by the U.S. Supreme Court:

“[t]he Due Process Clause has its origin in the Magna Carta. As originally drafted, the
Great Charter provided that “[n]o freeman shall be taken, or imprisoned, or be disseised
of his freehold, or liberties, or free customs, or be outlawed, or exiled, or any otherwise
destroyed; nor will we not pass upon him, nor condemn him, but by lawful judgment of
his peers, or by the law of the land.”

Kerry v. Din, 135 S. Ct. 2128, 2132 (2015) (quoting Magna Carta, ch. 29, in 1 E. Coke, The

Second Part of the Institutes of the Laws of England 45 (1797)). Early decisions by the Supreme

Court explored the meaning of due process – procedural and substantive. “The principles, then,

upon which the process is based, are to determine whether it is ‘due process’ or not, and not any

considerations of mere form. Administrative and remedial process may be changed from time to

time, but only with due regard to the landmarks established for the protection of the citizen.”

Hurtado v. California, 110 U.S. 516, 527 (1884).

Protection of citizens is crucial, as noted by the Supreme Court in Hurtado. The manner

in which the Commission’s hearing on TransCanada’s application for approval of its proposed

route for KXL through Nebraska was conducted failed to protect the citizens of this state. The

Commission’s conduct of the hearing resulted in a virtually predetermined failure to provide

intervenors such as the Sierra Club with due process required by both the U.S. and Nebraska

Constitutions.

30
 a. Due Process Standards.

Courts have viewed the due process clause as embracing those fundamental rights that

are “implicit in the concept of ordered liberty.” Palko v. State of Connecticut, 302 U.S. 319, 324

(1937). The due process requirements of Nebraska’s Constitution are similar to those in the U.S.

Constitution. The Fifth Amendment to the U.S. Constitution provides that “[n]o person shall ...

be deprived of life, liberty, or property, without due process of law ...” The Fourteenth

Amendment to the U.S. Constitution explicitly imposes this requirement on states. While

conceptually distinct, the categories of substantive and procedural due process are, in practice,

closely intertwined. Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 559 (1949) (Rutledge,

J., dissenting) (“Suffice it to say that actually in many situations procedure and substance are so

interwoven that rational separation becomes well-nigh impossible.”); Walter Wheeler Cook,

“Substance” and “Procedure” in the Conflict of Laws, 42 YALE L.J. 333, 335-36 (1933)

(“[O]ur problem turns out to be not to discover the location of a pre-existing ‘line’ [between

substance and procedure] but to decide where to draw a line …”).

In practice, an examination of due process rights involves a balancing act, where courts

review: (1) “the private interest that will be affected by the official action”; (2) “the risk of an

erroneous deprivation of such interest through the procedures used, and the probable value, if

any, of additional or substitute procedural safeguards”; and (3) “the Government’s interest,

including the function involved and the fiscal and administrative burdens that the additional or

substitute procedural requirement would entail.” Mathews v. Eldridge, 424 U.S. 319, 335 (1976);

see also Hamdi v. Rumsfeld, 542 U.S. 507, 528-29 (2004) (“The ordinary mechanism that we use

… for determining the procedures that are necessary to ensure that a citizen is not ‘deprived of

31
life, liberty, or property, without due process of law,’ is the test that we articulated in Mathews v.

Eldridge.”).

As an initial matter, the Commission has clearly recognized Sierra Club’s interests

affected by the Commission’s decision. While the property interests of the landowners in this

case are undisputed, the Sierra Club has a distinct private interest affected by the Commission’s

decision. In its order granting intervenor status to the Sierra Club, the Commission designating

the Sierra Club as a “Natural Resources Petitioner,” conceded that MOPSA required

consideration of the impact of the “intrusion of the pipeline upon natural resources of Nebraska”,

along with “evidence regarding the irreversible and irretrievable commitments of land areas and

connected natural resources and the depletion of beneficial uses of the natural resources”, and

that the Sierra Club, as a “Natural Resources Petitioner” had a cognizable interest (T706).

However, in this case, the core standards set forth in Mathews v. Eldridge warrant

reversal of the Commission’s order approving the alternative route for KXL.

b. Effect of the proposed KXL pipeline on Nebraska’s natural resources

implicates the public trust doctrine.

The conduct of the Commission in these proceedings, and the standard it must adhere to

in its decision-making process is a significant thread in the overall question of whether due

process was afforded the intervenors. Because Nebraska has adopted a public trust doctrine

approach to protection of water resources, the Commission must adhere to a higher, fiduciary

standard when making decisions that affect the State’s water resources. It failed to do so. The

effect of the proposed pipeline on Nebraska’s natural resources cannot be understated given its

route through the State’s water system. This Court has recognized the importance of water as a

natural want “absolutely necessary to human existence.” Nebraska Mid-State Reclamation Dist.

v. Hall County, 152 Neb. 410, 436 (1950). This reflects the provisions of Nebraska’s

32
Constitution, which states that “[t]he necessity of water for domestic use and for irrigation

purposes in the State of Nebraska is hereby declared to be a natural want.” Neb. Const. Art. 15, §

4. Furthermore, “[t]he use of the water of every natural stream within the State of Nebraska is

hereby dedicated to the people of the state for beneficial purposes …” Neb. Const. Art. 15, § 5.

This Constitutional emphasis on the need for protection of water for the “people of the

state” is also reflected in the provisions of the Nebraska Ground Water Management and

Protection Act, Neb. Rev. St. § 46-701, et seq. In declaring its intent, the Act explicitly states that

“[t]he Legislature finds that ownership of water is held by the state for the benefit of its cit izens,

that ground water is one of the most valuable natural resources in the state, and that an adequate

supply of ground water is essential to the general welfare of the citizens of this state and to the

present and future development of agriculture in the state.” Neb. Rev. St. § 46-702.

By its Constitution and the provisions of the Ground Water Management and Protection

Act, Nebraska has embraced the principles of the public trust doctrine with respect to its water

resources. The public trust doctrine holds that certain natural resources belong to all and cannot

be privately owned or controlled because of their intrinsic value to each individual and society.

“[T]he Public Trust Doctrine is a critically important reminder of the duty of government to

preserve wildlife, to protect the public’s right to enjoy and benefit from a diverse ecosystem, and

the duty of courts to carefully scrutinize any attempts to abandon the public trust in those

resources.” Center for Biological Diversity, Inc. v. FPL Group, Inc., 166 Cal. App. 4th 1349

(2008) (quoting Carstens, The Public Trust Doctrine: Could a Public Trust Declaration for

Wildlife Be Next? (2006) vol. 2006, No. 9, Cal. Envtl. L. Rptr. 1).

This is an important point because it means that the Commission is held to a higher

standard with respect to its decision-making processes under the principles of the public trust

33
doctrine. Public governmental bodies such as the Commission are, in effect, held to be trustees,

with a fiduciary duty owed to the public to safeguard those resources. That fiduciary duty means

that the Commission must, first and foremost, review each and every decision it makes with a

view towards protection of water resources.

This fiduciary duty on the part of the Commission goes directly to the second prong of

the due process analysis set forth in Matthews, that the Court examine “the risk of an erroneous

deprivation of such interest through the procedures used, and the probable value, if any, of

additional or substitute procedural safeguards”. Matthews v. Eldridge, supra. The Commission’s

proceedings, and how they were conducted, constituted a denial of due process rights to the

Sierra Club, as well as to other intervenors, and furthermore constituted a violation of the

Commission’s own fiduciary duties under the public trust doctrine.

c. Procedural limitations placed on participation in proceedings by

Commission violated due process rights.

The record of the Commission’s proceedings contains numerous examples of failures to

protect the citizens of Nebraska by ensuring due process rights were meaningfully honored. First,

the evidentiary hearing before the Commission was held on an accelerated time table, leaving

intervening parties such as the Sierra Club with inadequate time to conduct comprehensive

discovery that would have permitted a meaningful exploration of the issues involved in the

decision to permit KXL to slice through Nebraska. Second, limitations placed on intervenors

with respect to both the number of prospective witnesses and the subject matters such witnesses

could testify about (T699-708) resulted in process that failed the citizens of Nebraska by

precluding a full and fair hearing of critical issues concerning risks posed by KXL, and whether

permitting construction of the pipeline through Nebraska is in the public interest of the citizens

of the State.

34
 In its Order dated March 31, 2017, the Commission granted its request for formal

intervention status, but with significant limitations that unlawfully impinged upon its due process

rights. (T699-708). The Commission ruled that Sierra Club’s formal intervenor status would be

restricted to examining “concerns for the environment and natural resources of Nebraska as

potentially impacted by the Keystone XL Pipeline route.” (T706). The Order also required that

Sierra Club be aggregated with thirty-nine other formal intervenors, described by the

Commission as “Natural Resource Petitioners”, and that all thirty-nine intervenors would jointly

be permitted to present testimony of only one witness at the public hearing, submit one joint

brief, and be restricted with respect to cross-examination of TransCanada’s witnesses at the

hearing. (T706). The issues surrounding siting of the proposed KXL pipeline are complex,

involving significant environmental, engineering, and other scientific questions. The limitations

placed on citizen and intervenor participation in these proceedings by the Commission precluded

meaningful participation – thereby violating the due process rights Sierra Club and other

intervenors are entitled to under law. The Commission, in placing these limitations, also violated

its fiduciary duties under the public trust doctrine by failing to allow a comprehensive and

meaningful examination of KXL’s effect on Nebraska’s water resources.

Procedural due process limits the ability of the government to deprive people of protected

property interests and requires that “parties deprived of such interests be provided adequate

notice and an opportunity to be heard.” Hass v. Neth, 265 Neb. 321, 326, 657 N.W.2d 11, 19

(2003). The “fundamental requirement of due process is the opportunity to be heard at a

meaningful time and in a meaningful manner.” Id., citing Marshall v. Wimes, 261 Neb. 846, 851,

626 N.W.2d 229, 235 (2001) and Brock v. Roadway Express, Inc., 481 U.S. 272 (1987); also see

35
Davis v. Scherer, 468 U.S. 183, 202 (1984). Describing a “proper and sufficient hearing” in the

administrative context, the Nebraska Supreme Court notes that:

“The right to a full hearing includes a reasonable opportunity to know the claims of the
opposing party and to meet them in order that an administrative hearing be fair, there
must be adequate notice of the issues, then the issues must be clearly defined.”

Block v, Lincoln Telephone and Telegraph Company, 170 Neb. 531, 540, 103 N.W.2d 312, 317

(1960).

d. The Commission’s procedural orders were contrary to its own rules, thereby
constituting a denial of due process rights.

The intervenors’ due process rights were denied because the Commission failed to follow

its own rules of procedure in setting forth the process by which these proceedings were

conducted. In issuing its March 31, 2017 Order, the Commission made a significant error when

imposing limitations on Sierra Club’s status as a formal intervenor. The Nebraska Supreme

Court explicitly states that the Commission’s underlying authority lies in Neb. Rev. Stat. § 75-

110, which requires that the Commission promulgate rules of procedure, and instructs 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”. Chase 3000, Inc. v. Public

Service Commission, 273 Neb. 133, 278 N.W.2d 560 (Neb. 2007) and In re Application No. C-

1889 of GCC License Corporation, 264 Neb. 167, 647 N.W.2d 45 (Neb. 2002). Instead of

properly relying on its own rule, 291 Neb. Admin. Code 1 § 015.01, the Commission improperly

defaulted to Nebraska Administrative Procedures Act (“APA”), Neb. Rev. Stat. § 84-312.02, et

seq., in setting the ground rules for these proceedings.

The underlying basis for the Commission’s Order in these proceedings is thus contrary to

directions given by the Nebraska Supreme Court, which unequivocally states that the

36
Commission is bound by the rules set forth in Title 291, Chapter 1, § 015.01 of the Nebraska

Administrative Code (“Commission Rules”). The Court stated:

“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.”

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

issue is significant is because Section 015.01C of the Commission’s Rules sets forth the way a

formal intervenor may participate in proceedings before the Commission:

“[a] formal intervenor shall be entitled to participate in the proceeding to the extent of
his/her express interests in the matter. Such participation shall include, without limitation,
presentation of evidence and argument, cross-examination of witnesses and submission
of rebuttal evidence.”

291 Neb. Admin. Code 1 § 015.01C (emphasis added). Interestingly, the Commission’s own

rules reinforce these precepts – specifically as to MOPSA – by stating that “filing petitions for

intervention…and the conduct of the hearing shall be governed by the Rules of Commission

Procedure.” 291 Neb. Admin. Code 9, § 023.06 (emphasis added). Further reinforcing this

principle, the Nebraska Supreme Court explicitly ruled that an agency must follow its own rules:

“[P]rocedural 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.”

Douglas Cty. Welfare Admin. v. Parks, 284 N.W.2d 10, 11-12, 204 Neb. 570, 572 (1979)

(emphasis added).

37
 e. The Commission’s procedural rules denied Sierra Club and other
intervenors a meaningful right to be heard.

While the portion of the APA that the Commission improperly relied on to restrict

intervenors’ participation in the proceedings does allow agencies to “impose conditions upon the

intervenor’s participation in the proceedings,” such as “[l]imiting the intervenor’s participation to

designated issues,” or “[r]equiring two or more intervenors to combine their presentation of

evidence and argument”, Neb. Rev. Stat. § 84-912.02, the Commission’s own rules require that

formal intervenors be afforded procedural due process rights to engage in more expansive

meaningful participation. Neb. Rev. Stat. § 84-916 states that the intent of the APA is to establish

“minimum administrative procedure for all agencies.” Appropriately rising above the bare

minimum, the Commission previously and explicitly adopted its own rules that mandate broader

and more meaningful procedural rights for formal intervenors. Under law, the Commission must

follow its own rules. In restricting Sierra Club’s ability to meaningfully participate in the

proceedings, the Commission failed to follow its own rules. This is a per se violation of the

intervenors’ due process rights.

In its Petition, Sierra Club demonstrated its legal rights and privileges were substantially

affected by TransCanada’s application and that it has a direct and legal interest that could not

adequately be represented by another party. The routing decision to be made by the Commission

is a matter of significant public concern, which was recognized by the Nebraska Supreme Court

in Thompson v. Heineman, 289 Neb. 798, 815, 857 N.W.2d 731, 747 (2015). Sierra Club sought

to formally intervene in these proceedings not only to protect their organizational interests, but to

advocate for its stakeholders whose interests would be impaired by construction of the KXL

pipeline.

38
 The Commission’s March 31, 2017 Order states that limitations on the participation of

formal intervenors are to “[balance] the requirement to adhere to the strict and aggressive

timeline imposed by the Siting Act, with the need to ensure creation [of] a complete and robust

record … that includes the opportunity for all interested parties to be fully and fairly heard.”

(T702). Unfortunately, the intervenor limitations and the procedural schedule adopted by the

Commission did completely the opposite. A full and fair hearing did not occur. MOPSA requires

the Commission to issue an order no later than eight months after issuance of a Presidential

Permit to TransCanada for its KXL project. Neb. Rev. Stat. § 57-1408(2). While the Sierra Club

recognizes the need for efficiency and the arbitrary deadline imposed on the Commission by

MOPSA, those concerns do not justify the Commission’s failure to provide for procedural due

process rights guaranteed to formal intervenors under its own rules, and its failure to permit a full

and fair hearing of all the issues.

For example, the procedural schedule adopted by the Commission in its April 5, 2017

Order (T742-758) required intervenors to serve discovery requests on TransCanada by May 5,

2017 (T750), allowing only a ten-day response period, followed by a requirement that motions to

compel discovery be filed by May 19, 2017 (T750). In a complex case involving significant

issues and substantial documentation, such an accelerated schedule for not only conducting, but

completing discovery is nothing less than absurd and denies the intervenors the opportunity to

engage in meaningful discovery to ensure that all issues are fully vetted and understood. This

absurdity is further compounded by the Commission’s requirement in its April 5, 2017 Order

that the intervenors file their formal written testimony, witness lists, workpapers, and exhibits by

May 26, 2017 (T750). The Commission is required to determine, among other things, whether

TransCanada’s proposed KXL project is in the public interest of the citizens of Nebraska. The

39
contested administrative process is supposed to provide a mechanism for parties to fully explore

all issues in a meaningful way. That is the essence of due process. In this case – thanks to the

unreasonable and unlawful limitations placed on intervenors, combined with the unrealistic

scheduling order – there was no opportunity for a full and fair hearing of the issues in any

meaningful way. Due process was denied.

The Sierra Club raised these issues in a Motion to Reconsider the Commission’s March

31, 2017 Order (T767-770), specifically noting deficiencies with that Order. However, in its

April 13, 2017 Order, the Commission merely repeated its desire to conduct an “orderly and

prompt proceeding” and the need to meet the “aggressive timeline imposed by the Siting Act”

(T814-821, at 816). These formulaic recitals are inadequate. Sierra Club’s due process rights to

participate in this matter in a meaningful manner, and to be fully and fairly heard, which includes

the ability to present their evidence and arguments, were denied. The Fourteenth Amendment to

the U.S. Constitution and Neb. Const. Art. I, § 3, prohibit the State from depriving any person of

rights without due process of law. Sierra Club’s rights to procedural due process are core

constitutional rights that trump MOPSA. The Nebraska Supreme Court held that “the central

meaning of procedural due process [is] clear: ‘Parties whose rights are to be affected are entitled

to be heard…’” State v. Patricia B. (In re Levanta S.), 295 Neb. 151, 165, 887 N.W.2d 502, 512

(2016). The restrictions on Sierra Club’s ability to present witnesses, to engage in full and

meaningful cross-examination of witnesses, and the imposition of a patently absurd scheduling

order that eviscerated the ability of intervenors to engage in meaningful discovery constituted a

clear denial of due process rights afforded by the both the U.S. and Nebraska Constitutions. On

this basis alone, the Commission’s Order should be reversed.

40
 Conclusion
This Court should reverse the Commission’s Order approving the Mainline Alternative

Route for TransCanada’s proposed KXL pipeline project. The Commission’s Order provides

ample grounds for reversal, including the fact there was no finding TransCanada had met its

burden of proof. There was no witness who provided evidence supporting the Mainline

Alterative. Since TransCanada submitted evidence opposing the Mainline Alternative, it is

impossible to conclude that it met its burden of proving the Mainline Alternative was in the

public interest. In fact, TransCanada failed to meet its burden of proof for any proposed route

since there was a lack of probative supporting evidence on key issues, including the irreversible

and irretrievable impacts on Nebraska’s land areas and natural resources. social and economic

impacts, and the availability of alternative utility corridors.

Critically, the Commission’s issued its Order approving the KXL Mainline Alternative

Route without affording the Sierra Club and intervenors with fundamental due process rights

required by both the U.S. and Nebraska Constitutions. The Commission’s procedural orders

precluded meaningful participation on the part of intervenors and placed undue restrictions on

the ability to fully and meaningfully explore the impacts of a highly-significant private

infrastructure project on the citizens of Nebraska. In doing so, the Commission violated the

fiduciary duties owed to citizens of Nebraska under the public trust doctrine.

Respectfully submitted,
/s/ Kenneth C. Winston
Nebraska Bar No. 16961
1327 H St., Suite 300
Lincoln, NE 68508
(402) 212-3737
kwinston@inebraska.com
Attorney for Sierra Club, Nebraska
Chapter

41
 S-17-1331

NEBRASKA SUPREME COURT

In the Matter of the Application

of
TransCanada Keystone Pipeline, LP
For the Keystone XL Pipeline Project, Pursuant to MOPSA

Affidavit of Service

On May 16, 2018, Kenneth C. Winston served (1) copy of Appellee’s Brief by electronic

filing on the Clerk of the Supreme Court.

On May 16, 2018, Dara M. Illowsky, on behalf of Kenneth C. Winston, also served a

copy of Appellee’s Brief to all parties of record via e-mail and via U.S. mail to those without

email addresses of record as follows:

James G Powers First National Tower Ste Omaha NE 68102 jpowers@mcgrathnorth.com

3700 1601 Dodge Street

Patrick D Pepper First National Tower Ste Omaha NE 68102 ppepper@mcgrathnorth.com

3700 1601 Dodge Street

Jayne Antony 16064 Sprint St Omaha NE 68130-2030

Jennifer S Baker 1900 Plaza Drive Louisville CO 80027 jbaker@ndnlaw.com

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 Avenue, Washington DC 20016 eboardman@odonoghuelaw.com

 NW

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

NW

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

Dara Illowsky 1650 38th Street Suite Boulder CO 80301 dara.illowsky@sierraclub.org

102w

Kimberly E Craven 33 King Canyon Road Chadron NE 69337 Kimecraven@gmail.com

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

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 Ste 475 Kansas City KS 66101 rjh@blake-uhlig.com

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

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

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

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

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

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

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

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 Pkwy LaVista NE 68128 pam1181@yahoo.com

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

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

(Liz)

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

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

Janece 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 Rd Albany NY 12205 lukaz@msn.com

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

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

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. 61st Street Omaha NE 68104 leschreur@centurylink.net

PO Box 4376

Tristan Scorpio 208 S Burlington Ave Ste Hasting NE 68901

103 Box 325

Julie Shaffer 5405 Northern Hills Dr Omaha NE 68152

Sandra Slaymaker 102 E 3rd St #2 Atkinson NE 68713 sandyslaymaker@gmail.com

Susan Soriente 1110 Rockhurst Drive Lincoln NE 68510 ssoriente@gmail.com

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

Susan Straka-Heyden 46581 875th Rd Stuart NE 68780 suzie_sl@hotmail.com

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

Jacques Tallichet 2821 S. 79th St Lincoln NE 68506 jacques.tallichet@gmail.com

Paul Theobald 85718 544th Avenue Foster NE 68765 ptheobald36@gmail.com

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

Elizabeth L Troshynski 87769 484th Ave Atkinson NE 68713 btroshyn@hotmail.com

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

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

Susan C Watson 2035 N 28th St Apt 213 Lincoln NE 68503 scwatson1965@gmail.com

Susan J Weber 2425 Folkways Blvd Apt Lincoln NE 68521 susanjweber4@yahoo.com

329

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

Kenneth C 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 1008 13th Avenue Kearney NE 68845 doodlesand dollies@hotmail.com

Michael Whatley 1666 K Street NW, Ste. Washington DC 20006

500 EHaggstrom@consumerenergyalliance.org

Michael Reeves 5401 N. MLK #395 Lubbock TX 79403 EHaggstrom@consumerenergyalliance.org

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

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

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

Judith Thorman 216 West Jackson Blvd., Chicago IL 60606 thormanj@api.org
Ste. 915

Ross Eisenberg 733 10th Street, NW, Ste. Washington DC 20001 ross.e.eisenberg@nam.org
700

Nebraska Executive 1200 N Street, Suite 300 Lincoln NE 68508 psc.kxlfilings@nebraska.gov

Public Director
Service
Commission

Nebraska Doug Peterson 2115 State Capital Building Lincoln NE 68509 Kimberly.daugherty@nebraska.gov
Attorney
General

/s/ Kenneth C. Winston

Nebraska Bar No. 16961
1327 H St., Suite 300
Lincoln, NE 68508
(402) 212-3737
kwinston@inebraska.com
Attorney for Sierra Club, Nebraska
Chapter