thompson v. heineman: plaintiffs opening brief
DESCRIPTION
Plaintiffs' Opening Brief in Thompson v. Heineman, a lawsuit filed by three Nebraska landowners that argues the law (LB 1161) that fast-tracked approval of the proposed Keystone XL pipeline route through Nebraska is unconstitutional.TRANSCRIPT
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Case No CI 12-2060
________________________________________________________
District Court, Lancaster County, Nebraska
________________________________________________________
Randy Thompson,
Susan Luebbe, and
Susan Dunavan
Plaintiffs,
v
Dave Heineman, Governor of Nebraska,
Michael J. Linder, Director, Nebraska
Department of Environmental Quality,
and
Don Stenberg, State Treasurer of Nebraska
Defendants.
________________________________________
Hon. Stephanie Stacy
________________________________________________________
Plaintiffs’ Opening Trial Brief
________________________________________________________
September 9, 2013
David A Domina #11043
Brian E Jorde, #23613
Domina Law Group pc llo
2425 S. 144th
Street, Omaha, NE 68144
402-493-4100
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Table of Contents
Jurisdictional Statement ............................................................................................................... 1
Issues .............................................................................................................................................. 4
Standard of Review ....................................................................................................................... 4
Summary of Argument ................................................................................................................. 4
Argument ....................................................................................................................................... 5
I. Plaintiffs Have Standing to Sue .................................................................................... 5
Standing Is Present to Challenge Expenditures of Public Time and Public Funds. ....................... 6
Standing Is Present to Challenge Expenditures from a Public “Cash Fund” .................................. 7
II. Plaintiffs’ Claims Are Ripe............................................................................................ 8
The Claims Are Fit for Judicial Decision ....................................................................................... 9
The Claims Cannot Be Redressed Differently ................................................................................ 9
III. LB 1161 Unconstitutionally Delegates 1) Legislative and PCS Duties and 2)
Legislative Policy-Making Responsibility ............................................................................. 10
1st Unlawful Delegation: Delegation to the Exclusion of the PSC ............................................... 10
2nd
Unlawful Delegation: Legislative Decision Making over Eminent Domain ......................... 17
IV. LB 1161 Unconstitutionally Provides for No Judicial Review & Violates Due Process . 20
V. LB 1161 Provides No Reasonable Governing Standards. ........................................... 22
VI. LB 1161 Offends Neb Const Art III, § 18 as Special Legislation................................. 24
VII. Gubernatorial Action Under LB 1161 Is Void if LB 1161 Is Void. ........................... 27
VIII. LB 1161 Unconstitutionally Authorizes an Unlawful Pledge of State Credit .......... 28
Conclusion ................................................................................................................................... 30
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Cases
Bamford v Upper Republican Nat Resources Dist, 245 Neb 299, 512 NW2d 642 (1994) ......... 23
Boddie v Connecticut, 401 US 371, 91 S Ct 780, 28 L Ed 2d 113 (1971) .................................. 22
Boll v Dep't of Revenue, State of Neb, 247 Neb 473, 528 NW2d 300 (1995) ............................. 22
Burlington N & Santa Fe Ry Co v Chaulk, 262 Neb 235, 631 NW2d 131 (2001) ...................... 19
Calabro v City of Omaha, 247 Neb 955, 531 NW2d 541 (1995) ................................................ 12
Chambers v Lautenbaugh, 263 Neb 920 644 NW2d 540 (2002) .............................................. 4, 7
City of Omaha v City of Elkhorn, 276 Neb 70, 752 NW2d 137 (2008)......................................... 9
City of Omaha v Tract No 1, 18 Neb App 247, 778 NW2d 122 (2010) ...................................... 18
Cunningham v Exon, 202 Neb 563, 276 NW2d 213 (1979) .......................................................... 7
Georgen v Department of Public Works, 123 Neb 648, 243 NW 886 (1932) .............................. 18
Gustin v Scheele, 250 Neb 269, 549 NW2d 135 (1996) ............................................................... 19
Haman v Marsh, 237 Neb 699, 467 NW2d 836 (1991).......................................................... 25, 29
Harleysville Ins Group v Omaha Gas Appliance Co, 278 Neb 547, 772 NW2d 88 (2009) ........... 9
Hauserman v Stadler, 251 Neb 106, 554 NW2d 798 (1996).......................................................... 9
Kiplinger v Nebraska Dept of Natural Res, 282 Neb 237, 803 NW2d 28 (2011) ........................ 24
Krambeck v City of Gretna,198 Neb 608, 254 NW2d 691 (1977) ............................................... 18
Lincoln Dairy Co v Finigan, 170 Neb 777, 104 NW2d 227 (1960) ................................ 14, 22, 23
Little v Loup River Pub Power Dist, 150 Neb 864, 36 NW2d 261 (1949) .................................. 18
Michelle Hug, Henstock, Inc v City of Omaha, 275 Neb 820, 749 NW2d 884 (2008) ............... 24
Missouri Valley Pipe Line Co v Neely, 124 Neb 293, 246 NW 483 (1933) .......................... 17, 18
Myers v Nebraska Inv Council, 272 Neb 669, 724 NW2d 776 (2006) .......................................... 6
Nebraska Pub Serv Comm'n v Nebraska Pub Power Dist, 256 Neb 479, 590 NW2d 840 (1999) ...
11
Nebraska Public Power Dist v MidAmerican Energy,234 F3d 1032 (8th Cir 2000) .................. 10
Paine v Savage, 126 Me 121, 136 A 664 (1927) ......................................................................... 18
Ponderosa Ridge LLC v Banner County, 250 Neb 944, 554 NW2d 151 (1996) ........................ 23
Project Extra Mile v Nebraska Liquor Control Comm'n, 283 Neb 379, 810 NW2d 149 (2012) . 4,
6, 7, 8
Rath v City of Sutton, 267 Neb 265, 673 NW2d 869 (2004) ......................................................... 6
Ryder Truck Rental, Inc v Rollins, 246 Neb 250, 518 NW2d 124 (1994) ...................................... 9
Schumacher v Johanns, 272 Neb 346, 722 NW2d 37 (2006) ................................................. 11, 16
State ex rel Shepherd v Nebraska Equal Opportunity Comm'n, 251 Neb 517, 557 NW 2d 684
(1997)......................................................................................................................................... 12
State ex rel Spire v Nw Bell Tel Co, 233 Neb 262, 445 NW2d 284 (1989) .................... 11, 12, 16§
State v Ellis, 281 Neb 571, 799 NW2d 267 (2011) ...................................................................... 23
Statutes
Neb Rev Stat § 14-366....................................................................................................................19
Neb Rev Stat § 24-302..................................................................................................................... 1
Neb Rev Stat §§ 25-24,129............................................................................................................. 1
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Neb Rev Stat § 57-1101............................................................................................................. 3, 19
Neb Rev Stat § 57-1401.................................................................................................................. 2
Neb Rev Stat § 57-1402..................................................................................................................25
Neb Rev Stat § 57-1405..................................................................................................................12
Neb Rev Stat § 57-1409............................................................................................................20, 24
Neb Rev Stat § 57-1503......................................................................................... 13, 14, 19, 27, 30
Neb Rev Stat § 74-308....................................................................................................................19
Neb Rev Stat § 75-501............................................................................................................. 12, 13
Neb Rev Stat § 81-1502................................................................................................................... 2
Neb Rev Stat § 81-1505....................................................................................................................8
Neb Rev Stat § 84-602..................................................................................................................... 2
Neb Rev Stat § 84-901....................................................................................................................21
Neb Rev Stat § 84-1504.................................................................................................................. 2
Other Authorities
16D CJS Constitutional Law § 1816 ............................................................................................ 21
LB 1, 102nd
Leg. st Spec. Sess. (Neb 2011) .....................................................................................3
LB 1161, 102nd
Leg. Second Sess. (Neb 2012) . 1, 2, 3, 4, 5, 6, 7, 9, 10, 11, 12, 13, 14, 16, 17, 18,
19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30
John Dalberg-Acton, 1st Baron Acton, Letter to Bishop Mandell Creighton, April 5, 1887 in
Historical Essays and Studies (Macmillan, 1907) .........................................................................23
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Jurisdictional Statement
1. Plaintiffs challenge the constitutionality of LB 1161 (Laws of Nebraska 102nd
Leg
2d Sess) and seek declaratory judgment declaring LB 1161 unconstitutional and void. This
Court has subject matter jurisdiction of this action for declaratory judgment pursuant to Neb Rev
Stat § 24-302 & Neb Rev Stat §§ 25-24,129 et seq, the Nebraska Declaratory Judgments Act. An
actual case and controversy exists and arises under an enactment of the Legislature. The
controversy calls into question LB 1161’s constitutional validity.
2. Parties. The following charts explain the parties involved in this litigation:
Plaintiffs
Randy
Thompson
Mr. Thompson is a citizen, resident, taxpayer, fee payer, rate payer, and
elector, of Lancaster County. He pays required state and federal taxes. Land
owned by him was, or still is, in the path of one or more proposed pipeline
routes suggested by a pipeline carrier applicant who has invoked LB 1161.He
is interested in the disbursements of funds from the state treasury. He has been
engaged in production agriculture, and/or the livestock business as well as a
livestock dealer, for more than 30 years. He has purchased and sold vehicles
and equipment, purchased tires, chemicals, fertilizers, herbicides and
insecticides, to my knowledge have engaged in transactions generating fees
paid to, or collected for the State of Nebraska and payable to funds of its
Department of Environmental Quality (NDEQ) from time to time during his
lifetime as a Nebraskan. He is concerned about and has interest in the manner
NDEQ funds and any other funds flowing in and out of the State Treasury are
utilized and extended based upon LB 1161. As a Nebraska taxpayer he accepts
the burden of expenditures or allocations of funds flowing out of the State
Treasury and out of the agencies of the state including the NDEQ. (Ex__
Thompson Aff.)
Susan
Luebbe
Ms. Luebbe is a citizen, resident, taxpayer, fee payer, rate payer, and elector,
of Holt County. She is interest in the disbursement of funds from the State
Treasury. She has been engaged in the production agriculture, and/or livestock
business for more than 30 years. Land held in Trust for her was, or still is, in
the path of one or more proposed pipeline routes suggested by a pipeline
carrier applicant who has invoked LB 1161. She has purchased and sold
vehicles and equipment, purchased tires, chemicals, fertilizers, herbicides and
insecticides, and has engaged in transactions generating fees paid to, or
collected for the State of Nebraska and payable to funds of its Department of
Environmental Quality (NDEQ) from time to time during my lifetime as a
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Nebraskan. She is concerned about and has interest in the manner NDEQ funds
and any other funds flowing in and out of the State Treasury are utilized and
extended based upon LB 1161. As a Nebraska taxpayer she accepts the burden
of expenditures or allocations of funds flowing out of the State Treasury and
out of the agencies of the state including the NDEQ. ( Ex__ Luebbe Aff.)
Susan
Dunavan
Ms. Dunavan, a citizen, resident, taxpayer, fee payer, rate payer, and elector, of
York County. She is interested in the disbursement of funds from the State
Treasury. She has been engaged in a production agriculture business in
Nebraska for more than 20 years. She has purchased and sold vehicles and
equipment, purchased tires, chemicals, fertilizers, herbicides and insecticides,
and has engaged in transactions generating fees paid to, or collected for the
State of Nebraska and payable to funds of its Department of Environmental
Quality (NDEQ) from time to time during my lifetime. She is concerned about
and has interest in the manner NDEQ funds and any other funds flowing in and
out of the State Treasury are utilized and extended based upon LB 1161. (Ex__
Dunavan Aff.)
Defendants
Heineman,
Dave
Governor, Chief Executive of the State; has a duty to “take care that the laws
be faithfully executed.” Neb Const Art IV, § 6.
Linder,
Michael J.
Director, Nebraska Department of Environmental Quality (“DEQ”) which is
created by Neb Rev Stat § 81-1502(6) & (7), has statutory powers and duties
imposed by Neb Rev Stat § 84-1504 et seq. and provisions of LB 1161
challenged in this case.
Stenberg,
Don
State Treasurer, responsible to receive and disburse public money, and hold
and collect it. Neb Rev Stat § 84-602.
3. LB 1161. The genesis for LB 1161 precedes the 102nd
Legislature, 2nd Session,
and requires examination of actions that occurred in the 102nd
Legislature, 1st Special Session,
which was held in November 2011. LB1 (Laws of Nebraska 102nd
Leg 1st Sess)( Neb Rev Stat §
57-1401 et seq. Major Oil Pipeline Siting Act, “MOPSA.”) enacted a framework that
committed the Public Service Commission (“PSC”) to be responsible for certain actions
involving applications of major crude oil pipeline companies for establishment of a route and
construction of its pipeline within, or across, Nebraska. (Stip ¶ 14–15)
4. LB 1161 (Laws of Nebraska 102nd
Leg 2d Sess) purports to amend LB1. It does
so unconstitutionally. LB 1161 was signed into law by the Governor on April 17, 2012 and
became effective on April 17, 2012. (Stip ¶ 19) Summarized, these are the provisions of the
challenged statute:
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LB 1161 Summary Key Provisions
§1
Neb Rev Stat § 57-1101 is amended to provide the procedure for oil pipeline
companies to, as conditions precedent to exercising the power of eminent
domain in Nebraska, secure route approval from either: the Governor acting
unilaterally, or the Public Service Commission (“PSC”) under MOPSA if the
Governor does not approve. Condemnation must commence within two (2) years
of approval by the Governor or the PSC.
§3 Provides that public documents will not be withheld unless withholding is
authorized by § 84-712.05 of the Public Records Act or federal law.
§4 Eliminates a provision of LB 1 that provided: “The Major Oil Pipeline Siting
Act shall not apply to any major oil pipeline that has submitted an application to
the United States Department of State pursuant to Executive Order 13337 prior
to the effective date of this Act.”
§5
Defines “Commission” as the PSC. The term “Department” is not defined in LB
1161, but there is a reference in § 8 to the NDEQ.
§6 Provided “[i]f a pipeline carrier proposes to construct a major oil pipeline to be
placed in operation across Nebraska after the effective date of this Act and the
pipeline carrier has submitted a route for an oil pipeline within, through, or
across . . . the pipeline carrier shall file an application with the [PSC] . . . .” If a
carrier proposes a substantive change to a route … [it] must file an application
with the [PSC]…pursuant to § 9….
§7 Empowers NDEQ to conduct an “evaluation” of a pipeline or a supplemental
environmental impact study of proposed routes and make a report to the
Governor. Section 7 amends LB1 § 3, Art 4 to require the Governor must act on
a submission within 30 days or, if he/she does not approve any route, the
Governor then notifies the pipeline carrier it must receive approval from the
Public Service Commission.
§8 $2 million appropriated to aid in carrying out provisions of LB 1161.
§9 Severability clause.
§10
Repealer clause for inconsistent provisions.
§11 Emergency Clause. As a slip law LB 1161 may be read at
http://nebraskalegislature.gov/FloorDocs/Current/PDF/ Slip/LB 1161.pdf
5. Claims. Plaintiffs seek declaratory judgment that LB 1161 is unconstitutional on
one or more of the following grounds:
5.1 Unlawful delegations of authority over common carriers, and eminent domain
5.2 Unlawful lack of judicial review and violates due process
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5.3 Arbitrariness due to lack of standards
5.4 Special Legislation
5.5 Because LB 1161 is void, Actions of Gov. under LB 1161 are void
5.6 Unlawful expenditure and pledge of State credit
Issues
6. These are the core issues:
Do Plaintiffs have standing, and are their claims ripe?
Is LB 1161 Unconstitutional?
Standard of Review
7. The Court is confronted with a facial challenge to a Nebraska statute. Questions
of law are presented. The Court must decide them as a matter of law.
Whether a statute is constitutional is a question of law; accordingly, we are
obligated to reach a conclusion independent of the decision reached by the court
below.11
A statute is presumed to be constitutional, and all reasonable doubts will
be resolved in favor of its constitutionality.
Banks v Heineman, 286 Neb 390,*4, __NW2d __ (2013).
8. “[P]reventing the use of public time and money to implement and enforce
allegedly invalid rules is a sufficient interest to confer taxpayer standing to challenge the rules.
Project Extra Mile v Nebraska Liquor Control Comm'n, 283 Neb 379, 389, 810 NW2d 149, 159
(2012), citing, Chambers v Lautenbaugh, 263 Neb 920, 644 NW2d 540 (2002).
Summary of Argument
9. As resident taxpayers and fee payers, Plaintiffs have standing to maintain this
declaratory judgment action, under the holding of Project Extra Mile, supra. Banks v Heineman,
286 Neb 390, __ NW2d __ (2013).
10. Plaintiffs’ claims that LB 1161 is constitutionally infirm are sound even though
the Bill is entitled to the presumption of validity and all doubt about constitutionality must be
resolved in Defendants’ favor. Plaintiffs should prevail because:
10.1 LB 1161 is an unlawful delegation of Legislative authority because a) policy
and implementation power over common carriers cannot be delegated to the
Governor, and b) policy control over the power of eminent domain, including
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who, where, and how it can be exercised, cannot be given to the Governor.
10.2 LB 1161 fails to state or provide any reasonable limitations and standards by
which the Governor, or the DEQ are to execute the law, and it provides for no
judicial review.
10.3 LB 1161 commits public funds to a loan to a private Party and violates the
Constitutional prohibition against lending the full faith and credit of the State.
10.4 LB 1161 violates the Nebraska Constitution’s Due Process Clause by denying
access to the Courts.
11. LB 1161 violates the Nebraska Constitution by unconstitutionally delegating two
legislative responsibilities (one shared with the PSC), to the Governor. These improperly
delegated responsibilities are 1) regulatory control of common carriers, which must either be
conducted entirely by the Legislature, or by the Public Service Commission but not by the
Governor, and 2) decisions concerning who can exercise the power of eminent domain and under
what circumstances it can be exercised, as this is a plenary legislative power that cannot be
delegated to the Governor.
12. LB 1161 also fails constitutional muster, because it provides no controlling
standards, and it provides for no judicial review.
13. The Bill violates due process guarantees by allowing a process to occur involving
an application by a private Party for a public route across the state through which a utility service
or oil pipeline will be built with the power of eminent domain, but for which no mandatory
hearing process, guided by articulated standards, has been created. And, it is special legislation.
14. Plaintiffs, who are resident Nebraska taxpayers, electors, and interested citizens
involved in issues related to the highly public and highly controversial oil pipeline issue, request
that LB 1161 be declared unconstitutional.
Argument
I. Plaintiffs Have Standing to Sue
15. The Court passed on standing issues in its rulings on Defendants’ Rule 12
dismissal motions. No new standing issues are presented now. Standing is jurisdictional. Each
Plaintiff is a Nebraska resident and a taxpayer. Each seeks declaratory judgment and to enjoin
improper expenditure of public funds. (Aff’s. of Thompson, Dunavan & Luebbe).
16. Plaintiffs have standing as taxpayers to challenge unlawful components of LB
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1161, which include the unlawful commitment of public funds. Project Extra Mile v Nebraska
Liquor Control Comm'n, 283 Neb 379, 386, 810 NW2d 149, 157 (2012) (“[A] resident taxpayer,
without showing any interest or injury peculiar to itself, may bring an action to enjoin the illegal
expenditure of public funds raised for governmental purposes.”); Myers v Nebraska Inv Council,
272 Neb 669, 681, 724 NW2d 776, 791 (2006) (Taxpayer have an equitable interest in public
funds and can sue to prevent unauthorized appropriation.); Rath v City of Sutton, 267 Neb 265,
281, 673 NW2d 869, 885 (2004) (“[I]rreparable harm should be assumed whenever a plaintiff
proves an expenditure of public funds is contrary to law.”). See also, Banks v Heineman, 286
Neb 390, __ NW2d __ (2013).
17. Taxpayers also have standing to seek declaratory relief in an action against state
officials when a taxpayer pleads the unauthorized expenditure of public funds. Project Extra
Mile, 283 Neb at 387, 810 NW2d at 158. While Defendants are expected to argue that standing is
absent because Plaintiffs’ interest in their claims are no greater than the common interest of all
taxpayers, this argument has been firmly rejected several times, dating back to 2004, upon each
occasion of its presentation by the Attorney General to the Supreme Court. The same rationale
commands rejection of the position that use of a select “cash fund” circumvents citizen vigilance
at holding public officials accountable when state government strays from the Constitution.
18. Section 8 of LB 1161 appropriated $2 million from the Nebraska Department of
Environmental Quality Cash Fund to aid in carrying out the provisions of LB 1161. Under LB
1161, the NDEQ prepared any evaluation of a proposed pipeline route, and in the process,
expended public time, resources, and funds. The NDEQ’s expenditure is for an unlawful
purpose, i.e., to fund and carry out the operation of an unconstitutional statute. This expenditure
gives the taxpayers standing.
Standing Is Present to Challenge Expenditures of Public Time and Public Funds.
19. In earlier submissions, the Court correctly noted that Defendants’ standing
arguments erroneously focused on a portion of Project Extra Mile opinion’s dicta where the
Court stated that “a taxpayer’s interest in challenging an unlawful state action must exceed the
common interest of all taxpayers in securing obedience to the law.” Project Extra Mile, 283 Neb
at 390, 810 NW2d at 160. Defendants failed to read the remainder of the Project Extra Mile
case, which provides necessary context for the Court’s statement. The “common interest”
language is not applicable when a taxpayer’s claim is based upon illegal expenditures. Project
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Extra Mile, 283 Neb at 386, 810 NW2d at 157 (“[A] resident taxpayer, without showing any
interest or injury peculiar to itself, may bring an action to enjoin the illegal expenditure of public
funds raised for governmental purposes.”).
20. Plaintiffs allege that a $2 million pledge of state credit in Section 8 of LB 1161 is
an illegal pledge. Additional time, resources, and funds have been, and will be, spent to
implement the challenged provisions of LB 1161. Chambers v Lautenbaugh, 263 Neb 920, 928,
644 NW2d 540, 548 (2002) (allegations of misuse of future public time and money to implement
an illegal redistricting plan is an illegal expenditure).
21. Project Extra Mile articulates a principle that supports standing and undermines
all of the Defendants’ standing arguments. Essentially, if the Plaintiffs in this action did not have
standing, “[a] good deal of unlawful government action would otherwise go unchallenged.”
Project Extra Mile, 283 Neb at 390, 810 NW2d at 160. If Plaintiffs do not have taxpayer
standing, then no taxpayer has standing, and the State’s actions are “unreviewable in court: The
only persons or groups directly affected by the government action would have no incentive to
challenge it.” 283 Neb at 391, 810 NW2d at 160.
22. The Project Extra Mile Court acknowledged “a taxpayer’s action sometimes
raises matters of great public concern that far exceed the type of injury in fact that an individual
could normally assert in an action against government officials or entities.” 283 Neb at 389-90,
810 NW2d at 159-60 (2012) (citing Cunningham v Exon, 202 Neb 563, 276 NW2d 213 (1979)).
LB 1161 was enacted because of a proposed oil pipeline that would cross Nebraska. The issue is
of great public significance in this State and across the USA. Plaintiffs have established general
taxpayer standing; however, Plaintiffs also have standing based upon significance of the
proposed pipeline and the procedures implemented in LB 1161 to govern such a pipeline.
Standing Is Present to Challenge Expenditures from a Public “Cash Fund”
23. Defendants seek to differentiate what funds are expended under LB 1161 to divest
Plaintiffs of taxpayer standing. They argue that LB 1161 funding from a select fund and not the
general treasury, and they say Plaintiffs do not pay fees to this fund, they lack standing.
Defendants’ argument fails under Project Extra Mile and for two additional reasons:
23.1 The NDEQ is funded by both General Funds and Cash Funds and both are
public funds in which Plaintiffs have interests; and
23.2 The differentiation asserted is not determinative of standing in this
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declaratory judgment case.
24. Neb Rev Stat § 81-1505.01 establishes a Cash Fund “which shall be used to pay
the expenses of the Department.” Section 81-1505.01 requires the Department to “remit all fees
collected pursuant to subsection (9) of section 81-1505 and section 81-1521.09 to the State
Treasurer for credit to the fund.” Section 81-1501.01 does not provide the source, or potential
sources, of all funds that may finance the Department of Environmental Quality Cash Fund. The
Department of Environmental Quality is funded from a variety of sources: (1) General Funds;
(2) Cash Funds; and (3) Federal Funds. Nebraska’s 2011-2012 Budget allocated the following
funds to the Department of Environmental Quality. 2011-2012 State Budget, fiscal year July 1,
2011 – June 30, 2012: $7,278,788,937, available at
http://www.nebraskaspending.gov/spent1011/. Judicial notice of this budget is requested.
25. Even if the Cash Fund is funded exclusively by fees and charges, such a
differentiation, as it relates to standing, is not supported by Nebraska law. “[T]axpayers have an
equitable interest in public funds, including state public funds.” Project Extra Mile, 283 Neb at
390, 810 NW2d at 160 (emphasis added). No differentiation was made, nor attempted, between
“General Funds” derived from tax revenues and “Cash Funds” generated from fees and other
charges. Defendants’ did not, and cannot, cite any authority in support of its differentiation
between General Funds and Cash Funds for standing. Defendants’ theory, if accepted, would
require a complicated and unnecessary financial analysis to determine the source of contested
public funds expenditures when taxpayer standing is challenged. Defendants’ theory would
insulate government actors from valid constitutional challenges from taxpayers as long as the
government actor is misspending “Cash Funds” generated solely from DEQ fees.
26. Taxpayers are as interested in proper expenditure of “cash funds” as the General
Fund. This interest was expressed at the outset of statehood when the State’s first governor was
impeached for misuse of a special fund, i.e., the common schools fund. Tipton, Thomas Weston,
Forty Years of Nebraska at Home and in Congress, P104-117 (1902). Standing “requires that a
litigant have a personal stake in the outcome of a controversy: a personal stake that would
warrant invocation of a court’s jurisdiction and justify the exercise of the court’s remedial
powers on the litigant’s behalf.” Plaintiffs have such a stake.
II. Plaintiffs’ Claims Are Ripe
27. Pretrial rulings on motions have dispatched Defendants’ ripeness arguments as
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meritless. Plaintiffs’ claims are ripe because they are 1) fit issues for judicial resolution; and 2)
require resolution to avoid hardship to the public or parties because they cannot be serviced
differently.
28. “[A] determination with regard to ripeness depends upon the circumstances in a
given case and is a question of degree.” Harleysville Ins Group v Omaha Gas Appliance Co,
278 Neb 547, 553, 772 NW2d 88, 94 (2009). Nebraska courts employ a two-part ripeness
analysis: “(1) the fitness of the issues for judicial decision and (2) the hardship of the parties of
withholding court consideration.” Id. In other words, “when making a ripeness determination, a
court must consider, as a jurisdictional matter, whether it can act at a certain time and also, as a
prudential matter, whether it should act at that time.” City of Omaha v City of Elkhorn, 276 Neb
70, 79, 752 NW2d 137, 145 (2008).
The Claims Are Fit for Judicial Decision
29. Plaintiffs seek a Declaratory Judgment concerning the constitutionality of a
Legislative product. “A declaratory judgment is, by definition, forward-looking, for it provides
‘preemptive justice designed to relieve a Party of uncertainty before the wrong has actually been
committed or the damage suffered.’” Hauserman v Stadler, 251 Neb 106, 110, 554 NW2d 798,
801 (1996). “The function of a declaratory judgment is to determine justiciable controversies
which either are not yet ripe for adjudication by conventional forms of remedy or, for other
reasons, are not conveniently amenable to the usual remedies.” Ryder Truck Rental, Inc v
Rollins, 246 Neb 250, 257, 518 NW2d 124, 128 (1994).
The Claims Cannot Be Redressed Differently
30. No other equally serviceable remedies are available to remediate the
constitutional infirmities in LB 1161. Public funds and time have been expended by the NDEQ
to review a proposed pipeline. A pipeline has been proposed, and the unconstitutional provisions
of LB 1161 have been invoked. If it cannot be challenged before it is built, then when can it be?
31. If no decision about the issues is made now, Plaintiffs would be required to allow
constitutionally deficient procedures occur, and then file an action to divest a pipeline carrier of
eminent domain privileges after the fact. Public funds and time would already be spent and
could not be “unspent.” No future events or set of facts changes the constitutionality of the
procedures or expenditures set in place by the law. No decision to grant or deny a particular
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proposed pipeline cures the constitutional infirmities in LB 1161. The harm of improper eminent
domain by a private, foreign corporation looms in the Bill. “Harm includes both the traditional
concept of actual damages—pecuniary or otherwise—and also the heightened uncertainty and
resulting behavior modification that may result from delayed resolution.” City of Omaha, 276
Neb at 80, 752 NW2d at 146 (quoting Nebraska Public Power Dist v MidAmerican Energy, 234
F3d 1032, 1038 (8th Cir 2000)). Each Plaintiff was, or still is, in the path of proposed pipeline
routes governed by the provisions of LB 1161. (Thompson, Dunavan, Luebbe Affidavits)
32. Dismissal on ripeness grounds is not appropriate if it could “result in delay and
the unnecessary expense of judicial resources.” City of Omaha, 276 Neb at 81, 752 NW2d at
147. “Continued uncertainty regarding the enforceability of [the approval of a pipeline route and
the grant of eminent domain power to the pipeline carrier] is undesirable and unnecessary.” Id at
82. These rationales apply here. The issues can, and should, be decided now.
III. LB 1161 Unconstitutionally Delegates 1) Legislative and PCS Duties and 2)
Legislative Policy-Making Responsibility
Two constitutional infirmities are related to the extent they involve delegation issues, but they
are distinct legally. Either alone invalidates LB 1161. They are discussed separately.
1st Unlawful Delegation: Delegation to the Exclusion of the PSC
33. LB 1161’s delegation of powers over common carriers from the PSC to the
Governor is unconstitutional. An analogous prior attempt to transfer jurisdiction over common
carriers from a Commission, the State Railway Commission, to the Department of Aeronautics
was deemed unconstitutional as should the transfer of powers here. State ex rel. State Railway
Commission v. Ramsey, 151 Neb. 333, 37 N.W.2d 502 (1949).
34. The Nebraska Constitution departmentalizes state government into three (3)
branches. It affirmatively commands that a member of one branch shall not exercise “any power
properly belonging to either of the others except as expressly directed or permitted in this
Constitution…” Neb Const Art II, § 1. “[T]he distribution of powers clause prohibits one branch
of government from exercising the duties of another branch.” Nebraska Coalition for Educ
Equity & Adeq (Coal) v Heineman, 273 Neb 531, 545, 731 NW2d 164, 176 (2007). Each branch
of government can exercise only powers granted to it by the Constitution. LB 1161 violates this
constitutional principle by divesting the PSC of jurisdiction to regulate oil pipelines, including
intrastate oil pipelines, and delegating policy and implementation power in the Governor.
11
Nebraskans created the Public Service Commission (“PSC”) as a constitutional body and gave it
specific powers in Neb Const Art IV § 20. These powers include:
“…regulation of rates, service and general control of common carriers as the Legislature
may provide by law. But, in the absence of specific legislation, the commission shall
exercise the powers and perform the duties enumerated in this provision.”
35. “The PSC is an independent regulatory body under the Nebraska Constitution,
and its jurisdiction to regulate common carriers may be restricted by the Legislature only through
“specific legislation.” Schumacher v Johanns, 272 Neb 346, 365, 722 NW2d 37, 52 (2006). The
Legislature may restrict the PSC’s jurisdiction but any restriction must be done through “specific
legislation” directed to a limited, definite, or precise item. State ex rel Spire v Nw Bell Tel Co,
233 Neb 262, 276, 445 NW2d 284, 293-94 (1989). “In the absence of specific legislation, the
powers and duties of the commission, as enumerated in the Constitution, are absolute and
unqualified.” In re Application No 30466, 194 Neb 55, 59, 230 NW2d 190, 194 (1975). “When
the Legislature grants the PSC jurisdiction over non-common carriers, the PSC must exercise
such authority completely within the statutory scheme.” Nebraska Pub Serv Comm'n v Nebraska
Pub Power Dist, 256 Neb 479, 491, 590 NW2d 840, 848 (1999).
36. Oil pipelines, major oil pipelines, and pipeline carriers affected by LB 1161 are
common carriers.
“The term ‘common carriers' includes all forms of transportation for hire, and the
amendment providing for the commission was intended to control the common carrier
business to which it relates at all times and under all developments (citations omitted).
Transportation is the important fact, and the form or method thereof is immaterial
(citations omitted). The commission since its creation has had jurisdiction and power of
control by virtue of the Constitution when the problem presented involved regulation of
public transportation service. In re Application of Chicago, B. & Q. R. Co., 138 Neb 767,
295 NW 389; State v. Union Stock Yards Co., 81 Neb 67, 115 NW 627. A Constitution is
intended to meet and be applied to any conditions and circumstances as they arise in the
course of the progress of the community. The terms and provisions of constitutions are
constantly expanded and enlarged by construction to meet the advancing affairs of men.
While the powers granted thereby do not change, they do apply in different periods to all
things to which they are in their nature applicable.
12
State ex rel. State Ry. Comm'n v. Ramsey, 151 Neb 333, 337-38, 37 NW2d 502, 506 (1949), cited
in State ex rel Spire v Nw Bell Tele Co., 233 Neb 262, 45 NW2d 262, 276, 293 (1989). 13 Am
Jur 2d Carriers § 2.
37. Here, the PSC has constitutional and statutory jurisdiction and general
control of common carriers including to review and regulate oil pipeline sites proposed to be
constructed. Neb Const Art IV § 20; Neb Rev Stat § 75-501 & § 57-1405. The Legislature
cannot constitutionally divest the PSC of jurisdiction over a class of common carriers by vesting
a governmental agency, body of government, or branch of government, except the legislature,
with control over class of common carriers. Neb Const Art IV § 20.
38. The powers of the Public Service Commission are plenary and self-executing.
Groenewold v. Building Movers, Inc., 197 Neb. 187, 247 N.W.2d 629 (1976). The PSC has
exclusive jurisdiction to review intrastate oil pipeline sites and regulate intrastate oil pipelines.
The PSC has secondary jurisdiction to review oil pipeline routes under MOPSA, unless the
Governor approves the route before the PSC review can occur. LB 1161 §6, Neb Rev Stat §57-
1405. The PSC has jurisdiction to review all proposed oil pipelines, the TransCanada line and
substantially identical ones. LB 1161. However, under LB 1161 all policy and all
implementation decisions may bypass both the Legislature and the PSC. This is a non sequitur.
Under LB 1161, the Legislature divests the PSC of jurisdiction over oil pipelines and vests that
power with the Governor. Thus, the PSC has jurisdiction over 1) all intrastate oil pipelines, and
2) all interstate oil pipelines that seek approval under MOPSA, but under LB 1161, it has no
jurisdiction over any pipeline if a private Party, at its sole option, chooses to take to a particular
matter to the Governor, where there are no standards for qualification and there is no judicial
review, thereby bypassing a government process of the PCS imposing standards and providing
for judicial review. This is discussed in Argument IV below.
39. “[T]he Nebraska Constitution prohibits one branch of government from
encroaching on the duties and prerogatives of the others or from improperly delegating its own
duties and prerogatives.” State ex rel Shepherd v Nebraska Equal Opportunity Comm'n, 251
Neb 517, 524, 557 NW2d 684, 690 (1997)(citing Calabro v City of Omaha, 247 Neb 955, 531
NW2d 541 (1995); Clemens v Harvey, 247 Neb 77, 525 NW2d 185 (1994)). LB 1161 violates
these principles and results in unconstitutional delegation of powers.
40. LB 1161 gives the Governor authority to approve “any route for an oil
13
pipeline within, through, or across” Nebraska. Neb Rev Stat § 57-1503(1)(a)(i). This completely
divests the PSC of authority over a class of common carriers—oil pipelines that are Governor
approved. “The Legislature may delegate to an administrative agency the power to make rules
and regulations to implement the policy of a statute.” Governor's Policy Research Office v KN
Energy, 264 Neb 924, 652 NW2d 865 (2002). But, “the Legislature may not delegate its
lawmaking function to the executive or judicial branches.” In re Nebraska Cmty. Corr. Council
to Adopt Voluntary Sentencing Guidelines for Felony Drug Offenses, 274 Neb 225, 236, 738
NW2d 850, 858 (2007); Clemens v Harvey, 247 Neb 77, 525 NW2d 185 (1994).
41. LB 1161 gives the Governor decisional authority over what private proposed
pipeline company will be given the power to condemn Nebraska land. Control of eminent
domain is a matter over which the Legislature had plenary authority. Burnett v Central Neb PPD,
147 Neb 458, 465-66, 23 NW2d 661, 666 (1946)(citing predecessor to 26 Am Jur2d §5 (WL
Updated August 2013)); Singer, Sutherland Statutes and Statutory Construction § 64.6 (WL
updated Nov 2012). While the Legislature can delegate implementation of this power, it cannot
delegate the policy making function.
42. LB 1161’s delegation-related infirmities do not end here. It also improperly
divests the PSC of jurisdiction over intrastate common carriers and delegates that authority to the
Governor. The PSC has exclusive jurisdiction over common carriers such as intrastate oil
pipelines. See Neb Const IV § 20, Neb Rev Stat § 75-501. The PSC is completely divested of
jurisdiction as to any pipeline approved by the Governor, including any intrastate pipeline.
Intrastate oil pipelines are caught in LB 1161’s net and will result in the PSC being completely
divested of jurisdiction. This chart shows the Legislature’s LB 1161 alternative to the PSC’s
review of a proposed oil pipeline under LB 1161:
Step 1: Standard-less NDEQ Review
NDEQ may evaluate any route for an oil pipeline within, through, or across Nebraska, and
for the stated purpose of being part of a federal … agencies’ NEPA review process, Or
collaborate with a federal agency or agencies’ in a review under NEPA involving an SEIS
LB 1161 § 7; Neb Rev Stat § 57-1503(1)(a)(i-ii)
Step 2: Governor Approval
Thirty (30) days after receiving the evaluation or the SEIS, the Governor shall indicate in
14
writing to involved federal agencies that he or she approves the pipeline. In the event the
Governor does not approve the project, then the applicant must go through MOPSA, and
comply with PSC procedures. LB 1161 § 7; Neb Rev Stat § 57-1503(4)
43. The delegation outlined is not permissible.
It is fundamental that the Legislature may not delegate legislative power to an
administrative or executive authority (citations omitted). The Legislature does have
power to authorize an administrative or executive Department to make rules and
regulations to carry out an expressed legislative purpose…..
Lincoln Dairy Co v Finigan, 170 Neb 777, 781, 104 NW2d 227, 230 (1960). LB 1161 violated
the Lincoln Dairy rule. Who may exercise eminent domain is up to the Legislature. It cannot
delegate to the Governor the authority to empower a newly formed political subdivision or class
of subdivisions to exercise eminent domain. This must be done by the Legislature. The
Legislature also cannot save an attempted delegation by adopting as its own a future act that has
not yet occurred. Clemens v Harvey, 247 Neb 77, 82, 525 NW2d 185, 189 (1994). Tasks
necessary to implement policy can be delegated, but policy making decisions, such as whether a
private company can take private property from another for its own profit, cannot. 16A Am Jur
2d Constitutional Law § 316 (WL Updated August 2013). The “legislature can lawfully provide
the method of taking without the aid of the other Departments of government….” May v City of
Kearney, 145 Neb 475, 505, 17 NW2d 448, 464 (1945). LB 1161 does not delegate a method to
the Governor; it delegates the power to decide without methods who, when, and where eminent
domain can be exercised. This is unlawful.
44. By enacting LB 1161, the Legislature divested the PSC from reviewing
and authorizing any oil pipelines that the Governor, by his or her whim, may approve. This
includes oil pipelines “within” Nebraska, or intrastate pipelines. Neb Rev Stat § 57-1503(1)(a)(i)
defines what a pipeline carrier may submit to the NDEQ for evaluation and thereby defines the
various types of oil pipeline routes, such as those within, though, or across Nebraska, subject to
Governor approval at Neb Rev Stat § 57-1503(4). Therefore, LB 1161, § 7, results in a complete
divestment of jurisdiction from the PSC and delegation of that power into another department of
the government because every possible type of oil pipeline, those that would be routed “within,
through, or across the state” is removed to the NDEQ/Governor approval process. Such action is
15
not permissible. The Supreme Court has expressly so held:
“Our prior decisions regarding interpretation of Neb Const Art IV, § 20, seem to
draw a distinction between statutes by which the Legislature attempted to transfer
regulation of common carriers to an agency distinct from the PSC and statutes by which
the Legislature itself “occupies the field” and becomes, in effect, the regulatory body
which exercises control over common carriers. The Legislature cannot constitutionally
divest the PSC of jurisdiction over a class of common carriers by vesting a governmental
agency, body of government, or branch of government, except the Legislature, with
control over the class of common carriers. State ex rel. State Railway Commission v
Ramsey, supra (unconstitutional legislative attempt to vest the Nebraska Department of
Aeronautics with power to “control common carriers by air”); Rivett Lumber & Coal Co.
v Chicago & NWR. Co., 102 Neb 492, 167 NW 570 (1918) …. However, a legislative act
or statute may constitutionally divest the PSC of jurisdiction over common carriers to the
extent that the Legislature, through specific legislation, has preempted the PSC in control
of common carriers. See, Rodgers v Nebraska State Railway Commission, 134 Neb 832,
844, 279 NW 800, 807 (1938) (“[T]he plenary power of the railway commission may
only be curtailed or diminished where the legislature has, by specific legislation,
occupied the field”)….
Thus, while the Legislature may constitutionally occupy a regulatory field,
thereby specifically and preemptively excluding the PSC from some control over a class
of common carriers, the Legislature cannot absolutely and totally abandon or abolish
constitutionally conferred regulatory control over common carriers. For example,
legislation which directs that the PSC cannot exercise its constitutionally granted power
over a particular common carrier or a class of common carriers, or which dictates that the
Legislature shall not enact regulatory statutes concerning a common carrier or class of
common carriers, violates Neb Const Art IV, § 20. If such abandonment or abolition of
regulatory control were permitted, the protection afforded to Nebraska citizens by the
constitutionally created and empowered PSC would cease to exist. Neb Const Art IV, §
20, requires that the power to regulate common carriers exist either in the PSC or the
Legislature.”
State ex rel. Spire v Nw Bell Tel Co, 233 Neb 262, 276-77, 445 NW2d 284, 294 (1989).
16
45. The Supreme Court underscored this holding shortly after it was announced:
“Thus, while the Legislature may constitutionally occupy a regulatory field,
thereby specifically and preemptively excluding the PSC from some control over
a class of common carriers, the Legislature cannot absolutely and totally abandon
or abolish constitutionally conferred regulatory control over common carriers. For
example, legislation which directs that the PSC cannot exercise its
constitutionally granted power over a particular common carrier or a class of
common carriers, or which dictates that the Legislature shall not enact regulatory
statutes concerning a common carrier or class of common carriers, violates Neb
Const Art IV, § 20. If such abandonment or abolition of regulatory control were
permitted, the protection afforded to Nebraska citizens by the constitutionally
created and empowered PSC would cease to exist. Neb Const Art IV, § 20,
requires that the power to regulate common carriers exist either in the PSC
or the Legislature.” (emphasis added)
State ex rel Spire v Beerman, 235 Neb 384, 398, 455 NW2d 749, 756 (1990) (4 judges
concluding statute was unconstitutional. 5 required). See also, State ex rel Railway Comm’n v
Ramsey, 151 Neb 333, 37 NW2d 502 (1949)(cited by Spire v Beerman).
46. Where specific legislation in which the Unicameral occupies a regulatory area
involving common carriers is absent, “the powers and duties of the [PSC] as enumerated in the
Constitution, are absolute and unqualified.” In Re Application No 304665, 194 Neb 55, 59, 230
NW2d 190, 194 (1975); Schumacher v Johanns, 272 Neb 346, 369, 722 NW2d 37, 54 (2006).
47. The Legislature cannot divest the PSC of jurisdiction and vest that power to the
Governor. Schumacher v Johanns, 277 Neb 346, 365, 722 NW2d 37, 52 (2006); State ex rel
Spire v NW Bell Tel Co, 233 Neb 262, 276-77, 445 NW2d 284, 294 (1989). The Legislature did
not attempt in LB 1161 to occupy the oil pipeline regulatory field itself, as is permissible under
Nebraska law. Id, 233 Neb at 277. And, the Legislature has not, in LB 1161 empowered the
Governor to implement Legislative policy governing pipelines and their routes with regulations
and enforcement. Instead, the Legislature delegated to the Governor the power to decide where
oil pipelines will go, who will own them, how they will be built, and who can exercise eminent
domain to put them in. In other words, the Governor, without standards expressing any
legislative policy, has the power to make every legislative policy decision: …who, what, when,
17
where, how, and why…concerning oil pipelines. (E 25 Request 14) This is an impermissible
delegation of legislative responsibility.
48. LB 1161’s delegation of powers over oil pipelines from the PSC to the Governor
is unconstitutional.
2nd Unlawful Delegation: Legislative Decision Making over Eminent Domain
49. LB 1161’s delegation of powers from the PSC to the Governor over who, when,
and how eminent domain may be exercised is unconstitutional.
50. “The power of eminent domain belongs exclusively to the legislative branch.” 26
Am Jur2d Eminent Domain §5 (WL Updated August 2013). “[T]he mode of exercising the right
of eminent domain is within the unlimited discretion of the Legislature….When the legislature
delegates the power of eminent domain, it is necessary that it also prescribes the method by
which the power is to be exercised.” 29A CJS Eminent Domain § 262 (WL Updated June 2013).
Spencer v Village of Wallace, 153 Neb 536, 543, 45 NW2d 473,477 (1951). This is well settled
Nebraska law:
The power to exercise the right of eminent domain must be exercised by, or
conferred by, the Legislature, and when it is granted to a municipal corporation, or to a
public service corporation, that body must determine how far it will make use of the
power thus conferred. This is an executive or administrative act. When it comes to the
stage of compensating the owner of the property by ascertaining the value of the property
taken, or damaged, this requires the exercise of judicial functions.
In re Appraisement of Omaha Gas Plant, 102 Neb 782, 169 NW 725, 726 (1918). The right to
exercise eminent domain to build a pipeline “depends on the legislative grant” as well. Missouri
Valley Pipe Line Co v Neely, 124 Neb 293, 246 NW 483, 484 (1933).
51. While the Legislature can delegate the authority to exercise eminent domain to a
county, city, or other political subdivision, or to a private Party, it cannot delegate to the
Governor, the decision about whether a county, city, other political subdivision, or a private
Party, can do so. Omaha Gas Plant, supra; Annot., Power of Eminent Domain Conferred Upon
Municipality…, 79 ALR 515 (Orig 1932, updated weekly). Indeed, the roots of this doctrine
reach the pre-revolutionary English Parliament. Matthew P Harrington, “Public Use” and the
Original Understanding of the So-Called “Takings” Clause, 53 Hastings L J 1245, 1266 (2002).
18
Daniel H. Cole, Political Institutions, Judicial Review, and Private Property: A Comparative
Institutional Analysis, 15 Sup Ct Econ Rev 141, 182 (WL 2007).
52. The Legislature cannot give the Governor the authority to delegate the power of
eminent domain authority to another Party or entity. Doing so makes the Governor the
legislature, not the executive. Any delegation of the power of eminent domain can only occur
from the Legislature pursuant to specific statute, but not by the Governor under his or her whim
at approving an oil pipeline route. LB 1161 creates an unlawful delegation of eminent domain
powers to the Governor because the moment the Governor unilaterally approves an oil pipeline
route, the power of eminent domain immediately vests in the private oil company. Burnett v
Central Neb PP & Irr Dist, 147 Neb 458, 465-66, 23 NW2d 661 (1948)(citing predecessor to 26
Am Jur2d §5, supra) (cited by Singer, Sutherland Statutes & Statutory Construction, Statutes
Granting Power of Eminent Domain §64.6 (WL Updated Nov 2012).
53. “Eminent domain is defined generally as the power of the nation or a state, or
authorized public agency, to take or to authorize the taking of private property for a public use
without the owner's consent, conditioned upon the payment of just compensation.” City of
Omaha v Tract No 1, 18 Neb App 247, 251, 778 NW2d 122, 127 (2010)(citing Krambeck v City
of Gretna, 198 Neb 608, 254 NW2d 691 (1977)). The power of eminent domain is given by the
Nebraska Constitution to the Legislature:
The exercise of the power and the right of eminent domain shall never be so
construed or abridged as to prevent the taking by the legislature, of the property
and franchises of incorporated companies already organized, or hereafter to be
organized, and subjecting them to the public necessity the same as of individuals.
Neb Const Art X, § 6 (emphasis added).
54. “The right to authorize the exercise of the power and the mode of the exercise
thereof is legislative.” Little v Loup River Pub Power Dist, 150 Neb 864, 869, 36 NW2d 261,
265 (1949) (citing Missouri Valley Pipe Line Co v Neely, 124 Neb 293, 246 NW 483 (1933);
Georgen v Department of Public Works, 123 Neb 648, 243 NW 886 (1932); Paine v Savage, 126
Me 121, 136 A 664 (1927)). Nebraska courts have long held that the Legislature can delegate
the power of eminent domain to other agencies by statute. See City of Omaha v Tract No 1, 18
Neb App 247, 251, 778 NW2d 122, 127 (2010)(“The Legislature has delegated the power of
eminent domain to cities of the metropolitan class, including the City, to acquire property for use
19
as part of a public street pursuant to Neb Rev Stat § 14-366 (Reissue 2007”); Gustin v Scheele,
250 Neb 269, 276, 549 NW2d 135, 140 (1996). (“Railroads, although …private corporations,
also can acquire land by eminent domain for their use. Neb Rev Stat § 74-308 (Reissue 1990)”).
“Statutes conferring and circumscribing the power of eminent domain must be strictly
construed.” Burlington N & Santa Fe Ry Co v Chaulk, 262 Neb 235, 241, 631 NW2d 131, 137
(2001). But, LB 1161 does not grant the power to exercise eminent domain to the executive
branch. It gives the Governor authority to confer the power of eminent domain to a private
pipeline company who he chooses, to be exercised where and when he describes.
55. LB 1161 changes Neb Rev Stat § 57-1101 to allow the Governor to grant eminent
domain to any pipeline company he or she chooses to approve. It provides in § 1:
Any person engaged in, and any company, … former or created for the purpose
of, transporting or conveying crude oil, petroleum, gases, or other products
thereof in interstate commerce through or across the State of Nebraska or
intrastate within the State of Nebraska, and desiring or requiring a right-of-way
… as may be reasonably necessary for the laying, relaying, operation, and
maintenance of any such pipeline or the location of any plant or equipment
necessary to operate such pipeline, shall have the right to acquire the same for
such purpose through the exercise of the power of eminent domain, except
that for any major oil pipeline as defined in section 57-1404 to be placed in
operation in the State of Nebraska after November 23, 2011, any such person,
company, corporation, or association shall comply with section 57-1503, and
receive the approval of the Governor for the route of the pipeline under such
section or shall apply for and receive an order approving the application under the
Major Oil Pipeline Siting Act, prior to having the rights provided under this
section….(emphasis added).
56. LB 1161 changes the constitutional framework of how eminent domain is
delegated and exercised. The sole condition precedent after compliance with section 57-1503 for
a pipeline carrier to receive eminent domain power is the Governor’s approval.
57. This chart compares the constitutional method of delegating the power of eminent
domain to the new method stated in LB 1161:
Constitutional Manner of Delegation LB 1161 – Unconstitutional Delegation
20
Constitutional Manner of Delegation LB 1161 – Unconstitutional Delegation
Legislature has Authority to Delegate Power
of Eminent Domain but must make policy
Legislature Delegates Authority to Delegate
Power of Eminent Domain to the Governor
including policy decisions
Legislature Delegates Power to Exercise
Eminent Domain to an Approved Party
Governor Delegates the Power to Exercise
Eminent Domain to Pipeline Carrier
The Approved Party then Exercises the Power
of Eminent Domain
Approved Person or Pipeline Company then
Exercises Power of Eminent Domain against
landowners in Nebraska
58. LB 1161 purports to give the Governor the authority to decide who, when, and
how eminent domain may be exercised. These are exclusively legislative powers; they cannot be
delegated. This Court has steadfastly so ruled. LB 1161’s delegation of powers from the PSC to
the Governor over who, when, and how eminent domain may be exercised is unconstitutional.
IV. LB 1161 Unconstitutionally Provides for No Judicial Review & Violates Due
Process
59. LB 1161 contains not so much as a single syllable about judicial review. The
Governor’s policy and implementation decisions making authority is unfettered. It provides for
no judicial review whatsoever. The Governor is empowered to decide who, when, and where a
pipeline can be placed, and why. No citizen can pose these questions after he/she does so: Did
the Governor act lawfully? Rationally? Constitutionally? This is because LB 1161 fails to
provide for judicial review. Contrast this with the appeal procedure provided in MOPSA at Neb
Rev Stat § 57-1409.
60. LB 1161 is unconstitutional for being completely devoid of any judicial review.
LB 1161 violates both the due process clause, Neb Const Art I, § 3, and the doctrine of
separation of powers. Neb Const Art II, § 1.
61. Under LB 1161 once the standard-less “evaluation” of the NDEQ reaches the
Governor, the process of approval or denial of a pipeline route occurs in a vacuum with no public
hearing, no notice, and no opportunity to appeal the Governor’s approval of the who, where,
how and why issues concerning a route and eminent domain power vesting in a private company.
There is no procedural due process or substantive due process under LB 1161.
21
62. Decisions of administrative agencies can be appealed by interested parties under
the Administrative Procedures Act (“APA”), Neb Rev Stat § 84-901, et seq. But the APA does
not apply to gubernatorial applications for pipelines under LB 1161. Appeals from the PSC
process are, however, allowed. “[A]s a general rule, in order to satisfy the requirements of due
process, it is required that administrative proceedings shall be subject to a review in the courts
and to a judicial determination made on notice and a hearing, particularly when property rights
are affected.” 16D CJS Constitutional Law § 1816.
63. The Legislature cannot divest the PSC of jurisdiction and then vest it in the
Governor. The PSC is a quasi-judicial body. In Re Claims Against Atlanta Elev, 268 Neb 598,
685 NW2d 477 (2004). Chase 3000 v Public Service Comm’n, 273 Neb 133, 728 NW2d 560
(2007). The Governor is not. LB 1161 provides for no judicial review of the Governor.
The … Constitution firmly establishes that the judicial power in Nebraska is vested
solely in the courts. Transport Workers of America v Transit Auth of City of Omaha, 205
Neb 26, 286 NW2d 102 (1979), citing Neb Const Art II, § 1, and Art V, § 1.
As a general rule administrative agencies have no general judicial powers,
notwithstanding they may perform some quasi-judicial duties. Moreover, unless permitted
by the Constitution, the Legislature may not authorize administrative officers or bodies to
exercise powers which are essentially judicial in their nature, or to interfere with the
exercise of such powers by the courts.
Jaksha v State, 241 Neb 106, 132, 486 NW2d 858, 875 (1992)(property tax unconstitutional).
64. Davis v General Motors Acceptance Corp, 176 Neb 865, 127 NW2d 907 (1964),
involved a series of statutes passed by the Legislature relating to installment sales contracts and
installment loans. One of these statutes included a provision that any declaration of
unconstitutionality as to the statutes would apply prospectively only. This court held that the
provision violated the doctrine of separation of powers. The court reasoned:
It is a settled principle of constitutional law that the construction and
interpretation of the Constitution is a judicial function and it is the duty of the judicial
branch of our government to determine whether an act of the Legislature contravenes the
provisions of the Constitution. [Citation omitted.] This power and duty necessarily
include the authority to determine what effect if any an unconstitutional statute shall have
upon the rights of parties which may have been affected by it.
22
Id. at 871, 127 NW2d at 912. LB 1161 shares the constitutional infirmity of no judicial review
as the statutes stricken by Davis. Jaksha, above, adhered to Davis. And, for good reasons.
65. Access to the courts is a fundamental right protected by Due Process clauses in
the Federal and State Constitutions. Boddie v Connecticut, 401 US 371, 379 (1971); Boll v
Dep't of Revenue, State of Neb, 247 Neb 473, 528 NW2d 300 (1995). “In short, ‘within the
limits of practicability,’ [citation omitted] a State must afford to all individuals a meaningful
opportunity to be heard if it is to fulfill the promise of the Due Process Clause.” Boddie, 401 US
371, 379 (1971). The Due Process Clause may be offended by acts that foreclose access to the
courts. Boll, 247 Neb at 478, 528 NW2d at, 304 (1995).
66. Under LB 1161, the Governor may approve or disapprove a pipeline for any
reason. There is no requirement for evidence to be presented, a court reporter to be present for
recording testimony by stenographic means, or even a hearing for people to attend. Plainly, there
is no participation at all besides the Governor. In fact, the Governor need not follow, or even
read, the NDEQ evaluation purportedly designed to contain the entirety of data relied upon by
the Governor. The Governor’s decision is guided by nothing but whim, sealed from judicial
review. No checks. No balances. No scrutiny. No questions. And, no constitutional compliance.
This is a fatal flaw that requires LB 1161 to be stricken for yet another reason.
V. LB 1161 Provides No Reasonable Governing Standards
67. LB 1161 constitutes an unlawful and unconstitutional delegation of authority
because it is devoid of any clearly and definite standards by which the Governor, in his or her
sole unguided judgment, decide who, when, where and how an applicant can route and build a
pipeline, and take property from Nebraskans who make a living with it so the company can make
a profit of its own. The Bill provides no policy and no standards. It “punts” the subject to the
Governor. The Nebraska Constitution does not permit this to stand. Neb Const II, § 1. The
Legislature must make the policy. And either the Legislature or the PSC must administer the
policy. If the PSC is assigned this duty, it must apply the Legislative policy under standards
given by the Legislature. Lincoln Dairy Co v Finigan, 170 Neb 777, 780-81, 104 NW2d 227,
230-31 (1960).
68. When delegating power, the Legislature must provide clear and definite standards.
It is agreed that "[t]he Legislature does have power to authorize an administrative or executive
Department to make rules and regulations to carry out an expressed legislative purpose, or for the
23
complete operation and enforcement of a law within designated limitations." Ponderosa Ridge
LLC v Banner County, 250 Neb 944, 951, 554 NW2d 151, 157 (1996) (quoting Lincoln Dairy
Co). “The limitations of the power granted and the standards by which the granted powers are to
be administered must, however, be clearly and definitely stated in the authorizing act." Id.
Where the Legislature has provided reasonable standards for carrying out the delegated duties,
there is no unconstitutional delegation of legislative authority. Bamford v Upper Republican Nat
Resources Dist, 245 Neb 299, 512 NW2d 642 (1994). Standards are mandatory:
The question of how far the Legislature should go in filling in the details of the
standards which an administrative agency is to apply raises large issues of policy
in which the Legislature has a wide discretion…. Such standards in conferring
discretionary power upon an administrative agency must be reasonably
adequate, sufficient, and definite for the guidance of the agency in the exercise
of the power conferred upon it and must also be sufficient to enable those
affected to know their rights and obligations. … (emphasis added).
State ex rel Douglas v Nebraska Mtge Fin Fund, 204 Neb 445, 465, 283 NW2d 12, 24 (1979).
69. “Although the limitations of the power granted and the standards by which the
granted powers are to be administered must be clearly and definitely stated in the authorizing
act, where the Legislature has provided reasonable limitations and standards for carrying out the
delegated duties, there is no unconstitutional delegation of legislative authority.” State v Ellis,
281 Neb 571, 592, 799 NW2d 267, 289 (2011) cert denied, 132 S Ct 463. Assuming the
Legislature could delegate to the Governor in the area of law at issue (and it cannot), it must give
standards for administering the given powers. Here, there are none.
70. Without standards to which he or she must be held, the Governor is granted
unfettered power. “Power tends to corrupt, and absolute power corrupts absolutely.” John
Dalberg-Acton, 1st Baron Acton, Letter to Bishop Mandell Creighton, April 5, 1887 in Historical
Essays and Studies (Macmillan, 1907). The Governor cannot be given authority from the
Legislature without clear and definite standards. None exists. So, LB 1161 should be overturned
as unconstitutional for this reason, too.
71. Here no plausible policy reason for the closed class is present. LB 1161
effectively closes the door to a hearing and judicial review to any interested parties when the
Governor decides to delegate the power of eminent domain, yet the very same interested parties
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would be afforded a hearing and judicial review for the exact same pipeline siting project if the
proposal went in front of the PSC. Neb Rev Stat § 57-1409. This is without legislatively
expressed reasons for the classification. Others who seek common carriage authority must
comply with PSC standards, rules, procedures, and may use judicial review. Those who
unilaterally pick the gubernatorial shortcut can have their way with the untested signature of the
Governor who may sign or decline for whatever honorable or lawless reason that moves the
officeholder. In one instance, the judiciary is available to assure legality; in the other it is not. For
the offended, this denies equal protection.
VI. LB 1161 Offends Neb Const Art III, § 18 as Special Legislation
72. LB 1161 is constitutionally infirm as special legislation. It utilizes an arbitrary
and unreasonable classification, and it creates a closed class. Neb Const Art III, § 18, dictates:
The Legislature shall not pass local or special laws in any of the following cases,
that is to say: …
In all other cases where a general law can be made applicable, no special law
shall be enacted.
“The focus of the prohibition against special legislation is the prevention of legislation which
arbitrarily benefits or grants special favors to a specific class. A legislative act constitutes special
legislation if (1) it creates an arbitrary and unreasonable method of classification or (2) it creates
a permanently closed class.” Kiplinger v Nebraska Dept of Natural Res, 282 Neb 237, 255, 803
NW2d 28, 43 (2011); Michelle Hug, Henstock, Inc v City of Omaha, 275 Neb 820, 826, 749
NW2d 884, 890 (2008). LB 1161 is unconstitutional special legislation because it utilizes an
arbitrary and unreasonable method of classifying which oil pipeline carriers must undergo the
PSC review versus choosing the Governor and it creates a closed class of one (1) oil pipeline
company that may use the procedural changes in LB 1161.
73. LB 1161 is special legislation because it serves a closed class of one (1) oil
pipeline company, that may use the gubernatorial shortcut provisions. Only a pipeline carrier
who submitted a pipeline route prior to April 17, 2012, and is currently proposing to construct a
major oil pipeline with, through, or across Nebraska to be put in service after November 23,
2011 benefits from LB 1161’s PSC bypass. No new interested parties can utilize the statutory
changes in LB 1161 because none can meet the condition precedent of having submitted a
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Nebraska route prior to April 17, 2012, and filing a Presidential Permit application. Legislative
history makes it clear that this is a special law granting a special favor to a single company.
74. “In determining whether a class is closed, this court is not limited to the face of
the legislation, but may consider the act's application.” Haman v Marsh, 237 Neb 699, 717, 467
NW2d 836, 849 (1991). Whether a law is general, or special legislation depends on how it
actually applies: “A legislative act that applies only to particular individuals or things of a class
is special legislation.” Haman v Marsh, 237 Neb at 709, 467 NW2d at 846.
75. A special session of the Legislature was called in November 2011 to deal solely
with major oil pipeline routing legislation. The Special Session passed LB1, MOPSA, with the
stated purpose to “ensure that a major oil pipeline is not constructed within Nebraska without
receiving approval of the commission [PSC]” and to “ensure that the location of routes for major
oil pipelines is in compliance with Nebraska law.” Neb Rev Stat § 57-1402. LB 1161 eliminated
section 3 of § 57-1402. Section 3 had read: “The Major Oil Pipeline Siting Act shall not apply to
any major oil pipelines that have submitted an application to the United States Department of
State pursuant to Executive Order 13337 prior to the effective date of this Act.”
76. As of November 23, 2011, only one company, TransCanada Keystone Pipeline
LP, intended to construct a major oil pipeline within Nebraska, and only it had submitted an
application for a Presidential Permit pursuant to Executive Order 13337. (Stip ¶ 12 & 13) There
is no evidence of any other pipeline permit applications to the US President anywhere in the
record. Therefore, as of November 23, 2011, MOPSA and its mandatory PSC review process
would not affect TransCanada as it had, at the time, a live and pending Presidential Permit
application.
77. However, on January 18, 2012, after the effective date of LB1 of November 23,
2011, the President of the United States denied TransCanada’s then pending Presidential Permit
application. (Stip ¶ 15 & 17; E 23). This was a shock to TransCanada and a disappointment to
Defendant Heinemann. Later that day, January 18, 2012, Defendant Governor Heineman issued
an immediate press release expressing his “disappointment with the action of President Obama”
and noted an “approval of the pipeline would have allowed TransCanada to move forward with
the project…” (E 24).
78. As of January 18, 2012 TransCanada no longer had an active and pending
presidential permit application and now did not fit under the MOPSA exemption provided in
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LB1 Section 3(3) and they would therefore be subject to the PSC Review process if they re-
applied for a Presidential Permit and/or a route through Nebraska. Defendant Heineman noted
“The President’s decision [to deny] is disruptive and we are now going to review in detail what
this means for Nebraska.” (E 24) It is unclear who “we” is in the Governor’s press release.
79. The following morning of January 19, 2012 LB 1161 was introduced by Senator
Jim Smith. (E 3, 4 & 5). “We” moves very fast.
80. On January 23, 2012, Defendant Heineman received a document stamped “Gov’s
Policy Research” Keystone XL Pipeline Nebraska Re-route. (E 33). This document specifically
states in the last paragraph of page 3, “The purpose of LB 1161 is to modify the authorization of
the NDEQ to work with Keystone on a reroute within Nebraska outside of the auspices of a
supplemental EIS under NEPA.” The sole purpose of LB 1161 as admitted here was for the
benefit of TransCanada’s Keystone (KXL) pipeline. The legislative history also supports this
fact.
81. On February 16, 2012 LB 1161 had its first hearing in front of the Natural
Resources Committee. (E 4 pg 2). Senator Smith opened his prepared statements by saying, “LB
1161 is a simple amendment to LB1 and LB4…and LB 1161 is not intended to generate new
discussion…” He continued, “unfortunately we could not have anticipated the circumstances and
the actions that occurred at the federal level [TransCanada Permit denial] that now jeopardize the
agreements we reached last year.” (E 4 pg 3). Continuing Smith stated “Following me in
testimony today will be Robert Jones, vice president for Keystone Pipeline at TransCanada. I
have asked Mr. Jones to again join us and to provide the committee with an update of their plans
with regard to Nebraska. Also following me will be Mr. Jim White, federal regulatory counsel
for TransCanada, who can provide this committee with some insight into the federal process that
has or that will occur with regard to Keystone XL going forward. (E 4 pg 4).
82. It is important to note that as of January 18, 2012, the controlling mechanism for
approval of oil pipelines larger than six inches in diameter was through the PSC via MOPSA.
However, if an oil pipeline carrier had an active application for a Presidential Permit that had not
been denied they would be allowed to bypass MOPSA and the PSC. Since TransCanada’s permit
was denied they would have to submit a new permit and therefore would fall under the purview
of MOPSA and the PSC as pipeline route evaluator and trigger for any eminent domain rights if
the pipeline was approved, unless new legislation was passed. Enter, LB 1161 as the vehicle to
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get TransCanada’s KXL pipeline state review and approval and trigger for eminent domain
rights out of the PSC and MOPSA and in to the hands of the Governor and the NDEQ.
83. LB 1161 was signed into law by the Governor on April 17, 2012, and became
effective on April 18, 2012. (Stipulation para 19)
84. The same day, April 18, 2012, TransCanada submitted its “Initial Report
Identifying Alternative and Preferred Corridors for Nebraska Reroute” to NDEQ for evaluation
of the proposed Keystone XL Pipeline project pursuant to LB 1161 and with the option granted
to it to bypass the PSC and MOPSA by choosing the Governor/DEQ approach. See, Neb. Rev.
Stat. § 57-1503. (Stip ¶ 20)
85. On May 4, 2012, TransCanada reapplied, filing a new application with the State
Department for a Presidential Permit for the construction of an international border crossing for
the proposed Keystone XL Pipeline at the U.S.-Canada border crossing site in Montana. (Stip ¶
21)
86. LB 1161 was enacted for TransCanada’s benefit to streamline route approval and
construction across Nebraska if its second Presidential permit application is granted. The
Legislature did not express a reasonable basis for enacting special laws to favor a single pipeline
company, nor to limit judicial review for those along the route of this single pipeline, and it did
not identify how such special legislation would further a legitimate public policy. Unless it does
these things, Art 3 § 18 is violated. Banks v Heineman, 286 Neb 390, __NW2d __ (2013); Yant v
City of Grand Island, 279 Neb 935, 784 NW2d 101 (2010).
87. A class of one (1) that cannot grow is a closed class. Theoretical applicants in a
make believe world do not change the closed status of the LB 1161 class. Its closed class makes
the Bill unconstitutional. This is not a case where a class is necessarily closed and legislation is
necessary to prevent a pipeline company from being unjustly treated by a change in Nebraska
law. Compare, Banks v Heineman, 286 Neb 390, *8 (single taxpayer benefits to prevent
perceived harm from change in law). Impermissible special legislation is present in LB 1161.
VII. Gubernatorial Action Under LB 1161 Is Void if LB 1161 Is Void
88. Nebraska’s Governor has a limited authority. Unless expressly authorized by the
constitution or a statute, the Governor is powerless to act. State law does not give the Governor
impairment or expressed power, outside LB 1161, to authorize routes, placement, times,
circumstances or identities of applicants, who wished to build major crude oil pipelines. If the
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Governor acts under LB 1161, but the statute is void as unconstitutional, then his action has no
sound legal basis and is void.
89. Plaintiffs’ proposition is simple. If any one of the many challenges to the
constitutionality of LB 1161 are successful and LB 1161 is deemed unconstitutional, any acts
taken as a result of powers or directives of LB 1161 are therefore also unconstitutional, null and
void. An injunction seeking to prohibit the enforcement of an unconstitutional statute is proper.
See Let's Help Florida v McCrary, 621 F.2d 195 (5th Cir. 1980), judgment aff'd, 454 US 1130
(1982); Burnau v Whitten, 642 SW2d 346 (Mo 1982); Ex parte Young, 209 US 123 (1908)
(sustaining action in federal court to enjoin state attorney general from enforcing unconstitutional
state law); see also, e.g., Briggman v Virginia, Dept. of Social Services, Div of Child Support
Enforcement, 526 F Supp 2d 590 (WD V. 2007) (under the doctrine of Ex parte Young, an
individual may petition a federal court to enjoin State officials in their official capacities from
engaging in future conduct that would violate the Constitution or a federal statute).
90. If Plaintiffs are successful, any acts of the Governor, or other Defendants, under
authority of LB 1161 are inherently unconstitutional because they flow from and are a product of
an unconstitutional law. Plaintiffs seek an injunction preventing enforcement of LB 1161.
Complaint May 23, 2012 at ¶ 19.4 & all amendments. The January 22, 2013 letter from
Governor Heineman to President Obama and Secretary of State Clinton is authorized by LB
1161. Without the Bill to authorize the action, the Governor has no such authority to act and his
efforts to act would be void.
91. If LB 1161 is declared unconstitutional, the Governor’s route approval is
unconstitutional and his approval void because no law authorizes it. If LB 1161 is
unconstitutional, then all acts flowing from it, including eminent domain rights vested in a
pipeline company, are also unconstitutional.
VIII. LB 1161 Unconstitutionally Authorizes an Unlawful Pledge of State Credit
92. LB 1161 requires a loan of State funds to a pipeline applicant. Neb Const Art
XIII, §3 prohibits the State from pledging its credit or loaning funds:
The credit of the state shall never be given or loaned in aid of any individual,
association, or corporation, except that the state may guarantee or make long-term,
low-interest loans to Nebraska residents seeking adult or post high school education
at any public or private institution in this state. ….
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LB 1161 violates this constitutional mandate.
93. “In summary, Article XIII, § 3, seeks to prevent the state from loaning its credit to
an individual, association, or corporation with the concomitant possibility that the state might
ultimately pay that entity's obligations.” Japp v Papio-Missouri River Natural Res. Dist., 273
Neb 779, 788, 733 NW2d 551, 558 (2007). LB 1161 requires a State loan to advance and pay
for costs that would never have occurred but for the pipeline company’s application and request
for a route determination.
94. The extension of credit to a private pipeline company, engaged in private
business, is the exact issue underlying the purpose of Neb Const Art XIII, § 3 and similar
constitutional provisions in other states, quoting an Arizona decision:
It represents the reaction of public opinion to the orgies of
extravagant dissipation of public funds by counties, townships, cities and
towns in aid of the construction of railways, canals, and other like
undertakings during the half century preceding 1880, and it was designed
primarily to prevent the use of public funds raised by general taxation in
aid of enterprises apparently devoted to quasi public purposes, but
actually engaged in private business.
Haman v Marsh, 237 Neb 699, 719, 467 NW2d 836, 850 (1991)(quoting State v Northwestern
Mutual Insurance Co., 86 Ariz 50,53, 340 P2d 200, 201 (1959).
95. Here, there are public funds at issue to aid an enterprise devoted to a quasi public
purpose, but actually engaged in private business. Contrary to Neb Const Art XIII, § 3, LB 1161
§ 7 pledges interest-free funds and credit of the State in aid of pipeline corporations for at least
sixty (60) days under the hope the pipeline applicant later repays the State Treasury. The State’s
pledge to advance funds is clearly in aid of the corporation in that the funds and credit advanced
would otherwise be debts of the pipeline company for expenses and fees incurred during the
route evaluation process of the company’s proposed route. (E 34 p 1).
96. LB 1161 § 7; Neb Rev Stat § 57-1503(1)(b) provides:
A pipeline carrier…shall reimburse the Department for the cost of the evaluation
or review within sixty days after notification from the Department of the cost. The
Department shall remit any reimbursement to the State Treasurer….
97. This is an extension of credit, in the form of an obligation to front end costs that
must be paid by the State. It cast the State into the role of debtor obligated by LB 1161 to
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advance payments, and later as creditor trying to get them back. Callan v Balka, 248 Neb 469,
476, 536 NW2d 47, 51 (1995)(defining credit of State). Art VIII, § 3 suffers no such laws. In
furtherance of this extension of credit LB1161 §8 appropriates “$2,000,000 … to aid in carrying
out the provisions of Legislative Bill 1161….” Total expenditures have exceeded the $2,000,000
wrongfully appropriated sum by nearly $4,000,000. (E 34 p 6). There was no prior
appropriation, constitutional or unconstitutional, of this nearly $4,000,000 additional State
payment for the benefit and in aid of a pipeline company.
Conclusion
98. Plaintiffs have standing to maintain this case, their case is ripe, and they state
have articulated valid grounds for striking LB 1161 for its multiple constitutional infirmities.
They respectfully request that the Court issue its Declaratory Judgment striking LB 1161 as
unconstitutional and void.
99. Plaintiffs also request that the Court issue its permanent injunction to enjoin
Defendants from acting under LB 1161.
100. Plaintiffs request judgment for fees and costs, and any further relief the Court
deems just and equitable.
Randy Thompson, et al., Plaintiffs
By:______________________
David A Domina # 11043
Brian E Jorde # 23613
Domina Law Group pc llo
2425 S 144th
St.
Omaha NE 19144-3267
402-493-4100
Plaintiffs’ Lawyers