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303 Nebraska Report

IN RE APPLICATION NO. OP-0003

Cite as 303 Neb. 872

In re Application No. 

TransCanada Keystone Pipeline, LP, et al., a

cross-appellees, v. Susan and William Dunavan

appellants, Yankton Sioux Tribe of So

and Ponca Tribe of Nebraska, appell

cross-appellants, and Sierra Club, Neb

Chapter, et al., appellees.

___ N.W.2d ___

Filed August 23, 2019. No. S-17-1331.

1. Jurisdiction: Appeal and Error. A jurisdictional question which does 

not involve a factual dispute is determined by an appellate court as a 

matter of law.

2. Administrative Law: Statutes: Appeal and Error. The meaning and 

interpretation of statutes and regulations are questions of law for which 

an appellate court has an obligation to reach an independent conclusion 

irrespective of the decision made by the court below.

3. Constitutional Law: Due Process. The determination of whether the 

procedures afforded to an individual comport with constitutional requirements for procedural due process presents a question of law.

4. Public Service Commission: Appeal and Error. Under Neb. Rev. Stat. 

§ 75-136(2) (Reissue 2018), an appellate court reviews an order of the 

Nebraska Public Service Commission de novo on the record.

5. Appeal and Error. In a review de novo on the record, an appellate court 

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

independent conclusions concerning the matters at issue.

6. Administrative Law: Appeal and Error. Where the evidence is in conflict, the Supreme Court will consider and may give weight to the fact 

that the agency hearing examiner observed the witnesses and accepted 

one version of the facts rather than another.

7. Constitutional Law: Public Service Commission. The Nebraska Public 

Service Commission is an independent regulatory body created by the 

Nebraska Constitution in article IV, § 20.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

11/01/2019 09:07 AM CDT
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8. Public Service Commission. The determination of what is consistent 

with the public interest, or public convenience and necessity, is one 

that is peculiarly for the determination of the Nebraska Public Service 

Commission.

9. Statutes: Appeal and Error. Statutory language is to be given its plain 

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

direct, and unambiguous.

10. Statutes: Legislature: Intent. Components of a series or collection of 

statutes pertaining to a certain subject matter are in pari materia and 

should be conjunctively considered and construed to determine the 

intent of the Legislature, so that different provisions are consistent, harmonious, and sensible.

11. Evidence. Unless an exception applies, only a preponderance of evidence is required in civil cases.

12. Trial: Evidence: Proof. The burden of proof is satisfied by actual proof 

of the facts, of which proof is necessary, regardless of which party introduces the evidence.

13. Administrative Law: Pleadings. The rules of pleading are not applied 

in administrative proceedings as strictly as they are in court proceedings.

14. Administrative Law: Due Process: Notice. Due process requires notice 

and an opportunity for a full and fair hearing at some stage of the 

agency proceedings.

15. Notice: Waiver. It is generally held that participation in the hearing 

waives any defect in the notice.

16. Administrative Law: Appeal and Error. An appellate court will not 

consider an issue on appeal that was not presented to or passed upon by 

the administrative agency.

17. Interventions: Final Orders: Appeal and Error. An order denying 

intervention is a final order for purposes of appeal.

18. Administrative Law: Statutes. Agency regulations properly adopted 

and filed with the Secretary of State of Nebraska have the effect of 

statutory law.

19. Rules of Evidence: Hearsay: Statutes. The Nebraska Evidence Rules 

provide that hearsay is admissible when authorized by the statutes of the 

State of Nebraska.

20. Legislature: Courts: Evidence. The legislative branch has the right to 

prescribe the admissibility of certain categories of evidence, but it is 

solely a judicial function to determine the weight, if any, to be given 

such evidence.

21. Evidence: Appeal and Error. In a civil case, the admission or exclusion of evidence is not reversible error unless it unfairly prejudiced a 

substantial right of the complaining party.
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22. Interventions: Pleadings. Intervenors can raise only issues that sustain 

or oppose the respective contentions of the original parties.

23. Interventions: Parties. An intervenor who is not an indispensable party 

cannot change the position of the original parties or change the nature 

and form of the action or the issues presented therein.

24. Interventions. An intervenor cannot widen the scope of the issues, 

broaden the scope or function of the proceedings, or raise questions 

which might be the subject of litigation but which are extraneous to the 

controlling question to be decided in the case.

Appeal from the Public Service Commission. Affirmed.

David A. Domina and Brian E. Jorde, of Domina Law 

Group, P.C., L.L.O., for appellants.

Douglas J. Peterson, Attorney General, L. Jay Bartel, David 

A. Lopez, and Lynn A. Melson for appellee Nebraska Public 

Power Service Commission.

James G. Powers and Patrick D. Pepper, of McGrath, North, 

Mullin & Kratz, P.C., L.L.O., for appellees TransCanada 

Keystone Pipeline, LP, et al.

Jennifer S. Baker and Leonika R. Charging, of Fredericks, 

Peebles & Morgan, L.L.P., for appellee Yankton Sioux Tribe.

Brad S. Jolly, of Brad S. Jolly & Associates, for appellee 

Ponca Tribe of Nebraska.

Kenneth C. Winston for appellee Sierra Club, Nebraska 

Chapter.

Heavican, C.J., Miller-Lerman, Cassel, St

Papik, and Freudenberg,

Funke, 

The Nebraska Public Service Commission (PSC) granted 

the application filed by TransCanada Keystone Pipeline, LP 

(TransCanada), pursuant to the Major Oil Pipeline Siting Act 

(MOPSA), Neb. Rev. Stat. §§ 57-1401 to 57-1413 (Reissue 

2010 & Cum. Supp. 2018), for approval of a major oil pipeline 
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route and eminent domain authority. The PSC approved the 

“Mainline Alternative Route” (MAR), a 36-inch major oil pipeline and related facilities to be constructed through Nebraska, 

from the South Dakota border in Keya Paha County, Nebraska, 

to Steele City, Nebraska. The landowners, two Indian tribes, 

and the Sierra Club, Nebraska Chapter (Sierra Club), all intervened in the proceedings. The landowners appealed, the Indian 

tribes cross-appealed, and the Sierra Club attempted to appeal 

from the PSC’s decision.

The intervenors raise numerous arguments on appeal. Each 

of these arguments raises issues of public concern and represents profound, deeply held beliefs. Upon de novo review 

of the PSC’s decision, we find the matters in controversy 

are resolved based on the determination of four overarching 

issues: The first, whether the PSC had jurisdiction to consider 

TransCanada’s application; the second, whether TransCanada 

met its burden of proof; the third, whether the PSC properly 

considered the MAR; and the fourth, whether the intervenors 

were afforded due process. We answer each of these questions 

in the affirmative.

At the outset, we observe that this appeal comes to us in a 

completely different legal framework than we confronted in 

Thompson v. Heineman.

1

 While both cases involve the statutory process for obtaining route approval of an oil pipeline, 

the issues in this appeal are distinctly different from those in 

Thompson because here, route approval was sought from the 

PSC using the MOPSA procedure. In this opinion, we describe 

the procedures enacted by the Legislature to effectuate proceedings under MOPSA. We discuss the record in detail and 

show that TransCanada carried its burden of proving that the 

MAR is in the public interest. We then determine that the errors 

assigned by the intervenors are without merit. Accordingly, we 

affirm the PSC’s determination that approval of the MAR is in 

the public interest.

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

TransCanada is a limited partnership organized in Delaware 

with its principal place of business in Houston, Texas. In 2008, 

TransCanada applied for a presidential permit to construct a 

pipeline across the Canadian border into the United States. 

The proposed route would have passed through the Nebraska 

Sandhills at a time when no legal standards existed in Nebraska 

to constrain an oil pipeline carrier’s right to exercise eminent 

domain authority.2 In 2011, Gov. Dave Heineman called a 

special session of the Legislature to enact siting legislation for 

pipeline routing.

1. Siting Leg

The Legislature enacted MOPSA, 2011 Neb. Laws, L.B. 1, 

§ 2, 1st Spec. Sess., which gave routing authority to the PSC, 

an independent regulatory body with duly elected officials.3

MOPSA applies to a pipeline with an interior diameter larger 

than 6 inches that is built to transport petroleum products 

within, through, or across Nebraska.4 MOPSA requires a major 

oil pipeline carrier to apply for and obtain routing approval 

from the PSC before the carrier is authorized to exercise eminent domain power pursuant to § 57-1101.5

MOPSA recognized that federal law preempts state regulation of safety issues related to oil pipelines and that Nebraska’s 

laws cannot interfere with the federal government’s uniform 

standards for pipeline safety, operation, and maintenance.6

Consequently, the Legislature enacted MOPSA to address 

“choosing the location of the route aside and apart from safety 

considerations.”7 With MOPSA, the Legislature harnessed 

2 See Neb. Rev. Stat. § 57-1101 (Reissue 2010).

3 See, Neb. Rev. Stat. § 32-509 (Reissue 2016); Neb. Rev. Stat. § 75-101(1) 

(Reissue 2016).

4 § 57-1404(2).

5 See §§ 57-1402(1)(c) and 57-1408(1).

6 § 57-1402(2).

7 See id.
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Nebraska’s remaining sovereign powers with respect to oil 

pipeline construction, granted the PSC authority to conduct 

proceedings and decide applications, and determined that 

“[t]he construction of major oil pipelines in Nebraska is in the 

public interest of Nebraska . . . .”8

In the same special session, the Legislature enacted 2011 

Neb. Laws, L.B. 4, 1st Spec. Sess., which created a separate procedural avenue for a pipeline carrier to obtain route 

approval. Independent from the MOPSA process, § 3 of L.B. 4 

authorized Nebraska’s Department of Environmental Quality 

(DEQ) to collaborate with any federal agency for the preparation of a supplemental environmental impact statement 

(SEIS) for oil pipelines within, through, or across Nebraska, 

in accordance with the review process under the National 

Environmental Policy Act of 1969, 42 U.S.C. § 4321 et seq. 

(2012).9 Once completed, the DEQ was to submit the SEIS to 

the Governor, who then would have 30 days to indicate his or 

her approval of a route in writing to the relevant federal agencies.10 Both L.B. 1 and L.B. 4 were passed with an emergency 

clause and became effective on the same date, November 

23, 2011.

On January 18, 2012, the President of the United States 

denied TransCanada’s permit application. On April 17, 2012, 

the Legislature passed and the Governor approved 2012 Neb. 

Laws, L.B. 1161, which amended L.B. 1 and L.B. 4. In its original form, MOPSA did not apply to TransCanada, because the 

legislation contained an exemption for a pipeline carrier which 

had a pending application for a presidential permit.11 L.B. 1161 

eliminated that exemption, which led TransCanada to seek to 

obtain route approval from the PSC under MOPSA.12

8 § 57-1403(3).

9 L.B. 4, § 3(1).

10 L.B. 4, § 3(4).

11 L.B. 1, § 5(2).

12 L.B. 1161, § 4.
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L.B. 1161 amended § 3 of L.B. 4 so that the DEQ could 

either prepare the SEIS through collaboration with federal 

agencies, as L.B. 4 originally had provided, or could independently evaluate a route submitted by a pipeline carrier “for the 

stated purpose of being included in a federal agency’s or agencies’ National Environmental Policy Act review process.”13

This amendment allowed the DEQ to continue to review possible routes for the Keystone XL pipeline project, which the 

DEQ had ceased reviewing following the President’s denial of 

TransCanada’s application for permit.

In conducting an independent evaluation of a proposed 

route, L.B. 1161 required the DEQ to hold at least one public 

hearing, provide opportunities for public review and comment, 

and analyze “the environmental, economic, social, and other 

impacts associated with the proposed route and route alternatives in Nebraska.”14 The DEQ would then submit its evaluation of the pipeline route to the Governor, and the pipeline 

carrier could then seek the Governor’s approval of the route.15

L.B. 1161 provided that a pipeline carrier’s authorization 

to exercise eminent domain power expires “[i]f condemnation procedures have not been commenced within two years 

after the date the Governor’s approval is granted or after the 

date of receipt of an order approving an application under 

[MOPSA].”16

2. TransCanada Modifie

In 2012, TransCanada modified the original route, which 

would have passed through the Nebraska Sandhills, based 

on recommendations provided by the DEQ. On September 5, 

2012, TransCanada filed a supplemental environmental report 

with the DEQ regarding the “reroute.” The “reroute” avoided 

13 Neb. Rev. Stat. § 57-1503(1)(a)(i) (Cum. Supp. 2018).

14 Id.

15 See, § 57-1503(4); § 57-1101 (Cum. Supp. 2018).

16 § 57-1101 (Cum. Supp. 2018).
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the Sandhills and other areas of fragile soils and shallow 

groundwater identified by the DEQ. On January 3, 2013, the 

DEQ submitted a final evaluation report to the Governor in 

accordance with L.B. 1161. On January 22, the Governor 

approved the “reroute” in a letter to the President and the U.S. 

Department of State (the Department), asking that the DEQ’s 

evaluation be included in the federal SEIS report. TransCanada 

filed condemnation actions, which were later dismissed following litigation challenging the constitutionality of L.B. 1161.

More than 2 years passed after the Governor’s approval of the 

route, and TransCanada no longer proceeded on that approval. 

On January 24, 2017, the President invited TransCanada to 

resubmit its permit application, which TransCanada accomplished 2 days later. On February 16, TransCanada filed an 

application with the PSC for approval of a major oil pipeline 

route. On March 23, the Department granted TransCanada a 

presidential permit.

3. TransCanada’s Applicat

TransCanada’s application to the PSC sought approval of 

a route designated as the “Preferred Route” (PR), which was 

“refined to reflect the recommendations made by the [DEQ] 

and the Governor’s approval.” The “reroute” submitted to 

the DEQ in 2012 “was used as the basis for developing the 

[PR].” The PR is 275.2 miles long and begins at the NebraskaSouth Dakota border in Keya Paha County and passes through 

the Nebraska counties of Keya Paha, Boyd, Holt, Antelope, 

Boone, Nance, Merrick, Polk, York, Fillmore, and Saline 

before terminating in Steele City.

The application referred to two alternative routes, the MAR 

and the “Sandhills Alternative Route” (SAR). TransCanada 

developed each of the three routes with the goal of utilizing the “existing fixed starting point” at the Nebraska-South 

Dakota border in Keya Paha County, north of Mills, Nebraska, 

and the “existing fixed ending point” at the pump station in 

Steele City, which is the end point of the pipeline system 

already existing in Nebraska, known as Keystone I. Keystone I 
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runs north and south through the Nebraska counties of Cedar, 

Wayne, Stanton, Colfax, Butler, Seward, Saline, and Jefferson. 

The PR and the MAR run southeastward and were designed to 

avoid passing through the Sandhills, an ecological region as 

defined by the DEQ.

The PR would run across the southwest corner of Boyd 

County and then cross the Keya Paha River; enter Holt County 

crossing the Niobrara River; cross the Elkhorn River in 

Antelope County, through Boone County; and cross the Loup 

River in Nance County. The route would then turn and cross 

the northeastern corner of Merrick County; cross the Platte 

River; enter Polk County and continue south through York, 

Fillmore, and Saline Counties; and end in Jefferson County. 

The PR would parallel Keystone I for 7.3 miles and would 

require five pump stations.
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The SAR is the route TransCanada initially proposed in 

2008. TransCanada’s application stated: “Compared to the 

[SAR], the overall footprint of the [PR] represents less environmental impact by avoiding the Sandhills region and minimizing impacts to areas with characteristics similar to the 

Sandhills, including shallow groundwater and fragile soils.”

The MAR would “follow the [PR] for 110 miles to just 

south of the Elkhorn River in Antelope County, then head in 

a southeasterly direction across Madison and Stanton counties for approximately 43 miles to intercept [Keystone I],” and 

head south and parallel Keystone I for 97.6 miles, crossing 

Shell Creek and the Platte River in Colfax County. Based on 

the DEQ’s recommendation, TransCanada adjusted the route 

to divert from Keystone I for 29.8 miles to avoid the “Seward 

County Wellhead Protection Area.” The route then rejoins 

Keystone I and continues through Saline County to Jefferson 

County. The MAR would be 5 miles longer than the PR and 

would require a total of six pump stations.

TransCanada stated in the application that it viewed the PR 

to be superior to the MAR, because the MAR would require 

a greater total number of acres; increase the crossing of the 

ranges of federally recognized threatened and endangered species; increase the crossing of highly erodible soils; increase the 

crossing of unusually sensitive ecological areas; and increase 

crossings of perennial streams, railroads, and roads. Despite 

the MAR’s advantages due to its co-location with Keystone I, 

TransCanada considered the PR to be more beneficial than the 

MAR, because the PR was shorter and required one fewer 

pump station.

The application included a reclamation and revegetation plan 

to fully restore lands disturbed by construction along the route 

to their preconstruction capabilities. Under the Oil Pipeline 

Reclamation Act, Neb. Rev. Stat. §§ 76-3301 to 76-3308 

(Reissue 2018), TransCanada is responsible for all reclamation costs necessary as a result of constructing and operating 

the pipeline, except to the extent another party is determined 
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to be responsible.17 TransCanada intends to revegetate the 

pipeline right-of-way as near as practicable to preconstruction conditions to ensure equivalent land capability following 

construction and the establishment of native plant communities 

along the pipeline. TransCanada represented that it will abide 

by § 76-3304(3) and keep its reclamation and maintenance 

obligations until the pipeline is permanently decommissioned 

or removed.

The application specified that the pipeline would be 36 inches 

in diameter for the entire length of the route. Construction 

would occur in a linear segmented fashion within a 110-footwide construction right-of-way, consisting of a 60-foot temporary right-of-way and a 50-foot permanent easement. The 

width of the construction right-of-way may be decreased or 

increased to address natural resource or engineering concerns. 

Moreover, TransCanada stated it will adjust the route “to the 

extent practicable” to avoid culturally significant sites. In addition to the installation of the pipeline, the PR required the construction and operation of permanent aboveground structures, 

including 5 pump stations and 19 intermediate mainline valves. 

The pump stations would be built on purchased land ranging 

from 7 to 17 acres. Each intermediate mainline valve would be 

constructed within a fenced site, approximately 50 feet by 50 

feet, located within the 50-foot-wide easement.

TransCanada concluded its application by stating that the 

PR had been thoroughly evaluated by federal and state agencies, was designed to mitigate impacts to natural resources, 

and ensured minimal impacts to the orderly development and 

growth of the region. In its prayer for relief, TransCanada 

requested an order from the PSC that the PR is in the public interest.

4. Prehearing Mat

The PSC published notice of TransCanada’s application in 

The Daily Record, a legal newspaper in Omaha, Nebraska, on 

17 § 76-3304(1).
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February 20, 2017, and set the deadline for formal intervention 

for March 22. TransCanada filed proof of service of its application on the agencies listed in § 57-1407(3), as well as proof 

of notice to Antelope, Boone, Boyd, Fillmore, Holt, Jefferson, 

Keya Paha, Merrick, Nance, Polk, Saline, and York Counties. 

TransCanada later filed proof that notice of the application was 

filed in newspapers of general circulation in those counties.

Numerous groups and individuals filed petitions to intervene in the proceedings based on property, economic, natural 

resource, social, cultural, and territorial interests. On March 

30, 2017, TransCanada filed objections to certain petitions for 

intervention, arguing that the asserted legal rights or interests 

would not be affected due to the narrow scope of the proceedings. TransCanada argued that MOPSA does not provide a 

forum to litigate whether or not a major oil pipeline should be 

constructed, but instead is limited to the issue of whether or not 

to approve a particular pipeline route.

On March 31, 2017, the hearing officer for the PSC issued an 

“Order on Formal Intervention Petitions.” The order explained 

that, under § 57-1408(2), the applicable statutory deadline for 

the PSC’s decision was “eight months after the issuance of a 

presidential permit authorizing the construction of the major oil 

pipeline.” The presidential permit for the pipeline was issued 

on March 23, which meant that the PSC was required to issue 

its final decision on the application by November 23. The order 

stated that the decisions on the petitions for intervention were 

reached by balancing the strict deadline under MOPSA with 

the need to produce a complete record and afford all interested 

parties an opportunity to be heard.

The order granted petitions for formal intervention filed by 

the landowners with no limitations or conditions. The order 

granted petitions for formal intervention filed by three different unions: the Midwest Regional Office of the Laborers 

International Union of America (LiUNA); the International 

Brotherhood of Electrical Workers, Local Union No. 265; and 

the United Association of Journeymen and Apprentices of the 
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Plumbing and Pipe Fitting Industry of the United States and 

Canada, AFL-CIO (UA). The order imposed conditions on the 

unions’ participation by ordering them to jointly offer testimony from one witness at the public hearing, participate in 

limited discovery, collaborate on cross-examination of up to 1 

hour per witness, and submit one joint brief.

The order granted petitions for formal intervention filed 

by the Ponca Tribe of Nebraska (Ponca) and the Yankton 

Sioux Tribe of South Dakota (Yankton Sioux). Ponca’s petition stated it had a direct interest in the proceedings because 

the routes pass through its traditional, aboriginal, and federally 

recognized territory, which contains “historic, cultural, sacred 

and archaeological natural resources.” Yankton Sioux’s petition 

stated that the proposed pipeline would “traverse [its] ancestral 

territory” and that it had an interest in preserving “cultural, 

spiritual, and historic sites.” The hearing officer found that 

“neither petition cite[d] a legally cognizable current real property interest in land encompassing the route,” but noted that 

§ 57-1407(4)(d) requires the PSC “to consider evidence of the 

social impacts of the project,” and found that evaluating social 

impacts could encompass cultural, anthropological, and historical issues. The order imposed conditions on the tribes’ petitions 

similar to those imposed on the unions.

The order granted petitions for formal intervention, subject 

to the same or similar conditions, filed by groups and individuals asserting environmental and natural resource interests, 

including Bold Alliance and the Sierra Club. The order stated 

that under MOPSA, the PSC is prohibited from evaluating 

safety considerations such as “the risk or impact of spills 

or leaks from the major oil pipeline,” but found that the 

PSC could appropriately consider issues such as the proposed 

route’s “environmental impact, soil permeability, distance to 

groundwater, and impact on plant life and wildlife.”

The order on the petitions for intervention concluded with 

a separate section devoted to addressing the MAR. The order 

stated that “[MOPSA] requires the [PSC] to consider whether 
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any other utility corridor exists that could feasibly and beneficially be used for the route of the major oil pipeline,” and that 

the MAR “partially parallels [Keystone I].” The order therefore “encourage[d] all parties to provide evidence regarding 

the feasibility and potential benefits and/or drawbacks of the 

[MAR].” The order granted each intervenor group permission 

to call an additional witness and offer accompanying exhibits 

to provide evidence concerning the MAR. The order noted that 

the SAR “was previously rejected by Nebraska authorities” and 

therefore has “already effectively been determined to not be a 

viable option.”

On April 5, 2017, the hearing officer entered a case management order. The order set a prehearing conference for July 

31 and announced that a public hearing on TransCanada’s 

application would commence on August 7 in Lincoln, 

Nebraska. The order stated that the PSC may hold public 

meetings “for the purpose of receiving input from the public” 

and that “[a]ny comments received will be made a part of 

the permanent record of this proceeding.” All parties were 

required to submit written testimony in advance and make 

witnesses available for cross-examination at the public hearing. The order stated that “any/all Hearing Officer Orders . . . 

will apply to and bind all parties, will control the course of 

the proceedings, and may be modified only by order of the 

Hearing Officer.”

The PSC published notice of the public hearing on 

TransCanada’s application in The Daily Record newspaper 

on April 11, 2017. The notice also announced that the PSC 

would hold a public meeting in Lincoln on April 18. The PSC 

published notice of its August 7 public hearing in newspapers 

in counties along the MAR and the PR, and sent letters to the 

governing bodies of the cities and counties along both routes 

notifying them that the pipeline route could pass through their 

jurisdiction and seeking their views on whether that would be 

in the public interest. The letters indicated that the application 

was available on the PSC’s website.
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On May 3, 2017, the PSC held a public meeting in York, 

Nebraska. On May 10, “after careful and thoughtful deliberation and reflection of the variety of public comment received by 

the [PSC] at the [public meeting],” the hearing officer entered 

an order “[m]odifying [c]ase [m]anagement [p]lan and [i]ntervention [o]rder.” The order allowed each intervenor group to 

present testimony from two witnesses, in addition to a “witness 

regarding the [MAR] as detailed in the [intervention order].”

On June 7 and 28 and July 26, 2017, the PSC held additional public meetings in York, O’Neill, Norfolk, and Ralston, 

Nebraska, respectively, and received over 450 oral and written 

comments from the public.

5. Public H

The PSC held a public hearing on TransCanada’s application 

from August 7 to 10, 2017, in Lincoln. TransCanada submitted 

prefiled direct examination testimony from 10 witnesses, presented each witness for cross-examination, and filed rebuttal 

testimony from 6 witnesses. The landowner intervenors prefiled testimony from 61 witnesses and offered live testimony 

from 10 landowners and 1 expert witness. Ponca and Yankton 

Sioux each presented testimony from one witness. The natural resource intervenors presented testimony from three witnesses, and the union groups presented testimony from two 

witnesses.

We provide a summary of the presentation of evidence at the 

public hearing, along with context added from the thousands of 

pages of pleadings, exhibits, testimony, and briefs in the record 

before the PSC.

(a) TransCanada Testimony

(i) Tony Palmer

Tony Palmer is the president of TransCanada Keystone 

Pipeline GP, LLC, and TransCanada Keystone, LLC, which 

together own 100 percent of TransCanada, a company organized for the purposes of owning and constructing pipelines 

which transport crude oil from Canada to the United States. 
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Palmer is responsible for development and oversight of the 

pipeline project. He testified in support of the request for 

approval of the PR as set forth in the application. Palmer stated 

the PR was designed by drawing the “shortest footprint . . . 

from Hardisty, Alberta, to Steele City.”

Palmer estimated the initial use of the pipeline would be 

20 years, which could be extended to 50 years if it was well 

maintained. Palmer confirmed that TransCanada is responsible 

for all reclamation costs associated with the project, unless 

another party is determined to be responsible. Palmer represented that TransCanada and all affiliated parties will not claim 

any tax deductions, exemptions, credits, refunds, or rebates 

under the Nebraska Advantage Act, Neb. Rev. Stat. §§ 77-5701 

to 77-5735 (Reissue 2009), and testified that “we do not consider selling the route an option.” Palmer stated that based on 

TransCanada’s studies and the studies conducted by the DEQ 

and the Department, he considered the PR to be superior to 

the MAR.

(ii) Paul Fuhrer

Paul Fuhrer, the project manager for TransCanada USA 

Services Inc., testified regarding the construction process for 

the proposed pipeline and pump stations. Fuhrer stated the 

top of the pipeline will sit a minimum of 4 feet below the 

surface of land, and a minimum of 25 feet below the surface 

of a water stream. Each pump station will be placed an average of 55 miles apart and utilize approximately 8 to 10 acres 

of land, but could utilize up to 17 acres. Shutoff valves will 

be placed at intervals along the pipeline, based on hydraulics 

and other factors, and located within a 50-foot-by-50-foot 

fenced enclosure.

Fuhrer testified about the trenching operations designed 

to provide sufficient width and depth to support the pipeline. 

The construction and installation of a new pipeline would 

require segregating topsoil from subsoil 110 feet across, and 

digging trenches that are approximately 8 feet wide and 7 

feet deep.
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(iii) Ernie Goss

Dr. Ernie Goss, a professor of economics at Creighton 

University and the principal of the “Goss Institute,” testified 

regarding his “socioeconomic” impacts report. Goss concluded 

that the pipeline project would generate economic activity in 

Nebraska such as sales, wages, and jobs, and would contribute 

to the state and local tax bases. He estimated that construction 

of the pipeline would result in positive state and local tax revenue to exceed $264 million through the year 2034. Goss concluded that during the 2-year construction period, the project 

would generate a total of over $890 million in Nebraska, with a 

labor income of $326.6 million supporting an average of 3,397 

jobs per year. He estimated that, during the operations period 

from 2020 through 2034, there would be an economic impact 

in Nebraska of $1.2 billion in output/sales, with labor income 

of $415.5 million supporting an average of 371.7 jobs per year. 

For property tax purposes, Goss considered the pipeline to be a 

15-year asset which would depreciate out, except to the extent 

that facilities are added, replaced, or maintained.

Goss employed an input-output method, a type of applied 

economics analysis that “tracks the interdependence among 

various producing and consuming sectors of an economy.” 

For example, Goss asserted that each $1 million TransCanada 

spends on construction would create a net economic gain of 

$286,522 in Nebraska and that each $1 million TransCanada 

spends on operation would create a net gain of $150,000. Goss 

used “IMPLAN” software in forecasting the economic impact 

of the pipeline. IMPLAN combines input-output analysis with 

regional-specific statistics. Goss stated that IMPLAN is a 

widely used and accepted multiplier system, but agreed that 

IMPLAN is limited in its ability to determine whether “jobs 

or output are new or already existing and are simply being 

reallocated from other uses.”

Goss’ report did not disclose the scope of his engagement, 

but he stated that he was engaged to update his report, initially 

published in 2013, to reflect the most current data. He did not 
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recall how much he had been paid by TransCanada. He admitted the report was not peer reviewed and stated: “The goal was 

to do a study that made sense to the woman and man on the 

street . . . .”

(iv) Sandra Barnett

Sandra Barnett, an environmental specialist for TransCanada 

Corporation, testified regarding environmental issues. Her testimony reiterated TransCanada’s commitment to comply with 

the Oil Pipeline Reclamation Act and to minimize potential 

impacts on land areas and natural resources. Barnett admitted that for affected cropland, “[t]here would be temporary 

yield loss during construction and perhaps for a period of 

time afterward,” but stated that TransCanada will reclaim and 

revegetate the right-of-way and work with the affected landowners to return it “as close as we can make it” to preconstruction condition.

Barnett stated that if a dispute occurs between TransCanada 

and a landowner about the postconstruction condition of land, 

the parties will reach a resolution by consulting the Natural 

Resources Conservation Service (NRCS), a division of the U.S. 

Department of Agriculture, or other agencies, and include them 

in the discussion in order to reach a resolution. Regarding surface water resources, Barnett admitted that during construction, 

there potentially will be temporary degradation to groundwater 

quality and aquatic habitat, as well as bank stability.

(v) John Beaver

John Beaver, a project manager, ecologist, and reclamation specialist with an environmental services company, has 

been the senior reclamation specialist and special-status 

species biologist for the project since 2009. He stated that 

TransCanada will monitor the condition of the right-of-way 

during the pipeline’s entire operational life. He admitted that 

TransCanada’s land surveys and “Construction Mitigation 

and Reclamation Plan” (CMRP) for Nebraska have not been 

updated since 2012.
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(vi) Michael Portnoy

Michael Portnoy, the president and chief executive officer 

of an environmental consulting and engineering firm, is the 

lead hydrologist and project manager for soil permeability and 

distance-to-groundwater surveys. He has academic degrees in 

geology, geochemistry, hydrology, and business administration. 

He testified that there is a wide diversification of soil along the 

PR; he did not separately study the soil along the MAR.

(vii) Dr. Jon Schmidt

Dr. Jon Schmidt, vice president of the management contractor for the pipeline project, helped prepare TransCanada’s 

application. He testified the application compared the different 

routes based on the number of acres disturbed, federally listed 

threatened and endangered species, amount of highly erodible 

soils, ecologically sensitive areas, and number of crossings of 

perennial streams, railroads, and roads. He did not analyze the 

route referred to as the “I-90 Route,” which would co-locate 

with the entire length of Keystone I.

On cross-examination, Schmidt agreed that the MAR “ha[d] 

potential environmental benefits due to its co-location with 

[Keystone I].” He agreed that the PR crosses five Nebraska 

rivers and the MAR crosses only two rivers, but stated the 

MAR crosses more “perennial waterbodies.” He agreed that 

according to a map received in evidence, both the PR and the 

MAR cross the “Ponca Trail of Tears.”

(viii) Meera Kothari

Meera Kothari, a professional engineer and manager for 

TransCanada, helped prepare the section of the application 

which addressed the possible routes. She agreed that the MAR 

could “feasibly” and “beneficially” be used in Nebraska. She 

testified that the MAR’s deviation from Keystone I in Seward 

County was to “avoid the wellhead protection area based 

on the feedback from the DEQ” and confirmed that “there 

are no wellhead protection area issues on either” the PR or 

the MAR.
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(b) Landowner Intervenors 

Testimony

The PSC heard testimony from the landowners focusing on 

issues of soil compaction, topsoil loss, wind and water erosion, 

soil blowouts and slides, adverse impacts to crops based on 

increased soil temperature, and proximity of pipeline construction to water sources. The landowners also provided expert 

testimony on the issue of economic impact.

(i) Arthur Tanderup

Arthur Tanderup owns farmland in Antelope County. He 

and his wife conduct no-till, irrigated farming and raise corn, 

native corn, soybeans, and rye. He described his land as highly 

erodible and testified that construction will interfere with the 

topsoil and the benefits of no-till farming.

(ii) Frank Morrison

Frank Morrison owns farmland in Antelope County, where 

he and his wife produce popcorn, edible beans, and peanuts. 

The land farmed by Morrison contains 65 irrigation wells. 

He testified the proposed route runs approximately 11⁄2 miles 

from his processing facilities and intersects his property almost 

in half.

(iii) Robert Krutz

Robert Krutz owns land in Antelope County. He and his 

wife raise “natural beef,” corn, and soybeans. Krutz testified 

that the construction could put his natural beef certification at 

risk, which would affect his market sales. He stated his concerns about the continued revegetation of his land which supports his livestock.

(iv) Jeanne Crumly

Jeanne Crumly owns land in Holt County. She and her 

husband conduct no-till, irrigated farming and raise corn, soybeans, hay, and potatoes. She testified that the pipeline will 

impact erodible and permeable soils.
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(v) Bonny Kilmurry

Bonny Kilmurry owns land in Holt County. She and her 

husband have a cow-calf operation, and they harvest hay 

from pastureland. Her land contains subirrigated meadows 

with water close to the surface, as well as highly erodible soils, 

which she described as being similar to Sandhills land.

(vi) Diana Steskal

Diana Steskal owns land in Holt County. Steskal owns 

no-till, irrigated farmland that produces wheat, corn, soybeans, 

edible beans, and popcorn, and she urged for the protection of 

the natural resources on her land.

(vii) Andy Grier

Andy Grier is a manager of a ranch in Holt County. He testified about the pipeline’s crossing of the Niobrara River, the 

potential soil erosion from land clearing, and the proximity of 

the pipeline to his ranch’s water supplies.

(viii) Robert Allpress

Robert Allpress owns ranchland on the eastern border of 

Keya Paha County. He stated the proposed route will cross 

through fragile soil that is susceptible to blowouts and slides 

and that many plants and animals will be endangered. He testified he has observed a bald eagle’s nest and whooping cranes 

in areas near his property. In addition, he testified that members of the Ponca and Yankton Sioux have surveyed his property and have identified “culturally significant sites.”

(ix) Dr. Michael O’Hara

Dr. Michael O’Hara, an economics professor at the 

University of Nebraska at Omaha, analyzed the economic 

impact of the proposed pipeline in Nebraska and reviewed 

Goss’ socioeconomic report. O’Hara opined that the pipeline 

would decrease the value of property on the route by approximately 15 percent, and he concluded that the pipeline would 
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“reduce the emotional attitude of property owners towards 

their property.” On cross-examination, he admitted that he 

did not evaluate the Department’s conclusion that the project would not have a negative impact on property values and 

would have a positive economic impact through job creation 

and earnings. He opined that the project would create few 

permanent jobs. He disagreed with Goss’ conclusions about 

the increased property tax revenues generated by the pipeline, 

but acknowledged that TransCanada will be obligated to pay 

significant sales and use taxes.

(c) Yankton Sioux Testimony

Jason Cooke, a member of the Yankton Sioux’s business 

and claims committee, the executive body of Yankton Sioux, 

testified the pipeline would cross the tribe’s ancestral territory 

and would disturb cultural resources. Cooke said he expected 

that the pipeline would encounter burials, ceremonial areas, 

historic trails, and food and medicine gathering areas. In 

addition, he objected to a temporary camp that TransCanada 

may build for its pipeline workers approximately 40 miles 

from a Yankton Sioux reservation. Cooke stated that such 

camps are a source of violence and drugs and that the 

pipeline workers would be drawn to the tribe’s casino in 

South Dakota.

(d) Ponca Testimony

Shannon Wright, the Ponca’s tribal historic preservation 

officer, stated that the PR and the MAR cross the Ponca Trail 

of Tears and that construction of either route could damage 

or destroy historic sites. Wright stated that the MAR would 

cross near Ponca’s service areas in the Nebraska counties of 

Boyd, Holt, Madison, Stanton, and Platte. Wright agreed that 

impacts from construction would be alleviated if TransCanada 

conducted the cultural surveys identified in the “Programmatic 

Agreement” (PA) and that there will be time before construction for TransCanada to complete these surveys.
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(e) Natural Resources Intervenors Testimony

(i) Dr. Paul Johnsgard

Dr. Paul Johnsgard, a University of Nebraska-Lincoln professor emeritus of biological sciences, has extensively researched 

the biology of whooping cranes. Johnsgard asserted that the 

pipeline would require placing additional electric transmission 

lines in the whooping cranes’ central migration path. He agreed 

that the risk posed by the project is “small.”

(ii) Dr. Thomas David Hayes

Dr. Thomas David Hayes, the lead scientist and executive 

director of a nonprofit corporation providing research and 

technical services on environmental matters, testified the pipeline project would adversely impact natural resources “due to 

decreased soil permeability and increased soil compaction in 

both natural areas and croplands.” He further stated that construction would “seriously deplete native prairie.” Comparing 

the PR and the MAR, Hayes concluded that “the [MAR’s] 

impact upon federally listed species is significantly less than 

that of the [PR], primarily due to the [MAR’s] impacting 

84.6 fewer miles of whooping crane habitat.” He stated that 

the application

downplays the measurable benefits of co-locating the 

[MAR]. With 88.3 and 102.2 more miles, respectively, 

of pipeline and total co-location, compared to the [PR], 

the [MAR] substantially decreases its overall impact 

by reworking far more industrially impacted areas and, 

consequently, reducing impacts to relatively undisturbed 

land. . . . [I]n this manner, irreparable damage to important natural resources, including native soils and grasslands, is proportionally reduced.

(iii) Joseph Trungale

Joseph Trungale, a consultant specializing in hydrology 

and instream flows, testified about the physical, chemical, 

and biological impacts associated with the pipeline’s interaction with stream channels. He stated there was insufficient 
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information about mitigation of stream channel erosion and 

that shallow aquifers could be affected.

(f) Economic Intervenors Testimony

(i) David Barnett

David Barnett, an international representative assigned to the 

pipeline and gas distribution department for UA, testified that 

UA has worked with TransCanada on several recent projects 

and that the pipeline project would have a positive economic 

impact on UA. He estimated that UA could expect 564 jobs for 

the construction phase of the project.

(ii) Bill Gerhard

Bill Gerhard, a special representative of LiUNA, testified 

that the pipeline project would have a positive economic 

impact on LiUNA and its members. He stated the project 

would create several different types of energy-related jobs, 

including pipeline construction and pump station jobs.

6. Closing Argum

In their written closing remarks, the landowner intervenors 

argued that TransCanada’s application should be denied for 

failure of proof. The landowners argued in the alternative that 

the PSC had the power to approve an alternate route, so long 

as the route followed Keystone I.

Bold Alliance and the Sierra Club asserted in their written 

closing argument that “[the] PSC has the authority to approve 

or disapprove of each route location by considering the benefits and feasibility of each of the proposed routes.” They 

argued that the PR should be denied, because it has more negative impacts than the MAR, and that the PSC should approve 

the I-90 Route.

Ponca opposed both the PR and the MAR. Yankton Sioux 

argued about the risks associated with the camps for pipeline 

workers. The unions urged the PSC’s approval of the application, because the project would bring jobs and other tangible 
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economic benefits to their members and the communities in 

which they reside and work.

7. PSC’s Order G

TransCanada’s App

On November 20, 2017, the PSC issued an order approving 

TransCanada’s application, by a 3-to-2 vote, and finding the 

MAR to be in the public interest. The PSC began its findings by 

stating that MOPSA limits the PSC’s authority to “a review of 

the proposed route only. The [PSC] is not to determine whether 

or not the pipeline project, or the pipeline itself, should be 

built.” (Emphasis in original.) The PSC further stated, “[T]he 

Legislature has given the [PSC] the limited responsibility of 

determining whether the route of the pipeline is in the public 

interest.” In making its public interest determination, the PSC 

discussed and analyzed each of the eight factors for consideration under § 57-1407(4), which provides:

The pipeline carrier shall have the burden to establish that 

the proposed route of the major oil pipeline would serve 

the public interest. In determining whether the pipeline 

carrier has met its burden, the commission shall not evaluate safety considerations, including the risk or impact of 

spills or leaks from the major oil pipeline, but the commission shall 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;

(c) Evidence of methods to minimize or mitigate the 

potential impacts of the major oil pipeline to natural 

resources;
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(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 PSC found that TransCanada had produced sufficient 

evidence to satisfy the relevant statutory considerations. The 

PSC gave significant weight to subsection (e), and ultimately 

approved the MAR rather than the PR based on that subsection. The PSC found that the MAR utilized an existing utility 

corridor, Keystone I, for approximately 100 miles. The PSC 

declined to approve the I-90 Route, because TransCanada’s 

construction permit in South Dakota required crossing into 

Nebraska in Keya Paha County, and the entry point for the I-90 

Route is over 100 miles to the east.

The PSC found that “the [PR] fails to take advantage of 

any opportunity to co-locate with the existing utility corridor 

represented by Keystone I, and therefore we are unable to conclude that the [PR] is in the public interest.” The PSC relied 

on testimony provided by TransCanada’s engineer, Kothari, 

who stated that the MAR was viable and beneficial. The PSC 

stated, “We see many benefits to maximizing the co-location 

of the Keystone XL Pipeline with Keystone I. It is in the public interest for the pipelines to be in closer proximity to each 

other, so as to maximize monitoring resources and increase the 

efficiency of response times.” The PSC further agreed with the 

intervenors that the MAR impacts fewer miles of endangered 

species and has other comparative environmental benefits. The 
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PSC stated, “[TransCanada] cites the additional [5] miles in 

length and one . . . additional pumping station as negatives 

against the [MAR]. However, we feel the benefits of maximizing co-location opportunities and utilizing the existing utility 

corridor that is . . . Keystone I . . . outweighs these concerns.” 

The PSC found that the MAR “is in the public interest and 

shall be approved,” and granted TransCanada’s application.

8. Motions for Recons

Several parties moved for reconsideration. TransCanada’s 

motion requested leave to file an amended application “to make 

the [MAR] [TransCanada’s] [PR].”18 Following oral argument, 

the PSC denied the motions. The landowner intervenors filed a 

notice of appeal. We moved the case to our docket on our own 

motion pursuant to our authority to regulate the caseloads of 

the appellate courts of this state.19

II. ASSIGNMENTS OF ERROR

The landowners assign, restated and consolidated, that (1) 

the PSC lacked jurisdiction to consider the application, (2) the 

PSC erred in finding that TransCanada sustained its burden of 

proof, (3) the PSC erred by approving the MAR, (4) the PSC 

erred in admitting hearsay evidence under § 57-1407(2) and 

(3), and (5) the PSC erred in denying the landowners procedural due process. The landowners also assert constitutional 

challenges to various statutes.

On cross-appeal, Ponca assigns, restated, that (1) the PSC 

erred in limiting its participation to social and cultural issues 

and limiting its witnesses and cross-examination time; (2) 

the PSC erred in approving the MAR because TransCanada 

never applied for approval of the MAR, the notice requirements related to the MAR were not met, and TransCanada 

did not meet its burden of proof with respect to the MAR; 

and (3) the PSC erred in limiting its consideration of historic 

18 Brief for appellee TransCanada at 11.

19 See Neb. Rev. Stat. § 24-1106 (Cum. Supp. 2018).
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and cultural resources to those covered by the National 

Historic Preservation Act, 54 U.S.C. § 300101 et seq. (Supp. 

III 2015).

On cross-appeal, Yankton Sioux assigns, restated and consolidated, that the PSC erred by (1) approving a route which 

does not serve the public interest, (2) violating Yankton Sioux’s 

procedural due process and equal protection rights, and (3) 

applying § 84-912.02 of the Administrative Procedure Act 

(APA)20 instead of the PSC’s intervention regulations to limit 

Yankton Sioux’s participation. Yankton Sioux also joins in the 

errors assigned by the landowner appellants.

The Sierra Club filed a brief but did not include any assignments of error.

III. STANDARD OF REVIEW

[1-3] A jurisdictional question which does not involve a 

factual dispute is determined by an appellate court as a matter 

of law.21 The meaning and interpretation of statutes and regulations are questions of law for which an appellate court has an 

obligation to reach an independent conclusion irrespective of 

the decision made by the court below.22 The determination of 

whether the procedures afforded to an individual comport with 

constitutional requirements for procedural due process presents 

a question of law.23

[4-6] Under Neb. Rev. Stat. § 75-136(2) (Reissue 2018), 

an appellate court reviews an order of the PSC de novo on 

the record.24 In a review de novo on the record, an appellate 

20 Neb. Rev. Stat. §§ 84-901 to 84-920 (Reissue 2014 & Cum. Supp. 2016).

21 In re Grand Jury of Douglas Cty., 302 Neb. 128, 922 N.W.2d 226 (2019).

22 In re Petition of Golden Plains Servs. Transp., 297 Neb. 105, 898 N.W.2d 

670 (2017).

23 Cain v. Custer Cty. Bd. of Equal., 298 Neb. 834, 906 N.W.2d 285 (2018).

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

Telrite Corp. v. Nebraska Pub. Serv. Comm., 288 Neb. 866, 852 N.W.2d 

910 (2014). See In re Claims Against Pierce Elevator, 291 Neb. 798, 868 

N.W.2d 781 (2015).
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court reappraises the evidence as presented by the record 

and reaches its own independent conclusions concerning the 

matters at issue.25 When an appellate court makes a de novo 

review, it does not mean that the court ignores the findings of 

fact made by the agency and the fact that the agency saw and 

heard the witnesses who appeared at its hearing.26 Where the 

evidence is in conflict, the Supreme Court will consider and 

may give weight to the fact that the agency hearing examiner 

observed the witnesses and accepted one version of the facts 

rather than another.27

Lastly, Neb. Ct. R. App. P. § 2-109(D)(1)(d), (e), and (f) 

(rev. 2014) requires that the brief of an appellant include a 

separate section for assignments of error, designated as such 

by a heading, and also requires that the section be located after 

a statement of the case and before a list of controlling propositions of law.28 When a party fails to follow the rules of the 

Nebraska Supreme Court, an appellate court may proceed as 

though the party had failed to file a brief or, alternatively, may 

examine the proceedings for plain error.29

The Sierra Club attempted to file an appeal in this case, but 

failed to set forth any assignment of error in its brief. In addition to considering the assignments of error raised by the landowners, Ponca, and Yankton Sioux, we will consider whether 

the PSC committed plain error. Plain error is error plainly 

evident from the record and of such a nature that to leave it 

25 Id.

26 See, Law Offices of Ronald J. Palagi v. Dolan, 251 Neb. 457, 558 N.W.2d 

303 (1997); Department of Health v. Lutheran Hosp. & Homes Soc., 227 

Neb. 116, 416 N.W.2d 222 (1987).

27 Dieter v. State, 228 Neb. 368, 422 N.W.2d 560 (1988).

28 Steffy v. Steffy, 287 Neb. 529, 843 N.W.2d 655 (2014); In re Interest of 

Jamyia M., 281 Neb. 964, 800 N.W.2d 259 (2011).

29 Steffy v. Steffy, supra note 28. See In re Interest of Jamyia M., supra

note 28.
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uncorrected would result in damage to the integrity, reputation, 

or fairness of the judicial process.30

IV. ANALYSIS

[7] The PSC is an independent regulatory body created by 

the Nebraska Constitution in article IV, § 20.31 The powers 

and duties of the PSC include the “general control of common 

carriers as the Legislature may provide by law.”32 The constitutional provision creating the PSC must be liberally construed to 

effectuate the purpose for which the PSC was created, which is 

to serve the public interest.33 In the absence of specific legislation, the powers and duties of the PSC, as enumerated in the 

constitution, are absolute and unqualified.34

[8] We have repeatedly said that the determination of what 

is consistent with the public interest, or public convenience 

and necessity, is one that is peculiarly for the determination 

of the PSC.35 “‘[C]ourts must give substantial deference to 

[the PSC’s] judgment about how best to serve the public 

interest.’”36 We have made this statement in recognition of the 

PSC’s status as a constitutional entity, and we have gone as far 

as to state that the “Supreme Court does not act as an appellate 

30 Id.

31 Amend v. Nebraska Pub. Serv. Comm., 298 Neb. 617, 905 N.W.2d 551 

(2018).

32 Neb. Const. art. IV, § 20.

33 See Myers v. Blair Tel. Co., 194 Neb. 55, 230 N.W.2d 190 (1975).

34 See State ex rel. State Railway Commission v. Ramsey, 151 Neb. 333, 37 

N.W.2d 502 (1949).

35 Dahlsten v. Harris, 191 Neb. 714, 217 N.W.2d 813 (1974). See, Andrews 

Van Lines, Inc. v. Smith, 187 Neb. 533, 192 N.W.2d 406 (1971); Nebraska 

State Railway Commission v. Chicago & N. W. Ry. Co., 187 Neb. 369, 

191 N.W.2d 438 (1971); Ace Gas, Inc. v. Peake, Inc., 184 Neb. 448, 168 

N.W.2d 373 (1969).

36 In re Application No. C-1889, 264 Neb. 167, 178, 647 N.W.2d 45, 54 

(2002).
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[PSC].”37 However, in 2013, the Legislature amended 

§ 75-136(2) to change our standard of review from errors 

appearing on the record, as provided under the APA, to “de 

novo on the record.”

We first addressed the “de novo on the record” standard of 

review for PSC cases in Telrite Corp. v. Nebraska Pub. Serv. 

Comm.

38 Prior to the amendment, a party appealed from the 

PSC under the APA, and the initial appeal was taken to district 

court, which conducted a de novo review on the record of the 

agency.39 Our inquiry in appeals from a district court’s decision 

under the APA is limited to whether the decision conformed to 

the law, was supported by competent evidence, and was neither 

arbitrary, capricious, nor unreasonable.40 In Telrite Corp., we 

rejected the PSC’s argument that the previous, more deferential 

standard of review for an appellate court under the APA still 

applied after the amendment to § 75-136. In so finding, we 

stated that the PSC was not “due the same degree of deference 

it enjoyed” before the amendment.41

However, the issue of what deference is owed to the PSC 

regarding its public interest determinations is more nuanced 

than stated in Telrite Corp. Under MOPSA, the PSC views the 

witnesses and evaluates the strength of their testimony, receives 

comments from the public, investigates the issues presented in 

coordination with state agencies and authorized consultants, 

evaluates the public interest, and makes the initial decision 

of whether to approve an application and authorize eminent 

domain power. Under the circumstances, it is appropriate, even 

under a de novo standard of review, to adhere to the common 

37 In re Application of Crusader Coach Lines, 213 Neb. 53, 58, 327 N.W.2d 

98, 101 (1982). Accord In re Application of McCarty, 218 Neb. 637, 358 

N.W.2d 203 (1984).

38 Telrite Corp. v. Nebraska Pub. Serv. Comm., supra note 24.

39 See § 84-917(5).

40 Telrite Corp. v. Nebraska Pub. Serv. Comm., supra note 24.

41 Id., 288 Neb. at 874-75, 852 N.W.2d at 916.
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practice among appellate courts to afford appropriate deference 

to the findings of the agency before which the record was created.42 We articulate this standard in light of the PSC’s being 

constitutionally created to serve the public interest.

1. PSC Had Juri

The landowners and Yankton Sioux assert that the PSC 

lacked jurisdiction to approve TransCanada’s application 

because, under the appellants’ reading of MOPSA, the PSC 

cannot consider a route application unless the Governor has 

already considered and denied the application. We determine 

that under the plain language of MOPSA, prior gubernatorial 

denial is not required to initiate application proceedings before 

the PSC. MOPSA is an independent statutory process under 

which pipeline carriers may obtain route approval and eminent 

domain authority. Route approval by the Governor is not at 

issue in this case.

[9,10] Statutory language is to be given its plain and ordinary 

meaning, and an appellate court will not resort to interpretation 

to ascertain the meaning of statutory words which are plain, 

direct, and unambiguous.43 Components of a series or collection of statutes pertaining to a certain subject matter are in pari 

materia and should be conjunctively considered and construed 

to determine the intent of the Legislature, so that different 

provisions are consistent, harmonious, and sensible.44

The appellants’ argument is based upon § 57-1405(1), which 

provides:

If a pipeline carrier proposes to construct a major oil 

pipeline . . . and the pipeline carrier has submitted a route 

for an oil pipeline within, through, or across Nebraska 

42 See, Law Offices of Ronald J. Palagi v. Dolan, supra note 26; Dieter v. 

State, supra note 27; Department of Health v. Lutheran Hosp. & Homes 

Soc., supra note 26.

43 Mays v. Midnite Dreams, 300 Neb. 485, 915 N.W.2d 71 (2018).

44 Davio v. Nebraska Dept. of Health & Human Servs., 280 Neb. 263, 786 

N.W.2d 655 (2010).
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but the route is not approved by the Governor pursuant to 

section 57-1503, the pipeline carrier shall file an application with the [PSC] and receive approval pursuant to section 57-1408 prior to beginning construction . . . .

(Emphasis supplied.)

Under the appellants’ view, “the PSC may consider an application for a route if, but only if, the Governor of Nebraska 

first considered, and declined to grant, the proposed pipeline 

route within or across the State.”45 According to the appellants, “[d]isapproval is a prerequisite to PSC jurisdiction under 

§ 57-1405(1)”46 and “[t]he Governor must say ‘No’ first; then 

comes the PSC.”47

It is clear that the appellants’ interpretation is not strictly 

derived from the statutory text, but, rather, is an extrapolation thereof. The language of § 57-1405(1) is not phrased as a 

jurisdictional prerequisite, but, rather, describes a process for 

applying for a pipeline route that has “not [been] approved by 

the Governor.” The appellants read the phrase “not approved 

by” to mean “must have first considered and denied.” We do 

not agree. Logically, one can “not approve” something by taking no action. The phrase “not approved by” does not require 

the Governor to be the first to consider the application or to 

consider the application at all. As we explained in the background section of this opinion, the MOPSA application process 

is one of two options the Legislature has enacted to enable a 

pipeline carrier to pursue route approval. Though we conduct 

a textual analysis as to whether § 57-1405(1) or § 57-1101 

authorizes the PSC to consider TransCanada’s application, 

we offer no opinion as to the constitutionality of § 57-1101 

or other references to the power of the Governor to approve 

the route.

Sections 57-1405(1) and 57-1101 relate to the same subject matter; they address the procedures available for a 

45 Brief for appellants at 14 (emphasis in original).

46 Id. at 17.

47 Id. at 15.
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pipeline carrier to obtain route approval under Nebraska law. 

The current versions of these sections were adopted by the 

Legislature in the same bill, 2012 Neb. Laws, L.B. 1161, and 

MOPSA makes specific reference to § 57-1101.48 Therefore, 

§§ 57-1405(1) and 57-1101 are in pari materia and we must 

construe them together.

Section 57-1101 provides in relevant part:

[F]or any major oil pipeline . . . to be placed in operation in the State of Nebraska . . . , 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 [MOPSA], prior to having the rights provided 

under this section.

(Emphasis supplied.)

Section 57-1101 describes the two avenues for route 

approval, under § 57-1503 and MOPSA, and uses the word 

“or” to connect them. The word “or,” when used properly, is 

disjunctive.49 This indicates that a pipeline carrier can pursue 

either process individually. The processes are independent of 

each other and should not be understood as the same thing. 

There are several differences.

As described above, under § 57-1503, a pipeline carrier 

may not seek the Governor’s approval of an application until 

after the DEQ has utilized State funds to prepare a SEIS and 

has submitted its evaluation to the Governor. In contrast, 

under MOPSA, a pipeline carrier initiates the proceedings, is 

required to prove that the route is in the public interest based 

on the PSC’s evaluation of multifaceted statutory criteria, 

and must pay for the application process.50 MOPSA does not 

require gubernatorial denial prior to initiating an application 

48 § 57-1408.

49 See Nebraska Protective Servs. Unit v. State, 299 Neb. 797, 910 N.W.2d 

767 (2018).

50 See §§ 57-1405 and 57-1406.
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proceeding. The appellants’ assignment of error that the PSC 

lacked jurisdiction over TransCanada’s application is without merit.

2. Evidence Supports PSC’s D

that TransCanada Met Burden o

In their next assignment of error, the appellants argue that 

the PSC erred in finding that TransCanada sustained its burden of proof. Upon our independent review of the record 

before the agency, we find that sufficient evidence supports 

the PSC’s decision that TransCanada met its burden of proving 

that the MAR is in the public interest. While the intervenors 

reduced the strength of TransCanada’s evidence in certain 

areas, the intervenors’ objections are not enough to overcome 

TransCanada’s comprehensive presentation with respect to the 

relevant public interest factors under MOPSA.

Two possible misconceptions must be addressed. First, in 

evaluating a route, we are prohibited from considering safety 

issues. Nebraska cannot interfere with uniform safety standards 

utilized by the federal government. To do so would undermine 

MOPSA and jeopardize Nebraska’s ability to review and scrutinize a pipeline route in this state under state law. Second, 

the MOPSA structure enacted by the Legislature concerns 

only the selection of a particular pipeline route. In this case, 

TransCanada, as well as some of the appellants, asked the PSC 

to approve construction of a particular pipeline route. The PSC 

considered the evidence and determined that the MAR is in the 

public interest.

[11,12] An application under MOPSA shall be approved 

if the proposed route of the major oil pipeline is determined 

by the PSC to be in the public interest.51 MOPSA places the 

burden of proof on the applicant.52 Although MOPSA does 

not specify a standard of proof, unless an exception applies, 

51 § 57-1407(4).

52 Id.
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only a preponderance of evidence is required in civil cases.53

The burden of proof is satisfied by actual proof of the facts, of 

which proof is necessary, regardless of which party introduces 

the evidence.54 In concluding that the MAR is in the public 

interest, the PSC properly relied on all record evidence and 

carefully weighed the eight factors under § 57-1407(4).

(a) Compliance With Applicable Laws

The first factor for the PSC’s consideration is “[w]hether the 

pipeline carrier has demonstrated compliance with all applicable state statutes, rules, and regulations and local ordinances.”55

TransCanada stated that it would comply with all applicable 

state statutes, rules, regulations, and local ordinances, and 

that it either has obtained or will obtain all permits necessary 

to comply with state laws, regulations, local ordinances, and 

zoning requirements. Moreover, TransCanada is required to 

comply with all applicable laws as a condition of its presidential permit. Palmer, the president of the companies that own 

TransCanada, reaffirmed these commitments under oath. These 

commitments apply to the construction, maintenance, and operation of the MAR. The record concerning § 57-1407(4)(a) 

supports the PSC’s finding that TransCanada met its burden 

of proof.

(b) Impact on Natural Resources

The PSC shall evaluate 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 

53 Wetovick v. County of Nance, 279 Neb. 773, 782 N.W.2d 298 (2010). See, 

Pallas v. Dailey, 169 Neb. 533, 100 N.W.2d 197 (1960); Eggleston v. 

Quinn, 88 Neb. 775, 130 N.W. 428 (1911).

54 Lincoln Fire Fighters Assn. v. City of Lincoln, 198 Neb. 174, 252 N.W.2d 

607 (1977).

55 § 57-1407(4)(a).
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commitments of land areas and connected natural 

resources and the depletion of beneficial uses of the natural resources.56

The evidence demonstrated that a large percentage of the land 

crossed by the pipeline is agricultural in nature and that the 

impacts of construction will be temporary.

The MAR avoids the Nebraska Sandhills, which provides 

several advantages as compared to the PR, when considering 

impacts on natural resources. As the PSC found, compared 

to the PR, the MAR will involve “one fewer river crossing, 

fewer wells within 500 feet of the pipeline, fewer acres of 

pivot irrigated . . . land crossed, fewer crossing of intermittent and perennial streams . . . , fewer miles of pipeline placed 

in areas with shallow groundwater, and fewer state highways 

and natural gas facilities to be crossed.” The MAR “would 

impact 84.6 fewer miles of whooping crane migratory path 

as compared to the [PR],” as well as impact “fewer miles of 

the ranges” of other “threatened and endangered species.” The 

natural resources intervenors’ witness Hayes noted this fact in 

his conclusion that “the [MAR’s] impact upon federally listed 

species is significantly less than that of the [PR].”

Hayes testified that, compared to the PR, the MAR substantially decreases the overall impact of the pipeline and stated 

that “irreparable damage to important natural resources, including native soils and grasslands, is proportionally reduced.” 

TransCanada’s witness Schmidt agreed that the MAR “ha[d] 

potential environmental benefits due to its co-location with 

[Keystone I].” Beaver, the senior reclamation specialist on the 

project, testified that construction of the pipeline would not 

significantly increase the impermeability of the soil.

The PSC requested the DEQ to analyze the environmental 

impact of the MAR. The DEQ responded that based on the 

mitigation commitments and reclamation procedures within 

the application, the MAR “would have minimal environmental 

56 § 57-1407(4)(b).
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impacts in Nebraska.” The DEQ then followed up with the 

PSC after further analyzing the relevant soils and sediment, 

groundwater, surface water, air, hazardous materials, and emissions, and again concluded that the MAR “would have minimal 

permanent environmental impacts in Nebraska.” The record 

concerning § 57-1407(4)(b) supports the PSC’s finding that 

TransCanada met its burden of proof.

(c) Mitigation of Potential Impacts

The PSC shall evaluate “[e]vidence of methods to minimize 

or mitigate the potential impacts of the major oil pipeline to 

natural resources.”57 TransCanada provided a CMRP containing 

“construction, operation, and maintenance measures that are 

designed to reduce the likelihood and severity of impacts along 

the pipeline construction corridor and during operations.” The 

CMRP outlines procedures for soil protection, water-crossing 

methods, vegetation reclamation, and aquatic resources protection. The CMRP was developed in consultation with the NRCS 

and experts from the University of Nebraska. The CMRP procedures will be used to minimize the environmental impact 

of the MAR and return the land disturbed by construction as 

close as possible to its preconstruction condition. The PSC 

concluded that TransCanada’s procedures “conform to industry 

standards and are reasonable.” Project manager Fuhrer testified 

that TransCanada will be accountable for production losses and 

other costs resulting from pipeline maintenance and damage to 

the land throughout the useful life of the pipeline.

The landowners noted that the CMRP has not been updated 

since 2012. However, the DEQ advised the PSC that the geology 

has not changed. The landowners emphasized that the CMRP 

allows TransCanada to deviate from the plan at its discretion. 

The PSC found that in the event a dispute arises regarding 

reclamation and mitigation efforts, the parties will consult the 

NRCS as a resource and follow the NRCS’ advice. We agree 

57 § 57-1407(4)(c).
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this resolution process is adequate. Because the NRCS helped 

formulate the CMRP and is familiar with the best reclamation 

and mitigation practices, the NRCS shall be consulted in any 

instance in which a dispute arises and TransCanada has deviated from the CMRP. The record concerning § 57-1407(4)(c) 

supports the PSC’s finding that TransCanada met its burden 

of proof.

(d) Social and Economic Impacts

The PSC shall evaluate “[e]vidence regarding the economic 

and social impacts of the major oil pipeline.”58

(i) Economic Impacts

Goss’ report found that the pipeline project would constitute an economic benefit to Nebraska and would contribute to 

the state and local tax bases. He found that the pipeline project would result in positive tax revenue to exceed $264 million through the year 2034. His report assumed that only 10 

percent of pipeline work in Nebraska would be conducted by 

Nebraska residents and that 7.3 percent of related pipeline 

work in Montana and South Dakota would be conducted by 

Nebraska residents. The report indicated that Goss’ estimates 

were conservative. The analysis did not include taxes generated from the cost and installation of replacement materials or 

TransCanada’s preconstruction spending. In addition, the dollar figures were not adjusted for inflation, but were discounted 

to the equivalent of “2015 dollars.”

The unions also presented evidence of positive economic 

impacts. Barnett testified that UA has worked with TransCanada 

on recent projects and estimated that UA could expect 564 

jobs for its members. Gerhard of LiUNA stated the project 

presents significant opportunity for the creation of several different types of energy-related jobs. O’Hara, the professor who 

analyzed the economic impact of the proposed pipeline, testified that the project would not provide long-term tax benefits, 

58 § 57-1407(4)(d).
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would create few permanent jobs, and would adversely impact 

property values. However, O’Hara’s analysis predominantly 

focused on issues of safety. O’Hara admitted that TransCanada 

will pay significant sales and use taxes. In addition, O’Hara’s 

conclusions regarding tax benefits assume that, contrary to 

the evidence, TransCanada will seek exemptions under the 

Nebraska Advantage Act. The PSC found that TransCanada 

“shall comply with its commitment to not use the Nebraska 

Advantage Act in any form in connection with the Keystone 

XL Project.”

Nebraska’s Department of Revenue found that during construction, TransCanada or its contractors would incur significant sales and use tax liabilities, and that Nebraska would 

experience an increase in individual income tax revenue. The 

DEQ and the Department found that the pipeline was not 

expected to have an impact on residential or agricultural property values and would generate a substantial amount of new 

economic activity, millions of dollars in annual property tax 

revenue, and hundreds of jobs for Nebraskans. O’Hara opined 

that property values would decrease by 15 percent and that 

property taxes would decrease over the life of the pipeline.

The PSC found that “much of the economic testimony was 

conflicting,” but concluded that the pipeline would accrue an 

economic benefit in Nebraska, and that Nebraska will “benefit 

from the investment and activity that is associated with the 

pipeline construction and operation.”

(ii) Social Impacts

The evidence of social impacts primarily concerned impacts 

on cultural resources and impacts from a temporary camp for 

pipeline workers that may be built in Holt County. MOPSA 

does not specifically state that the PSC must evaluate impacts 

on cultural resources. As noted, § 57-1407(4)(d) states the PSC 

shall consider “[e]vidence regarding the economic and social 

impacts of the major oil pipeline.” The parties and the PSC 

understood the cultural resources issue to be a piece of the 

PSC’s obligation to consider evidence of social impacts. The 
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parties and the PSC generally understood “cultural resources” 

to mean “physical evidence of culturally and historically valued aspects of the human and natural environment on the landscape,” as defined by the DEQ.

The preservation of historic resources is a matter of federal 

law governed by the National Historic Preservation Act. The 

Department has been designated the federal agency responsible for the review of TransCanada’s permit, which has 

been determined to be a federal undertaking. Nebraska provides resources in coordination with this effort. Pursuant to 

Neb. Rev. Stat. § 82-118 (Reissue 2014), the Nebraska State 

Historical Society, under the direction of the Nebraska State 

Historic Preservation Officer, is the state agency responsible 

for carrying out the purposes and objectives of the National 

Historic Preservation Act.

Pursuant to the National Historic Preservation Act, Pub. L. 

No. 89-665, § 106, 80 Stat. 917, the Department, the Nebraska 

State Historic Preservation Officer, TransCanada, and various other state and federal agencies entered into an amended 

PA in December 2013. According to the Nebraska State 

Historical Society, a § 106 review identifies “arch[a]eological or historic resources . . . listed or eligible for listing in 

the National Register of Historic Places.” The PA requires 

TransCanada to complete cultural resources surveys on all 

areas that would potentially be impacted by the proposed 

undertaking and to provide adequate mitigation in consultation 

with the Department, state and federal agencies, and Indian 

tribes. The PA requires TransCanada to avoid, when possible, 

adverse effects on known cultural resources. When unanticipated cultural resources are discovered, all construction within 

a 100-foot radius must cease and may only resume after the 

resources are evaluated and protected according to the requirements under the PA. The PA includes a “Tribal Monitoring 

Plan” that allows “tribal monitors with experience in the identification of cultural resources to monitor construction along 

the pipeline route.” The CMRP also contains a commitment to 
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comply with any PA in order to minimize the impact on cultural sites along the route.

Ponca’s witness Wright stated that construction of the pipeline could damage or destroy historic sites, but he acknowledged this concern would be addressed if TransCanada adhered 

to the PA. Ponca stated that the Ponca Trail of Tears would not 

be included within the PA’s protections, because the trail is not 

listed on the National Register of Historic Places. However, the 

PA applies to any historical site eligible for inclusion on the 

national register, and furthermore, the PA commits TransCanada 

to protecting known cultural sites. TransCanada presented evidence that it is prepared to address the issue. TransCanada’s 

application states that it intends to avoid culturally significant 

sites by rerouting the pipeline “to the extent practicable.” 

Testimony at the hearing reflected that TransCanada has successfully avoided every eligible cultural site it has encountered 

thus far. TransCanada will have the opportunity to complete 

further cultural surveys prior to construction and to implement 

the necessary procedures under the PA.

Ponca assigns error to the PSC’s determination that the 

preservation of cultural issues is a matter of federal law and 

argues that MOPSA requires an analysis with greater focus 

on Nebraska’s cultural resources. We disagree with Ponca’s 

characterization that the PSC did not evaluate the impact 

on Nebraska’s cultural resources. In its analysis, the PSC 

articulated features of the federal scheme that are available to 

address the risks to local cultural resources. The PSC found 

that TransCanada’s record of compliance with the PA and 

the National Historic Preservation Act showed TransCanada’s 

compliance would likely continue and that the Department will 

require compliance with federal law. The PSC concluded that 

these safeguards “help to assure that the route of the pipeline 

will be in the public interest.”

The Nebraska State Historical Society, the state agency 

responsible for preserving historic resources, informed the 

PSC that, according to the processes outlined in the PA, 
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TransCanada is required to “complete cultural resources surveys on all areas that would be potentially impacted,” “make 

recommendations on National Register of Historic Places eligibility,” and “provide adequate mitigation in consultation with 

the Department . . . , state and federal agencies, and Indian 

tribes.” The Nebraska State Historical Society advised that 

these processes protect cultural resources.

Moreover, existing state laws protect cultural resources. 

Under Nebraska law, it is a crime to knowingly and willfully appropriate, excavate, injure, or destroy an archaeological 

resource on public land without written permission from the 

State Archaeology Office.59 Neb. Rev. Stat. § 12-1205 (Cum. 

Supp. 2018) makes it a crime to knowingly fail to report the 

encounter of an unmarked human burial, and it requires the 

cessation of any activity that may disturb the burial. Neb. Rev. 

Stat. § 28-1301 (Reissue 2016) describes the offense of removing, abandoning, or concealing human skeletal remains or 

burial goods. TransCanada must comply with these laws.

The temporary camps for pipeline workers do not make 

approving the MAR contrary to the public interest. All such 

camps must be permitted, constructed, and operated consistent with applicable county, state, and federal regulations.

TransCanada must require camp residents to comply with a 

written code of conduct and potentially expel those found in 

violation. The camps will be fenced and secured with video 

surveillance and a guardhouse, staffed at all times. Only authorized personnel will be granted access to the camps; no visitors will be permitted. The record concerning § 57-1407(4)(d) 

supports the PSC’s finding that TransCanada met its burden 

of proof.

(e) Other Utility Corridors

The PSC must evaluate “[w]hether any other utility corridor exists that could feasibly and beneficially be used for 

59 Neb. Rev. Stat. § 82-507 (Reissue 2014).
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the route of the major oil pipeline.”60 The PSC interpreted the 

phrase “utility corridor” to mean “a passageway for facilities 

providing public services.” The PSC gave significant weight to 

the fact that the MAR “was developed to maximize the length 

of co-location with [Keystone I]” and takes advantage of the 

fixed entry point in Keya Paha County. The PSC found the 

MAR to be the most beneficial route, because the PR failed 

to take advantage of an existing utility corridor. The appellants urged approval of the I-90 Route, but the PSC rejected 

that proposal based on the lack of a feasible entry point. Upon 

de novo review, we are persuaded that the MAR’s co-location 

with Keystone I maximizes efficiency and reduces impacts to 

undeveloped land and natural resources.

The PSC evaluated the eight public interest factors under 

§ 57-1407(4) and was persuaded by the evidence in favor 

of the MAR under § 57-1407(4)(e). The PSC’s reasoning is 

compelling, because the record shows that by satisfying the 

considerations under § 57-1407(4)(e), the MAR’s co-location 

with Keystone I enhances the overall strength of the route 

application and serves other public interest factors under 

§ 57-1407(4). There is evidence to support the PSC’s reasoning in giving great weight to TransCanada’s evidence under 

§ 57-1407(4)(e) in deciding that the MAR, rather than the PR 

or I-90 Route, is in the public interest. The record concerning 

§ 57-1407(4)(e) supports the PSC’s finding that TransCanada 

met its burden of proof.

(f) Impact on Orderly Development of Area

The PSC must evaluate “[t]he impact of the major oil 

pipeline on the orderly development of the area around the 

proposed route of the major oil pipeline.”61 There was a lack 

of evidence that significant restrictions on development would 

occur. The PSC observed that while future developments 

60 § 57-1407(4)(e).

61 § 57-1407(4)(f).
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would need to avoid the pipeline, “similar restrictions on 

development occur in areas near other infrastructure, i.e., 

roads, bridges, dams, power lines, etc.” The MAR mitigates 

interference with orderly development by co-locating with 

Keystone I. In addition, the CMRP’s mitigation procedures 

address possible impacts of construction. The PSC’s consultants concluded that the pipeline would “play an ‘insignificant 

role in residential value, crop production, invasive species, 

and land development.’” We agree with the PSC that the 

impact on development of the area seems minimal. The record 

concerning § 57-1407(4)(f) supports the PSC’s finding that 

TransCanada met its burden of proof.

(g) State Agency Reports

The PSC must evaluate “[t]he reports of the agencies filed 

pursuant to subsection (3) of this section.”62 The PSC consulted 

all nine agencies listed within § 57-1407(3) on both the PR and 

the MAR. The agencies were familiar with the project based 

on prior efforts and did not express any concerns about the 

approval, denial, or relocation of either route.

As already noted, Nebraska’s Department of Revenue found 

that the pipeline will generate revenue from sales taxes, use 

taxes, property taxes, and income taxes. The Nebraska State 

Historical Society stated that the necessary measures for protecting cultural resources are in place. The Nebraska Game 

and Parks Commission explained that it would help “avoid 

and minimize impacts on species and their habitats.” And we 

reiterate the DEQ’s finding that the MAR “would have minimal 

environmental impacts in Nebraska.” The record concerning 

§ 57-1407(4)(g) supports the PSC’s finding that TransCanada 

met its burden of proof.

(h) Views of Counties and Municipalities

The PSC must evaluate “[t]he views of the governing bodies of the counties and municipalities in the area around the 

62 § 57-1407(4)(g).
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proposed route of the major oil pipeline.”63 The PSC sent letters soliciting input to 18 counties and 32 cities along both 

the PR and the MAR. Boone, Nance, Saline, and Seward 

Counties expressed their approval; Boyd and Holt Counties 

expressed their opposition. The PSC received no input from 

Butler, Colfax, Madison, Platte, or Stanton Counties. Seward, 

Nebraska, and Steele City submitted favorable responses. The 

record concerning § 57-1407(4)(h) supports the PSC’s finding 

that TransCanada met its burden of proof.

We find that the PSC—after months of investigation reviewing extensive pleadings, exhibits, and reports from consultants; 

holding public meetings and a public hearing; considering 

written and oral arguments; deliberating; and issuing its opinion and findings—did not err in concluding that TransCanada 

proved by a preponderance of the evidence that approval of the 

MAR is in the public interest.

3. PSC Properly Consid

[13] In the appellants’ next assignment of error, they argue 

that the PSC was not authorized to approve the MAR, because 

TransCanada applied for approval of only the PR, and that the 

notice requirements for the MAR were not met. While it is true 

that TransCanada requested in its application “an order from 

the PSC that the [PR] is in the public interest,” we nevertheless 

find it indisputable that TransCanada included the MAR in its 

application and that the parties were on notice that the MAR 

was at issue. The rules of pleading are not applied in administrative proceedings as strictly as they are in court proceedings.64 Administrative pleading rules require simply that the 

parties be sufficiently apprised of the nature of the proceedings 

so that there is no unfair surprise.65

The hearing officer for the PSC devoted a separate section of its intervention order to the MAR and made clear 

63 § 57-1407(4)(h).

64 See In re Appeal of Bonnett, 216 Neb. 587, 344 N.W.2d 657 (1984).

65 Id.
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that the merits of the MAR would be considered. The order 

stated that the SAR would not be considered and informed 

the parties that they should be prepared to address the MAR 

by granting them leave to designate an additional witness 

and offer exhibits pertaining to the MAR. There was no 

objection to the MAR section of the order. The case management order stated that “any/all Hearing Officer Orders . . . 

will apply to and bind all parties, will control the course of 

the proceedings, and may be modified only by order of the 

Hearing Officer.”

Following a prehearing conference, the hearing officer modified the intervention order by allowing each intervenor group 

to present testimony from two witnesses, “in addition to the 

ability to bring an additional witness regarding the [MAR] 

as detailed in the [intervention order].” The PSC’s Rules of 

Commission Procedure provide that once an order is entered 

“a reasonable time will be allowed for the parties to present 

objections . . . . Thereafter, the terms of the order . . . determine 

the subsequent course of the proceedings . . . .”66 Generally, 

the failure to object to the specifications in the pretrial order 

waives any right to claim error in that regard.67 The pretrial 

order is binding upon the parties. The issues set out in a pretrial order supplant those raised in the pleadings.68

[14] The appellants also contend that the PSC denied them 

procedural due process. Due process requires notice and an 

opportunity for a full and fair hearing at some stage of the 

agency proceedings.69 Contrary to the intervenors’ assertions, 

66 291 Neb. Admin. Code, ch. 1, § 020.04 (1992).

67 See Hillcrest Country Club v. N.D. Judds Co., 236 Neb. 233, 461 N.W.2d 

55 (1990).

68 See, Hall v. County of Lancaster, 287 Neb. 969, 846 N.W.2d 107 (2014), 

overruled on other grounds, Davis v. State, 297 Neb. 955, 902 N.W.2d 

165 (2017); Cotton v. Ostroski, 250 Neb. 911, 554 N.W.2d 130 (1996). 

See, Kustom Kreations v. Duxbury, 216 Neb. 99, 342 N.W.2d 656 (1983); 

Jonas v. Willman, 27 Neb. App. 251, 930 N.W.2d 60 (2019).

69 Stoneman v. United Neb. Bank, 254 Neb. 477, 577 N.W.2d 271 (1998).
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the PSC’s decision to approve the MAR is a reflection of 

the evidence and arguments presented. As already discussed, 

MOPSA “is intended to deal solely with the issue of siting or choosing the location of the route.”70 MOPSA allows 

Nebraska to exercise its sovereign authority “to protect its 

land and natural resources . . . by regulation through approval 

or disapproval of major oil pipeline siting and the location of 

routes.”71 MOPSA grants the PSC the authority to consult state 

agencies “regarding the advisability of approving, denying, 

or modifying the location of the proposed route of the major 

oil pipeline.”72 As explained, among the factors the PSC must 

evaluate is “[w]hether any other utility corridor exists that 

could feasibly and beneficially be used for the route of the 

major oil pipeline.”73

The record contained extensive evidence concerning the 

MAR. There was significant overlap in the evidence concerning the routes; much of the evidence concerning the PR and 

Keystone I equally applied to the MAR. The PR and the MAR 

are the same route for the first 110 miles and approximately 97 

of the MAR’s remaining 170 miles co-locate with Keystone I. 

Several witnesses addressed these routes and the differences 

between them in their testimony.

Hayes testified that compared to the PR, the MAR substantially decreases the overall negative impacts of the pipeline. 

Kothari testified that the MAR was beneficial and feasible. 

Schmidt was questioned at length and in detail about the 

MAR to draw out comparisons between the MAR, the PR, 

and the I-90 Route. Wright provided testimony concerning 

the MAR. The consultants advised the PSC that there is 

little difference in soil characteristics between the PR and 

the MAR.

70 § 57-1402(2).

71 § 57-1403(1).

72 § 57-1407(3).

73 § 57-1407(4)(e).
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The DEQ evaluated the MAR and informed the PSC that the 

MAR would have minimal permanent environmental impacts 

in Nebraska. The PSC heard evidence that TransCanada modified the MAR to avoid wellhead protection areas based on the 

DEQ’s recommendations. Seward’s city council recognized 

this and approved the MAR on that basis. Thus, the suggestion 

that the appellants were not afforded notice and an opportunity 

to be heard on the MAR disregards considerable portions of 

the record. Fundamental issues before the PSC were whether 

or not to approve the PR or the MAR.

Ponca argued that “the PSC could decide it preferred the 

[MAR] based on the evidence, but it was required to deny 

the [a]pplication for the [PR] and invite TransCanada to 

file a new application for the [MAR].”74 Ponca’s argument 

referred to § 57-1408(4), which provides in part that “[i]f the 

commission denies the application, the pipeline carrier may 

amend the denied application in accordance with the findings of the commission and submit the amended application 

within sixty days after the issuance of the order denying the 

application.” (Emphasis supplied.) The record makes clear 

that the PSC granted the application, approved the MAR, 

and determined that amendment pursuant to § 57-1408(4) 

was unnecessary when it overruled TransCanada’s motion 

for reconsideration. The PSC’s decision was consistent with 

the policy under MOPSA to “[e]nsure that a coordinated and 

efficient method for the authorization of such construction 

is provided.”75 There was no need to amend the application, 

because the application was supplanted by the hearing officer’s orders concerning the MAR when no party objected 

to the orders. The parties effectively tried the matter as 

one seeking approval of the MAR. Moreover, there was no 

need for the PSC to grant the motion to amend, because in 

the civil context courts have the power to constructively 

74 Reply brief for appellee Ponca on cross-appeal at 7 (emphasis supplied).

75 § 57-1402(1)(e).
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amend pleadings in order to render a decision consistent with 

the trial.76

Neither do we find a basis to reverse the PSC’s decision 

due to a failure to satisfy MOPSA’s notice requirements. The 

PSC published notice of the public hearing on TransCanada’s 

application in newspapers in general circulation along both 

the PR and the MAR. The PSC sent letters to the governing 

bodies along both routes and advised them that a copy of the 

application is available online at the PSC’s website. The PSC 

released additional press releases at the time the application 

was filed and provided notice of several public meetings and 

the public hearing.

[15,16] Furthermore, these intervenors waived the right to 

object based on lack of notice. It is generally held that participation in the hearing waives any defect in the notice.77 If 

notice is materially lacking, then a timely objection will permit 

the public body to promptly remedy the defect and defer formal action until the required public notice can be given.78 The 

intervenors failed to raise the issue of notice in response to the 

prehearing orders, at the public hearing, or in their motions 

for reconsideration. An appellate court will not consider an 

issue on appeal that was not presented to or passed upon by 

the administrative agency.79 This assignment of error is without merit.

4. Participation Claim Wit

Ponca and Yankton Sioux argue that the PSC improperly 

limited their participation to social and cultural issues. They 

76 See, Denali Real Estate v. Denali Custom Builders, 302 Neb. 984, 926 

N.W.2d 610 (2019); Zelenka v. Pratte, 300 Neb. 100, 912 N.W.2d 723 

(2018); Blinn v. Beatrice Community Hosp. & Health Ctr., 270 Neb. 809, 

708 N.W.2d 235 (2006).

77 See, Hansen v. City of Norfolk, 201 Neb. 352, 267 N.W.2d 537 (1978); 

Alexander v. School Dist. No. 17, 197 Neb. 251, 248 N.W.2d 335 (1976).

78 See Witt v. School District No. 70, 202 Neb. 63, 273 N.W.2d 669 (1979).

79 Betterman v. Department of Motor Vehicles, 273 Neb. 178, 728 N.W.2d 

570 (2007).
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argue that their petitions alleged governmental and territorial 

interests and that the PSC’s regulations allow the intervenors 

to present evidence on any express interest stated in a petition 

for intervention. They argue that the PSC improperly ordered 

them to combine their witnesses and cross-examination time. 

Yankton Sioux argues that the conditions imposed by the PSC 

violated its equal protection rights. TransCanada argues that 

this court lacks appellate jurisdiction to consider the intervenors’ arguments, because the intervenors did not appeal from 

the PSC’s order on petitions for intervention. The intervenors 

argue the intervention order was not a final order, because the 

order did not deny intervention.

(a) Final Order

Before reaching the legal issues presented for review, it 

is the duty of an appellate court to determine whether it has 

jurisdiction over the matter before it.80 The jurisdictional issue 

before us is whether the intervenors’ objections to the scope 

of their participation may be reviewed after their appeal from 

the PSC’s judgment on the merits or whether the intervenors 

were required to appeal from the PSC’s order on petitions 

for intervention.

[17] We have consistently held that an order denying intervention is a final order for purposes of appeal.81 Here, the 

PSC’s intervention order did not deny intervention, but, rather, 

granted petitions for intervention and imposed conditions on 

the scope of intervention. Such an order is not final in the 

traditional sense in that the order is not a final determination 

of the parties’ rights. Moreover, agency orders granting petitions for intervention subject to conditions are interlocutory in 

80 In re Grand Jury of Douglas Cty., supra note 21.

81 Streck, Inc. v. Ryan Family, 297 Neb. 773, 901 N.W.2d 284 (2017); Basin 

Elec. Power Co-op v. Little Blue N.R.D., 219 Neb. 372, 363 N.W.2d 500 

(1985). See, Wayne L. Ryan Revocable Trust v. Ryan, 297 Neb. 761, 901 

N.W.2d 671 (2017); Spear T Ranch v. Knaub, 271 Neb. 578, 713 N.W.2d 

489 (2006); Shold v. Van Treeck, 82 Neb. 99, 117 N.W. 113 (1908).
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nature. Under the APA and Nebraska’s Model Rules of Agency 

Procedure, an agency may modify an order imposing conditions on intervention at any time.82

The U.S. Supreme Court held in Stringfellow v. Concerned 

Neighbors in Action83 that an order granting permissive intervention, subject to conditions, and denying intervention as of 

right was not an appealable order. The Court explained that 

an order denying intervention is subject to appellate review 

by necessity, because the petitioner has no right to appeal 

from any subsequent order or judgment in the proceeding.84

Conversely, the imposition of conditions on intervention can 

be reviewed on appeal from a final judgment. Here, the PSC’s 

intervention order did not deny the petitions for intervention 

and therefore was not a final order. The intervenors properly 

appealed from the PSC’s judgment on the merits, and we have 

jurisdiction in such an appeal to consider their objections to the 

order which placed conditions on their participation.

(b) Merits

[18] Agency regulations properly adopted and filed with 

the Secretary of State of Nebraska have the effect of statutory 

law.85 Statutory language is to be given its plain and ordinary 

meaning, and we will not resort to interpretation to ascertain 

the meaning of statutory words which are plain, direct, and 

unambiguous.86

Pursuant to its authority under § 57-1410, the PSC adopted 

rules and regulations to carry out MOPSA. Under 291 Neb. 

Admin. Code, ch. 9, § 023.06 (2013), “The filing of petitions 

for intervention . . . and the conduct of the hearing shall be 

82 § 84-912.02(4); 53 Neb. Admin. Code, ch. 4, § 003.04 (1994).

83 Stringfellow v. Concerned Neighbors in Action, 480 U.S. 370, 107 S. Ct. 

1177, 94 L. Ed. 2d 389 (1987).

84 Id.

85 Tran v. State, ante p. 1, 926 N.W.2d 641 (2019).

86 Id.
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governed by the Rules of Commission Procedure.” Under the 

PSC’s Rules of Commission Procedure, any person who has an 

interest in a proceeding before the PSC, who does not desire to 

file a formal protest, may file a petition of formal intervention 

and shall become a party to the proceeding.87 Generally, one 

who intervenes becomes a party to the litigation and has all the 

rights of a party.88 An intervenor can engage in discovery, file 

motions, introduce evidence, and examine witnesses, and file 

an appeal.89

The PSC’s regulations further provide:

A formal intervenor shall be entitled to participate in 

the proceeding to the extent of his/her express interest 

in the matter. Such participation shall include, without 

limitation, presentation of evidence and argument, crossexamination of witnesses and submission of rebuttal evidence. As a party, a formal intervenor shall have the right 

of appeal.90

The PSC is also an “agency” within the meaning of the APA, 

and the APA’s provisions apply to the PSC.91 The PSC has 

authority to take actions affecting parties subject to its jurisdiction if such action is taken pursuant to a statute.92 The APA 

grants the PSC the power to impose conditions upon an intervenor’s participation, and this action is distinct from granting 

or denying a petition for intervention.93 Section 84-912.02(3) 

of the APA states in pertinent part:

87 291 Neb. Admin. Code, ch. 1, § 015.01 (1992).

88 See Brown v. Jacobsen Land & Cattle Co., 297 Neb. 541, 900 N.W.2d 765 

(2017).

89 Id.

90 291 Neb. Admin. Code, ch. 1, § 015.01C (1992).

91 Nebraska Pub. Serv. Comm. v. Nebraska Pub. Power Dist., 256 Neb. 479, 

590 N.W.2d 840 (1999). See Yellow Cab Co. v. Nebraska State Railway 

Commission, 175 Neb. 150, 120 N.W.2d 922 (1963).

92 See, Neb. Rev. Stat. § 75-110(1) (Reissue 2018); In re Application No. 

C-1889, supra note 36.

93 See, § 75-110(2); § 84-912.02.
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If a petitioner qualifies for intervention, the hearing officer or designee may impose conditions upon the intervenor’s participation in the proceedings, either at the time 

that intervention is granted or at any subsequent time. 

Conditions may include:

. . . .

(b) Limiting the intervenor’s use of discovery, crossexamination, and other procedures so as to promote the 

orderly and prompt conduct of the proceedings; and

(c) Requiring two or more intervenors to combine their 

presentation of evidence and argument, cross-examination, 

discovery, and other participation in the proceedings.

The PSC granted the petitions for formal intervention filed 

by Ponca and Yankton Sioux in recognition of their interests 

in the case, then limited the scope of their participation to 

the issues of impacts on social and cultural resources, as relevant under § 57-1407(4)(d) of MOPSA. The PSC stated it 

imposed these conditions “in order to balance the statutorily 

truncated timeframe [and] the need to consider certain statutorily required issues, with the parties’ due process interests 

in being heard, and in the interest of maintaining an orderly 

proceeding.”

The intervenors argue the conditions imposed by the PSC 

violated the PSC’s own regulations. Ponca asserts that “the 

language [of the regulation] is clear — the evidence, argument, and cross-examination ‘shall’ be ‘without limitation.’”94

However, Ponca’s argument departs from the plain meaning and organization of the language used in the regulation. The language provides that an intervenor’s “participation 

shall include, without limitation, presentation of evidence and 

argument, cross-examination of witnesses and submission of 

rebuttal evidence.”95 We interpret this language according to 

its plain and ordinary meaning. Here, the phrase “without 

94 Brief for appellee Ponca on cross-appeal at 16.

95 291 Neb. Admin. Code, ch. 1, § 015.01C.
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limitation” indicates that an intervenor is entitled to engage 

in each form of participation listed in that sentence, i.e., the 

intervenor will participate in the “presentation of evidence and 

argument, cross-examination of witnesses and submission of 

rebuttal evidence.” In this context, “without limitation” does 

not mean, as Ponca argues, that an intervenor’s participation 

shall be unlimited. Taken to its logical conclusion, the intervenors’ position would eliminate basic procedural norms. For 

example, the intervenors’ reading would eliminate a hearing 

officer’s ability to “exclude evidence which is cumulative 

or repetitious.”96 The intervenors’ interpretation of “without 

limitation” is unreasonable, would yield absurd results, and is 

contrary to MOPSA.

The PSC advised the parties in numerous orders of its 

obligation to bring the proceedings to a timely resolution. 

Working under strict time restraints, the PSC had a managerial 

responsibility to oversee approximately 100 petitions for intervention; organize a representative presentation of evidence; 

acquire input from the public, agencies, local governments, and 

consultants; and issue a written order disposing of the case. 

The PSC would be unable to carry out these duties if it were 

required to afford unbounded participation to every intervenor. 

“[I]ntervention is a useful tool, but [one] which must be used 

carefully[,] lest the manageable lawsuit become an unmanageable cowlick.”97 Upon de novo review, we find no error in the 

PSC’s interpretation of its own regulations or its actions taken 

pursuant to the APA.

The intervenors failed to show that the hearing officer’s 

decisions violated their due process or equal protection rights. 

The intervenors presented evidence and argument, crossexamination, and redirect; had the opportunity for rebuttal; 

and filed briefs. The hearing officer gave the intervenors 

96 291 Neb. Admin. Code, ch. 1, § 016.05 (1992).

97 Wilderness Society v. Morton, 463 F.2d 1261, 1263 (D.C. Cir. 1972) 

(Tamm, Circuit Judge, concurring).
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opportunities to bring out the differences in their positions 

regarding the pipeline, but they failed to form questions that 

were not redundant. The hearing officer explained to the intervenors that they had “asked the same questions of virtually 

every witness.” The hearing officer received no substantive 

offer of proof to justify modifying the conditions and therefore adhered to the prehearing order. The intervenors’ crossexamination time was not restricted. The parties never reached 

their 1-hour time limit for cross-examination. Additionally, 

they failed to call a witness allotted to address the MAR. The 

PSC did not act contrary to its own regulations or impose 

procedural conditions beyond its authority under the APA and 

Nebraska’s Model Rules of Agency Procedure, and its decisions did not injure the intervenors’ substantive rights. This 

assignment of error is without merit.

5. OPSA Evidence N

[19,20] The intervenors next argue that the PSC erred in 

receiving into evidence public comments, transcripts of public 

meetings, and the consultants’ reports. The intervenors argue 

that by including these materials in the record, the PSC violated their due process rights, because the evidence was inadmissible hearsay. It is undisputed that the Nebraska Evidence 

Rules applied to the proceedings. The Nebraska Evidence 

Rules provide that hearsay is admissible when authorized by 

the statutes of the State of Nebraska.98 The legislative branch 

has the right to prescribe the admissibility of certain categories 

of evidence, but it is solely a judicial function to determine the 

weight, if any, to be given such evidence.99

Section 57-1407(2) permits the PSC to hold public meetings for the purpose of receiving public input at locations near 

the route and requires the PSC to “make the public input part 

of the record.” Section 57-1407(3) allows the PSC to request 

98 Neb. Rev. Stat. § 27-802 (Reissue 2016).

99 See State ex rel. Veskrna v. Steel, 296 Neb. 581, 894 N.W.2d 788 (2017).
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state agencies to file a report “regarding information within the 

respective agencies’ area of expertise relating to the impact of 

the major oil pipeline.” Neb. Rev. Stat. § 57-1412 (Cum. Supp. 

2018) enables the PSC to retain consultants “to assist with 

reviewing applications under [MOPSA].”

[21] The PSC included in the record evidence from public 

meetings held in York, O’Neill, Norfolk, and Ralston; reports 

from agencies listed under § 57-1407(3); and reports from 

consultants. The landowners objected on hearsay grounds and 

moved for a “mistrial,” which the hearing officer overruled. 

The hearing officer’s decision was correct because, assuming 

that the evidence in question was hearsay, the evidence was 

admissible by operation of MOPSA and § 27-802. Even if the 

PSC erred by admitting this evidence, the intervenors made no 

showing that they were unfairly prejudiced by the admission 

of the evidence. In a civil case, the admission or exclusion of 

evidence is not reversible error unless it unfairly prejudiced a 

substantial right of the complaining party.100 This assignment of 

error lacks merit.

6. Remaining Arguments Not 

Raisein MOP

Lastly, the intervenors raise constitutional challenges to various statutes. We conclude that these arguments are improperly 

raised in a MOPSA proceeding before the PSC, because the 

intervenors’ arguments do not relate to whether or not the PSC 

should grant an application for a major oil pipeline route.

[22-24] As stated above, the intervenors have the full rights 

of original parties in a case. However, our jurisprudence recognizes some practical limitations on the right to intervene. 

The intervenors can raise only issues that sustain or oppose the 

respective contentions of the original parties.101 An intervenor 

100Reiber v. County of Gage, ante p. 325, 928 N.W.2d 916 (2019).

101 Streck, Inc. v. Ryan Family, supra note 81; Wayne L. Ryan Revocable Trust 

v. Ryan, supra note 81.
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who is not an indispensable party cannot change the position of 

the original parties or change the nature and form of the action 

or the issues presented therein.102 “‘[I]t is fundamental that an 

intervenor takes the action as he finds it and cannot secure relief 

that is foreign or extraneous to the action.’”103 In other words, 

an intervenor cannot widen the scope of the issues, broaden the 

scope or function of the proceedings, or raise questions which 

might be the subject of litigation but which are extraneous to 

the controlling question to be decided in the case.104 Here, the 

intervenors improperly sought to alter the scope and nature of 

a MOPSA proceeding by raising challenges to the constitutionality of various statutes, in particular §§ 57-1101, 57-1401, 

57-1403, 57-1407(2) and (3), and 57-1408.

The original parties in a MOPSA proceeding are the applicant and the PSC. The PSC is a party in a MOPSA proceeding, 

because the PSC acts as more than a neutral factfinding body; 

the PSC is in charge of serving the public interest105 and has 

investigative responsibilities.106 The original parties did not 

challenge the constitutionality of MOPSA’s provisions, but 

instead conducted the proceedings in recognition of their statutory obligations.

The intervenors’ challenge to § 57-1101 miscomprehends 

condemnation proceedings. A condemnation proceeding is an 

102Gilbert v. First National Bank, 154 Neb. 404, 48 N.W.2d 401 (1951); 

State ex rel. Nelson v. Butler, 145 Neb. 638, 17 N.W.2d 683 (1945). See, 

Chandler Co. v. Brandtjen, Inc., 296 U.S. 53, 56 S. Ct. 6, 80 L. Ed. 39 

(1935); John P. Lenich, Nebraska Civil Procedure § 16:9 (2019).

103Harleysville Ins. Group v. Omaha Gas Appliance Co., 278 Neb. 547, 552, 

772 N.W.2d 88, 93 (2009), quoting Arnold v. Arnold, 214 Neb. 39, 332 

N.W.2d 672 (1983).

104 Id. See, State ex rel. Nelson v. Butler, supra note 102; First Nat. Bank of 

Neligh v. Lancaster, 54 Neb. 467, 74 N.W. 858 (1898).

105 See, § 84-917(2)(a)(i); Shaffer v. Nebraska Dept. of Health & Human 

Servs., 289 Neb. 740, 857 N.W.2d 313 (2014).

106 See In re Application of Metropolitan Util. Dist., 270 Neb. 494, 704 

N.W.2d 237 (2005). See, also, e.g., §§ 57-1407(2) and (3) and 57-1412.
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action brought by a condemning authority in the exercise of its 

power of eminent domain.107 In other words, eminent domain 

is the right or power to take private property for a public use 

and condemnation is the procedure whereby this power is exercised.108 In a condemnation action, some right in property must 

be taken or damaged to afford a basis for relief.109 The determination of compensation to the owner of property condemned 

for public use, by ascertaining the value of property taken or 

damaged, is a judicial function.110 MOPSA proceedings merely 

concern what route, if any, should be approved, and as such, 

concern antecedent issues. The intervenors’ concerns regarding 

§ 57-1101 are premature and would be more properly raised 

in subsequent condemnation proceedings. After reviewing the 

record, we find no plain error and no merit to any assignment 

of error.

V. CONCLUSION

In summary, the PSC is an elected body created by the 

Nebraska Constitution to serve the public interest. In § 57-1403 

of MOPSA, the Legislature determined that “[t]he construction 

of major oil pipelines in Nebraska is in the public interest . . . .” 

The Legislature designated the PSC as the agency responsible 

for determining which pipeline route is in the public interest. 

After months of careful consideration, the PSC determined that 

the evidence showed that the MAR is in the public interest. 

Upon de novo review, we find there is sufficient evidence to 

support the PSC’s determination that the MAR is in the public 

interest. The assignments of error are without merit.

Affirme

107 See Henderson v. City of Columbus, 285 Neb. 482, 827 N.W.2d 486 

(2013).

108Van Patten v. City of Omaha, 167 Neb. 741, 94 N.W.2d 664 (1959).

109 Lockard v. Nebraska Pub. Power Dist., 249 Neb. 971, 546 N.W.2d 824 

(1996).

110 See Webber v. City of Scottsbluff, 155 Neb. 48, 50 N.W.2d 533 (1951).