1

Case No CI 12-2060

________________________________________________________

District Court, Lancaster County, Nebraska

________________________________________________________

Randy Thompson,

Susan Luebbe, and

Susan Dunavan

Plaintiffs,

v

Dave Heineman, Governor of Nebraska,

Michael J. Linder, Director, Nebraska

Department of Environmental Quality,

and

Don Stenberg, State Treasurer of Nebraska

Defendants.

________________________________________

Hon. Stephanie Stacy

________________________________________________________

Plaintiffs’ Opening Trial Brief

________________________________________________________

September 9, 2013

David A Domina #11043

Brian E Jorde, #23613

Domina Law Group pc llo

2425 S. 144th

Street, Omaha, NE 68144

402-493-4100

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Table of Contents

Jurisdictional Statement ............................................................................................................... 1

Issues .............................................................................................................................................. 4

Standard of Review ....................................................................................................................... 4

Summary of Argument ................................................................................................................. 4

Argument ....................................................................................................................................... 5

I. Plaintiffs Have Standing to Sue .................................................................................... 5

Standing Is Present to Challenge Expenditures of Public Time and Public Funds. ....................... 6

Standing Is Present to Challenge Expenditures from a Public “Cash Fund” .................................. 7

II. Plaintiffs’ Claims Are Ripe............................................................................................ 8

The Claims Are Fit for Judicial Decision ....................................................................................... 9

The Claims Cannot Be Redressed Differently ................................................................................ 9

III. LB 1161 Unconstitutionally Delegates 1) Legislative and PCS Duties and 2)

Legislative Policy-Making Responsibility ............................................................................. 10

1st Unlawful Delegation: Delegation to the Exclusion of the PSC ............................................... 10

2nd

Unlawful Delegation: Legislative Decision Making over Eminent Domain ......................... 17

IV. LB 1161 Unconstitutionally Provides for No Judicial Review & Violates Due Process . 20

V. LB 1161 Provides No Reasonable Governing Standards. ........................................... 22

VI. LB 1161 Offends Neb Const Art III, § 18 as Special Legislation................................. 24

VII. Gubernatorial Action Under LB 1161 Is Void if LB 1161 Is Void. ........................... 27

VIII. LB 1161 Unconstitutionally Authorizes an Unlawful Pledge of State Credit .......... 28

Conclusion ................................................................................................................................... 30

ii

Cases

Bamford v Upper Republican Nat Resources Dist, 245 Neb 299, 512 NW2d 642 (1994) ......... 23

Boddie v Connecticut, 401 US 371, 91 S Ct 780, 28 L Ed 2d 113 (1971) .................................. 22

Boll v Dep't of Revenue, State of Neb, 247 Neb 473, 528 NW2d 300 (1995) ............................. 22

Burlington N & Santa Fe Ry Co v Chaulk, 262 Neb 235, 631 NW2d 131 (2001) ...................... 19

Calabro v City of Omaha, 247 Neb 955, 531 NW2d 541 (1995) ................................................ 12

Chambers v Lautenbaugh, 263 Neb 920 644 NW2d 540 (2002) .............................................. 4, 7

City of Omaha v City of Elkhorn, 276 Neb 70, 752 NW2d 137 (2008)......................................... 9

City of Omaha v Tract No 1, 18 Neb App 247, 778 NW2d 122 (2010) ...................................... 18

Cunningham v Exon, 202 Neb 563, 276 NW2d 213 (1979) .......................................................... 7

Georgen v Department of Public Works, 123 Neb 648, 243 NW 886 (1932) .............................. 18

Gustin v Scheele, 250 Neb 269, 549 NW2d 135 (1996) ............................................................... 19

Haman v Marsh, 237 Neb 699, 467 NW2d 836 (1991).......................................................... 25, 29

Harleysville Ins Group v Omaha Gas Appliance Co, 278 Neb 547, 772 NW2d 88 (2009) ........... 9

Hauserman v Stadler, 251 Neb 106, 554 NW2d 798 (1996).......................................................... 9

Kiplinger v Nebraska Dept of Natural Res, 282 Neb 237, 803 NW2d 28 (2011) ........................ 24

Krambeck v City of Gretna,198 Neb 608, 254 NW2d 691 (1977) ............................................... 18

Lincoln Dairy Co v Finigan, 170 Neb 777, 104 NW2d 227 (1960) ................................ 14, 22, 23

Little v Loup River Pub Power Dist, 150 Neb 864, 36 NW2d 261 (1949) .................................. 18

Michelle Hug, Henstock, Inc v City of Omaha, 275 Neb 820, 749 NW2d 884 (2008) ............... 24

Missouri Valley Pipe Line Co v Neely, 124 Neb 293, 246 NW 483 (1933) .......................... 17, 18

Myers v Nebraska Inv Council, 272 Neb 669, 724 NW2d 776 (2006) .......................................... 6

Nebraska Pub Serv Comm'n v Nebraska Pub Power Dist, 256 Neb 479, 590 NW2d 840 (1999) ...

11

Nebraska Public Power Dist v MidAmerican Energy,234 F3d 1032 (8th Cir 2000) .................. 10

Paine v Savage, 126 Me 121, 136 A 664 (1927) ......................................................................... 18

Ponderosa Ridge LLC v Banner County, 250 Neb 944, 554 NW2d 151 (1996) ........................ 23

Project Extra Mile v Nebraska Liquor Control Comm'n, 283 Neb 379, 810 NW2d 149 (2012) . 4,

6, 7, 8

Rath v City of Sutton, 267 Neb 265, 673 NW2d 869 (2004) ......................................................... 6

Ryder Truck Rental, Inc v Rollins, 246 Neb 250, 518 NW2d 124 (1994) ...................................... 9

Schumacher v Johanns, 272 Neb 346, 722 NW2d 37 (2006) ................................................. 11, 16

State ex rel Shepherd v Nebraska Equal Opportunity Comm'n, 251 Neb 517, 557 NW 2d 684

(1997)......................................................................................................................................... 12

State ex rel Spire v Nw Bell Tel Co, 233 Neb 262, 445 NW2d 284 (1989) .................... 11, 12, 16§

State v Ellis, 281 Neb 571, 799 NW2d 267 (2011) ...................................................................... 23

Statutes

Neb Rev Stat § 14-366....................................................................................................................19

Neb Rev Stat § 24-302..................................................................................................................... 1

Neb Rev Stat §§ 25-24,129............................................................................................................. 1

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Neb Rev Stat § 57-1101............................................................................................................. 3, 19

Neb Rev Stat § 57-1401.................................................................................................................. 2

Neb Rev Stat § 57-1402..................................................................................................................25

Neb Rev Stat § 57-1405..................................................................................................................12

Neb Rev Stat § 57-1409............................................................................................................20, 24

Neb Rev Stat § 57-1503......................................................................................... 13, 14, 19, 27, 30

Neb Rev Stat § 74-308....................................................................................................................19

Neb Rev Stat § 75-501............................................................................................................. 12, 13

Neb Rev Stat § 81-1502................................................................................................................... 2

Neb Rev Stat § 81-1505....................................................................................................................8

Neb Rev Stat § 84-602..................................................................................................................... 2

Neb Rev Stat § 84-901....................................................................................................................21

Neb Rev Stat § 84-1504.................................................................................................................. 2

Other Authorities

16D CJS Constitutional Law § 1816 ............................................................................................ 21

LB 1, 102nd

Leg. st Spec. Sess. (Neb 2011) .....................................................................................3

LB 1161, 102nd

Leg. Second Sess. (Neb 2012) . 1, 2, 3, 4, 5, 6, 7, 9, 10, 11, 12, 13, 14, 16, 17, 18,

19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30

John Dalberg-Acton, 1st Baron Acton, Letter to Bishop Mandell Creighton, April 5, 1887 in

Historical Essays and Studies (Macmillan, 1907) .........................................................................23

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Jurisdictional Statement

1. Plaintiffs challenge the constitutionality of LB 1161 (Laws of Nebraska 102nd

Leg

2d Sess) and seek declaratory judgment declaring LB 1161 unconstitutional and void. This

Court has subject matter jurisdiction of this action for declaratory judgment pursuant to Neb Rev

Stat § 24-302 & Neb Rev Stat §§ 25-24,129 et seq, the Nebraska Declaratory Judgments Act. An

actual case and controversy exists and arises under an enactment of the Legislature. The

controversy calls into question LB 1161’s constitutional validity.

2. Parties. The following charts explain the parties involved in this litigation:

Plaintiffs

Randy

Thompson

Mr. Thompson is a citizen, resident, taxpayer, fee payer, rate payer, and

elector, of Lancaster County. He pays required state and federal taxes. Land

owned by him was, or still is, in the path of one or more proposed pipeline

routes suggested by a pipeline carrier applicant who has invoked LB 1161.He

is interested in the disbursements of funds from the state treasury. He has been

engaged in production agriculture, and/or the livestock business as well as a

livestock dealer, for more than 30 years. He has purchased and sold vehicles

and equipment, purchased tires, chemicals, fertilizers, herbicides and

insecticides, to my knowledge have engaged in transactions generating fees

paid to, or collected for the State of Nebraska and payable to funds of its

Department of Environmental Quality (NDEQ) from time to time during his

lifetime as a Nebraskan. He is concerned about and has interest in the manner

NDEQ funds and any other funds flowing in and out of the State Treasury are

utilized and extended based upon LB 1161. As a Nebraska taxpayer he accepts

the burden of expenditures or allocations of funds flowing out of the State

Treasury and out of the agencies of the state including the NDEQ. (Ex__

Thompson Aff.)

Susan

Luebbe

Ms. Luebbe is a citizen, resident, taxpayer, fee payer, rate payer, and elector,

of Holt County. She is interest in the disbursement of funds from the State

Treasury. She has been engaged in the production agriculture, and/or livestock

business for more than 30 years. Land held in Trust for her was, or still is, in

the path of one or more proposed pipeline routes suggested by a pipeline

carrier applicant who has invoked LB 1161. She has purchased and sold

vehicles and equipment, purchased tires, chemicals, fertilizers, herbicides and

insecticides, and has engaged in transactions generating fees paid to, or

collected for the State of Nebraska and payable to funds of its Department of

Environmental Quality (NDEQ) from time to time during my lifetime as a

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Nebraskan. She is concerned about and has interest in the manner NDEQ funds

and any other funds flowing in and out of the State Treasury are utilized and

extended based upon LB 1161. As a Nebraska taxpayer she accepts the burden

of expenditures or allocations of funds flowing out of the State Treasury and

out of the agencies of the state including the NDEQ. ( Ex__ Luebbe Aff.)

Susan

Dunavan

Ms. Dunavan, a citizen, resident, taxpayer, fee payer, rate payer, and elector, of

York County. She is interested in the disbursement of funds from the State

Treasury. She has been engaged in a production agriculture business in

Nebraska for more than 20 years. She has purchased and sold vehicles and

equipment, purchased tires, chemicals, fertilizers, herbicides and insecticides,

and has engaged in transactions generating fees paid to, or collected for the

State of Nebraska and payable to funds of its Department of Environmental

Quality (NDEQ) from time to time during my lifetime. She is concerned about

and has interest in the manner NDEQ funds and any other funds flowing in and

out of the State Treasury are utilized and extended based upon LB 1161. (Ex__

Dunavan Aff.)

Defendants

Heineman,

Dave

Governor, Chief Executive of the State; has a duty to “take care that the laws

be faithfully executed.” Neb Const Art IV, § 6.

Linder,

Michael J.

Director, Nebraska Department of Environmental Quality (“DEQ”) which is

created by Neb Rev Stat § 81-1502(6) & (7), has statutory powers and duties

imposed by Neb Rev Stat § 84-1504 et seq. and provisions of LB 1161

challenged in this case.

Stenberg,

Don

State Treasurer, responsible to receive and disburse public money, and hold

and collect it. Neb Rev Stat § 84-602.

3. LB 1161. The genesis for LB 1161 precedes the 102nd

Legislature, 2nd Session,

and requires examination of actions that occurred in the 102nd

Legislature, 1st Special Session,

which was held in November 2011. LB1 (Laws of Nebraska 102nd

Leg 1st Sess)( Neb Rev Stat §

57-1401 et seq. Major Oil Pipeline Siting Act, “MOPSA.”) enacted a framework that

committed the Public Service Commission (“PSC”) to be responsible for certain actions

involving applications of major crude oil pipeline companies for establishment of a route and

construction of its pipeline within, or across, Nebraska. (Stip ¶ 14–15)

4. LB 1161 (Laws of Nebraska 102nd

Leg 2d Sess) purports to amend LB1. It does

so unconstitutionally. LB 1161 was signed into law by the Governor on April 17, 2012 and

became effective on April 17, 2012. (Stip ¶ 19) Summarized, these are the provisions of the

challenged statute:

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LB 1161 Summary Key Provisions

§1

Neb Rev Stat § 57-1101 is amended to provide the procedure for oil pipeline

companies to, as conditions precedent to exercising the power of eminent

domain in Nebraska, secure route approval from either: the Governor acting

unilaterally, or the Public Service Commission (“PSC”) under MOPSA if the

Governor does not approve. Condemnation must commence within two (2) years

of approval by the Governor or the PSC.

§3 Provides that public documents will not be withheld unless withholding is

authorized by § 84-712.05 of the Public Records Act or federal law.

§4 Eliminates a provision of LB 1 that provided: “The Major Oil Pipeline Siting

Act shall not apply to any major oil pipeline that has submitted an application to

the United States Department of State pursuant to Executive Order 13337 prior

to the effective date of this Act.”

§5

Defines “Commission” as the PSC. The term “Department” is not defined in LB

1161, but there is a reference in § 8 to the NDEQ.

§6 Provided “[i]f a pipeline carrier proposes to construct a major oil pipeline to be

placed in operation across Nebraska after the effective date of this Act and the

pipeline carrier has submitted a route for an oil pipeline within, through, or

across . . . the pipeline carrier shall file an application with the [PSC] . . . .” If a

carrier proposes a substantive change to a route … [it] must file an application

with the [PSC]…pursuant to § 9….

§7 Empowers NDEQ to conduct an “evaluation” of a pipeline or a supplemental

environmental impact study of proposed routes and make a report to the

Governor. Section 7 amends LB1 § 3, Art 4 to require the Governor must act on

a submission within 30 days or, if he/she does not approve any route, the

Governor then notifies the pipeline carrier it must receive approval from the

Public Service Commission.

§8 $2 million appropriated to aid in carrying out provisions of LB 1161.

§9 Severability clause.

§10

Repealer clause for inconsistent provisions.

§11 Emergency Clause. As a slip law LB 1161 may be read at

http://nebraskalegislature.gov/FloorDocs/Current/PDF/ Slip/LB 1161.pdf

5. Claims. Plaintiffs seek declaratory judgment that LB 1161 is unconstitutional on

one or more of the following grounds:

5.1 Unlawful delegations of authority over common carriers, and eminent domain

5.2 Unlawful lack of judicial review and violates due process

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5.3 Arbitrariness due to lack of standards

5.4 Special Legislation

5.5 Because LB 1161 is void, Actions of Gov. under LB 1161 are void

5.6 Unlawful expenditure and pledge of State credit

Issues

6. These are the core issues:

Do Plaintiffs have standing, and are their claims ripe?

Is LB 1161 Unconstitutional?

Standard of Review

7. The Court is confronted with a facial challenge to a Nebraska statute. Questions

of law are presented. The Court must decide them as a matter of law.

Whether a statute is constitutional is a question of law; accordingly, we are

obligated to reach a conclusion independent of the decision reached by the court

below.11

A statute is presumed to be constitutional, and all reasonable doubts will

be resolved in favor of its constitutionality.

Banks v Heineman, 286 Neb 390,*4, __NW2d __ (2013).

8. “[P]reventing the use of public time and money to implement and enforce

allegedly invalid rules is a sufficient interest to confer taxpayer standing to challenge the rules.

Project Extra Mile v Nebraska Liquor Control Comm'n, 283 Neb 379, 389, 810 NW2d 149, 159

(2012), citing, Chambers v Lautenbaugh, 263 Neb 920, 644 NW2d 540 (2002).

Summary of Argument

9. As resident taxpayers and fee payers, Plaintiffs have standing to maintain this

declaratory judgment action, under the holding of Project Extra Mile, supra. Banks v Heineman,

286 Neb 390, __ NW2d __ (2013).

10. Plaintiffs’ claims that LB 1161 is constitutionally infirm are sound even though

the Bill is entitled to the presumption of validity and all doubt about constitutionality must be

resolved in Defendants’ favor. Plaintiffs should prevail because:

10.1 LB 1161 is an unlawful delegation of Legislative authority because a) policy

and implementation power over common carriers cannot be delegated to the

Governor, and b) policy control over the power of eminent domain, including

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who, where, and how it can be exercised, cannot be given to the Governor.

10.2 LB 1161 fails to state or provide any reasonable limitations and standards by

which the Governor, or the DEQ are to execute the law, and it provides for no

judicial review.

10.3 LB 1161 commits public funds to a loan to a private Party and violates the

Constitutional prohibition against lending the full faith and credit of the State.

10.4 LB 1161 violates the Nebraska Constitution’s Due Process Clause by denying

access to the Courts.

11. LB 1161 violates the Nebraska Constitution by unconstitutionally delegating two

legislative responsibilities (one shared with the PSC), to the Governor. These improperly

delegated responsibilities are 1) regulatory control of common carriers, which must either be

conducted entirely by the Legislature, or by the Public Service Commission but not by the

Governor, and 2) decisions concerning who can exercise the power of eminent domain and under

what circumstances it can be exercised, as this is a plenary legislative power that cannot be

delegated to the Governor.

12. LB 1161 also fails constitutional muster, because it provides no controlling

standards, and it provides for no judicial review.

13. The Bill violates due process guarantees by allowing a process to occur involving

an application by a private Party for a public route across the state through which a utility service

or oil pipeline will be built with the power of eminent domain, but for which no mandatory

hearing process, guided by articulated standards, has been created. And, it is special legislation.

14. Plaintiffs, who are resident Nebraska taxpayers, electors, and interested citizens

involved in issues related to the highly public and highly controversial oil pipeline issue, request

that LB 1161 be declared unconstitutional.

Argument

I. Plaintiffs Have Standing to Sue

15. The Court passed on standing issues in its rulings on Defendants’ Rule 12

dismissal motions. No new standing issues are presented now. Standing is jurisdictional. Each

Plaintiff is a Nebraska resident and a taxpayer. Each seeks declaratory judgment and to enjoin

improper expenditure of public funds. (Aff’s. of Thompson, Dunavan & Luebbe).

16. Plaintiffs have standing as taxpayers to challenge unlawful components of LB

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1161, which include the unlawful commitment of public funds. Project Extra Mile v Nebraska

Liquor Control Comm'n, 283 Neb 379, 386, 810 NW2d 149, 157 (2012) (“[A] resident taxpayer,

without showing any interest or injury peculiar to itself, may bring an action to enjoin the illegal

expenditure of public funds raised for governmental purposes.”); Myers v Nebraska Inv Council,

272 Neb 669, 681, 724 NW2d 776, 791 (2006) (Taxpayer have an equitable interest in public

funds and can sue to prevent unauthorized appropriation.); Rath v City of Sutton, 267 Neb 265,

281, 673 NW2d 869, 885 (2004) (“[I]rreparable harm should be assumed whenever a plaintiff

proves an expenditure of public funds is contrary to law.”). See also, Banks v Heineman, 286

Neb 390, __ NW2d __ (2013).

17. Taxpayers also have standing to seek declaratory relief in an action against state

officials when a taxpayer pleads the unauthorized expenditure of public funds. Project Extra

Mile, 283 Neb at 387, 810 NW2d at 158. While Defendants are expected to argue that standing is

absent because Plaintiffs’ interest in their claims are no greater than the common interest of all

taxpayers, this argument has been firmly rejected several times, dating back to 2004, upon each

occasion of its presentation by the Attorney General to the Supreme Court. The same rationale

commands rejection of the position that use of a select “cash fund” circumvents citizen vigilance

at holding public officials accountable when state government strays from the Constitution.

18. Section 8 of LB 1161 appropriated $2 million from the Nebraska Department of

Environmental Quality Cash Fund to aid in carrying out the provisions of LB 1161. Under LB

1161, the NDEQ prepared any evaluation of a proposed pipeline route, and in the process,

expended public time, resources, and funds. The NDEQ’s expenditure is for an unlawful

purpose, i.e., to fund and carry out the operation of an unconstitutional statute. This expenditure

gives the taxpayers standing.

Standing Is Present to Challenge Expenditures of Public Time and Public Funds.

19. In earlier submissions, the Court correctly noted that Defendants’ standing

arguments erroneously focused on a portion of Project Extra Mile opinion’s dicta where the

Court stated that “a taxpayer’s interest in challenging an unlawful state action must exceed the

common interest of all taxpayers in securing obedience to the law.” Project Extra Mile, 283 Neb

at 390, 810 NW2d at 160. Defendants failed to read the remainder of the Project Extra Mile

case, which provides necessary context for the Court’s statement. The “common interest”

language is not applicable when a taxpayer’s claim is based upon illegal expenditures. Project

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Extra Mile, 283 Neb at 386, 810 NW2d at 157 (“[A] resident taxpayer, without showing any

interest or injury peculiar to itself, may bring an action to enjoin the illegal expenditure of public

funds raised for governmental purposes.”).

20. Plaintiffs allege that a $2 million pledge of state credit in Section 8 of LB 1161 is

an illegal pledge. Additional time, resources, and funds have been, and will be, spent to

implement the challenged provisions of LB 1161. Chambers v Lautenbaugh, 263 Neb 920, 928,

644 NW2d 540, 548 (2002) (allegations of misuse of future public time and money to implement

an illegal redistricting plan is an illegal expenditure).

21. Project Extra Mile articulates a principle that supports standing and undermines

all of the Defendants’ standing arguments. Essentially, if the Plaintiffs in this action did not have

standing, “[a] good deal of unlawful government action would otherwise go unchallenged.”

Project Extra Mile, 283 Neb at 390, 810 NW2d at 160. If Plaintiffs do not have taxpayer

standing, then no taxpayer has standing, and the State’s actions are “unreviewable in court: The

only persons or groups directly affected by the government action would have no incentive to

challenge it.” 283 Neb at 391, 810 NW2d at 160.

22. The Project Extra Mile Court acknowledged “a taxpayer’s action sometimes

raises matters of great public concern that far exceed the type of injury in fact that an individual

could normally assert in an action against government officials or entities.” 283 Neb at 389-90,

810 NW2d at 159-60 (2012) (citing Cunningham v Exon, 202 Neb 563, 276 NW2d 213 (1979)).

LB 1161 was enacted because of a proposed oil pipeline that would cross Nebraska. The issue is

of great public significance in this State and across the USA. Plaintiffs have established general

taxpayer standing; however, Plaintiffs also have standing based upon significance of the

proposed pipeline and the procedures implemented in LB 1161 to govern such a pipeline.

Standing Is Present to Challenge Expenditures from a Public “Cash Fund”

23. Defendants seek to differentiate what funds are expended under LB 1161 to divest

Plaintiffs of taxpayer standing. They argue that LB 1161 funding from a select fund and not the

general treasury, and they say Plaintiffs do not pay fees to this fund, they lack standing.

Defendants’ argument fails under Project Extra Mile and for two additional reasons:

23.1 The NDEQ is funded by both General Funds and Cash Funds and both are

public funds in which Plaintiffs have interests; and

23.2 The differentiation asserted is not determinative of standing in this

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declaratory judgment case.

24. Neb Rev Stat § 81-1505.01 establishes a Cash Fund “which shall be used to pay

the expenses of the Department.” Section 81-1505.01 requires the Department to “remit all fees

collected pursuant to subsection (9) of section 81-1505 and section 81-1521.09 to the State

Treasurer for credit to the fund.” Section 81-1501.01 does not provide the source, or potential

sources, of all funds that may finance the Department of Environmental Quality Cash Fund. The

Department of Environmental Quality is funded from a variety of sources: (1) General Funds;

(2) Cash Funds; and (3) Federal Funds. Nebraska’s 2011-2012 Budget allocated the following

funds to the Department of Environmental Quality. 2011-2012 State Budget, fiscal year July 1,

2011 – June 30, 2012: $7,278,788,937, available at

http://www.nebraskaspending.gov/spent1011/. Judicial notice of this budget is requested.

25. Even if the Cash Fund is funded exclusively by fees and charges, such a

differentiation, as it relates to standing, is not supported by Nebraska law. “[T]axpayers have an

equitable interest in public funds, including state public funds.” Project Extra Mile, 283 Neb at

390, 810 NW2d at 160 (emphasis added). No differentiation was made, nor attempted, between

“General Funds” derived from tax revenues and “Cash Funds” generated from fees and other

charges. Defendants’ did not, and cannot, cite any authority in support of its differentiation

between General Funds and Cash Funds for standing. Defendants’ theory, if accepted, would

require a complicated and unnecessary financial analysis to determine the source of contested

public funds expenditures when taxpayer standing is challenged. Defendants’ theory would

insulate government actors from valid constitutional challenges from taxpayers as long as the

government actor is misspending “Cash Funds” generated solely from DEQ fees.

26. Taxpayers are as interested in proper expenditure of “cash funds” as the General

Fund. This interest was expressed at the outset of statehood when the State’s first governor was

impeached for misuse of a special fund, i.e., the common schools fund. Tipton, Thomas Weston,

Forty Years of Nebraska at Home and in Congress, P104-117 (1902). Standing “requires that a

litigant have a personal stake in the outcome of a controversy: a personal stake that would

warrant invocation of a court’s jurisdiction and justify the exercise of the court’s remedial

powers on the litigant’s behalf.” Plaintiffs have such a stake.

II. Plaintiffs’ Claims Are Ripe

27. Pretrial rulings on motions have dispatched Defendants’ ripeness arguments as

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meritless. Plaintiffs’ claims are ripe because they are 1) fit issues for judicial resolution; and 2)

require resolution to avoid hardship to the public or parties because they cannot be serviced

differently.

28. “[A] determination with regard to ripeness depends upon the circumstances in a

given case and is a question of degree.” Harleysville Ins Group v Omaha Gas Appliance Co,

278 Neb 547, 553, 772 NW2d 88, 94 (2009). Nebraska courts employ a two-part ripeness

analysis: “(1) the fitness of the issues for judicial decision and (2) the hardship of the parties of

withholding court consideration.” Id. In other words, “when making a ripeness determination, a

court must consider, as a jurisdictional matter, whether it can act at a certain time and also, as a

prudential matter, whether it should act at that time.” City of Omaha v City of Elkhorn, 276 Neb

70, 79, 752 NW2d 137, 145 (2008).

The Claims Are Fit for Judicial Decision

29. Plaintiffs seek a Declaratory Judgment concerning the constitutionality of a

Legislative product. “A declaratory judgment is, by definition, forward-looking, for it provides

‘preemptive justice designed to relieve a Party of uncertainty before the wrong has actually been

committed or the damage suffered.’” Hauserman v Stadler, 251 Neb 106, 110, 554 NW2d 798,

801 (1996). “The function of a declaratory judgment is to determine justiciable controversies

which either are not yet ripe for adjudication by conventional forms of remedy or, for other

reasons, are not conveniently amenable to the usual remedies.” Ryder Truck Rental, Inc v

Rollins, 246 Neb 250, 257, 518 NW2d 124, 128 (1994).

The Claims Cannot Be Redressed Differently

30. No other equally serviceable remedies are available to remediate the

constitutional infirmities in LB 1161. Public funds and time have been expended by the NDEQ

to review a proposed pipeline. A pipeline has been proposed, and the unconstitutional provisions

of LB 1161 have been invoked. If it cannot be challenged before it is built, then when can it be?

31. If no decision about the issues is made now, Plaintiffs would be required to allow

constitutionally deficient procedures occur, and then file an action to divest a pipeline carrier of

eminent domain privileges after the fact. Public funds and time would already be spent and

could not be “unspent.” No future events or set of facts changes the constitutionality of the

procedures or expenditures set in place by the law. No decision to grant or deny a particular

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proposed pipeline cures the constitutional infirmities in LB 1161. The harm of improper eminent

domain by a private, foreign corporation looms in the Bill. “Harm includes both the traditional

concept of actual damages—pecuniary or otherwise—and also the heightened uncertainty and

resulting behavior modification that may result from delayed resolution.” City of Omaha, 276

Neb at 80, 752 NW2d at 146 (quoting Nebraska Public Power Dist v MidAmerican Energy, 234

F3d 1032, 1038 (8th Cir 2000)). Each Plaintiff was, or still is, in the path of proposed pipeline

routes governed by the provisions of LB 1161. (Thompson, Dunavan, Luebbe Affidavits)

32. Dismissal on ripeness grounds is not appropriate if it could “result in delay and

the unnecessary expense of judicial resources.” City of Omaha, 276 Neb at 81, 752 NW2d at

147. “Continued uncertainty regarding the enforceability of [the approval of a pipeline route and

the grant of eminent domain power to the pipeline carrier] is undesirable and unnecessary.” Id at

82. These rationales apply here. The issues can, and should, be decided now.

III. LB 1161 Unconstitutionally Delegates 1) Legislative and PCS Duties and 2)

Legislative Policy-Making Responsibility

Two constitutional infirmities are related to the extent they involve delegation issues, but they

are distinct legally. Either alone invalidates LB 1161. They are discussed separately.

1st Unlawful Delegation: Delegation to the Exclusion of the PSC

33. LB 1161’s delegation of powers over common carriers from the PSC to the

Governor is unconstitutional. An analogous prior attempt to transfer jurisdiction over common

carriers from a Commission, the State Railway Commission, to the Department of Aeronautics

was deemed unconstitutional as should the transfer of powers here. State ex rel. State Railway

Commission v. Ramsey, 151 Neb. 333, 37 N.W.2d 502 (1949).

34. The Nebraska Constitution departmentalizes state government into three (3)

branches. It affirmatively commands that a member of one branch shall not exercise “any power

properly belonging to either of the others except as expressly directed or permitted in this

Constitution…” Neb Const Art II, § 1. “[T]he distribution of powers clause prohibits one branch

of government from exercising the duties of another branch.” Nebraska Coalition for Educ

Equity & Adeq (Coal) v Heineman, 273 Neb 531, 545, 731 NW2d 164, 176 (2007). Each branch

of government can exercise only powers granted to it by the Constitution. LB 1161 violates this

constitutional principle by divesting the PSC of jurisdiction to regulate oil pipelines, including

intrastate oil pipelines, and delegating policy and implementation power in the Governor.

11

Nebraskans created the Public Service Commission (“PSC”) as a constitutional body and gave it

specific powers in Neb Const Art IV § 20. These powers include:

“…regulation of rates, service and general control of common carriers as the Legislature

may provide by law. But, in the absence of specific legislation, the commission shall

exercise the powers and perform the duties enumerated in this provision.”

35. “The PSC is an independent regulatory body under the Nebraska Constitution,

and its jurisdiction to regulate common carriers may be restricted by the Legislature only through

“specific legislation.” Schumacher v Johanns, 272 Neb 346, 365, 722 NW2d 37, 52 (2006). The

Legislature may restrict the PSC’s jurisdiction but any restriction must be done through “specific

legislation” directed to a limited, definite, or precise item. State ex rel Spire v Nw Bell Tel Co,

233 Neb 262, 276, 445 NW2d 284, 293-94 (1989). “In the absence of specific legislation, the

powers and duties of the commission, as enumerated in the Constitution, are absolute and

unqualified.” In re Application No 30466, 194 Neb 55, 59, 230 NW2d 190, 194 (1975). “When

the Legislature grants the PSC jurisdiction over non-common carriers, the PSC must exercise

such authority completely within the statutory scheme.” Nebraska Pub Serv Comm'n v Nebraska

Pub Power Dist, 256 Neb 479, 491, 590 NW2d 840, 848 (1999).

36. Oil pipelines, major oil pipelines, and pipeline carriers affected by LB 1161 are

common carriers.

“The term ‘common carriers' includes all forms of transportation for hire, and the

amendment providing for the commission was intended to control the common carrier

business to which it relates at all times and under all developments (citations omitted).

Transportation is the important fact, and the form or method thereof is immaterial

(citations omitted). The commission since its creation has had jurisdiction and power of

control by virtue of the Constitution when the problem presented involved regulation of

public transportation service. In re Application of Chicago, B. & Q. R. Co., 138 Neb 767,

295 NW 389; State v. Union Stock Yards Co., 81 Neb 67, 115 NW 627. A Constitution is

intended to meet and be applied to any conditions and circumstances as they arise in the

course of the progress of the community. The terms and provisions of constitutions are

constantly expanded and enlarged by construction to meet the advancing affairs of men.

While the powers granted thereby do not change, they do apply in different periods to all

things to which they are in their nature applicable.

12

State ex rel. State Ry. Comm'n v. Ramsey, 151 Neb 333, 337-38, 37 NW2d 502, 506 (1949), cited

in State ex rel Spire v Nw Bell Tele Co., 233 Neb 262, 45 NW2d 262, 276, 293 (1989). 13 Am

Jur 2d Carriers § 2.

37. Here, the PSC has constitutional and statutory jurisdiction and general

control of common carriers including to review and regulate oil pipeline sites proposed to be

constructed. Neb Const Art IV § 20; Neb Rev Stat § 75-501 & § 57-1405. The Legislature

cannot constitutionally divest the PSC of jurisdiction over a class of common carriers by vesting

a governmental agency, body of government, or branch of government, except the legislature,

with control over class of common carriers. Neb Const Art IV § 20.

38. The powers of the Public Service Commission are plenary and self-executing.

Groenewold v. Building Movers, Inc., 197 Neb. 187, 247 N.W.2d 629 (1976). The PSC has

exclusive jurisdiction to review intrastate oil pipeline sites and regulate intrastate oil pipelines.

The PSC has secondary jurisdiction to review oil pipeline routes under MOPSA, unless the

Governor approves the route before the PSC review can occur. LB 1161 §6, Neb Rev Stat §57-

1405. The PSC has jurisdiction to review all proposed oil pipelines, the TransCanada line and

substantially identical ones. LB 1161. However, under LB 1161 all policy and all

implementation decisions may bypass both the Legislature and the PSC. This is a non sequitur.

Under LB 1161, the Legislature divests the PSC of jurisdiction over oil pipelines and vests that

power with the Governor. Thus, the PSC has jurisdiction over 1) all intrastate oil pipelines, and

2) all interstate oil pipelines that seek approval under MOPSA, but under LB 1161, it has no

jurisdiction over any pipeline if a private Party, at its sole option, chooses to take to a particular

matter to the Governor, where there are no standards for qualification and there is no judicial

review, thereby bypassing a government process of the PCS imposing standards and providing

for judicial review. This is discussed in Argument IV below.

39. “[T]he Nebraska Constitution prohibits one branch of government from

encroaching on the duties and prerogatives of the others or from improperly delegating its own

duties and prerogatives.” State ex rel Shepherd v Nebraska Equal Opportunity Comm'n, 251

Neb 517, 524, 557 NW2d 684, 690 (1997)(citing Calabro v City of Omaha, 247 Neb 955, 531

NW2d 541 (1995); Clemens v Harvey, 247 Neb 77, 525 NW2d 185 (1994)). LB 1161 violates

these principles and results in unconstitutional delegation of powers.

40. LB 1161 gives the Governor authority to approve “any route for an oil

13

pipeline within, through, or across” Nebraska. Neb Rev Stat § 57-1503(1)(a)(i). This completely

divests the PSC of authority over a class of common carriers—oil pipelines that are Governor

approved. “The Legislature may delegate to an administrative agency the power to make rules

and regulations to implement the policy of a statute.” Governor's Policy Research Office v KN

Energy, 264 Neb 924, 652 NW2d 865 (2002). But, “the Legislature may not delegate its

lawmaking function to the executive or judicial branches.” In re Nebraska Cmty. Corr. Council

to Adopt Voluntary Sentencing Guidelines for Felony Drug Offenses, 274 Neb 225, 236, 738

NW2d 850, 858 (2007); Clemens v Harvey, 247 Neb 77, 525 NW2d 185 (1994).

41. LB 1161 gives the Governor decisional authority over what private proposed

pipeline company will be given the power to condemn Nebraska land. Control of eminent

domain is a matter over which the Legislature had plenary authority. Burnett v Central Neb PPD,

147 Neb 458, 465-66, 23 NW2d 661, 666 (1946)(citing predecessor to 26 Am Jur2d §5 (WL

Updated August 2013)); Singer, Sutherland Statutes and Statutory Construction § 64.6 (WL

updated Nov 2012). While the Legislature can delegate implementation of this power, it cannot

delegate the policy making function.

42. LB 1161’s delegation-related infirmities do not end here. It also improperly

divests the PSC of jurisdiction over intrastate common carriers and delegates that authority to the

Governor. The PSC has exclusive jurisdiction over common carriers such as intrastate oil

pipelines. See Neb Const IV § 20, Neb Rev Stat § 75-501. The PSC is completely divested of

jurisdiction as to any pipeline approved by the Governor, including any intrastate pipeline.

Intrastate oil pipelines are caught in LB 1161’s net and will result in the PSC being completely

divested of jurisdiction. This chart shows the Legislature’s LB 1161 alternative to the PSC’s

review of a proposed oil pipeline under LB 1161:

Step 1: Standard-less NDEQ Review

NDEQ may evaluate any route for an oil pipeline within, through, or across Nebraska, and

for the stated purpose of being part of a federal … agencies’ NEPA review process, Or

collaborate with a federal agency or agencies’ in a review under NEPA involving an SEIS

LB 1161 § 7; Neb Rev Stat § 57-1503(1)(a)(i-ii)

Step 2: Governor Approval

Thirty (30) days after receiving the evaluation or the SEIS, the Governor shall indicate in

14

writing to involved federal agencies that he or she approves the pipeline. In the event the

Governor does not approve the project, then the applicant must go through MOPSA, and

comply with PSC procedures. LB 1161 § 7; Neb Rev Stat § 57-1503(4)

43. The delegation outlined is not permissible.

It is fundamental that the Legislature may not delegate legislative power to an

administrative or executive authority (citations omitted). The Legislature does have

power to authorize an administrative or executive Department to make rules and

regulations to carry out an expressed legislative purpose…..

Lincoln Dairy Co v Finigan, 170 Neb 777, 781, 104 NW2d 227, 230 (1960). LB 1161 violated

the Lincoln Dairy rule. Who may exercise eminent domain is up to the Legislature. It cannot

delegate to the Governor the authority to empower a newly formed political subdivision or class

of subdivisions to exercise eminent domain. This must be done by the Legislature. The

Legislature also cannot save an attempted delegation by adopting as its own a future act that has

not yet occurred. Clemens v Harvey, 247 Neb 77, 82, 525 NW2d 185, 189 (1994). Tasks

necessary to implement policy can be delegated, but policy making decisions, such as whether a

private company can take private property from another for its own profit, cannot. 16A Am Jur

2d Constitutional Law § 316 (WL Updated August 2013). The “legislature can lawfully provide

the method of taking without the aid of the other Departments of government….” May v City of

Kearney, 145 Neb 475, 505, 17 NW2d 448, 464 (1945). LB 1161 does not delegate a method to

the Governor; it delegates the power to decide without methods who, when, and where eminent

domain can be exercised. This is unlawful.

44. By enacting LB 1161, the Legislature divested the PSC from reviewing

and authorizing any oil pipelines that the Governor, by his or her whim, may approve. This

includes oil pipelines “within” Nebraska, or intrastate pipelines. Neb Rev Stat § 57-1503(1)(a)(i)

defines what a pipeline carrier may submit to the NDEQ for evaluation and thereby defines the

various types of oil pipeline routes, such as those within, though, or across Nebraska, subject to

Governor approval at Neb Rev Stat § 57-1503(4). Therefore, LB 1161, § 7, results in a complete

divestment of jurisdiction from the PSC and delegation of that power into another department of

the government because every possible type of oil pipeline, those that would be routed “within,

through, or across the state” is removed to the NDEQ/Governor approval process. Such action is

15

not permissible. The Supreme Court has expressly so held:

“Our prior decisions regarding interpretation of Neb Const Art IV, § 20, seem to

draw a distinction between statutes by which the Legislature attempted to transfer

regulation of common carriers to an agency distinct from the PSC and statutes by which

the Legislature itself “occupies the field” and becomes, in effect, the regulatory body

which exercises control over common carriers. The Legislature cannot constitutionally

divest the PSC of jurisdiction over a class of common carriers by vesting a governmental

agency, body of government, or branch of government, except the Legislature, with

control over the class of common carriers. State ex rel. State Railway Commission v

Ramsey, supra (unconstitutional legislative attempt to vest the Nebraska Department of

Aeronautics with power to “control common carriers by air”); Rivett Lumber & Coal Co.

v Chicago & NWR. Co., 102 Neb 492, 167 NW 570 (1918) …. However, a legislative act

or statute may constitutionally divest the PSC of jurisdiction over common carriers to the

extent that the Legislature, through specific legislation, has preempted the PSC in control

of common carriers. See, Rodgers v Nebraska State Railway Commission, 134 Neb 832,

844, 279 NW 800, 807 (1938) (“[T]he plenary power of the railway commission may

only be curtailed or diminished where the legislature has, by specific legislation,

occupied the field”)….

Thus, while the Legislature may constitutionally occupy a regulatory field,

thereby specifically and preemptively excluding the PSC from some control over a class

of common carriers, the Legislature cannot absolutely and totally abandon or abolish

constitutionally conferred regulatory control over common carriers. For example,

legislation which directs that the PSC cannot exercise its constitutionally granted power

over a particular common carrier or a class of common carriers, or which dictates that the

Legislature shall not enact regulatory statutes concerning a common carrier or class of

common carriers, violates Neb Const Art IV, § 20. If such abandonment or abolition of

regulatory control were permitted, the protection afforded to Nebraska citizens by the

constitutionally created and empowered PSC would cease to exist. Neb Const Art IV, §

20, requires that the power to regulate common carriers exist either in the PSC or the

Legislature.”

State ex rel. Spire v Nw Bell Tel Co, 233 Neb 262, 276-77, 445 NW2d 284, 294 (1989).

16

45. The Supreme Court underscored this holding shortly after it was announced:

“Thus, while the Legislature may constitutionally occupy a regulatory field,

thereby specifically and preemptively excluding the PSC from some control over

a class of common carriers, the Legislature cannot absolutely and totally abandon

or abolish constitutionally conferred regulatory control over common carriers. For

example, legislation which directs that the PSC cannot exercise its

constitutionally granted power over a particular common carrier or a class of

common carriers, or which dictates that the Legislature shall not enact regulatory

statutes concerning a common carrier or class of common carriers, violates Neb

Const Art IV, § 20. If such abandonment or abolition of regulatory control were

permitted, the protection afforded to Nebraska citizens by the constitutionally

created and empowered PSC would cease to exist. Neb Const Art IV, § 20,

requires that the power to regulate common carriers exist either in the PSC

or the Legislature.” (emphasis added)

State ex rel Spire v Beerman, 235 Neb 384, 398, 455 NW2d 749, 756 (1990) (4 judges

concluding statute was unconstitutional. 5 required). See also, State ex rel Railway Comm’n v

Ramsey, 151 Neb 333, 37 NW2d 502 (1949)(cited by Spire v Beerman).

46. Where specific legislation in which the Unicameral occupies a regulatory area

involving common carriers is absent, “the powers and duties of the [PSC] as enumerated in the

Constitution, are absolute and unqualified.” In Re Application No 304665, 194 Neb 55, 59, 230

NW2d 190, 194 (1975); Schumacher v Johanns, 272 Neb 346, 369, 722 NW2d 37, 54 (2006).

47. The Legislature cannot divest the PSC of jurisdiction and vest that power to the

Governor. Schumacher v Johanns, 277 Neb 346, 365, 722 NW2d 37, 52 (2006); State ex rel

Spire v NW Bell Tel Co, 233 Neb 262, 276-77, 445 NW2d 284, 294 (1989). The Legislature did

not attempt in LB 1161 to occupy the oil pipeline regulatory field itself, as is permissible under

Nebraska law. Id, 233 Neb at 277. And, the Legislature has not, in LB 1161 empowered the

Governor to implement Legislative policy governing pipelines and their routes with regulations

and enforcement. Instead, the Legislature delegated to the Governor the power to decide where

oil pipelines will go, who will own them, how they will be built, and who can exercise eminent

domain to put them in. In other words, the Governor, without standards expressing any

legislative policy, has the power to make every legislative policy decision: …who, what, when,

17

where, how, and why…concerning oil pipelines. (E 25 Request 14) This is an impermissible

delegation of legislative responsibility.

48. LB 1161’s delegation of powers over oil pipelines from the PSC to the Governor

is unconstitutional.

2nd Unlawful Delegation: Legislative Decision Making over Eminent Domain

49. LB 1161’s delegation of powers from the PSC to the Governor over who, when,

and how eminent domain may be exercised is unconstitutional.

50. “The power of eminent domain belongs exclusively to the legislative branch.” 26

Am Jur2d Eminent Domain §5 (WL Updated August 2013). “[T]he mode of exercising the right

of eminent domain is within the unlimited discretion of the Legislature….When the legislature

delegates the power of eminent domain, it is necessary that it also prescribes the method by

which the power is to be exercised.” 29A CJS Eminent Domain § 262 (WL Updated June 2013).

Spencer v Village of Wallace, 153 Neb 536, 543, 45 NW2d 473,477 (1951). This is well settled

Nebraska law:

The power to exercise the right of eminent domain must be exercised by, or

conferred by, the Legislature, and when it is granted to a municipal corporation, or to a

public service corporation, that body must determine how far it will make use of the

power thus conferred. This is an executive or administrative act. When it comes to the

stage of compensating the owner of the property by ascertaining the value of the property

taken, or damaged, this requires the exercise of judicial functions.

In re Appraisement of Omaha Gas Plant, 102 Neb 782, 169 NW 725, 726 (1918). The right to

exercise eminent domain to build a pipeline “depends on the legislative grant” as well. Missouri

Valley Pipe Line Co v Neely, 124 Neb 293, 246 NW 483, 484 (1933).

51. While the Legislature can delegate the authority to exercise eminent domain to a

county, city, or other political subdivision, or to a private Party, it cannot delegate to the

Governor, the decision about whether a county, city, other political subdivision, or a private

Party, can do so. Omaha Gas Plant, supra; Annot., Power of Eminent Domain Conferred Upon

Municipality…, 79 ALR 515 (Orig 1932, updated weekly). Indeed, the roots of this doctrine

reach the pre-revolutionary English Parliament. Matthew P Harrington, “Public Use” and the

Original Understanding of the So-Called “Takings” Clause, 53 Hastings L J 1245, 1266 (2002).

18

Daniel H. Cole, Political Institutions, Judicial Review, and Private Property: A Comparative

Institutional Analysis, 15 Sup Ct Econ Rev 141, 182 (WL 2007).

52. The Legislature cannot give the Governor the authority to delegate the power of

eminent domain authority to another Party or entity. Doing so makes the Governor the

legislature, not the executive. Any delegation of the power of eminent domain can only occur

from the Legislature pursuant to specific statute, but not by the Governor under his or her whim

at approving an oil pipeline route. LB 1161 creates an unlawful delegation of eminent domain

powers to the Governor because the moment the Governor unilaterally approves an oil pipeline

route, the power of eminent domain immediately vests in the private oil company. Burnett v

Central Neb PP & Irr Dist, 147 Neb 458, 465-66, 23 NW2d 661 (1948)(citing predecessor to 26

Am Jur2d §5, supra) (cited by Singer, Sutherland Statutes & Statutory Construction, Statutes

Granting Power of Eminent Domain §64.6 (WL Updated Nov 2012).

53. “Eminent domain is defined generally as the power of the nation or a state, or

authorized public agency, to take or to authorize the taking of private property for a public use

without the owner's consent, conditioned upon the payment of just compensation.” City of

Omaha v Tract No 1, 18 Neb App 247, 251, 778 NW2d 122, 127 (2010)(citing Krambeck v City

of Gretna, 198 Neb 608, 254 NW2d 691 (1977)). The power of eminent domain is given by the

Nebraska Constitution to the Legislature:

The exercise of the power and the right of eminent domain shall never be so

construed or abridged as to prevent the taking by the legislature, of the property

and franchises of incorporated companies already organized, or hereafter to be

organized, and subjecting them to the public necessity the same as of individuals.

Neb Const Art X, § 6 (emphasis added).

54. “The right to authorize the exercise of the power and the mode of the exercise

thereof is legislative.” Little v Loup River Pub Power Dist, 150 Neb 864, 869, 36 NW2d 261,

265 (1949) (citing Missouri Valley Pipe Line Co v Neely, 124 Neb 293, 246 NW 483 (1933);

Georgen v Department of Public Works, 123 Neb 648, 243 NW 886 (1932); Paine v Savage, 126

Me 121, 136 A 664 (1927)). Nebraska courts have long held that the Legislature can delegate

the power of eminent domain to other agencies by statute. See City of Omaha v Tract No 1, 18

Neb App 247, 251, 778 NW2d 122, 127 (2010)(“The Legislature has delegated the power of

eminent domain to cities of the metropolitan class, including the City, to acquire property for use

19

as part of a public street pursuant to Neb Rev Stat § 14-366 (Reissue 2007”); Gustin v Scheele,

250 Neb 269, 276, 549 NW2d 135, 140 (1996). (“Railroads, although …private corporations,

also can acquire land by eminent domain for their use. Neb Rev Stat § 74-308 (Reissue 1990)”).

“Statutes conferring and circumscribing the power of eminent domain must be strictly

construed.” Burlington N & Santa Fe Ry Co v Chaulk, 262 Neb 235, 241, 631 NW2d 131, 137

(2001). But, LB 1161 does not grant the power to exercise eminent domain to the executive

branch. It gives the Governor authority to confer the power of eminent domain to a private

pipeline company who he chooses, to be exercised where and when he describes.

55. LB 1161 changes Neb Rev Stat § 57-1101 to allow the Governor to grant eminent

domain to any pipeline company he or she chooses to approve. It provides in § 1:

Any person engaged in, and any company, … former or created for the purpose

of, transporting or conveying crude oil, petroleum, gases, or other products

thereof in interstate commerce through or across the State of Nebraska or

intrastate within the State of Nebraska, and desiring or requiring a right-of-way

… as may be reasonably necessary for the laying, relaying, operation, and

maintenance of any such pipeline or the location of any plant or equipment

necessary to operate such pipeline, shall have the right to acquire the same for

such purpose through the exercise of the power of eminent domain, except

that for any major oil pipeline as defined in section 57-1404 to be placed in

operation in the State of Nebraska after November 23, 2011, any such person,

company, corporation, or association shall comply with section 57-1503, and

receive the approval of the Governor for the route of the pipeline under such

section or shall apply for and receive an order approving the application under the

Major Oil Pipeline Siting Act, prior to having the rights provided under this

section….(emphasis added).

56. LB 1161 changes the constitutional framework of how eminent domain is

delegated and exercised. The sole condition precedent after compliance with section 57-1503 for

a pipeline carrier to receive eminent domain power is the Governor’s approval.

57. This chart compares the constitutional method of delegating the power of eminent

domain to the new method stated in LB 1161:

Constitutional Manner of Delegation LB 1161 – Unconstitutional Delegation

20

Constitutional Manner of Delegation LB 1161 – Unconstitutional Delegation

Legislature has Authority to Delegate Power

of Eminent Domain but must make policy

Legislature Delegates Authority to Delegate

Power of Eminent Domain to the Governor

including policy decisions

Legislature Delegates Power to Exercise

Eminent Domain to an Approved Party

Governor Delegates the Power to Exercise

Eminent Domain to Pipeline Carrier

The Approved Party then Exercises the Power

of Eminent Domain

Approved Person or Pipeline Company then

Exercises Power of Eminent Domain against

landowners in Nebraska

58. LB 1161 purports to give the Governor the authority to decide who, when, and

how eminent domain may be exercised. These are exclusively legislative powers; they cannot be

delegated. This Court has steadfastly so ruled. LB 1161’s delegation of powers from the PSC to

the Governor over who, when, and how eminent domain may be exercised is unconstitutional.

IV. LB 1161 Unconstitutionally Provides for No Judicial Review & Violates Due

Process

59. LB 1161 contains not so much as a single syllable about judicial review. The

Governor’s policy and implementation decisions making authority is unfettered. It provides for

no judicial review whatsoever. The Governor is empowered to decide who, when, and where a

pipeline can be placed, and why. No citizen can pose these questions after he/she does so: Did

the Governor act lawfully? Rationally? Constitutionally? This is because LB 1161 fails to

provide for judicial review. Contrast this with the appeal procedure provided in MOPSA at Neb

Rev Stat § 57-1409.

60. LB 1161 is unconstitutional for being completely devoid of any judicial review.

LB 1161 violates both the due process clause, Neb Const Art I, § 3, and the doctrine of

separation of powers. Neb Const Art II, § 1.

61. Under LB 1161 once the standard-less “evaluation” of the NDEQ reaches the

Governor, the process of approval or denial of a pipeline route occurs in a vacuum with no public

hearing, no notice, and no opportunity to appeal the Governor’s approval of the who, where,

how and why issues concerning a route and eminent domain power vesting in a private company.

There is no procedural due process or substantive due process under LB 1161.

21

62. Decisions of administrative agencies can be appealed by interested parties under

the Administrative Procedures Act (“APA”), Neb Rev Stat § 84-901, et seq. But the APA does

not apply to gubernatorial applications for pipelines under LB 1161. Appeals from the PSC

process are, however, allowed. “[A]s a general rule, in order to satisfy the requirements of due

process, it is required that administrative proceedings shall be subject to a review in the courts

and to a judicial determination made on notice and a hearing, particularly when property rights

are affected.” 16D CJS Constitutional Law § 1816.

63. The Legislature cannot divest the PSC of jurisdiction and then vest it in the

Governor. The PSC is a quasi-judicial body. In Re Claims Against Atlanta Elev, 268 Neb 598,

685 NW2d 477 (2004). Chase 3000 v Public Service Comm’n, 273 Neb 133, 728 NW2d 560

(2007). The Governor is not. LB 1161 provides for no judicial review of the Governor.

The … Constitution firmly establishes that the judicial power in Nebraska is vested

solely in the courts. Transport Workers of America v Transit Auth of City of Omaha, 205

Neb 26, 286 NW2d 102 (1979), citing Neb Const Art II, § 1, and Art V, § 1.

As a general rule administrative agencies have no general judicial powers,

notwithstanding they may perform some quasi-judicial duties. Moreover, unless permitted

by the Constitution, the Legislature may not authorize administrative officers or bodies to

exercise powers which are essentially judicial in their nature, or to interfere with the

exercise of such powers by the courts.

Jaksha v State, 241 Neb 106, 132, 486 NW2d 858, 875 (1992)(property tax unconstitutional).

64. Davis v General Motors Acceptance Corp, 176 Neb 865, 127 NW2d 907 (1964),

involved a series of statutes passed by the Legislature relating to installment sales contracts and

installment loans. One of these statutes included a provision that any declaration of

unconstitutionality as to the statutes would apply prospectively only. This court held that the

provision violated the doctrine of separation of powers. The court reasoned:

It is a settled principle of constitutional law that the construction and

interpretation of the Constitution is a judicial function and it is the duty of the judicial

branch of our government to determine whether an act of the Legislature contravenes the

provisions of the Constitution. [Citation omitted.] This power and duty necessarily

include the authority to determine what effect if any an unconstitutional statute shall have

upon the rights of parties which may have been affected by it.

22

Id. at 871, 127 NW2d at 912. LB 1161 shares the constitutional infirmity of no judicial review

as the statutes stricken by Davis. Jaksha, above, adhered to Davis. And, for good reasons.

65. Access to the courts is a fundamental right protected by Due Process clauses in

the Federal and State Constitutions. Boddie v Connecticut, 401 US 371, 379 (1971); Boll v

Dep't of Revenue, State of Neb, 247 Neb 473, 528 NW2d 300 (1995). “In short, ‘within the

limits of practicability,’ [citation omitted] a State must afford to all individuals a meaningful

opportunity to be heard if it is to fulfill the promise of the Due Process Clause.” Boddie, 401 US

371, 379 (1971). The Due Process Clause may be offended by acts that foreclose access to the

courts. Boll, 247 Neb at 478, 528 NW2d at, 304 (1995).

66. Under LB 1161, the Governor may approve or disapprove a pipeline for any

reason. There is no requirement for evidence to be presented, a court reporter to be present for

recording testimony by stenographic means, or even a hearing for people to attend. Plainly, there

is no participation at all besides the Governor. In fact, the Governor need not follow, or even

read, the NDEQ evaluation purportedly designed to contain the entirety of data relied upon by

the Governor. The Governor’s decision is guided by nothing but whim, sealed from judicial

review. No checks. No balances. No scrutiny. No questions. And, no constitutional compliance.

This is a fatal flaw that requires LB 1161 to be stricken for yet another reason.

V. LB 1161 Provides No Reasonable Governing Standards

67. LB 1161 constitutes an unlawful and unconstitutional delegation of authority

because it is devoid of any clearly and definite standards by which the Governor, in his or her

sole unguided judgment, decide who, when, where and how an applicant can route and build a

pipeline, and take property from Nebraskans who make a living with it so the company can make

a profit of its own. The Bill provides no policy and no standards. It “punts” the subject to the

Governor. The Nebraska Constitution does not permit this to stand. Neb Const II, § 1. The

Legislature must make the policy. And either the Legislature or the PSC must administer the

policy. If the PSC is assigned this duty, it must apply the Legislative policy under standards

given by the Legislature. Lincoln Dairy Co v Finigan, 170 Neb 777, 780-81, 104 NW2d 227,

230-31 (1960).

68. When delegating power, the Legislature must provide clear and definite standards.

It is agreed that "[t]he Legislature does have power to authorize an administrative or executive

Department to make rules and regulations to carry out an expressed legislative purpose, or for the

23

complete operation and enforcement of a law within designated limitations." Ponderosa Ridge

LLC v Banner County, 250 Neb 944, 951, 554 NW2d 151, 157 (1996) (quoting Lincoln Dairy

Co). “The limitations of the power granted and the standards by which the granted powers are to

be administered must, however, be clearly and definitely stated in the authorizing act." Id.

Where the Legislature has provided reasonable standards for carrying out the delegated duties,

there is no unconstitutional delegation of legislative authority. Bamford v Upper Republican Nat

Resources Dist, 245 Neb 299, 512 NW2d 642 (1994). Standards are mandatory:

The question of how far the Legislature should go in filling in the details of the

standards which an administrative agency is to apply raises large issues of policy

in which the Legislature has a wide discretion…. Such standards in conferring

discretionary power upon an administrative agency must be reasonably

adequate, sufficient, and definite for the guidance of the agency in the exercise

of the power conferred upon it and must also be sufficient to enable those

affected to know their rights and obligations. … (emphasis added).

State ex rel Douglas v Nebraska Mtge Fin Fund, 204 Neb 445, 465, 283 NW2d 12, 24 (1979).

69. “Although the limitations of the power granted and the standards by which the

granted powers are to be administered must be clearly and definitely stated in the authorizing

act, where the Legislature has provided reasonable limitations and standards for carrying out the

delegated duties, there is no unconstitutional delegation of legislative authority.” State v Ellis,

281 Neb 571, 592, 799 NW2d 267, 289 (2011) cert denied, 132 S Ct 463. Assuming the

Legislature could delegate to the Governor in the area of law at issue (and it cannot), it must give

standards for administering the given powers. Here, there are none.

70. Without standards to which he or she must be held, the Governor is granted

unfettered power. “Power tends to corrupt, and absolute power corrupts absolutely.” John

Dalberg-Acton, 1st Baron Acton, Letter to Bishop Mandell Creighton, April 5, 1887 in Historical

Essays and Studies (Macmillan, 1907). The Governor cannot be given authority from the

Legislature without clear and definite standards. None exists. So, LB 1161 should be overturned

as unconstitutional for this reason, too.

71. Here no plausible policy reason for the closed class is present. LB 1161

effectively closes the door to a hearing and judicial review to any interested parties when the

Governor decides to delegate the power of eminent domain, yet the very same interested parties

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would be afforded a hearing and judicial review for the exact same pipeline siting project if the

proposal went in front of the PSC. Neb Rev Stat § 57-1409. This is without legislatively

expressed reasons for the classification. Others who seek common carriage authority must

comply with PSC standards, rules, procedures, and may use judicial review. Those who

unilaterally pick the gubernatorial shortcut can have their way with the untested signature of the

Governor who may sign or decline for whatever honorable or lawless reason that moves the

officeholder. In one instance, the judiciary is available to assure legality; in the other it is not. For

the offended, this denies equal protection.

VI. LB 1161 Offends Neb Const Art III, § 18 as Special Legislation

72. LB 1161 is constitutionally infirm as special legislation. It utilizes an arbitrary

and unreasonable classification, and it creates a closed class. Neb Const Art III, § 18, dictates:

The Legislature shall not pass local or special laws in any of the following cases,

that is to say: …

In all other cases where a general law can be made applicable, no special law

shall be enacted.

“The focus of the prohibition against special legislation is the prevention of legislation which

arbitrarily benefits or grants special favors to a specific class. A legislative act constitutes special

legislation if (1) it creates an arbitrary and unreasonable method of classification or (2) it creates

a permanently closed class.” Kiplinger v Nebraska Dept of Natural Res, 282 Neb 237, 255, 803

NW2d 28, 43 (2011); Michelle Hug, Henstock, Inc v City of Omaha, 275 Neb 820, 826, 749

NW2d 884, 890 (2008). LB 1161 is unconstitutional special legislation because it utilizes an

arbitrary and unreasonable method of classifying which oil pipeline carriers must undergo the

PSC review versus choosing the Governor and it creates a closed class of one (1) oil pipeline

company that may use the procedural changes in LB 1161.

73. LB 1161 is special legislation because it serves a closed class of one (1) oil

pipeline company, that may use the gubernatorial shortcut provisions. Only a pipeline carrier

who submitted a pipeline route prior to April 17, 2012, and is currently proposing to construct a

major oil pipeline with, through, or across Nebraska to be put in service after November 23,

2011 benefits from LB 1161’s PSC bypass. No new interested parties can utilize the statutory

changes in LB 1161 because none can meet the condition precedent of having submitted a

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Nebraska route prior to April 17, 2012, and filing a Presidential Permit application. Legislative

history makes it clear that this is a special law granting a special favor to a single company.

74. “In determining whether a class is closed, this court is not limited to the face of

the legislation, but may consider the act's application.” Haman v Marsh, 237 Neb 699, 717, 467

NW2d 836, 849 (1991). Whether a law is general, or special legislation depends on how it

actually applies: “A legislative act that applies only to particular individuals or things of a class

is special legislation.” Haman v Marsh, 237 Neb at 709, 467 NW2d at 846.

75. A special session of the Legislature was called in November 2011 to deal solely

with major oil pipeline routing legislation. The Special Session passed LB1, MOPSA, with the

stated purpose to “ensure that a major oil pipeline is not constructed within Nebraska without

receiving approval of the commission [PSC]” and to “ensure that the location of routes for major

oil pipelines is in compliance with Nebraska law.” Neb Rev Stat § 57-1402. LB 1161 eliminated

section 3 of § 57-1402. Section 3 had read: “The Major Oil Pipeline Siting Act shall not apply to

any major oil pipelines that have submitted an application to the United States Department of

State pursuant to Executive Order 13337 prior to the effective date of this Act.”

76. As of November 23, 2011, only one company, TransCanada Keystone Pipeline

LP, intended to construct a major oil pipeline within Nebraska, and only it had submitted an

application for a Presidential Permit pursuant to Executive Order 13337. (Stip ¶ 12 & 13) There

is no evidence of any other pipeline permit applications to the US President anywhere in the

record. Therefore, as of November 23, 2011, MOPSA and its mandatory PSC review process

would not affect TransCanada as it had, at the time, a live and pending Presidential Permit

application.

77. However, on January 18, 2012, after the effective date of LB1 of November 23,

2011, the President of the United States denied TransCanada’s then pending Presidential Permit

application. (Stip ¶ 15 & 17; E 23). This was a shock to TransCanada and a disappointment to

Defendant Heinemann. Later that day, January 18, 2012, Defendant Governor Heineman issued

an immediate press release expressing his “disappointment with the action of President Obama”

and noted an “approval of the pipeline would have allowed TransCanada to move forward with

the project…” (E 24).

78. As of January 18, 2012 TransCanada no longer had an active and pending

presidential permit application and now did not fit under the MOPSA exemption provided in

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LB1 Section 3(3) and they would therefore be subject to the PSC Review process if they re-

applied for a Presidential Permit and/or a route through Nebraska. Defendant Heineman noted

“The President’s decision [to deny] is disruptive and we are now going to review in detail what

this means for Nebraska.” (E 24) It is unclear who “we” is in the Governor’s press release.

79. The following morning of January 19, 2012 LB 1161 was introduced by Senator

Jim Smith. (E 3, 4 & 5). “We” moves very fast.

80. On January 23, 2012, Defendant Heineman received a document stamped “Gov’s

Policy Research” Keystone XL Pipeline Nebraska Re-route. (E 33). This document specifically

states in the last paragraph of page 3, “The purpose of LB 1161 is to modify the authorization of

the NDEQ to work with Keystone on a reroute within Nebraska outside of the auspices of a

supplemental EIS under NEPA.” The sole purpose of LB 1161 as admitted here was for the

benefit of TransCanada’s Keystone (KXL) pipeline. The legislative history also supports this

fact.

81. On February 16, 2012 LB 1161 had its first hearing in front of the Natural

Resources Committee. (E 4 pg 2). Senator Smith opened his prepared statements by saying, “LB

1161 is a simple amendment to LB1 and LB4…and LB 1161 is not intended to generate new

discussion…” He continued, “unfortunately we could not have anticipated the circumstances and

the actions that occurred at the federal level [TransCanada Permit denial] that now jeopardize the

agreements we reached last year.” (E 4 pg 3). Continuing Smith stated “Following me in

testimony today will be Robert Jones, vice president for Keystone Pipeline at TransCanada. I

have asked Mr. Jones to again join us and to provide the committee with an update of their plans

with regard to Nebraska. Also following me will be Mr. Jim White, federal regulatory counsel

for TransCanada, who can provide this committee with some insight into the federal process that

has or that will occur with regard to Keystone XL going forward. (E 4 pg 4).

82. It is important to note that as of January 18, 2012, the controlling mechanism for

approval of oil pipelines larger than six inches in diameter was through the PSC via MOPSA.

However, if an oil pipeline carrier had an active application for a Presidential Permit that had not

been denied they would be allowed to bypass MOPSA and the PSC. Since TransCanada’s permit

was denied they would have to submit a new permit and therefore would fall under the purview

of MOPSA and the PSC as pipeline route evaluator and trigger for any eminent domain rights if

the pipeline was approved, unless new legislation was passed. Enter, LB 1161 as the vehicle to

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get TransCanada’s KXL pipeline state review and approval and trigger for eminent domain

rights out of the PSC and MOPSA and in to the hands of the Governor and the NDEQ.

83. LB 1161 was signed into law by the Governor on April 17, 2012, and became

effective on April 18, 2012. (Stipulation para 19)

84. The same day, April 18, 2012, TransCanada submitted its “Initial Report

Identifying Alternative and Preferred Corridors for Nebraska Reroute” to NDEQ for evaluation

of the proposed Keystone XL Pipeline project pursuant to LB 1161 and with the option granted

to it to bypass the PSC and MOPSA by choosing the Governor/DEQ approach. See, Neb. Rev.

Stat. § 57-1503. (Stip ¶ 20)

85. On May 4, 2012, TransCanada reapplied, filing a new application with the State

Department for a Presidential Permit for the construction of an international border crossing for

the proposed Keystone XL Pipeline at the U.S.-Canada border crossing site in Montana. (Stip ¶

21)

86. LB 1161 was enacted for TransCanada’s benefit to streamline route approval and

construction across Nebraska if its second Presidential permit application is granted. The

Legislature did not express a reasonable basis for enacting special laws to favor a single pipeline

company, nor to limit judicial review for those along the route of this single pipeline, and it did

not identify how such special legislation would further a legitimate public policy. Unless it does

these things, Art 3 § 18 is violated. Banks v Heineman, 286 Neb 390, __NW2d __ (2013); Yant v

City of Grand Island, 279 Neb 935, 784 NW2d 101 (2010).

87. A class of one (1) that cannot grow is a closed class. Theoretical applicants in a

make believe world do not change the closed status of the LB 1161 class. Its closed class makes

the Bill unconstitutional. This is not a case where a class is necessarily closed and legislation is

necessary to prevent a pipeline company from being unjustly treated by a change in Nebraska

law. Compare, Banks v Heineman, 286 Neb 390, *8 (single taxpayer benefits to prevent

perceived harm from change in law). Impermissible special legislation is present in LB 1161.

VII. Gubernatorial Action Under LB 1161 Is Void if LB 1161 Is Void

88. Nebraska’s Governor has a limited authority. Unless expressly authorized by the

constitution or a statute, the Governor is powerless to act. State law does not give the Governor

impairment or expressed power, outside LB 1161, to authorize routes, placement, times,

circumstances or identities of applicants, who wished to build major crude oil pipelines. If the

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Governor acts under LB 1161, but the statute is void as unconstitutional, then his action has no

sound legal basis and is void.

89. Plaintiffs’ proposition is simple. If any one of the many challenges to the

constitutionality of LB 1161 are successful and LB 1161 is deemed unconstitutional, any acts

taken as a result of powers or directives of LB 1161 are therefore also unconstitutional, null and

void. An injunction seeking to prohibit the enforcement of an unconstitutional statute is proper.

See Let's Help Florida v McCrary, 621 F.2d 195 (5th Cir. 1980), judgment aff'd, 454 US 1130

(1982); Burnau v Whitten, 642 SW2d 346 (Mo 1982); Ex parte Young, 209 US 123 (1908)

(sustaining action in federal court to enjoin state attorney general from enforcing unconstitutional

state law); see also, e.g., Briggman v Virginia, Dept. of Social Services, Div of Child Support

Enforcement, 526 F Supp 2d 590 (WD V. 2007) (under the doctrine of Ex parte Young, an

individual may petition a federal court to enjoin State officials in their official capacities from

engaging in future conduct that would violate the Constitution or a federal statute).

90. If Plaintiffs are successful, any acts of the Governor, or other Defendants, under

authority of LB 1161 are inherently unconstitutional because they flow from and are a product of

an unconstitutional law. Plaintiffs seek an injunction preventing enforcement of LB 1161.

Complaint May 23, 2012 at ¶ 19.4 & all amendments. The January 22, 2013 letter from

Governor Heineman to President Obama and Secretary of State Clinton is authorized by LB

1161. Without the Bill to authorize the action, the Governor has no such authority to act and his

efforts to act would be void.

91. If LB 1161 is declared unconstitutional, the Governor’s route approval is

unconstitutional and his approval void because no law authorizes it. If LB 1161 is

unconstitutional, then all acts flowing from it, including eminent domain rights vested in a

pipeline company, are also unconstitutional.

VIII. LB 1161 Unconstitutionally Authorizes an Unlawful Pledge of State Credit

92. LB 1161 requires a loan of State funds to a pipeline applicant. Neb Const Art

XIII, §3 prohibits the State from pledging its credit or loaning funds:

The credit of the state shall never be given or loaned in aid of any individual,

association, or corporation, except that the state may guarantee or make long-term,

low-interest loans to Nebraska residents seeking adult or post high school education

at any public or private institution in this state. ….

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LB 1161 violates this constitutional mandate.

93. “In summary, Article XIII, § 3, seeks to prevent the state from loaning its credit to

an individual, association, or corporation with the concomitant possibility that the state might

ultimately pay that entity's obligations.” Japp v Papio-Missouri River Natural Res. Dist., 273

Neb 779, 788, 733 NW2d 551, 558 (2007). LB 1161 requires a State loan to advance and pay

for costs that would never have occurred but for the pipeline company’s application and request

for a route determination.

94. The extension of credit to a private pipeline company, engaged in private

business, is the exact issue underlying the purpose of Neb Const Art XIII, § 3 and similar

constitutional provisions in other states, quoting an Arizona decision:

It represents the reaction of public opinion to the orgies of

extravagant dissipation of public funds by counties, townships, cities and

towns in aid of the construction of railways, canals, and other like

undertakings during the half century preceding 1880, and it was designed

primarily to prevent the use of public funds raised by general taxation in

aid of enterprises apparently devoted to quasi public purposes, but

actually engaged in private business.

Haman v Marsh, 237 Neb 699, 719, 467 NW2d 836, 850 (1991)(quoting State v Northwestern

Mutual Insurance Co., 86 Ariz 50,53, 340 P2d 200, 201 (1959).

95. Here, there are public funds at issue to aid an enterprise devoted to a quasi public

purpose, but actually engaged in private business. Contrary to Neb Const Art XIII, § 3, LB 1161

§ 7 pledges interest-free funds and credit of the State in aid of pipeline corporations for at least

sixty (60) days under the hope the pipeline applicant later repays the State Treasury. The State’s

pledge to advance funds is clearly in aid of the corporation in that the funds and credit advanced

would otherwise be debts of the pipeline company for expenses and fees incurred during the

route evaluation process of the company’s proposed route. (E 34 p 1).

96. LB 1161 § 7; Neb Rev Stat § 57-1503(1)(b) provides:

A pipeline carrier…shall reimburse the Department for the cost of the evaluation

or review within sixty days after notification from the Department of the cost. The

Department shall remit any reimbursement to the State Treasurer….

97. This is an extension of credit, in the form of an obligation to front end costs that

must be paid by the State. It cast the State into the role of debtor obligated by LB 1161 to

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advance payments, and later as creditor trying to get them back. Callan v Balka, 248 Neb 469,

476, 536 NW2d 47, 51 (1995)(defining credit of State). Art VIII, § 3 suffers no such laws. In

furtherance of this extension of credit LB1161 §8 appropriates “$2,000,000 … to aid in carrying

out the provisions of Legislative Bill 1161….” Total expenditures have exceeded the $2,000,000

wrongfully appropriated sum by nearly $4,000,000. (E 34 p 6). There was no prior

appropriation, constitutional or unconstitutional, of this nearly $4,000,000 additional State

payment for the benefit and in aid of a pipeline company.

Conclusion

98. Plaintiffs have standing to maintain this case, their case is ripe, and they state

have articulated valid grounds for striking LB 1161 for its multiple constitutional infirmities.

They respectfully request that the Court issue its Declaratory Judgment striking LB 1161 as

unconstitutional and void.

99. Plaintiffs also request that the Court issue its permanent injunction to enjoin

Defendants from acting under LB 1161.

100. Plaintiffs request judgment for fees and costs, and any further relief the Court

deems just and equitable.

Randy Thompson, et al., Plaintiffs

By:______________________

David A Domina # 11043

Brian E Jorde # 23613

Domina Law Group pc llo

2425 S 144th

St.

Omaha NE 19144-3267

402-493-4100

Plaintiffs’ Lawyers