Filed in Jefferson District Court

*** EFILED ***

Case Number: D33CI200000003
Transaction ID: 0012358212
Filing Date: 12/21/2020 12:54:45 PM CST
IN THE DISTRICT COURT OF JEFFERSON COUNTY, NEBRASKA

MARIAN E. WURM, DONALD A. ) Case No. CI 20-3

WURM, and JOANN K. KERWOOD, )
)
Plaintiffs, )
)
v. ) ORDER (TRANSCANADA’S
) MOTION FOR PARTIAL
TRANSCANADA KEYSTONE ) SUMMARY JUDGMENT)
PIPELINE, LP, )
)
Defendant. )

DATE OF HEARING: August 13, 2020

DATE OF RULING: December 21, 2020

APPEARANCES: Brian E. Jorde, Attorney for Plaintiffs.

James G. Powers, Attorney for Defendant.
Patrick D. Pepper, Attorney for Defendant.
Vicky L. Johnson, District Judge, presiding

THIS MATTER came on for hearing on the Defendant’s (“TransCanada”) Motion for
Partial Summary Judgment, filed on March 9, 2020. The Plaintiffs (“Wurm”) offered Exhibits 1-
9, and said exhibits were received, subject to the objections made by TransCanada, ruled on
herein.
Grateful acknowledgement is given to Mary Millnerd for her research.
A WORD ON ACRONYMS AND STYLE
This case is replete with a “bewildering profusion of acronyms,” quoting from Mark
Cooney, “Acronymonious” November/December, 2020, Nebraska Lawyer Magazine, Page 55.
This Court agrees with Mr. Cooney that such usage is generally not helpful to the reader unless
the acronym is in general circulation, such as the terms “EPA” or “HUD.” To the extent
possible, this order has avoided them.
Plaintiff/Condemnee/Appellant is referred to as “Wurm.”
Defendant/Condemnor/Appellee is referred to as “TransCanada.”
Major Oil Pipeline Siting Act, Neb. Rev. Stat. §57-1401 et seq. is referred to as “the
Act.”
 Public Service Commission is referred to as “the Commission.”
The primary route proposed by TransCanada in the Application for the Commission to
approve is referred to as the “Preferred Route.”
The Mainline Alternative Route is referred to as “Alternative Route.”
Sandhills Alternative Route, not at issue here, is referred to as “Sandhills Route.”
Landowners along the Preferred Route who were allowed to intervene in the Commission
proceedings are referred to as “Intervenors.”
TransCanada’s February 16, 2017 Application to the Commission is referred to as “the
Application,” not to be confused with In Re Application 0003, 303 Neb. 872, 932 N.W.2d 653
(2019).
BACKGROUND
TransCanada plans to construct an interstate oil pipeline that will transect a portion of the
State of Nebraska. On February 16, 2017, TransCanada submitted the Application to the
Commission pursuant to the Act to approve a pipeline route through the State of Nebraska. In
2017, proceedings were held before the Commission as to the Application request. Three routes
were proposed within TransCanada’s Application: 1) the Preferred Route, 2) the Alternative
Route, and, 3) the Sandhills Route. The Sandhills Route was TransCanada’s initial proposed
route in 2008, and the Preferred Route was proposed as an alternative to that route. The
Sandhills Route is largely irrelevant to the decision made herein.
In the Application, TransCanada requested that the Commission find the Preferred Route
to be in the public’s interest and adopted. When the Commission’s hearing officer announced
that the Alternative Route and Preferred Route would be considered by the Commission on
November 20, 2017, the time for formal intervention for landowners along the Alternative Route
had expired. The intervention deadline was March 22, 2017. As a consequence, the Alternative
Route landowners claim that they had no notice that their lands or interests may be affected.
The Intervenors that did participate in the 2017 Commission hearing were landowners
along the Preferred Route. TransCanada had begun condemnation proceedings along much of
the Preferred Route in 2015. Therefore, the Intervenors were clearly aware of TransCanada’s
plan to construct a pipeline across their property. They were also aware that they needed to be
aware of intervention deadlines when TransCanada made its application to the Commission.
 The Commission’s hearing officer allowed the parties to designate additional witnesses
and offer exhibits pertaining to the Alternative Route. There were no objections made to this
portion of the order during the 2017 Commission proceedings. No arguments were made at the
time of the order pertaining to “notice” to any landowner.
Subsequent to the hearing, the Commission approved the Alternative Route for
construction. The Intervenors challenged the Commission’s determinations in allowing and
adopting the Alternative Route in the Nebraska Supreme Court. The challenge asserted the
Alternate Route was not a part of the TransCanada Application, the Commission did not properly
consider the Alternative Route for TransCanada’s pipeline, the Commission’s approval of the
Alternative Route did not comply with principles of due process, including notice requirements
under the Act, and that the actions of the Commission and the Act were unconstitutional on
several grounds. The Nebraska Supreme Court affirmed the Commission’s determinations and
found against the Intervenors in the opinion In Re Application 0003, 303 Neb. 872 (2019).
Following the publication of the Nebraska Supreme Court’s opinion, TransCanada
commenced eminent domain proceedings against Wurm and other Alternative Route landowners
in the various county courts affected. After awards were made, Wurm and the other Alternative
Route landowners filed appeals from those proceedings. In response, TransCanada filed the
present Motion for Partial Summary Judgment.
In addition to the appeals, Wurm has pled alternative theories of recovery; important to
this decision is the claim that the decision of the Commission was unconstitutional as denying
due process; the landowners claim that proper notice was not given them, and that safety
concerns were not properly considered. To these two claims TransCanada has filed a Motion for
Partial Summary Judgment. TransCanada argues that the issue of notice has been decided by the
Nebraska Supreme Court in In Re Application 0003, id., and that safety concerns are not to be
considered due to federal preemption of the issue. Id. Wurm argues, lastly, that the
condemnations substantially deviate from the approved Alternative Route and that as a
consequence, TransCanada must reapply for Commission approval.
STANDARD OF REVIEW
Neb. Rev. Stat. § 25-1332 (Reissue 2016) provides in part that a motion for summary
judgment shall be granted, “if the pleadings and the evidence admitted at the hearing show that
there is no genuine dispute as to any material fact and that the moving party is entitled to a
judgment as a matter of law.” A party moving for summary judgment makes a prima facie case
for summary judgment by producing enough evidence to demonstrate that the movant is entitled
to judgment if the evidence were uncontroverted at trial. Am. Express Centurion Bank v. Scheer,
25 Neb. App. 784, 787, 913 N.W.2d 489, 492 (2018). Once the moving party makes a prima
facie case, the burden shifts to the party opposing the motion to produce admissible contradictory
evidence showing the existence of a material issue of fact that prevents judgment as a matter of
law. Id.
On a motion for summary judgment, the Court views the evidence in the light most
favorable to the nonmoving party and gives that party the benefit of all reasonable inferences
deducible from the evidence. Doe v. Fireman's Fund Ins. Co., 287 Neb. 486, 489, 843 N.W.2d
639, 642 (2014). At the summary judgment stage, the trial court determines whether the parties
are disputing a material issue of fact; it does not resolve the factual issues. Wynne v. Menard,
Inc., 299 Neb. 710, 716, 910 N.W.2d 96, 101 (2018). Where reasonable minds could draw
different conclusions from the facts presented, such presents a triable issue of material fact. Id. at
716, 910 N.W.2d at 100-01. If a genuine issue of fact exists, summary judgment may not
properly be entered. Barnes v. Am. Standard Ins. Co. of Wisconsin, 297 Neb. 331, 338, 900
N.W.2d 22, 28 (2017).
ISSUES TO BE DECIDED
1. Whether TransCanada’s objections to Wurm’s exhibits should be sustained or
overruled.
2. Whether safety considerations are properly considered by the Commission under the
Act.
3. Whether notice as required by the Act has been given to Wurm on the Alternative
Route.
4. Whether Defendant’s Motion for Partial Summary Judgment should be sustained or
overruled.
Objections to Exhibits
Exhibit No. 1: Affidavit of Brian E. Jorde.
1. Relevance. TransCanada objects to Exhibit No. 1 in its entirety and asserts that
Exhibit No. 1 does not identify material facts relevant to the motion before the Court.
 2. Argumentative. TransCanada objects to Exhibit No. 1 and asserts that it constitutes an
argument offered by an attorney in the context of a sworn affidavit, which is impermissible.
3. Foundation. TransCanada objects to certain paragraphs of Exhibit No. 1, arguing that
said paragraphs lack foundation.
4. Asserts legal conclusions. TransCanada objects to Exhibit No. 1, arguing that certain
paragraph assert legal conclusions which are impermissible for a witness.
5. Completeness. To the extent there are statements within Exhibit No. 1 that purport to
quote from rulings that are incomplete, TransCanada objects for completeness and asks that the
Court take judicial notice of the full document which is quoted.
TransCanada’s objection to Mr. Jorde’s affidavit regarding testimony by counsel must be
considered in light of the type of proceeding in which it is offered and the evidence Mr. Jorde
purports to offer. First, the affidavit is submitted in a civil proceeding on behalf of Mr. Jorde’s
client. The Nebraska Trial Practice Series states:
Attorney as witness for client. In civil cases, an attorney becoming a witness for a
client, except as to formal matters such as attestation or custody of an instrument
and the like should leave the trial of the cause to other counsel. Kausgaard v.
Endres, 126 Neb. 129, 252 N.W. 810 (1934). See In re Interest of T.W., 234 Neb.
966, 453 N.W.2d 436 (1990) (attorney's affidavit filed on behalf of clients
asserting status of poverty for purposes of proceeding in forma pauperis from
judgment terminating parental rights would not be approved where state statute
required signature of impoverished appellants, and attorney's execution of
affidavit placed him in role of witness and compromised his role as advocate).

See §12:18. Attorney's competency to testify, 2 Neb. Prac., Nebraska Trials § 12:18 (3d
ed.). In Exhibit No. 1, Paragraph 3 refers to Attachment “A”, a map included in TransCanada’s
Application for the Preferred Route, in which the Mainline Alternative Route was sketched. The
testimony appears to be simply an attestation to what the written instrument, Attachment “A”, is.
Similarly, Paragraphs 11, 27, and 22, attest to attachments that would independently be
admissible.
Notably, TransCanda does not ask the Court to disqualify counsel on the basis that Mr.
Jorde is both an advocate and a witness, but only objects to counsel testifying by affidavit.
Under the Nebraska Court Rules of Professional Conduct, a lawyer is prohibited from “acting as
an advocate at a trial in which the lawyer is likely to be a necessary witness.” The nature of Mr.
Jorde’s testimony is perfunctory. He merely attests to the attachment of documents. Given the
nature of the testimony proffered by Mr. Jorde, it is unlikely that he is a necessary witness.
Ruling on Exhibit No. 1: The Court finds that the attachments are relevant.
Furthermore, Mr. Jorde’s paragraphs which refer to said attachments and explain their context is
helpful and admissible as an aid to the Court. To the extent that it constitutes argument or legal
conclusions, the Court has disregarded those portions of Exhibit No. 1.
Exhibit No. 2: Affidavit of Donald A. Wurm (Landowner).
1. Relevance. TransCanada objects to the entire affidavit and argues that it does not
identify material facts relevant to the motion before the Court.
2. Asserts legal conclusions. TransCanada objects to certain paragraphs as constituting
legal conclusions.
3. Argumentative. TransCanada objects to certain paragraphs as constituting argument
which lacks foundation.
4. Foundation. TransCanada objects to certain paragraphs as constituting argument
which lacks foundation and personal knowledge.
5. Improper opinion. TransCanada objects to certain paragraphs as opinion testimony on
questions of law that this witness does not have the foundation to provide.
Ruling on Exhibit No. 2: The objections are overruled, and Exhibit No. 2 is received.
The affidavits of landowners along the route are relevant as to whether there has been a
substantial change to the Alternative Route. To the extent Exhibit No. 2 contains statements
which are not relevant, the Court has disregarded such statements.
Exhibit No. 3: Affidavit of Rodney Peterson (Saline County landowner).
1. Relevance. TransCanada objects to the entire affidavit and argues that it does not
identify material facts relevant to the motion before the Court.
2. Asserts legal conclusions. TransCanada objects to certain paragraphs as containing
bare legal conclusions.
3. Argumentative. TransCanada objects to certain paragraphs as argumentative.
4. Foundation. TransCanada objects to certain paragraphs as lacking in foundation.
TransCanada objects to certain paragraphs as lacking personal knowledge.
5. Improper opinion. TransCanada objects to certain paragraphs as improper opinion
testimony. TransCanada objects to paragraphs as impermissible opinions lacking foundation.
 Ruling on Exhibit No. 3: The objections are overruled, and Exhibit No. 3 is received.
The affidavits of landowners along the route are relevant as to whether there has been a
substantial change to the Alternative Route. To the extent Exhibit No. 3 contains statements
which are not relevant, the Court has disregarded such statements.
Exhibit No. 4: Affidavit of William C. Hendrickson (Saline County landowner).
1. Relevance. TransCanada objects to Exhibit No. 4 in its entirety and argues that it does
not identify any material facts.
2. Foundation. TransCanada objects to certain paragraphs as lacking foundation and
personal knowledge.
3. Argumentative. TransCanada objects to certain paragraphs as constituting argument
which lacks foundation.
4. Asserts legal conclusions. TransCanada objects to certain paragraphs as containing
legal conclusions.
5. Improper opinion. TransCanada objects to certain paragraphs as constituting opinion
testimony on questions of law that are impermissible for said lay witness.
Ruling on Exhibit No. 4: The objections are overruled, and Exhibit No. 4 is received.
The affidavits of landowners along the route are relevant as to whether there has been a
substantial change to the Alternative Route. To the extent Exhibit No. 4 contains statements
which are not relevant, the Court has disregarded such statements.
Exhibit No. 5: Affidavit of Jolene Petersen (Antelope County Landowner).
1. Relevance. TransCanada objects to Exhibit No. 5 in its entirety, arguing that it fails to
identify any material facts. Furthermore, TransCanada argues that it is an Antelope County
landowner with no personal knowledge of the facts in this Jefferson County case.
2. Asserts legal conclusions. TransCanada objects to certain paragraphs as containing
legal conclusions.
3. Argumentative. TransCanada objects to certain paragraphs as constituting argument
which is lacking in foundation.
4. Foundation. TransCanada objects to certain paragraphs as containing arguments
which lack foundation and personal knowledge.
5. Improper opinion. TransCanada objects to certain paragraphs as opinion testimony on
questions of law that are impermissible for said lay witness.
 Ruling on Exhibit No. 5: The objections are overruled, and Exhibit No. 5 is received.
The affidavits of landowners along the route are relevant as to whether there has been a
substantial change to the Alternative Route. To the extent Exhibit No. 5 contains statements
which are not relevant, the Court has disregarded such statements.
Exhibit No. 6: Affidavit of Larry D. Schick (Madison County Landowner).
1. Relevance. TransCanada objects to Exhibit No. 6 in its entirety because it does not
identify any material facts.
2. Asserts legal conclusions. TransCanada objects to certain paragraphs as constituting
legal conclusions.
3. Argumentative. TransCanada objects to certain paragraphs as constituting legal
argument lacking foundation.
4. Foundation. TransCanada objects to certain paragraphs as constituting legal argument
lacking foundation.
5. Improper opinion. TransCanada objects to certain paragraphs as constituting opinion
testimony on questions of law in quality of evidence which is impermissible for said lay witness.
Ruling on Exhibit No. 6: The objections are overruled, and Exhibit No. 6 is received.
The affidavits of landowners along the route are relevant as to whether there has been a
substantial change to the Alternative Route. To the extent Exhibit No. 6 contains statements
which are not relevant, the Court has disregarded such statements.
Exhibit No. 7: Affidavit of Christopher B. Wachal (Colfax County Landowner).
1. Relevance. TransCanada objects to the entire affidavit on grounds of relevance,
asserting that it does not identify any material facts; additionally, it is a landowner from a
different county with no knowledge of the facts in this county.
2. Asserts legal conclusions. TransCanada objects to certain paragraphs as constituting
legal conclusions.
3. Argumentative. TransCanada objects to certain paragraphs as constituting argument
lacking in foundation.
3. Foundation. TransCanada objects to certain paragraphs as constituting argument
lacking in foundation and lack of personal knowledge of the facts stated therein.
4. Improper opinion. TransCanada objects to certain paragraphs as constituting opinion
testimony, argument of a lay witness on legal issues.
 Ruling on Exhibit No. 7: The objections are overruled, and Exhibit No. 7 is received.
The affidavits of landowners along the route are relevant as to whether there has been a
substantial change to the Alternative Route. To the extent Exhibit No. 7 contains statements
which are not relevant, the Court has disregarded such statements.
Exhibit No. 8: Affidavit of Donald E. Cross (Seward County Landowner).
1. Relevance. TransCanada objects to the entirety of Exhibit No. 8 on relevance
grounds, arguing that it does not identify any material facts and is from a landowner from
Seward County who has no knowledge of the proceedings in this county.
2. Asserting legal conclusions. TransCanada objects to paragraphs 4-19 as constituting
legal conclusions.
3. Foundation. TransCanada objects to certain paragraphs as lacking in foundation and
personal knowledge of the purported facts stated therein.
4. Improper opinion. TransCanada objects to certain paragraphs as opinion testimony on
questions of law to which said lay witness is incapable of testifying.
Ruling on Exhibit No. 8: The objections are overruled, and Exhibit No. 8 is received.
The affidavits of landowners along the route are relevant as to whether there has been a
substantial change to the Alternative Route. To the extent Exhibit No. 8 contains statements
which are not relevant, the Court has disregarded such statements.
Exhibit No. 9: Affidavit and Declaration of Arthur “Art” R. Tanderup (Antelope County
Landowner).
1. Relevance. TransCanada objects to Exhibit No. 9 in its entirety on relevance grounds.
TransCanada argues that the witness is from a county that is outside of Jefferson County and
does not have any knowledge of the matters before it and so has no bearing on issues in front of
the Court within this Motion for Partial Summary Judgment. TransCanada argues that the
affidavit is wholly inconsistent—at one point affiant says he is a condemnee, and in Paragraphs
2-5, he states that he is not a condemnee.
2. Asserts legal conclusions. TransCanada objects to certain paragraphs as asserting
incorrect legal conclusions without foundation.
3. Foundation. TransCanada objects to certain paragraphs as asserting incorrect legal
conclusions without foundation.
4. Argumentative. TransCanada objects to certain paragraphs as being argumentative.
 Ruling on Exhibit No. 9: The objections are overruled, and Exhibit No. 9 is received.
The affidavits of landowners along the route are relevant as to whether there has been a
substantial change to the Alternative Route. As to the inconsistency argument, the Court finds
this to be a minor error, or typo, and it can discern the meaning of the affidavit. To the extent
Exhibit No. 9 contains statements which are not relevant, the Court has disregarded such
statements.
INITIAL FINDINGS OF FACT
1. On February 16, 2017, TransCanada filed an Application with the Commission
pursuant to the Act. (Plaintiffs’ First Amended Petition, hereinafter referred to as the “Petition,”
at ¶¶ 1 & 13-14).
2. The Alternative Route deviates from the Preferred Route starting in central Antelope
County where the Alternative Route veers east. The Alternative Route continues divergent from
the Preferred Route from that point in Antelope County all the way through Madison, Stanton,
Platte, Colfax, Butler, Seward, Saline, and for the majority of its path in Jefferson County.
3. Alternate Route Landowners, including Wurm, did not formally intervene or
otherwise participate in the 2017 Commission proceedings regarding whether TransCanada
Application should be approved.
ANALYSIS
TransCanada argues that its Motion for Partial Summary Judgment should be granted,
because the specific issues raised in TransCanada’s motion, and in portions of Wurm’s Petition,
have been conclusively resolved by the Nebraska Supreme Court in the case of In Re
Application, id. Specifically, TransCanada argues that In Re Application, id., established: (1)
that the Commission properly considered the Alternative Route for TransCanada’s pipeline; (2)
that the Commission’s approval of the Alternate Route complied with requisite principles of due
process, including the notice requirements under the Act; and (3) that pipeline safety was
properly excluded from being considered in the proceeding.
Conversely, Wurm argues that the holdings within In Re Application, id., are not
applicable in the present case, because Wurm was denied the chance to participate in the 2017
Commission proceedings because the time for formal intervention in the 2017 Commission
proceedings had expired when the hearing officer announced the Alternative Route would be
considered.
 It follows that TransCanada’s Motion for Partial Summary Judgment turns on the
following three questions:
1. Did the Commission properly consider the Alternative Route for the
TransCanada pipeline?

2. Is the Nebraska Supreme Court’s opinion of In Re Application 0003, id.,

dispositive of Wurm’s due process and notice arguments?

3. Is the Act’s prohibition against safety considerations constitutional?

Below is an examination of each question:

1. Did the PSC properly consider the Alternative Route for the Keystone XL pipeline?
Yes, it did. The Nebraska Supreme Court determined in In Re Application, id., that the
Alternative Route was included as part of TransCanada’s Commission Application and was
properly considered during the Commission proceedings. Specifically, the Nebraska Supreme
Court stated the following:
3. [the Commission] PROPERLY CONSIDERED ALTERNATIVE ROUTE
In the appellants' next assignment of error, they argue that the [Commission] was
not authorized to approve the [Alternative Route], because TransCanada applied
for approval of only the [Preferred Route], and that the notice requirements for the
[Alternative Route] were not met. While it is true that TransCanada requested in
its application “an order from the [Commission] that the [Preferred Route] is in
the public interest,” we nevertheless find it indisputable that TransCanada
included the [Alternative Route] in its application and that the parties were on
notice that the [Alternative Route] was at issue.
Id. At 917 [emphasis added]. Additionally, the Nebraska Supreme Court noted that "the hearing
officer for the [Commission] devoted a separate section of its intervention order to the
[Alternative Route] and made clear that the [Alternative Route] would be considered." Id. at 917-
918. Further, the Commission "informed the parties that they should be prepared to address the
[Alternative Route]” and gave them the opportunity to do so by "granting [the parties] leave to
designate additional witnesses and offer exhibits pertaining to the [Alternative Route]." Id. It is
clear that the Commission properly considered the Alternative Route and that it was included in
TransCanada’s Application before the Commission. Consequently, the case of In Re Application,
id., does conclusively resolve that the Alternative Route was included in TransCanada’s
Application.
 2. Is the Nebraska Supreme Court’s opinion of In Re Application 0003, id., dispositive of
Wurm’s due process and notice arguments?
Yes, it is. The Nebraska Supreme Court in In Re Application 0003, id., determined that
TransCanada and the 2017 Commission proceedings complied with appropriate notice and due
process requirements. The Nebraska Supreme Court specifically determined that:
The appellants also contend that the [Commission] 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. Contrary to the intervenors' assertions,
the [Commission’]s decision to approve the [Alternative Route] is a reflection of
the evidence and arguments presented…The record contained extensive evidence
concerning the [Alternative Route]. There was significant overlap in the evidence
concerning the routes; much of the evidence concerning the [Preferred Route] and
Keystone I equally applied to the [Alternative Route] …

Thus, the suggestion that the appellants were not afforded notice and an
opportunity to be heard on the [Alternative Route] disregards considerable
portions of the record. Fundamental issues before the [Commission] were whether
or not to approve the [Preferred Route] or the [Alternative Route]….

Ponca argued that the ‘[Commission] could decide it preferred the [Alternative
Route] based on the evidence, but was required to deny the [a]pplication for the
[Preferred Route] and invite TransCanada to file a new application for the
[Alternative Route]…

There was no need to amend the application, because the application was
supplanted by the hearing officer’s orders concerning the [Alternative Route]
when no party objected to the orders…

Id. at 918-20. Additionally, the Nebraska Supreme Court also found that proper notice
was given pursuant to the Act. The Nebraska Supreme Court specifically stated that:
Neither do we find a basis to reverse the [Commission]’s decision due to a failure
to satisfy [the Act]’s notice requirements. The [Commission] published notice of
the public hearing on TransCanada’s application in newspapers in general
circulation along both the [Preferred Route] and the [Alternative Route]. The
[Commission] sent letters to the governing bodies along both routes and advised
them that a copy of the application is available online at the [Commission]’s
 website. The [Commission] released additional press releases at the time the
application was filed and provided notice of several public meetings and the
public hearing.
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. 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. 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.
This assignment of error is without merit.

Id. at 921[emphasis added]. The language within the Nebraska Supreme Court’s opinion
appears to be clear, direct and applicable. There is a question of whether the holdings only apply
to the Intervenors, since the language above does mention that their participation waived their
rights to object to notice. However, the preceding paragraph does state that the notice and due
process requirements were met under the Act.
Consequently, it is necessary to examine the notice requirements under the Act. The
relevant language of the Act states that:
(2) The application shall be accompanied by written agreement to pay expenses
assessed pursuant to section 57-1406 and written testimony and exhibits in
support of the application. The application shall include:
…

(d) A list of the governing bodies of the counties and municipalities through
which the proposed route of the major oil pipeline would be located;

(3) The applicant shall publish notice of the application in at least one newspaper
of general circulation in each county in which the major oil pipeline is to be
constructed and forward a copy of such notice to the commission. The applicant
shall serve notice of the application upon the governing bodies of the counties and
municipalities specified pursuant to subdivision (2)(d) of this section.

See Neb. Rev. Stat. §57-1405(3). Additionally:

 (1) After receipt of an application under §57-1405, the Commission shall:
(a) Within sixty days, schedule a public hearing;
(b) Notify the pipeline carrier of the time, place, and purpose of the public
hearing;
(c) Publish a notice of the time, place, and purpose of the public hearing in at
least one newspaper of general circulation in each county in which the
major oil pipeline is to be constructed; and
(d) Serve notice of the public hearing upon the governing bodies of the
counties and municipalities through which the proposed route of the major
oil pipeline would be located as specified in subdivision (2)(d) of section
57-1405.

(2) The Commission may hold additional public meetings for the purpose of receiving
input from the public at locations as close as practicable to the proposed route of the
major oil pipeline. The Commission shall make the public input part of the record.

See Neb. Rev. Stat. §57-1407 (1)(2). Reading the relevant language of the Act,
TransCanada was required to publish notice of its Application in at least one newspaper of
general circulation in each county in which the major oil pipeline was to be constructed and
forward a copy of such notice to the Commission. TransCanada was also to serve notice of its
Application upon the governing bodies of the counties and municipalities through which the
proposed route of the major oil pipeline would be located. The Act does not appear to require
TransCanada to give specific individual notice to any landowner whose land interest may be
affected by the pipeline’s route. Instead, the Act appears to only require the previously described
notice or constructive notice.
Again, the Nebraska Supreme Court noted that the PSC did not deny procedural due
process, because notice of the public hearing on TransCanada’s Application in newspapers in
general circulation were published along both the Preferred Route and the Alternative Route
In Re Application 0003, id. Moreover, the Commission sent letters to the governing bodies
along both routes and advised them that a copy of the Application was available online at the
Commission’s website. Id. The Commission released additional press releases at the time the
Application was filed and provided notice of several public meetings and the public hearing. Id.
Under the Act, this was all the notice that was required to be given. Therefore, the Act only
requires constructive notice, which Wurm was given.
Even so, Wurm argues that he did not have specific notice that the land along the
Alternative Route included their land and that their interests could be affected. Wurm argues
that had they been on specific notice that their interests could be affected that Wurm would have
intervened in the 2017 Commission proceedings. Though Wurm did not participate, the language
within the Nebraska Supreme Court’s opinion and the Act is clear that landowners were on
notice that the land along the Alternative Route could be affected by the routes proposed in
TransCanada’s Application, by virtue of the published notices in newspapers and notices sent to
the governing bodies. Under the law, Wurm had an opportunity to intervene, but did not. The
Court acknowledges that the result is harsh. But the ruling of the Supreme Court compels this
conclusion and gives this Court no alternative. There was an opportunity before the relevant
agency for a full and fair hearing on all the relevant arguments, even if Wurm did not participate.
Whether the current route TransCanada is implementing is the same as the Alternative
Route
The affidavits suggest that the current route TransCanada is implementing is not the same
route that was within Keystone’s 2017 Commission Application. This specific evidence appears
in Exhibit No. 9. Exhibit No. 9 is an affidavit by Arthur R. Tanderup, a landowner in Antelope
County. He states in Paragraph 7 that since November 20, 2017, Keystone has made substantive
changes and alterations to the Alternate Route within at least three counties: Keya Paha, Boyd,
and Antelope. The affidavit states that the Alternate Route cuts across Mr. Tanderup’s property
in Antelope; but, the new route TransCanada is implementing no longer impacts his property.
Wurm assert that the Alternative Route has been substantially and materially changed. See
Exhibit No. 2.
 Moreover, Exhibit Nos. 3-8 s assert similar allegations. Wurm is arguing that
TransCanada has made substantive changes to the Alternative Route and that the route is so
different it is no longer the same that was approved by the Commission in 2017.
Importantly, pursuant to the Act:
if a pipeline carrier proposes a substantive change to the route of a major oil
pipeline and the pipeline carrier has submitted a route for an oil pipeline within,
through, or across Nebraska but the route is not approved by the Governor
pursuant to §57-1503, the pipeline carrier shall file an application for the
proposed change with the commission and receive approval pursuant to §57-
1408 prior to beginning construction relating to the proposed change. The
applicant shall also file a copy of the application with the agencies listed in
subsection (3) of §57-1407.

See Neb. Rev. Stat. §57-1405 (1) [emphasis supplied]. Thus, if Wurm and the other
plaintiffs are correct, TransCanada needs to reapply for the substantially changed route before
initiating condemnation proceedings. Currently, there is no case law discussing what
“substantially changed” means within the Act. Id., and Thompson v. Heineman, 289 Neb. 798
(2015) provide no guidance.
This presents a genuine issue of material fact that cannot be decided on a motion for
summary judgment. The evidence is viewed in the light most favorable to the nonmoving party
and gives that party the benefit of all reasonable inferences deducible from the evidence. Doe v.
Fireman's Fund Ins. Co., 287 Neb. 486, 489, 843 N.W.2d 639, 642 (2014). Giving Wurm all
reasonable inferences deducible from the evidence, a question of fact exists whether
TransCanada has substantially changed its route and whether TransCanada has followed the
requirements of the Act. This includes notice and due process requirements with regard to these
changes.
Are the Act’s prohibition against safety considerations constitutional?
Yes, it is. In reviewing the relevant laws and statutes, the Act’s prohibition against safety
considerations is constitutional. Wurm alleges that the Act and the Commission’s approval of
the Alternative Route are invalid and unconstitutional, because pipeline safety considerations are
excluded from the Act and were excluded from the 2017 Commission proceedings.
In passing the Act, the Nebraska Legislature recognized that the Federal Pipeline Safety
Act preempts state regulation of safety issues related to oil pipelines. See 49 USCA § 60104©.
For example, the relevant federal law states:
(c) Preemption.--A State authority that has submitted a current certification under
section 60105(a) of this title may adopt additional or more stringent safety
standards for intrastate pipeline facilities and intrastate pipeline transportation
only if those standards are compatible with the minimum standards prescribed
under this chapter. A State authority may not adopt or continue in force safety
standards for interstate pipeline facilities or interstate pipeline
transportation. Notwithstanding the preceding sentence, a State authority may
enforce a requirement of a one-call notification program of the State if the
program meets the requirements for one-call notification programs under this
chapter or chapter 61.

See 49 U.S.C.A. §60104(c). [Emphasis supplied.] Further, the Nebraska Legislature in

passing the Act also asserted the State's authority to regulate the siting of pipelines to protect the
economic and aesthetic value of Nebraska's land and natural resources. The relevant Nebraska
law states:
(1) Nebraska has the authority as a sovereign state to protect its land and natural
resources for economic and aesthetic purposes for the benefit of its residents and
future generations by regulation through approval or disapproval of major oil
pipeline siting and the location of routes, so long as it does not regulate in the area
of safety as to the design, installation, inspection, emergency plans and
procedures, testing, construction, extension, operation, replacement, and
maintenance of major oil pipelines and pipeline facilities;
(2) The water and other natural resources in Nebraska will become increasingly
valuable, both economically and strategically, as the demand for agricultural
products for both food and fuel increases;
(3) The construction of major oil pipelines in Nebraska is in the public interest of
Nebraska and the nation to meet the increasing need for energy; and
(4) The irrigation economy of Nebraska which relies on quality water adds over
one billion dollars annually to net farm income and increases the gross state
product by three billion dollars annually.
 Neb. Rev. Stat. §57-1403. Additionally, Neb. Rev. Stat. §57-1402(2) states in pertinent
part that:
(2) Nothing in the [Act] Act shall be construed to regulate any safety issue with
respect to any aspect of any interstate oil pipeline. The [Act] is intended to deal
solely with the issue of siting or choosing the location of the route aside and apart
from safety considerations. The Legislature acknowledges and respects the
exclusive federal authority over safety issues established by the federal law, the
Pipeline Safety Act of 1994, 49 U.S.C. 60101 et seq., and the express
preemption provision stated in that act. The [Act] is intended to exercise only the
remaining sovereign powers and purposes of Nebraska which are not included in
the category of safety regulation.

Neb. Rev. Stat. §57-1402(2). (emphasis supplied). Therefore, the Nebraska legislature,
federal law, and Nebraska statutes all recognize federal preemption as it concerns safety
regulations for interstate oil pipelines.
Furthermore, the Nebraska Supreme Court recognized this federal rule of preemption
with regard to interstate pipelines in two opinions. First, the Nebraska Supreme Court noted in
Thompson v. Heineman, supra, that:
In passing [the Act] the Legislature recognized that federal law preempts state
regulation of safety issues related to oil pipelines. But it asserted the State's
authority to regulate the siting of pipelines to protect the economic and aesthetic
value of Nebraska's land and natural resources. In determining whether to approve
a proposed route, [the Act] required the [Commission] to consider several
economic, environmental, and social factors, including whether another corridor
could be feasibly and beneficially used. Two of [the Act]'s stated purposes were
to ensure the protection of Nebraskans' property rights and the State's natural
resources.

Id. at 804 [internal citations omitted]. Next, the Nebraska Supreme Court again noted and
adopted this limitation within In Re Application, supra. It specifically stated that:

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 [the Act] and jeopardize Nebraska’s ability to review and
 scrutinize a pipeline route in this state under state law. Second, the [Act]’s
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 [Commission] to approve construction of a particular pipeline route. The
[Commission] considered the evidence and determined that the [Alternative
Route] is in the public interest.

Id, at 906 [emphasis supplied]. Therefore, the above Nebraska Supreme Court opinions,
federal law, and Nebraska statutes all recognize and demonstrate that the Federal Pipeline Safety
Act expressly preempts state law in the area of pipeline safety. See 49 USCA § 60104©. The
Nebraska Supreme Court has recognized and adopted this limitation in In Re Application, id. and
in Thompson, supra. Thus, the Act’s prohibition against safety considerations does not appear to
be unconstitutional.

CONCLUSIONS OF LAW

1. During the 2017 proceedings, the Commission properly considered the Alternative
Route as part of TransCanada’s Application. In Re Application 0003, supra.
2. The notice requirements of the Act were satisfied as part of the Commission’s
decision to approve TransCanada’s Application. Id.
3. The Commission’s decision approving the Alternative Route provided adequate
procedural due process complete with notice along the Alternative Route to Wurm. Id.
4. The Commission is “prohibited from considering safety issues. To do so would
undermine [the Act] and jeopardize Nebraska’s ability to review and scrutinize a pipeline route
in this state under state law.” Id.
5. The Act is intended to deal solely with the issue of siting or choosing the location of
the route aside and apart from safety considerations.” Neb. Rev. Stat. §57-1402(2).
FINAL CONCLUSIONS
Judgment is granted in favor of the Defendant on the following issues:
 1. Notice as required by law has been met for approval of the Main
Alternative Route against the Plaintiff.

2. Safety considerations are not to be considered by the Commission in

approving siting of a Route.

There remain questions of material fact whether the condemnation actions filed herein
follow the Commission’s approved Alternative Route, or whether there are substantive changes
to the Alternative Route that require re-application to the Commission.

Due to possibility of withdrawal of presidential approval for the TransCanada

project, and in the interest of conservation of judicial resources, this action is stayed
pending further order of the court. See Omaha World Herald, December 20, 2020, page 1.

DATED this the __________ day of December, 2020.

BY THE COURT:

___________________________________
Vicky L. Johnson
District Judge
I, the undersigned, certify that on December 21, 2020 , I served a copy of the foregoing
document upon the following persons at the addresses given, by mailing by United States Mail,
postage prepaid, or via E-mail:

David A Domina James G Powers

ddomina@dominalaw.com jpowers@mcgrathnorth.com

Date: December 21, 2020 BY THE COURT: _____________________________________

CLERK