Friday, January 16, 2015

KEYSTONE BACK TO COURT: Nebraska landowners file new lawsuits to block pipeline

Landowners in two Nebraska counties opposed to the controversial Keystone XL pipeline have filed lawsuits challenging the right of the project’s developer, TransCanada from taking their land using eminent domain. 

Holt County Nebraska
This is a new a separate action taken in the courts in the wake of the Nebraska Supreme Court’s review of state law which left unanswered the question of whether the state had improperly given the authority to choose the pipelines route to then Governor Dave Heineman.

The lawsuits, filed in Hold and York Counties, cover much of the same ground covered in the case of Thompsen V. Heineman dismissed last week. The landowners claim LB1161, the law passed by the Nebraska State Legislature is in conflict with the state’s Constitution.  As a result the lawsuits claim “TransCanada is without eminent domain authority or an approved pipeline route across Nebraska because … the Governor’s actions are TransCanada’s sole basis for claiming an approved route or power of eminent domain.” 

In both the Holt and York County cases a total of seven landowners filed the lawsuits. They claim, in nearly identically related briefs, their property is along the pipeline route. Four of the seven have already received written notice from TransCanada that they intend to proceed with condemnation proceedings against their land to advance the pipeline project.

In the matching legal briefs the landowners who have been served notice state they have declined and refused to “declines and refuses to voluntarily convey ownership rights” to TransCanada.

York County Nebraska
No date has been set yet for follow up hearings in either county.
President Obama and Secretary of State Kerry have yet to state whether the United States government will object to the Canadian-based project from crossing the northern border.

BOLD Nebraska, leading the state’s opposition to the project announced the filing on its website late Friday, adding “it is only the President who can provide peace of mind to farmers and ranchers along the route. Our fight will continue even if the President rejects the pipeline.”

Representatives of TransCanada and the State of Nebraska were not available for comment at this writing.

Monday, January 12, 2015


Opponents of the Keystone XL pipeline may be upset with three Nebraska Supreme Court judges after a frustrating defeat. In fact, the blame rests with William Jennings Bryan. Pipeline supporters owe him their everlasting gratitude.

William Jennings Bryan (Library of Congress)
How on earth could responsibility lie with the long-dead giant of Nebraska politics? How did the legendary orator stack the deck against Randy Thompson and BOLD Nebraska?
Though a majority of the Supreme Court argued the pipeline siting law was unconstitutional, this state requires one more vote, a “super-majority” of five out of the seven judges to declare laws unconstitutional.
In Thompson V. Heineman four out seven agreed giving the Governor powers assigned to the elected Public Service Commission was an unconstitutional act of the Legislature. Because the three remaining judges refused to vote on the main question, the majority did not prevail. (CLICK HERE to read more about the decision from NET News.)
It’s a rare occurrence. And only one other state in the nation has such a provision. Why?
The landmine which exploded under pipeline opponents last week was planted by Bryan 100 years ago. He suggested the state put a check on the court’s power. He didn’t think judges could be trusted.
This fact was brought to my attention by Jim Hewitt, a great resource for legal history and the author of “Slipping Backward: A History of the Nebraska Supreme Court.”
Bryan marched onto the national political stage following his famous “Cross of Gold” speech at the 1896 Democratic Party national convention in Chicago. In addition to supporting currency based on silver as well as gold, he railed against a recent U.S. Supreme Court decision blocking establishment of federal income taxes. The passionate speech electrified delegates who demanded he become the Democrat’s candidate for President. He ultimately lost but the events cemented Bryan’s passion for limiting the power of judges.
Thirteen years later Bryan got an opportunity for revenge against the courts on a smaller stage. In 1919, at the peak of his political popularity in Nebraska, Bryan delivered another passionate speech, this time to the convention charged with revising the young state’s constitution.
Bryan urged delegates consider an amendment cutting into the authority of the Nebraska Supreme Court.
He argued the existing system “empowered the state supreme court to invalidate legislative acts by a mere majority,” according to Paul Madgett in his 1969 article for the Creighton Law Review.
Bryan proposed requiring the support of five of seven justices declare unconstitutional laws created by the legislature or citizen initiatives (what’s now called the super-majority). The proposal was based on Bryan’s “belief that a single judge should not have the power to override the will of the people as expressed by their legislative representatives” according to Madgett.
“While one can only speculate about the impact of Bryan's address upon the convention,” Madgett wrote, “it seems more than coincidental that after his address a proposal implementing his suggestion was introduced, approved by the committee, and adopted by the convention.”
This was considered a very liberal point of view at the time. A majority of delegates agreed with Bryan, in part to head off an even more radical proposal from farmer-members of the Socialist-influenced organization known as The Nonpartisan League seeking to strip all power from the court system to invalidate bills passed by the elected state representatives. (It’s notable that North Dakota, the founding home of the League, is the only other state with a super-majority provision controlling its high court.)
A sample ballot from the Dakota Co. Herald, 1920.
In a special election a few months later Nebraskans were handed a ballot listing 41 proposed amendments to the Nebraska State Constitution. A third of the way down the list, Ballot Question No. 16 asked for a yes or no on whether Section 2a of Article VI should be amended to require “concurrence of five judges of the Supreme Court to declare laws unconstitutional.”
According to press accounts of the elections, all the amendments passed with “decisive majorities” (including giving Nebraska women the full right to vote). That’s not to say there was much passion about reforming the courts or any of the other items. One newspaper reported “the vote was extraordinarily low throughout the state, running from one-fourth to one third of normal.”
Fast forward 100 years. The Nebraska Supreme Court issues its ruling in which a majority of the court, but not enough of the court, felt the state’s law on siting a hugely controversial pipeline violated the state’s constitution.
Because three of the judges refused to vote on that part of the opinion the law stays.
William Jennings Bryan, with his initiative designed to protect the little guy from the conservative forces dominating the high court, scuttled the lawsuit blocking the construction of the oil pipeline that may some day cross Nebraska.
Sources for this post include:
Madgett, Paul W., Five Judge Rule in Nebraska by, Creighton Law Review, Volume 2, 1969. (Online.
Sheldon, Addison E. “The Nebraska Constitutional Convention, 1919-1920.” The American Political Science Review, 1921. (Online:
Earle, Herbert. The Nonpartisan League. Gaston, Harcourt, Brace and Howe, 1920 (via
Hewitt, James W. Slipping Backward: A History of the Nebraska Supreme Court. University of Nebraska Press, 2007. (Print)
The reporting of the North Platte Tribune, the Red Cloud Chief, and the Alliance Herald, accessed via the Library of Congress “Historic American Newspapers” archive.

Friday, January 9, 2015


Chambers of the Nebraska Supreme Court. (Judicial Branch Photo)

How divided and frustrated were the members of the Nebraska Supreme Court over the impasse in the Keystone pipeline case? 

It is rare in the Nebraska Supreme Court to have such pointed opposition show up in the court's opinions. It really broke loose and publicly in this case.

Friction is obvious as three members of the court stand their ground with their interpretation of the law, blocking a decisive opinion on the central issue: was the state law giving the state's governor the power to choose the projects route across the state. Because it dealt with content in Nebraska's Constitution a super-majority vote…five of nine judges…were needed to overturn the district court's ruling. 

Here are two revealing quotes taken from the 64-page opinion in Thompson v. Heineman.

From the four judges in the majority who were over-ruled:
“If the exercise of eminent domain over private property and the constitutional require­ments for the organization of state government do not raise matters of great public concern, then no issue could be suffi­ciently potent to give citizens the right to challenge an unlaw­ful government action. The inscription above the main entrance to this Capitol pro­claims that the ‘Salvation of the State is Watchfulness in the Citizen.’ For that inscription to have meaning, someone must have standing to defend the Nebraska Constitution.”

From the three judges who refused to offer an opinion on the constitutionality of Legislative Bill 1161, authorizing the Governor to choose the pipeline's route:
“Courts are obligated to decide the merits of cases which are properly before them, but they have an equally important obligation to refrain from deciding matters over which they lack jurisdiction. Whether or not it constitutes a matter of “great public con­cern,” the constitutional challenge to L.B. 1161 is a legitimate issue which should be decided by a court as expeditiously as possible. But it must be decided by a court with jurisdiction to do so, or the entire judicial process is for naught. We are obligated to resolve cases on the basis of how they are actually brought to us, not on the basis of how they should have been brought to us.”