This is just over 30 minutes. All rise. Here ye, hear ye, hear, ye. Thank you. You may be seated. Good morning to everyone. Our first case this morning is thompson versus heinemann. Reedman. Iedman good morning. Good morning. Today. Re i would like to reserve three minutes of my time for rebuttal. We are asking this court to reverse the decision for two reasons. T, second lb 1161 does not the exclusive jurisdiction. We stand on those arguments. We will turn now to the merits of our case. Well, just a minute. On your standing, didnt we in cunningham versus x carve out an exception to the standing rule. . . Would you agree that this concerns a matter of great concern . Yes. And that was a standing. And that case did not have a legal extend it through involved, correct . That is correct. Why did exxon control that . In cunningham versus exxon, there was no one to actually challenge the constitutionality of the statute. It is not only that it has to be a matter of important public purpose but there must be no , individual or entity that can challenge the constitutionality of the statute. Did we say that in cunningham . I believe we did, your honor. If theres illegal expenditure, does that go to both . Illegal expenditure goes to the taxpayer standing analysis. We would argue that in this case , we would argue that the statute on its face requires reimbursement for every expenditure associated with the statute implementation, and that there is no unlawful expenditure of taxpayer funds. If we were to decide that there was an illegal expenditure, what does that do to your argument . If there was an unlawful expenditure of taxpayer funds, we would still submit that this is a case where there are individuals better suited to bring this challenge. The taxpayer standing exception is limited to allow these particular appellees to go forward with limited exception. Who is better suited to bring this lawsuit . For one, the pipeline carriers, who are actually subject to the regulations under lb 1161. Why would a pipeline challenge this legislation . The Pipeline Company would challenge this legislation because prior to its adoption, there was simply no restriction on their ability to engage in imminent domain. Tolong as they were entitled , they were entitled to proceed with the pipeline. Isnt it more beneficial now that they have two options . To have their application granted. I suppose it is more beneficial, that they have two options, but there are still argument to be made that if they wanted to challenge the constitutionality of the statute they can do so. When you said every expenditure, could you explain that, please . You said that every expenditure would be reimbursed . Does that encompass new money, old money, direct or indirect . What you mean by that . Within the record there is an affidavit, and every cost associated with the limitation of the development oflb 1161 in all of the cases that it was applied was reimbursed, not just over and above, but any imaginable task. Cost. Does the record reflect that expenditures were made above and beyond the appropriation made by the legislature . Even though they may have been reimbursed. Doesnt the record show that . The record shows there was an authorization of an appropriation of 2 million, and as i understand, the record reflects an additional total amount was paid, but that the applicant paid the money as they went and never exceeded that 2 million limit. 2 million outstanding . Is that your view . That is what the appropriation was by the legislature. And you are saying that the pattern of this reimbursement was such that it was never more than 2 million outstanding . That is manner standing, yes. In the decision of chambers, doesnt that confer upon taxpayers the illegal use of public money to pass the laws . Yes, but again, in this case we were talking about a statute where it requires reimbursement on state and there is no illegal expenditure. If that is the case, then it would allow for an evasion of a standing for a taxpayer. Well, on this, what we are talking about is a facial challenge to the taxpayer, you are right. If there was a reimbursement provision, it would potentially foreclose a facial challenge to a taxpayer. What about the other case. . . Does that have anything to do with standing . Yes, it does. As this court held in riddum as to the commissions authority, it is to the claim of unlawful investment. This case is an outlier, isnt it . There are only three judges that decided the case, and for judges concurred without an opinion. Four judges concurred without an opinion. Is that a useful source for authority . But as to the pfc ability to challenge it, this court has never questioned whether or not or has never overturned the conclusion. Has that been cited since . It has been cited since in the number of taxpayer standing, but im not sure it was a statutory construction interpretation, wasnt it . That is correct. Turning now to the merits, article four, section 20, set for the powers and duties of the pfc to include the regulation of rates, service, and general control of common carriers as the Legislature May provide by law. In the absence of specific legislation, the pfc has Plenary Authority. The constitution of the United States allows the legislature to limit the pfc authority, and for pipeline companies, they have done so. Nebraska statute 75. 501 defined pipeline common carriers as those which operate intrastate in nebraska. The plaintiff is not challenging this statutory limit on the pfc authority. The pfc has no constitutional jurisdiction over noncommon carriers. That statute was passed in, what, 1963 . That is correct. And it had its origin in the statute in 1917, did it not . As i recall, that is correct. And you think that may have been passed to answer the concerns of the e lse ohio oil, the ohio oil, which was the standard case . As i recall, the iteration of 75. 501 was still operating in nebraska and through nebraska. Thatver contemplated carriers would go beyond that. Maybe they were contemplating to ensure after that decision would regulate intrastate common carriers, not to define common carriers. The intent was to regulate common carriers, which operate intrastate. And by operation, they define what a common carrier was, which was those that operate intrastate in nebraska. In fact, our interstate pipelines largely regulated by the federal government . They are, your honor. In addition, lb 1161 only applies to those pipelines which are subject to a federal me the process. Eview they specifically excludes gather lanes, which are the typical intrastate pipelines within the state of nebraska. Is this all about site location . It is all about site location and whether or not that falls within the Plenary Authority of the pfc. We would submit that article four, section 20 applies to rates, service, and general control of the intrastate services. How are you using the legendary of authority . Plenary authority . As it applies to the intrastate common carriers. The source is what . The constitution. And you do not distinguish from relying on the definition in chapter 75. Correct. And intrastate pipelines would not be subject to the common carrier definition. Pfc only has the authority that the legislature would otherwise provide to them. You are implying that the federal government has totally occupied the field of regulation in the intrastate pipeline. No, that is not an issue that has been raised by the appellees in this case. Why would citing not come under general control . When you look at the cases that involve siting, for example, with rivets having a pfc authority, it is because of the customers along that route. They wanted service to be a part of this, to send their goods down a particular railroad. Here, the appellees are not concerned with wanting service or any sort of thing along that line. They want to make sure that this pipeline does not run down this particular route. And therefore, it falls outside of the rates, service, and general control that would generally apply to the pfc. In your use of the word service, are we to understand that you mean delivery intrastate. That is correct, your honor. There are a lot of people that look for service. If it goes through your property, does this, does that. Yes, of course, the pipeline affects all kinds of people. That is why the state of nebraska has determined that for good public purpose that the pipeline be constructed within the state of nebraska and go through these routes so that the goods they are providing are provided. Can i connect that a little bit to the whole picture . What do you think the trial judge did wrong . I believe the trial court was concerned because the particular Pipeline Company had Eminent Domain authority, and she saw the Eminent Domain authority is being equated with common carriers. And while common carriers have Eminent Domain authority, the legislature has afforded that authority to a broader group, and we would submit that it is not just common carriers. It is intrastate pipelines, which are not common carriers under the plane definition language under 75. 501, also have that Eminent Domain. Would and intrastate carrier be a common carrier under the common law definition of that term . The common law definition, as pointed to by District Court, is actually a prior redirection of iteration of the statute, which again, if you read it closely, it says operating in between locations within nebraska. Again the common law there even contemplates intrastate. With that, i will save my time for rebuttal. Thank you very much. Mr. Domina, good morning. Good morning, your honor. May it please the court, i am dave domina, and im here on behalf of the three landowners that challenge lb 1161 and contend that it violates several provisions of the nebraska constitution. One of those was discussed earlier today, article four, section 20. In addition to that, additional ways for a pipeline applicant to seek permission to build a pipeline in the brusca provides for a route that is without judicial review. If it goes to the governor and the governor makes the decision of the kind that would otherwise be made with legal limits apply, with proof required, and with due process hearing, if the governor makes that decision and set of the pfc, there is no judicial review in this statute. For that simple and specific reason, im answered by the attorney general see the courts decision today as simple and straightforward. Excuse me. Standing . Yes, we do believe our clients have standing. For three separate reasons. The one that has not been discussed thus far is direct standing. I want to recall some dates. Lb 1161 was enacted by the legislature on april 17. We filed this lawsuit on may 23 or 25. I dont recall which date right now. The record contains an exhibit 18, which is a voluminous exhibit. It includes within exhibit 18 that appendix b, a root, and that route in that appendix came into existence in september after we filed our lawsuit. The affidavit evidence we offered on the standing issue establishes that our clients are landowners and taxpayers and as that their land is or was on the route. The affidavits were made after exhibit 18 came into existence. With respect to think of to plaintiff thompson the , allegation is merit in lancaster county. Is that right . Right. And at the time they commenced a lawsuit those were after. The route was fluid. As a matter of fact, at the time that we filed this facial challenge, there was no route. There have been discussions, but no filing with the Public Service commission or with the governor. There was no permit because the statute authorizing it had not been enacted. So as the route morphed. They are still plaintiffs in your view. We think they are still direct plaintiffs. We are talking about the final reroute. Exhibit 18 is the final reroute, your honor. Do we have any addresses or legal descriptions of the property your clients own . We do not. We also do not have any addresses are legal descriptions of the route. If you look at exhibit 18, what it does is identify in a very rough, nonmeets and bounds way where this pipeline would purport to go, plus or minus a mile on either side in a map drawn in exhibit 18. There are no legal descriptions in the record. We think that the standing issue, the direct standing issue, makes us appropriate point is. Appropriate plaintiffs. The taxpayer standing issue does as well. And of course, cunningham versus exxon, this is obviously a case of substantial Public Interest and has commanded the subsequent attention of a general session, a letter from the governor to the president of the United States, and action that is in record by the u. S. State department. We think that standing is not a matter that is of concern here today. On the issue of direct standing, didnt the District Court concluded that your client did not have direct standing. It did, your honor, and did so because it specifically said that our landowner plaintiffs own real estate which is or was on the pipeline route. That is why i was careful to pull out the dates and identify those this morning for the court. Did you crossappeal on that determination . What is no, we did not. We did not because we took the position strictly that we have standing, since standing is jurisdictional. We think we only need one kind of standing. We did not need to crossappeal the direct standing findings of the court. In regard to taxpayer standing, we have spoken about whether or not there is a better plaintiff. Who has the burden to show that . Your honor, the party that challenges standing must show that a better plaintiff that exists. What is your authority for that . You made findings that strongly suggests that as recently as your knox county taxpayers decision, banks versus heineman, i think your project extra mile clearly discloses that it was not the nonprofit challenge for the liquor statute that had to identify an alternate plaintiff. And the rationale was that you would put a taxpayer who seeks to sue in the position of proving a negative. If the proposition were to prove there is no one better to sue than us. Instead, the proposition to be proven is someone identified better to sue than you. The state argues that the carriers would be the proper party. Yes, i heard that this morning. There are, of course, none identified. The state has never suggested there is another applicant for an International Border crossing permit that seeks to put a pipeline through nebraska which , is this specific class of statute. When it says other carriers it is motioning to the universe without identifying another potential plaintiff. Can the pfc challenge the statue . I dont think the Public Service commission is in a place of standing here. It has a route, and it is in place. Its route is in a place that is not a part of this litigation. If we were to conclude that the pfc is duty bound to challenge any statute that might affect his jurisdiction, we set up disputes within the State Government that i dont think are consistent with your finding with your previous holdings. Previous cases have suggested that they are outlines. It is much clearer that your jurisprudence has moved in the direction of making sure that when there is an expenditure issue that is challenge, a taxpayer can make that challenge, unless it is altogether clear that the taxpayer is meddling in a problem that involves someone who is a dramatically more directly affected player. A better one. Yes. Would than to have rule written . No, you dont. It is a morality opinion. ,t is confined to narrow facts and for good reasons. Your jurisprudence has decided that in the past. You could overrule it, but i dont think it would be here properly. I think the state has relied that is the definition of a common carrier. Yes, and if i do not get to our crossappeal issues, and i may not, i want to be sure that i say that we think we win on all of the crossappeal photo. Crossappeal issues. Which one is your strongest . I dont want to lose justice but ily, your honor, think my best argument is that it is standardless when the gubernatorial route for approval is taken. In order to ensure there is a valid delegation of authority, assuming there can be a delegation, it is standardless in this statute. I dont think there should be a delegation. As a lawyer and parttime banker, i really like our credit of the state argument, too, but i will answer the justices question about 75. 501. It is a statute that has a history very closely related to u. S. Supreme court jurisprudence. As you said a few moments ago. , it does not purport to define the outer limits of the Public Service commissions constitutional authority. It does not purport to define the legislatures limitations on its subsequent and enactments that involve the Public Service commission. It does not purport to say that a common carrier, using a pipeline as the mode of transportation of cargo for the public, has to be intrastate in order to be effective. As we said in our brief on page 14, we identify five separate reasons why that argument fails. I think the best of those is that at any particular moment, or hour or week, a pipeline can be either an intrastate or interstate carrier. It can switch back and forth, just like a Trucking Company can do. In fact, the regulation of this pipeline is largely federal, is it not . Only in so far as safety is concerned, your honor. There are no federal siting regulations. Does the Public Service commission have any authority to control the rate, for example, the way our gas would move through this pipeline . If it had intrastate commerce, it does. If it is interstate commerce, i dont begin to. So largely, this is about site location. I think it is entirely a site location case, your honor. And i think the aspect of Major Oil Pipeline law leaves those issues to the states. The states are charged with evaluating their resources, the needs of their people, and all of those things that the Public Service commission is directed to consider in order to make a quasijudicial finding that is subject to judicial review. Here, the governor doesnt have to do any of those things. I think that is another reason why, frankly, section 75. 501 should not be seen as an anyway confining the reach of article four, section 20. What is the governor expected to do under lb 1161 . Your honor, under lb 1161, i think what the governor is expected to do are these. Number one, provided office