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Nebraska Supreme Court Announces a

Nebraska Supreme Court Announces a "Tie" in Keystone XL Case

Today the Nebraska Supreme Court announced an historic "tie". In a case affecting the potential construction of the Keystone XL Pipeline by TransCanada, a foreign corporation seeking to condemn Nebraska land, the Court was unable to decide constitutional issues.

Domina Law Group's clients, Randy Thompson, Susan Dunavan and Susan Luebbe won a District Court declaration that a Nebraska statute purporting to authorize condemnation is unconstitutional.

On January 9, four members of the Nebraska Supreme Court agreed. The Court consists of seven members.

The Nebraska Constitution requires five votes to declare an enactment of the Legislature unconstitutional. In Thompson v. Heineman, 289 Neb 798 (2015), the Nebraska Supreme Court effectively tied.

This happened because three members of the Court refused to vote on constitutional issues. They believed the plaintiffs lacked standing because condemnation proceedings were not commenced by the time the case was filed. They rejected the taxpayer standing status of the claimants, holding that status as taxpayers was insufficient to trigger court activity.

By not voting, the three-member minority tied up the Supreme Court so no decision could be made.

"This will mean a delay in resolution of the constitutional law issues in Nebraska for up to a couple years," Dave Domina said. Domina, who pled, briefed and argued the case in the trial court and the Supreme Court, predicted: the plaintiffs will start over. This will occur as soon as TransCanada sends the statutorily required notifications that they intend to initiate condemnation. After the landowners file suit, TransCanada will probably start the condemnation process. It will be halted by the district courts.

These issues will then be presented through the district court process on a second appeal to the Supreme Court. At that time, all members of the Court will vote and the issues will be decided.

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