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    Order Re Motion for Summary Judgment (District Judge Christina Marroquin)

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    Order Re Motion for Summary Judgment (District Judge Christina Marroquin, Butler County)

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    Order Re Motion for Summary Judgment (District Judge Christina Marroquin)

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    Order Re Motion For Summary Judgment (District Judge Christina Marroquin, Butler County)

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    hefflinger
    Order Re Motion for Summary Judgment (District Judge Christina Marroquin)

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    © All Rights Reserved
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    IN THE DISTRICT COURT OF BUTLER COUNTY, NEBRASKA 4uno9 Long Asyn0a vaTUna MARIE A. OSTRY ET AL., ) Case No, C20-18 ) ) Plaintiffs, ) ) v ) ORDER (TRANSCANADA’S ) MOTION FOR PARTIAL TRANSCANADA KEYSTONE ) SUMMARY JUDGMENT) 3 PIPELINE, LP, ) os ) 8 Defendant. ) 2 is Bos DATE OF HEARING: August 20, 2020 z Ss DATE OF RULING: December 28, 2020 € jess 2 APPEARANCES: Brian E, Jorde, Attomey for Plaintiffs. James G. Powers, Attorney for Defendant. Patrick D. Pepper, Attomey for Defendant. Christina Marroquin, District Judge, presiding THIS MATTER came on for hearing on the Defendant's (“TransCanada”) Motion for Partial Summary Judgment, filed on May 15, 2020. The Plaintiffs (“Ostry”) 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 fom 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. PlaintiffCondemnee/Appellant is referred to as “Ostry.” 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,” mo = 8: 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 Jn 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 Altemative 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 Altemative 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 Jn Re Application 0003, 303 Neb, 872 (2019). Following the publication of the Nebraska Supreme Court's opinion, TransCanada commenced eminent domain proceedings against Ostry and other Alternative Route landowners in the various county courts affected, After awards were made, Ostry 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, Ostry 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 concems 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 Jn Re Application 0003, id., and that safety concerns are not to be considered due to federal preemption of the issue, Jd. Ostry argues, lastly, that the condemnations substantially deviate from the approved Altemative Route and that as a consequence, TransCanada must reapply for Commission approval. STANDARD OF REVIEW Neb. Rey. 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 Page 3 of 20 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. Jd. 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 Ostry’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 Ostry 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 B. Jorde. 1, Relevance. TransCanada objects to Exhibit No. 1 in its entirety and asserts that Exhibit No. | docs 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 swom 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 forinal 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) (attomey'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 (34 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. Page 5 of 20 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 hi Ruling on Exhibit No. 1: The Court finds that the attachments are relevant. a necessary witness. 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 Jolene G. Petersen (Antelope 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 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 reeeived. ‘The affidavits of landowners along the route are relevant as to whether there has been a substantial change to the Altemative Route. To the extent Exhibit No. 2 contains statements which are not relevant, the Court has disregarded such statements, Exhibit No. 3: Affidavit of Kathleen M, Phillip (Butler 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 Altemative Route. To the extent Exhibit No. 3 contains statements which are not relevant, the Court has disregarded such statements. Exhibit No. 4: Affidavit of Christopher B, Wachal (Colfax 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 cert personal knowledge, 3. Argumentative, TransCanada objects to certain paragraphs as constituting argument paragraphs as lacking foundation and which lacks foundation, 4, Asserts legal conclusions. TransCanada objects to certain paragraphs as cont ing, 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. The affidavits of landowners along the route are relevant as to whether there has been a |: The objections are overruled, and Exhibit No. 4 is received. substantial change to the Altemative Route. To the extent Exhibit No. 4 contains statements which are not relevant, the Court has disregarded such statements, Exhibit No. 5: Affidavit of Donald A, Wurm (Jefferson 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. Page 7 of 20 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 Lary 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 2s 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 Altemative Route. To the extent Exhibit No. 6 contains statements which are not relevant, the Court has disregarded such statements. Exhibit No. 7: Affidavit of Rodney Petersen (Saline 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

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