You Can't Take My Land! Is Thompson v. Heineman, 289 Neb. 798, 857 N.w.2d 731 (2015), Transformative Law or a Political Anomaly?

• Publication year: 2021

95 Nebraska L. Rev. 548. You Can't Take My Land! Is Thompson v. Heineman, 289 Neb. 798, 857 N.W.2d 731 (2015), Transformative Law or a Political Anomaly?

You Can't Take My Land! Is Thompson v. Heineman, 289 Neb. 798, 857 N.W.2d 731 (2015), Transformative Law or a Political Anomaly?(fn*)

Adam W. Kauffman

TABLE OF CONTENTS

I. Introduction .......................................... 549

II. Background ........................................... 551
A. Political Plaintiffs: A Summary of Thompson v. Heineman ......................................... 551
1. Popular Background ........................... 552
2. Case Background .............................. 553
B. Constitutional Supermajority Requirement ......... 555
C. Nebraska's Law on Standing to Sue ............... 557

III. Analysis .............................................. 560
A. Minority's Explanation Understands and Protects Nebraska's Law on Standing ...................... 560
1. Jurisdictional Requirements Should be Decided Before an Opinion is Rendered ................. 561
2. Underlying Policies of the Law of Standing Are Closer to the Minority ......................... 561
B. Minority's Supermajority Interpretation Mirrors the Court's Past Application ........................... 567
1. Insufficient-Majority Provides An Impracticable Rule on Standing .............................. 568
2. Asserting the Difference Between Holding and Dicta .......................................... 569

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3. Cases from Nebraska's Past and Ohio Prove Illustrative .................................... 570

IV. Conclusion ............................................ 572

I. INTRODUCTION

From the romantic days of untilled prairie to the established farms of Nebraska's modern life, the people of the plains have always treasured their land. They know that a person's land is a vital part of her identity.(fn1) Although today's urbanites might have difficulty grasping this concept,(fn2) history clearly illustrates the connection between land and identity. American Indians were tied to their land.(fn3) Everything from their religion to their way of life was indelibly intertwined with the land around them.(fn4) The ancients of the Near East were no different. The Judeo-Christian tradition's attention to a "promised land" demonstrates how engrained the notion of land is with identity.(fn5) The law recognizes this connection as a fundamental principle of human flourishing.(fn6) Takings Clause jurisprudence demonstrates how American law is designed to protect this connection.(fn7) Land is serious business tied to serious rights. When confronted with issues that affect an individual's right to land, a court must take great care to get every element of legal analysis right.

The Nebraska Supreme Court recently faced one such issue. After a great deal of debate in the Unicameral(fn8) and on the national political stage, a group of litigants questioned the State's right to acquire cer-

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tain landowner's property through the power of eminent domain. Landowners, angry about losing certain "sticks" in their "bundle" of property rights,(fn9) partnered with environmentalists to combat the State's cooperation with a Canadian oil company to build the Keystone XL Pipeline through Nebraska. The goal of the odd coalition was to preserve Nebraska ecosystems and reduce American dependence on unclean energy.(fn10) Randy Thompson, Susan Luebbe (now Susan Straka), and Susan Dunavan, a group of Nebraska taxpayers,(fn11) filed in the District Court of Lancaster County to protect the rights of all Nebraskans from an unconstitutional eminent domain procedure.(fn12) The issue climaxed with the decision's appeal to the Nebraska Supreme Court in Thompson v. Heineman.

By asking the Nebraska Supreme Court to decide whether Legislative Bill 1161 (L.B. 1161) unconstitutionally delegated eminent domain powers, the plaintiffs in Thompson presented a constitutional issue that affects hundreds of Nebraskans' substantial property rights and, in effect, their right to flourish. Despite the outcome's tragic effect on certain landowners' property rights, this Note will outline how the minority opinion applied Nebraska's law correctly, and therefore the case's ultimate result was right. In Part II, this Note summarizes the Nebraska Supreme Court's holding in Thompson v. Heineman and provides a historical background of both the provision in Nebraska's constitution that requires a "super-majority"(fn13) to render legislation

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unconstitutional(fn14) and Nebraska's standing law. Part III goes on to analyze the law's application in the insufficient-majority(fn15) and minority opinions. First, this Note will describe how the minority's explanation understands and protects Nebraska's law on standing better than the insufficient-majority opinion does. Next, this Note will explore what the insufficient-majority intended to accomplish with their opinion. It will go on to describe how the insufficient-majority's reasoning may be mere dicta. Finally, this Note will explain that the minority's opinion on the Nebraska constitution's supermajority requirement mirrors how the Court has applied the provision in the past. This Note will ultimately provide a guide for how the insufficient-majority's opinion fits in to Nebraska's law on standing.

II. BACKGROUND

The context of the Nebraska Supreme Court's decision in Thompson v. Heineman is vital to analyzing the insufficient-majority and minority opinions. The complicated legal and political dispute that led to the plaintiffs' case in Thompson presents motivating factors for the plaintiffs, and explains the judges' consternation. While the law behind its outcome is convoluted at best, the history of the supermajority provision in Article V of Nebraska's constitution and the development of Nebraska's law on standing help to make sense of the opinion. Both summarizing the facts of the case and detailing the historical progression of the relevant Nebraska law are necessary to appreciate how the insufficient-majority radically departed from the traditional law of standing in Nebraska.

A. Political Plaintiffs: A Summary of Thompson v. Heineman

While Thompson addresses several complex issues of Nebraska legislative and constitutional law, the context of the plaintiffs' case is as informative as the development of Nebraska law to the Nebraska

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Supreme Court's decision. National environmental and energy policies as well as global economic forces are at play between the parties and, perhaps, even in the minds of the judges. As discussed below, to understand the case an individual must review the economic and environmental factors that influence public opinion and understand both Nebraska's constitutional provisions and the legislation Thompson addresses.

1. Popular Background

Humanity has an oil addiction. In 2014, global consumers used 92.4 million barrels of petroleum and other liquid fuels per day, and the demand is expanding.(fn16) However, experts estimate that 1,492.9 billion barrels of proven oil reserves were available worldwide at the end of 2014.(fn17) At the same time, the Environmental Protection Agency (EPA) reported that 26% of greenhouse gas emissions in the United States come from the use of fossil fuel for our cars, trucks, ships, trains, and planes.(fn18) Environmental interests clearly run against construction of a pipeline promising to increase emissions. However, when the legislation leading to the action in Thompson was debated in the Unicameral, crude oil's per-barrel cost was rapidly in-creasing.(fn19) Consequently, politicians at the time of the decision were advocating the development of domestic oil reserves.(fn20) Conflict was bound to arise. Environmental interests allied with those of landowners hesitant to give up one of the sticks in their bundle of property rights.(fn21) The fight against oil and eminent domain gave birth to a

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political movement.(fn22) Neither Nebraska's Unicameral nor her courts could escape it.

2. Case Background

These issues came to a head in Thompson v. Heineman.(fn23) In 2008, TransCanada negotiated with President Barack Obama and the government of Nebraska to construct the Keystone XL Pipeline through the State of Nebraska.(fn24) Originally, TransCanada planned for the oil pipeline to traverse Nebraska's ecologically sensitive Sandhills region.(fn25) After considerable political pressure, Governor Dave Heineman called a special session of the legislature to amend Nebraska's eminent domain statute(fn26) because it did not have specific provisions governing the construction of oil pipelines.(fn27) Nebraska's Unicameral enacted the Major Oil Pipeline Siting Act (MOPSA) in 2011.(fn28) MOPSA required the Public Service Commission (PSC) to approve construction of major oil pipelines in Nebraska.(fn29) The PSC is an entity the Nebraska State Constitution created to regulate common carriers, like railroads.(fn30) Two of MOPSA's legislative purposes were to protect "Nebraskan's property rights and the State's natural resources."(fn31) However, MOPSA explicitly did not apply to pipelines that had pending applications with the United States Department of State at the time MOPSA was enacted, like the Keystone XL Pipeline.(fn32) The situation changed when President Obama rejected TransCan-ada's application to build a transnational pipeline through the United States.(fn33) The rejection meant TransCanada's application was no

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longer active with the Department of State, and MOPSA would apply to the Keystone XL Pipeline if TransCanada were to reapply for a route across Nebraska.(fn34) MOPSA was a political barrier the pipeline might not circumvent.

To ease the application of MOPSA on the Keystone XL Pipeline, the Unicameral amended MOPSA with L.B. 1161.(fn35) L.B. 1161 allowed a pipeline constructor to...