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TransCanada made its case to the Nebraska Supreme Court on Tuesday for why the company shouldn’t have to pick up the $354,000 tab in attorney fees for Nebraska landowners who fought the company's attempts to use eminent domain to make way for the Keystone XL pipeline.

It is arguably the more tedious of appeals at play in a case that has seen legal fights and challenges every step of the way.

A second, larger appeal is building steam over the pipeline's route through this state, approved by a 3-2 vote of the Nebraska Public Service Commission in November. 

That case could reach the Nebraska Supreme Court as soon as September.

Nonetheless, people filled the high court's Capitol chamber Tuesday for oral arguments on the attorney fee issue. Each side received 20 minutes to speak and answer questions.

Justice William Cassel quickly honed in on why the company was objecting, interrupting TransCanada lawyer Jim Powers to get at specifics.

"The question before the court really today,” Powers said, “is whether the affidavit evidence is admissible and whether the condemnees met the burden of proof under the statute.”

He argued the landowners had not because attorney David Domina, who represented 71 landowners in 40 cases in Holt, York, Saline and Nance counties, offered no live testimony. It came rather through affidavits.

That’s allowed in other cases, Powers conceded. But, he argued, the state statute at issue in eminent domain cases, 76-726, was "very unique" and did not, so Domina shouldn’t get the money or the cases should be sent back for hearings.

Powers said eminent domain cases are different because they involve agencies of the state of Nebraska.

“Why do those words and/or the statute in its entirety require live testimony?” asked Justice Lindsey Miller-Lerman, not sounding convinced.

Powers argued that there was no other proceeding at issue that day, no other judgment by which to attach it. The eminent domain cases had been abandoned by TransCanada in 2015 as the company prepared to restart the process for getting its route approved.

Further, Powers noted the landowners hadn’t paid the attorney fees themselves, so TransCanada couldn’t reimburse them, and there were no specifics as to the agreement between the landowners and Domina explaining the fee TransCanada now was being asked to pay.

“Just saying they’re obligated to pay isn’t enough,” Powers said.

On the other side, Domina put it plainly.

“We're here today on behalf of 71 landowners who are appellees in 40 separate cases in which every county court judge ruled in their favor, finding that section 76-726 justified an award of $8,841 in attorneys fees and expenses for defending their land against TransCanada Keystone XL pipeline."

The issue, he said, turns on whether the fees were collateral to the original case.

“Each of the 40 original cases sought to take land away from our clients,” Domina said.

Regardless of the outcome of the overall case, the landowners were entitled to seek attorney fees. Domina argued the fees here couldn’t be more collateral to the original proceedings.

“They would turn the courts of this state into locations at which lawyers would litigate fees for lawyers, which would take more time, more energy and more effort than the original ... case,” Domina argued.

He said they would need a witness stand at the Supreme Court to try the cases they decide, by Powers’ argument.

But the Nebraska Supreme Court has been clear, Domina said. In a 2013 decision, Black v. Brooks, the court said never in its history had the court required an attorney fee to be paid to justify an award of attorney fees in cases where they are allowed, like this one.

"There has never been a public policy in this state against awarding attorneys fees where the legislature authorizes them,” he said.

Asked if he had provided anything that let the court know what his hourly rate was on the case, Domina said there is no requirement that attorney fees be based on an hourly rate, though it can be a factor.

He said in this case he didn’t have an agreement with the landowners as to an hourly rate, but they still kept track of their time and justified the rate by breaking it down by hour.

“It’s uncontested before you we didn’t charge enough,” Domina said.

The Supreme Court took the case under advisement.

In the hallway outside, Domina said they've never disclosed the details of their agreement with the landowners — "and we still won’t.”

He called it a tactical decision.

“We’re doing business against one of the best financed companies, most ready to spend its money on lobbyists and lawyers in the history of our state,” Domina said. “And they have been ruthless with our clients.”

Jeanne Crumly, a Holt County landowner who is part of the suit, said it's about more than landowners in 40 cases. It’s about citizens of Nebraska holding the state accountable for better laws "for keeping corporate interests at bay and making decisions in the best interest of Nebraskans today, tomorrow and in the future,” she said.

Reach the writer at 402-473-7237 or

On Twitter @LJSpilger.


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