In re App. No. P-12.32 of Black Hills Neb. Gas
976 N.W.2d 152
Neb.
2022

Background:

  • Black Hills Nebraska Gas (Black Hills) filed Application No. P-12.32 (Feb. 2021) seeking PSC approval to extend gas mains to an OPPD generation site near 168th & Fairview in Sarpy County.
  • The site fell within Papillion’s extraterritorial zoning jurisdiction; Black Hills holds a franchise with Papillion, creating a statutory rebuttable presumption favoring Black Hills under § 66-1861(2).
  • Metropolitan Utilities District (MUD) protested and moved to dismiss, asserting a 2010 joint application (P-0014) and PSC order had assigned the area to MUD and was "conclusively presumed" in the public interest under § 66-1863(3).
  • The PSC held a hearing (June 9, 2021); Black Hills presented evidence on § 66-1860 factors and lack of nearby MUD mains; MUD emphasized the 2010 order and map allocations.
  • PSC majority concluded the 2010 P-0014 order did not preclude reconsideration, found the rebuttable presumption favored Black Hills, and approved P-12.32; one commissioner dissented.
  • MUD appealed, arguing the 2010 order barred PSC from granting Black Hills’ 2021 application and that MUD had met its burden to overcome the presumption.

Issues:

Issue Plaintiff's Argument Defendant's Argument Held
1. Did PSC have authority to determine public interest on P-12.32 given the 2010 PSC order? PSC lacked authority because P-0014’s conclusive presumption fixed service areas. PSC retains statutory authority to decide public interest on each new application. PSC has authority; prior order does not permanently bind future applications.
2. Does the § 66-1863(3) "conclusive presumption" from P-0014 bar later contrary applications? Yes — the conclusive presumption prevents reconsideration and protects reliance/finality. No — conclusive presumption applied only to P-0014 at that time; public-interest determinations are time‑and‑condition specific. Rejection of MUD’s argument; presumption is limited to the original application’s timeframe.
3. Do terms of P-0014 (maps/agreements) control resolution of later disputes absent mutual agreement? P-0014’s allocation and exception clauses should control and bar Black Hills’ extension. Statute and PSC’s duty to reassess public interest override private allocations; prior map is one factor. Terms/maps are relevant but do not override PSC’s statutory duty to reassess current public interest.
4. Did MUD overcome the rebuttable presumption favoring Black Hills under § 66-1861(2)? MUD relied on P-0014 allocation and asserted it would serve the site; thus overcame the presumption. Black Hills showed statutory factors favor service (franchise jurisdiction, feasibility, lack of nearby MUD mains, changed conditions). PSC did not err: record supports that MUD failed to overcome the rebuttable presumption and approval of P-12.32 was in the public interest.

Key Cases Cited

  • In re Application No. OP-0003, 303 Neb. 872, 932 N.W.2d 653 (2019) (standard for de novo appellate review of PSC orders)
  • First Nat. Bank of Bellevue v. Southroads Bank, 189 Neb. 748, 205 N.W.2d 346 (1973) (agency determinations of public convenience are time‑specific and not res judicata for future applications)
  • Nebraska P. P. Dist. v. Huebner, 202 Neb. 587, 276 N.W.2d 228 (1979) (discussing finality of PSC orders and reliance interests)
  • In re Application of Union P. R. R. Co., 149 Neb. 575, 31 N.W.2d 552 (1948) (agency rulings relate to conditions presented at the time)
  • Thomson v. Nebraska State Railway Comm’n, 142 Neb. 477, 6 N.W.2d 607 (1942) (similar rule that administrative rulings are time‑conditioned)
  • Salem Grain Co. v. City of Falls City, 302 Neb. 548, 924 N.W.2d 678 (2019) (interpretation of statutory terms of conclusive presumptions)
  • In re Guardianship of Eliza W., 304 Neb. 995, 938 N.W.2d 307 (2020) (statutory construction principle to give effect to all parts of a statute)
Read the full case