Motions to Dismiss: Appeal and Error. A
district court's grant of a motion to dismiss is reviewed
Motions to Dismiss: Pleadings: Appeal and
Error. When reviewing an order dismissing a
complaint, the appellate court accepts as true all facts
which are well pled and the proper and reasonable inferences
of law and fact which may be drawn therefrom, but not the
Actions: Public Officers and Employees. A
suit against a state official in his or her official capacity
is not a suit against the official, but, rather, a suit
against the official's office.
Actions. A suit against a state agency is a
suit against the State.
Eminent Domain: Words and Phrases. Inverse
condemnation is a shorthand description for a landowner suit
to recover just compensation for a governmental taking of the
landowner's property without the benefit of condemnation
Actions: Eminent Domain. The initial
question in an inverse condemnation case is whether a
compensable taking or damage has occurred.
Eminent Domain: Property. A takings analysis
begins with an examination of the nature of the owner's
Waters: Property. The right to appropriate
surface water is not an ownership of property. Instead, the
water is viewed as a public want and the appropriation is a
right to use the water.
Neb. 446] 9. Irrigation Districts: Waters.
Rights of irrigation in Nebraska are limited in their scope
by the language of their creation and subject to reasonable
regulations subsequently adopted by virtue of the police
power of the State.
Constitutional Law: Actions: Legislature.
Neb. Const, art. V, § 22, provides that the State may
sue and be sued and that the Legislature shall provide by law
in what manner and in what courts suits shall be brought.
Constitutional Law: Legislature: Immunity:
Waiver. Neb. Const, art. V, § 22, permits the
State to lay its sovereignty aside and consent to be sued on
such terms and conditions as the Legislature may prescribe.
___: ___: ___: ___. Neb. Const, art. V, § 22, is not
self-executing, but instead requires legislative action for
waiver of the State's sovereign immunity.
Immunity: Waiver. Waiver of sovereign
immunity is found only where stated by the most express
language of a statute or by such overwhelming implications
from the text as will allow no other reasonable construction.
Jurisdiction: Appeal and Error. An appellate
court has an independent duty to decide jurisdictional issues
on appeal, even if the parties have not raised the issue.
Actions: Jurisdiction. Lack of subject
matter jurisdiction may be raised at any time by any party or
by the court sua sponte.
Jurisdiction: Appeal and Error. When a trial
court lacks the power, that is, jurisdiction, to adjudicate
the merits of a claim, an appellate court also lacks the
power to adjudicate the merits of the claim.
Taxation: Irrigation Districts: Waters. Neb.
Rev. Stat. § 46-141 (Reissue 2010) allows taxpayers to
request a refund for water taxes paid by filing a request in
the office of the secretary of the district.
Taxation: Waters. Neb. Rev. Stat. §
2-3226.05(2) (Cum. Supp. 2016) allows taxpayers to request a
local refund of occupation taxes after following the
from the District Court for Hitchcock County: James E. Doyle
IV, Judge. Affirmed in part, and in part reversed and
remanded with directions.
Stephen D. Mossman, Ryan K. Mcintosh, and Patricia L. Vannoy,
of Mattson Ricketts Law Firm, for appellants.
Douglas J. Peterson, Attorney General, Justin D. Lavene, and
Kathleen A. Miller for appellees.
Neb. 447] Heavican, C.J., Miller-Lerman, Cassel, Stacy,
Kelch, and Funke, JJ.
case involves the administration of the Republican River
Compact. Appropriators Rodney Cappel; Steven Cappel; Cappel
Family Farm LLC; C & D Cappel Farms, L.L.C.; and Midway
Irrigation, Inc. (collectively the Cappels) appeal the order
of the district court for Hitchcock County that dismissed
their complaint without leave to amend, upon the motion of
the State of Nebraska Department of Natural Resources and
Jeff Fassett, its director (collectively the DNR). The DNR
cross-appeals. We hold that the Cappels failed to state a
claim for inverse condemnation, but we conclude that the
district court erred in failing to find that it lacked
subject matter jurisdiction over the Cappels' remaining
claims for relief under 42 U.S.C. § 1983 (2012), due
process, and restitution, which were barred by sovereign
immunity. Therefore, we affirm in part, and in part reverse
and remand with directions to dismiss for lack of subject
matter jurisdiction those claims barred by sovereign
Cappels own farmland throughout the Republican River Basin.
They irrigate their farmland with ground water from wells
located within the Middle Republican Natural Resources
District and receive surface water appropriations from the
Frenchman Valley Irrigation District. As such, they are
subject to the integrated management plan and associated
surface water controls adopted jointly by the Middle
Republican Natural Resources District and the DNR.
administration of water in the Republican River Basin is
subject to the Republican River Compact (hereinafter the
Compact), which is an interstate compact between Nebraska,
Kansas, and Colorado that regulates the consumption of the
basin's waters and allocates a certain amount of surface
water [298 Neb. 448] to each state, depending on the amount
of surface water available in the basin each year. The DNR is
responsible for ensuring Nebraska's compliance with the
January 2013 through 2015, the DNR's hydrologic forecast
indicated that without essential action, Nebraska's
consumption of water from the Republican River would exceed
its allocation under the Compact. Accordingly, the DNR
declared a "Compact Call Year" and issued closing
notices to holders of surface water permits for each of those
years. As a result of the closing notices, the Cappels were
barred from using the surface waters of the Republican River
and its tributaries to irrigate their crops. However, the
Cappels were still obligated to pay the costs associated with
owning irrigated acres, including taxes and assessments. And
DNR did not curtail ground water use, which allegedly
continued to deplete streamflow in the Republican River Basin
to the future detriment of surface water users. The Cappels
themselves had drilled new irriga-tional wells because they
could not irrigate their land with surface water.
Cappels did not challenge the DNR's 2013 through 2015
compact call year orders or corresponding closing notices as
provided in Neb. Rev. Stat. § 61-206 (Reissue 2009).
Instead, in December 2015, they filed a verified complaint
against the DNR in the district court for Hitchcock County,
followed by a verified amended complaint. They alleged a
cause of action under 42 U.S.C. § 1983, due to
deprivation of their property rights and violations of their
due process rights. The Cappels also alleged that they had
been subject to an inverse condemnation in that the closing
notices and administration of the Republican River amounted
to an uncompensated physical and regulatory taking under Neb.
Const, art. I, §§ 3 and 21, and the U.S. Const,
amends. V and XIV. Further, the Cappels alleged that they had
suffered damages when they were deprived of the benefits of
condemnation proceedings, in violation of their due process
rights, and when DNR allowed excessive ground water pumping
to the detriment of the their surface water [298 Neb. 449]
appropriations. The Cappels sought reimbursement for
occupation taxes paid to the Middle Republican Natural
Resources District and water taxes paid to the Frenchman
Valley Irrigation District, money damages, and restitution.
filed a motion to dismiss under Neb. Ct. R. Pldg. §
6-1112(b)(1) and (6), alleging lack of subject matter
jurisdiction and failure to state a claim upon which relief
can be granted. Following a hearing, the district court
issued a written order dismissing the amended complaint
pursuant to § 6-1112(b)(6), without leave to amend. It
determined beyond a doubt that the Cappels could plead no set
of facts that would entitle them to relief under their
theories of recovery and that amendment would be futile.
Specifically, the district court found that it had subject
matter jurisdiction, because the Cappels' claims were not
barred by the State's sovereign immunity and therefore
overruled the DNR's motion based on § 6-1112(b)(1).
However, it determined that neither the closing notices nor
the adopted integrated management plans amounted to a
physical or regulatory taking. Additionally, the district
court held that the closing notices and adopted plans did not
violate the Cappels' due process rights and that the
Cappels had failed to state a claim under 42 U.S.C. §
1983. Finally, the district court ruled that the Cappels were
not entitled to restitution for taxes paid in 2013 through
Cappels filed this appeal in the Nebraska Court of Appeals,
and the DNR cross-appealed. We moved the case to our docket