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Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
CAPPEL v. STATE
Cite as 298 Neb. 445
Rodney Cappel et al, appellants and cross-appellees, v.
State of Nebraska Department of Natural R esources,
an executive department and agency of the State
of Nebraska, and Jeff Fassett, in his official
capacity as director of the Department
of Natural R esources, appellees
and cross-appellants.
___ N.W.2d ___
Filed December 22, 2017. No. S-16-1037.
1. Motions to Dismiss: Appeal and Error. A district court’s grant of a
motion to dismiss is reviewed de novo.
2. 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 plaintiff’s
conclusion.
3. 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.
4. Actions. A suit against a state agency is a suit against the State.
5. 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 ben-
efit of condemnation proceedings.
6. Actions: Eminent Domain. The initial question in an inverse condem-
nation case is whether a compensable taking or damage has occurred.
7. Eminent Domain: Property. A takings analysis begins with an exami-
nation of the nature of the owner’s property interest.
8. Waters: Property. The right to appropriate surface water is not an own-
ership of property. Instead, the water is viewed as a public want and the
appropriation is a right to use the water.
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Nebraska Supreme Court A dvance Sheets
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CAPPEL v. STATE
Cite as 298 Neb. 445
9. Irrigation Districts: Waters. Rights of irrigation in Nebraska are lim-
ited in their scope by the language of their creation and subject to rea-
sonable regulations subsequently adopted by virtue of the police power
of the State.
10. 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.
11. 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.
12. ____: ____: ____: ____. Neb. Const. art. V, § 22, is not self-executing,
but instead requires legislative action for waiver of the State’s sover-
eign immunity.
13. Immunity: Waiver. Waiver of sovereign immunity is found only where
stated by the most express language of a statute or by such over-
whelming implications from the text as will allow no other reason-
able construction.
14. 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.
15. Actions: Jurisdiction. Lack of subject matter jurisdiction may be raised
at any time by any party or by the court sua sponte.
16. 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.
17. 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.
18. Taxation: Waters. Neb. Rev. Stat. § 2-3226.05(2) (Cum. Supp. 2016)
allows taxpayers to request a local refund of occupation taxes after fol-
lowing the applicable procedures.
Appeal 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.
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Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
CAPPEL v. STATE
Cite as 298 Neb. 445
Heavican, C.J., Miller-Lerman, Cassel, Stacy, K elch, and
Funke, JJ.
K elch, J.
INTRODUCTION
This 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 sover-
eign immunity.
BACKGROUND
The 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 sub-
ject to the integrated management plan and associated sur-
face water controls adopted jointly by the Middle Republican
Natural Resources District and the DNR.
The 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
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CAPPEL v. STATE
Cite as 298 Neb. 445
to each state, depending on the amount of surface water avail-
able in the basin each year. The DNR is responsible for ensur-
ing Nebraska’s compliance with the Compact.
In January 2013 through 2015, the DNR’s hydrologic fore-
cast indicated that without essential action, Nebraska’s con-
sumption 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, includ-
ing 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.
The 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 condem-
nation 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
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CAPPEL v. STATE
Cite as 298 Neb. 445
appropriations. The Cappels sought reimbursement for occupa-
tion taxes paid to the Middle Republican Natural Resources
District and water taxes paid to the Frenchman Valley Irrigation
District, money damages, and restitution.
The DNR 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 restitu-
tion for taxes paid in 2013 through 2015.
The Cappels filed this appeal in the Nebraska Court of
Appeals, and the DNR cross-appealed. We moved the
case to our docket and denied the DNR’s motion for sum-
mary affirmance.
ASSIGNMENTS OF ERROR
The Cappels assign, combined and restated, that the district
court erred in holding that (1) the issuance of closing notices
was not an exercise of eminent domain and did not constitute
a physical or regulatory taking, (2) the DNR’s administration
of the Republican River did not constitute a regulatory taking,
(3) the DNR did not deprive the Cappels of their due process
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Nebraska Supreme Court A dvance Sheets
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CAPPEL v. STATE
Cite as 298 Neb. 445
rights, (4) the Cappels failed to state a claim for relief under 42
U.S.C. § 1983, and (5) the Cappels were not entitled to restitu-
tion of occupation taxes levied against their property.
The DNR cross-appeals and assigns that the district court
erred when it held that the Cappels’ claims brought under 42
U.S.C. § 1983 were not barred by sovereign immunity.
STANDARD OF REVIEW
[1,2] A district court’s grant of a motion to dismiss is
reviewed de novo.1 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 plain-
tiff’s conclusion.2
ANALYSIS
The Cappels brought claims (1) under 42 U.S.C. § 1983;
(2) under article I, § 21, of the Nebraska Constitution and
the 5th and 14th Amendments to the U.S. Constitution for
alleged inverse condemnation; (3) under article I, § 3, of the
Nebraska Constitution and the 5th and 14th Amendments to
the U.S. Constitution for alleged violations of substantive
and procedural due process rights; and (4) for restitution. We
address the parties’ assignments of error as they relate to each
of these claims.
42 U.S.C. § 1983 Action
The Cappels’ first claim against the DNR was brought under
42 U.S.C. § 1983. The district court dismissed this claim pur-
suant to § 6-1112(b)(6) for failure to state a claim upon which
relief can be granted. The Cappels dispute this finding on
appeal. On cross-appeal, the DNR contends that the Cappels’
§ 1983 claim is barred by sovereign immunity and that the
district court erred by not dismissing it for lack of subject
1
Hill v. State, 296 Neb. 10, 894 N.W.2d 208 (2017).
2
Id.
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CAPPEL v. STATE
Cite as 298 Neb. 445
matter jurisdiction pursuant to § 6-1112(b)(1). We agree with
the DNR.
Sovereign immunity is jurisdictional in nature, and courts
have a duty to determine whether they have subject matter
jurisdiction over a matter.3 Thus, the district court’s jurisdic-
tion to address whether the Cappels stated a claim upon which
relief can be granted depended on whether the Cappels’ § 1983
claim is barred by sovereign immunity.
Section 1983 provides a civil remedy for deprivations of
federally protected rights, statutory or constitutional, caused
by persons acting under color of state law.4 But it does
not necessarily provide a remedy for litigants seeking such
remedy against a state.5 The enactment of § 1983 did not
abrogate the State’s 11th Amendment immunity,6 which bars
such suits unless the State has waived its immunity or unless
Congress has exercised its undoubted power under § 5 of the
14th Amendment to override that immunity.7 Here, Nebraska
has not waived its sovereign immunity with regard to § 1983
suits brought against it.8 Nor has Congress exercised its
power to override that immunity.9 Therefore, the Cappels’
§ 1983 claim against the DNR, a state agency, and thus,
the State,10 is barred by sovereign immunity, and the district
court erred in failing to dismiss it for lack of subject mat-
ter jurisdiction.
3
See Davis v. State, 297 Neb. 955, 902 N.W.2d 165 (2017). See, also, FDIC
v. Meyer, 510 U.S. 471, 114 S. Ct. 996, 127 L. Ed. 2d 308 (1994).
4
See Amanda C. v. Case, 275 Neb. 757, 749 N.W.2d 429 (2008).
5
See Will v. Michigan Dept. of State Police, 491 U.S. 58, 109 S. Ct. 2304,
105 L. Ed. 2d 45 (1989).
6
See id. See, also, Anthony K. v. State, 289 Neb. 523, 855 N.W.2d 802
(2014).
7
Will v. Michigan Dept. of State Police, supra note 5.
8
See Anthony K. v. State, supra note 6.
9
Will v. Michigan Dept. of State Police, supra note 5.
10
See Davis v. State, supra note 3.
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Nebraska Supreme Court A dvance Sheets
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CAPPEL v. STATE
Cite as 298 Neb. 445
[3,4] This finding applies equally to the Cappels’ § 1983
claim against Fassett, the director. 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.11 Accordingly, the
Cappels’ suit against Fassett is a suit against a state agency.
Because a suit against a state agency is a suit against the
State,12 the Cappels’ claim against Fassett is a claim against the
State, and it too is barred by sovereign immunity. The district
court, therefore, erred in failing to dismiss the § 1983 claim
against Fassett for lack of subject matter jurisdiction.
Inverse Condemnation
[5-7] The Cappels’ second claim is for inverse condemna-
tion. Inverse condemnation is a shorthand description for a
landowner suit to recover just compensation for a governmen-
tal taking of the landowner’s property without the benefit of
condemnation proceedings.13 In this regard, the Cappels seek
damages under the Fifth Amendment to the U.S. Constitution,
which states: “[N]or shall private property be taken for public
use, without just compensation,” and under Neb. Const. art. I,
§ 21, which states: “The property of no person shall be taken
or damaged for public use without just compensation therefor.”
The initial question in an inverse condemnation case is whether
a compensable taking or damage has occurred.14 And a tak-
ings analysis begins with an examination of the nature of the
owner’s property interest.15
In their complaint, the Cappels assert two takings: a physi-
cal taking of property rights to appropriate the water at issue
11
Will v. Michigan Dept. of State Police, supra note 5.
12
See Davis v. State, supra note 3.
13
Village of Memphis v. Frahm, 287 Neb. 427, 843 N.W.2d 608 (2014).
14
See Henderson v. City of Columbus, 285 Neb. 482, 827 N.W.2d 486
(2013).
15
See Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 112 S. Ct.
2886, 120 L. Ed. 2d 798 (1992).
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CAPPEL v. STATE
Cite as 298 Neb. 445
and a regulatory taking of the economically viable use of
land. The district court analyzed both allegations and found
neither sufficient to constitute a “taking.” Specifically, the
district court found that the closing notices did not consti-
tute a “taking” and that they were issued pursuant to the
DNR’s police power and not pursuant to its right of eminent
domain. The Cappels assign these findings as error. But as
set forth below, we conclude that the district court properly
determined that the Cappels did not sufficiently allege that
a compensable vested property right was taken or damaged.
Thus, without any physical or regulatory taking, we need not
consider whether the DNR was acting pursuant to its right of
eminent domain.16
The issue of whether the Cappels sufficiently alleged a com-
pensable vested property interest is controlled by our recent
opinion in Hill v. State.17 In Hill, water appropriators filed an
inverse condemnation action against the State and the DNR
after the DNR had issued orders and sent closing notices to
water appropriators under circumstances similar to those pre-
sented here. We affirmed the district court’s dismissal of the
inverse condemnation claim, explaining that the appropriators
failed to establish that a compensable vested property right was
taken. We concluded that the appropriators’ rights to use the
water were subject to the Compact (the equivalent of federal
law) and thus found that those rights were not a compensable
property interest when limited for the purpose of ensuring
Nebraska’s compliance with the Compact. We further found
that the DNR does not have a duty to regulate ground water;
thus, a failure by the DNR to regulate ground water pumping
that affects the Republican River Basin does not give rise to a
cause of action for inverse condemnation.
16
See Doty v. West Gate Bank, 292 Neb. 787, 874 N.W.2d 839 (2016)
(appellate court is not obligated to engage in analysis that is not necessary
to adjudicate case and controversy before it).
17
Hill v. State, supra note 1.
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Here, as in Hill, the DNR conducted an annual forecast and
determined that without essential action, Nebraska’s consump-
tion 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. Because these
actions were taken for the purpose of ensuring Nebraska’s
compliance with the Compact, under Hill, the water rights
at issue were not a compensable property interest and the
Cappels’ physical taking argument must fail.
Nor do we find merit in the Cappels’ claim that the actions
of the DNR constitute a regulatory taking, as there has been
no deprivation of a compensable property right under Hill. In
Scofield v. State,18 we explained the types of regulatory takings
recognized by the U.S. Supreme Court:
The U.S. Supreme Court in Lingle v. Chevron U.S.A. Inc.[,
544 U.S. 528, 125 S. Ct. 2074, 161 L. Ed. 2d 876 (2005),]
clarified the law surrounding regulatory takings claims
and . . . identified two types of regulatory actions that
constitute categorical or per se takings: “First, where gov-
ernment requires an owner to suffer a permanent physi-
cal invasion of her property—however minor—it must
provide just compensation.” Compensation is required for
physical takings “however minimal the economic costs
[they] entail[],” because they “eviscerate[] the owner’s
right to exclude others from entering and using her prop-
erty—perhaps the most fundamental of all property inter-
ests.” The “second categorical rule applies to regulations
that completely deprive an owner of ‘all economically
beneficial us[e]’ of her property.” The complete elimina-
tion of a property’s value is the determinative factor in
this category because the total deprivation of beneficial
use is, from the landowner’s point of view, the equivalent
of a physical appropriation.
18
Scofield v. State, 276 Neb. 215, 231-32, 753 N.W.2d 345, 358-59 (2008).
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The Court in Lingle stated that outside these two rela-
tively narrow categories, and the special context of land-
use exactions, regulatory takings challenges are governed
by the standards set forth in Penn Central Transp. Co.
v. New York City[, 438 U.S. 104, 98 S. Ct. 2646, 57 L.
Ed. 2d 631 (1978)]. Thus, under a Penn Central [Transp.
Co.] inquiry, relief is possible from a regulatory taking
which does not deprive the owner of all economic use of
the property.
To determine whether a party may obtain relief from a regula-
tory taking, Penn Central Transp. Co. v. New York City19 sets
forth several factors designed to allow careful examination and
weighing of all relevant circumstances.
The Cappels claim to have been deprived of the economic
benefit of their property by a reduction in the production of
crops, which means they have not alleged facts that show they
have been deprived of all economically beneficial use of their
property due to the DNR’s actions. But the Cappels argue that
they have pled a reduction in economic viability which would
constitute a regulatory taking subject to a determination pursu-
ant to Penn Central Transp. Co.
To support their position, the Cappels rely on Scofield and
Penn Central Transp. Co., where the Penn Central Transp. Co.
factors were applied on appeal. These cases share a common
theme: They both involved a regulation that directly affected
private property, but neither involved an overriding federal law,
such as the Compact. For example, in Penn Central Transp.
Co., the regulation limited how the owner could use its private
property by prohibiting construction of an office building on
a site designated as a landmark. In Scofield, the regulation
changed private property previously used for recreation into a
wildlife refuge.
19
See Penn Central Transp. Co. v. New York City, 438 U.S. 104, 98 S. Ct.
2646, 57 L. Ed. 2d 631 (1978).
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[8,9] By contrast, the regulation in the instant case did not
directly affect private property, but, rather, the use of a public
resource. Water in Nebraska is a public resource dedicated
for certain uses. And irrigation is one such use.20 The right
to appropriate surface water is not an ownership of prop
erty.21 Instead, the water is viewed as a public want and the
appropriation is a right to use the water.22 As we noted in
Hill, “‘[r]ights of irrigation in the state . . . are . . . limited in
their scope by the language of their creation’”23 and subject to
“‘reasonable regulations subsequently adopted by virtue of the
police power of the state.’”24 Further, in Keating v. Nebraska
Public Power Dist.,25 the Eighth Circuit, recognizing water as
a public resource, held that “when the DNR determines that
the watershed no longer has the capacity to supply all per-
mit holders, appellants no longer have a legitimate claim of
entitlement to use the surface water and thus do not suffer a
deprivation of a property right.” Here, the regulation by the
DNR restricts the Cappels’ use of a public resource, i.e., water,
in order to comply with the Compact, which has the status of
federal law and is subject to the enforcement authority of the
U.S. Supreme Court.26
We observe that the Cappels could still irrigate, albeit not
from the river, and were still irrigating by use of ground water
20
See Neb. Const. art. XV, §§ 4 and 5.
21
Spear T Ranch v. Knaub, 269 Neb. 177, 691 N.W.2d 116 (2005).
22
Id.
23
Hill v. State, supra note 1, 296 Neb. at 19, 894 N.W.2d at 215, quoting In
re Complaint of Central Neb. Pub. Power, 270 Neb. 108, 699 N.W.2d 372
(2005).
24
Id., quoting State v. Birdwood Irrigation District, 154 Neb. 52, 46 N.W.2d
884 (1951).
25
Keating v. Nebraska Public Power Dist., 660 F.3d 1014, 1018 (8th Cir.
2011).
26
See Kansas v. Nebraska, ___ U.S. ___, 135 S. Ct. 1042, 191 L. Ed. 2d 1
(2015).
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when they filed suit. But this court is cognizant that it was
beneficial for the Cappels to use surface water from the river
and that the DNR restriction impacts their property, and we
acknowledge the importance of water rights for the Cappels
and other Nebraska farmers. Nonetheless, under the forego-
ing authority, we conclude that the Cappels have not shown
that a compensable private property right, as contemplated in
Hill, was taken or damaged by the order of the DNR and that
therefore, they have not pled a physical or regulatory taking of
private property.
Accordingly, the Cappels’ assignments of error relating to
their inverse condemnation claim are without merit.
Due Process
For the Cappels’ third and fourth claims, they seek dam-
ages for alleged violations of procedural and substantive
due process under the Due Process Clauses of the 5th and
14th Amendments to the U.S. Constitution and Neb. Const.
art. I, § 3.
[10-13] The Cappels’ claim for a money judgment against
the State under Neb. Const. art. I, § 3, fails by operation
of Nebraska’s sovereign immunity. Under the Nebraska
Constitution, “[t]he state may sue and be sued, and the
Legislature shall provide by law in what manner and in what
courts suits shall be brought.”27 This provision permits the
State to lay its sovereignty aside and consent to be sued on
such terms and conditions as the Legislature may prescribe.28 It
is not self-executing, however, but instead requires legislative
action for waiver of the State’s sovereign immunity.29 Waiver
of sovereign immunity will be found only where stated by the
most express language of a statute or by such overwhelming
27
Neb. Const. art. V, § 22.
28
Livengood v. Nebraska State Patrol Ret. Sys., 273 Neb. 247, 729 N.W.2d
55 (2007).
29
Id.
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implications from the text as will leave no room for any other
reasonable construction.30 The Cappels cite no authority indi-
cating that Nebraska has waived its sovereign immunity. Nor
were we able to find any. As a result, the Cappels cannot
pursue a money judgment against the State based upon Neb.
Const. art. I, § 3.
Regarding the Cappels’ federal constitutional claims, we
find that a due process violation does not create an indepen-
dent cause of action for money damages. Although the Due
Process Clauses in the 5th and 14th Amendments to the U.S.
Constitution provide that no person shall be deprived of prop-
erty without due process of law, no language in those clauses
requires the payment of money damages if they are violated.
Furthermore, several federal circuit courts have held that where
Congress has provided 42 U.S.C. § 1983 for plaintiffs to
obtain relief for the violation of constitutional rights, such is
the exclusive remedy, and the plaintiff can no longer bring a
direct cause of action under the U.S. Constitution.31 We find
these cases persuasive. Therefore, 42 U.S.C. § 1983 provided
the Cappels with the exclusive remedy to obtain damages for
alleged violations of procedural and substantive due process
under the U.S. Constitution. But, as we have explained above,
the Cappels’ § 1983 claim is barred by sovereign immunity.
[14-16] Again, sovereign immunity is jurisdictional in
nature.32 While neither party has raised the issue of sovereign
30
See id.
31
See, Azul-Pacifico, Inc. v. City of Los Angeles, 973 F.2d 704 (9th Cir.
1992); Thomas v. Shipka, 818 F.2d 496 (6th Cir. 1987), vacated in part on
other grounds 872 F.2d 772 (6th Cir. 1989); Hunt v. Robeson County Dept.
of Social Services, 816 F.2d 150 (4th Cir. 1987); Ward v. Caulk, 650 F.2d
1144 (9th Cir. 1981); Turpin v. Mailet, 591 F.2d 426 (2d Cir. 1979); Owen
v. City of Independence, MO., 589 F.2d 335 (8th Cir. 1978), reversed on
other grounds 445 U.S. 622, 100 S. Ct. 1398, 63 L. Ed. 2d 673 (1980),
and rehearing denied 446 U.S. 993, 100 S. Ct. 2979, 64 L. Ed. 2d 850;
Cale v. Covington, 586 F.2d 311 (4th Cir. 1978).
32
See Davis v. State, supra note 3. See, also, FDIC v. Meyer, supra note 3.
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immunity on appeal in the context of the Cappels’ due process
claims, this court has repeatedly held that an appellate court
has an independent duty to decide jurisdictional issues on
appeal, even if the parties have not raised the issue.33 Lack of
subject matter jurisdiction may be raised at any time by any
party or by the court sua sponte.34 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.35 Therefore, upon our own motion, we determine
that the district court erred in failing to dismiss the Cappels’
due process claims for lack of subject matter jurisdiction.
R estitution
The Cappels’ fifth and last claim is for restitution of occupa-
tion and water taxes levied against their property. On appeal,
the Cappels assign that the district court erred in dismissing
that claim.
[17,18] In essence, the Cappels’ restitution claim is a
claim for a money judgment against the State, which would
be subject to Nebraska’s sovereign immunity.36 Here, the
Cappels cite no authority showing that the Legislature has
waived the DNR’s sovereign immunity to allow it to be sued
for reimbursement of taxes levied and collected by other
entities. Instead, as the DNR points out, the Legislature has
enacted Neb. Rev. Stat. § 46-141 (Reissue 2010), which
allows taxpayers to request a refund for water taxes paid by
filing a request in the office of the secretary of the irrigation
district. And the Legislature has also enacted Neb. Rev. Stat.
§ 2-3226.05(2) (Cum. Supp. 2016), which allows taxpayers to
request a local refund of occupation taxes after following the
applicable procedures.
33
Davis v. State, supra note 3.
34
Id.
35
Id.
36
See Livengood v. Nebraska State Patrol Ret. Sys., supra note 28.
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Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
CAPPEL v. STATE
Cite as 298 Neb. 445
Thus, the Legislature has waived the State’s immunity to the
limited extent that it allows taxpayers to petition for exemp-
tion or a refund under the procedures set forth in §§ 46-141
and 2-3226.05(2). The Cappels have failed to allege that they
have followed either of those procedures. Thus, the Cappels’
claim for a money judgment against the State is barred by
sovereign immunity, and we determine, sua sponte, that the
district court erred in failing to dismiss the restitution claim
for lack of subject matter jurisdiction.37
CONCLUSION
For the foregoing reasons, we find that the Cappels’ § 1983
claim, due process claims, and restitution claim are barred
by sovereign immunity and that the district court erred by
not dismissing them for lack of subject matter jurisdiction.
Regarding the Cappels’ remaining inverse condemnation claim,
we conclude that the district court did not err in dismissing it
for failure to state a claim upon which relief can be granted.
Accordingly, we affirm in part, and in part reverse and remand
to the district court with directions to dismiss for lack of sub-
ject matter jurisdiction the Cappels’ § 1983 claim, due process
claims, and restitution claim.
A ffirmed in part, and in part reversed
and remanded with directions.
Wright, J., not participating.
37
See Davis v. State, supra note 3.