Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
03/10/2017 09:08 AM CST
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Nebraska Supreme Court A dvance Sheets
296 Nebraska R eports
MEDICINE CREEK v. MIDDLE REPUBLICAN NRD
Cite as 296 Neb. 1
Medicine Creek LLC, appellee
and cross-appellant, v.
Middle R epublican Natural
R esources District, appellant
and cross-appellee.
___ N.W.2d ___
Filed March 10, 2017. No. S-16-209.
1. Jurisdiction: Appeal and Error. A jurisdictional question which does
not involve a factual dispute is determined by an appellate court as a
matter of law.
2. Administrative Law: Judgments: Appeal and Error. A judgment or
final order rendered by a district court in a judicial review pursuant to
the Administrative Procedure Act may be reversed, vacated, or modified
by an appellate court for errors appearing on the record. When review-
ing an order of a district court under the Administrative Procedure Act
for errors appearing on the record, the inquiry is whether the decision
conforms to the law, is supported by competent evidence, and is neither
arbitrary, capricious, nor unreasonable.
3. Natural Resources Districts: Political Subdivisions: Legislature. A
natural resources district, as a political subdivision, has only that power
delegated to it by the Legislature, and a grant of power to a political
subdivision is strictly construed.
4. Natural Resources Districts. A natural resources district possesses and
can exercise the following powers and no others: first, those granted in
express words; second, those necessarily or fairly implied in or inci-
dent to the powers expressly granted; and third, those essential to the
declared objects and purposes of the district—not simply convenient,
but indispensable.
5. Administrative Law. When a board or tribunal is required to conduct a
hearing and receive evidence, it exercises judicial functions in determin-
ing questions of fact.
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Nebraska Supreme Court A dvance Sheets
296 Nebraska R eports
MEDICINE CREEK v. MIDDLE REPUBLICAN NRD
Cite as 296 Neb. 1
6. Administrative Law: Waters: Natural Resources Districts: Appeal
and Error. Any person aggrieved by an order of a natural resources
district issued pursuant to the Nebraska Ground Water Management and
Protection Act may appeal the order, and the appeal shall be in accord
ance with the Administrative Procedure Act.
7. Administrative Law: Final Orders: Courts: Appeal and Error. In
reviewing final administrative orders under the Administrative Procedure
Act, the district court functions not as a trial court but as an intermediate
court of appeals.
8. Administrative Law: Appeal and Error. In a review de novo on the
record, the district court is not limited to a review subject to the nar-
row criteria found in Neb. Rev. Stat. § 84-917(6)(a) (Reissue 2014),
but is required to make independent factual determinations based upon
the record, and the court reaches its own independent conclusions with
respect to the matters at issue.
9. Administrative Law: Evidence: Judicial Notice: Appeal and Error.
The Administrative Procedure Act does not authorize a district court
reviewing the decision of an administrative agency to receive additional
evidence, whether by judicial notice or other means.
10. Appeal and Error: Words and Phrases. Plain error is error uncom-
plained of at trial, plainly evident from the record, and of such a nature
that to leave it uncorrected would result in damage to the integrity, repu-
tation, or fairness of the judicial process.
11. Appeal and Error. An appellate court is not obligated to engage in an
analysis that is not necessary to adjudicate the case and controversy
before it.
Appeal from the District Court for Frontier County: David
Urbom, Judge. Reversed and remanded for further proceedings.
Jon S. Schroeder, of Schroeder & Schroeder, P.C., for
appellant.
Stephen D. Mossman, of Mattson Ricketts Law Firm, for
appellee.
Donald G. Blankenau, of Blankenau, Wilmoth & Jarecke,
L.L.P., for amicus curiae Nebraska Groundwater Coalition.
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
K elch, and Funke, JJ.
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Nebraska Supreme Court A dvance Sheets
296 Nebraska R eports
MEDICINE CREEK v. MIDDLE REPUBLICAN NRD
Cite as 296 Neb. 1
Cassel, J.
INTRODUCTION
The Middle Republican Natural Resources District
(MRNRD) denied a landowner’s request for a variance to
drill a new well. Upon the landowner’s appeal, the district
court reversed MRNRD’s decision. Because the district court
committed plain error by applying the wrong standard of
review, we reverse, and remand for reconsideration under the
proper standard.
BACKGROUND
Medicine Creek LLC, a Nebraska limited liability company,
filed a request for a variance from MRNRD’s moratorium on
new well drilling. MRNRD denied the variance but stated that
Medicine Creek “may request a [sic] adjudicatory hearing to
appeal this decision.” Medicine Creek did so, and a hearing
officer presided over a hearing during which three individu-
als testified and numerous exhibits were received. Following
the presentation of evidence, MRNRD’s Board of Directors
(Board) voted to deny the variance.
Medicine Creek filed a complaint with the district court for
Frontier County. It sought judicial review pursuant to Neb.
Rev. Stat. § 46-750 (Reissue 2010) and the Administrative
Procedure Act (APA). Medicine Creek alleged that the Board
improperly denied its variance request based on a rule appli-
cable to transfers. Medicine Creek also requested declara-
tory and injunctive relief based on its allegation that two of
MRNRD’s rules violated its equal protection and due proc
ess rights.
The district court conducted a bench trial, during which
it received the record from MRNRD’s hearing. It also
received 100 additional exhibits and heard testimony from
the three individuals who testified before the Board. The
court determined that MRNRD’s rules and regulations as
applied to Medicine Creek’s request did not violate Medicine
Creek’s equal protection and due process rights. It found that
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Nebraska Supreme Court A dvance Sheets
296 Nebraska R eports
MEDICINE CREEK v. MIDDLE REPUBLICAN NRD
Cite as 296 Neb. 1
MRNRD’s decision “was not supported by the evidence, does
not conform to the law and was therefore arbitrary.” The
court reversed the decision denying the variance and directed
MRNRD to grant the variance.
MRNRD filed a timely appeal, and Medicine Creek filed a
cross-appeal. We moved the case to our docket.1
ASSIGNMENTS OF ERROR
MRNRD assigns that the district court erred in holding that
its decision to deny Medicine Creek’s request for a variance
was not supported by the evidence, did not conform to the
law, and was arbitrary.
On cross-appeal, Medicine Creek assigns that in the event
we reverse the decision of the district court, the court erred
in (1) not finding that the application of MRNRD’s rules and
regulations violated Medicine Creek’s equal protection and due
process rights, (2) not finding that the rules and regulations
were facially unconstitutional, and (3) not issuing declara-
tory and injunctive relief against the unconstitutional rules
and regulations.
STANDARD OF REVIEW
[1] A jurisdictional question which does not involve a factual
dispute is determined by an appellate court as a matter of law.2
[2] A judgment or final order rendered by a district court
in a judicial review pursuant to the APA may be reversed,
vacated, or modified by an appellate court for errors appear-
ing on the record. When reviewing an order of a district court
under the APA for errors appearing on the record, the inquiry
is whether the decision conforms to the law, is supported
by competent evidence, and is neither arbitrary, capricious,
nor unreasonable.3
1
See Neb. Rev. Stat. § 24-1106(3) (Reissue 2016).
2
Guardian Tax Partners v. Skrupa Invest. Co., 295 Neb. 639, ___ N.W.2d
___ (2017).
3
Lingenfelter v. Lower Elkhorn NRD, 294 Neb. 46, 881 N.W.2d 892 (2016).
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Nebraska Supreme Court A dvance Sheets
296 Nebraska R eports
MEDICINE CREEK v. MIDDLE REPUBLICAN NRD
Cite as 296 Neb. 1
ANALYSIS
Jurisdiction
In an amicus curiae brief, the Nebraska Groundwater
Coalition asserts that the district court lacked jurisdiction for
two reasons. We find no merit to either argument.
First, the amicus argues that Medicine Creek lacked stand-
ing. The amicus asserted that the Nebraska Secretary of State’s
website showed Medicine Creek’s corporate status as inactive
at the time of trial. This is not in our record. There is nothing in
the record showing that Medicine Creek was ever dissolved or
otherwise lacked a legally cognizable interest in the outcome
of this litigation.
Second, the amicus asserts that denial of a variance request
is not subject to judicial review. This follows, it argues, because
the Legislature has not authorized natural resources districts to
conduct adjudicative proceedings regarding requests for vari-
ances. The amicus contends that although § 46-750 provides
that “[a]ny person aggrieved by any order of the district . . .
may appeal the order,” an order denying a variance request is
ministerial or legislative in nature and not appealable.
[3,4] A natural resources district, as a political subdivision,
has only that power delegated to it by the Legislature, and a
grant of power to a political subdivision is strictly construed.4
A natural resources district possesses and can exercise the fol-
lowing powers and no others: first, those granted in express
words; second, those necessarily or fairly implied in or incident
to the powers expressly granted; and third, those essential to
the declared objects and purposes of the district—not simply
convenient, but indispensable.5
A statute addresses some of the powers of a natural resources
district.6 The Legislature authorized a natural resources district
4
Wagoner v. Central Platte Nat. Resources Dist., 247 Neb. 233, 526
N.W.2d 422 (1995).
5
Id.
6
See Neb. Rev. Stat. § 46-707 (Cum. Supp. 2016).
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Nebraska Supreme Court A dvance Sheets
296 Nebraska R eports
MEDICINE CREEK v. MIDDLE REPUBLICAN NRD
Cite as 296 Neb. 1
to “[a]dopt and promulgate rules and regulations necessary to
discharge the administrative duties assigned in the [Nebraska
Ground Water Management and Protection Act].”7 Among the
rules and regulations adopted by MRNRD was a rule stating
that requests for a variance would be acted upon at a formal
adjudicatory hearing. The same rule dictated that this hearing
would be advertised in the legal newspaper of the district. And
another section of the same statute provides in part that
a district may assess a fee against a person requesting a
variance to cover the administrative cost of consideration
of the variance, including, but not limited to, costs of
copying records and the cost of publishing a notice in a
legal newspaper of general circulation in the county or
counties of the district, radio announcements, or other
means of communication deemed necessary in the area
where the property is located.8
By authorizing published notice, the Legislature contemplated
a public hearing on a request for a variance.
[5] In holding a hearing and receiving evidence, the Board
acted in a judicial manner. In cases where we have consid-
ered if an administrative decision was made in the exercise of
“judicial” functions such that it was reviewable by petition in
error, we stated that “a board, tribunal, or officer exercises a
judicial function ‘if it decides a dispute of adjudicative fact or
if a statute requires it to act in a judicial manner.’”9 We defined
adjudicative facts as those “‘which relate to a specific party
and are adduced from formal proof.’”10 We have also stated
that when a board or tribunal is required to conduct a hearing
and receive evidence, it exercises “judicial functions” in deter-
mining questions of fact.11 Here, the Board acted in a judicial
7
§ 46-707(1)(a).
8
§ 46-707(3) (emphasis supplied).
9
Kocontes v. McQuaid, 279 Neb. 335, 348, 778 N.W.2d 410, 421 (2010).
10
Id. at 348-49, 778 N.W.2d at 421.
11
McNally v. City of Omaha, 273 Neb. 558, 731 N.W.2d 573 (2007).
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Nebraska Supreme Court A dvance Sheets
296 Nebraska R eports
MEDICINE CREEK v. MIDDLE REPUBLICAN NRD
Cite as 296 Neb. 1
manner when it considered Medicine Creek’s request for a
variance. It held a hearing and received formal proof regarding
the merits of the request. We conclude that the order denying
Medicine Creek’s request for a variance was judicial in nature
and was appealable to the district court.
District Court’s
Standard of R eview
[6] The district court initially stated the correct standard
for its review under § 46-750 and the APA. It correctly rec-
ognized that any person aggrieved by an order of a natural
resources district issued pursuant to the Nebraska Ground
Water Management and Protection Act12 may appeal the order
and that the appeal shall be in accordance with the APA.13 And
it properly recited an APA statute stating that “the review shall
be conducted by the court without a jury de novo on the record
of the agency.”14
But the district court veered to the wrong standard when
it analyzed our decision in Wagoner v. Central Platte Nat.
Resources Dist.15 The district court read Wagoner as requiring
it to review MRNRD’s decision for errors appearing on the
record. And at oral argument, Medicine Creek argued this same
interpretation. They misread Wagoner.
Wagoner set forth the same two standards that we have long
applied in APA reviews. An appeal from the district court looks
for errors appearing on the record.16 That standard applies to
our review of the district court’s order. But the district court
reviews a natural resources district’s decision de novo on the
record of the natural resources district.17
12
Neb. Rev. Stat. §§ 46-701 to 46-756 (Reissue 2010 & Cum. Supp. 2016).
13
See § 46-750.
14
Neb. Rev. Stat. § 84-917(5)(a) (Reissue 2014).
15
Wagoner v. Central Platte Nat. Resources Dist., supra note 4.
16
See id.
17
See id.
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Nebraska Supreme Court A dvance Sheets
296 Nebraska R eports
MEDICINE CREEK v. MIDDLE REPUBLICAN NRD
Cite as 296 Neb. 1
And in this case, the district court clearly applied the wrong
standard. The court found that MRNRD’s decision “was not
supported by the evidence, does not conform to the law and
was therefore arbitrary.” This articulated the standard for errors
appearing on the record rather than the de novo standard. In
doing so, the court erroneously limited its review.
[7-9] The district court was required to conduct a de novo
review on the record of MRNRD. In reviewing final admin-
istrative orders under the APA, the district court functions
not as a trial court but as an intermediate court of appeals.18
In a review de novo on the record, the district court is not
limited to a review subject to the narrow criteria found in
§ 84-917(6)(a), but is required to make independent factual
determinations based upon the record, and the court reaches
its own independent conclusions with respect to the mat-
ters at issue.19 And the APA does not authorize a district
court reviewing the decision of an administrative agency to
receive additional evidence, whether by judicial notice or
other means.20
[10] The use of an incorrect standard of review in this situ-
ation is plain error and requires us to remand the cause to the
district court. Plain error is error uncomplained of at trial,
plainly evident from the record, and of such a nature that to
leave it uncorrected would result in damage to the integrity,
reputation, or fairness of the judicial process.21 A trial court’s
use of the wrong standard affects our review:
“It is a logical impossibility for this court to review
the district court judgment for errors appearing on the
record if the district court incorrectly limited its review
18
Timmerman v. Neth, 276 Neb. 585, 755 N.W.2d 798 (2008).
19
Schwarting v. Nebraska Liq. Cont. Comm., 271 Neb. 346, 711 N.W.2d 556
(2006).
20
Betterman v. Department of Motor Vehicles, 273 Neb. 178, 728 N.W.2d
570 (2007).
21
State ex rel. Unger v. State, 293 Neb. 549, 878 N.W.2d 540 (2016).
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Nebraska Supreme Court A dvance Sheets
296 Nebraska R eports
MEDICINE CREEK v. MIDDLE REPUBLICAN NRD
Cite as 296 Neb. 1
and, thus, failed to make factual determinations, as it
must under a de novo on the record review. The dis-
trict court’s and this court’s standards of review are
interdependent.”22
Many years ago in nearly identical circumstances, we held that
a district court’s application of the former limited standard
of review constituted plain error and required that the cause
be remanded to the district court for a de novo review of the
record.23 We follow the same course here.
[11] Because we must remand the cause for a new review
by the district court under the correct standard, we need not
reach Medicine Creek’s cross-appeal. An appellate court is not
obligated to engage in an analysis that is not necessary to adju-
dicate the case and controversy before it.24 Upon remand, the
district court should address Medicine Creek’s constitutional
claim to the extent necessary in light of its disposition of the
APA review.
CONCLUSION
We note plain error in the district court’s application of the
wrong standard of review. We therefore reverse the court’s
order and remand the cause to the district court for a de novo
review of MRNRD’s record.
R eversed and remanded for
further proceedings.
22
Law Offices of Ronald J. Palagi v. Dolan, 251 Neb. 457, 460, 558 N.W.2d
303, 305 (1997), quoting Bell Fed. Credit Union v. Christianson, 237 Neb.
519, 466 N.W.2d 546 (1991).
23
See Law Offices of Ronald J. Palagi v. Dolan, supra note 22.
24
Adair Asset Mgmt. v. Terry’s Legacy, 293 Neb. 32, 875 N.W.2d 421
(2016).