Estate of Schluntz v. Lower Republican NRD
300 Neb. 582
Neb.2018Background
- LRNRD (a natural resources district) issued a cease-and-desist order and civil penalties against the estate of Gerald Schluntz and co-defendants for alleged groundwater rule violations affecting farmland in Furnas County.
- Administrative hearings on LRNRD’s complaint were held in LRNRD offices in Harlan County; the first adjudicated hearing occurred in Harlan County.
- Appellants sought judicial review under the Nebraska APA by filing a petition in Furnas County district court challenging LRNRD’s order as procedurally improper and arbitrary and capricious.
- LRNRD moved to dismiss for lack of subject-matter jurisdiction; the district court granted dismissal based on the APA venue provision requiring review in the district court of the county “where the action is taken.”
- Appellants appealed; they also failed to include a separate assignment-of-error section in their appellate brief as required by the court rules.
- The Nebraska Supreme Court reviewed de novo and affirmed dismissal, holding that APA review must be filed in the county where the first adjudicated hearing on the disputed claim was held (Harlan County), not necessarily the county where the land at issue lies (Furnas County).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the petition for judicial review was filed in the proper county under the APA phrase "district court of the county where the action is taken." | Petition filed in Furnas County was proper because the disputed land is located in Furnas County; §25-401 (venue for actions about land) supports venue in county where land lies. | APA governs review of NRD orders; "county where the action is taken" means the county where the first adjudicated hearing was held (Harlan County). Prior Nebraska precedent adopts this rule. | Held: Petition was filed in the wrong county. APA venue is the county of the first adjudicated hearing; dismissal for lack of subject-matter jurisdiction affirmed. |
| Whether appellate brief noncompliance (no separate assignment of error) warrants dismissal or limits review; whether plain error review applies. | Appellants argued merits despite briefing defect. | Court noted rule violation; court may treat as no brief filed or review for plain error. | Held: Court proceeded to review and found no plain error; briefing defect noted but did not alter outcome. |
Key Cases Cited
- Nebraska Dept. of Health & Human Servs. v. Weekley, 274 Neb. 516, 741 N.W.2d 658 (establishes county-of-first-adjudicated-hearing rule for APA venue)
- Essman v. Nebraska Law Enforcement Training Ctr., 252 Neb. 347, 562 N.W.2d 355 (adopts first-adjudicated-hearing interpretation)
- Metro Renovation v. State, 249 Neb. 337, 543 N.W.2d 715 (applies same APA venue rule)
- Bd. of Ed. of Keya Paha County v. State Board of Education, 212 Neb. 448, 323 N.W.2d 89 (earlier decision interpreting APA venue language)
- In re Interest of Samantha L. & Jasmine L., 286 Neb. 778, 839 N.W.2d 265 (appellate brief form requirements and plain error review)
- Heckman v. Marchio, 296 Neb. 458, 894 N.W.2d 296 (legislative acquiescence to judicial construction where statute not amended)
- J.S. v. Grand Island Public Schools, 297 Neb. 347, 899 N.W.2d 893 (district court acquires jurisdiction only when review is sought in manner and time prescribed by statute)