Koch v. Lower Loup Natural Res. Dist.
| Decision Date | 13 December 2016 |
| Docket Number | No. A-15-559.,A-15-559. |
| Parties | MARK ALLEN KOCH, APPELLANT, v. LOWER LOUP NATURAL RESOURCES DISTRICT, APPELLANT. |
| Court | Nebraska Court of Appeals |
(Memorandum Web Opinion)
Appeal from the District Court for Valley County: KARIN L. NOAKES, Judge. Reversed and remanded for further proceedings.
Mark Allen Koch, pro se.
Thomas S. Kruml, of Kruml Law Office, P.C., L.L.O., for appellee.
Mark Allen Koch, pro se, filed a complaint requesting a writ of mandamus to void various meetings of the Lower Loup Natural Resources District Programs and Projects Committee (Committee), and all actions taken therein and therefrom, alleging that the Committee violated the Open Meetings Act, Neb. Rev. Stat. §§ 84-1407 to 84-1414 (Reissue 2014). The district court for Valley County granted summary judgment in favor of the Lower Loup Natural Resources District (Lower Loup NRD). For the reasons that follow, we reverse and remand for further proceedings.
This case concerns four meetings that took place in June and July 2014: two meetings of the Committee (June 17 and July 15) and two meetings of the Lower Loup NRD Board of Directors (Board) (June 26 and July 24). Koch attended the meetings as a citizen, but also as a spokesman for the "Bredthauer Dam Proposal," a project which was discussed at the meetings. We briefly summarize what happened at these four meetings.
The Committee held a meeting on June 17, 2014; the partial meeting minutes that appear in our record do not list those in attendance at the meeting. It is undisputed that Koch, Eugene Bredthauer (Bredthauer), and Bredthauer's son, were prevented from entering the meeting for approximately 15 minutes. Five items appeared on the meeting agenda, one of which was the "Bredthauer Dam Proposal." The section of the minutes discussing the Dam Proposal reveals the following. The Committee was informed that Koch was told that in order for him to speak to the Committee he was to send an updated proposal for the project prior to the meeting so that staff could review the new information before it was presented to the Committee. The proposal was not submitted prior to the meeting. Discussion was had as to how to proceed. It was "again" explained to Koch that normal procedure is to give the proposal to staff in advance, then staff would review the information and make recommendations to the Committee; then the Committee would review and discuss the proposal and make recommendations to the Board. The Committee ultimately voted to table the proposal until July, "pending the Bredthauer proposal be[ing] submitted to staff in advance of the meeting, allowing sufficient time to review the proposal."
The Board held a meeting on June 26, 2014. The minutes reflect that 17 out of the 21 directors were present at the meeting. Koch and Bredthauer were among those listed as "guests in attendance." The section of the minutes titled "Public Comments" provides as follows. Bredthauer told the Board that he had authorized Koch to speak on his behalf regarding the Bredthauer Dam Project. Koch handed out a proposal for the Bredthauer Dam Project to each Board member and said he understood that the Committee had tabled the project until July. The Chairman of the Board informed Koch that anything the Board would consider for the project needed to be submitted to management first for their review. Koch responded that he would not be commenting on anything in the proposal. The public comment that Koch wanted to make was that he was not allowed to enter the June 17 Committee meeting for 15 minutes; he had wanted to record the meeting and was disappointed when that did not happen. He said he planned to attend the July Committee meeting and would like to present the project in an in-depth manner; he hoped it would be a feasible project.
One of the directors said he requested the Bredthauer Dam Project to be put on the June 2014 Committee agenda to determine whether the request should be revisited, but that Koch was not necessarily "on" the agenda. The director said that the procedure was to submit information to staff for their review, and if staff felt it was warranted, they would bring it to the Committee; staff would determine if the project would be on the July Committee agenda. Leon Koehlmoos (Koehlmoos), the General Manager of the Lower Loup NRD, said that at the June Committee meeting, he had said he would review proposals to see if there were any changes from the original discussions with Bredthauer, and if there was nothing new and Koch was asking for the same things as in the past, Koehlmoos would probably not be taking the information forward. Kochresponded that the proposal he passed out to the Board was an entirely new proposal; Koehlmoos said he would review it.
The section of the minutes titled "Programs/Projects Committee Report" contains a section regarding the "Bredthauer Dam Proposal," which states as follows. A director said the Committee discussed whether or not to bring the Bredthauer Dam Proposal forward; they decided not to because Bredthauer/Koch did not follow the protocol of giving information to staff first for their review and letting staff decide whether or not to bring the information to the Committee. The director told the Board that the Committee voted to table the Bredthauer Dam Proposal until July, pending the proposal being submitted to staff in advance of the meeting and allowing sufficient time for review. Koehlmoos also told the Board that it was a "misunderstanding" when Koch was not immediately allowed to enter the Committee meeting; having someone wait to be introduced and brought into a meeting is the process for Variance Committee meetings, so the mistake was not intentional. The chairman stated that the meeting was advertised as a public meeting, so Koch could have come in right from the beginning; Koehlmoos agreed and stated he would correct the misunderstanding on public meetings in the future.
The Committee held a meeting on July 15, 2014. The Committee minutes appearing in our record (which do not appear to be a complete copy) stated that seven Committee members were present (all seven Committee members are on the Board). In addition to six "staff present," the minutes also list Koch and Bredthauer as "others present." The section of the minutes discussing the Dam Proposal stated that Koch was informed he could not make a video recording because it was not a public meeting. The Committee then voted to recommend to the Board that the Bredthauer Dam request be denied.
The Board held a meeting on July 24, 2014. The minutes reflect that 14 out of the 21 directors were present at the meeting. Koch and Bredthauer were among those listed as "guests in attendance." The section of the minutes titled "Public Comments" states that "[t]here were no public comments."
The section of the minutes titled "Programs/Projects Committee Report" contains a section regarding the "Bredthauer Dam Proposal," which states as follows. Koehlmoos said that Koch spent about an hour reviewing the proposal with the Committee on July 15, 2014. A Committee/Board member stated that Koch's presentation was "very interesting and well presented," but there were issues and unanswered questions about the project regarding permits, public access, and design; there was a lot of uncertainty about the project and the Committee did not feel comfortable moving forward, so it was recommending denial of the request at this time.
The minutes note that Koch "outlined his concerns regarding the Open Meetings Act" and gave a 15-minute presentation reiterating items in the proposal. Another guest in attendance at the Board meeting then spoke in favor of the Dam Proposal. Discussion was had "about the projectbeing a private structure, engineering assistance, DNR permit, and funding." Eleven of the directors present at the meeting then voted to deny the Bredthauer Dam request.
On October 14, 2014, Koch filed a "complaint request for writ of mandamus for open meetings act and freedom of information act violations by the Lower Loup Natural Resource District and discrimination against Koch Repair when representing the Eugene Bredthauer Dam Project." Koch alleged various violations of the Open Meetings Act. He asked that actions taken in violation of the Open Meetings Act be voided, and that those responsible for violating the Open Meetings Act be held accountable. He also requested that the Lower Loup NRD be made to allow him access to public records.
On November 14, 2014, the Lower Loup NRD filed its answer to Koch's complaint, generally denying all allegations. The Lower Loup NRD also alleged affirmative defenses. On December 29, the Lower Loup NRD filed a motion for summary judgment, alleging that there were no issues of material fact and that it was entitled to judgment as a matter of law. On February 12, 2015, Koch filed a motion to deny the Lower Loup NRD's summary judgment; he attached a DVD to his motion, a video recording he claimed showed violations of the Open Meetings Act.
On March 10, 2015, Koch filed a motion to amend complaint, stating that the amended complaint was to be filed on March 16.
On March 16, 2015, Koch, without leave of the court, filed an "amended complaint for writ of mandamus for open meetings act violations by the Lower Loup...
To continue reading
Request your trial