Scofield v. State, Dnr

• Decision Date: 25 July 2008
• Docket Number: No. S-07-511.,S-07-511.
• Citation: 276 Neb. 215,753 N.W.2d 345
• Parties: Gary C. SCOFIELD and Joyce E. Scofield, appellants, v. STATE of Nebraska, DEPARTMENT OF NATURAL RESOURCES, et al., appellees.
• Court: Nebraska Supreme Court

753 N.W.2d 345

276 Neb. 215

Gary C. SCOFIELD and Joyce E. Scofield, appellants, v. STATE of Nebraska, DEPARTMENT OF NATURAL RESOURCES, et al., appellees.

No. S-07-511.

Supreme Court of Nebraska.

July 25, 2008.

Allan J. Eurek & Associates, P.C., Lincoln, for appellants.

Jon Bruning, Attorney General, and Katherine J. Spohn for appellees.

HEAVICAN, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

GERRARD, J.

Gary C. Scofield and Joyce E. Scofield sued the Department of Natural Resources (DNR) and other state officials, alleging that in establishing the boundaries for a state game refuge, the DNR exceeded its statutory authority, deprived them of their constitutional right to due process, and effected a taking of their property without just compensation. The Scofields' complaint was dismissed for failure to state a claim upon which relief could be granted. On appeal, we must determine whether the DNR's establishment of the refuge boundaries complied with the relevant statutes and whether the Scofields have stated any claims upon which relief may be granted.

STATEMENT OF FACTS

The Legislature, pursuant to Neb.Rev. Stat. § 37-707(2)(a) (Reissue 2004), gave the DNR the authority to promulgate rules and regulations establishing the boundaries for the state game refuges. Land that is designated as a state game refuge has certain restrictions placed upon it. These restrictions include, among other things, a prohibition on hunting game birds, game animals, or other birds or animals within the boundaries of the refuge.¹

The DNR's determination of the boundaries is governed by the definitions in Neb. Rev.Stat. §§ 37-701 to 37-708 (Reissue 2004). Section 37-706(1) directs that a state game refuge be established on "[a]ll that portion of the State of Nebraska on the North Platte River and for one hundred ten yards back of the banks of said stream on the land side in Garden County, Nebraska." Section 37-706(3) provides that "the banks of said stream means the banks of the river which are the elevation of ground which confines the water at a level not exceeding flood stage."

On April 25, 2005, the DNR adopted the "Rules Relating to Boundary of State Game Refuge—Garden County, Nebraska," which rules are codified as title 459, chapter 1, of the Nebraska Administrative Code (regulations). These regulations determined the boundaries of the Garden County game refuge. As relevant to this case, the regulations used the Midland-Overland Canal (Canal) to establish a part of the boundary.

The Scofields, residents of Keith County, filed a complaint in the Lancaster County District Court against the DNR and various other state officials (hereinafter collectively the DNR). They allege that both the North Platte River and the Canal pass through property they own in Garden County. They allege that the "Canal is an irrigation ditch which historically has been privately and regularly maintained as a ditch for the delivery of irrigation water" and "is not a channel of the North Platte River," nor do its banks "constitute the banks of the North Platte River." The Scofields further allege that by the DNR's using the banks of the Canal to establish the boundary, approximately 53 acres of accretion ground on their property has been designated as part of the Garden County refuge that would not have been had the bank of the North Platte River been used as the boundary.

Given these factual allegations, the Scofields set forth five claims for relief that can be consolidated into three. First, the Scofields assert that the regulations, to the extent they use the Canal to establish the boundary for the refuge, should be declared invalid because the regulations were adopted in violation of the Nebraska and federal Constitutions and exceeded the DNR's statutory authority. With regard to their first claim for relief, the Scofields also allege that the use of the Canal to establish a boundary for the refuge is "contrary to prior legal precedent," in particular, U.S. v. Wheeler,² an opinion of the U.S. District Court for the District of Nebraska.

Second, the Scofields assert that under the Nebraska and federal Constitutions, their due process rights have been violated. Specifically, they allege that the regulations "are so egregious and irrational as to exceed standards of inadvertence and mere errors of law, and do not substantially advance a legitimate state purpose" and therefore "constitute a deprivation of [their] due process rights."

Third, the Scofields claim that the regulations resulted in an unlawful taking of their property without just compensation under the Nebraska and federal Constitutions. Regarding this claim, the Scofields allege that the regulations "have resulted in substantial damages." They further allege that the regulations have "significantly denied [them] their enjoyment and beneficial (or economically viable) use of a portion of [their] [p]roperty," have "precluded the viability and use of the property for reasonable hunting purposes," have "deprived [them] of recreational income," and have "resulted in a diminishment of the fair market value of such property."

ADDITIONAL INFORMATION REGARDING CANAL

In their brief, the Scofields clarify that the Canal at issue in this case begins at the point where the Wilkinson Diversion Dam diverts water from the North Platte River into the Canal. The Canal carries the water downstream until it reaches the Bennet Sand Dam. The Bennet Sand Dam then diverts some of the water from the Canal into a separate irrigation channel, while the water that was not diverted remains in the Canal and returns to the North Platte River. The Scofields' property is located between the Wilkinson Diversion Dam and the Bennet Sand Dam. For the reader's assistance, we have prepared a diagram depicting the North Platte River, the Scofields' property, and other features relevant to this appeal. The diagram is for illustrative purposes only and does not purport to be to scale.

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

As previously noted, the Scofields, in their complaint, referenced the case of U.S. v. Wheeler,³ which, like the present case, involved a question relating to the location of the boundaries of the Garden County refuge. However, although dealing with the same general area, the specific boundary at issue in Wheeler is not the same section of the Canal that is at issue in the present case. The question in Wheeler involved the boundary along what the Wheeler court termed the "disputed channel."⁴ The disputed channel in Wheeler was the separate irrigation channel that is formed when some of the water from the Canal is diverted by the Bennet Sand Dam. And, as will be explained below, the legal definition of the refuge's boundary has been amended since Wheeler. But while the boundary dispute in Wheeler was different from the one at issue here, the Wheeler court's description of the area provides some helpful context for the current dispute.

As the Wheeler court explained, in the relevant area, the North Platte River generally flows south and east. The river has various channels, and it has a sandy bottom. The location of the numerous banks of the river change over time. New river channels are constantly being made by the course of the river, and old channels are filled by sediment deposits. When that occurs, the old channel no longer carries river water.

Several irrigation companies divert water from the river, including the Midland-Overland irrigation company. The water ran into the "disputed channel" in Wheeler due to the obstruction caused by the Bennet Sand Dam. However, not all the water in the Canal is diverted by the Bennet Sand Dam. The Canal and the remaining water continue to the south and east at the Bennet Sand Dam, while the "disputed channel" runs in a more easterly direction. In the fall, the Bennet Sand Dam is breached by the Midland-Overland irrigation company. Most of the water then flows in the Canal as opposed to flowing into the disputed channel.

The waterway at issue in this case is the portion of the Canal upstream from the Bennet Sand Dam. In short, the water flowing through the waterway disputed in this case is diverted from the river at the Wilkinson Diversion Dam, through the Canal past the Scofields' property, and then to the Bennet Sand Dam, where it either is diverted into the "disputed channel" discussed in the Wheeler case, or stays in the Canal and returns to the river.

DISTRICT COURT'S DECISION

In response to the Scofields' complaint, the DNR filed a motion to dismiss, claiming that the Scofields' complaint failed to state a claim upon which relief could be granted.⁵ The district court granted the DNR's motion. The court disagreed with the Scofields' claim that the use of the Canal to establish the boundary for the refuge was contrary to the DNR's statutory authority. The court explained that it had already determined in a consolidated order in two other cases that the DNR had "properly utilized the statutory definitions detailed in Neb.Rev.Stat. § 37-706 in determining the boundaries of the Garden County Refuge."

The court then pointed to the language of the consolidated order in which it had held that

"the Legislature gave the authority to the DNR to create the boundaries through the use of maps and global positioning technology. In accordance with Neb.Rev.Stat. § 37-07(2)(a), the DNR promulgated boundaries of the Garden County Refuge `based' on the definitions of § 37-706. The DNR's adoption of [the Garden County Regulations] was based on the plain and ordinary reading of § 37-706 and the DNR was acting with constitutional authority granted by the Legislature."

The court concluded that nothing in the DNR's determination was contrary to the statutory definition of the Garden County refuge found in § 37-706 or the authority granted to the DNR in § 37-707(2).

The district court also dismissed the...