State ex rel. City of Alma v. Furnas County Farms

• Decision Date: 02 July 1999
• Docket Number: No. S-98-211,S-98-211
• Citation: 257 Neb. 189,595 N.W.2d 551
• Parties: STATE of Nebraska ex rel. CITY OF ALMA, a Nebraska municipal corporation, Appellee, v. FURNAS COUNTY FARMS, a general partnership, et al., Appellants.
• Court: Nebraska Supreme Court

Page 551

595 N.W.2d 551

257 Neb. 189

STATE of Nebraska ex rel. CITY OF ALMA, a Nebraska municipal corporation, Appellee, v. FURNAS COUNTY FARMS, a general partnership, et al., Appellants.

No. S-98-211.

Supreme Court of Nebraska.

July 2, 1999.

Syllabus by the Court

1. Mandamus: Judgments: Appeal and Error. An action for a writ of mandamus is a law action, and in an appellate review of a bench trial of a law action, a trial court's factual findings have the effect of a jury verdict and will not be set aside unless clearly erroneous.

2. Judgments: Appeal and Error. When reviewing a question of law, an appellate court reaches a conclusion independent of the lower court's ruling.

3. Mandamus: Words and Phrases. Mandamus is an action at law and is an extraordinary remedy issued to compel performance of a purely ministerial act or duty imposed by law upon an inferior tribunal, corporation, board, or person, where (1) the relator has a clear legal right to the relief sought, (2) there is a corresponding clear duty existing on the part of the respondent to perform the act in question, and (3) there is no other plain and adequate remedy available in the ordinary course of the law.

4. Mandamus: Public Officers and Employees. A duty imposed by law which may be enforced by writ of mandamus must be one which the law specifically enjoins as a duty resulting from an office, trust, or station.

5. Mandamus: Public Officers and Employees. Mandamus is available to enforce the performance of ministerial duties of a public official but is not available if the duties are quasi-judicial or discretionary.

6. Mandamus: Injunction. Where injunctive relief may be sought, mandamus is not an available remedy.

Noyes W. Rogers, Columbus, for appellant.

Denzel R. Busick, of Luebs, Leininger, Smith, Busick, Johnson, Baack, Placzek & Steele, Grand Island, for appellee.

HENDRY, C.J., WRIGHT, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ., and HANNON, Judge.

STEPHAN, J.

INTRODUCTION

In this action, the City of Alma sought a writ of mandamus, requiring respondents to comply with certain ordinances pertaining to the construction of new solid and liquid waste storage facilities, and a declaratory judgment with respect to the validity and applicability of those ordinances. The district court for Harlan County entered a peremptory writ of mandamus from which this appeal was taken. We conclude that the entry of the writ was error and therefore reverse and vacate, and remand for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

The City of Alma (City), organized and existing as a city of the second class pursuant to Neb.Rev.Stat. § 17-101 et seq. (Reissue 1997), filed a verified petition on November 5, 1997, seeking a writ of mandamus pursuant to Neb.Rev.Stat. § 25-2156 (Reissue 1995) and a declaratory judgment pursuant to Neb.Rev.Stat. § 25-21,150 (Reissue 1995). It named as respondents Furnas County Farms (FCF), a general partnership; Sand Livestock Systems, Inc. (SLS), a corporation; Charles W. Sand, Jr.; and Timothy A. Cumberland. Sand and Cumberland are alleged to be general partners of FCF as well as corporate officers of SLS. The City alleged that FCF was the record title owner of a 125-acre tract of land located in Harlan County approximately 8 miles from the Alma city limits and that SLS has or claims an ownership interest and easement in this property. The City alleged that FCF and SLS intended to build and operate a "large hog confinement facility" on this property for the purpose of penning, feeding, and finishing a constant capacity of 30,000 to 36,000 head of feeder pigs for market. The City further alleged that this proposed facility would involve excavation of three waste disposal lagoons, each 24 feet deep, and together having a surface area of approximately 26 acres, which would "hold a total of approximately 145 million gallons of liquidized hog manure on a continuing, on-going, and daily basis." According to the City's allegations current data show the surface and subsurface drainage to and from the lagoons, without adequate and proper controls, has a high potential of polluting, injuring, and contaminating ground water which supplies Relator's public drinking water wells, within three to five years, perhaps sooner, creating a significant endangerment to public health.

The City alleged that pursuant to the authority conferred upon it by Neb.Rev.Stat. § 17-536 (Reissue 1997), it enacted ordinances which require any person or entity seeking to construct or operate any manufacturing, livestock, or other facility within 15 miles of its city limits "which will create liquid or solid liquid waste to be stored or disposed of into holding ponds, lagoons, tanks, or other containers, or which will be discharged into waterways or onto or under the soil" to first apply for and obtain a permit from the City. The ordinances include certain design, construction, and monitoring requirements for such facilities, in addition to those imposed by the Nebraska Department of Environmental Quality (NDEQ), with which an applicant must comply in order to obtain a permit.

The City alleged that respondents, claiming that the ordinances were invalid, commenced construction of the hog confinement facility without obtaining the permit which the ordinances require. It further alleged:

Respondents Furnas County Farms and Sand Livestock Systems, Inc.,are proper subjects to be compelled to perform mandatory duties by means of a writ of mandamus by virtue of their legal status and station as legal entities created by the law of the state of Nebraska, and the obligations specifically enjoined upon them by Relator's ... ordinances. Respondent Furnas County Farms, as a Nebraska general partnership, and Respondent Sand Livestock Systems, Inc., as a Nebraska corporation, are required to transact only lawful business in ... Nebraska. [Citations omitted.] Respondents Charles W. Sand, Jr., and Timothy A. Cumberland are proper parties to be named herein so as to physically receive any writ of mandamus which may be issued herein to Respondent Furnas County Farms because they are the general partners of said partnership, and directly responsible for its activities. Respondent Charles W. Sand, Jr., is also a proper party to be named herein to physically receive any writ of mandamus which maybe issue [sic] herein to Respondent Sand Livestock Systems, Inc., because he is president of the corporation, and directly responsible for its day-to-day activities.

The City alleged that the subject ordinances were enacted in order to protect its water supply from pollution and contamination and that

[a] law action for damages is not adequate to protect the ultimate health, welfare, and safety of the public, and will not ensure that the Respondent's [sic] will construct the proposed hog confinement facility in a manner which will prevent pollution of the Relator's water supply in the first instance, nor remove pollution therefrom in the second instance. Accordingly, Relator and the public it represents will suffer irreparable harm for which they have no adequate remedy at law which will timely compel Respondent's compliance with the mandatory obligations of Relator's lawful ordinances for the benefit of the public's health, welfare, and safety.

The City prayed for a writ of mandamus requiring respondents to comply with the ordinances "or, alternatively, to appear and show cause, if any there be, as to why they refuse to comply...." In addition, the City prayed for a judgment declaring the ordinances in question "to be within its statutory and lawful powers" and "valid and binding upon Respondents."

An alternative writ of mandamus directed to respondents was filed on November 5, 1997, the same date on which the petition was filed. The alternative writ recited that the City had "made a prima facie showing that its water supply and the public's health, welfare, and safety may be jeopardized by the failure of Respondents to comply with said ordinances, and an action at law for damages may not be an adequate remedy." The alternative writ further provided that FCF and SLS were "mandated by Nebraska law to act in a lawful manner" and required them "to comply with all valid laws, ordinances, and regulations of the State of Nebraska and its subdivisions," including compliance with the City's ordinances applicable to the construction of hog confinement facilities. Individual respondents were required by the alternative writ to cause FCF and SLS to comply with its terms. The alternative writ further required that any respondent failing or refusing to comply with its directive appear and show cause at a hearing scheduled for November 19, 1997.

Three responsive pleadings were filed on the day prior to the hearing. FCF filed an answer and cross-petition in which it alleged that the ordinances at issue were passed and adopted after its acquisition of the proposed hog confinement facility site "for the sole purpose of stopping or hindering the completion" of the facility. FCF alleged that it had undertaken studies to determine that the facility met with all regulations and laws of the State of Nebraska as promulgated by NDEQ and further, that the facility would not cause pollution or injury to the City's water supply. It further alleged that the subject ordinances constitute local or special laws, in violation of article III, § 18, of the Nebraska Constitution; that they deprive FCF of constructing a hog confinement facility on its land in violation of due process guarantees of the state and federal Constitutions; that the ordinances are not reasonably necessary to prevent pollution or injury to the City's water supply, but, rather, are calculated to make the construction of the facility unreasonably expensive and burdensome; and that the ordinances are preempted by Neb.Rev.Stat. § 81-1504(11) (Cum.Supp. 1996), granting NDEQ the power to issue permits for the...