State ex rel. Wood v. Fisher Foods, Ltd.
| Decision Date | 10 July 1998 |
| Docket Number | No. S-96-222,S-96-222 |
| Citation | 254 Neb. 982,581 N.W.2d 409 |
| Parties | STATE of Nebraska ex rel. Randolph WOOD, Director, Department of Environmental Quality, Appellant, v. FISHER FOODS, LTD., A Nebraska Corporation, Appellee. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Pleadings: Demurrer: Appeal and Error. When reviewing an order sustaining a demurrer, an appellate court accepts the truth of the facts which are well pled, together with the proper and reasonable inferences of law and fact which may be drawn therefrom, but does not accept as true the conclusions of the pleader.
2. Statutes: Appeal and Error. Statutory interpretation is a matter of law in connection with which an appellate court has an obligation to reach an independent, correct conclusion, irrespective of the determination made by the court below.
3. Statutes: Words and Phrases. Generally, the word "may," when used in a statute, will be given its ordinary, permissive, and discretionary meaning unless it would manifestly defeat the statutory objective.
4. Statutes. Effect must be given, if possible, to all the several parts of a statute; no sentence, clause, or word should be rejected as meaningless or superfluous if it can be avoided.
5. Statutes. It is the duty of a court, as far as practicable, to give effect to the language of a statute and to reconcile the different provisions of it so that they are consistent, harmonious, and sensible.
6. Statutes: Legislature: Intent: Appeal and Error. In determining the meaning of a statute, an appellate court may conjunctively consider and construe a collection of statutes which pertain to a certain subject matter to determine the intent of the Legislature so that different provisions of the act are consistent, harmonious, and sensible.
7. Administrative Law: Statutes: Public Officers and Employees: Complaints. Under Neb.Rev.Stat. § 81-1507(1) (Reissue 1994), the director of the Department of Environmental Quality is not required to issue a complaint for each and every possible violation of Nebraska's Environmental Protection Act; however, if the director decides to pursue enforcement of a violation, then the director is required to issue a complaint meeting the necessary requirements of the statute.
8. Statutes: Legislature: Intent. When interpreting a statute, a court must determine and give effect to the purpose and intent of the Legislature as ascertained from the entire language of the statute considered in its plain, ordinary, and popular sense, as it is the court's duty to discover, if possible, the Legislature's intent from the language of the statute itself.
9. Administrative Law: Public Officers and Employees: Complaints: Penalties and Forfeitures. When the director of the Department of Environmental Quality pursues enforcement of alleged violations of Nebraska's Environmental Protection Act by seeking the imposition of a civil penalty pursuant to Neb.Rev.Stat. § 81-1508.02 (Reissue 1994), the director must first issue a complaint by which a final decision of the director can be reached and from which an appeal can be taken to the district court pursuant to Neb.Rev.Stat. § 81-1509 (Reissue 1994).
10. Demurrer: Pleadings. When a demurrer to a petition is sustained, a court must grant leave to amend the petition unless it is clear that no reasonable possibility exists that amendment will correct the defect.
Don Stenberg, Attorney General, and William L. Howland, Lincoln, for appellant.
James E. Gordon, of DeMars, Gordon, Olson, Recknor & Shively, Lincoln, for appellee.
The State of Nebraska filed a petition in district court, seeking the recovery of a civil penalty from Fisher Foods, Ltd., for violations of Nebraska's Environmental Protection Act (EPA). Fisher Foods demurred to the petition on the basis that the district court lacked subject matter jurisdiction. Agreeing with Fisher Foods, the district court found that subject matter jurisdiction had not been conferred upon it because the State failed to issue a complaint to Fisher Foods by which a final decision of the director of the Department of Environmental Quality (DEQ) could be reached and from which an appeal could be taken to the district court. After sustaining the demurrer, the district court dismissed the action because the 1-year statute of limitations had expired since the time of the filing of the petition. The State appeals. We determine that the district court did not have subject matter jurisdiction; however, since the State should have been afforded a reasonable opportunity to amend its petition to cure the jurisdictional defect, we reverse, and remand the cause to the district court for further proceedings.
On September 22, 1995, the State filed a petition in district court, alleging that on September 24, 1994, Fisher Foods discharged liquid waste containing sludge from its cooking apparatus into the State's waters, specifically, Antelope Creek. Under a National Pollutant Discharge Elimination System permit issued by the DEQ, Fisher Foods was authorized to discharge liquid waste from its facility into Antelope Creek. However, Fisher Foods' permit dictated that "[s]ludge shall be disposed of or utilized in a manner approved by the [DEQ]." The State alleged that because Fisher Foods' permit did not authorize the discharge of sludge collected in cooking devices and because Fisher Foods failed to report its noncompliance in discharging such sludge, Fisher Foods violated the EPA. Based on these violations, the State sought the recovery of a civil penalty.
Fisher Foods demurred to the petition, contending that the district court lacked subject matter jurisdiction. The district court found that it did lack subject matter jurisdiction for the reason that the State failed to issue a complaint to Fisher Foods regarding the alleged EPA violations by which a final decision of the director of the DEQ could be reached and from which an appeal could be taken to the district court. After sustaining the demurrer, the district court dismissed the action because the 1-year statute of limitations had expired since the time of the filing of the petition. The State appeals.
When reviewing an order sustaining a demurrer, an appellate court accepts the truth of the facts which are well pled, together with the proper and reasonable inferences of law and fact which may be drawn therefrom, but does not accept as true the conclusions of the pleader. Syracuse Rur. Fire Dist. v. Pletan, 254 Neb. 393, 577 N.W.2d 527 (1998).
Statutory interpretation presents questions of law, in connection with which an appellate court has an obligation to reach an independent conclusion irrespective of the decision made by the court below. Cox Cable of Omaha v. Nebraska Dept. of Revenue, 254 Neb. 598, 578 N.W.2d 423 (1998); PLPSO v. Papillion/LaVista School Dist., 252 Neb. 308, 562 N.W.2d 335 (1997).
The State contends that the district court erred in (1) finding that it lacked subject matter jurisdiction because the State failed to issue a complaint to Fisher Foods regarding the alleged violations by which a final decision of the director of the DEQ could be reached and from which an appeal could be taken to the district court and (2) dismissing the action without affording the State a reasonable opportunity to amend its petition to cure the jurisdictional defect.
The statutes at issue in the instant case are Neb.Rev.Stat. §§ 81-1507, 81-1508.02, and 81-1509 (Reissue 1994). Section 81-1507(1) provides in relevant part that
[w]henever the director [of the DEQ] has reason to believe that a violation of any provision of the Environmental Protection Act ... has occurred, he or she may cause a written complaint to be served upon the alleged violator.... The complaint shall specify the provision of the act ... alleged to be violated and the facts alleged to constitute a violation thereof and shall order that necessary corrective action be taken within a reasonable time to be prescribed in such order. Any such order shall become final unless each person named therein requests in writing a hearing before the director no later than thirty days after the date such order is served. In lieu of such order, the director may require that the alleged violator appear before the director at a time and place specified in the notice and answer the charges complained of.
Further, § 81-1508.02 provides in relevant part that
(1) [i]t shall be unlawful for any person:
....
(b) [t]o violate any ... water ... quality standards ... or limitations, any permit or license condition or limitation ... or any monitoring, reporting, or record-keeping requirements contained in or issued or entered into pursuant to the Environmental Protection Act....
....
(2) Each violation of this section ... shall subject a person to a civil penalty of no more than ten thousand dollars per day.... The amount of the penalty shall be based on the degree and extent of the violation, the size of the operation, and any economic benefit derived from noncompliance.
Finally, § 81-1509 provides that "[a]n appeal may be taken from any final decision of the director, and the appeal shall be in accordance with the Administrative Procedure Act."
The State asserts that the mandates of § 81-1507(1), specifically, the requirement to issue a complaint, apply only when the director of the DEQ decides to enforce alleged EPA violations by administrative action. The State argues that in the instant case, the director of the DEQ chose to enforce the alleged EPA violations by instituting a judicial action, seeking the recovery of a civil penalty pursuant to § 81-1508.02. Because § 81-1508.02 contains no facial requirement that the State issue a complaint to the alleged violator, the State claims that the district court did have subject matter...
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...CWA, "the source of many of the provisions found in [the NEPA]," to guide its interpretation of the NEPA. State ex rel. Wood v. Fisher Foods, Ltd., 581 N.W.2d 409, 415 (Neb. 1998). 18. "Except as in compliance with this section and sections 1312, 1316, 1317, 1328, 1342, and 1344 of this tit......
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...exists that amendment will correct the defect. Vanice v. Oehm, 255 Neb. 166, 582 N.W.2d 615 (1998); State ex rel. Wood v. Fisher Foods, 254 Neb. 982, 581 N.W.2d 409 (1998). II. FACTUAL The operative petitions in both of these actions contain similar factual allegations, which we summarize h......
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