Lingenfelter v. Lower Elkhorn NRD
Neb.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
07/08/2016 09:06 AM CDT
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Nebraska Supreme Court A dvance Sheets
294 Nebraska R eports
LINGENFELTER v. LOWER ELKHORN NRD
Cite as 294 Neb. 46
Burton P. Lingenfelter, appellant,
v. Lower Elkhorn Natural
R esources District, appellee.
___ N.W.2d ___
Filed July 8, 2016. No. S-14-1112.
1. Administrative Law: Judgments: Appeal and Error. A judgment or
final order rendered by a district court in a judicial review pursuant to
the Administrative Procedure Act may be reversed, vacated, or modified
by an appellate court for errors appearing on the record. When review-
ing an order of a district court under the Administrative Procedure Act
for errors appearing on the record, the inquiry is whether the decision
conforms to the law, is supported by competent evidence, and is neither
arbitrary, capricious, nor unreasonable.
2. Judgments: Appeal and Error. An appellate court, in reviewing a dis-
trict court’s judgment for errors appearing on the record, will not substi-
tute its factual findings for those of the district court where competent
evidence supports those findings.
3. ____: ____. Whether a decision conforms to law is by definition a
question of law, in connection with which an appellate court reaches a
conclusion independent of that reached by the lower court.
4. Administrative Law: Statutes: Appeal and Error. To the extent that
the meaning and interpretation of statutes and regulations are involved,
questions of law are presented which an appellate court decides indepen-
dently of the decision made by the court below.
5. Constitutional Law: Ordinances: Appeal and Error. The constitution-
ality of an ordinance presents a question of law, in which an appellate
court is obligated to reach a conclusion independent of the decision
reached by the trial court.
6. Constitutional Law: Statutes: Appeal and Error. The constitutionality
of a statute presents a question of law, which an appellate court indepen-
dently reviews.
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LINGENFELTER v. LOWER ELKHORN NRD
Cite as 294 Neb. 46
7. Constitutional Law: Administrative Law: Natural Resources
Districts: Appeal and Error. The constitutionality of a rule adopted by
a natural resources district presents a question of law, which an appellate
court independently reviews.
8. Administrative Law: Appeal and Error. A district court, in applying
a de novo standard of review, can consider and may give weight to the
fact that the hearing officer observed the witnesses and accepted one
version of the facts rather than another.
9. Estoppel. The doctrine of equitable estoppel applies where, as a result
of conduct of a party upon which another person has in good faith
relied to one’s detriment, the acting party is absolutely precluded, both
at law and in equity, from asserting rights which might have other-
wise existed.
10. Administrative Law: Natural Resources Districts: Words and
Phrases. A natural resource district is not an agency within the meaning
of the Administrative Procedure Act, Neb. Rev. Stat. § 84-901 et seq.
(Reissue 2014).
11. Constitutional Law: Due Process. Substantive due process requires
a determination whether a right in which the plaintiff has a legitimate
property interest is at issue and, if it is, whether that right was unconsti-
tutionally taken from the plaintiff.
12. Due Process: Property: Public Health and Welfare. To establish a
substantive due process violation, the government’s land-use regulation
must be clearly arbitrary and unreasonable, having no substantial rela-
tion to the public health, safety, morals, or general welfare.
13. Constitutional Law: Equal Protection. The Nebraska Constitution
and the U.S. Constitution have identical requirements for equal protec-
tion challenges.
14. Equal Protection. The Equal Protection Clause requires the government
to treat similarly situated people alike.
15. ____. The Equal Protection Clause does not forbid classifications; it
simply keeps governmental decisionmakers from treating differently
persons who are in all relevant respects alike.
16. Legislature: Equal Protection. If a legislative classification involves
either a suspect class or a fundamental right, courts will analyze the
classification with strict scrutiny.
17. Equal Protection: Words and Phrases. A suspect class is one that has
been saddled with such disabilities or subjected to such a history of pur-
poseful unequal treatment as to command extraordinary protection from
the majoritarian political process.
18. Equal Protection. When a classification created by state action does
not jeopardize the exercise of a fundamental right or categorize because
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LINGENFELTER v. LOWER ELKHORN NRD
Cite as 294 Neb. 46
of an inherently suspect characteristic, the Equal Protection Clause
requires only that the classification rationally further a legitimate
state interest.
19. Equal Protection: Proof. Under the rational basis test, whether an equal
protection claim challenges a statute or some other government act or
decision, the burden is upon the challenging party to eliminate any rea-
sonably conceivable state of facts that could provide a rational basis for
the classification.
20. Equal Protection. Under the rational basis test, the Equal Protection
Clause is satisfied as long as (1) there is a plausible policy reason for
the classification, (2) the legislative facts on which the classification
is based may rationally have been considered to be true by the gov-
ernmental decisionmaker, and (3) the relationship of the classification
to its goal is not so attenuated as to render the distinction arbitrary
or irrational.
Appeal from the District Court for Madison County: James
G. Kube, Judge. Affirmed.
Stephen D. Mossman, Joshua E. Dethlefsen, and Ryan K.
McIntosh, of Mattson Ricketts Law Firm, for appellant.
David A. Dudley and Colin A. Mues, of Baylor, Evnen,
Curtiss, Grimit & Witt, L.L.P., for appellee.
Heavican, C.J., Wright, Connolly, McCormack, Miller-
Lerman, Cassel, and Stacy, JJ.
Cassel, J.
I. INTRODUCTION
A natural resources district ordered a farmer to stop irrigat-
ing Dunaway Farm, because the district’s rules prohibited use
of ground water for new irrigated acres within the district’s
management area without a variance. The farmer took the
matter to the district court in two ways: an appeal using the
Administrative Procedure Act (APA)1 and a declaratory judg-
ment action challenging the constitutionality of several of
the district’s rules. The farmer lost on both claims and now
1
Neb. Rev. Stat. § 84-901 et seq. (Reissue 2014).
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LINGENFELTER v. LOWER ELKHORN NRD
Cite as 294 Neb. 46
appeals to this court. On the APA appeal, we find no errors on
the record. And because the rules are constitutional, summary
judgment denying declaratory relief was correct. We affirm the
district court’s judgment.
II. BACKGROUND
Burton P. Lingenfelter farms in Pierce County, Nebraska.
He owns and operates Dunaway Farm and three other par-
cels of land in its immediate vicinity, one of which is called
Rehfeld Farm. Dunaway Farm and Rehfeld Farm are located
within the jurisdiction of the Lower Elkhorn Natural Resources
District (District).
The District’s rules contain restrictions on ground water
irrigation. Within the district, land may not be irrigated unless
it qualifies as a “Historically Irrigated Acre” or it has been
granted a variance. Historically Irrigated Acres include those
classified as irrigated by the county assessor between 1999
and 2008.
Before 2010, Dunaway Farm was not irrigated or classi-
fied as irrigated. Beginning in 2010, Lingenfelter used the
well on Rehfeld Farm to irrigate Dunaway Farm. In 2013, the
District sent Lingenfelter a letter notifying him that Dunaway
Farm did not constitute Historically Irrigated Acres and that
it would issue him a cease-and-desist letter if he continued to
irrigate it. After a hearing, the District ordered Lingenfelter to
cease and desist irrigating Dunaway Farm.
Lingenfelter appealed to the district court, seeking judi-
cial review of the District’s decision and filing a declaratory
judgment action challenging the constitutionality of several
of the District’s rules related to irrigation. The district court
affirmed the District’s decision and sustained the District’s
motion for summary judgment in the declaratory judgment
action. Lingenfelter filed the instant appeal. We moved the case
to our docket.2
2
Neb. Rev. Stat. § 24-1106(3) (Reissue 2008).
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LINGENFELTER v. LOWER ELKHORN NRD
Cite as 294 Neb. 46
1. Statutory Background
This appeal involves challenges to the District’s rules and
the actions it took pursuant to those rules. We first review the
legislation that authorized the District to adopt its rules.
(a) Natural Resources Districts
In 1969, the Nebraska Legislature created the State’s natural
resources districts (NRDs).3 The Legislature has declared that
NRDs are political subdivisions of the State,4 and it has set out
12 “purposes of natural resources districts.”5 The sixth purpose,
“development, management, utilization, and conservation of
ground water and surface water,” is the most relevant in the
instant case.6
(b) Nebraska Ground Water Management
and Protection Act
In 1975, The Legislature provided NRDs with authority
to manage and conserve ground water through the Nebraska
Ground Water Management and Protection Act (Act).7 In the
Act’s “Declaration of intent and purpose” provision,8 which
has been amended over time, the Legislature emphasized the
importance of ground water to the welfare of Nebraskans and
the NRDs’ role in protecting it. The Legislature stated that
“ground water is one of the most valuable natural resources
in the state, and that an adequate supply of ground water is
3
Neb. Rev. Stat. § 2-3201 (Reissue 2012).
4
Neb. Rev. Stat. § 2-3213 (Reissue 2012).
5
Neb. Rev. Stat. § 2-3229 (Reissue 2012).
6
Id.
7
Neb. Rev. Stat. §§ 46-701 to 46-756 (Reissue 2010 & Cum. Supp. 2014).
See Carl A.P. Fricke & Darryll T. Pederson, Ground-Water Resource
Management in Nebraska, 17 Ground Water 544 (1979) (brief overview
of development of ground water irrigation in Nebraska and Act’s original
provisions).
8
§ 46-702.
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essential to the general welfare of the citizens of this state
and to the present and future development of agriculture in
the state.”9 It also found that “the management, protection,
and conservation of ground water and the reasonable and
beneficial use thereof are essential to the economic prosper-
ity and future well-being of the state,” and it found that “the
public interest demands procedures for the implementation of
management practices to conserve and protect ground water
supplies and to prevent the contamination or inefficient or
improper use thereof.”10
The Act grants NRDs certain powers “to administer and
enforce the [Act] and to effectuate the policy of the state to
conserve ground water resources.”11 One section authorizes
NRDs to take certain steps in any area within their jurisdic-
tion. Relevant to this appeal, it provides that whether or not
any portion of a district has been designated as a “management
area,” an NRD may:
(b) Require such reports from ground water users as
may be necessary;
(c) Require the reporting of water uses and irrigated
acres by landowners and others with control over the
water uses and irrigated acres for the purpose of certifica-
tion by the district;
....
(h) Issue cease and desist orders, following three
days’ notice to the person affected stating the contem-
plated action and in general the grounds for the action
and following reasonable opportunity to be heard, to
enforce any of the provisions of the act or of orders
or permits issued pursuant to the act, to initiate suits
to enforce the provisions of orders issued pursuant to
9
Id.
10
Id.
11
§ 46-707(1).
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LINGENFELTER v. LOWER ELKHORN NRD
Cite as 294 Neb. 46
the act, and to restrain the construction of illegal water
wells or the withdrawal or use of water from illegal
water wells.12
Another provision authorizes NRDs to take additional steps in
what were once designated “control areas,” “special protection
areas,” and “management areas,” and are now called simply,
management areas.
Originally, the Legislature contemplated only the estab-
lishment of control areas. In the first version of the Act,
the Director of Water Resources, who is now called the
Director of Natural Resources (Director), played a large role
in establishing control areas. NRDs began the process of
designation by requesting that the Director hold a hearing on
the matter.13 After the hearing, the Director could declare an
area to be a control area if he or she determined that there
was “an inadequate ground water supply to meet present
or reasonably foreseeable needs for beneficial use of such
water supply.”14
If a control area was established, the NRD would hold
another public hearing to determine which controls to imple-
ment within the area.15 The NRD could choose from a list of
authorized controls:
(a) It may determine the permissible total withdrawal
of ground water in the designated control area for each
day, month, or year, and allocate such withdrawal among
the ground water users within the area;
(b) It may adopt and enforce a system of rotation for
use of ground water in the control area;
(c) It may adopt well-spacing requirements more
restrictive than those found in Chapter 46, article 6; and
12
Id.
13
Neb. Rev. Stat. § 46-658(2) (Reissue 1978).
14
§ 46-658(1).
15
Neb. Rev. Stat. § 46-664 (Reissue 1978).
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LINGENFELTER v. LOWER ELKHORN NRD
Cite as 294 Neb. 46
(d) It may adopt such other reasonable regulations as
are necessary to carry out the intent of [the Act].16
The controls chosen by the NRD were subject to the approval
of the Director.17
In the early 1980’s, the Legislature amended the Act and
gave NRDs the authority to establish management areas within
their jurisdictions. Under these new provisions, establish-
ing a management area began when an NRD prepared a
“management plan.” Every NRD was required to prepare a
management plan that included recommended ground water
management objectives and controls and identified a variety
of considerations within its jurisdiction, including available
ground water supplies, recharge rates, precipitation rates, and
crop water needs.18
NRDs had to request public comments during their prepa-
rations of the plans and submit the plans to the Director for
review.19 But whether or not the Director approved the plan,
the NRD could hold a public hearing to propose establish-
ing a management area pursuant to the plan.20 All interested
persons could present testimony at the hearing, and then the
NRD decided whether or not a management area should be
established.21 If an NRD established a management area, it
was then required to “adopt one or more controls to be utilized
within the area in order to achieve the ground water reser-
voir life goal specified in the plan.”22 The controls authorized
were essentially the same as those controls authorized in con-
trol areas.23
16
Neb. Rev. Stat. § 46-666(1) (Reissue 1978).
17
Id.
18
Neb. Rev. Stat. § 46-673.01 (Reissue 1984).
19
Neb. Rev. Stat. §§ 46-673.02 and 46-673.03 (Reissue 1984).
20
Neb. Rev. Stat. § 46-673.04 (Reissue 1984).
21
Neb. Rev. Stat. § 46-673.05 (Reissue 1984).
22
Neb. Rev. Stat. § 46-673.06 (Reissue 1984).
23
§ 46-666 and Neb. Rev. Stat. § 46-673.09 (Reissue 1984).
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Nebraska Supreme Court A dvance Sheets
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LINGENFELTER v. LOWER ELKHORN NRD
Cite as 294 Neb. 46
In 1986, the Legislature amended the Act again, this time
protecting ground water quality by authorizing special protec-
tion areas within NRDs.24 The Legislature originally gave the
Department of Environmental Control the power to establish
these areas.25 If it did so, then the NRDs within the boundaries
of the area were required to prepare action plans “designed to
stabilize and reduce the level [of contaminants] and prevent
the increase or spread of ground water contamination.”26 The
Department of Environmental Control would then approve or
deny the plan.27 The Act authorized NRDs to adopt protective
measures within these areas, including requiring educational
programs and best management practices.28
In 1996, the Legislature undertook a major revision of the
Act. For the first time, the Act recognized that ground water
and surface water may be hydrologically connected and that
hydrologically connected ground water and surface water may
need to be managed differently from other water.29
The 1996 amendments also combined control areas, man-
agement areas, and special protection areas under the single
category of management area.30 NRDs still had the power
to establish management areas and adopt controls within
those areas, after holding public hearings.31 And the author-
ity previously given to NRDs in either control areas, spe-
cial protection areas, or management areas, was consolidated
24
1986 Neb. Laws, L.B. 894.
25
Neb. Rev. Stat. § 46-674.07 (Cum. Supp. 1986).
26
Neb. Rev. Stat. § 46-674.08(1) (Cum. Supp. 1986).
27
Neb. Rev. Stat. § 46-674.10 (Cum. Supp. 1986).
28
Neb. Rev. Stat. § 46-674.09 (Cum. Supp. 1986).
29
Neb. Rev. Stat. § 46-656.05(1) and (2) (Reissue 1998).
30
See Neb. Rev. Stat. § 46-656.12 (Reissue 1998) (“[i]f a control area,
management area, or special ground water quality protection area has been
designated in a district prior to July 19, 1996, the area shall be designated
a management area . . . .”).
31
Neb. Rev. Stat. §§ 46-656.14, 46-656.19, and 46-656.20 (Reissue 1998).
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LINGENFELTER v. LOWER ELKHORN NRD
Cite as 294 Neb. 46
into one provision.32 Within management areas, NRDs now
had the power to allocate total ground water withdrawal,
adopt a system for the rotation of the use of ground water,
require well-spacing, require installation of devices for meas
uring ground water withdrawals, adopt a system requiring
the reduction of irrigated acres, require best management
practices, require analysis of water and deep soils, require
mandatory educational requirements, and require water qual-
ity monitoring.33
The process for establishing management areas and the
consolidated authority granted to NRDs within those areas
remain in the Act today. The current version of the Act
empowers NRDs to establish management areas to accom-
plish one or more of the following objectives: “(a) Protection
of ground water quantity; (b) protection of ground water
quality; or (c) prevention or resolution of conflicts between
users of ground water and appropriators of surface water,
which ground water and surface water are hydrologi-
cally connected.”34
The Legislature has continued to amend the Act to pro-
vide NRDs additional authority within management areas.
One relevant addition occurred in 2001, when the Legislature
gave NRDs the power to “limit or prevent the expansion
of irrigated acres.”35 After further amendments, this provi-
sion now provides that an NRD may “limit or prevent the
expansion of irrigated acres or otherwise limit or prevent
increases in the consumptive use of ground water withdraw-
als from water wells used for irrigation or other benefi-
cial purposes.”36
32
Neb. Rev. Stat. § 46-656.25 (Reissue 1998).
33
Id.
34
§ 46-712(1).
35
2001 Neb. Laws, L.B. 135.
36
§ 46-739(1)(f).
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LINGENFELTER v. LOWER ELKHORN NRD
Cite as 294 Neb. 46
2. District’s Rules
Pursuant to its authority under the Act, the District has
established a management area that encompasses the entire
area of the District, and it has adopted a scheme of rules to
manage and conserve ground water within its boundaries.
Lingenfelter challenges the District’s rule 14. To provide con-
text for our analysis of rule 14, we also explain two of the
District’s definitions and its rules 13 and 15.
The District’s rules separate irrigated land into two cat-
egories: Historically Irrigated Acres and “New Groundwater
Irrigated Acres.” The District defines a Historically Irrigated
Acre as
any acre of land watered for the purposes of agricul-
tural irrigation purposes from a legal well or a Nebraska
Department of Natural Resources permitted surface water
source that: (1) was classified as irrigated land for any
one year between January 1, 1999 and December 31,
2008 by the local County Assessor; or (2) is currently
enrolled in a federal, state, or local conservation program
and was classified as irrigated land by the local County
Assessor within one year prior to being enrolled in such
program; and (3) [additional rule not relevant here].
It defines a New Groundwater Irrigated Acre as “any ground-
water irrigated acre that does not qualify as a Historically
Irrigated Acre,” with two exceptions not relevant here. In some
of the District’s communications with Lingenfelter, it used
“New Irrigated Acre,” rather than “New Groundwater Irrigated
Acre.” “New Irrigated Acre” is not defined in the District’s
rules, and it appears that the District has used the term inter-
changeably with “New Groundwater Irrigated Acre.”
The distinction between Historically Irrigated Acres and
New Groundwater Irrigated Acres is essential to the District’s
rules 13 and 15. Rules 13 and 15 prohibit the creation of
any New Groundwater Irrigated Acres anywhere within the
District—i.e., they permit irrigation of only Historically
Irrigated Acres.
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LINGENFELTER v. LOWER ELKHORN NRD
Cite as 294 Neb. 46
Rule 13 appears to have been adopted in 2009, and it applies
to the District’s “Hydrologically Connected Area.” Rule 13.3
states: “New Groundwater Irrigated Acre Limitation. Effective
immediately, there shall be no New Groundwater Irrigated
Acres within the Hydrologically Connected Area without a
variance. Such activity is strictly prohibited, either from an
existing well or a new well, unless approved by the District
pursuant to this RULE 13.”
Rule 15 applies a similar limitation in the District’s “Non-
10/50 Area,” which the rule defines as the area outside the
boundaries of the District’s Hydrologically Connected Area.
It provides: “New Groundwater Irrigated Acre Limitation.
Effective immediately, there shall be no New Groundwater
Irrigated Acres within the Non-10/50 Area without a variance.
Such activity is strictly prohibited, either from an existing well
or a new well, unless approved by the District pursuant to this
RULE 15.” It is not clear from the provisions of rule 15 when
it was adopted.
Rule 14 became effective in 2012 and governs the process
of “certify[ing] the number and location of irrigated acres in
the District.” One of its provisions explains its purpose: “One
of the primary goals for the certification of acres is, upon
completion of the certification process, to allow irrigation of
agricultural lands with ground water only on acres classified
as Certified Irrigated Acres within the District.”
Rule 14 provides that the District will begin the certifica-
tion process by “collect[ing] and organiz[ing] data to iden-
tify those acres actually irrigated for agricultural purposes
within the District, including Historically Irrigated Acres and
any other irrigated tract of two acres or more, regardless of
the source of water.” The District must then use this data
“to make a preliminary finding of those acres qualifying as
Certified Irrigated Acres.” A tract can be certified as irrigated
acres if it
(1) has been actually irrigated any one out of ten years
from 1999 to 2008, (2) is currently enrolled in a federal,
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state, or local conservation program and was classified
as irrigated land by the local County Assessor within
one year prior to being enrolled in such program, (3) has
otherwise been allowed to develop under an approval
granted by the Board since 2007, (4) has otherwise been
allowed to develop under . . . an approval granted by
the Department since 2007, or (5) is irrigated from a
lagoon constructed in compliance with a Clean Water
Act permit.
After the preliminary finding process is complete, the
District’s board of directors (Board) must hold one public
hearing to receive testimony and evidence on its “proposed
final determination.” After that hearing, the Board must “cer-
tify those acres deemed to qualify as Certified Irrigated Acres
within the District.” At the time of the cease-and-desist hear-
ing at issue in the instant case (cease-and-desist hearing), final
certification in the district had not yet occurred.
With this statutory and regulatory framework in mind, we
now review the relevant factual background.
3. R elevant Parcels
Lingenfelter owns Dunaway Farm and Rehfeld Farm, and
two other parcels nearby. Dunaway Farm, the property sub-
ject to the cease-and-desist order at issue, is located in the
Hydrologically Connected Area of the District. It has no irri-
gation well because the land “has very poor formations for
wells.” Rehfeld Farm is situated immediately diagonally oppo-
site Dunaway Farm. It has a well registered with the Nebraska
Department of Natural Resources (Department) to irrigate 125
acres. One of the other two parcels also contains two wells.
Lingenfelter and his mother purchased Rehfeld Farm in 2008
for the purpose of using its well to irrigate his three other
parcels in the area. He began using the Rehfeld Farm well to
irrigate Dunaway Farm in 2010.
In September 2013, the District sent Lingenfelter a let-
ter notifying him that it would order him to cease and desist
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irrigating Dunaway Farm because the tract constituted “New
Irrigated Acres.” The notification letter explained that in 2008,
the District imposed a stay on the irrigation of any New
Irrigated Acres without a variance and that “a variance was
required before developing New Irrigated Acres under either
a new or an existing well.” It stated that the District’s records
indicated that Lingenfelter was not granted a variance and
that Dunaway Farm did not constitute Historically Irrigated
Acres under District rules. Thus, irrigation of Dunaway Farm
was prohibited.
The letter informed Lingenfelter that he could request a
hearing on the matter before the Board. Lingenfelter requested
the cease-and-desist hearing.
The letter also included a copy of the District’s rule 14
to “explain the [District’s] process for certifying irrigated
acres.” It did not state that the District was applying rule 14 to
Lingenfelter’s acres.
4. District’s Actions
(a) Rule 14 Preliminary Finding
After Lingenfelter received the cease-and-desist notifica-
tion letter, he submitted to the District an application to certify
Dunaway Farm under rule 14. He requested that the Board
consider certifying Dunaway Farm under rule 14 at his cease-
and-desist hearing. Counsel for the District responded and
stated that he would forward the certification application to the
District. But he clarified that the District was not completing
the certification process on a piecemeal basis. He explained
that pursuant to rule 14, the District would complete a prelimi-
nary determination and later certify the eligible parcels within
the entire District.
About 1 week before the cease-and-desist hearing, the
District issued Lingenfelter a letter explaining its rule 14
preliminary finding for Dunaway Farm. It stated, in rel-
evant part:
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After reviewing information available to us, we have
made a preliminary finding that the above referenced
parcel of land was not irrigated anytime between 1999
and 2008. This means that no portion of this parcel qual-
ifies as Historically Irrigated Acres as the term is defined
under the District’s Groundwater Management Rules and
Regulations; that this parcel will not be included in
the staff recommendation for Certified Irrigated Acres
pursuant to Rule 14.4; and that the parcel cannot be
irrigated without you first obtaining a variance from
the [District].
We considered information from the Pierce County
Assessor’s Office and our own information of District
approved variances to make our preliminary finding of no
Historically Irrigated Acres for this land.
(b) Cease-and-Desist Hearing
Lingenfelter’s testimony at the cease-and-desist hearing
focused on two main topics: (1) whether Dunaway Farm was
irrigated between 1999 and 2008 and (2) his efforts to irrigate
Dunaway Farm after 2008.
(i) Irrigation Between
1999 and 2008
Lingenfelter was questioned about whether irrigation
occurred on Dunaway Farm between 1999 and 2008 and
therefore qualified the land as historically irrigated. When
the District’s attorney directly asked Lingenfelter whether he
irrigated Dunaway Farm in those years, he answered, “Yes.”
He explained that he used sprinklers with a livestock well
and that he used sprinklers when he planted forage crops on
the tract. He said, “I did not do an effective job watering at
all, but, yes, there was water there.” However, when pressed
about how much irrigation actually took place, Lingenfelter
was vague. He said that he was unsure about how many acres
he actually irrigated, and when asked for a rough idea, he
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said, “I’m not going there.” When asked whether he had any
documentation to substantiate the irrigation, he responded that
he had witnesses, but that “[t]his [was] not the direction I
want[ed] to go.”
Later, while being questioned by members of the Board,
Lingenfelter admitted that prior to 2010, Dunaway Farm was
not irrigated.
(ii) Irrigation After 2008
Lingenfelter testified that it was his understanding that after
purchasing Rehfeld Farm, he could use its well as he pleased.
He said that he believed that he had the ability to do so because
“there hadn’t been any indication that [he] couldn’t prior to
that.” He explained that he “had developed well projects,”
“piped water,” and “used crossroads” in the past.
Lingenfelter described a 2009 meeting with a District staff
member where he discussed his plan to use the Rehfeld Farm
well to irrigate Dunaway Farm. At this meeting, Lingenfelter
and the staff member added up the acres available under
the well registrations for the three wells and noted that
they totaled 385 acres. Lingenfelter testified that because he
planned to irrigate only 285 acres, he “felt that this project
was not an issue.” He therefore proceeded with his prepa-
rations to use Rehfeld Farm well to irrigate the surround-
ing parcels.
Because Lingenfelter claims that he received preapproval
to irrigate Dunaway Farm in this meeting, we set out his testi-
mony below:
A[.] And so when I purchased [Rehfeld Farm], I imple-
mented a plan of I started with Hauptman Construction
in preparing the property to run the pipe across and get
the property ready to go. So the first thing I did was
determine that the well was in good standing and capa-
ble, and it was. And in 2009, the spring of 2009 — well,
they came out with a moratorium later that year in ’08.
We had a discussion in December. And I had purchased
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some other property. I came to the office here, in that
room over there. I was discussing additional property.
I felt that I should have the ability to continue on that.
And I mentioned this project. The staff member handed
me the registrations and did the math. We calculated that
there was 385 acres registered under these three wells
and my project would not need that many. So at that
point in time, I deemed this wasn’t an issue. I kept in
contact with the staff, looking for a variance for a dif-
ferent property. But because of developing these other
properties, I did not have the financial means to apply
for the other variance because I didn’t think I could get it
done and financially get it done in the time. So I was in
contact with staff the whole time. I did not know, since I
was not filing for a well permit and had plenty of acres,
I was not — did not think I had a problem.
So I connected these wells together and I utilized all
three wells irrigating [Dunaway Farm].
....
Q[.] So then when you — you said you went to the
[District] staff in early 2009, is that right?
A[.] Correct.
Q[.] And who did you meet with?
A[.] I’m not exactly sure so I’m not going to say.
Q[.] And what — with respect to these parcels, what
did you discuss?
A[.] I discussed this project that I was doing and I had
not — and we looked up the registrations on the three
wells, used a calculator, added up the acres that was [sic]
available under the registrations and came up to 385. I
knew that I was not going to irrigate that many acres of
ground, and at that point I felt that this project was not
an issue. I had another property I was looking for a well
permit and that was the main title of discussion. It was
what to do for an extra permit and there were no answers
at that time.
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Q[.] If you would add the Rehfeld [Farm], [third par-
cel], [fourth parcel], and Dunaway [Farm] together, how
many acres do you come up with?
A[.] Around 285 irrigated.
Q[.] And that includes the 41.89 acres that you’re seek-
ing to irrigate in the Dunaway [Farm]?
A[.] Correct.
Q[.] So after receiving those assurances from the
[District] staff in early 2009, what did you do after that?
A[.] I proceeded with the dirt work and the preparation
for the project.
Lingenfelter eventually completed the project connecting
the Rehfeld Farm well to Dunaway Farm in 2010. He testified
that he used the tied wells to irrigate Dunaway Farm in 2010
through 2013.
(c) Cease-and-Desist Order
At the conclusion of the hearing, counsel for the District
emphasized that “the sole determination for the Board tonight is
in determining whether or not the subject matter property qual-
ifies as [H]istorically [I]rrigated [A]cres. That is all the Board
really needs to determine.” He also stated that the District has
issued cease-and-desist orders in similar circumstances. He
said: “There have been, in just the past couple months, I don’t
know, the last — I should say six to nine months, I believe two
to three issues where a cease and desist order was necessary for
purposes of individuals irrigating ground that didn’t qualify as
[H]istorically [I]rrigated [A]cres.”
The Board voted nine to one, with two abstaining, to order
Lingenfelter to cease and desist irrigating Dunaway Farm.
The order noted that Lingenfelter was irrigating Dunaway
Farm and explained that the District “prohibits the use of
groundwater for new irrigated acres within the [D]istrict’s
ground water management area without an approved variance
from” the District. It did not mention certification of acres or
rule 14.
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5. District Court
(a) Lingenfelter’s Claims
Following the issuance of the cease-and-desist order,
Lingenfelter filed a petition in the district court. His petition
included two causes of action.
In his first cause of action, Lingenfelter requested judicial
review of the District’s decision to issue the cease-and-desist
order. His petition argued that the issuance of the cease-and-
desist order was contrary to the law and facts introduced at
the hearing. He apparently made several arguments to support
this assertion in his brief to the district court, which is not in
our record. Our review of the district court’s order reveals
that Lingenfelter argued that (1) he received preapproval from
District staff to irrigate Dunaway Farm and that the District
should be estopped from taking a position contrary to its staff’s
approval, (2) the District “‘misapplied’ its own rules in ‘deter-
mining that [his] land was not considered “irrigated” acres’”
under the District’s rules, and (3) the provision in rule 14 that
allows a tract irrigated between 1999 and 2008 to be certified
(look-back provision) is arbitrary and capricious.
In the second cause of action, Lingenfelter requested a
declaratory judgment that the District’s rule 14 and its rule
defining Historically Irrigated Acres violate his due process
and equal protection rights under the Nebraska Constitution
and that they exceed the District’s statutory authority.
(b) Disposition of Claim
for Judicial Review
First, the district court rejected Lingenfelter’s estoppel
claim. It concluded that the evidence was insufficient to con-
clude that Lingenfelter received preapproval to irrigate from
District staff. Rather, Lingenfelter’s testimony showed that
“he thought that the Dunaway Farm could be irrigated with
the other wells based on his own subjective feelings about
how this [2009] conversation [with the District staff mem-
ber] went.”
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Second, the district court rejected Lingenfelter’s claim
that the Board “‘misapplied’ its own rules in ‘determin-
ing that [his] land was not considered “irrigated” acres.’”
The District’s rule 2.1.31 defines “Irrigated [A]cre” to mean
“any acre that is certified as such pursuant to Rules and
Regulations of the District and that is actually capable of
being supplied with water through irrigation works, mecha-
nisms, or facilities.” Apparently, Lingenfelter argued that (1)
the District applied its Irrigated Acres definition to him and
(2) because the final rule 14 certification has not taken place,
the district court should disregard the first portion of the
Irrigated Acre definition and conclude that Dunaway Farm
constitutes Irrigated Acres because it is capable of being sup-
plied with water.
The district court concluded that the Board never deter-
mined whether Dunaway Farm constituted Irrigated Acres.
Rather, the District issued the cease-and-desist order because
Dunaway Farm did not constitute Historically Irrigated Acres
and because Lingenfelter had not requested a variance. Thus,
Lingenfelter’s argument could not “be applied to the Board’s
actual basis for the issuance of the Cease and Desist Order.”
Third, the district court rejected Lingenfelter’s argument that
rule 14’s look-back provision is arbitrary and capricious. It first
observed that “[t]his argument is convoluted and misplaced.”
It then concluded that Lingenfelter was not arguing that the
10-year timespan itself was unconstitutional; rather, he was
challenging the Board’s decision “to promulgate, vote upon,
and incorporate Rule 14 into its regulations.” The court con-
cluded that the record before it was insufficient “to review the
process by which Rule 14 of the [District’s] rules and regula-
tions [came] into existence.”
Having disposed of all of Lingenfelter’s arguments, the
district court concluded that the Board’s decision to issue the
cease-and-desist order was supported by the facts and evi-
dence in the record, and it affirmed the Board’s decision in
its entirety.
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(c) Disposition of Declaratory
Judgment Action
In this cause of action, Lingenfelter claimed that his rights
to due process and equal protection were violated by rule
14. The parties filed cross-motions for summary judgment,
and neither party presented additional evidence outside of the
District’s record.
Lingenfelter claimed that rule 14’s look-back provision,
which allows land that was “actually irrigated any one out
of ten years from 1999 to 2008” to be certified as irrigated,
violates his right to due process. The court disagreed and
concluded that “[b]ased on the effects of recent periods of
drought on the availability of ground water for irrigation,” the
look-back provision is not arbitrary and capricious. It did not
provide a citation to the record indicating where it found infor-
mation relating to “the effects of recent periods of drought.”
The court also rejected Lingenfelter’s arguments regarding
equal protection. It overruled Lingenfelter’s motion for sum-
mary judgment and sustained the District’s motion for sum-
mary judgment.
III. ASSIGNMENTS OF ERROR
Lingenfelter assigns 11 errors, but he combines several
of them for argument in his brief. He claims, restated and
consolidated, that the district court erred in (1) finding that
the evidence was insufficient to conclude that he received
prior approval from District staff to irrigate Dunaway Farm,
(2) failing to estop the District from issuing a cease-and-
desist order, (3) finding that Dunaway Farm was not irrigated
under the District’s rules and regulations, (4) finding that the
cease-and-desist order did not equate to a determination that
Dunaway Farm had no Historically Irrigated Acres, (5) find-
ing that rule 14 does not violate his due process and equal
protection rights, (6) finding that the District’s decision to
issue the cease-and-desist order did not violate his right to
equal protection, (7) relying on evidence not in the record,
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and (8) misunderstanding his argument that rule 14 is arbitrary
and capricious.
IV. STANDARD OF REVIEW
[1,2] A judgment or final order rendered by a district court
in a judicial review pursuant to the APA may be reversed,
vacated, or modified by an appellate court for errors appearing
on the record.37 When reviewing an order of a district court
under the APA for errors appearing on the record, the inquiry is
whether the decision conforms to the law, is supported by com-
petent evidence, and is neither arbitrary, capricious, nor unrea-
sonable.38 An appellate court, in reviewing a district court’s
judgment for errors appearing on the record, will not substitute
its factual findings for those of the district court where compe-
tent evidence supports those findings.39
[3,4] Whether a decision conforms to law40 and questions
regarding the meaning and interpretation of statutes and regula-
tions41 are questions of law, which an appellate court indepen-
dently reviews.
[5-7] The constitutionality of an ordinance passed by a
political subdivision42 and the constitutionality of a statute43
present questions of law, which an appellate court indepen-
dently reviews. It follows that the constitutionality of a rule
adopted by a natural resources district presents a question of
law, which an appellate court independently reviews.
37
Aline Bae Tanning v. Nebraska Dept. of Rev., 293 Neb. 623, ___ N.W.2d
___ (2016).
38
Id.
39
Reiter v. Wimes, 263 Neb. 277,640 N.W.2d 19
(2002).
40
Shaffer v. Nebraska Dept. of Health & Human Servs., 289 Neb. 740,857 N.W.2d 313
(2014).
41
Melanie M. v. Winterer, 290 Neb. 764,862 N.W.2d 76
(2015).
42
Anthony, Inc. v. City of Omaha, 283 Neb. 868,813 N.W.2d 467
(2012).
43
J.M. v. Hobbs, 288 Neb. 546,849 N.W.2d 480
(2014).
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V. ANALYSIS
1. Judicial R eview of District
(a) Estoppel
In this section, we combine Lingenfelter’s first two assign-
ments of error. Lingenfelter claims that the district court should
have found he received preapproval to irrigate Dunaway Farm
and that it should have estopped the District from issuing the
cease-and-desist order.
Lingenfelter argues that the district court should have found
that he received preapproval to irrigate, because his testimony
regarding his conversation with a District staff member was
“‘uncontroverted’” and because he was entitled to inferences
in his favor on summary judgment. To support his “uncontro-
verted” argument, he cites a statement we made in 1922, in the
case of Morris v. Equitable Life Assurance Society.44 We said:
“One thing is true, uncontradicted evidence which bears the
semblance of truth is entitled to be believed, and courts, as a
rule, under these circumstances take this kind of evidence for
the truth . . . .”45
First, we note that this language taken from Morris refers to
“evidence which bears the semblance of truth.” It is the duty
of the trier of fact to weigh the evidence and decide whether
it is trustworthy. We have stated that “[e]vidence not directly
contradicted is not necessarily binding on the triers of fact,
and may be given no weight where it is inherently improbable,
unreasonable, self-contradictory, or inconsistent with facts or
circumstances in evidence.”46 Thus, Morris does not reach as
far as Lingenfelter argues.
Second, Lingenfelter’s reliance on Morris is misplaced. The
district court did not indicate that it disbelieved Lingenfelter’s
44
Morris v. Equitable Life Assurance Society, 109 Neb. 348,191 N.W. 190
(1922).
45
Id. at 351,191 N.W. at 191
.
46
Teresi v. Filley, 146 Neb. 797, 804,21 N.W.2d 699, 702
(1946).
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testimony. Rather, the court found that his testimony was
insufficient to establish that he received preapproval to irrigate
Dunaway Farm. As the court observed, Lingenfelter testified
that he and the staff member used a calculator and added up
the acres available under his well registrations. He did not
testify that anyone from the District told him that he could
irrigate Dunaway Farm. Rather, he stated that after the conver-
sation, he “deemed this wasn’t an issue” and he “did not think
[he] had a problem.”
[8] Lingenfelter argues that his testimony was sufficient and
that the district court erred because it “did not give Lingenfelter
the benefit of any reasonable inferences” as summary judgment
requires.47 But Lingenfelter is applying the wrong standard
to his APA appeal. His petition for judicial review was not
before the court on his motion for summary judgment. The
motion for summary judgment applied only to his claim for a
declaratory judgment. Lingenfelter filed a petition for judicial
review pursuant to the APA. Pursuant to the APA, the district
court must review the District’s order de novo on the record.48
A district court, in applying a de novo standard of review,
can consider and may give weight to the fact that the hearing
officer observed the witnesses and accepted one version of the
facts rather than another.49 Thus, on the APA appeal, the dis-
trict court was not required to give Lingenfelter the benefit of
favorable inferences.
[9] Upon our review for errors on the record, we conclude
that Lingenfelter’s testimony supports the district court’s con-
clusion that Lingenfelter relied upon his own subjective belief
regarding the conversation, rather than any statement made
by a District staff member. And because the court properly
47
Brief for appellant at 18.
48
§ 84-917(5)(a).
49
Vinci v. Nebraska Dept. of Corr. Servs., 253 Neb. 423,571 N.W.2d 53
(1997), disapproved on other grounds, Betterman v. Department of Motor
Vehicles, 237 Neb. 178,728 N.W.2d 570
(2007).
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reached this conclusion, it did not err by declining to address
Lingenfelter’s estoppel argument. The doctrine of equitable
estoppel applies where, as a result of conduct of a party upon
which another person has in good faith relied to one’s detri-
ment, the acting party is absolutely precluded, both at law
and in equity, from asserting rights which might have other-
wise existed.50 Lingenfelter did not rely upon conduct of the
District, and he cannot not rely upon equitable estoppel.
(b) Irrigated Acres
Lingenfelter next contends that “[i]n determining that
the Dunaway Farm was not ‘Irrigated Acres’, the [d]istrict
[c]ourt affirmed the Board’s misapplication of its Rules.”51
He claims that “the issuance of the Cease and Desist Order to
Lingenfelter used the incorrect definition of ‘Irrigated Acre’
apparently requiring Lingenfelter to actually have had his irri-
gated acres ‘certified’.”52
First, we note that Lingenfelter mischaracterizes the district
court’s finding. The district court did not find that “Dunaway
Farm was not ‘Irrigated Acres.’” Rather, it found that the
District “never made a determination that the Dunaway Farm
did or did not constitute Irrigated Acres.” It concluded that the
District issued the cease-and-desist order because Dunaway
Farm did not constitute Historically Irrigated Acres and
Lingenfelter had not obtained a variance. Based on this find-
ing, the district court concluded that “Lingenfelter’s [Irrigated
Acres] argument cannot be applied to the Board’s actual basis
for the issuance of the Cease and Desist Order.”
Second, we conclude that the district court’s finding is
supported by competent evidence. Neither the notification
letter nor the ultimate cease-and-desist order states that the
District applied the Irrigated Acres definition to Dunaway
50
Inner Harbour Hospitals v. State, 251 Neb. 793,559 N.W.2d 487
(1997).
51
Brief for appellant at 22.
52
Id. at 24-25.
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Farm or even uses the term “Irrigated Acres.” Rather, as the
district court found, the notification letter appears to apply the
District’s rules relating to New Irrigated Acres, Historically
Irrigated Acres, and variances. Similarly, the ultimate cease-
and-desist order states that the District “prohibits the use of
groundwater for new irrigated acres within the [D]istrict’s
ground water management area without an approved variance.”
It does not mention “Irrigated Acres.”
Thus, because we uphold the district court’s finding that
the District did not apply the Irrigated Acres definition to
Dunaway Farm, Lingenfelter’s arguments on this point fail.
(c) Historically Irrigated Acres
Next, Lingenfelter makes another claim regarding the
Irrigated Acres rule. He claims that the district court “erred
in failing to consider [his] argument that the Board misap-
plied the [District’s] Rules” regarding Irrigated Acres.53 He
says that “the Board constructively determined that there were
no ‘Irrigated Acres’ or ‘Historically Irrigated Acres’ on the
Dunaway Farm” when it issued the cease-and-desist order.54
And he says that the court “specifically noted” that the Board
did not find that Dunaway Farm contained no Historically
Irrigated Acres.55
As we explained above, the district court considered and
rejected Lingenfelter’s argument that the Board misapplied
the Irrigated Acres rule. The court found that the Board
issued the cease-and-desist order because Dunaway Farm con-
tained no Historically Irrigated Acres. And it found that the
Board never made a determination regarding Irrigated Acres.
These findings were supported by the record. This argument
is meritless.
53
Id. at 26.
54
Id.
55
Id.
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2. Declaratory Judgment
(a) APA Does Not Apply
At the outset, we note that Lingenfelter purported to file
his declaratory judgment petition pursuant to both the APA
provision authorizing declaratory judgments56 and the Uniform
Declaratory Judgments Act.57 We take this opportunity to
clarify that the APA does not govern this declaratory judg-
ment action.
The APA provision authorizing declaratory judgment actions
applies only if the District is an agency under the APA. The
APA provides that “[t]he validity of any rule or regulation
may be determined upon a petition for a declaratory judgment
thereon addressed to the district court of Lancaster County
. . . .”58 And, with certain exceptions not relevant here, it
defines rule or regulation as “any rule, regulation, or standard
issued by an agency.”59
[10] NRDs are not agencies for the purposes of the APA.
The legislation authorizing the creation of the NRDs provides
that they are political subdivisions of the State of Nebraska.60
Political subdivisions do not fall within the APA’s defini-
tion of “Agency,” which provides that “Agency shall mean
each board, commission, department, officer, division, or other
administrative office or unit of the state government authorized
by law to make rules and regulations,” with certain exceptions
not relevant to this analysis.61 In the context of the State Tort
Claims Act, we have said that “state agencies are thought of as
the alter egos of the state itself, viz., ‘departments, agencies,
56
§ 84-911.
57
Neb. Rev. Stat. §§ 25-21,149 to 25-21,164 (Reissue 2008 & Cum. Supp.
2014).
58
§ 84-911(1).
59
§ 84-901(2) (emphasis supplied).
60
See § 2-3213.
61
§ 84-901(1).
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boards, bureaus, and commissions of the State of Nebraska,
and corporations whose primary function is to act as, and
while acting as, instrumentalities or agencies of the State
of Nebraska.’”62 By contrast, we have stated that a political
subdivision is a body which contemplates geographical area
and boundaries, public elections, taxing power, and a general
purpose or benefit.63 NRDs are units of local government with
defined geographical boundaries, rather than alter egos of the
state. As such, they are not agencies under the APA.
Furthermore, although the Act directs that appeals from
NRD orders are taken pursuant to the APA,64 it contains no
such provision relating to declaratory judgment actions chal-
lenging NRD rules. Therefore, the provision in the APA relat-
ing to declaratory judgments does not apply.
(b) Facial Challenge
Lingenfelter claims that the district court erred in granting
the District’s motion for summary judgment as to his consti-
tutional claims, because “[o]n their face, the [District’s] Rules
are arbitrary and capricious and the ‘look back’ provision of
Rule 14 violates due process.”65 He also argues that they vio-
late his right to equal protection.
(i) Due Process
Lingenfelter argues that rule 14’s look-back provision, which
allows acres that have “been actually irrigated any one out of
ten years from 1999 to 2008” to be certified, violates his right
to substantive due process because it is arbitrary and capri-
cious. We disagree.
62
Catania v. The University of Nebraska, 204 Neb. 304, 309,282 N.W.2d 27, 30
(1979) (quotingNeb. Rev. Stat. § 81-8
,210 (Reissue 1976)),
overruled on other grounds, Blitzkie v. State, 228 Neb. 409,422 N.W.2d 773
(1988).
63
Parriott v. Drainage Dist. No. 6, 226 Neb. 123,410 N.W.2d 97
(1987).
64
See § 46-750.
65
Brief for appellant at 26.
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[11] Lingenfelter raises a substantive due process claim.
Under Neb. Const. art. I, § 3, the State cannot deprive any
person of life, liberty, or property without due process of law.
Substantive due process requires a determination whether a
right in which the plaintiff has a legitimate property interest is
at issue and, if it is, whether that right was unconstitutionally
taken from the plaintiff.66
[12] To establish a substantive due process violation, the
government’s land-use regulation must be clearly arbitrary
and unreasonable, having no substantial relation to the public
health, safety, morals, or general welfare.67
We begin with Lingenfelter’s property interest. He claims
that he has a legitimate property interest in using the ground
water under his property. He also claims that he has a con-
stitutionally protected interest in conducting his occupation,
which he says includes “farm[ing] with the modern practice
of irrigation so critical to raising a crop.”68 For the purposes
of this analysis, we assume that Lingenfelter has a legitimate
property interest at issue.
Second, we must determine whether the look-back provi-
sion is arbitrary and unreasonable, having no substantial rela-
tion to the general welfare. Lingenfelter argues that “[t]here
is no clear basis for the 10 year period of 1999-2008. This
rule, adopted in 2012, excluded anyone who began irriga-
tion after 2008, but before the adoption of the rule, includ-
ing Lingenfelter.”69
Lingenfelter relies on our decision in Whitehead Oil Co.
v. City of Lincoln.70 There, a city delayed acting upon a land-
owner’s use permit application until the city could change
66
Bauers v. City of Lincoln, 255 Neb. 572,586 N.W.2d 452
(1998).
67
Scofield v. State, 276 Neb. 215,753 N.W.2d 345
(2008).
68
Brief for appellant at 30.
69
Id. at 29.
70
Whitehead Oil Co. v. City of Lincoln, 245 Neb. 680,515 N.W.2d 401
(1994), disapproved on other grounds, Scofield v. State, supra note 67.
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the zoning designation such as to preclude issuance of the
permit. We relied upon the Eighth Circuit’s articulation that
“‘[w]hether government action is arbitrary or capricious
within the meaning of the Constitution turns on whether it
is so “egregious” and “irrational” that the action exceeds
standards of inadvertence and mere errors of law.’”71 Both
Lingenfelter and the District accept this definition, as do we.
But we disagree with Lingenfelter’s characterization of the
look-back provision.
The look-back provision has a substantial relation to the
general welfare. Regarding the general welfare, the Legislature
stated in the Act that “an adequate supply of ground water is
essential to the general welfare of the citizens of this state and
to the present and future development of agriculture in the
state.”72 It also found that “the management, protection, and
conservation of ground water and the reasonable and beneficial
use thereof are essential to the economic prosperity and future
well-being of the state.”73
The look-back provision allows the District to ensure that
there is an adequate supply of ground water. It establishes
a baseline number of acres historically irrigated within the
District, which is necessary in order to limit the expansion of
irrigated acres and ensure an adequate supply of ground water.
And the Act authorizes this limitation. It provides that within a
management area, an NRD may “limit or prevent the expansion
of irrigated acres or otherwise limit or prevent increases in the
consumptive use of ground water withdrawals from water wells
used for irrigation or other beneficial purposes.”74
And when evaluated in the context of the District’s other
rules, the look-back provision’s 1999-to-2008 window is not
71
Id. at 693, 515 N.W.2d at 410 (quoting Condor Corp. v. City of St. Paul,
912 F.2d 215 (8th Cir. 1990)).
72
§ 46-702.
73
Id.
74
§ 46-739(1)(f).
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arbitrary. It appears reasonable for the window to end in
2008, because after 2008, there were limitations in place
on New Groundwater Irrigated Acres in the District. The
District’s cease-and-desist notification letter stated that the
District imposed a stay on New Irrigated Acres in 2008.
Lingenfelter appeared to allude to this 2008 stay in his testi-
mony regarding his 2009 meeting with a District employee.
He said, “[W]ell, they came out with a moratorium later that
year in ’08.” Although we have not found any other informa-
tion in the record regarding that 2008 stay, the record does
reflect other limitations. The District’s rule 13, which for-
bids New Groundwater Irrigated Acres in the Hydrologically
Connected Area without a variance, appears to have been
adopted in 2009. And rule 15 also prohibits New Groundwater
Irrigated Acres, although we cannot determine when that rule
was adopted.
Furthermore, rule 14 does not necessarily exclude those
who began irrigating after 2008. It allows certification of acres
that were developed after 2007, pursuant to approval granted
by either the Board or the Department. It appears that the
“approval” referenced in this provision refers to a variance or
some other form of permission to irrigate. Therefore, rule 14
excludes only those who did so without permission, in viola-
tion of limitations apparently already in place.
We cannot say that the look-back provision is so egregious
and irrational that it exceeds standards of inadvertence and
mere errors of law. To the contrary, it appears to be a reason-
able means of conserving ground water, a resource essential
to the general welfare. Because the look-back provision is
not arbitrary or capricious in the constitutional sense, the
district court did not err in rejecting Lingenfelter’s due proc
ess challenge.
(ii) Equal Protection
Lingenfelter claims that the look-back provision violates
his right to equal protection because it divides landowners
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“into winners and losers based upon an arbitrary calendar
date.”75 He concedes that he is not “‘entitled to unlimited and
unfettered use’” of his wells.76 Rather, he argues that “[t]his
is a suspect classification not rationally related to a legitimate
governmental purpose.”77
[13-15] The Nebraska Constitution and the U.S. Constitution
have identical requirements for equal protection challenges.78
The Equal Protection Clause requires the government to treat
similarly situated people alike.79 It does not forbid classifica-
tions; it simply keeps governmental decisionmakers from treat-
ing differently persons who are in all relevant respects alike.80
[16-18] If a legislative classification involves either a sus-
pect class or a fundamental right, courts will analyze the
classification with strict scrutiny.81 A suspect class is one that
has been saddled with such disabilities or subjected to such
a history of purposeful unequal treatment as to command
extraordinary protection from the majoritarian political proc
ess.82 Lingenfelter complains of a suspect classification, but he
does not contend that he is a member of a suspect class. When
a classification created by state action does not jeopardize the
exercise of a fundamental right or categorize because of an
inherently suspect characteristic, the Equal Protection Clause
requires only that the classification rationally further a legiti-
mate state interest.83
75
Brief for appellant at 30.
76
Id.
77
Id.
78
Citizens for Eq. Ed. v. Lyons-Decatur Sch. Dist., 274 Neb. 278,739 N.W.2d 742
(2007).
79
Id.
80
Id.
81
Id.
82
Id.
83
Id.
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[19,20] Under the rational basis test, whether an equal pro-
tection claim challenges a statute or some other government
act or decision, the burden is upon the challenging party to
eliminate any reasonably conceivable state of facts that could
provide a rational basis for the classification.84 Under this
most relaxed and tolerant form of judicial scrutiny of equal
protection claims, the Equal Protection Clause is satisfied as
long as (1) there is a plausible policy reason for the classifi-
cation, (2) the legislative facts on which the classification is
based may rationally have been considered to be true by the
governmental decisionmaker, and (3) the relationship of the
classification to its goal is not so attenuated as to render the
distinction arbitrary or irrational.85
Here, the class of irrigators who began irrigating after 2008
is not a suspect class. There is no evidence that the class of
irrigators has been saddled with disabilities or otherwise sub-
jected to a history of purposeful unequal treatment. Therefore,
the rational basis applies. And Lingenfelter concedes as much,
arguing that the classification of the look-back provision is
“the essence of an action not rationally related to a governmen-
tal interest.”86
The rational basis test is satisfied here. Applying the three-
part analysis set out above, we first consider the policy reason
for the classification. It appears that the policy reason for the
look-back provision is to establish a baseline of acres histori-
cally irrigated within the District, in order to conserve ground
water. Conserving ground water is a plausible policy reason for
the classification.
Next, we consider whether the legislative facts on which
the classification is based may rationally have been considered
to be true. Because the record does not contain information
84
Id.
85
Staley v. City of Omaha, 271 Neb. 543,713 N.W.2d 457
(2006).
86
Brief for appellant at 30-31.
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regarding the adoption of the look-back provision, we cannot
recite the specific legislative facts relied upon by the District.
But it seems clear the underlying legislative fact is that there
is a need to conserve ground water to ensure an adequate sup-
ply. The District could have rationally considered this to be
true when it adopted the look-back provision.
Finally, we must consider whether the relationship of the
classification to its goal is so attenuated as to render the dis-
tinction arbitrary or irrational. It is not. In order to conserve
ground water, the District needed to establish a baseline num-
ber of acres irrigated. The look-back provision is rationally
related to the goal of conserving ground water. Thus, the dis-
trict court correctly determined that rule 14’s look-back provi-
sion does not violate Lingenfelter’s right to equal protection.
(c) As-Applied Challenge
In this section, Lingenfelter claims that the District’s deci-
sion to issue the cease-and-desist order was unconstitutional.
He argues that he did not receive equal protection of the law,
“because he was issued the Cease and Desist Order because the
Dunaway [F]arm did not contain ‘certified’ acres or ‘[H]istori-
cally [I]rrigated [A]cres’ when meanwhile, the certification
process had not even begun and there were not any acres that
had been ‘certified’ in the entire district.”87 He also argues that
the District’s “self-perceived authority to make whatever rules
they so choose is fundamentally unfair.”88
We first address Lingenfelter’s equal protection claim. To
the extent that it rests on his claim that the District issued the
cease-and-desist order because he had not yet certified his
acres, it fails. We have already determined that the district
court correctly concluded that the District issued the order
because Dunaway Farm did not constitute Historically Irrigated
Acres and Lingenfelter had not obtained a variance.
87
Id. at 34.
88
Id.
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And to the extent it rests on the fact that the District issued
the order because Dunaway Farm did not contain Historically
Irrigated Acres, it fails to state a claim. The Equal Protection
Clause requires the government to treat similarly situated peo-
ple alike. Lingenfelter does not allege that he was treated dif-
ferently from any other person or class of persons with New
Groundwater Irrigated Acres. And at the hearing, counsel for
the District testified that the District has issued cease-and-
desist orders two or three times in similar circumstances.
Without such an allegation, Lingenfelter’s equal protection
argument fails.
Lingenfelter’s claim that the District lacked authority to
adopt its rules limiting the expansion of irrigated acres also
clearly fails. The Act authorizes NRDs to establish manage-
ment areas within their jurisdictions. The District established
one that covers the entire area of the District, a decision
Lingenfelter does not challenge. And the Act requires dis-
tricts to take specific steps to conserve ground water within
management areas—§ 46-739(1) says that the NRD “shall by
order adopt one or more” of the authorized controls. One of
the authorized controls provides that a district “may limit or
prevent the expansion of irrigated acres or otherwise limit
or prevent increases in the consumptive use of ground water
withdrawals from water wells used for irrigation or other
beneficial purposes.”89 Clearly, the District had the author-
ity to prevent Lingenfelter from expanding irrigated acres on
Dunaway Farm.
(d) Evidence Not in Record
Next, Lingenfelter complains that the district court relied
upon evidence not in the record when it determined that the
look-back provision is constitutional. He points to one sen-
tence from the district court’s order, where it stated: “Based
on the effects of recent periods of drought on the availability
89
§ 46-739(1)(f).
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of ground water for irrigation, the Court concludes that using
a ten-year ‘look back’ period is not arbitrary and capricious.”
Lingenfelter argues that “there is simply no evidence from the
public hearing regarding either: (1) recent periods of drought
or (2) impact of drought on the availability of groundwater for
irrigation in the [District].”90 He argues that we should reverse
the district court because of this “harmful error.”91
First, we note that although we have not found any explicit
discussion about recent periods of drought in the record from
the hearing, it does contain ample references to the limited
availability of ground water in Nebraska. For instance, the
record contains a document labeled “Staff recommendations”
from the “Information, Planning and Programs Subcommittee”
which recommends that the Board “[a]llow no new groundwa-
ter irrigated acres” in 2014 because of concerns about over-
pumping and its “cumulative effect on groundwater declines.”
That document also states: “The problems we experienced last
year are likely more widespread than our information shows.
We received calls from domestic well owners with well inter-
ference problems, but irrigators and well drillers have indi-
cated to us that more areas experienced groundwater declines
than were reported to the District.” And the District’s rules 13
and 15 prohibit the creation of any New Groundwater Irrigated
Acres without a variance. The clear tenor of these rules is that
there is a serious need to conserve water within the District
because ground water is declining. We also note that the Act
itself specifically references “the impact of extended drought
on areas of the state” in its “Declaration of intent and pur-
pose” provision.92
Second, assuming, without deciding, that the district court
erred by referencing periods of drought not explicitly discussed
90
Brief for appellant at 33.
91
Id.
92
§ 46-702.
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in the record, the error was harmless. We review constitutional
questions de novo on the record, and we have independently
concluded that the look-back provision is constitutional. Error
that does not prejudice the party does not provide grounds for
relief on appeal.93 There is no reversible error here.
(e) Adoption of Rule 14
Finally, Lingenfelter points out that he challenges the look-
back provision itself, not the process by which it was adopted,
and he complains that “the District Court misunderstood this
argument as being aimed at ‘the [District’s] actual adoption of
Rule 14.’”94 He argues that “the District Court erred in finding
that there was no record to challenge the adoption of Rule 14,
and must be reversed on this point.”95
There are no grounds for reversal here. Even if the district
court did misunderstand Lingenfelter’s argument, it went on to
address his constitutional challenges to rule 14. Lingenfelter
does not explain how this supposed error prejudiced him. This
argument fails.
VI. CONCLUSION
We find no errors on the record in the district court’s judicial
review of the District’s order. And the district court did not err
in granting the District’s motion for summary judgment as to
Lingenfelter’s request for a declaratory judgment. Accordingly,
we affirm the decision of the district court.
A ffirmed.
93
Huber v. Rohrig, 280 Neb. 868,791 N.W.2d 590
(2010).
94
Brief for appellant at 36.
95
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