Scofield v. State

the Youngs which are not taxable as court costs and not recover-
able under § 44-359.26
coNcLuSIoN
For the reasons discussed herein, we reverse and vacate the
award of “non taxable costs” in the amount of $5,123.17. We
affirm the taxation of court costs in the amount of $2,518.55, but
reduce the attorney fee awarded under § 44-359 from $25,000 to
$5,000, and affirm as modified.
reversed And vAcAted in pArt , And
in pArt Affirmed As modified .
mccormAck, J., not participating.
26 See Dale Electronics, Inc. v. Federal Ins. Co., supra note 9.
ScoFIeLD v. STaTe 	215
cite as 276 Neb. 215
gAry c. scofield And J oyce e. scofield , AppellAnts , v .
stAte of nebrAskA, depArtment of nAturAl
resources , et Al ., Appellees .
753 N.W.2d 345
Filed July 25, 2008. 	No. S-07-511.
1. Pleadings: Appeal and Error. an appellate court reviews de novo a lower court’s
dismissal of a complaint for failure to state a claim.
2. ____: ____. When analyzing a lower court’s dismissal of a complaint for failure to
state a claim, an appellate court accepts the complaint’s factual allegations as true
and construes them in the light most favorable to the plaintiff.
3. Statutes: Appeal and Error. Statutory interpretation is a question of law, which an
appellate court resolves independently of the trial court.
4. Administrative Law: Statutes. The Legislature may delegate to an administra-
tive agency the power to make rules and regulations to implement the policy of
a statute.
5. ____: ____. an administrative agency is limited in its rulemaking authority to
powers granted to the agency by the statutes which it is to administer, and it
may not employ its rulemaking power to modify, alter, or enlarge portions of its
enabling statute.
6. Ordinances: Presumptions: Proof. In considering the validity of regulations,
courts generally presume that legislative or rulemaking bodies, in enacting ordi-
nances or rules, acted within their authority, and the burden rests on those who
challenge their validity.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:52 AM CST

7. Legislature. Delegation of legislative power is most commonly indicated where
the subject to be regulated is highly technical or where regulation requires a course
of continuous decision.
8. Statutes: Legislature: Intent. When a statutory term is reasonably considered
ambiguous, a court may examine the legislative history of the act in question to
ascertain the intent of the Legislature.
9. Constitutional Law: Due Process: Case Disapproved. a party’s allegation that a
regulation “goes too far” should be analyzed under the Takings clause of the Fifth
amendment and not under principles of substantive due process. To the extent
Whitehead Oil Co. v. City of Lincoln, 245 Neb. 680, 515 N.W.2d 401 (1994), reads
otherwise, it is disapproved.
10. Due Process: Property: Public Health and Welfare. To establish a substantive
due process violation, the government’s land-use regulation must be clearly arbi-
trary and unreasonable, having no substantial relation to the public health, safety,
morals, or general welfare.
11. Actions: Property. Relief is possible from a regulatory taking which does not
deprive the owner of all economic use of the property, based on such factors as the
economic impact of the regulation on the claimant and the character of the govern-
mental action.
12. Property. The right to full and free use and enjoyment of one’s property in a man-
ner and for such purposes as the owner may choose, so long as it is not for the
maintenance of a nuisance or injurious to others, is a privilege protected by law.
appeal 	from 	the 	District 	court 	for 	Lancaster 	county:
eArl J. witthoff, Judge. Reversed and remanded for further
proceedings.
allan J. eurek & associates, P.c., for appellants.
Jon Bruning, attorney General, and katherine J. Spohn for
appellees.
heAvicAn , 	c.J., 	wright , 	connolly , 	gerrArd , 	stephAn ,
mccormAck , and miller -lermAn , JJ.
gerrArd , J.
Gary c. Scofield and Joyce e. Scofield sued the Department
of Natural Resources (DNR) and other state officials, alleging
that in establishing the boundaries for a state game refuge, the
DNR exceeded its statutory authority, deprived them of their
constitutional right to due process, and effected a taking of their
property without just compensation. The Scofields’ complaint
was dismissed for failure to state a claim upon which relief
could be granted. on appeal, we must determine whether the
216 	276 NeBRaSka RePoRTS

DNR’s establishment of the refuge boundaries complied with
the relevant statutes and whether the Scofields have stated any
claims upon which relief may be granted.
STaTemeNT oF FacTS
The Legislature, pursuant to Neb. Rev. Stat. § 37-707(2)(a)
(Reissue 2004), gave the DNR the authority to promulgate rules
and regulations establishing the boundaries for the state game
refuges. Land that is designated as a state game refuge has
certain restrictions placed upon it. These restrictions include,
among other things, a prohibition on hunting game birds, game
animals, or other birds or animals within the boundaries of
the refuge.1
The DNR’s determination of the boundaries is governed by
the definitions in Neb. Rev. Stat. §§ 37-701 to 37-708 (Reissue
2004). Section 37-706(1) directs that a state game refuge be
established on “[a]ll that portion of the State of Nebraska on
the North Platte River and for one hundred ten yards back of
the banks of said stream on the land side in Garden county,
Nebraska.” Section 37-706(3) provides that “the banks of said
stream means the banks of the river which are the elevation
of ground which confines the water at a level not exceeding
flood stage.”
on april 25, 2005, the DNR adopted the “Rules Relating to
Boundary of State Game Refuge—Garden county, Nebraska,”
which rules are codified as title 459, chapter 1, of the Nebraska
administrative code (regulations). These regulations determined
the boundaries of the Garden county game refuge. as relevant
to this case, the regulations used the midland-overland canal
(canal) to establish a part of the boundary.
The Scofields, residents of keith county, filed a complaint
in the Lancaster county District court against the DNR and
various other state officials (hereinafter collectively the DNR).
They allege that both the North Platte River and the canal pass
through property they own in Garden county. They allege that
the “canal is an irrigation ditch which historically has been
privately and regularly maintained as a ditch for the delivery
1 See Neb. Rev. Stat. § 37-708(1) (Reissue 2004).
ScoFIeLD v. STaTe 	217
cite as 276 Neb. 215

of irrigation water” and “is not a channel of the North Platte
River,” nor do its banks “constitute the banks of the North
Platte River.” The Scofields further allege that by the DNR’s
using the banks of the canal to establish the boundary, approxi-
mately 53 acres of accretion ground on their property has been
designated as part of the Garden county refuge that would not
have been had the bank of the North Platte River been used as
the boundary.
Given these factual allegations, the Scofields set forth five
claims for relief that can be consolidated into three. First, the
Scofields assert that the regulations, to the extent they use
the canal to establish the boundary for the refuge, should be
declared invalid because the regulations were adopted in viola-
tion of the Nebraska and federal constitutions and exceeded
the DNR’s statutory authority. With regard to their first claim
for relief, the Scofields also allege that the use of the canal to
establish a boundary for the refuge is “contrary to prior legal
precedent,” in particular, U.S. v. Wheeler,2 an opinion of the u.S.
District court for the District of Nebraska.
Second, the Scofields assert that under the Nebraska and fed-
eral constitutions, their due process rights have been violated.
Specifically, they allege that the regulations “are so egregious
and irrational as to exceed standards of inadvertence and mere
errors of law, and do not substantially advance a legitimate state
purpose” and therefore “constitute a deprivation of [their] due
process rights.”
Third, the Scofields claim that the regulations resulted in an
unlawful taking of their property without just compensation
under the Nebraska and federal constitutions. Regarding this
claim, the Scofields allege that the regulations “have resulted
in substantial damages.” They further allege that the regulations
have “significantly denied [them] their enjoyment and beneficial
(or economically viable) use of a portion of [their] [p]roperty,”
have “precluded the viability and use of the property for reason-
able hunting purposes,” have “deprived [them] of recreational
income,” and have “resulted in a diminishment of the fair market
value of such property.”
2 U.S. v. Wheeler, 44 F. Supp. 2d 1030 (D. Neb. 1999).
218 	276 NeBRaSka RePoRTS

A dditionAl informAtion regArding cAnAl
In their brief, the Scofields clarify that the canal at issue in
this case begins at the point where the Wilkinson Diversion Dam
diverts water from the North Platte River into the canal. The
canal carries the water downstream until it reaches the Bennet
Sand Dam. The Bennet Sand Dam then diverts some of the
water from the canal into a separate irrigation channel, while
the water that was not diverted remains in the canal and returns
to the North Platte River. The Scofields’ property is located
between the Wilkinson Diversion Dam and the Bennet Sand
Dam. For the reader’s assistance, we have prepared a diagram
depicting the North Platte River, the Scofields’ property, and
other features relevant to this appeal. The diagram is for illustra-
tive purposes only and does not purport to be to scale.
as previously noted, the Scofields, in their complaint, refer-
enced the case of U.S. v. Wheeler,3 which, like the present case,
involved a question relating to the location of the boundaries of
the Garden county refuge. However, although dealing with the
same general area, the specific boundary at issue in Wheeler is
not the same section of the canal that is at issue in the pres-
ent case. The question in Wheeler involved the boundary along
3 Wheeler, supra note 2.
ScoFIeLD v. STaTe 	219
cite as 276 Neb. 215

what the Wheeler court termed the “disputed channel.”4 The
disputed channel in Wheeler was the separate irrigation chan-
nel that is formed when some of the water from the canal is
diverted by the Bennet Sand Dam. and, as will be explained
below, the legal definition of the refuge’s boundary has been
amended since Wheeler. But while the boundary dispute in
Wheeler was different from the one at issue here, the Wheeler
court’s description of the area provides some helpful context for
the current dispute.
as the Wheeler court explained, in the relevant area, the
North Platte River generally flows south and east. The river has
various channels, and it has a sandy bottom. The location of the
numerous banks of the river change over time. New river chan-
nels are constantly being made by the course of the river, and
old channels are filled by sediment deposits. When that occurs,
the old channel no longer carries river water.
Several irrigation companies divert water from the river,
including the midland-overland irrigation company. The water
ran into the “disputed channel” in Wheeler due to the obstruc-
tion caused by the Bennet Sand Dam. However, not all the
water in the canal is diverted by the Bennet Sand Dam. The
canal and the remaining water continue to the south and east
at the Bennet Sand Dam, while the “disputed channel” runs in
a more easterly direction. In the fall, the Bennet Sand Dam is
breached by the midland-overland irrigation company. most of
the water then flows in the canal as opposed to flowing into the
disputed channel.
The waterway at issue in this case is the portion of the
canal upstream from the Bennet Sand Dam. In short, the water
flowing through the waterway disputed in this case is diverted
from the river at the Wilkinson Diversion Dam, through the
canal past the Scofields’ property, and then to the Bennet Sand
Dam, where it either is diverted into the “disputed channel”
discussed in the Wheeler case, or stays in the canal and returns
to the river.
4 Id. at 1032.
220 	276 NeBRaSka RePoRTS

district court ’ s decision
In response to the Scofields’ complaint, the DNR filed a
motion to dismiss, claiming that the Scofields’ complaint failed
to state a claim upon which relief could be granted.5 The dis-
trict court granted the DNR’s motion. The court disagreed with
the Scofields’ claim that the use of the canal to establish the
boundary for the refuge was contrary to the DNR’s statutory
authority. The court explained that it had already determined
in a consolidated order in two other cases that the DNR had
“properly utilized the statutory definitions detailed in Neb.
Rev. Stat. §37-706 in determining the boundaries of the Garden
county Refuge.”
The court then pointed to the language of the consolidated
order in which it had held that
“the Legislature gave the authority to the DNR to cre-
ate the boundaries through the use of maps and global
positioning technology. In accordance with Neb. Rev.
Stat. §37-707(2)(a), the DNR promulgated boundaries of
the Garden county Refuge ‘based’ on the definitions of
§37-706. The DNR’s adoption of [the Garden county
Regulations] was based on the plain and ordinary reading
of §37-706 and the DNR was acting with constitutional
authority granted by the Legislature.”
The court concluded that nothing in the DNR’s determination
was contrary to the statutory definition of the Garden county
refuge found in § 37-706 or the authority granted to the DNR
in § 37-707(2).
The district court also dismissed the Scofields’ claims that
the regulations violated their substantive due process rights
and constituted an unlawful taking of their property without
just compensation. In so doing, the court cited Bauer v. State
Game, Forestation and Parks Commission6 and explained that
the Scofields have no property right in the wildlife that enters
their land. accordingly, the court determined that because the
Scofields do not have a right to the wildlife on their property,
5 See Neb. ct. R. Pldg. § 6-1112(b)(6).
6 Bauer v. State Game, Forestation and Parks Commission, 138 Neb. 436, 293
N.W. 282 (1940).
ScoFIeLD v. STaTe 	221
cite as 276 Neb. 215

“the prohibition of hunting on their property does not result in a
Due Process clause violation,” nor does it result in an unconsti-
tutional taking. Thus, all of the Scofields’ claims for relief were
dismissed, and the Scofields appealed.
aSSIGNmeNTS oF eRRoR
The Scofields assert, summarized, restated, and renumbered,
that the district court erred in (1) finding that the regulations
were valid under Neb. Rev. Stat. §§ 37-708.01 (Reissue 2004)
and 84-911(2) (Reissue 1999), (2) dismissing their substantive
due process claims, (3) dismissing their claims that the regula-
tions constituted an unlawful taking, and (4) giving preclusive
effect to factual determinations made by the court in two con-
solidated cases, both previously dismissed on the State’s motion
for summary judgment.
STaNDaRD oF RevIeW
[1,2] an appellate court reviews de novo a lower court’s
dismissal of a complaint for failure to state a claim.7 When
analyzing a lower court’s dismissal of a complaint for failure to
state a claim, an appellate court accepts the complaint’s factual
allegations as true and construes them in the light most favorable
to the plaintiff.8
[3] Statutory interpretation is a question of law, which an
appellate court resolves independently of the trial court.9
aNaLYSIS
regulAtions estAblishing boundAry A re vAlid
The Scofields contend that the DNR exceeded its statutory
authority in promulgating the regulations that utilized the canal
to establish the boundary for the refuge, and therefore, the regu-
lations should be declared invalid. The DNR disagrees, arguing
that the Legislature expressly gave it the authority to set the
boundary and that it has acted within its statutory authority.
7 Myers v. Nebraska Invest. Council, 272 Neb. 669, 724 N.W.2d 776 (2006).
8 Id.
9 Clark v. Clark, 275 Neb. 276, 746 N.W.2d 132 (2008).
222 	276 NeBRaSka RePoRTS

The Legislature has given the DNR the authority to determine
the boundaries of the state game refuges, within broad param-
eters set forth in the statutes.10 The parameters for the Garden
county refuge are “[a]ll that portion of the State of Nebraska
on the North Platte River and for one hundred ten yards back
of the banks of said stream on the land side in Garden county,
Nebraska.”11 But the Legislature’s sole guidance to the DNR
regarding the “banks” of the North Platte River is that they are
“the banks of the river which are the elevation of ground which
confines the water at a level not exceeding flood stage.”12 The
parties’ difference of opinion regarding the DNR’s establish-
ment of the canal as part of the refuge boundary is explained
by the fact that the Legislature did not expressly instruct the
DNR on whether the “banks of the river” should include man-
made waterways.
The legislative history of § 37-706 suggests that this omission
was intentional. Between 1965 and 2004, the refuge’s boundary
had specified that “except for the repair for existing alterations,
future alterations in the banks by the damming of [the North
Platte River] shall not be recognized as effecting legal changes
of such refuge boundary.”13 2004 Neb. Laws, L.B. 826, was
introduced because the refuge boundary was “most in need of
clarification since litigation surrounding the refuge has been
abundant in the past few years.”14
as originally proposed, L.B. 826 would have defined the
“banks of the river” as “the elevation of ground which confines
the water in its natural course.”15 But as the introducer of the
bill explained:
The real issue that we have in western Nebraska, more so
than eastern Nebraska, is that whenever you look at the
10 See § 37-707(2)(a).
11 See § 37-706(1).
12 § 37-706(3).
13 See § 37-706(1) (cum. Supp. 2002).
14 Introducer’s Statement of Intent, L.B. 826, committee on Natural Resources,
98th Leg., 2d Sess. (Feb. 11, 2004). See, e.g., Wheeler, supra note 2.
15 explanation of L.B. 826, committee on Natural Resources.
ScoFIeLD v. STaTe 	223
cite as 276 Neb. 215

flow of rivers or streams through western Nebraska . . .
like in the North Platte River, that channel, it’s more of a
braided stream. It’s not channelized like you would have in
eastern Nebraska.16
and 	as 	a 	representative 	of 	the attorney 	General’s 	office
explained, in describing the litigation that prompted the bill,
the law provided that man-made changes after 1965 had to
be excluded, “but how can you now 30 years later determine
what course the river would have taken if you didn’t have man-
made intervention?”17
The attorney General’s representative explained that in order
to have effective legal enforcement of the refuge boundaries, it
would be helpful to “move the setting of the boundary into a
rule-making process in which the [DNR] would set those bound-
aries.”18 Therefore, the representative recommended that the lan-
guage referring to “natural course” be removed because it was
not enforceable.19 Instead, the boundary would be determined
by the DNR, and “if that encompasses some of the man-made
intervention, then so be it.”20 and based on that testimony, the
bill was amended to enact § 37-706 (Reissue 2004) in substan-
tially its current form.21 In short, the purpose of the amendment,
and of the amended bill, was to “give the authority to the [DNR]
to determine the banks of the river” without specifying whether
they included man-made waterways.22
[4-7] It is a well-established principle that the Legislature
may delegate to an administrative agency the power to make
16 committee on Natural Resources Hearing, L.B. 826, 98th Leg., 2d Sess. 27
(Feb. 11, 2004).
17 Id. at 38.
18 Id. at 40.
19 Id. at 42.
20 Id.
21 See amend. 2606, L.B. 826, committee on Natural Resources, 98th Leg.,
2d Sess. (Feb. 12, 2004).
22 Floor Debate, L.B. 826, committee on Natural Resources, 98th Leg., 2d
Sess. 11348-49 (mar. 11, 2004).
224 	276 NeBRaSka RePoRTS

rules and regulations to implement the policy of a statute.23
an administrative agency is limited in its rulemaking author-
ity to powers granted to the agency by the statutes which it is
to administer, and it may not employ its rulemaking power to
modify, alter, or enlarge portions of its enabling statute.24 But
in considering the validity of regulations, we generally presume
that legislative or rulemaking bodies, in enacting ordinances or
rules, acted within their authority, and the burden rests on those
who challenge their validity.25 and in particular, we have said
that delegation of legislative power is most commonly indicated
where the subject to be regulated is highly technical or where
regulation requires a course of continuous decision.26
[8] Section 37-706 is silent on whether man-made waterways,
as the canal is alleged to be, should be included in the “banks
of the river.” But when a statutory term is reasonably consid-
ered ambiguous, a court may examine the legislative history of
the act in question to ascertain the intent of the Legislature.27
Here, when read in context, it is evident that the Legislature
did not intend § 37-706 to either include or exclude man-made
waterways from the “banks of the river.” Instead, the Legislature
intended to delegate to the DNR the responsibility for determin-
ing whether any particular waterway should be considered part
of the banks of the river.
For this reason, we reject the Scofields’ claim that the DNR
exceeded its statutory authority in using the canal as part of the
refuge boundaries. While the definition of the “banks” of the
North Platte River set forth in § 37-706(3) does not necessarily
include man-made waterways, it does not exclude them either.
Instead, the Legislature has entrusted the DNR with the author-
ity to make those determinations. and there is no allegation
23 DLH, Inc. v. Nebraska Liquor Control Comm., 266 Neb. 361, 665 N.W.2d
629 (2003).
24 Id.
25 See Jacobson v. Solid Waste Agency of Northwest Neb., 264 Neb. 961, 653
N.W.2d 482 (2002).
26 See Schumacher v. Johanns, 272 Neb. 346, 722 N.W.2d 37 (2006).
27 Chase 3000, Inc. v. Nebraska Pub. Serv. Comm., 273 Neb. 133, 728 N.W.2d
560 (2007).
ScoFIeLD v. STaTe 	225
cite as 276 Neb. 215

in the Scofields’ complaint that the Legislature’s delegation of
authority was unlawful.
To be sure, the DNR’s authority to establish the boundaries
of the state game refuges is not unlimited. The Legislature has
provided reasonable limitations and standards to the DNR for
carrying out its delegated duties,28 and the DNR must act within
them. and by concluding that the regulations in the present case
are valid, we do not foreclose the possibility that under other cir-
cumstances, the DNR’s determination of a particular boundary
may exceed its statutory authority. But the complicated history
and geography of the waterway at issue in this case demonstrate
precisely why the Legislature found itself ill equipped to estab-
lish a one-size-fits-all definition of the boundary of the refuge.
This court is at least equally ill suited to make such a determina-
tion. Instead, § 37-706 allows the DNR to decide such matters,
as the administrative agency best prepared to do so.
and in the present case, the DNR’s adoption of the regula-
tions establishing the canal as the boundary for the refuge was
a reasonable exercise of the DNR’s authority as granted by the
statute. as explained in Wheeler,29 which the Scofields relied
upon in their complaint,30 water from the North Platte River
flows through the canal and back into the main channel of the
river. and more importantly, regardless of whether the canal
was man-made or is maintained, the Scofields do not allege any
facts that would carry their burden of showing that the DNR
acted unreasonably in concluding that the canal should now
be considered part of the banks of the North Platte River for
these purposes.
The DNR’s official rulemaking record31 provides some con-
text for the DNR’s decision to use the canal to establish
the refuge boundary. The DNR was presented with substantial
28 See Schumacher, supra note 26.
29 Wheeler, supra note 2.
30 See Ferer v. Erickson, Sederstrom, 272 Neb. 113, 718 N.W.2d 501 (2006)
(court may judicially notice matters of public record without converting
motion to dismiss into motion for summary judgment).
31 See, Neb. Rev. Stat. § 84-906.01 (cum. Supp. 2006); DLH, Inc., supra note
23 (Gerrard, J., concurring; Hendry, c.J., and connolly, J., join).
226 	276 NeBRaSka RePoRTS

evidence suggesting that the canal was not a “natural” part
of the river, such that the canal would run dry if a man-made
impediment, the Wilkerson Diversion Dam, was not maintained
each irrigation season.32 But the DNR recognized, correctly, that
L.B. 826 “deleted a requirement in prior law that prohibited the
consideration of man-made alterations as affecting legal changes
or refuge boundaries.”33 The head of the DNR’s survey division
explained the lengthy and detailed process used by the DNR to
establish the refuge boundaries. He described the use of manned
surveys and aerial photographs “to make sure that the river
geometry had not changed significantly” in a 10-year period.34
The riverbank locations derived from aerial photographs were
reviewed by DNR field office personnel and “were determined
to be consistent with near, bank-full river conditions.”35 and
those determinations were also compared to National Weather
Service information to confirm that they reflected water levels
“not exceeding flood stage.”36
The process described in the official rulemaking record
reflects a reasonable implementation of the standard established
by § 37-706(3). The refuge was created “[f]or the better protec-
tion of birds and the establishment of breeding places therefor
. . . .”37 Wild birds are, presumably, not concerned with whether
a waterway is maintained by human intervention. Given the
purpose of the refuge, the “natural” course of the river is less
important than the actual course of the river, regardless of the
reason it follows that course. and the DNR’s survey personnel
gathered data and engaged in a rigorous process of analysis to
determine where the actual course of the river was located, over
the 10-year period preceding the establishment of the disputed
32 See Public Hearing, Department of Natural Resources, “In the matter of
the Proposed New Rules and Regulations Related to the Boundary of the
Garden county State Game Refuge to Be Included in Title 459 of the
Nebraska administrative code” (Feb. 10, 2005).
33 Id., vol. I at 5.
34 Id. at 6.
35 Id.
36 Id. at 7.
37 § 37-706(1).
ScoFIeLD v. STaTe 	227
cite as 276 Neb. 215

boundary. In short, the official rulemaking record reflects that
the DNR exercised the authority delegated to it in a manner
consistent with the controlling statutes and the purpose of
those statutes.
The Scofields’ complaint does not allege facts that, if proved,
would be sufficient to carry their burden of showing that the
DNR acted unreasonably, or outside the authority delegated to
it by the Legislature, when it used the canal to establish the
boundary of the refuge. accordingly, the district court did not
err in dismissing the Scofields’ first claim for relief.
substAntive due process clAims
The Scofields also contend that the district court erred
in dismissing their claim that the DNR’s decision violated
their substantive due process rights under the federal and
Nebraska constitutions.
The federal and Nebraska constitutions contain similar due
process language, and both provide that no person shall be
deprived of life, liberty, or property without due process of
law.38 Because the due process requirements of Nebraska’s
constitution are similar to those of the federal constitution, we
apply the same analysis to the Scofields’ state and federal con-
stitutional claims.39
The Scofields first claim that their substantive due process
rights have been violated because the regulations at issue “go
too far,” thus destroying the value of their property to such
an extent that the regulations have the same effect as a taking
by eminent domain. In presenting this claim, the Scofields are
apparently relying on language found in this court’s decision in
Whitehead Oil Co. v. City of Lincoln.40 In Whitehead Oil Co., we
cited the 11th circuit case of Eide v. Sarasota County,41 which
identified various types of challenges a landowner could bring
against the State. The 11th circuit in Eide characterized one
38 u.S. const. amend. XIv, § 1; Neb. const. art. I, § 3.
39 See Hamit v. Hamit, 271 Neb. 659, 715 N.W.2d 512 (2006).
40 Whitehead Oil Co. v. City of Lincoln, 245 Neb. 680, 515 N.W.2d 401
(1994).
41 Eide v. Sarasota County, 908 F.2d 716 (11th cir. 1990).
228 	276 NeBRaSka RePoRTS

of these challenges as a “due process takings” claim,42 which
apparently is what the Scofields are asserting here. The court
in Eide explained that this type of claim can be brought by the
plaintiff when “the application of the regulation goes so far and
destroys the value of his or her property to such an extent that it
has the same effect as a taking by eminent domain.”43
However, after our decision in Whitehead Oil Co., and
approximately 7 years after deciding Eide, the 11th circuit, in
Villas of Lake Jackson, Ltd. v. Leon County,44 concluded that two
u.S. Supreme court cases, First Lutheran Church v. Los Angeles
County45 and Lucas v. South Carolina Coastal Council,46 refuted
the notion of due process as an independent ground for a tak-
ings claim. The 11th circuit concluded that those u.S. Supreme
court cases, when read together, “firmly place all the consti-
tutional constraints on regulatory takings recognized by this
court under the Takings clause alone.”47 The court definitively
stated, “There is no independent ‘substantive due process taking’
cause of action. The only substantive due process claim is for
arbitrary and capricious conduct.”48 Stated differently, the court
determined that the only available substantive due process claim
in this context is one that alleges that the regulation is arbitrary
and capricious.
[9] We agree with the 11th circuit’s analysis and conclusion
in this regard. accordingly, we now conclude that when a party
alleges that a regulation “goes too far,” as the Scofields have
done here, such a claim should be analyzed under the Takings
clause of the Fifth amendment and not under principles of
substantive due process. To the extent Whitehead Oil Co. can be
42 Id. at 720.
43 Id. at 721.
44 Villas of Lake Jackson, Ltd. v. Leon County, 121 F.3d 610 (11th cir. 1997).
45 First Lutheran Church v. Los Angeles County, 482 u.S. 304, 107 S. ct.
2378, 96 L. ed. 2d 250 (1987).
46 Lucas v. South Carolina Coastal Council, 505 u.S. 1003, 112 S. ct. 2886,
120 L. ed. 2d 798 (1992).
47 Villas of Lake Jackson, Ltd., supra note 44, 121 F.3d at 613.
48 Id. at 612.
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read as creating a “due process takings” claim, it is disapproved.
accordingly, the district court properly dismissed the Scofields’
claim that their substantive due process rights were violated
because the regulations “go too far.”
[10] The Scofields also allege that their substantive due proc-
ess rights have been violated because the regulations, insofar
as they use the canal to establish the boundary for the refuge,
are arbitrary, capricious, and not based on any legitimate state
interest. 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.”’”49
Because the Scofields’ substantive due process claim was dis-
missed for failure to state a claim, the key inquiry in our analysis
is simply whether the facts, as pled in the Scofields’ complaint,
sufficiently allege an arbitrary and capricious act. The Scofields
argue that they have met this standard. In particular, the Scofields
point to their complaint wherein they allege that the regulations,
“to the extent they utilize the shoreline banks of the [canal] to
establish the boundaries of the . . . Refuge, are arbitrary and
capricious, are so egregious and irrational as to exceed standards
of inadvertence and mere errors of law, and do not substantially
advance a legitimate state purpose.”
But this assertion by the Scofields is merely a legal conclu-
sion, and we are free to ignore sweeping legal conclusions that
are cast in the form of factual allegations.50 more to the point,
as already discussed above, the regulations using the canal to
establish the refuge boundary are consistent with the applicable
statutory requirements.
Because we have already determined that the regulations using
the canal to establish the refuge boundary are consistent with
the applicable statutes, and because the Scofields do not take
issue with the statutes themselves, the Scofields cannot prove
49 Whitehead Oil Co., supra note 40, 245 Neb. at 688, 515 N.W.2d at 408,
quoting Euclid v. Ambler Co., 272 u.S. 365, 47 S. ct. 114, 71 L. ed. 303
(1926). See, also, Villas of Lake Jackson, Ltd., supra note 44.
50 See Kellogg v. Nebraska Dept. of Corr. Servs., 269 Neb. 40, 690 N.W.2d 574
(2005).
230 	276 NeBRaSka RePoRTS

a set of facts in support of their substantive due process claims
that would entitle them to relief. Therefore, the district court did
not err in dismissing their substantive due process claim.
unlAwful tAking without J ust compensAtion
The Scofields next argue that the district court erred in dis-
missing their claim that the regulations effected an unlawful
taking of their property without just compensation in violation
of the Nebraska and u.S. constitutions.
The Nebraska constitution provides that the “property of
no person shall be taken or damaged for public use with-
out just compensation.”51 The 5th amendment to the federal
constitution, made applicable to the states through the 14th
amendment, provides: “[N]or shall private property be taken
for public use, without just compensation.”52 Nebraska’s con-
stitutional right to just compensation includes compensation
for damages occasioned in the exercise of eminent domain and,
therefore, is broader than the federal right, which is limited only
to compensation for a taking.53 We have noted, however, that
notwithstanding the difference between the federal and state
constitutions, we have analyzed the state constitutional issue of
whether there has been a regulatory taking or damage for a pub-
lic use by treating federal constitutional case law and our state
constitutional case law as coterminous.54
The u.S. Supreme court in Lingle v. Chevron U.S.A. Inc.55
clarified the law surrounding regulatory takings claims and pro-
vided a framework under which such claims are to be addressed.
The court identified two types of regulatory actions that con-
stitute categorical or per se takings: “First, where government
requires an owner to suffer a permanent physical invasion of her
51 Neb. const. art. I, § 21.
52 u.S. const. amend. v. See Penn Central Transp. Co. v. New York City, 438
u.S. 104, 98 S. ct. 2646, 57 L. ed. 2d 631 (1978).
53 Strom v. City of Oakland, 255 Neb. 210, 583 N.W.2d 311 (1998).
54 Id.
55 Lingle v. Chevron U.S.A. Inc., 544 u.S. 528, 125 S. ct. 2074, 161 L. ed. 2d
876 (2005).
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cite as 276 Neb. 215

property—however minor—it must provide just compensation.”56
compensation is required for physical takings “however mini-
mal the economic costs [they] entail[],” because they “eviscer-
ate[] the owner’s right to exclude others from entering and using
her property—perhaps the most fundamental of all property
interests.”57 The “second categorical rule applies to regulations
that completely deprive an owner of ‘all economically beneficial
us[e]’ of her property.”58 The complete elimination of a proper-
ty’s value is the determinative factor in this category because the
total deprivation of beneficial use is, from the landowner’s point
of view, the equivalent of a physical appropriation.59
[11] The court in Lingle stated that outside these two rela-
tively narrow categories, and the special context of land-use
exactions, regulatory takings challenges are governed by the
standards set forth in Penn Central Transp. Co. v. New York City
(Penn Central).60 Thus, under a Penn Central inquiry, relief is
possible from a regulatory taking which does not deprive the
owner of all economic use of the property. The standards set
forth in Penn Central are designed to allow careful examina-
tion and weighing of all relevant circumstances.61 The court
in Lingle explained that the “[p]rimary” Penn Central factors
included “‘[t]he economic impact of the regulation on the claim-
ant and, particularly, the extent to which the regulation has inter-
fered with distinct investment-backed expectations.’”62 another
relevant factor in discerning whether a taking has occurred is the
“‘character of the governmental action’—for instance whether
it amounts to a physical invasion or instead merely affects
property interests through ‘some public program adjusting the
56 Id. at 538. See Loretto v. Teleprompter Manhattan CATV Corp., 458 u.S.
419, 102 S. ct. 3164, 73 L. ed. 2d 868 (1982).
57 Lingle, supra note 55, 544 u.S. at 539.
58 Id., 544 u.S. at 538 (quoting Lucas, supra note 46).
59 Lingle, supra note 55.
60 Penn Central, supra note 52.
61 Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency,
535 u.S. 302, 122 S. ct. 1465, 152 L. ed. 2d 517 (2002).
62 Lingle, supra note 55, 544 u.S. at 538-39.
232 	276 NeBRaSka RePoRTS

benefits and burdens of economic life to promote the common
good.’”63 The Penn Central analysis turns in large part, albeit
not exclusively, upon the magnitude of a regulation’s economic
impact and the degree to which it interferes with legitimate
property interests.64
In the present case, the Scofields do not allege that the DNR
has effected any permanent physical invasion of their property.
Nor do they allege that all economically beneficial use of their
property has been taken as a result of the regulations at issue.
Thus, in order for their takings claims to survive the DNR’s
motion to dismiss, they must have sufficiently alleged in their
complaint that, despite neither permanent physical invasion of
their property nor a complete deprivation of all the economically
beneficial use of their property, they are nevertheless entitled to
compensation based upon the factors discussed in Penn Central.
In light of the allegations presented in the Scofields’ complaint,
and because we must accept as true all facts which are well pled
and the proper and reasonable inferences of law and fact which
may be drawn therefrom,65 we conclude that the Scofields have,
at least, stated a claim under the Penn Central factors.
The district court, in granting the DNR’s motion to dismiss,
found that because the Scofields do not have property rights in
wild game on their land, the prohibition on hunting as a result
of their land’s being designated as a refuge did not constitute
an unconstitutional taking. The court was correct in that “there
is no property right generally in wild game, for the ownership
therein is lodged in the state.”66 However, the court incorrectly
construed the allegations raised in the Scofields’ complaint. as
noted by the Scofields in their brief, “it is not the right in the
wild game or the right to hunt”67 for which they are seeking
compensation. Rather, they are seeking compensation for the
63 Id., 544 u.S. at 539.
64 Lingle, supra note 55.
65 See Kanne v. Visa U.S.A., 272 Neb. 489, 723 N.W.2d 293 (2006).
66 Bauer, supra note 6, 138 Neb. at 443, 293 N.W. at 285.
67 Brief for appellants at 29.
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cite as 276 Neb. 215

deprivation of their “right to make economically viable use of
their property.”68
[12] In this regard, we have held that “‘[t]he right to full and
free use and enjoyment of one’s property in a manner and for
such purposes as the owner may choose, so long as it is not for
the maintenance of a nuisance or injurious to others, is a privi-
lege protected by law.’”69 and in their complaint, the Scofields
alleged, among other things, that the regulations have “signifi-
cantly denied [them] their enjoyment and beneficial (or econom-
ically viable) use of a portion of [their] [p]roperty.” Furthermore,
the Scofields claimed that the regulations have “deprived [them]
of recreational income” and have “resulted in a diminishment of
the fair market value of such property.”
The question at this point is not whether the Scofields will
be able to prove these allegations sufficiently to establish a
taking, as we do not test the claim’s substantive merits under
§ 6-1112(b)(6). assuming that these allegations are true, and
construing them in the light most favorable to the Scofields, we
find that the Scofields have stated a claim for relief under a Penn
Central theory of recovery.
district court ’ s reliAnce on prior cAses
In their final assignment of error, the Scofields argue that
the district court, in dismissing their complaint, erred in relying
upon factual findings that the court had made in a consolidated
opinion of two prior cases. on this note, the Scofields claim that
the court’s prior decisions “should not have been used to collat-
erally estop [them] from litigating any of [the] issues or claims
raised in this case.”70
The Scofields’ argument is without merit. In granting the
DNR’s motion to dismiss, the court did not apply principles of
collateral estoppel, nor did the court improperly rely upon any
factual findings that it had made in a separate case. Rather, as we
read the court’s opinion, by referencing language from a prior
decision, the court was simply iterating legal conclusions that
68 Id. (emphasis omitted).
69 State v. Champoux, 252 Neb. 769, 778, 566 N.W.2d 763, 769 (1997).
70 Brief for appellants at 33.
234 	276 NeBRaSka RePoRTS

it had previously reached. The court’s decision explained and
quoted its prior reasoning and conclusions. and in the court’s
view, the legal reasoning used to reach that conclusion was
equally applicable to the Scofields’ case.
Simply stated, the district court was explaining its legal basis
for reaching its decision in the present case by applying the
same legal reasoning it had used in a prior decision, and citing
that decision. This was, as a practical matter, no different from
our citation to previous decisions in this opinion, where those
decisions contain reasoning that is helpful to our analysis of
this case. In other words, we disagree with the Scofields’ inter-
pretation of the district court’s decision and do not find that the
district court erred in citing one of its own decisions.
and in any event, as is evident from the above discussion,
we have analyzed each of the Scofields’ claims for relief and
have reached our own conclusions independently of any decision
made by the district court. accordingly, this assignment of error
is without merit.
coNcLuSIoN
While the district court correctly concluded that the DNR did
not exceed its authority in using the canal to establish the bound-
ary of the refuge, and correctly dismissed the Scofields’ due
process claims, the court erred in concluding that the Scofields
did not state a claim for relief, insofar as they alleged that the
boundary effected a taking without just compensation, pursuant
to Penn Central.71 The judgment of the court is reversed, and
the cause remanded to the district court for further proceedings
regarding the Scofields’ Penn Central claim for relief.
reversed And remAnded for
further proceedings .
71 Penn Central, supra note 52.
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