Butler County Dairy v. Butler County

408 	285 NEBRASKA REPORTS
On direct appeal, we concluded that in respect to juror
No. 3, the record did not suggest that there was any miscon-
duct on the juror’s part, much less prejudicial misconduct.
We concluded the record did not suggest Robinson was preju-
diced by the removal of the juror who slept during parts of
the testimony.
On direct appeal, we concluded the court did not abuse its
discretion in removing the two jurors. Robinson is procedurally
barred from reasserting this claim.
6. Motion for rehearing
on D irect appeal
Robinson claims his counsel was ineffective by not timely
filing a motion for rehearing after we affirmed Robinson’s con-
victions and sentences on direct appeal. Motions for rehearing
are discretionary with this court. On postconviction, Robinson
has not shown that we would have granted his motion for
rehearing or that if the motion had been granted, we would
have changed our opinion and granted him redress.
VI. CONCLUSION
Because 	Robinson 	cannot 	establish 	that 	he 	was 	preju-
diced by his counsel’s representation, we find no merit to his
assignments of error. We affirm the district court’s denial of
Robinson’s motion for postconviction relief.
affirMeD.
heavican, C.J., not participating.
Butler county Dairy, l.l.c., appellant, v. Butler county,
neBraska, anD township of reaD, Butler county,
neBraska, appellees, anD township of suMMit,
Butler county, neBraska, intervenor-appellee.
827 N.W.2d 267
Filed March 8, 2013. 	No. S-12-173.
1. Statutes: Appeal and Error. To the extent an appeal calls for statutory interpre-
tation or presents questions of law, an appellate court must reach an independent
conclusion irrespective of the determination made by the court below.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:39 AM CST

BUTLER COUNTY DAIRY v. BUTLER COUNTY 	409
Cite as 285 Neb. 408
2. Constitutional Law: Statutes: Political Subdivisions. The determination of
the proper scope of the powers vested in the subordinate divisions of the state,
and the lawfulness of the exercise thereof by the statutory agencies concerned,
necessitates recourse to the terms of the state Constitution and the language of the
statutes relating thereto.
3. Courts: Statutes: Ordinances. When reviewing preemption claims, a court is
obligated to harmonize, to the extent it legally can be done, state and municipal
enactments on the identical subject.
4. Statutes. The interpretation of statutes and regulations presents questions of law.
5. Jurisdiction. The question of jurisdiction is a question of law.
6. Counties: Statutes. A board of supervisors has all the powers applicable to
county boards as provided by the general laws of this state.
7. Political Subdivisions: Words and Phrases. A township is a subdivision of state
territory, convenient in area, for the purpose of carrying into effect limited pow-
ers governmental in their nature.
8. Political Subdivisions. Every town shall have corporate capacity to exercise the
powers granted thereto, or necessarily implied, and no others.
9. Political Subdivisions: Statutes. The powers conferred upon a township by stat-
ute are limited and confined to those which properly belong to the government
of the state as a whole and which are merely devolved upon the township as a
portion of the state government.
10. ____: ____. The statutes granting a township certain powers must be strictly
construed.
11. 	Counties: Highways. General supervision and control of the public roads of each
county is vested in the county board.
12. Political Subdivisions: Highways. All township road and culvert work shall be
under the general supervision of the township board.
13. Counties: Political Subdivisions: Highways. A county board and a township
board are both vested with general supervisory authority over a township road.
14. ____: ____: ____. The exercise of a county’s authority over township roads can
supersede a township’s authority over those same roads.
15. Political Subdivisions: Public Officers and Employees. Under Neb. Rev. Stat.
§ 23-224(6) (Reissue 2012), the electors of a township have the power to prevent
the exposure or deposit of offensive or injurious substances within the limits of
the town.
16. Constitutional Law: Political Subdivisions: Proof. When a party challenges the
validity of a township regulation without arguing that a particular application of
the regulation is improper, a court will consider that to be a facial challenge that
can succeed only by establishing that no set of circumstances exists under which
the regulation would be valid.
17. Statutes: Ordinances. Preemption of municipal ordinances by state law is based
on the fundamental principle that municipal ordinances are inferior in status and
subordinate to the laws of the state.
18. ____: ____. In the case of a direct conflict between a statute and a city ordinance,
the statute is the superior law.
19. Political Subdivisions: Statutes. Any laws enacted pursuant to a township’s lim-
ited statutory authority necessarily are subordinate to the laws of the state from
which the township’s powers derived.

410 	285 NEBRASKA REPORTS
20. Municipal Corporations: Political Subdivisions. The same preemption doc-
trines apply to the laws of both municipalities and townships.
21. Statutes. There are three types of preemption: (1) express preemption, (2) field
preemption, and (3) conflict preemption.
22. Political Subdivisions: Statutes: Legislature: Intent. Express preemption
occurs when the Legislature has expressly declared in explicit statutory language
its intent to preempt local laws.
23. Legislature: Statutes. The mere fact that the Legislature has enacted a law
addressing a subject does not mean that the subject matter is completely
preempted.
24. Statutes: Political Subdivisions. Where the state has occupied the field of pro-
hibitory legislation on a particular subject, there is no room left for local laws
in that area and a political subdivision lacks authority to legislate with respect
to it.
25. Statutes: Ordinances: Legislature. That which is allowed by the general laws
of the state cannot be prohibited by ordinance, without express grant on the part
of the state. Conversely, without express legislative grant, an ordinance cannot
authorize what the statutes forbid.
26. Political Subdivisions: Statutes. The fact that a local law is more stringent than
state law does not by itself lead to conflict preemption.
27. Appeal and Error. Errors argued but not assigned will not be considered
on appeal.
28. Jurisdiction: Parties. The presence of necessary parties is jurisdictional.
Appeal from the District Court for Butler County: M ary c.
gilBriDe, Judge. Affirmed.
Stephen D. Mossman, of Mattson, Ricketts, Davies, Stewart
& Calkins, for appellant.
Jarrod S. Boitnott, of Baylor, Evnen, Curtiss, Grimit & Witt,
L.L.P., for appellee Township of Read.
Gregory D. Barton, of Harding & Shultz, P.C., L.L.O., for
intervenor-appellee.
heavican, c.J., wright, connolly, stephan, MccorMack,
M iller-lerMan, and cassel, JJ.
cassel, J.
I. INTRODUCTION
Butler County Dairy, L.L.C. (BCD), challenged two regula-
tions adopted by Read Township, Butler County, Nebraska,
governing livestock confinement facilities after those regu-
lations were cited by Read Township and Butler County in

BUTLER COUNTY DAIRY v. BUTLER COUNTY 	411
Cite as 285 Neb. 408
denying BCD’s request for a permit to install a liquid livestock
manure pipeline under a public road. The district court ruled
that Read Township had the statutory authority to enact the
regulations and that they were not preempted by the Livestock
Waste Management Act (LWMA)1 or Nebraska’s Department
of Environmental Quality (DEQ) livestock waste control regu-
lations in title 130 of the Nebraska Administrative Code (Title
130). Because Read Township had the statutory authority to
enact the pertinent regulations and the regulations are not pre-
empted by state statute or regulation, we affirm.
II. BACKGROUND
BCD applied for and received a permit from DEQ for the
construction and operation of a livestock waste control facil-
ity pursuant to LWMA. As part of the operation of the facility,
BCD planned to pipe liquid livestock manure to crop ground,
where the livestock waste would then be applied through a
pivot irrigation system. For this purpose, BCD wished to install
a pipeline under road No. 27, a section line road in Butler
County. The southern portion of road No. 27 lies within Read
Township. This action addresses only the southern portion of
the road.
BCD applied for a permit from Read Township to install the
pipeline, but the permit was denied due to the existence of a
township regulation prohibiting the placement of any pipeline
carrying liquid livestock waste “on, over or under town prop-
erty, including town roads, right-of-ways and ditches.” This
specific township regulation was adopted by the electors at
the annual townhall meeting for Read Township on September
13, 2007, and became effective September 20. BCD’s applica-
tion for a permit was denied at a regular Read Township board
meeting on September 20.
BCD also applied for a permit from Butler County to install
the pipeline. When Read Township denied BCD’s application,
the Butler County Board of Supervisors refused to override the
township’s decision and on February 17, 2009, voted to deny
the permit.
1 Neb. Rev. Stat. §§ 54-2416 to 54-2438 (Reissue 2010).

412 	285 NEBRASKA REPORTS
In 	March 	2009, 	BCD 	filed 	a 	complaint 	against 	Read
Township alleging that the pipeline regulation was invalid
because it “exceed[ed] the scope of Read Township’s author-
ity” and was preempted by LWMA, Title 130, and zoning laws.
BCD also challenged as invalid a second township regulation
adopted on September 13, 2007, pertaining to large livestock
confinement facilities. This second regulation implemented
minimum setback requirements for large livestock confine-
ment facilities from churches, public use areas, and dwelling
units “not of the same ownership and on the same premises as
the operation”; required owners and operators of such facili-
ties to demonstrate that livestock waste would not be carried
onto township property in the event of a 25-year storm; and
prohibited the spillage of livestock waste onto township roads,
ditches, or property from such facilities or during transport.
BCD prayed for declaratory and injunctive relief along with
damages for additional expenses incurred in managing its live-
stock waste without a pipeline.
Shortly 	after 	the 	filing 	of 	BCD’s 	complaint, 	Summit
Township, 	Butler 	County, 	intervened. 	Summit 	Township
had regulations identical to those of Read Township and
wished the court to declare both sets of regulations valid and
enforceable.
BCD, Read Township, and Summit Township subsequently
filed three separate motions for summary judgment. After
receiving evidence, the district court denied all three motions
because it determined that a necessary party was not present.
The court ordered BCD to bring in Butler County as a party
because it concluded that Butler County had control over road
No. 27.
In accordance with the district court’s order, in December
2010, BCD filed an amended complaint naming Butler County
as a defendant. The amended complaint restated the causes
of action and prayers for relief from the original complaint.
Additionally, the amended complaint alleged that Butler County
erroneously denied BCD a permit for the pipeline based on the
belief that Read Township had authority over road No. 27 and
asked the court to declare that the county had exclusive author-
ity over placement of a pipeline under road No. 27. Butler

BUTLER COUNTY DAIRY v. BUTLER COUNTY 	413
Cite as 285 Neb. 408
County, Read Township, and Summit Township all filed sepa-
rate answers, and Summit Township made a counterclaim ask-
ing the court to hold the pertinent township regulations valid
and enforceable.
Following resolution of the issue of necessary parties,
which had previously prevented summary judgment, BCD,
Read Township, and Summit Township again separately filed
motions for summary judgment in July 2011. Butler County
also filed a motion for summary judgment. At a hearing before
the district court on these motions, the parties jointly offered
the transcript from the previous hearing, including all exhibits
received during that proceeding. The court also accepted addi-
tional evidence.
On February 7, 2012, the district court granted summary
judgment for Butler County, Read Township, and Summit
Township because it determined that Read Township did in
fact have the authority to enact the township regulations at
issue and that the regulations were not preempted by state
law. The court also considered BCD’s standing to challenge
the Read Township regulations—a matter that is not raised
on appeal.
On the issue of the scope of Read Township’s regulatory
authority, the district court concluded that the regulation of
animal waste generated by large livestock confinement facili-
ties was a proper exercise of the township’s authority “[t]o
prevent the exposure or deposit of offensive or injurious sub-
stances within the limits of the town” under Neb. Rev. Stat.
§ 23-224(6) (Reissue 2012). As for the prohibition against liq-
uid livestock waste pipelines on town property, the court deter-
mined that such a regulation was authorized by Neb. Rev. Stat.
§ 39-1520 (Reissue 2008), which declared that “[a]ll township
road and culvert work shall be under the general supervision
of the township board,” and § 23-224(8)(a), which granted to
townships the authority to raise money “for constructing and
repairing roads and bridges within the town.” Thus, the court
concluded that Read Township had the statutory authority to
enact both regulations at issue.
The conclusion that the pipeline regulation was a valid exer-
cise of Read Township’s authority did not, however, translate

414 	285 NEBRASKA REPORTS
into a holding that the specific road in this case was under
the control of the township and subject to the pipeline regu-
lation. Even though BCD had specifically asked the court to
determine whether Butler County or Read Township had con-
trol over road No. 27, the court refused to decide this matter,
stating that there was “no issue as both entities denied the
request.” Despite this holding, the court did consistently refer
to “County Road 27” throughout its journal entry.
The remainder of the district court’s written decision—
indeed, the bulk of the court’s analysis—focused on the issue
of preemption. After providing a thorough review of state pre-
emption doctrine, the court first addressed the question whether
Read Township’s regulations governing large livestock con-
finement facilities are preempted by LWMA. It determined that
the Legislature “has not expressly declared that regulation of
livestock waste by any other governmental entity is prohibited”
and “explicitly provided that [LWMA] ‘shall not be construed
to change the zoning authority of a county that existed prior
to May 25, 1999.’” Having thus dismissed explicit preemption
and field preemption, the court next turned to the possibility of
conflict preemption and concluded as follows:
Addressing this claim under this analysis, the court
finds that under the provisions of [LWMA] a permit[t]ee
is not automatically allowed to build or operate a live-
stock facility upon receipt of a permit. To the contrary,
the applicant is explicitly obligated to follow local law
before commencing livestock operations. The fact that
local requirements may be more stringent does not create
a conflict; rather, the State and local legislative provisions
can coexist and be equally enforced. Therefore, there is
no conflict preemption under [LWMA].
BCD’s complaint alleged preemption under both LWMA
and Title 130—the regulations enacted pursuant to LWMA.
Although BCD made a single argument for preemption under
both the statutes and the regulations, the district court did not
address preemption by Title 130 in its decision.
BCD had also raised a preemption claim under zoning law.
Because the district court concluded that the relevant town-
ship regulations were not zoning laws and that they had been

BUTLER COUNTY DAIRY v. BUTLER COUNTY 	415
Cite as 285 Neb. 408
“enacted by the townships pursuant to clear legislative author-
ity,” the court held that there was no preemption by zoning
law. It also noted that Butler County had not as yet enacted any
county zoning regulations with which the township regulations
would conflict.
Thus finding that BCD was not entitled to relief or damages,
the district court granted summary judgment in favor of Butler
County, Read Township, and Summit Township.
BCD timely appeals. Pursuant to statutory authority, we
moved the case to our docket.2
III. ASSIGNMENTS OF ERROR
BCD alleges, restated and reordered, that the district court
erred in (1) failing to find that the pertinent Read Township
regulations exceeded the township’s statutory authority, (2)
finding that § 23-224 provided a statutory basis for these
regulations, (3) failing to find that the Read Township regu-
lations are preempted by LWMA and Title 130, (4) failing
to find that the regulations are preempted by “county zoning
statutes,” (5) finding that Butler County properly deferred to
Read Township’s “invalid township authority” over the permit-
ting of the waste pipeline, and (6) finding that Butler County
was a necessary party. BCD does not attack the validity of
Summit Township’s regulations, and thus, our decision does
not address them.
IV. STANDARD OF REVIEW
[1] To the extent an appeal calls for statutory interpretation
or presents questions of law, an appellate court must reach an
independent conclusion irrespective of the determination made
by the court below.3
[2-5] All issues in the present appeal are questions of law
and thus are governed by this standard. The determination of
the proper scope of the powers vested in the subordinate divi-
sions of the state, and the lawfulness of the exercise thereof by
the statutory agencies concerned, necessitates recourse to the
terms of the state Constitution and the language of the statutes
2 See Neb. Rev. Stat. § 24-1106 (Reissue 2008).
3 In re Interest of Kendra M. et al., 283 Neb. 1014, 814 N.W.2d 747 (2012).

416 	285 NEBRASKA REPORTS
relating thereto.4 When reviewing preemption claims, a court
is obligated to harmonize, to the extent it legally can be done,
state and municipal enactments on the identical subject.5 The
interpretation of statutes and regulations required by these two
issues presents questions of law.6 The question of jurisdiction
also is a question of law.7
V. ANALYSIS
1. reaD township’s authority
BCD’s first two assignments of error relate to the author-
ity of Read Township to enact the regulations establishing the
pipeline ban and other requirements for large livestock con-
finement facilities. We will consider each of BCD’s arguments
in turn. To do so, however, requires a solid understanding of
the system of township organization and the division of powers
within a county so organized.
(a) Township Organization
As this court has previously explained, in Nebraska, a
county can be organized under one of two systems of govern-
ment.8 Under the commissioner system, “the government of the
county at large and of its subdivisions is entrusted to a board
of county commissioners, who, together with certain govern-
mental agents subordinate to them, conduct all the affairs of
the county, local and general.”9 In the alternative, a county
may be organized under the township system, under which a
county is further subdivided into townships and “purely local
affairs are entrusted to the town meetings of the several towns,
or to township officers selected by the towns, while the general
4 Cheney v. County Board of Supervisors, 123 Neb. 624, 243 N.W. 881
(1932).
5 State ex rel. City of Alma v. Furnas Cty. Farms, 266 Neb. 558, 667 N.W.2d
512 (2003).
6 See Bridgeport Ethanol v. Nebraska Dept. of Rev., 284 Neb. 291, 818
N.W.2d 600 (2012).
7 See In re Estate of McKillip, 284 Neb. 367, 820 N.W.2d 868 (2012).
8 See Van Horn v. State, 46 Neb. 62, 64 N.W. 365 (1895).
9 Id. at 70-71, 64 N.W. at 367.

BUTLER COUNTY DAIRY v. BUTLER COUNTY 	417
Cite as 285 Neb. 408
affairs of the county are conducted by a board constituted of
the various township supervisors.”10
[6] The adoption of township organization does not alter the
basic powers of a county. A board of supervisors has “all the
powers applicable to county boards as provided by the general
laws of this state.”11 Indeed, Nebraska statutes vest the powers
of a county in a “county board,”12 which term is defined to
encompass both boards of supervisors existing under township
organization and boards of county commissioners in counties
not under township organization.13 As a result, the powers and
duties of a county board are not altered by the adoption of
township organization.
[7] As the name “township organization” suggests, the dis-
tinguishing feature of a county under township organization is
the existence of smaller political subdivisions within a county
called townships. A township “is a subdivision of state terri-
tory, convenient in area, for the purpose of carrying into effect
limited powers governmental in their nature.”14 Its purpose is
“to carry into effect with ease and facility certain powers and
functions . . . which may be more readily and conveniently
carried on by subdivision of the territory of the state into
smaller areas.”15
The powers of a township are exercised through direct local
self-government.16 During annual town meetings, the electors
of a township exercise the corporate powers of a township17
along with other powers provided by statute.18 Although each
10 Id. at 71, 64 N.W. at 367.
11 Neb. Rev. Stat. § 23-270 (Reissue 2012). See, also, Neb. Rev. Stat.
§ 23-208 (Reissue 2012).
12 Neb. Rev. Stat. § 23-103 (Reissue 2012).
13 See, id.; Neb. Rev. Stat. § 39-1401(1) (Reissue 2008).
14 State v. Bone Creek Township, 109 Neb. 202, 204, 190 N.W. 586, 587
(1922).
15 Wilson v. Ulysses Township, 72 Neb. 807, 812, 101 N.W. 986, 988 (1904).
16 See id.
17 See § 23-224(2).
18 See § 23-224.

418 	285 NEBRASKA REPORTS
township also has a township board and township officers,19
each of which has statutorily prescribed powers and duties,20
the electors of a township, when assembled for the annual town
meeting, “constitute a governing body of the township.”21 This
use of town meetings to realize direct local self-government
makes township organization “one of the rare examples in
Nebraska of direct democracy.”22
[8-10] A township does not have the authority to exercise
any powers outside those explicitly given to it by statute.
When enumerating the powers of a township, Neb. Rev. Stat.
§ 23-223 (Reissue 2012) explicitly states that “[e]very town
shall have corporate capacity to exercise the powers granted
thereto, or necessarily implied, and no others.” (Emphasis sup-
plied.) This statutory language has long been interpreted by
this court to mean that the powers conferred upon a township
by statute “are limited and confined to those which properly
belong to the government of the state as a whole, and which
are merely devolved upon the township as a portion of the state
government.”23 The same can be said of the powers conferred
upon counties.24 In fact,
there is but little difference between the powers, duties
and liabilities of a county in this state and those of a
township. The object and purpose of their organization are
the same, and the results sought to be accomplished are
substantially alike, except in degree and territorial extent
of jurisdiction. The main point of distinction between
the two systems is the more popular and democratic
form of government allowed by the township; the idea
19 See, Neb. Rev. Stat. §§ 23-215, 23-222, and 23-228 (Reissue 2012).
20 See, e.g., Neb. Rev. Stat. §§ 23-249 to 23-252 (Reissue 2012).
21 State ex rel. Newman v. Columbus Township Bd., 15 Neb. App. 656, 662,
735 N.W.2d 399, 406 (2007).
22 Id. at 660, 735 N.W.2d at 404.
23 Wilson v. Ulysses Township, supra note 15, 72 Neb. at 812, 101 N.W. at
988.
24 See, Enterprise Partners v. County of Perkins, 260 Neb. 650, 619 N.W.2d
464 (2000); Morton v. Carlin, 51 Neb. 202, 70 N.W. 966 (1897).

BUTLER COUNTY DAIRY v. BUTLER COUNTY 	419
Cite as 285 Neb. 408
of local self-government being the essence of the town-
ship system.25
Because a township is a political subdivision of the state, the
statutes granting a township certain powers must be strictly
construed.26
In the instant case, BCD argues that Read Township exceeded
its limited statutory authority by enacting the two regulations
at issue. Of these two regulations, BCD confesses that it has
been harmed thus far only by the pipeline ban. Thus, we first
address Read Township’s authority to enact such a ban.
(b) Authority to Enact Pipeline Ban
The exact language of the Read Township regulation enact-
ing the pipeline ban is as follows: “No person shall be allowed
to place on, over or under town property, including town roads,
right-of-ways and ditches, any pipeline which carries liquid
livestock waste.” BCD mainly objects to the ban on pipelines
“on, over or under” township roads. According to BCD, Read
Township did not have the authority to regulate and control
the roads located within its territory through a pipeline ban
because Butler County alone could exercise authority over the
roads within Read Township. In the event we find that Read
Township did have the authority to regulate roads within its
borders, BCD argues that the authority of the electors of Read
Township to regulate “offensive or injurious substances” under
§ 23-224(6) was not a proper statutory base for enactment of
the pipeline ban.
We agree that the question whether Read Township pos-
sessed authority to regulate the placement of liquid livestock
waste pipelines “on, over or under” the roads within its terri-
tory actually presents two separate questions. First, we must
determine whether Read Township had the general authority to
regulate roads within its territory, which roads necessarily also
25 Wilson v. Ulysses Township, supra note 15, 72 Neb. at 810-11, 101 N.W.
at 988.
26 See DLH, Inc. v. Lancaster Cty. Bd. of Comrs., 264 Neb. 358, 648 N.W.2d
277 (2002).

420 	285 NEBRASKA REPORTS
lie within Butler County. Second, we must consider whether
the electors of Read Township had the statutory authority to
enact a regulation prohibiting liquid livestock waste pipelines.
Only if Read Township had the authority both to regulate
township roads and to enact a pipeline ban was the resulting
regulation prohibiting pipelines “on, over or under” township
roads a valid exercise of township authority.
(i) Authority Over Township Roads
Turning first to the question of Read Township’s authority
to regulate the roads within its territory, we note that Nebraska
statutes distinguish between types of roads within a county. We
mention only the designations relevant to our discussion in the
instant case.
The broadest designation for a road is that of public road,
which includes “all roads within this state which have been
laid out in pursuance of any law of this state, and which have
not been vacated in pursuance of law, and all roads located
and opened by the county board of any county and traveled
for more than ten years.”27 The statutes refer to public roads
as county roads or township roads depending on where they
are located.28
Any public road within a county can also be designated by
the county board as a primary or secondary county road.29 All
public roads within a county are county roads in the sense that
they are located within the territory of a county, but not all
public roads within a county are designated as primary or sec-
ondary county roads. The kinds of roads typically designated as
primary or secondary county roads are “main traveled roads,”
roads connecting cities, roads leading to and from schools, and
mail route roads.30 All primary and secondary county roads
must be maintained at county expense.31
27 § 39-1401(2).
28 See, e.g., Neb. Rev. Stat. §§ 39-1408 and 39-1801 (Reissue 2008).
29 See Neb. Rev. Stat. § 39-2001(1) (Reissue 2008).
30 Id.
31 See Neb. Rev. Stat. § 39-2003 (Reissue 2008).

BUTLER COUNTY DAIRY v. BUTLER COUNTY 	421
Cite as 285 Neb. 408
In the instant case, there was no evidence at trial that road
No. 27 was designated as a primary or secondary county road.
Thus, we treat it as a public road located wholly within Butler
County and partially within Read Township.
[11,12] Under Nebraska statutes, the general supervision
of public roads is vested in both county boards and township
boards. Neb. Rev. Stat. § 39-1402 (Reissue 2008) states that
“[g]eneral supervision and control of the public roads of each
county is vested in the county board.” Similarly, § 39-1520
states that “[a]ll township road and culvert work shall be under
the general supervision of the township board . . . .”
In the case of a road that is located within both a county
and a township, such as road No. 27, a plain reading of
these statutes suggests that the county board and the town-
ship board have concurrent authority over that road. The
statutory grants of power in the instant case—§§ 39-1402
and 39-1520—do not, on their face, conflict. The language
of § 39-1402 only vests the power of general supervision in
county boards—it does not require county boards to exercise
that power. Neither does the language of § 39-1402 indicate
that the power of general supervision vested in county boards
is exclusive. Indeed, in State, ex rel. Piercey, v. Steffen,32 this
court explained that a county “is not required to maintain
[township, precinct, or district] roads at county expense. It
is merely required to see that the roads under the jurisdiction
of these smaller political units are maintained and repaired.”
Because the power vested in county boards is neither exclu-
sive nor mandatory, the grants of supervisory authority over
public roads in §§ 39-1402 and 39-1520 do not discern-
ibly conflict.
This court has previously found that grants of general super-
visory authority over public roads to both counties and smaller
political subdivisions can relate to the same public road and
still be consistent with one another. In SID No. 2 v. County
of Stanton,33 we concluded that two political subdivisions had
32 State, ex rel. Piercey, v. Steffen, 121 Neb. 39, 42, 236 N.W. 141, 142
(1931).
33 SID No. 2 v. County of Stanton, 252 Neb. 731, 567 N.W.2d 115 (1997).

422 	285 NEBRASKA REPORTS
concurrent authority over public roads located within both of
their territories because the statutory grants of power to each
of the political subdivisions did not conflict. Although that
case involved the power of sanitary and improvement districts
and not of townships, it stands for the proposition that two
political subdivisions can possess concurrent authority over
public roads provided that those powers as granted by statute
do not conflict.
[13] Because §§ 39-1402 and 39-1520 do not inherently
conflict, 	we 	conclude 	that 	they 	vest 	general 	supervisory
authority over public roads located within a township in both
the county board and the township board, respectively, and
that these political subdivisions have concurrent powers over
township roads. In other words, a county board and a town-
ship board are both vested with general supervisory authority
over a township road. Such concurrent authority is consistent
with other Nebraska statutes relating to public roads. Neb.
Rev. Stat. § 39-1524 (Reissue 2008) provides that a township
may request funds from the county “to aid in the building,
constructing, or repairing” of township roads. If a township
can request money for the purpose of building township
roads, it must necessarily have the authority to actually build
and maintain those roads. Notwithstanding § 39-1524, Neb.
Rev. Stat. § 39-1907 (Reissue 2008) allows a township to
appropriate money to the county “to assist in the construc-
tion or improvement” of roads within the township. Given the
language of § 39-1907, a county must also have the power to
build township roads. When read together, these provisions
contemplate that both counties and townships may, depend-
ing on the situation, build and improve public roads within
a township.
The case cited by BCD does not dissuade us from this con-
clusion that counties and townships have concurrent authority
over public roads within a township. BCD cites to Art-Kraft
Signs, Inc. v. County of Hall34 for the proposition that “a town-
ship possesses no authority over what is erected on a township
34 Art-Kraft Signs, Inc. v. County of Hall, 203 Neb. 523, 279 N.W.2d 159
(1979).

BUTLER COUNTY DAIRY v. BUTLER COUNTY 	423
Cite as 285 Neb. 408
road”35 and argues that this case is “directly on point.”36 This
is an inaccurate statement of the holding in that case. In Art-
Kraft Signs, Inc., we considered whether a township’s supervi-
sory authority over public roads within its territory prevented
a county from exercising its authority over those same roads.
Faced with a township’s attempt to enjoin a county from exer-
cising any authority over a township road, we held specifically
that the authority of a township over public roads within its
territory did not override the authority of a county. We did
not hold that townships possessed no authority over township
roads, but that a township’s authority over such roads did not
supersede the general supervisory power of a county. These
are distinct issues, the former of which the court in Art-Kraft
Signs, Inc. simply did not reach.
Art-Kraft Signs, Inc. does, however, highlight the significant
fact that a county is higher than a township in the hierarchy of
political subdivisions in Nebraska. A township is created by
a county from the territory of the county.37 And a county can
effectively delegate the maintenance of public roads within
a township to that township so long as it ensures that “the
roads under the jurisdiction of these smaller political units are
maintained and repaired.”38 As such, the powers over township
roads vested in both counties and townships may be concur-
rent, but they are not equal.
We now turn, as did the court in Art-Kraft Signs, Inc., to the
interrelation of the powers of a county and a township over
township roads. But unlike in Art-Kraft Signs, Inc., where we
considered whether the exercise of authority over township
roads by a township overrode the general supervisory power of
a county over all public roads, we must determine whether the
exercise of authority by a county over township roads super-
sedes the authority of a township. This latter question, not the
former, is the one raised in the instant appeal.
35 Brief for appellant at 17.
36 Id. at 16.
37 See Neb. Rev. Stat. § 23-209 (Reissue 2012).
38 State, ex rel. Piercey, v. Steffen, supra note 32, 121 Neb. at 42, 236 N.W.
at 142.

424 	285 NEBRASKA REPORTS
[14] Consistent with the hierarchy of political subdivi-
sions, the exercise of a county’s authority over township
roads can supersede a township’s authority over those same
roads. In Franek v. Butler County,39 we considered whether
a county was liable for injuries that resulted when a vehicle
was driven into an open, unmarked culvert on a road within
one of the county’s townships. Because the county had
entered into a contract to improve the township road in ques-
tion, we held that the county had “assumed control under
statutory power” over the road and “superseded the town-
ships in authority.”40 We specifically explained that “[a]fter
[the county] assumed control under statutory power, responsi-
bility for the public improvement and liability to individuals
for negligence resulting in damages did not continue in or
shift to townships or oscillate between county and townships.
Liability followed the exercise of power and the superseding
of the townships.”41
The characterization of the county’s actions pertaining to
the road as superseding the township is significant. To super-
sede commonly means “to take the place of and outmode by
superiority.”42 And the court in Franek stated that the county
superseded the township when it “exercised power to improve
the [township road].”43 Since the county superseded, or took
the place of, the township when it began improving the town-
ship road, the township must have been in the position of
improving the road prior to that time. Furthermore, the court
explicitly stated that responsibility over the township road
“did not continue in . . . townships” once the county “assumed
control under statutory power,”44 from which we conclude that
the county’s assumption of control—manifested by improving
39 Franek v. Butler County, 127 Neb. 852, 257 N.W. 235 (1934).
40 Id. at 856, 257 N.W. at 236.
41 Id.
42 Webster’s Third New International Dictionary of the English Language,
Unabridged 2295 (1993).
43 Franek v. Butler County, supra note 39, 127 Neb. at 856, 257 N.W. at 236.
44 Id.

BUTLER COUNTY DAIRY v. BUTLER COUNTY 	425
Cite as 285 Neb. 408
the road—caused the change in responsibility. Thus, from
Franek, we conclude that (1) a township can exercise authority
over township roads until the point in time at which a county
assumes control, (2) the assumption of control by a county
supersedes the authority of a township, and (3) a county can
assume control by improving the road.
We note that the court in Franek held the county responsible
for the township road despite not having formally designated
the road as a primary or secondary county road. In fact, the
court specifically rejected the argument that the county could
not be held responsible for the road simply because it had
failed to designate the road as a primary or secondary county
road. Instead, the court focused on the fact that the county had
“assumed control under statutory power” by grading, excavat-
ing, and generally improving the road.45
Turning to the road at issue in the instant case, we find
that at the time the relevant regulations were adopted, Butler
County had not exercised any control over road No. 27 so
as to supersede Read Township in authority. Although the
district court repeatedly referred to road No. 27 as “County
Road 27,” there was no evidence at trial that road No. 27 had
been designated a primary or secondary county road or that
the county was responsible for the maintenance of the road.
Rather, the evidence demonstrated that it was the policy of
Butler County to defer matters relating to public roads located
within townships to the individual townships. The permit to
bury a utility in a road right-of-way used by Butler County
in 2007 stated that “[i]t is the [a]pplicant’s responsibility . . .
[t]o get approval from the Township Board if this utility is
on township road right-of-way.” This requirement of town-
ship approval continued until at least 2009, when the permit
listed as the first of several “PERMIT REQUIREMENTS”
that “Township Board approval must be obtained if this permit
involves a township right-of-way.” Both the 2007 and 2009
permits required the signature of a township board member
in addition to the signature of the chairman of the Butler
45 Id.

426 	285 NEBRASKA REPORTS
County Board of Supervisors. The Butler County Board of
Supervisors enforced this requirement and denied permits if
township approval was not obtained. Indeed, following the
unanimous vote to deny BCD’s permit because it had not
obtained approval from Read Township, one of the Butler
County supervisors explained that the county had a “policy
of letting townships rule in permit issues,” that this policy
“ha[d] worked in the past,” and that the board of supervisors
“understood they had the authority to override townships but
[it] chose not to.”
Given this evidence that it was Butler County’s policy to
defer matters relating to township roads to townships, we find
that the county had not chosen to exercise control over the
township roads in Read Township prior to 2009. The electors
of Read Township enacted the pipeline ban in September 2007.
Therefore, because Butler County had not exercised control
over township roads at the time the pipeline ban was adopted,
Read Township possessed general supervisory authority over
those township roads. The pipeline ban was not invalid due to
a lack of authority over township roads.
BCD separately assigns error to the district court’s conclu-
sion that “Butler County properly deferred to Read Township’s
invalid township authority over the permitting of the waste
pipeline.” Given our explanation that Read Township pos-
sessed concurrent authority over public roads within its terri-
tory and the evidence that Butler County had declined to exer-
cise its authority over township roads at the time the pipeline
ban was enacted, the court committed no error in determining
that Butler County had the power to defer to Read Township on
any issue relating to township roads, including the placement
of livestock waste pipelines.
(ii) Authority to Ban Pipeline
Under § 23-224(6)
When the electors of Read Township enacted the pipeline
ban, they specifically cited to their powers under § 23-224(2),
(6), and (7). Because we find that § 23-224(6) vested Read
Township with sufficient authority to prohibit liquid livestock
waste pipelines, we do not discuss § 23-224(2) or (7).

BUTLER COUNTY DAIRY v. BUTLER COUNTY 	427
Cite as 285 Neb. 408
[15] Under § 23-224(6), the electors of a township have the
power “[t]o prevent the exposure or deposit of offensive or
injurious substances within the limits of the town.” If liquid
livestock waste falls within the category of offensive or injuri-
ous substances contemplated by § 23-224(6), this subsection
clearly gave Read Township the authority to enact a ban on
liquid livestock waste pipelines “on, over or under” town-
ship property.
Because § 23-224 provides no definition of offensive or
injurious substances and does not otherwise note that this lan-
guage is subject to a special statutory meaning, we give the
words in § 23-224(6) their ordinary meaning.46 In common
usage, a substance or thing is offensive if it can be described
as “giving painful or unpleasant sensations.”47 A substance or
thing is injurious if it “inflict[s] or tend[s] to inflict injury.”48
Even construing this language strictly, as we must do,49 we
find that liquid livestock waste is an offensive and potentially
injurious substance.
By enacting LWMA and Title 130, both of which focused
on the proper management, use, and disposal of livestock
waste, the Legislature acknowledged that livestock waste is a
potentially harmful substance that must be handled properly.
Among other things, LWMA made it unlawful (1) to oper-
ate an animal feeding operation without having “an approved
livestock waste control facility,”50 which facilities are used “to
control livestock waste . . . until it can be used, recycled, or
disposed of in an environmentally acceptable manner,”51 and
(2) to discharge “animal excreta” and “other materials polluted
by livestock waste” without obtaining the appropriate permits
or an exemption.52 These requirements indicate that livestock
46 See J.M. v. Hobbs, 281 Neb. 539, 797 N.W.2d 227 (2011).
47 Webster’s, supra note 42 at 1566.
48 Id. at 1164.
49 See DLH, Inc. v. Lancaster Cty. Bd. of Comrs., supra note 26.
50 § 54-2432(3).
51 § 54-2417(10).
52 § 54-2432(4).

428 	285 NEBRASKA REPORTS
waste can be managed in a manner that is detrimental to the
environment. Indeed, Title 130 defines “[l]ivestock wastes”
as including “animal and poultry excreta and associated feed
losses, bedding, spillage or overflow from watering systems,
wash and flushing waters, sprinkling waters from livestock
cooling, precipitation polluted by falling on or flowing onto
an animal feeding operation, and other materials polluted by
livestock wastes”53—a definition expressly recognizing that
livestock wastes are pollutants.
Because livestock waste can be a pollutant and, under
Nebraska law, must be managed in a manner that is environ-
mentally acceptable, it can be described as both offensive and
injurious. Therefore, the electors of Read Township had the
authority under § 23-224(6) to “prevent the exposure or deposit
of” livestock waste within the township.
Read Township’s pipeline ban was a proper exercise of the
authority to “prevent the exposure or deposit of” livestock
waste within the township. Although BCD argues that the abil-
ity to install a pipeline would actually decrease the possibility
that livestock waste would be spilled onto township roads, the
electors plausibly could have reasoned that by preventing live-
stock waste from being physically piped “on, over or under”
township roads, the potential for livestock waste to be leaked
or spilled onto township property would thereby be minimized.
Because a ban on liquid livestock waste pipelines reason-
ably could have been enacted as a means of “prevent[ing] the
exposure or deposit of” livestock waste on township roads,
the pipeline ban fell within one of Read Township’s limited
statutory powers and was not an invalid exercise of town-
ship authority.
(iii) Conclusion as to Pipeline Ban
Having concluded that Read Township (1) had concur-
rent authority over township roads, which authority had not
been superseded by Butler County at the time of the pipeline
ban’s enactment, and (2) was authorized by statute to regulate
offensive or injurious substances on town property, which
53 130 Neb. Admin. Code, ch. 1, § 028 (2008) (emphasis supplied).

BUTLER COUNTY DAIRY v. BUTLER COUNTY 	429
Cite as 285 Neb. 408
includes liquid livestock waste, we find that the township
had both general authority over township roads and specific
authority to enact a liquid livestock waste pipeline ban. The
regulation enacting a pipeline ban was a valid exercise of Read
Township’s statutory authority.
(c) Authority to Regulate Large Livestock
Confinement Facilities
The second Read Township regulation challenged by BCD
governs large livestock confinement facilities. As noted in
the background section, this regulation implemented minimum
setback requirements for large livestock confinement facilities;
required owners and operators of such facilities to demonstrate
that livestock waste would not be carried onto township prop-
erty in the event of a 25-year storm; and prohibited the spillage
of livestock waste onto township roads, ditches, or property
from such facilities or during transport.
[16] Because BCD had not been affected by this regula-
tion at the time of bringing suit, we consider its complaint as
bringing only a facial challenge. This court has not previously
relied upon the distinction between facial and as-applied chal-
lenges in actions raising questions of statutory authority, but
we believe that the distinction applies. Thus, when a party
challenges the validity of a township regulation without argu-
ing that a particular application of the regulation is improper,
we will consider that to be a facial challenge that can suc-
ceed only “by establishing that no set of circumstances exists
under which the [regulation] would be valid.”54 Accordingly,
we apply that standard in the instant case. By considering the
facial validity of the Read Township regulation here, we do not
preclude a later as-applied challenge by BCD.
Like the pipeline ban, Read Township’s regulation govern-
ing large livestock confinement facilities is a plausible means
of preventing livestock waste from polluting township prop-
erty. As stated in the preamble to the regulation, the electors
of Read Township adopted this regulation because they found
that “large scale livestock confinement facilities may present
54 See State v. Harris, 284 Neb. 214, 221, 817 N.W.2d 258, 268 (2012).

430 	285 NEBRASKA REPORTS
a threat of contamination and destruction of county roads,
ditches, and property due to overflow of lagoon and impound-
ments during and following storms, during operation, and dur-
ing transport of livestock and livestock waste.” The prohibition
against the spillage of livestock waste onto township property
from such facilities or during transport prevents livestock
waste from polluting township property by penalizing the care-
less handling of livestock waste. Under the regulation, any
spillage of livestock waste can be punished by a fine. When
faced with this penalty, large livestock confinement facili-
ties such as BCD may exercise increased care when handling
livestock waste. Similarly, the requirement that large livestock
confinement facilities demonstrate that livestock waste would
not be carried onto township property during a 25-year storm
ensures that these facilities have taken the necessary precau-
tions to prevent livestock waste from entering township prop-
erty. Finally, by requiring large livestock confinement facilities
to be located at least a minimum distance from public buildings
and private homes, the setback requirements in this regulation
minimize the risk of exposure to livestock waste outside of
the large livestock confinement facility that could conceivably
reach township property.
As we have already discussed, livestock waste is an offen-
sive and injurious substance as contemplated by § 23-224(6).
As such, under this subsection, the electors of Read Township
had the authority to enact regulations that would “prevent the
exposure or deposit of” livestock waste within the township.
Because BCD has not established that there were no circum-
stances under which the regulation would be valid, we find that
its facial challenge to the regulation lacks merit.
2. preeMption
In addition to arguing that Read Township’s regulations
were not a proper exercise of the township’s statutory author-
ity, BCD also asserts that these regulations are preempted by
LWMA, Title 130, and “county zoning statutes.”55 We find no
such preemption.
55 Brief for appellant at 14.

BUTLER COUNTY DAIRY v. BUTLER COUNTY 	431
Cite as 285 Neb. 408
(a) General Principles of Preemption
[17,18] The parties have not cited nor have we found any
case law in Nebraska discussing the preemption of township
laws by state law. There is, however, considerable case law on
the preemption of municipal law. In discussing the preemp-
tion of municipal law, this court has previously explained that
“[p]reemption of municipal ordinances by state law is based
on the fundamental principle that ‘municipal ordinances are
inferior in status and subordinate to the laws of the state.’”56
Further, we have explained that municipal laws are inferior
to state law because “a municipal corporation derives all of
its powers from the state and . . . has only such powers as the
Legislature has seen fit to grant to it,” concluding from this
fact that “in the case of a direct conflict between a statute and
a city ordinance, the statute is the superior law.”57
[19,20] Like a municipality, a township possesses only the
limited powers conferred upon it by statute.58 Consequently,
any laws enacted pursuant to a township’s limited statutory
authority necessarily are subordinate to the laws of the state
from which the township’s powers derived. Due to the similar
subordinate nature of municipal laws and township laws, we
conclude that the same preemption doctrines apply to the laws
of both municipalities and townships.
[21,22] There are three types of preemption: (1) express
preemption, (2) field preemption, and (3) conflict preemption.59
In all three cases, “[t]he touchstone of preemption analysis
is legislative intent.”60 Express preemption occurs when the
Legislature has “expressly declare[d] in explicit statutory lan-
guage its intent to preempt” local laws.61 Field preemption and
56 State ex rel. City of Alma v. Furnas Cty. Farms, supra note 5, 266 Neb.
at 567, 667 N.W.2d at 521 (quoting 5 Eugene McQuillin, The Law of
Municipal Corporations § 15.20 (3d ed. 1996)).
57 Phelps Inc. v. City of Hastings, 152 Neb. 651, 653, 42 N.W.2d 300, 302
(1950).
58 See, Wilson v. Ulysses Township, supra note 15; § 23-223.
59 See State ex rel. City of Alma v. Furnas Cty. Farms, supra note 5.
60 Id. at 567, 667 N.W.2d at 521.
61 Id. at 568, 667 N.W.2d at 522.

432 	285 NEBRASKA REPORTS
conflict preemption arise in situations where the Legislature
did not explicitly express its intent to preempt local laws, but
we can infer such intent from other circumstances.
[23,24] In field preemption, legislative intent to preempt
local laws is “inferred from a comprehensive scheme of
legislation.”62 When there is not comprehensive legislation
on a subject, local laws “‘may cover an authorized field of
local laws not occupied by general laws, or may comple-
ment a field not exclusively occupied by the general laws.’”63
Indeed, “‘[t]he mere fact that the legislature has enacted a law
addressing a subject does not mean that the subject matter is
completely preempted.’”64 But “‘where the state has occupied
the field of prohibitory legislation on a particular subject,’”
there is no room left for local laws in that area and a politi-
cal subdivision “‘lacks authority to legislate with respect to
it.’”65 Because a comprehensive scheme of legislation effec-
tively keeps localities from legislating in that area, we infer
from such a scheme that the Legislature intended to preempt
local laws.
[25] In conflict preemption, legislative intent to preempt
local laws is inferred “to the extent that [a local law] actu-
ally conflicts with state law.”66 As this court has previously
explained, “‘[t]hat which is allowed by the general laws of
the state cannot be prohibited by ordinance, without express
grant on the part of the state. Conversely, without express leg-
islative grant, an ordinance cannot authorize what the statutes
forbid.’”67 Nonetheless, when a court considers preemption
claims, it “is obligated to harmonize, to the extent it legally
can be done, state and municipal enactments on the identi-
cal subject.”68
62 Id.
63 Id. at 569, 667 N.W.2d at 522 (quoting 5 McQuillin, supra note 56).
64 Id. at 571, 667 N.W.2d at 524 (quoting 5 McQuillin, supra note 56).
65 Id. at 569, 667 N.W.2d at 522 (quoting 5 McQuillin, supra note 56).
66 Id.
67 Id. (quoting 5 McQuillin, supra note 56).
68 Id. at 568, 667 N.W.2d at 521-22.

BUTLER COUNTY DAIRY v. BUTLER COUNTY 	433
Cite as 285 Neb. 408
We now apply these principles of preemption to the Read
Township regulations at question in the instant case.
(b) Preemption by LWMA and Title 130
BCD alleges that the pertinent Read Township regulations
are preempted by LWMA and the regulations issued pursu-
ant thereto—Title 130. BCD does not contend that there is
express preemption, but instead focuses on field preemption,
arguing that “[t]he scope and breadth of Title 130 clearly
indicates that [DEQ’s] regulatory process has occupied the
field with respect to regulating [concentrated animal feeding
operations] and their waste facilities.”69 We do not agree that
Read Township’s regulations are preempted by LWMA and
Title 130.
For the sake of completeness, we begin by agreeing that
LWMA and Title 130 do not expressly preempt local laws
on the subject of livestock waste management. When enact-
ing other statutory schemes in Nebraska, the Legislature has
included provisions explicitly stating in some manner (1) that
the legislation preempts local laws related to the subject matter
of the legislation,70 (2) that a certain subject is governed solely
by the legislation,71 or (3) that political subdivisions are pro-
hibited from enacting any local law conflicting with the legis-
lation.72 LWMA does not include any such language indicating
legislative intent to preempt local laws either by the enactment
of LWMA itself or by the promulgation of regulations pursuant
thereto. Therefore, there is no express preemption of local laws
by LWMA or Title 130.
Turning next to field preemption, we note, as did the dis-
trict court, that LWMA includes language indicating that the
Legislature did not intend to occupy the entire field of live-
stock waste management regulation. Section 54-2420 states
that “[n]othing in [the permitting provisions of LWMA] shall
be construed to change the zoning authority of a county that
69 Brief for appellant at 38.
70 See, e.g., Neb. Rev. Stat. § 2-2625 (Reissue 2012).
71 See, e.g., Neb. Rev. Stat. § 9-841 (Reissue 2012).
72 See, e.g., Neb. Rev. Stat. § 69-510(2) (Reissue 2009).

434 	285 NEBRASKA REPORTS
existed prior to May 25, 1999.” Even though LWMA and Title
130 do provide a detailed regulatory scheme for livestock
waste management, § 54-2420 indicates that the state require-
ments were meant to coexist with local requirements.
This intent also is apparent from DEQ’s enforcement of
LWMA and Title 130. The application for a permit under
LWMA and Title 130 states that the applicant “is responsible
for compliance with all local laws, and for obtaining applicable
local, county, and other permits.” The permits subsequently
issued by DEQ also are accompanied by a letter noting that
the state permit “does not remove your responsibility to com-
ply with any county or local zoning regulations.” A supervi-
sor from DEQ who was deposed in the instant case explained
that this language on the application and permit was included
to remind permittees “it’s their responsibility to comply with
[local or county regulations]” and that compliance with county
and local zoning “is a separate issue from [DEQ’s] consid-
eration of their application.” Together, § 54-2420 and these
examples from DEQ’s enforcement of LWMA and Title 130
indicate an intent for these state statutes and regulations to
coexist with local laws, which fact precludes a finding of
field preemption.
Finally, we consider whether local laws governing live-
stock waste management are preempted by state law accord-
ing to principles of conflict preemption. In its brief, BCD
only briefly addresses conflict preemption, arguing that the
township 	regulation 	requiring 	yearly 	updates 	of 	25-year
storm demonstrations conflicts with LWMA and Title 130
because the state statutes and regulations do not require
yearly updates. This is not a true conflict between the town-
ship regulations and state law and does not support a finding
of conflict preemption.
Read Township’s regulation and Title 130 both have require-
ments related to 25-year storms. The township regulation
requires large livestock confinement facilities to demonstrate
on a yearly basis that “livestock waste, liquid or solid, will
not be carried or washed onto or into town roads or ditches or
properties adjacent to a facility during or following a 25-year
storm.” Under Title 130, a livestock waste control facility

BUTLER COUNTY DAIRY v. BUTLER COUNTY 	435
Cite as 285 Neb. 408
must be designed so as to “provide adequate storage capacity
for all . . . runoff [or] the runoff from a 25-year, 24-hour rain-
fall event.”73
Even though the Read Township regulation and Title 130
use different terms to refer to the facilities governed by each
law, both laws apply to similar facilities. A large livestock con-
finement facility is defined by the township regulation as “a
livestock operation that is over 600 animal units and where the
livestock are or can be confined to areas which are roofed.” A
facility that meets this definition is also likely to be an animal
feeding operation as defined in Title 130, which includes “a
location where . . . livestock have been, are, or will be stabled
or confined and fed or maintained for a total of forty-five
days or more in any twelve-month period.”74 Animal feeding
operations are required under certain circumstances to have
livestock waste control facilities.75 As such, operations that are
large livestock confinement facilities under township law likely
may be required by state law to operate livestock waste control
facilities and thus will be subject to both township and state
provisions relating to 25-year storms.
Read Township’s 25-year storm demonstration requirement
is similar to Title 130’s 25-year storm requirement. An appli-
cant for a construction and operating permit under LWMA
and Title 130 must submit a “description of the methods that
will be implemented to [e]nsure the facility is constructed
in accordance with the applicable design criteria and these
regulations.”76 The 25-year storm requirement is included
within the chapter of Title 130 that enumerates “Design
Criteria and Construction Requirements.”77 In other words,
under LWMA and Title 130, an applicant must provide as
part of his or her application some sort of demonstration that
the proposed livestock waste control facility is designed and
73 130 Neb. Admin. Code, ch. 8, § 002 (2008).
74 130 Neb. Admin. Code, ch. 1, § 002 (2008).
75 See 130 Neb. Admin. Code, ch. 2, § 003 (2008).
76 130 Neb. Admin. Code, ch. 4, § 001.06 (2008).
77 See 130 Neb. Admin. Code, ch. 8 (2008).

436 	285 NEBRASKA REPORTS
will be constructed so as to adequately store livestock waste
in the event of a 25-year storm. Read Township’s regulation
requires precisely this sort of demonstration, except on a
yearly basis. Substantively, therefore, the township regulation
addresses the same concern as the state law—whether a facil-
ity can properly contain livestock waste even in the event of
a 25-year storm.
The main difference between the requirements imposed by
Read Township and the state is that the township requires more
frequent demonstrations. While Title 130 requires only a dem-
onstration of compliance with the 25-year storm requirement
when applying for a construction and operating permit, Read
Township’s regulation requires yearly updates to the 25-year
storm demonstration. In this regard, the township regulation is
more stringent.
[26] The fact that a local law is more stringent than state law
does not by itself lead to conflict preemption. In Phelps Inc.
v. City of Hastings,78 we considered whether a municipal ordi-
nance that imposed more stringent requirements than state stat-
ute was inconsistent with state law such that it was preempted.
We held that the municipal ordinance was not inconsistent with
state law, citing with approval the following explanation from
a legal commentary:
“So long as there is no conflict between the two, and the
requirements of the municipal bylaw are not in them-
selves pernicious, as being unreasonable or discrimina-
tory, both will stand. The fact that an ordinance enlarges
upon the provisions of a statute by requiring more than
the statute requires creates no conflict therewith, unless
the statute limits the requirement for all cases to its
own prescription. Thus, where both an ordinance and a
statute are prohibitory and the only difference between
them is that the ordinance goes further in its prohibition,
but not counter to the prohibition under the statute, and
the municipality does not attempt to authorize by the
ordinance what the legislature has forbidden or forbid
78 Phelps Inc. v. City of Hastings, supra note 57.

BUTLER COUNTY DAIRY v. BUTLER COUNTY 	437
Cite as 285 Neb. 408
what the legislature has expressly licensed, authorized, or
required, there is nothing contradictory between the pro-
visions of the statute and the ordinance because of which
they cannot coexist and be effective. Unless legislative
provisions are contradictory in the sense that they cannot
coexist, they are not deemed inconsistent because of mere
lack of uniformity in detail.”79
Under this holding, a local law is not preempted simply
because it is more stringent than state law.
BCD does not argue that the township regulation imposing
the demonstration requirement is inconsistent with state law
for any reason other than that it is more stringent. This fact
alone is not sufficient to prove preemption. Therefore, under
the precedent of Phelps Inc., Read Township’s demonstration
requirement is not preempted based on the fact that it is more
stringent than LWMA and Title 130.
Apart from Read Township’s demonstration requirement
relating to 25-year storms, BCD does not identify any other
ways in which Read Township’s regulations conflict with
LWMA and Title 130. Given our finding that the demonstration
requirement is not in conflict with state law and in the absence
of any additional arguments for the application of conflict
preemption, we do not find that Read Township’s regulations
are preempted because they directly conflict with LWMA and
Title 130.
In conclusion, we find that none of the three types of pre-
emption apply in the instant case. Read Township’s regulations
governing large livestock confinement facilities are not pre-
empted by LWMA and Title 130. The district court did not err
in so holding.
(c) Preemption by County Zoning
BCD also alleges that Read Township’s regulation enact-
ing setback requirements is preempted by “county zoning
statutes.”80 But as BCD itself confesses, Butler County has not
79 Id. at 657, 42 N.W.2d at 304 (quoting 37 Am. Jur. Municipal Corporations
§ 165 (1941)).
80 Brief for appellant at 14.

438 	285 NEBRASKA REPORTS
enacted any county zoning laws. Because there are no county
zoning laws applicable to Read Township, there is no county
zoning to preempt the township’s setback requirements.
In its brief, BCD uses its argument on this assignment of
error to attack Read Township’s authority to enact the setback
requirements. It asserts that the district court “wrongly con-
cluded that [the township regulation imposing setback require-
ments] did not constitute zoning.”81 Then, over several pages,
BCD argues that “[t]he plain language alone of Nebraska’s
zoning statutes demonstrate[s] that a township does not have
the authority to enact a zoning ordinance.”82
[27] BCD makes this argument about Read Township’s lack
of authority in its brief, but does not specifically assign it as
error. Errors argued but not assigned will not be considered on
appeal.83 Therefore, because BCD did not assign error to the
district court’s failure to conclude that Read Township did not
possess the authority to enact zoning laws, we do not address
the issue on appeal.
Having considered only the error actually assigned by BCD
in regard to zoning statutes, we conclude that Read Township’s
regulation imposing setback requirements was not preempted
by county zoning statutes.
3. Butler county as necessary party
[28] BCD’s final assignment of error relates to the district
court’s conclusion that Butler County was a necessary party
to the case. Because “[t]he presence of necessary parties is
jurisdictional”84 and “[t]he question of jurisdiction is a question
of law,”85 we resolve the question whether Butler County was a
necessary party independently of the district court.86
81 Id. at 40.
82 Id.
83 Bacon v. DBI/SALA, 284 Neb. 579, 822 N.W.2d 14 (2012).
84 Reed v. Reed, 277 Neb. 391, 399, 763 N.W.2d 686, 693 (2009).
85 In re Estate of McKillip, supra note 7, 284 Neb. at 369, 820 N.W.2d at
872.
86 See id.

BUTLER COUNTY DAIRY v. BUTLER COUNTY 	439
Cite as 285 Neb. 408
“An indispensable or necessary party to a suit is one whose
interest in the subject matter of the controversy is such that the
controversy cannot be finally adjudicated without affecting the
indispensable party’s interest . . . .”87 Given our holding that
Butler County and Read Township had concurrent jurisdiction
over township roads and that Read Township could exercise
its authority over those roads only if the county had not as yet
superseded the township’s authority, the determination whether
Read Township had the authority to enact regulations govern-
ing township roads necessarily involved a determination of
the rights of Butler County—namely, whether Butler County
had exercised power over township roads such that it super-
seded the township’s otherwise concurrent authority. Therefore,
Butler County was a necessary party to this action, and the
district court did not err in ordering BCD to bring the county
in as a party.
VI. CONCLUSION
A county and a township have concurrent authority over
public roads located within a township. However, due to the
superiority over townships within the hierarchy of political
subdivisions within the state, the exercise of a county’s author-
ity over township roads supersedes a township’s authority over
those same roads. Due to this relationship, Butler County was
indeed a necessary party to this action. However, because Butler
County had not exercised its authority over the roads within
Read Township at the time the township’s electors enacted
regulations governing those roads, the township had author-
ity over township roads. Under § 23-224(6), Read Township
also had the authority to enact regulations to prevent livestock
wastes from polluting township property. Accordingly, Read
Township did not act outside of its statutory authority when
enacting the regulations in question. Finally, we conclude that
Read Township’s regulations governing large livestock con-
finement facilities are not preempted by LWMA, Title 130, or
87 American Nat. Bank v. Medved, 281 Neb. 799, 806, 801 N.W.2d 230, 237
(2011).

440 	285 NEBRASKA REPORTS
county zoning statutes on principles of express preemption,
field preemption, or conflict preemption. Therefore, we affirm
the judgment of the district court.
affirMeD.
christy Black, appellee, v.
lorna Brooks, appellant.
827 N.W.2d 256
Filed March 8, 2013. 	No. S-12-176.
1. Judgments: Appeal and Error. In a bench trial of a law action, the trial court’s
factual findings have the effect of a jury verdict and will not be disturbed on
appeal unless clearly wrong.
2. ____: ____. An appellate court does not reweigh the evidence but considers the
judgment in a light most favorable to the successful party and resolves eviden-
tiary conflicts in favor of the successful party, who is entitled to every reasonable
inference deducible from the evidence.
3. Attorney Fees. In determining a reasonable attorney fee, the court is to consider
the nature of the proceeding, the time and labor required, the novelty and diffi-
culty of the questions raised, the skill required to properly conduct the case, the
responsibility assumed, the care and diligence exhibited, the result of the suit, the
character and standing of the attorney, and the customary charges of the bar for
similar services.
4. Landlord and Tenant: Attorney Fees. The attorney fee provisions of Neb. Rev.
Stat. §§ 76-1416(3) and 76-1425(2) (Reissue 2009) are mandatory.
5. Attorney Fees. The most common purpose behind fee-shifting statutes is to
encourage private litigation to enforce a particular statute or right.
6. ____. Allowing legal services organizations recovery of statutory attorney fees
generally enhances their capabilities to assist those who are financially unable to
obtain private counsel.
7. ____. Insofar as a statutory attorney fee provision is designed to encourage pri-
vate action to vindicate the rights granted by the statutory scheme, an award of
attorney fees to the pro bono organization indirectly serves the same purpose as
an award directly to a fee paying litigant.
8. Landlord and Tenant: Attorney Fees. To limit attorney fee awards under Neb.
Rev. Stat. §§ 76-1416(3) and 76-1425(2) (Reissue 2009) to pro bono attorneys
would be to insert the additional term “incurred” into the statutes.
9. Statutes: Appeal and Error. An appellate court may not add language to the
plain terms of a statute to restrict its meaning.
Appeal from the District Court for Douglas County: leigh
ann retelsDorf, Judge. Affirmed as modified.