Continental Resources v. Fair

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Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
CONTINENTAL RESOURCES v. FAIR
Cite as 317 Neb. 391
Continental Resources, plaintiff and third-party
defendant, appellee, v. Kevin L. Fair, defendant
and third-party plaintiff, appellant, and
Heather Hauschild, Scotts Bluff County
Treasurer, in her official capacity, and
the County of Scotts Bluff, third-party
defendants, appellees.
___ N.W.3d ___
Filed August 23, 2024. 	No. S-21-074.
1. Summary Judgment: Appeal and Error. An appellate court reviews
the district court’s grant of summary judgment de novo, viewing the
record in the light most favorable to the nonmoving party and drawing
all reasonable inferences in that party’s favor.
2. ____: ____. An appellate court will affirm a lower court’s grant of sum-
mary judgment if the pleadings and admitted evidence show that there is
no genuine issue as to any material facts or as to the ultimate inferences
that may be drawn from those facts and that the moving party is entitled
to judgment as a matter of law.
Appeal from the District Court for Scotts Bluff County, Leo
P. Dobrovolny, Judge. Affirmed in part, and in part reversed
and remanded for further proceedings.
Caitlin Cedfeldt, Jennifer Gaughan, Mark T. Bestul, and
Michael W. Meister, of Legal Aid of Nebraska, and Christina M.
Martin and Deborah J. La Fetra, of Pacific Legal Foundation,
pro hac vice, for appellant.
Gregory 	C. 	Scaglione, 	Cody 	B. 	Nickel, 	and 	Casandra
M. Langstaff, of Koley Jessen, P.C., L.L.O., for appellee
Continental Resources.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/14/2026 08:24 AM CDT

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CONTINENTAL RESOURCES v. FAIR
Cite as 317 Neb. 391
Daniel J. Zieg, Chief Deputy Lancaster County Attorney,
and David Eubanks, Scotts Bluff County Attorney, for Heather
Hauschild and Scotts Bluff County.
Michael T. Hilgers, Attorney General, Eric J. Hamilton, and
Lincoln J. Korell for appellee State of Nebraska.
Heavican, 	C.J., 	Cassel, 	Stacy, 	Funke, 	Papik, 	and
Freudenberg, JJ., and Thompson, District Judge.
Per Curiam.
In an earlier opinion, we affirmed the district court’s rejec-
tion of various constitutional claims Kevin L. Fair asserted
concerning the issuance of a tax deed to his property. See
Continental Resources v. Fair, 311 Neb. 184, 971 N.W.2d 313
(2022), cert. granted and judgment vacated ___ U.S. ___, 143
S. Ct. 2580, 216 L. Ed. 2d 1191 (2023). One of Fair’s claims
was that the issuance of the tax deed violated the Takings
Clauses of the U.S. and Nebraska Constitutions. Fair’s theory
was that the issuance of the tax deed effected a taking without
just compensation because it deprived him of all interest in
his property, which he alleged was worth substantially more
than the amount of his underlying tax debt. Fair filed a peti-
tion for certiorari in the U.S. Supreme Court, and while his
petition was pending, the Court held in Tyler v. Hennepin
County, 598 U.S. 631, 143 S. Ct. 1369, 215 L. Ed. 2d 564
(2023) (Tyler), that a Minnesota woman who alleged that a
county sold her condominium for $40,000 to satisfy a $15,000
property tax bill had alleged a plausible takings claim. The
U.S. Supreme Court subsequently granted certiorari in Fair’s
case, vacated our judgment, and remanded the cause to this
court for further consideration in light of Tyler. See Fair v.
Continental Resources, ___ U.S. ___, 143 S. Ct. 2580, 216 L.
Ed. 2d 1191 (2023).
Having now reconsidered our earlier opinion in light of
Tyler, we conclude that the district court erred by granting
summary judgment to Continental Resources (Continental) on

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CONTINENTAL RESOURCES v. FAIR
Cite as 317 Neb. 391
Fair’s takings claim. We therefore affirm in part, and in part
reverse and remand the cause for further proceedings.
I. BACKGROUND
In our initial opinion, we set forth an overview of Nebraska’s
tax certificate sale process, as well as a detailed summary
of the factual and procedural history of this case. We do not
repeat all of that here, but instead summarize those details rel-
evant to our opinion in this case.
1. Nebraska Tax Certificate
Sale Process
Because tax certificate sales proceedings are governed by
the law in effect at the time a tax certificate is sold, see HBI,
L.L.C. v. Barnette, 305 Neb. 457, 941 N.W.2d 158 (2020)
(superseded by statute on other grounds as stated in Castillo
v. Libert Land Holdings 4, 316 Neb. 287, 4 N.W.3d 377
(2024)), we describe the process as it existed under statutes
in effect in March 2015, when the tax certificate for the prop-
erty at issue in this case was sold. We note that these statutes
were substantially amended in subsequent years. See, e.g.,
2023 Neb. Laws, L.B. 727; 2019 Neb. Laws, L.B. 463. The
parties agree these amendments have no bearing on the issues
involved in this case.
Each county in Nebraska has an automatic lien on property
within its boundaries for the property taxes that are due to the
government. See Neb. Rev. Stat. § 77-1901 (Cum. Supp. 2014).
If taxes on the property become delinquent, statutes direct the
county to offer to sell its lien via a tax certificate. See Neb.
Rev. Stat. § 77-1806 (Reissue 2009). Statute sets the cost of the
certificate as “the amount of taxes, interest, and cost thereon.”
Neb. Rev. Stat. § 77-1808 (Cum. Supp. 2014).
Once a tax certificate is sold, the original owner is not
immediately divested of all rights to the property. The owner
has the right to redeem the property by paying the amount
listed in the tax certificate plus all other taxes paid by the tax
certificate purchaser, any interest, and other fees. See Neb.

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CONTINENTAL RESOURCES v. FAIR
Cite as 317 Neb. 391
Rev. Stat. § 77-1824 (Cum. Supp. 2014). Interest on delinquent
payments accrues at 14 percent per year. See Neb. Rev. Stat.
§ 45-104.01 (Reissue 2010).
If the property owner does not redeem the property within
3 years, the tax certificate holder can apply for a tax deed. If
redemption has not occurred and the tax certificate purchaser
complies with other requirements, the county treasurer is
directed to provide a tax deed. See Neb. Rev. Stat. § 77-1837
(Cum. Supp. 2014). Once a tax deed is issued to the tax cer-
tificate purchaser, title to the property passes free and clear
of any encumbrances. See SID No. 424 v. Tristar Mgmt., 288
Neb. 425, 850 N.W.2d 745 (2014).
If a property owner fails to redeem the property, a tax
certificate purchaser may, instead of demanding a tax deed,
pursue another option: judicial foreclosure. See Neb. Rev.
Stat. § 77-1902 (Cum. Supp. 2014). In the event of a judicial
foreclosure sale, surplus proceeds are distributed “in the man-
ner provided by law for the disposition of the surplus in the
foreclosure of mortgages on real property.” Neb. Rev. Stat.
§ 77-1916 (Cum. Supp. 2014). If a tax certificate goes unsold,
the county attorney is directed to pursue judicial foreclosure.
See § 77-1901.
With this background established, we turn to how this pro-
cess played out in this case.
2. Continental Obtains Tax Deed
Fair and his wife owned real property in Scotts Bluff
County, Nebraska, free of any encumbrances. The Fairs lived
in a house on the property. After the Fairs failed to pay prop-
erty taxes on the property, the county treasurer sold a tax cer-
tificate to Continental for the amount of the property’s unpaid
taxes—$588.21.
Three years later, Continental, pursuant to Nebraska stat-
ute, notified the Fairs that if they did not redeem the property
by paying the total value of the unpaid taxes, fees, and inter-
est—an amount that totaled $5,268.32—Continental would
apply for a tax deed and the right of redemption would

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CONTINENTAL RESOURCES v. FAIR
Cite as 317 Neb. 391
expire. When the Fairs did not redeem the property, Continental
requested a tax deed from the county treasurer. The county
treasurer issued a deed to Continental. Under Nebraska law,
once the tax deed was issued to Continental, title to the prop-
erty passed to it free and clear of any encumbrances. See SID
No. 424, supra.
3. District Court Proceedings
Continental thereafter filed a quiet title action against the
Fairs. The Fairs responded to Continental’s suit by filing an
answer, counterclaim, and third-party complaint, which added
the county and the county treasurer, in her official capacity, as
third-party defendants. Unless more detail is required, we here-
after refer to the county and the county treasurer collectively
as “the county.” The Fairs also named the Attorney General of
the State of Nebraska, in his official capacity, as a third-party
defendant.
In their counterclaim and third-party complaint, the Fairs
alleged that the issuance of the tax deed violated the Takings
Clauses of the U.S. and Nebraska Constitutions, the Due
Process Clauses of the U.S. and Nebraska Constitutions,
the 	Excessive 	Fines 	Clauses 	of 	the 	U.S. 	and 	Nebraska
Constitutions, and article I, § 25, of the Nebraska Constitution.
Relevant to their takings claims, the Fairs alleged that the
issuance of the tax deed to Continental was a taking without
a public purpose. Alternatively, the Fairs alleged that if the
issuance of the tax deed was for a public purpose, they were
nonetheless entitled to just compensation. The Fairs also
alleged that Continental “acted under the color of state law”
and, along with the county, deprived the Fairs of constitu-
tional rights.
Early in the proceedings, the district court dismissed the
Attorney General as a party to the lawsuit. Because Fair was
challenging the constitutionality of various statutes, however,
the Attorney General continued to participate in the lawsuit
pursuant to Neb. Rev. Stat. § 25-21,159 (Reissue 2016), a

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CONTINENTAL RESOURCES v. FAIR
Cite as 317 Neb. 391
statute that provides that the Attorney General is “entitled
to be heard” if a party seeks a declaration that a statute is
unconstitutional.
Continental moved for summary judgment. The summary
judgment record included evidence that the total amount of the
unpaid taxes, fees, and interest the Fairs owed was $5,268.32
and that, at the time the tax deed was issued, the property’s
assessed value was $59,759.
The district court entered summary judgment against the
Fairs. It found that the Fairs’ constitutional claims lacked merit.
Fair’s wife died while the lawsuit was pending in the district
court. Fair filed a timely appeal, and we moved the case to
our docket.
4. This Court’s Initial Opinion
On appeal, Fair assigned and argued that the district court
erred by entering summary judgment against him because his
constitutional claims had merit. We issued an opinion finding
no such error and affirming the entry of summary judgment.
With respect to Fair’s takings arguments, we rejected Fair’s
argument that the issuance of the tax deed effected a taking
for a private purpose, rather than a public purpose. We also
rejected the argument that Fair was entitled to compensation
for the difference between the value of his property and the
value of his tax debt. On that point, we reasoned that because
Nebraska law did not recognize that a former owner had a
property right to value in the property over and above the tax
debt, Fair could not establish a taking without just compensa-
tion. See Continental Resources v. Fair, 311 Neb. 184, 971
N.W.2d 313 (2022), cert. granted and judgment vacated ___
U.S. ___, 143 S. Ct. 2580, 216 L. Ed. 2d 1191 (2023).
After our decision was issued, Fair filed a petition for a writ
of certiorari in the U.S. Supreme Court.
5. Tyler v. Hennepin County
While Fair’s petition for certiorari was pending, the U.S.
Supreme Court issued a decision in Tyler v. Hennepin County,

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CONTINENTAL RESOURCES v. FAIR
Cite as 317 Neb. 391
598 U.S. 631, 143 S. Ct. 1369, 215 L. Ed. 2d 564 (2023). In
that case, a woman alleged that a Minnesota county had vio-
lated the Takings Clause and Excessive Fines Clause when it
seized her condominium to satisfy a $15,000 tax debt, sold the
property for $40,000, and kept the excess proceeds. The fed-
eral district court dismissed the complaint for failure to state
a claim, and the U.S. Court of Appeals for the Eighth Circuit
affirmed. See Tyler v. Hennepin County, 26 F.4th 789 (8th Cir.
2022). The U.S. Supreme Court granted certiorari and then
reversed, finding that the woman had alleged a plausible tak-
ings claim.
In Tyler, a Minnesota county argued that because Minnesota
law provided that an owner forfeits his or her interest in real
property after defaulting on property taxes, the woman had
no property interest protected by the Takings Clause. The
Tyler Court acknowledged that “[t]he Takings Clause does
not itself define property” and that “[s]tate law is one impor-
tant source” for defining property rights for purposes of the
Takings Clause. 598 U.S. at 638. However, the Court added
that state law “cannot be the only source” and that “‘tradi-
tional property law principles,’ plus historical practice and
this Court’s precedents” are also relevant. Id. Considering
those sources, the Court concluded that “[t]he [c]ounty had
the power to sell [the plaintiff’s] home to recover the unpaid
property taxes. But it could not use the toehold of the tax
debt to confiscate more property than was due.” Id., 598 U.S.
at 639.
The Court went on to set forth that English common law,
which was the law in the early years of this country, the
Court’s precedents, and Minnesota law all recognized the
existence of a protected property interest. The Court explained
that the common law allowed the government to seize and
sell the property of a delinquent taxpayer, but also required
it to return amounts in excess of the tax debt, and that in the
founding era, governments generally could sell only as much
land as was necessary to satisfy a tax debt. The Court also

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CONTINENTAL RESOURCES v. FAIR
Cite as 317 Neb. 391
noted that its precedents recognized that a taxpayer is entitled
to surplus funds in excess of the tax debt and that, in other
contexts, Minnesota law recognizes that “a property owner
is entitled to the surplus in excess of her debt.” Id., 598 U.S.
at 645. Given its determination that under the facts alleged,
the plaintiff had a property interest protected by the Takings
Clause, the Court determined that she had plausibly alleged a
claim for a taking without just compensation.
6. Initial Opinion Vacated;
Cause Remanded
After issuing its decision in Tyler, the U.S. Supreme Court
granted Fair’s petition for certiorari, vacated our prior deci-
sion, and remanded the cause for further consideration in light
of Tyler.
After remand, we directed the parties to file supplemen-
tal briefs addressing the effect of Tyler on this appeal. In its
supplemental brief, the county argued that because the county
treasurer was obligated by statute to issue the tax deed, any
liability for a taking “should fall on the State as opposed to
[the county].” Supplemental brief for appellee the county at 11.
We subsequently invited the Attorney General to file a brief
regarding the argument that the State may be liable to pay just
compensation for a takings claim. After the supplemental briefs
were filed, we held oral argument.
II. ASSIGNMENTS OF ERROR
Fair assigns and argues on appeal that the district court’s
entry of summary judgment was erroneous because the issuance
of the tax deed violated his rights (1) under the Due Process
Clauses of the U.S. and Nebraska Constitutions, (2) under the
Takings Clauses of the U.S. and Nebraska Constitutions, (3)
under the Excessive Fines Clause of the U.S. Constitution, (4)
under the 25th Amendment to the Nebraska Constitution, and
(5) under article III, § 18, of the Nebraska Constitution.

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CONTINENTAL RESOURCES v. FAIR
Cite as 317 Neb. 391
III. STANDARD OF REVIEW
[1] An appellate court reviews the district court’s grant of
summary judgment de novo, viewing the record in the light
most favorable to the nonmoving party and drawing all reason-
able inferences in that party’s favor. Pitts v. Genie Indus., 302
Neb. 88, 921 N.W.2d 597 (2019).
[2] An appellate court will affirm a lower court’s grant of
summary judgment if the pleadings and admitted evidence
show that there is no genuine issue as to any material facts
or as to the ultimate inferences that may be drawn from those
facts and that the moving party is entitled to judgment as a
matter of law. Id.
IV. ANALYSIS
1. Takings Clause
The U.S. Supreme Court directed us to further consider
our initial decision in this case in light of Tyler, which, as
explained above, analyzed a claim under the Takings Clause.
We thus begin our analysis with Fair’s arguments regarding
the entry of summary judgment on his takings claim.
The Fifth Amendment to the U.S. Constitution states, “[N]or
shall private property be taken for public use, without just
compensation.” The Nebraska Constitution states, “The prop-
erty of no person shall be taken or damaged for public use
without just compensation therefor.” Neb. Const. art. I, § 21.
We have held that because Nebraska’s constitutional right to
just compensation includes just compensation where property
has been “taken or damaged,” it is broader than the corre-
sponding federal right. See Henderson v. City of Columbus,
285 Neb. 482, 827 N.W.2d 486 (2013). But aside from giving
effect to that difference in language, we have treated the fed-
eral and state rights as “coterminous.” Id. at 490, 827 N.W.2d
at 493. Because Fair does not allege or argue that either the
state or federal Takings Clause offers more protection in this
case, we apply the same analysis to both claims.

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CONTINENTAL RESOURCES v. FAIR
Cite as 317 Neb. 391
(a) Fair’s Private Use Argument
Turning to Fair’s arguments, we find no reason to recon-
sider our rejection of his contention that the issuance of the
tax deed effected a taking for a private purpose in violation
of the Takings Clause. A party can allege a violation of either
the Takings Clause’s public use requirement or its just com-
pensation requirement. A taking for a private use is uncon-
stitutional regardless of whether just compensation is paid.
See, e.g., Montgomery v. Carter County, Tennessee, 226 F.3d
758 (6th Cir. 2000); Porter v. DiBlasio, 93 F.3d 301 (7th Cir.
1996). But we found in our initial opinion that the issuance of
the tax deed did not constitute a taking for a private use, and
nothing in Tyler causes us to question that conclusion.
Instead, we find that Tyler provides confirmation of our
conclusion that a taking for private use did not occur. In
that case, the U.S. Supreme Court stated that “taxes are not
themselves a taking” and that in collecting taxes, “the State
may impose interest and late fees,” and may “seize and sell
property, including land, to recover the amount owed.” Tyler
v. Hennepin County, 598 U.S. 631, 637-38, 143 S. Ct. 1369,
215 L. Ed. 2d 564 (2023). The Nebraska tax certificate stat-
utes provide a method by which counties can recoup unpaid
property taxes, and to be sure, those statutes allow for the
possibility that an owner who is delinquent on his or her prop-
erty taxes will end up losing his or her property to a private
party. But a system in which a government seizes and sells
property to recover a tax debt allows for the same possibility,
and Tyler recognizes such an arrangement is constitutionally
permissible.
Moreover, the U.S. Supreme Court held in Kelo v. New
London, 545 U.S. 469, 125 S. Ct. 2655, 162 L. Ed. 2d 439
(2005), that a taking meets the public use requirement if it
serves a public purpose and that courts should be deferential
in determining whether a public purpose is present. See, also,
Protect Our Parks, Inc. v. Chicago Park Dist., 971 F.3d 722
(7th Cir. 2020). While some on the U.S. Supreme Court have

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CONTINENTAL RESOURCES v. FAIR
Cite as 317 Neb. 391
argued that Kelo should be overruled, see, e.g., Eyechaner
v. City of Chicago, Illinois, ___ U.S. ___, 141 S. Ct. 2422,
210 L. Ed. 2d 998 (2021) (Thomas, J., joined by Gorsuch, J.,
dissenting from denial of certiorari), the Court has not done
so. Because Nebraska’s tax sale certificate process serves the
undoubtedly public purpose of tax collection, we see no room
for us to find that Fair could establish a violation of the public
use requirement in this case.
(b) Fair’s Just Compensation Argument
While Tyler does not call into question our rejection of
Fair’s argument that a private taking occurred, it does lead
us to reconsider our initial analysis of Fair’s claim that he is
entitled to just compensation. As we have noted, we found
in our initial opinion that Fair’s legal theory was flawed. We
reasoned that Fair could not make out a valid claim for just
compensation under the Takings Clauses without identifying a
protected property interest that was taken from him. We relied
on U.S. Supreme Court precedent to conclude that any such
property interest must be recognized by state law. And because
we found that Nebraska law did not recognize that a former
owner of property who lost title to his or her home through
issuance of a tax deed had a right to the difference between
the value of the property and his or her tax debt, we rejected
Fair’s claim.
(i) Fair Had Protected Property Interest
Our reasoning in our initial opinion is plainly out of step
with Tyler. In Tyler, the U.S. Supreme Court made clear
that state law alone cannot and does not determine whether
a claimant has a property interest that is protected by the
Takings Clause. See Tyler v. Hennepin County, 598 U.S. 631,
638, 143 S. Ct. 1369, 215 L. Ed. 2d 564 (2023) (“[o]therwise,
a [s]tate could sidestep the Takings Clause by disavowing tra-
ditional property interests in assets it wishes to appropriate”)
(internal quotation marks omitted). In Tyler, the Court found
that a protected property interest existed because the law

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CONTINENTAL RESOURCES v. FAIR
Cite as 317 Neb. 391
historically recognized the property interest at issue, its own
precedents suggested the existence of such an interest, and
Minnesota law generally protected the type of property interest
at issue in other contexts.
Tyler is without question helpful to Fair’s argument that he
has identified a protected property interest in this case. At the
same time, however, there are differences between the tax col-
lection procedure employed in Tyler and the one employed in
this case. Recall that in Tyler, the plaintiff’s condominium was
seized by the county and sold for an amount that exceeded
her tax debt. Accordingly, one might conclude that the ques-
tion before the Court was whether the plaintiff had a property
interest in the excess proceeds from the sale. Here, however,
as a result of differences in Nebraska’s method of collecting
delinquent property taxes, there was no leftover money after
the tax debt was satisfied through a sale. Rather than the
property being seized and sold with resulting excess proceeds,
Continental paid an amount equal to the taxes Fair owed and
later obtained title to the property free of any liens or encum-
brances. As a result, if Fair has a protected property interest,
it at least looks somewhat different than the property interest
held by the plaintiff in Tyler.
But to the extent Tyler leaves open the question of whether
Fair had a protected property interest, we conclude that one
nonetheless exists. On this issue, we find significant guidance
from Hall v. Meisner, 51 F.4th 185 (6th Cir. 2022), cert. denied
___ U.S. ___, 143 S. Ct. 2638, 216 L. Ed. 2d 1225 (2023)
(Hall), an opinion of the U.S. Court of Appeals for the Sixth
Circuit, which was issued months before Tyler and favorably
cited therein.
In Hall, several plaintiffs brought takings claims after a
Michigan county took title to their homes as a result of their
failure to timely pay property taxes. Under the relevant statu-
tory system in Michigan, if property owners failed to pay
taxes by a certain point, counties could file a foreclosure peti-
tion. If, in response to the foreclosure petition, the original

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owner did not redeem, a court was required to enter a fore-
closure judgment that vested “‘absolute title’” to the property
in the county. Id. at 188. After the transfer of title, the city
or town in which the property was located had the right to
purchase the property for the amount of the tax delinquency.
Pursuant to this process, the county obtained title to several
properties and then sold them to a city for the amount of the
tax debt; the city, in turn, sold them to a for-profit entity. The
original owners brought suit against the county, the city, and
the for-profit entity, alleging, among other things, a taking
without just compensation.
The district court in Hall dismissed the takings claim. See
Hall v. Meisner, 565 F. Supp. 3d 953 (E.D. Mich. 2021). It
started from the same proposition we relied on in our initial
opinion in this case—that property interests for purposes of
the Takings Clause are determined by state law. From there, it
found that Michigan law recognized a property interest only
in any surplus proceeds after a foreclosure sale. But because
the county sold the property for the amount of the tax debt,
and there was thus no surplus generated, the district court
found that there was no protected property interest and no
plausible takings claim.
The Sixth Circuit disagreed. The Sixth Circuit found that
the question of whether there was a protected property inter-
est for purposes of the Takings Clause could not be answered
solely by reference to Michigan law. If it was, the court
quipped, the Takings Clause would be rendered “a dead letter.”
Hall, 51 F.4th at 190. Instead, much like the U.S. Supreme
Court would several months later in Tyler v. Hennepin County,
598 U.S. 631, 143 S. Ct. 1369, 215 L. Ed. 2d 564 (2023),
the Sixth Circuit looked to “traditional property interests,”
“Anglo-American legal history,” and whether Michigan law
generally recognized the property right at issue. Hall, 51 F.4th
at 190.
The Sixth Circuit engaged in a lengthy and detailed his-
torical analysis of whether the plaintiffs had a protected

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property interest in their properties’ equity—“the property’s
value beyond any liens or other encumbrances upon it.”
Id. at 189. Tracing the history of equitable interests in real
property beginning with the 12th century, the Sixth Circuit
explained that English and early American courts gradually
recognized that one who purchased land with the land pledged
as security for a debt had an equitable interest in the land
when the property’s value exceeded the debt, even if the pur-
chaser later failed to pay the debt. Accordingly, those courts
resisted “strict foreclosure,” a process whereby a borrower
would “extinguish the landowner’s equitable interest in the
property and grant the lender full ownership of land whose
value might far exceed the amount of the unpaid debt.” Id. at
192. Instead, American courts, at least, insisted on foreclosure
via a public sale whereby the debtor would be entitled to any
surplus proceeds generated. Foreclosure by sale, the Sixth
Circuit explained, was the means by which the debtor could
be compensated for his or her “equitable title” by receiving
the surplus from the sale. Id. at 193.
In addition to its historical analysis, the Sixth Circuit
observed that Michigan law recognized equitable title in other
contexts. The court also explained that the reason Michigan
law recognized a right to surplus proceeds after a foreclosure
sale was its recognition of the owner’s interest in the property’s
equitable title. Id. at 195 (“[t]he owner’s right to a surplus
after a foreclosure sale . . . follows directly from her posses-
sion of equitable title before the sale. The surplus is merely the
embodiment in money of the value of that equitable title”).
Having determined that the plaintiffs had a protected prop-
erty interest in the value of their property beyond the tax
debt, the Sixth Circuit concluded that the plaintiff had alleged
a plausible claim for just compensation. It explained that,
based on the facts alleged, the county’s foreclosure of the
property was “nothing less than a strict foreclosure,” since the
county “took the plaintiffs’ equitable titles without paying for
them.” Id. at 194.

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Based on the foregoing, we are persuaded that Fair had a
protected property interest to the extent the value of the prop-
erty exceeded his tax debt. The Sixth Circuit demonstrated in
Hall that property law traditionally recognized an equitable
interest in the value of property beyond liens or encumbrances
upon it. In addition, Nebraska law, like Michigan law, rec-
ognizes a property owner’s right to equitable title in other
contexts. To note just a couple of examples, outside of the tax
deed process, delinquent real property taxes may be pursued
through a judicial foreclosure, but there, the property is sold
and surplus proceeds are returned to the original owner. See
§§ 77-1901 and 77-1916. See, also, County of Lancaster v.
Trimble, 34 Neb. 752, 52 N.W. 711 (1892) (recognizing that
after tax foreclosure sale, surplus proceeds are returned to
original owner). Property seized for delinquent personal prop-
erty taxes must also be sold with the surplus returned to the
original owner. See Neb. Rev. Stat. 77-1724 (Reissue 2018).
Because “traditional property law principles” and Nebraska
law generally recognize a property right, we find that Fair
had a protected property interest to the extent the value of his
property exceeded his tax debt. See Tyler v. Hennepin County,
598 U.S. 631, 638, 143 S. Ct. 1369, 215 L. Ed. 2d 564 (2023)
(internal quotation marks omitted).
From the foregoing conclusion, it quickly follows that if,
as some evidence in the summary judgment record indicates,
the value of Fair’s property exceeded his tax debt, a protected
property interest was taken from Fair without payment of just
compensation. As in Hall, what happened to Fair was “nothing
less than a strict foreclosure.” 51 F.4th at 194. When viewed
in the light most favorable to Fair, the evidence shows that he
lost the equity in his property without receiving any payment
for it.
(ii) Liability to Pay Just Compensation
Our conclusion that there is evidence that would support
a finding that a protected property interest was taken from

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Fair does not, however, resolve this appeal. Indeed, it merely
cues up the primary issue in dispute between the parties. In
the post-Tyler briefing and argument, no party to this case
seriously disputed that, under Tyler, Fair had a protected
property interest and that it was taken from him without just
compensation. Where the parties differed strenuously was over
who is responsible for paying any just compensation under
the Takings Clause. Fair contended that Continental and the
county are jointly and severally liable; Continental contended
the county is liable. The county initially suggested in its
supplemental briefing that the State might be liable. Because
the county suggested the State might be liable, we invited the
Attorney General to weigh in. He denied that the State was
liable and argued that Continental is liable, after which, at oral
argument, the county seemed to switch positions and agree
that Continental is liable. Because all the parties argue that
someone else is responsible for any Takings Clause liability,
each argues that the cause should be remanded for further pro-
ceedings against someone else.
On the issue of which party might be liable for a taking,
we again find guidance from the Sixth Circuit’s opinion in
Hall v. Meisner, 51 F.4th 185 (6th Cir. 2022), cert. denied
___ U.S. ___, 143 S. Ct. 2638, 216 L. Ed. 2d 1225 (2023).
In that case, as we have summarized, there were also multiple
parties involved in various transactions associated with delin-
quent taxpayers’ properties and named as defendants. The
Sixth Circuit, however, found that only the county could be
responsible to pay just compensation. Quoting language from
Knick v. Township of Scott, 588 U.S. 180, 139 S. Ct. 2162,
204 L. Ed. 2d 558 (2019), the Sixth Circuit stated, “[T]he act
of taking is the event which gives rise to the claim for com-
pensation.” Hall, 51 F.4th at 196 (internal quotation marks
omitted). The Sixth Circuit determined that the act of taking
was the county’s taking of absolute title through its request of
foreclosure because, before that, “the plaintiffs held equitable
title [and,] after it, they held no title at all.” Id.

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Applying the reasoning of Hall to this case, we find that
the party that is potentially liable to pay just compensation for
a taking is Continental. Under the facts alleged in Hall, the
county was found to have taken the properties because it pur-
sued the strict foreclosure option under Michigan statute that
resulted in the loss of the former owners’ equitable title. Here,
it was Continental that pursued the strict foreclosure option
that, viewing the evidence in the light most favorable to Fair,
resulted in Fair’s loss of equitable title. Before Continental
requested a tax deed, Fair had equitable title to his property,
but after Continental obtained the tax deed, if it properly
recorded it, Fair will have no title at all. If Continental had
not requested the tax deed, Fair would not have lost his equi-
table title.
We recognize that in addition to the similarity between
the county in Hall and Continental in this case, there is a
major difference insofar as Continental is a private corpora-
tion rather than a governmental entity. This is significant
because to obtain relief for a violation of the Takings Clause,
the plaintiff must show that state action deprived him or her
of a protected property interest. See, e.g., Story v. Green, 978
F.2d 60 (2d Cir. 1992). Under these circumstances, however,
we find that Continental’s pursuit of the tax deed qualifies as
state action.
As the U.S. Supreme Court recently recognized, “a private
entity can qualify as a state actor in a few limited circum-
stances.” Manhattan Community Access Corp. v. Halleck, 587
U.S. 802, 809, 139 S. Ct. 1921, 204 L. Ed. 2d 405 (2019). Fair
argues that two of those recognized circumstances are pres-
ent here. He argues that Continental is a state actor because it
performed a public function and because it acted jointly with
governmental entities.
Fair makes a plausible argument that Continental is a state
actor because it performed a public function. The U.S. Supreme
Court has held that a private entity may qualify as a state actor
when it exercises “powers traditionally exclusively reserved

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to the State.” Jackson v. Metropolitan Edison Co., 419 U.S.
345, 352, 95 S. Ct 449, 42 L. Ed. 2d 477 (1974). And while
the Court has found that “very few” functions meet this test,
Manhattan Community Access Corp., 587 U.S. at 809 (internal
quotation marks omitted), it has suggested that both “tax col-
lection,” Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 163, 98 S.
Ct. 1729, 56 L. Ed. 2d 185 (1978), and powers “traditionally
associated with sovereignty, such as eminent domain,” might
qualify. Jackson, 419 U.S. at 353. Furthermore, in Tyler, the
Court indicated that it is the government that has the power
to seize property to satisfy tax debts. 598 U.S. at 638 (gov-
ernment “may also seize and sell property, including land, to
recover the amount owed”). In this case, Nebraska’s statu-
tory system gives tax certificate purchasers like Continental
a power that would seem to be “traditionally associated with
sovereignty”: the power to seize property from owners for
their failure to pay taxes to the sovereign.
We find that we need not determine whether Continental is
a state actor under the public function test, because we find
that it qualifies as a state actor on the basis of its joint action
with governmental entities. In Lugar v. Edmondson Oil Co.,
457 U.S. 922, 102 S. Ct. 2744, 73 L. Ed. 2d 482 (1982), the
U.S. Supreme Court found that a private creditor engaged in
state action when it utilized an ex parte prejudgment attach-
ment procedure authorized by state statute, which resulted in
state officials sequestering the goods of a debtor. The Court
explained that its cases treated a party as a state actor when
a deprivation was “caused by the exercise of some right or
privilege created by the State or by a rule of conduct imposed
by the State or by a person for whom the State is responsible”
and when the party charged with the deprivation “may fairly be
said to be a state actor.” Id., 457 U.S. at 937. The first require-
ment was clearly met because the statute allowed the creditor
to seek prejudgment attachment. The Court found that the sec-
ond requirement was also met because state officials aided the
creditor in the use of the state-created attachment procedures.

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Although some language in Lugar could be read to limit its
holding to due process challenges to prejudgment attachment
procedures, there are obvious parallels to Continental in this
case. Much like the private party in Lugar, Continental, by
obtaining a tax deed, exercised a privilege created by the State
in order to seize property. Also, like the private party in Lugar,
Continental required the assistance of governmental parties in
order to complete its action. Without the county’s sale of the
tax certificate and issuance of the tax deed, Continental would
not have obtained the property.
The U.S. Supreme Court would later cite Lugar for the
proposition that “when private parties make use of state pro-
cedures with the overt, significant assistance of state officials,
state action may be found.” Tulsa Professional Collection
Services v. Pope, 485 U.S. 478, 486, 108 S. Ct. 1340, 99 L.
Ed. 2d 565 (1988). A tax certificate purchaser who requests
and obtains a tax deed would appear to meet that test. And,
in fact, the U.S. Court of Appeals for the Fourth Circuit has
concluded as much, finding in Plemons v. Gale, 396 F.3d 569
(4th Cir. 2005), that a tax lien purchaser under a West Virginia
statutory procedure was a state actor. The court observed that
the State is the initial seller of the tax lien and ultimately
“extinguishes the owner’s rights to the property by issuing the
tax deed to the property.” Id. at 573 n.3. West Virginia’s high-
est court has also determined that a tax certificate purchaser
under its statutes engages in state action. See Wells Fargo
Bank, N.A. v. UP Ventures II, 223 W. Va. 407, 675 S.E.2d 883
(2009). For largely the same reasons, we find that Continental
can be fairly characterized as a state actor when it obtained a
tax deed to the property.
While we find that Continental engaged in state action as
a result of its use of state procedures and state assistance,
this conclusion is reinforced by the overall character of
Nebraska’s delinquent property tax collection system and the
relationship between governmental parties and tax certificate
purchasers it creates. Through the sale of tax certificates, the

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State and its political subdivisions continue to receive rev-
enue even if property owners fail to pay their taxes as they
become due. The State incentivizes those private investors to
purchase the certificates by offering what can only be charac-
terized as a very generous interest rate on the purchase. See
§ 45-104.01. See, also, Leigh v. Green, 64 Neb. 533, 545, 90
N.W. 255, 259 (1902) (suggesting Nebraska’s tax collection
system holds out “great inducements” to tax lien purchasers).
But the continued revenue is not the only benefit the State
and its political subdivisions receive through the system; they
also avoid the time and expense associated with foreclosing
on delinquent properties. The State and its political subdivi-
sions avoid the expense of foreclosure proceedings, because
the statutes that create the tax collection system delegate to
the private investors the common governmental function of
seizing properties to satisfy a tax debt. This too comes with
an incentive for the private investor. Under the system, if the
private investor requests a tax deed, it can obtain title to the
property free and clear of any liens or encumbrances, and it
is not required to compensate the original owner for the lost
equity. In some cases, this can lead to the investor obtaining
what one member of this court once described as a “windfall
that borders on the obscene,” Wisner v. Vandelay Investments,
300 Neb. 825, 869, 916 N.W.2d 698, 730 (2018) (Cassel, J.,
dissenting in part) (superseded by statute on other grounds as
stated in Castillo v. Libert Land Holdings 4, 316 Neb. 287, 4
N.W.3d 377 (2024)), something few profit-maximizing inves-
tors would pass up.
We find all this relevant to the state action inquiry because
U.S. Supreme Court cases have recognized that the relation-
ship between governmental and private actors can be the basis
for a finding that an otherwise private party engaged in state
action. The U.S. Supreme Court has articulated different for-
mulations of what must be present for a relationship between
a governmental and private party to amount to state action.
See, e.g., Brentwood Academy v. Tennessee Secondary School

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Athletic Assn., 531 U.S. 288, 302, 121 S. Ct. 924, 148 L. Ed.
2d 807 (2001) (finding state action based on “entwinement”
between private and governmental actors); Blum v. Yaretsky,
457 U.S. 991, 1004, 102 S. Ct. 2777, 73 L. Ed. 2d 534 (1982)
(action of private party can be state action if state provided
“significant encouragement, either overt or covert”); Moose
Lodge No. 107 v. Irvis, 407 U.S. 163, 175, 92 S. Ct. 1965,
32 L. Ed. 2d 627 (1972) (describing finding of state action
in prior case as based on “symbiotic relationship” between
government and private actors). Whether these are separate
tests or merely different ways of asking whether “there is a
sufficiently close nexus between the State and the challenged
action of the [private party] so that the action of the latter
may be fairly treated as that of the State itself,” Jackson v.
Metropolitan Edison Co., 419 U.S. 345, 351, 95 S. Ct. 449,
42 L. Ed. 2d 477 (1974), we find that such a nexus is present
here. See, also, Lugar v. Edmondson Oil Co., 457 U.S. 922,
102 S. Ct. 2744, 73 L. Ed. 2d 482 (1982). Delinquent property
tax collection occurs in Nebraska through an interdependent,
mutually beneficial relationship between the State and its
political subdivisions and tax certificate purchasers in which
the State delegates to the tax certificate purchaser the job of
collecting tax debts of delinquent taxpayers and offers a pow-
erful incentive to the investor to request the issuance of a tax
deed if the value of the property exceeds the tax debt. Given
this relationship, in our “normative judgment,” a tax certificate
purchaser’s decision to obtain a tax debt is “fairly attribut-
able” to the State and thus qualifies as state action. Brentwood
Academy, 531 U.S. at 295.
In addition to arguing that it cannot be held liable as a state
actor, Continental resists the notion that it could be liable to
pay Fair just compensation by arguing that the only action
it took in this case was to purchase the property from the
county. According to Continental, by acquiring the tax certifi-
cate, it entered into something akin to a real estate purchase
agreement with the county, whereby Continental acquired full

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rights to the property if Fair failed to redeem. In Continental’s
view, the county took Fair’s interest and Continental merely
purchased it via the sale of the tax certificate.
Continental’s argument appears to rest on the following
premise: A party is not liable to pay just compensation for a
taking merely because another party that has already taken
the property sells it to the first party at a price far below its
market value. This premise finds support in Hall v. Meisner,
51 F.4th 185 (6th Cir. 2022), cert. denied ___ U.S. ___, 143
S. Ct. 2638, 216 L. Ed. 2d 1225 (2023). The Sixth Circuit
found that the city in that case was not responsible to pay just
compensation, even though it acquired the property for far less
than its value. Even if this premise is correct, however, it does
not assist Continental.
Unlike the city in Hall, Continental did not purchase a
property the county had already taken. The county did not
have authority to take Fair’s property when it sold the tax
certificate. When Fair failed to pay his property taxes as they
became due, all the county had was a lien on the property in
the amount of the tax debt. See § 77-1901. Unlike the county
in Hall, the county here lacked the power to take “absolute
title” to the property. The county sold its lien to Continental
via the tax certificate, but, as we explained in our initial opin-
ion in this case, the sale of the certificate alone is far from a
conveyance of absolute title. Even if a tax certificate is sold,
the “purchaser has no immediate right to enter the property,
use the property, or dispossess the owner of the property,”
and, further, if the property is redeemed or the tax certifi-
cate holder fails to act by the statutory deadline, it “never
obtains the right to do those things.” Continental Resources v.
Fair, 311 Neb. 184, 194, 971 N.W.2d 313, 321 (2022), cert.
granted and judgment vacated ___ U.S. ___, 143 S. Ct. 2580,
216 L. Ed. 2d 1191 (2023). Based on these considerations,
we determined in our initial opinion that “a property owner
is not deprived of his or her property at the time the tax cer-
tificate is issued,” and thus Fair’s due process rights were not

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violated when he did not receive notice that the tax certificate
was sold. Id. Nothing in Tyler v. Hennepin County, 598 U.S.
631, 143 S. Ct. 1369, 215 L. Ed. 2d 564 (2023), causes us to
reconsider our determination that Fair was not deprived of his
property at the time the tax certificate was sold.
Rather than purchasing the property through the tax certifi-
cate, Continental purchased the county’s lien. Because it owned
the lien, Continental, like the county, could pursue judicial
foreclosure if Fair failed to redeem. See § 77-1902. But, as a
result of the state statutes pertaining to tax deeds, Continental
also obtained something the county never had—the right to
obtain a tax deed and, with it, Fair’s equitable interest in the
property. Because Continental elected this option and obtained
title to the property, we find that it took Fair’s property and
could be liable to pay just compensation.
Like Continental, Fair argues that the county should be
liable to pay just compensation, but for different reasons.
Fair does not agree with Continental that the county took the
property at or just prior to the sale of the tax certificate. He
instead takes the position that a taking occurred, at the earli-
est, when the tax deed was issued. And while Fair agrees with
the county that it was Continental’s election to request a tax
deed that resulted in the loss of his equitable title and that
Continental is thus liable, he argues that the county is also
liable. He argues that the county is liable because its issuance
of the tax deed was also essential to the loss of his protected
property interest.
The county, however, never obtained title to Fair’s property,
and the county treasurer was obligated by statute to issue a
deed to Continental. We are unable to find support for the
proposition that a party is liable to pay just compensation for
a taking when it does not take property for itself but instead
is statutorily obligated to perform a ministerial function that
results in the taking of property by another.
To the contrary, a case from this court recognizes that not
every government actor that plays some role in a taking is

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liable to pay just compensation. In Strom v. City of Oakland,
255 Neb. 210, 583 N.W.2d 311 (1998), a city complained
to a natural resources district that sediment from an adjoin-
ing landowner had damaged the city’s property. The natural
resources district thereafter sought and received a court order
requiring the adjoining landowner to take certain measures.
The landowner later filed an action contending that the city
and the natural resources district had effected a taking without
just compensation. After the district court entered summary
judgment for the natural resources district and the city and the
landowner appealed, we reversed as to the natural resources
district and dismissed the appeal as to the city. We found that
genuine issues of material fact precluded summary judgment
for the natural resources district but that the city could not be
liable because, although it initiated an action with the natural
resources district, it had not sought the court order that was
the basis of the takings claim. Similarly, in this case, the
county may have performed a ministerial action that led to
the loss of Fair’s property, but we find that was insufficient to
incur the obligation to pay just compensation.
In addition to the foregoing, we note that our determination
that Continental is potentially liable to pay just compensation
(and the county is not) is consistent with principles of restitu-
tion. In some circumstances, the law of restitution requires a
defendant to disgorge a benefit that he or she has unjustifiably
obtained at the plaintiff’s expense. See, e.g., City of Scottsbluff
v. Waste Connections of Neb., 282 Neb. 848, 809 N.W.2d 725
(2011). In this case, any windfall that was obtained as a result
of Nebraska’s tax certificate sale process was obtained by
Continental, and not the county.
(iii) Summary
In summary, we find that, viewing the evidence in the light
most favorable to Fair, there are genuine issues of material
fact that preclude summary judgment in favor of Continental
on Fair’s claim for just compensation. Applying the same

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standard to the county and county treasurer, we find no such
genuine issues of material fact and conclude the county is
entitled to summary judgment on Fair’s claim for just com-
pensation. Although the parties’ briefing at times discussed the
possibility that the State might be liable to pay just compen-
sation, we express no opinion on that question. The Attorney
General was initially named as a defendant in this case but
was dismissed (with Fair’s agreement) prior to summary judg-
ment, and Fair neither assigns error to the Attorney General’s
dismissal nor contends that the State is liable to pay just
compensation.
2. Excessive Fines
Although Fair’s post-Tyler argument focuses primarily on
his claim for just compensation under the Takings Clause, he
also makes a brief argument regarding his claim under the
Eighth Amendment’s Excessive Fines Clause. On this point,
Fair relies on a concurring opinion of two justices in Tyler.
See Tyler v. Hennepin County, 598 U.S. 631, 143 S. Ct. 1369,
215 L. Ed. 2d 564 (2023) (Gorsuch, J., concurring; Jackson,
J., joins).
In Tyler, the majority declined to reach the plaintiff’s argu-
ment that the district court erred by dismissing her claim
under the Excessive Fines Clause. The plaintiff in that case
had acknowledged that relief under the Takings Clause would
“‘fully remedy [her] harm.’” Id., 598 U.S. at 647. Given that
acknowledgment and its determination that the plaintiff had
plausibly alleged a claim under the Takings Clause, the Court
found that it was not necessary to analyze the Excessive Fines
Clause claim.
Fair makes a similar concession here. In his supplemen-
tal brief, he acknowledges that just compensation under the
Takings Clause would provide complete relief and that thus,
if we recognize a viable claim under the Takings Clause, we
“might similarly decline to decide the excessive fines ques-
tions.” Supplemental brief for appellant at 28. Because we

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have found that Fair has a viable claim under the Takings
Clause, we decline to reconsider our initial opinion’s analysis
of Fair’s Excessive Fines Clause claim.
3. Other Assignments of Error
We find nothing in Tyler that causes us to reconsider our
initial opinion’s rejection of Fair’s other assignments of error.
Accordingly, we find no merit to those assignments of error.
V. CONCLUSION
We find that viewing the evidence in the light most favor-
able to Fair, as our standard of review requires, Continental
was not entitled to judgment as a matter of law on Fair’s claim
for just compensation under the Takings Clause. We there-
fore reverse the district court’s entry of summary judgment
to Continental on that claim and remand the cause for further
proceedings. Applying the same standard of review to all of
the other claims, we find that there is no genuine issue of
material fact and that Continental and the county are entitled
to judgment as a matter of law. We therefore affirm the district
court’s entry of summary judgment in all other respects.
Affirmed in part, and in part reversed and
remanded for further proceedings.
Miller-Lerman, J., not participating.
Papik, J., concurring in part, and in part dissenting.
I agree with the court’s conclusion that, in light of the U.S.
Supreme Court’s opinion in Tyler v. Hennepin County, 598
U.S. 631, 143 S. Ct. 1369, 215 L. Ed. 2d 564 (2023), Fair
had a protected property interest and therefore has a viable
claim for just compensation under the Takings Clauses of the
U.S. and Nebraska Constitutions. But, as the majority opinion
observes, resolution of that question prompts another: Who is
liable to pay just compensation?
In my view, this followup question is a difficult one; while
Tyler provides guidance on whether Fair has a viable claim
for just compensation, it does not offer much direct assistance

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as to who might be liable to pay just compensation here.
Perhaps unsurprisingly, there appears to be little other author-
ity directly addressing who is responsible to pay just compen-
sation in circumstances like the ones presented in this case.
Faced with this difficult question, the majority determines
that Continental Resources (Continental) is the party that is
liable to pay just compensation. I respectfully disagree. My
view is that Scotts Bluff County would be liable to pay just
compensation and that Continental would not. I explain my
thinking below.
Liability of Scotts Bluff County.
The U.S. Supreme Court has instructed that “the act of tak-
ing is the event which gives rise to the claim for compensa-
tion.” Knick v. Township of Scott, 588 U.S. 180, 190, 139 S.
Ct. 2162, 204 L. Ed. 2d 558 (2019) (internal quotation marks
omitted). To determine who is liable to pay just compensa-
tion, we must thus determine who took a protected property
interest from Fair. That property interest, as the majority
opinion explains, is his equitable interest in his property, i.e.,
the property’s value beyond the tax debt.
To determine who took Fair’s property interest, it seems
worthwhile to consider, step by step, what happened to Fair’s
interest under Nebraska’s tax certificate statutes. As the major-
ity opinion details, the county held a lien on Fair’s property
to the extent of his tax debt. By selling a tax certificate to
Continental for the amount of the tax debt, the county sold
that lien to Continental. But, as a consequence of Nebraska’s
tax certificate statutes, the sale of the tax certificate also
resulted in Continental’s acquisition of something else—the
right, if Fair failed to redeem the property, to request a tax
deed and thereby obtain the entire property free and clear of
any liens or encumbrances. See SID No. 424 v. Tristar Mgmt.,
288 Neb. 425, 850 N.W.2d 745 (2014). When Fair ultimately
failed to redeem the property in this case and Continental
requested a tax deed, the county treasurer, in the words of

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the relevant statute, delivered a “deed of conveyance” for
the property to Continental. See Neb. Rev. Stat. § 77-1837
(Reissue 2018).
In my judgment, the foregoing amounts to a taking of Fair’s
equitable interest on the part of the county. As a result of the
tax certificate statutes, the county sold to Continental, for the
amount of the tax debt, a conditional right to obtain absolute
title to Fair’s property should he fail to redeem. Then, when
the condition arose and Continental exercised the right it
obtained as a result of acquiring the tax certificate from the
county, the county “conveyed” the property to Continental. In
order to convey the property to Continental, the county had to
first assume Fair’s rights thereto. As this court and many oth-
ers have recognized, “one cannot convey to another a greater
interest in real estate than he himself possesses.” Gregory v.
Pribbeno, 143 Neb. 379, 383, 9 N.W.2d 485, 488 (1943). See
22B Am. Jur. 2d Deeds § 7 (2024) (collecting cases).
In Tyler, the Court said the county in that case “could not
use the toehold of [a] tax debt to confiscate more property
than was due.” 598 U.S. at 639. I grant there are obvious dif-
ferences between the actions of the county in Tyler and the
actions of the county in this case. Even so, I understand the
county in this case to have used the toehold of a tax debt to
confiscate the entirety of Fair’s interests in his property. In this
case, the county just took the additional step of transferring
the property in excess of the tax debt to someone else.
I recognize that the county did not come away from these
events with a windfall and that its actions appear to have been
compelled by state law. I do not understand either of these
factors, however, to have any bearing on the county’s liability
to pay just compensation. First, I see no basis to conclude
that the county cannot be held liable because it did not ulti-
mately profit from the extinguishment of Fair’s interest in his
property. The Sixth Circuit’s opinion in Hall v. Meisner, 51
F.4th 185 (6th Cir. 2022), cert. denied ___ U.S. ___, 143 S.
Ct. 2638, 216 L. Ed. 2d 1225 (2023), illustrates the point. In

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Hall, the county did not profit from taking absolute title to the
properties of the original owners because it was obligated to
sell the property to the city where the properties were located
for the amount of the tax debt. Even so, because the county
took absolute title from the original owner, it was liable to
pay just compensation. And second, while the county here
also argues that it cannot be held liable because it was obli-
gated by state law to do everything it did, it offers no author-
ity indicating that a political subdivision escapes liability to
pay just compensation for a taking compelled by state law.
Indeed, it would seem that a taking compelled by state law
is no different than any other unfunded mandate: the political
subdivision may have a moral or political argument that the
State should pay for the liability it forced its political subdivi-
sion to incur but no argument that the political subdivision is
not legally responsible for that liability.
For these reasons, I do not believe the county was entitled
to summary judgment and would remand the cause for further
proceedings on Fair’s claim for just compensation against it.
Liability of Continental.
The majority finds that Continental would be liable to pay
just compensation for any taking of Fair’s property interest. It
is not clear to me that Continental’s actions of purchasing a
tax certificate and then obtaining a tax deed amount to a tak-
ing of Fair’s property. Continental came away with a windfall,
to be sure, but, for the reasons discussed above, it appears to
have received property that the county had already taken from
Fair. Ultimately, however, I believe there is another reason
that precludes pinning liability to pay just compensation on
Continental—I do not believe it engaged in state action.
There appears to be no dispute in this case that Continental
could be held liable to pay just compensation only if it engaged
in state action. See, e.g., Story v. Green, 978 F.2d 60 (2d Cir.
1992). Neither is there any dispute that, outside of “a few
limited circumstances,” private corporations like Continental
are not state actors. See, e.g., Manhattan Community Access

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CONTINENTAL RESOURCES v. FAIR
Cite as 317 Neb. 391
Corp. v. Halleck, 587 U.S. 802, 809, 139 S. Ct. 1921, 204 L.
Ed. 2d 405 (2019). While Fair argues that two of those cir-
cumstances are present here, I am unpersuaded.
Fair first argues that Continental is a state actor because it
performed a public function. The U.S. Supreme Court has held
that an otherwise private entity may qualify as a state actor
when it exercises “powers traditionally exclusively reserved
to the State.” Id. (internal quotation marks omitted). “It is
not enough,” however, that “the federal, state, or local gov-
ernment exercised the function in the past, or still does.” Id.
“Rather, to qualify as a traditional, exclusive public function”
within the meaning of the Court’s cases, “the government
must have traditionally and exclusively performed the func-
tion.” Id. (emphasis in original). The Court has emphasized
that “very few” functions meet this test. Id. (internal quotation
marks omitted).
Fair argues that, in this case, governmental entities delegated
their function of collecting property tax debts to Continental
and that therefore, Continental meets the public function test.
Fair, however, does not point to any historical evidence that
tax collection generally, let alone property tax collection, was
traditionally the exclusive job of the government. And, in any
case, there is evidence to the contrary right here in Nebraska.
As we recently observed in our initial opinion in this case,
“[t]he tax sale process has been a part of Nebraska law since
at least 1879.” Continental Resources v. Fair, 311 Neb. 184,
185, 971 N.W.2d 313, 316 (2022), cert. granted and judgment
vacated ___ U.S. ___, 143 S. Ct. 2580, 216 L. Ed. 2d 1191
(2023). Going back even further in time, this court observed
over a century ago that “[s]elling the tax and authorizing the
purchaser to collect it is a method of collection almost as
old as taxation itself.” Leigh v. Green, 64 Neb. 533, 545, 90
N.W. 255, 259 (1902). Given the historical prevalence of the
method of tax collection at issue, I see no room for a finding
that Continental exercised a function that the government tra-
ditionally and exclusively performed.

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CONTINENTAL RESOURCES v. FAIR
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Alternatively, Fair argues that Continental qualifies as a
state actor because it jointly participated in the taking of the
property. On this point, Fair relies on the U.S. Supreme Court’s
opinion in Lugar v. Edmondson Oil Co., 457 U.S. 922, 102 S.
Ct. 2744, 73 L. Ed. 2d 482 (1982). In that case, a private credi-
tor was found to have engaged in state action when it utilized
a statutory prejudgment attachment procedure whereby, after
an ex parte hearing, a court clerk issued a writ that authorized
state officials to sequester a debtor’s property. See id. The U.S.
Supreme Court explained that it had recognized that “a private
party’s joint participation with state officials in the seizure of
disputed property” is sufficient to characterize the otherwise
private party as a state actor. Id., 457 U.S. at 941. Fair argues
that Continental engaged in similar action here.
Although Continental’s actions may bear some similari-
ties to the creditor in Lugar, the Court’s holding in that case
was narrow. On several occasions in its opinion, the Court
emphasized that its determination that there was state action
was limited to due process challenges to prejudgment attach-
ment procedures. See, e.g., id., 457 U.S. at 939 n.21 (stating
that holding was “limited to the particular context of prejudg-
ment attachment”). Many other courts have recognized that the
rule adopted in Lugar is limited to prejudgment attachment
procedures and refused to expand it beyond those limits. See,
e.g., Cobb v. Georgia Power Co., 757 F.2d 1248 (11th Cir.
1985); Mitchell v. Bank of New York Mellon, 835 Fed. Appx.
318 (10th Cir. 2020); Hill v. Langer, 86 Fed. Appx. 163 (6th
Cir. 2004). On top of that, the U.S. Supreme Court itself has
emphasized that the language of Lugar “must not be torn from
the context out of which it arose.” American Mfrs. Mut. Ins.
Co. v. Sullivan, 526 U.S. 40, 58, 119 S. Ct. 977, 143 L. Ed. 2d
130 (1999).
Whatever similarities there might be between the creditor in
Lugar and Continental, this case does not involve a challenge
to a prejudgment attachment procedure. I do not believe Lugar
supports the argument that Continental engaged in state action.

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CONTINENTAL RESOURCES v. FAIR
Cite as 317 Neb. 391
In addition to Fair’s arguments for why Continental engaged
in state action, the majority suggests that Continental engaged
in state action for another reason: the existence of a nexus
between the State and Continental under Nebraska’s property
tax collection system. The U.S. Supreme Court has recognized
that an otherwise private party engages in state action if “there
is a sufficiently close nexus between the State and the chal-
lenged action of the [private party] so that the action of the
latter may be fairly treated as that of the State itself.” Jackson
v. Metropolitan Edison Co., 419 U.S. 345, 351, 95 S. Ct. 449,
42 L. Ed. 2d 477 (1974). Respectfully, I am not convinced
Continental qualifies as a state actor under the nexus test.
I acknowledge that, under the relevant statutes, tax cer-
tificate purchasers play a role in the State’s collection of tax
debt and that this system is mutually beneficial to both tax
certificate purchasers and the State’s political subdivisions.
But, to determine whether a private party qualifies as a state
actor under the nexus test, the question that must be asked is
whether the “challenged action” of the private party can be
“fairly treated as that of the State itself.” Id. (emphasis sup-
plied). In this case, the action of Continental that Fair chal-
lenges is its request for the issuance of a tax deed. But no
state official or policy had anything to do with Continental’s
decision to request a tax deed. It was instead a decision of a
private investor, presumably based on profit maximization. See
Blum v. Yaretsky, 457 U.S. 991, 1008, 102 S. Ct. 2777, 73 L.
Ed. 2d 534 (1982) (finding no state action when challenged
conduct involved “medical judgments made by private parties
according to professional standards that are not established
by the State”). Furthermore, by the time a tax certificate pur-
chaser like Continental decides whether to request a tax deed
for or pursue judicial foreclosure of a delinquent property,
governmental entities do not even have a financial interest in
its choice. By that time, the county has already received the
revenue it would have received from the taxpayer.

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CONTINENTAL RESOURCES v. FAIR
Cite as 317 Neb. 391
No one could dispute that the State created the remedy that
allows tax certificate purchasers like Continental to obtain
absolute title if the original owner fails to redeem. And I do
not question the majority’s suggestion that this remedy is an
incentive provided by the State to encourage the purchase
of tax certificates. The U.S. Supreme Court has consistently
maintained, however, that a private party’s mere use of a
state-created remedy does not alone amount to state action.
See, American Mfrs. Mut. Ins. Co., 526 U.S. at 53 (“[w]e
have never held that the mere availability of a remedy for
wrongful conduct, even when the private use of that remedy
serves important public interests, so significantly encourages
the private activity as to make the State responsible for it”);
Tulsa Professional Collection Services v. Pope, 485 U.S. 478,
485, 108 S. Ct. 1340, 99 L. Ed. 2d 565 (1988) (“[p]rivate
use of state-sanctioned private remedies or procedures does
not rise to the level of state action”). Because all I under-
stand Continental to have done is make use of a state-created
remedy, I do not see a basis to find state action under the
nexus test.
Because I perceive no way to conclude that Continental
engaged in state action, I do not believe it can be liable to pay
just compensation for a taking.
Conclusion.
The majority opinion observes that its resolution is con-
sistent with principles of restitution. I do not dispute that
the majority’s resolution is consistent with certain equitable
notions. The court requires Continental—the one party that
acted with discretion and reaped a windfall—to give up a por-
tion of what it gained through the purchase of the tax certifi-
cate. At the same time, it absolves the county—the party that
merely followed state law and obtained no windfall.
That said, I am not convinced that this is a case in which
equitable notions are seamlessly aligned with the constitu-
tional analysis. As I have discussed, viewing the evidence

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Cite as 317 Neb. 391
in the light most favorable to Fair, I understand the county,
undoubtedly a state actor, to have taken Fair’s property.
Applying the same standard to Continental, I do not see a
basis to conclude that it engaged in state action. Accordingly,
I believe the county, rather than Continental, faces liability to
pay just compensation. I respectfully dissent to the extent the
majority’s decision holds otherwise.