State ex rel. Reed v. State

State of NebraSka ex rel . Patrick reed, aPPellaNt,
v. State of NebraSka Game aNd ParkS
commiSSioN et al ., aPPelleeS.
773 N.W.2d 349
Filed September 18, 2009. 	No. S-08-1261.
1. Judgments: Appeal and Error. On a question of law, an appellate court reaches
a conclusion independent of the court below.
2. Standing: Jurisdiction: Parties: Judgments: Appeal and Error. Standing is a
jurisdictional component of a party’s case, because only a party who has stand-
ing may invoke the jurisdiction of a court; determination of a jurisdictional issue
which does not involve a factual dispute is a matter of law which requires an
appellate court to reach its conclusions independent from a trial court.
3. Standing: Jurisdiction. The defect of standing is a defect of subject mat-
ter jurisdiction.
4. Motions to Dismiss: Standing: Jurisdiction: Rules of the Supreme Court:
Pleadings: Appeal and Error. If a motion to dismiss for lack of jurisdiction
is filed at the pleadings stage and the motion challenges the sufficiency of the
complaint to invoke the court’s jurisdiction, then the district court will review
the pleadings to determine whether there are sufficient allegations to establish
the plaintiff’s standing. Aside from factual findings, which are reviewed for clear
error, the granting of a motion to dismiss for lack of subject matter jurisdiction
under Neb. Ct. R. Pldg. § 6-1112(b)(1) is subject to de novo review.
5. Standing: Words and Phrases. Standing is the legal or equitable right, title, or
interest in the subject matter of the controversy which entitles a party to invoke
the jurisdiction of the court.
6. Standing: Jurisdiction: Justiciable Issues. As an aspect of jurisdiction and
justiciability, standing requires that a litigant have such a personal stake in the
outcome of a controversy as to warrant invocation of a court’s jurisdiction and
justify the exercise of the court’s remedial powers on the litigant’s behalf.
7. Standing: Municipal Corporations. Generally, in order to have standing to
bring suit to restrain an act of a municipal body, the persons seeking such action
must show some special injury peculiar to themselves aside from a general injury
to the public, and it is not sufficient that they have merely a general interest com-
mon to all members of the public.
Appeal from the District Court for Seward County: Paul d.
merritt, Jr ., Judge. Affirmed.
Richard L. Rice and Mathew T. Watson, of Crosby Guenzel,
L.L.P., for appellant.
Jon Bruning, Attorney General, Jody Gittins, and Michelle
Weber 	for 	appellees 	State 	of 	Nebraska 	Game 	and 	Parks
Commission, Rex Amack, and Carey Grell.
564 	278 NeBRASkA RePORTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:49 AM CST

kile W. Johnson, of Johnson, Flodman, Guenzel & Widger,
Stephen D. Mossman, of Mattson, Ricketts, Davies, Stewart
& Calkins, and Bonnie J. Hostetler, of Nebraska Public Power
District, for appellee Nebraska Public Power District.
H eavicaN, 	c.J., 	WriGHt, 	coNNolly, 	G errard, 	StePHaN,
mccormack , and miller-lermaN, JJ.
WriGHt, J.
NATURe OF CASe
Patrick Reed sought a writ of mandamus to compel the
Nebraska Game and Parks Commission (NGPC) and its offi-
cers to prohibit the Nebraska Public Power District (NPPD)
from constructing a power transmission line across Twin Lakes
Wildlife Management Area (Twin Lakes). Reed also sought
injunctive relief and declaratory judgments to prevent construc-
tion of the transmission line. The Seward County District Court
found that Reed did not have standing and dismissed the peti-
tion without leave to amend. Reed appeals.
SCOPe OF ReVIeW
[1] On a question of law, an appellate court reaches a con-
clusion independent of the court below. Lamar Co. v. City
of Fremont, ante p. 485, 771 N.W.2d 894 (2009); Pierce v.
Douglas Cty. Civil Serv. Comm., 275 Neb. 722, 748 N.W.2d
660 (2008).
[2] Standing is a jurisdictional component of a party’s case,
because only a party who has standing may invoke the jurisdic-
tion of a court; determination of a jurisdictional issue which
does not involve a factual dispute is a matter of law which
requires an appellate court to reach its conclusions independent
from a trial court. Lamar Co., supra; In re Estate of Dickie,
261 Neb. 533, 623 N.W.2d 666 (2001).
[3] The defect of standing is a defect of subject matter juris-
diction. Citizens Opposing Indus. Livestock v. Jefferson Cty.,
274 Neb. 386, 740 N.W.2d 362 (2007).
[4] If a motion to dismiss for lack of jurisdiction is filed at
the pleadings stage and the motion challenges the sufficiency
of the complaint to invoke the court’s jurisdiction, then the dis-
trict court will review the pleadings to determine whether there
STATe ex ReL. ReeD v. STATe 	565
Cite as 278 Neb. 564

are sufficient allegations to establish the plaintiff’s standing. Id.
Aside from factual findings, which are reviewed for clear error,
the granting of a motion to dismiss for lack of subject matter
jurisdiction under Neb. Ct. R. Pldg. § 6-1112(b)(1) is subject to
de novo review. Citizens Opposing Indus. Livestock, supra.
FACTS
Reed owns land and resides in Seward County, Nebraska. He
regularly uses Twin Lakes, a wildlife management area that is
also located in Seward County. Twin Lakes has been designated
as a wildlife management area by NGPC and is subject to its
control and protection pursuant to Neb. Rev. Stat. §§ 37-328 to
37-336 (Reissue 2008).
The Twin Lakes area contains a prairie wildflower known
as the Western Prairie Fringed Orchid, which has been identi-
fied as a “threatened and/or endangered species” by the U.S.
Department of the Interior and the State of Nebraska. The
orchid is known to exist in seven states, including Nebraska,
and one Canadian province. It is found in remnant native
prairies and meadows, such as those that exist at Twin Lakes,
and may go dormant for many years. NGPC and others have
observed the orchid at Twin Lakes.
As the state agency charged with conservation and protec-
tion of state resources, NGPC has the authority to prevent the
destruction of threatened and endangered species. NGPC also
has the authority to grant easements across real estate under
its control, including Twin Lakes, pursuant to § 37-330. NPPD
has several easements across Twin Lakes that were granted in
1937 and 1968 to maintain a 115-kV transmission line across
Twin Lakes.
NPPD has plans to begin an electric transmission line proj-
ect known as the electric Transmission Reliability Project
for east-Central Nebraska (eTR Project). The eTR Project
involves the construction of approximately 80 miles of 345-kV
transmission line between Columbus, Nebraska, and Lincoln,
Nebraska. The preferred route for this project crosses Twin
Lakes. Construction of the eTR Project will require excavation
25 feet deep and large enough for a base with a 7-foot diameter
to accommodate the 100- to 165-foot poles which will support
566 	278 NeBRASkA RePORTS

the transmission line. Reed alleges that this excavation will
threaten the habitat of the orchid and will negate the primary
purpose of Twin Lakes as a wildlife management area. He
also claims that the eTR Project exceeds the scope of NPPD’s
existing easements.
Reed filed a petition in Seward County District Court alleg-
ing three causes of action. First, he sought a writ of mandamus
to compel NGPC and its director to perform their statutory
duties to protect Twin Lakes from harmful and unlawful intru-
sions by NPPD. Second, Reed sought to enjoin NGPC from
issuing a new easement to NPPD for the eTR Project and
from continuing the eTR Project with or without a sufficient
easement. Finally, Reed requested a declaratory judgment that
NPPD’s existing easements were insufficient for the 345-kV
transmission and that any easement for the construction of the
eTR Project would destroy the habitat of the orchid and negate
the primary purpose of Twin Lakes’ designation as a wildlife
management area.
The district court concluded that Reed did not have stand-
ing because he had not suffered any special injury peculiar to
himself aside from and independent of the general injury to
the public. It opined that while Reed’s interests may very well
involve matters of great public concern, such interests did not
rise to the level described by this court in Cunningham v. Exon,
202 Neb. 563, 276 N.W.2d 213 (1979). Accordingly, the court
dismissed the action.
ASSIGNMeNT OF eRROR
Reed alleges the district court erred in determining that he
lacked standing to bring this action.
ANALYSIS
The issue is whether the district court erred in dismissing
Reed’s petition. The court concluded that Reed lacked stand-
ing because he had not suffered any special injury peculiar to
himself aside from and independent of the general injury to the
public. Noting that an exception to the general rule exists when
the case involves a matter of “‘great public concern,’” the court
found that the issue of potential harm to the natural resources
STATe ex ReL. ReeD v. STATe 	567
Cite as 278 Neb. 564

and aesthetic beauty at Twin Lakes did not constitute a matter
of great public interest and concern such that Reed should be
granted standing.
[5-7] Standing is the legal or equitable right, title, or inter-
est in the subject matter of the controversy which entitles
a party to invoke the jurisdiction of the court. Myers v.
Nebraska Invest. Council, 272 Neb. 669, 724 N.W.2d 776
(2006). Indeed, as an aspect of jurisdiction and justiciability,
standing requires that a litigant have such a personal stake
in the outcome of a controversy as to warrant invocation of
a court’s jurisdiction and justify the exercise of the court’s
remedial powers on the litigant’s behalf. Lamar Co. v. City
of Fremont, ante p. 485, 771 N.W.2d 894 (2009). Generally,
in order to have standing to bring suit to restrain an act of a
municipal body, the persons seeking such action must show
some special injury peculiar to themselves aside from a
general injury to the public, and it is not sufficient that they
have merely a general interest common to all members of the
public. Id.
In the 19th and early 20th centuries, this court discussed
an exception to the requirement that a litigant have a personal
stake in the outcome of the controversy. We stated that if the
question was one of a public right and the object of mandamus
was to procure the enforcement of a public duty, the people
were regarded as the real party in interest. In that situation, the
individual bringing the action, the relator, did not need to show
that he had any legal or special interest in the result. City of
Crawford v. Darrow, 87 Neb. 494, 127 N.W. 891 (1910); Van
Horn v. State, 51 Neb. 232, 70 N.W. 941 (1897); State, ex rel.,
Ferguson v. Shropshire, 4 Neb. 411 (1876). It was sufficient to
show that the relator was a citizen and therefore interested in
the execution of the laws. Id.
This exception existed only in rare cases. A public right
was found to exist in State, ex rel., Ferguson, supra, when a
resident of the sixth ward of the city of Omaha, Nebraska,
filed an application for a mandamus to require a justice of the
peace who was elected to the sixth ward to locate his office in
the sixth ward rather than in the fourth ward. We allowed the
mandamus, determining that requiring an elected official to
568 	278 NeBRASkA RePORTS

discharge the duties of his office in the ward in which he was
elected was a legitimate general interest.
Likewise, in The State v. Stearns, 11 Neb. 104, 7 N.W. 743
(1881), a resident of Nance County, Nebraska, alleged that the
newly appointed special commissioners responsible for count-
ing votes to determine the location of the Nance County seat
threw out a large number of votes cast in favor of Genoa and
proclaimed Fullerton to be the county seat. The relator sought
a mandamus to compel the commissioners to count all votes
cast. Underscoring the importance of counting votes and not-
ing that the relator was a citizen and interested in execution
of the laws, we concluded that the relator had standing and
awarded mandamus.
We clarified the exception to the general standing rule in
Cunningham v. Exon, 202 Neb. 563, 276 N.W.2d 213 (1979),
which presented the issue of whether the plaintiff had stand-
ing to challenge the accuracy of a constitutional amendment
adopted by the electors of Nebraska. The plaintiff alleged that
public officials of the State of Nebraska had erroneously omit-
ted a portion of the Nebraska Constitution when it amended
a section regarding state contracts for special education ser-
vices from secular institutions. The defendants argued that
the plaintiff did not have standing. They relied on other juris-
dictions which held that in order to maintain an action for a
declaratory judgment as to a legislative enactment, a plaintiff
must show some special injury peculiar to himself aside from
and independent of the general public. The action could be
brought if the legislative enactment involved the expenditure
of public funds or involved an illegal increase in the burden
of taxation.
We recognized an exception to the standing requirement
when the matter involved a great public concern that could
otherwise go unchallenged. We concluded that an amend-
ment to the Nebraska Constitution raised issues of great pub-
lic interest and concern. If such an amendment could not be
challenged by a citizen and taxpayer unless he had a special
pecuniary interest different from the public generally, it was
entirely possible that no one would have standing to challenge
the amendment.
STATe ex ReL. ReeD v. STATe 	569
Cite as 278 Neb. 564

We declined to find an exception to the rule of standing in
Green v. Cox Cable of Omaha, Inc., 212 Neb. 915, 327 N.W.2d
603 (1982). In that case, two members of the Omaha City
Council sought a declaratory judgment to avoid the award of
a cable television franchise. The council members alleged that
the franchise exposed the city to liabilities, but did not allege
any facts in support of the claimed liabilities. We concluded
that cable television did not reach the level of great public
concern described in Cunningham, supra, and affirmed the trial
court’s dismissal for lack of standing.
In Ritchhart v. Daub, 256 Neb. 801, 594 N.W.2d 288 (1999),
an Omaha registered voter and taxpayer sued, complaining that
the elected mayor’s appointment of the police, fire, and com-
munications chiefs violated the Omaha home rule charter. The
district court overruled the defendant’s demurrer on the issue of
standing. It found that police, fire, and emergency communica-
tions were essential services and that any citizen should have
the right to bring suit if such services were not being provided
as required by law. However, the plaintiff did not allege or
identify any interest in the outcome of the litigation that was
not shared by all the residents of Omaha. Because the plaintiff’s
generalized injury was not a sufficient interest to entitle her to
bring the action, we concluded that she did not have standing
and dismissed the complaint. We stated that in disputes over
essential services, the proper mechanism for procuring change
was through the ballot box, and not through the courts.
In Neb. Against Exp. Gmblg. v. Neb. Horsemen’s Assn., 258
Neb. 690, 605 N.W.2d 803 (2000), we held that a taxpayer
and a nonprofit corporation organized to oppose the prolifera-
tion of gambling lacked standing to challenge the state racing
commission’s issuance of a license for simulcast of horse races.
The alleged injury was not peculiar to the interests of the
appellants, and there was no allegation of illegal expenditure
of public funds or an increase in the burden of taxation. We
determined that the appellants’ stated interests in preventing the
proliferation of gambling and having public officials act within
their statutory boundaries were general interests common to
all members of the public and did not rise to the level of great
570 	278 NeBRASkA RePORTS

public concern required by Cunningham v. Exon, 202 Neb. 563,
276 N.W.2d 213 (1979).
In the instant case, Reed claims that harm to the natural
resources and aesthetic beauty of the state will result from
the failure of state actors to uphold their statutory duties. He
argues that the harm is of paramount concern to the general
public and is sufficient to qualify as a matter of great public
concern for purposes of conferring subject matter jurisdic-
tion. Reed asserts that because the State would technically be
the only party with standing to bring the suit, the actions of
the NGPC are immunized from judicial review. If standing is
not conferred upon a member of the public, Reed claims the
general public would not have the ability to ensure that Twin
Lakes was being adequately safeguarded by those charged with
its stewardship.
exceptions to the rule of standing must be carefully applied
in order to prevent the exceptions from swallowing the rule.
Other than challenges to the unauthorized or illegal expend-
iture of public funds, our more recent cases have narrowed
such exceptions to situations where matters of great public
concern are involved and a legislative enactment may go
unchallenged unless the plaintiff has the right to bring the
action. See, Myers v. Nebraska Invest. Council, 272 Neb. 669,
724 N.W.2d 776 (2006); Neb. Against Exp. Gmblg., supra;
Cunningham, supra.
essentially, Reed seeks to impose upon NGPC his opinions
regarding the administration of the state’s wildlife manage-
ment areas. By law, NGPC is charged with this responsibility.
See § 37-336. Reed’s claim that NGPC has breached its duties
does not give Reed the right to seek relief in the courts. Such
concerns are better left to the policy decisions of the legisla-
tive and executive branches. Certainly, the public has a right to
influence NGPC’s policies regarding the administration of the
state’s wildlife management areas. However, the mechanism
for doing so is through our representative form of government,
and not through the courts. See Ritchhart v. Daub, 256 Neb.
801, 594 N.W.2d 288 (1999). Reed has not shown that he has
standing to bring the action.
STATe ex ReL. ReeD v. STATe 	571
Cite as 278 Neb. 564

CONCLUSION
We conclude that Reed’s concern does not rise to the level of
great public concern that is necessary to qualify for an excep-
tion to standing requirements. The district court was correct in
dismissing Reed’s cause of action for lack of standing.
affirmed.
572 	278 NeBRASkA RePORTS