- 391 -

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 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.

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/

08/23/2024 09:11 AM CDT
- 392 -

Nebraska Supreme Court Advance Sheets

317 Nebraska Reports

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 rejection 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 petition 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 
- 393 -

Nebraska Supreme Court Advance Sheets

317 Nebraska Reports

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 relevant 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 property 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. 
- 394 -

Nebraska Supreme Court Advance Sheets

317 Nebraska Reports

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 certificate 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 manner 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 process 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 property taxes on the property, the county treasurer sold a tax certificate to Continental for the amount of the property’s unpaid 

taxes—$588.21.

Three years later, Continental, pursuant to Nebraska statute, notified the Fairs that if they did not redeem the property 

by paying the total value of the unpaid taxes, fees, and interest—an amount that totaled $5,268.32—Continental would 

apply for a tax deed and the right of redemption would 
- 395 -

Nebraska Supreme Court Advance Sheets

317 Nebraska Reports

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 property 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 hereafter 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 constitutional 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 
- 396 -

Nebraska Supreme Court Advance Sheets

317 Nebraska Reports

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 compensation. 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, 
- 397 -

Nebraska Supreme Court Advance Sheets

317 Nebraska Reports

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 violated 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 federal 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 takings 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 important 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 “‘traditional 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 
- 398 -

Nebraska Supreme Court Advance Sheets

317 Nebraska Reports

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 decision, and remanded the cause for further consideration in light 

of Tyler.

After remand, we directed the parties to file supplemental 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.
- 399 -

Nebraska Supreme Court Advance Sheets

317 Nebraska Reports

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 reasonable 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 property 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 corresponding 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 federal 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.
- 400 -

Nebraska Supreme Court Advance Sheets

317 Nebraska Reports

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 reconsider 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 compensation requirement. A taking for a private use is unconstitutional 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 statutes 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 property 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 
- 401 -

Nebraska Supreme Court Advance Sheets

317 Nebraska Reports

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 traditional 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 
- 402 -

Nebraska Supreme Court Advance Sheets

317 Nebraska Reports

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 collection 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 question 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 encumbrances. 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 statutory system in Michigan, if property owners failed to pay 

taxes by a certain point, counties could file a foreclosure petition. If, in response to the foreclosure petition, the original 
- 403 -

Nebraska Supreme Court Advance Sheets

317 Nebraska Reports

CONTINENTAL RESOURCES V. FAIR

Cite as 317 Neb. 391

owner did not redeem, a court was required to enter a foreclosure 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 interest 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 historical analysis of whether the plaintiffs had a protected 
- 404 -

Nebraska Supreme Court Advance Sheets

317 Nebraska Reports

CONTINENTAL RESOURCES V. FAIR

Cite as 317 Neb. 391

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 purchaser 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 possession 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 property 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.
- 405 -

Nebraska Supreme Court Advance Sheets

317 Nebraska Reports

CONTINENTAL RESOURCES V. FAIR

Cite as 317 Neb. 391

Based on the foregoing, we are persuaded that Fair had a 

protected property interest to the extent the value of the property 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, recognizes 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 property 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 
- 406 -

Nebraska Supreme Court Advance Sheets

317 Nebraska Reports

CONTINENTAL RESOURCES V. FAIR

Cite as 317 Neb. 391

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 proceedings 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 delinquent 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 compensation.” 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.
- 407 -

Nebraska Supreme Court Advance Sheets

317 Nebraska Reports

CONTINENTAL RESOURCES V. FAIR

Cite as 317 Neb. 391

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 pursued 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 equitable 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 corporation 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 circumstances.” 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 present 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 
- 408 -

Nebraska Supreme Court Advance Sheets

317 Nebraska Reports

CONTINENTAL RESOURCES V. FAIR

Cite as 317 Neb. 391

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 collection,” 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 (government “may also seize and sell property, including land, to 

recover the amount owed”). In this case, Nebraska’s statutory 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 attachment 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 requirement was clearly met because the statute allowed the creditor 

to seek prejudgment attachment. The Court found that the second requirement was also met because state officials aided the 

creditor in the use of the state-created attachment procedures.
- 409 -

Nebraska Supreme Court Advance Sheets

317 Nebraska Reports

CONTINENTAL RESOURCES V. FAIR

Cite as 317 Neb. 391

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 procedures 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 highest 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 
- 410 -

Nebraska Supreme Court Advance Sheets

317 Nebraska Reports

CONTINENTAL RESOURCES V. FAIR

Cite as 317 Neb. 391

State and its political subdivisions continue to receive revenue 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 characterized 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 subdivisions 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 investors would pass up.

We find all this relevant to the state action inquiry because 

U.S. Supreme Court cases have recognized that the relationship 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 formulations 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 
- 411 -

Nebraska Supreme Court Advance Sheets

317 Nebraska Reports

CONTINENTAL RESOURCES V. FAIR

Cite as 317 Neb. 391

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 powerful 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 attributable” 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 certificate, it entered into something akin to a real estate purchase 

agreement with the county, whereby Continental acquired full 
- 412 -

Nebraska Supreme Court Advance Sheets

317 Nebraska Reports

CONTINENTAL RESOURCES V. FAIR

Cite as 317 Neb. 391

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 opinion 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 certificate 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 certificate is issued,” and thus Fair’s due process rights were not 
- 413 -

Nebraska Supreme Court Advance Sheets

317 Nebraska Reports

CONTINENTAL RESOURCES V. FAIR

Cite as 317 Neb. 391

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 certificate, 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 earliest, 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 
- 414 -

Nebraska Supreme Court Advance Sheets

317 Nebraska Reports

CONTINENTAL RESOURCES V. FAIR

Cite as 317 Neb. 391

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 adjoining 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 restitution. 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 
- 415 -

Nebraska Supreme Court Advance Sheets

317 Nebraska Reports

CONTINENTAL RESOURCES V. FAIR

Cite as 317 Neb. 391

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 compensation. Although the parties’ briefing at times discussed the 

possibility that the State might be liable to pay just compensation, 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 judgment, 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 argument 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 supplemental 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 questions.” Supplemental brief for appellant at 28. Because we 
- 416 -

Nebraska Supreme Court Advance Sheets

317 Nebraska Reports

CONTINENTAL RESOURCES V. FAIR

Cite as 317 Neb. 391

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 favorable 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 therefore 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 
- 417 -

Nebraska Supreme Court Advance Sheets

317 Nebraska Reports

CONTINENTAL RESOURCES V. FAIR

Cite as 317 Neb. 391

as to who might be liable to pay just compensation here. 

Perhaps unsurprisingly, there appears to be little other authority directly addressing who is responsible to pay just compensation 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 taking is the event which gives rise to the claim for compensation.” 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 compensation, 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 majority 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 
- 418 -

Nebraska Supreme Court Advance Sheets

317 Nebraska Reports

CONTINENTAL RESOURCES V. FAIR

Cite as 317 Neb. 391

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 others 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 differences 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 ultimately 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 
- 419 -

Nebraska Supreme Court Advance Sheets

317 Nebraska Reports

CONTINENTAL RESOURCES V. FAIR

Cite as 317 Neb. 391

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 obligated by state law to do everything it did, it offers no authority 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 subdivision 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 taking 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 
- 420 -

Nebraska Supreme Court Advance Sheets

317 Nebraska Reports

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 circumstances 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 government 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 function.” 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 traditionally and exclusively performed.
- 421 -

Nebraska Supreme Court Advance Sheets

317 Nebraska Reports

CONTINENTAL RESOURCES V. FAIR

Cite as 317 Neb. 391

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 creditor 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 similarities 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 attachment procedures. See, e.g., id., 457 U.S. at 939 n.21 (stating 

that holding was “limited to the particular context of prejudgment 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.
- 422 -

Nebraska Supreme Court Advance Sheets

317 Nebraska Reports

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 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). Respectfully, I am not convinced 

Continental qualifies as a state actor under the nexus test.

I acknowledge that, under the relevant statutes, tax certificate 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 supplied). In this case, the action of Continental that Fair challenges 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 purchaser 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.
- 423 -

Nebraska Supreme Court Advance Sheets

317 Nebraska Reports

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 understand 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 consistent 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 portion of what it gained through the purchase of the tax certificate. 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 constitutional analysis. As I have discussed, viewing the evidence 
- 424 -

Nebraska Supreme Court Advance Sheets

317 Nebraska Reports

CONTINENTAL RESOURCES V. FAIR

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.