- 1 -

Nebraska Supreme Court Advance S

296 Nebraska Report

MEDICINE CREEK v. MIDDLE REPUBLICAN NRD

Cite as 296 Neb. 1

Medicine Creek LLC, app

and cross-appellant

Middle Republican 

Resources District, ap

and cross-appel

___ N.W.2d ___

Filed March 10, 2017. No. S-16-209.

1. Jurisdiction: Appeal and Error. A jurisdictional question which does 

not involve a factual dispute is determined by an appellate court as a 

matter of law.

2. Administrative Law: Judgments: Appeal and Error. A judgment or 

final order rendered by a district court in a judicial review pursuant to 

the Administrative Procedure Act may be reversed, vacated, or modified 

by an appellate court for errors appearing on the record. When reviewing an order of a district court under the Administrative Procedure Act 

for errors appearing on the record, the inquiry is whether the decision 

conforms to the law, is supported by competent evidence, and is neither 

arbitrary, capricious, nor unreasonable.

3. Natural Resources Districts: Political Subdivisions: Legislature. A 

natural resources district, as a political subdivision, has only that power 

delegated to it by the Legislature, and a grant of power to a political 

subdivision is strictly construed.

4. Natural Resources Districts. A natural resources district possesses and 

can exercise the following powers and no others: first, those granted in 

express words; second, those necessarily or fairly implied in or incident to the powers expressly granted; and third, those essential to the 

declared objects and purposes of the district—not simply convenient, 

but indispensable.

5. Administrative Law. When a board or tribunal is required to conduct a 

hearing and receive evidence, it exercises judicial functions in determining questions of fact.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

03/10/2017 09:08 AM CST
- 2 -

Nebraska Supreme Court Advance S

296 Nebraska Report

MEDICINE CREEK v. MIDDLE REPUBLICAN NRD

Cite as 296 Neb. 1

6. Administrative Law: Waters: Natural Resources Districts: Appeal 

and Error. Any person aggrieved by an order of a natural resources 

district issued pursuant to the Nebraska Ground Water Management and 

Protection Act may appeal the order, and the appeal shall be in accordance with the Administrative Procedure Act.

7. Administrative Law: Final Orders: Courts: Appeal and Error. In 

reviewing final administrative orders under the Administrative Procedure 

Act, the district court functions not as a trial court but as an intermediate 

court of appeals.

8. Administrative Law: Appeal and Error. In a review de novo on the 

record, the district court is not limited to a review subject to the narrow criteria found in Neb. Rev. Stat. § 84-917(6)(a) (Reissue 2014), 

but is required to make independent factual determinations based upon 

the record, and the court reaches its own independent conclusions with 

respect to the matters at issue.

9. Administrative Law: Evidence: Judicial Notice: Appeal and Error. 

The Administrative Procedure Act does not authorize a district court 

reviewing the decision of an administrative agency to receive additional 

evidence, whether by judicial notice or other means.

10. Appeal and Error: Words and Phrases. Plain error is error uncomplained of at trial, plainly evident from the record, and of such a nature 

that to leave it uncorrected would result in damage to the integrity, reputation, or fairness of the judicial process.

11. Appeal and Error. An appellate court is not obligated to engage in an 

analysis that is not necessary to adjudicate the case and controversy 

before it.

Appeal from the District Court for Frontier County: Davi

Urbom, Judge. Reversed and remanded for further proceedings

Jon S. Schroeder, of Schroeder & Schroeder, P.C., for 

appellant.

Stephen D. Mossman, of Mattson Ricketts Law Firm, for 

appellee.

Donald G. Blankenau, of Blankenau, Wilmoth & Jarecke, 

L.L.P., for amicus curiae Nebraska Groundwater Coalition.

Heavican, C.J., Wright, Miller-Lerman, Casse

Kelch, and Funke,
- 3 -

Nebraska Supreme Court Advance S

296 Nebraska Report

MEDICINE CREEK v. MIDDLE REPUBLICAN NRD

Cite as 296 Neb. 1

Cassel, J

INTRODUCTION

The Middle Republican Natural Resources District 

(MRNRD) denied a landowner’s request for a variance to 

drill a new well. Upon the landowner’s appeal, the district 

court reversed MRNRD’s decision. Because the district court 

committed plain error by applying the wrong standard of 

review, we reverse, and remand for reconsideration under the 

proper standard.

BACKGROUND

Medicine Creek LLC, a Nebraska limited liability company, 

filed a request for a variance from MRNRD’s moratorium on 

new well drilling. MRNRD denied the variance but stated that 

Medicine Creek “may request a [sic] adjudicatory hearing to 

appeal this decision.” Medicine Creek did so, and a hearing 

officer presided over a hearing during which three individuals testified and numerous exhibits were received. Following 

the presentation of evidence, MRNRD’s Board of Directors 

(Board) voted to deny the variance.

Medicine Creek filed a complaint with the district court for 

Frontier County. It sought judicial review pursuant to Neb. 

Rev. Stat. § 46-750 (Reissue 2010) and the Administrative 

Procedure Act (APA). Medicine Creek alleged that the Board 

improperly denied its variance request based on a rule applicable to transfers. Medicine Creek also requested declaratory and injunctive relief based on its allegation that two of 

MRNRD’s rules violated its equal protection and due process rights.

The district court conducted a bench trial, during which 

it received the record from MRNRD’s hearing. It also 

received 100 additional exhibits and heard testimony from 

the three individuals who testified before the Board. The 

court determined that MRNRD’s rules and regulations as 

applied to Medicine Creek’s request did not violate Medicine 

Creek’s equal protection and due process rights. It found that 
- 4 -

Nebraska Supreme Court Advance S

296 Nebraska Report

MEDICINE CREEK v. MIDDLE REPUBLICAN NRD

Cite as 296 Neb. 1

MRNRD’s decision “was not supported by the evidence, does 

not conform to the law and was therefore arbitrary.” The 

court reversed the decision denying the variance and directed 

MRNRD to grant the variance.

MRNRD filed a timely appeal, and Medicine Creek filed a 

cross-appeal. We moved the case to our docket.1

ASSIGNMENTS OF ERROR

MRNRD assigns that the district court erred in holding that 

its decision to deny Medicine Creek’s request for a variance 

was not supported by the evidence, did not conform to the 

law, and was arbitrary.

On cross-appeal, Medicine Creek assigns that in the event 

we reverse the decision of the district court, the court erred 

in (1) not finding that the application of MRNRD’s rules and 

regulations violated Medicine Creek’s equal protection and due 

process rights, (2) not finding that the rules and regulations 

were facially unconstitutional, and (3) not issuing declaratory and injunctive relief against the unconstitutional rules 

and regulations.

STANDARD OF REVIEW

[1] A jurisdictional question which does not involve a factual 

dispute is determined by an appellate court as a matter of law.2

[2] A judgment or final order rendered by a district court 

in a judicial review pursuant to the APA may be reversed, 

vacated, or modified by an appellate court for errors appearing on the record. When reviewing an order of a district court 

under the APA for errors appearing on the record, the inquiry 

is whether the decision conforms to the law, is supported 

by competent evidence, and is neither arbitrary, capricious, 

nor unreasonable.3

1 See Neb. Rev. Stat. § 24-1106(3) (Reissue 2016).

2 Guardian Tax Partners v. Skrupa Invest. Co., 295 Neb. 639, ___ N.W.2d 

___ (2017).

3 Lingenfelter v. Lower Elkhorn NRD, 294 Neb. 46, 881 N.W.2d 892 (2016).
- 5 -

Nebraska Supreme Court Advance S

296 Nebraska Report

MEDICINE CREEK v. MIDDLE REPUBLICAN NRD

Cite as 296 Neb. 1

ANALYSIS

Jurisdicti

In an amicus curiae brief, the Nebraska Groundwater 

Coalition asserts that the district court lacked jurisdiction for 

two reasons. We find no merit to either argument.

First, the amicus argues that Medicine Creek lacked standing. The amicus asserted that the Nebraska Secretary of State’s 

website showed Medicine Creek’s corporate status as inactive 

at the time of trial. This is not in our record. There is nothing in 

the record showing that Medicine Creek was ever dissolved or 

otherwise lacked a legally cognizable interest in the outcome 

of this litigation.

Second, the amicus asserts that denial of a variance request 

is not subject to judicial review. This follows, it argues, because 

the Legislature has not authorized natural resources districts to 

conduct adjudicative proceedings regarding requests for variances. The amicus contends that although § 46-750 provides 

that “[a]ny person aggrieved by any order of the district . . . 

may appeal the order,” an order denying a variance request is 

ministerial or legislative in nature and not appealable.

[3,4] A natural resources district, as a political subdivision, 

has only that power delegated to it by the Legislature, and a 

grant of power to a political subdivision is strictly construed.4

A natural resources district possesses and can exercise the following powers and no others: first, those granted in express 

words; second, those necessarily or fairly implied in or incident 

to the powers expressly granted; and third, those essential to 

the declared objects and purposes of the district—not simply 

convenient, but indispensable.5

A statute addresses some of the powers of a natural resources 

district.6 The Legislature authorized a natural resources district 

4 Wagoner v. Central Platte Nat. Resources Dist., 247 Neb. 233, 526 

N.W.2d 422 (1995).

5 Id.

6 See Neb. Rev. Stat. § 46-707 (Cum. Supp. 2016).
- 6 -

Nebraska Supreme Court Advance S

296 Nebraska Report

MEDICINE CREEK v. MIDDLE REPUBLICAN NRD

Cite as 296 Neb. 1

to “[a]dopt and promulgate rules and regulations necessary to 

discharge the administrative duties assigned in the [Nebraska 

Ground Water Management and Protection Act].”7 Among the 

rules and regulations adopted by MRNRD was a rule stating 

that requests for a variance would be acted upon at a formal 

adjudicatory hearing. The same rule dictated that this hearing 

would be advertised in the legal newspaper of the district. And 

another section of the same statute provides in part that

a district may assess a fee against a person requesting a 

variance to cover the administrative cost of consideration 

of the variance, including, but not limited to, costs of 

copying records and the cost of publishing a notice in a 

legal newspaper of general circulation in the county or 

counties of the district, radio announcements, or other 

means of communication deemed necessary in the area 

where the property is located.8

By authorizing published notice, the Legislature contemplated 

a public hearing on a request for a variance.

[5] In holding a hearing and receiving evidence, the Board 

acted in a judicial manner. In cases where we have considered if an administrative decision was made in the exercise of 

“judicial” functions such that it was reviewable by petition in 

error, we stated that “a board, tribunal, or officer exercises a 

judicial function ‘if it decides a dispute of adjudicative fact or 

if a statute requires it to act in a judicial manner.’”9 We defined 

adjudicative facts as those “‘which relate to a specific party 

and are adduced from formal proof.’”10 We have also stated 

that when a board or tribunal is required to conduct a hearing 

and receive evidence, it exercises “judicial functions” in determining questions of fact.11 Here, the Board acted in a judicial 

7 § 46-707(1)(a).

8 § 46-707(3) (emphasis supplied).

9 Kocontes v. McQuaid, 279 Neb. 335, 348, 778 N.W.2d 410, 421 (2010).

10 Id. at 348-49, 778 N.W.2d at 421.

11 McNally v. City of Omaha, 273 Neb. 558, 731 N.W.2d 573 (2007).
- 7 -

Nebraska Supreme Court Advance S

296 Nebraska Report

MEDICINE CREEK v. MIDDLE REPUBLICAN NRD

Cite as 296 Neb. 1

manner when it considered Medicine Creek’s request for a 

variance. It held a hearing and received formal proof regarding 

the merits of the request. We conclude that the order denying 

Medicine Creek’s request for a variance was judicial in nature 

and was appealable to the district court.

District Court

Standard of R

[6] The district court initially stated the correct standard 

for its review under § 46-750 and the APA. It correctly recognized that any person aggrieved by an order of a natural 

resources district issued pursuant to the Nebraska Ground 

Water Management and Protection Act12 may appeal the order 

and that the appeal shall be in accordance with the APA.13 And 

it properly recited an APA statute stating that “the review shall 

be conducted by the court without a jury de novo on the record 

of the agency.”14

But the district court veered to the wrong standard when 

it analyzed our decision in Wagoner v. Central Platte Nat. 

Resources Dist.15 The district court read Wagoner as requiring 

it to review MRNRD’s decision for errors appearing on the 

record. And at oral argument, Medicine Creek argued this same 

interpretation. They misread Wagoner.

Wagoner set forth the same two standards that we have long 

applied in APA reviews. An appeal from the district court looks 

for errors appearing on the record.16 That standard applies to 

our review of the district court’s order. But the district court 

reviews a natural resources district’s decision de novo on the 

record of the natural resources district.17

12 Neb. Rev. Stat. §§ 46-701 to 46-756 (Reissue 2010 & Cum. Supp. 2016).

13 See § 46-750.

14 Neb. Rev. Stat. § 84-917(5)(a) (Reissue 2014).

15 Wagoner v. Central Platte Nat. Resources Dist., supra note 4.

16 See id.

17 See id.
- 8 -

Nebraska Supreme Court Advance S

296 Nebraska Report

MEDICINE CREEK v. MIDDLE REPUBLICAN NRD

Cite as 296 Neb. 1

And in this case, the district court clearly applied the wrong 

standard. The court found that MRNRD’s decision “was not 

supported by the evidence, does not conform to the law and 

was therefore arbitrary.” This articulated the standard for errors 

appearing on the record rather than the de novo standard. In 

doing so, the court erroneously limited its review.

[7-9] The district court was required to conduct a de novo 

review on the record of MRNRD. In reviewing final administrative orders under the APA, the district court functions 

not as a trial court but as an intermediate court of appeals.18

In a review de novo on the record, the district court is not 

limited to a review subject to the narrow criteria found in 

§ 84-917(6)(a), but is required to make independent factual 

determinations based upon the record, and the court reaches 

its own independent conclusions with respect to the matters at issue.19 And the APA does not authorize a district 

court reviewing the decision of an administrative agency to 

receive additional evidence, whether by judicial notice or 

other means.20

[10] The use of an incorrect standard of review in this situation is plain error and requires us to remand the cause to the 

district court. Plain error is error uncomplained of at trial, 

plainly evident from the record, and of such a nature that to 

leave it uncorrected would result in damage to the integrity, 

reputation, or fairness of the judicial process.21 A trial court’s 

use of the wrong standard affects our review:

“It is a logical impossibility for this court to review 

the district court judgment for errors appearing on the 

record if the district court incorrectly limited its review 

18 Timmerman v. Neth, 276 Neb. 585, 755 N.W.2d 798 (2008).

19 Schwarting v. Nebraska Liq. Cont. Comm., 271 Neb. 346, 711 N.W.2d 556 

(2006).

20 Betterman v. Department of Motor Vehicles, 273 Neb. 178, 728 N.W.2d 

570 (2007).

21 State ex rel. Unger v. State, 293 Neb. 549, 878 N.W.2d 540 (2016).
- 9 -

Nebraska Supreme Court Advance S

296 Nebraska Report

MEDICINE CREEK v. MIDDLE REPUBLICAN NRD

Cite as 296 Neb. 1

and, thus, failed to make factual determinations, as it 

must under a de novo on the record review. The district court’s and this court’s standards of review are 

interdependent.”22

Many years ago in nearly identical circumstances, we held that 

a district court’s application of the former limited standard 

of review constituted plain error and required that the cause 

be remanded to the district court for a de novo review of the 

record.23 We follow the same course here.

[11] Because we must remand the cause for a new review 

by the district court under the correct standard, we need not 

reach Medicine Creek’s cross-appeal. An appellate court is not 

obligated to engage in an analysis that is not necessary to adjudicate the case and controversy before it.24 Upon remand, the 

district court should address Medicine Creek’s constitutional 

claim to the extent necessary in light of its disposition of the 

APA review.

CONCLUSION

We note plain error in the district court’s application of the 

wrong standard of review. We therefore reverse the court’s 

order and remand the cause to the district court for a de novo 

review of MRNRD’s record.

 Reversed and remande

further proceedin

22 Law Offices of Ronald J. Palagi v. Dolan, 251 Neb. 457, 460, 558 N.W.2d 

303, 305 (1997), quoting Bell Fed. Credit Union v. Christianson, 237 Neb. 

519, 466 N.W.2d 546 (1991).

23 See Law Offices of Ronald J. Palagi v. Dolan, supra note 22.

24 Adair Asset Mgmt. v. Terry’s Legacy, 293 Neb. 32, 875 N.W.2d 421 

(2016).