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Rodney Cappel et al, appellants and cross-appellees, v. 

State of Nebraska Department of Natural Resources, 

an executive department and agency of the State

of Nebraska, and Jeff Fassett, in his official

capacity as director of the Department

of Natural Resources, appellees

and cross-appellants.

___ N.W.2d ___

Filed December 22, 2017. No. S-16-1037.

1. Motions to Dismiss: Appeal and Error. A district court’s grant of a 

motion to dismiss is reviewed de novo.

2. Motions to Dismiss: Pleadings: Appeal and Error. When reviewing 

an order dismissing a complaint, the appellate court accepts as true 

all facts which are well pled and the proper and reasonable inferences 

of law and fact which may be drawn therefrom, but not the plaintiff’s 

conclusion.

3. Actions: Public Officers and Employees. A suit against a state official 

in his or her official capacity is not a suit against the official, but, rather, 

a suit against the official’s office.

4. Actions. A suit against a state agency is a suit against the State.

5. Eminent Domain: Words and Phrases. Inverse condemnation is a 

shorthand description for a landowner suit to recover just compensation 

for a governmental taking of the landowner’s property without the benefit of condemnation proceedings.

6. Actions: Eminent Domain. The initial question in an inverse condemnation case is whether a compensable taking or damage has occurred.

7. Eminent Domain: Property. A takings analysis begins with an examination of the nature of the owner’s property interest.

8. Waters: Property. The right to appropriate surface water is not an ownership of property. Instead, the water is viewed as a public want and the 

appropriation is a right to use the water.

Nebraska Supreme Court Online Library

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

01/26/2018 09:13 AM CST
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9. Irrigation Districts: Waters. Rights of irrigation in Nebraska are limited in their scope by the language of their creation and subject to reasonable regulations subsequently adopted by virtue of the police power 

of the State.

10. Constitutional Law: Actions: Legislature. Neb. Const. art. V, § 22, 

provides that the State may sue and be sued and that the Legislature 

shall provide by law in what manner and in what courts suits shall 

be brought.

11. Constitutional Law: Legislature: Immunity: Waiver. Neb. Const. art. 

V, § 22, permits the State to lay its sovereignty aside and consent to be 

sued on such terms and conditions as the Legislature may prescribe.

12. ____: ____: ____: ____. Neb. Const. art. V, § 22, is not self-executing, 

but instead requires legislative action for waiver of the State’s sovereign immunity.

13. Immunity: Waiver. Waiver of sovereign immunity is found only where 

stated by the most express language of a statute or by such overwhelming implications from the text as will allow no other reasonable construction.

14. Jurisdiction: Appeal and Error. An appellate court has an independent 

duty to decide jurisdictional issues on appeal, even if the parties have 

not raised the issue.

15. Actions: Jurisdiction. Lack of subject matter jurisdiction may be raised 

at any time by any party or by the court sua sponte.

16. Jurisdiction: Appeal and Error. When a trial court lacks the power, 

that is, jurisdiction, to adjudicate the merits of a claim, an appellate 

court also lacks the power to adjudicate the merits of the claim.

17. Taxation: Irrigation Districts: Waters. Neb. Rev. Stat. § 46-141 

(Reissue 2010) allows taxpayers to request a refund for water taxes paid 

by filing a request in the office of the secretary of the district.

18. Taxation: Waters. Neb. Rev. Stat. § 2-3226.05(2) (Cum. Supp. 2016) 

allows taxpayers to request a local refund of occupation taxes after following the applicable procedures.

Appeal from the District Court for Hitchcock County: James

E. Doyle IV, Judge. Affirmed in part, and in part reversed and 

remanded with directions.

Stephen D. Mossman, Ryan K. McIntosh, and Patricia L. 

Vannoy, of Mattson Ricketts Law Firm, for appellants.

Douglas J. Peterson, Attorney General, Justin D. Lavene, 

and Kathleen A. Miller for appellees.
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Heavican, C.J., Miller-Lerman, Cassel, Stacy, Kelch, and 

Funke, JJ.

Kelch, J.

INTRODUCTION

This case involves the administration of the Republican 

River Compact. Appropriators Rodney Cappel; Steven Cappel; 

Cappel Family Farm LLC; C & D Cappel Farms, L.L.C.; and 

Midway Irrigation, Inc. (collectively the Cappels) appeal the 

order of the district court for Hitchcock County that dismissed 

their complaint without leave to amend, upon the motion of the 

State of Nebraska Department of Natural Resources and Jeff 

Fassett, its director (collectively the DNR). The DNR crossappeals. We hold that the Cappels failed to state a claim for 

inverse condemnation, but we conclude that the district court 

erred in failing to find that it lacked subject matter jurisdiction 

over the Cappels’ remaining claims for relief under 42 U.S.C. 

§ 1983 (2012), due process, and restitution, which were barred 

by sovereign immunity. Therefore, we affirm in part, and in 

part reverse and remand with directions to dismiss for lack 

of subject matter jurisdiction those claims barred by sovereign immunity.

BACKGROUND

The Cappels own farmland throughout the Republican River 

Basin. They irrigate their farmland with ground water from 

wells located within the Middle Republican Natural Resources 

District and receive surface water appropriations from the 

Frenchman Valley Irrigation District. As such, they are subject to the integrated management plan and associated surface water controls adopted jointly by the Middle Republican 

Natural Resources District and the DNR.

The administration of water in the Republican River Basin 

is subject to the Republican River Compact (hereinafter the 

Compact), which is an interstate compact between Nebraska, 

Kansas, and Colorado that regulates the consumption of the 

basin’s waters and allocates a certain amount of surface water 
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to each state, depending on the amount of surface water available in the basin each year. The DNR is responsible for ensuring Nebraska’s compliance with the Compact.

In January 2013 through 2015, the DNR’s hydrologic forecast indicated that without essential action, Nebraska’s consumption of water from the Republican River would exceed its 

allocation under the Compact. Accordingly, the DNR declared 

a “Compact Call Year” and issued closing notices to holders 

of surface water permits for each of those years. As a result 

of the closing notices, the Cappels were barred from using the 

surface waters of the Republican River and its tributaries to 

irrigate their crops. However, the Cappels were still obligated 

to pay the costs associated with owning irrigated acres, including taxes and assessments. And DNR did not curtail ground 

water use, which allegedly continued to deplete streamflow in 

the Republican River Basin to the future detriment of surface 

water users. The Cappels themselves had drilled new irrigational wells because they could not irrigate their land with 

surface water.

The Cappels did not challenge the DNR’s 2013 through 2015 

compact call year orders or corresponding closing notices as 

provided in Neb. Rev. Stat. § 61-206 (Reissue 2009). Instead, 

in December 2015, they filed a verified complaint against the 

DNR in the district court for Hitchcock County, followed by 

a verified amended complaint. They alleged a cause of action 

under 42 U.S.C. § 1983, due to deprivation of their property 

rights and violations of their due process rights. The Cappels 

also alleged that they had been subject to an inverse condemnation in that the closing notices and administration of the 

Republican River amounted to an uncompensated physical and 

regulatory taking under Neb. Const. art. I, §§ 3 and 21, and the 

U.S. Const. amends. V and XIV. Further, the Cappels alleged 

that they had suffered damages when they were deprived of 

the benefits of condemnation proceedings, in violation of their 

due process rights, and when DNR allowed excessive ground 

water pumping to the detriment of the their surface water 
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appropriations. The Cappels sought reimbursement for occupation taxes paid to the Middle Republican Natural Resources 

District and water taxes paid to the Frenchman Valley Irrigation 

District, money damages, and restitution.

The DNR filed a motion to dismiss under Neb. Ct. R. 

Pldg. § 6-1112(b)(1) and (6), alleging lack of subject matter 

jurisdiction and failure to state a claim upon which relief can 

be granted. Following a hearing, the district court issued a 

written order dismissing the amended complaint pursuant to 

§ 6-1112(b)(6), without leave to amend. It determined beyond 

a doubt that the Cappels could plead no set of facts that 

would entitle them to relief under their theories of recovery 

and that amendment would be futile. Specifically, the district 

court found that it had subject matter jurisdiction, because 

the Cappels’ claims were not barred by the State’s sovereign 

immunity and therefore overruled the DNR’s motion based on 

§ 6-1112(b)(1). However, it determined that neither the closing 

notices nor the adopted integrated management plans amounted 

to a physical or regulatory taking. Additionally, the district 

court held that the closing notices and adopted plans did not 

violate the Cappels’ due process rights and that the Cappels 

had failed to state a claim under 42 U.S.C. § 1983. Finally, the 

district court ruled that the Cappels were not entitled to restitution for taxes paid in 2013 through 2015.

The Cappels filed this appeal in the Nebraska Court of 

Appeals, and the DNR cross-appealed. We moved the 

case to our docket and denied the DNR’s motion for summary affirmance.

ASSIGNMENTS OF ERROR

The Cappels assign, combined and restated, that the district 

court erred in holding that (1) the issuance of closing notices 

was not an exercise of eminent domain and did not constitute 

a physical or regulatory taking, (2) the DNR’s administration 

of the Republican River did not constitute a regulatory taking, 

(3) the DNR did not deprive the Cappels of their due process 
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rights, (4) the Cappels failed to state a claim for relief under 42 

U.S.C. § 1983, and (5) the Cappels were not entitled to restitution of occupation taxes levied against their property.

The DNR cross-appeals and assigns that the district court 

erred when it held that the Cappels’ claims brought under 42 

U.S.C. § 1983 were not barred by sovereign immunity.

STANDARD OF REVIEW

[1,2] A district court’s grant of a motion to dismiss is 

reviewed de novo.1 When reviewing an order dismissing a 

complaint, the appellate court accepts as true all facts which 

are well pled and the proper and reasonable inferences of law 

and fact which may be drawn therefrom, but not the plaintiff’s conclusion.2

ANALYSIS

The Cappels brought claims (1) under 42 U.S.C. § 1983; 

(2) under article I, § 21, of the Nebraska Constitution and 

the 5th and 14th Amendments to the U.S. Constitution for 

alleged inverse condemnation; (3) under article I, § 3, of the 

Nebraska Constitution and the 5th and 14th Amendments to 

the U.S. Constitution for alleged violations of substantive 

and procedural due process rights; and (4) for restitution. We 

address the parties’ assignments of error as they relate to each 

of these claims.

42 U.S.C. § 1983 Action

The Cappels’ first claim against the DNR was brought under 

42 U.S.C. § 1983. The district court dismissed this claim pursuant to § 6-1112(b)(6) for failure to state a claim upon which 

relief can be granted. The Cappels dispute this finding on 

appeal. On cross-appeal, the DNR contends that the Cappels’ 

§ 1983 claim is barred by sovereign immunity and that the 

district court erred by not dismissing it for lack of subject 

1 Hill v. State, 296 Neb. 10, 894 N.W.2d 208 (2017).

2 Id.
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matter jurisdiction pursuant to § 6-1112(b)(1). We agree with 

the DNR.

Sovereign immunity is jurisdictional in nature, and courts 

have a duty to determine whether they have subject matter 

jurisdiction over a matter.3 Thus, the district court’s jurisdiction to address whether the Cappels stated a claim upon which 

relief can be granted depended on whether the Cappels’ § 1983 

claim is barred by sovereign immunity.

Section 1983 provides a civil remedy for deprivations of 

federally protected rights, statutory or constitutional, caused 

by persons acting under color of state law.4 But it does 

not necessarily provide a remedy for litigants seeking such 

remedy against a state.5 The enactment of § 1983 did not 

abrogate the State’s 11th Amendment immunity,6 which bars 

such suits unless the State has waived its immunity or unless 

Congress has exercised its undoubted power under § 5 of the 

14th Amendment to override that immunity.7 Here, Nebraska 

has not waived its sovereign immunity with regard to § 1983 

suits brought against it.8 Nor has Congress exercised its 

power to override that immunity.9 Therefore, the Cappels’ 

§ 1983 claim against the DNR, a state agency, and thus, 

the State,10 is barred by sovereign immunity, and the district 

court erred in failing to dismiss it for lack of subject matter jurisdiction.

3 See Davis v. State, 297 Neb. 955, 902 N.W.2d 165 (2017). See, also, FDIC 

v. Meyer, 510 U.S. 471, 114 S. Ct. 996, 127 L. Ed. 2d 308 (1994).

4 See Amanda C. v. Case, 275 Neb. 757, 749 N.W.2d 429 (2008).

5 See Will v. Michigan Dept. of State Police, 491 U.S. 58, 109 S. Ct. 2304, 

105 L. Ed. 2d 45 (1989).

6 See id. See, also, Anthony K. v. State, 289 Neb. 523, 855 N.W.2d 802 

(2014).

7 Will v. Michigan Dept. of State Police, supra note 5.

8 See Anthony K. v. State, supra note 6.

9 Will v. Michigan Dept. of State Police, supra note 5.

10 See Davis v. State, supra note 3.
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[3,4] This finding applies equally to the Cappels’ § 1983 

claim against Fassett, the director. A suit against a state official 

in his or her official capacity is not a suit against the official, 

but, rather, a suit against the official’s office.11 Accordingly, the 

Cappels’ suit against Fassett is a suit against a state agency. 

Because a suit against a state agency is a suit against the 

State,12 the Cappels’ claim against Fassett is a claim against the 

State, and it too is barred by sovereign immunity. The district 

court, therefore, erred in failing to dismiss the § 1983 claim 

against Fassett for lack of subject matter jurisdiction.

Inverse Condemnation

[5-7] The Cappels’ second claim is for inverse condemnation. Inverse condemnation is a shorthand description for a 

landowner suit to recover just compensation for a governmental taking of the landowner’s property without the benefit of 

condemnation proceedings.13 In this regard, the Cappels seek 

damages under the Fifth Amendment to the U.S. Constitution, 

which states: “[N]or shall private property be taken for public 

use, without just compensation,” and under Neb. Const. art. I, 

§ 21, which states: “The property of no person shall be taken 

or damaged for public use without just compensation therefor.” 

The initial question in an inverse condemnation case is whether 

a compensable taking or damage has occurred.14 And a takings analysis begins with an examination of the nature of the 

owner’s property interest.15

In their complaint, the Cappels assert two takings: a physical taking of property rights to appropriate the water at issue 

11 Will v. Michigan Dept. of State Police, supra note 5.

12 See Davis v. State, supra note 3.

13 Village of Memphis v. Frahm, 287 Neb. 427, 843 N.W.2d 608 (2014).

14 See Henderson v. City of Columbus, 285 Neb. 482, 827 N.W.2d 486 

(2013).

15 See Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 112 S. Ct. 

2886, 120 L. Ed. 2d 798 (1992).
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and a regulatory taking of the economically viable use of 

land. The district court analyzed both allegations and found 

neither sufficient to constitute a “taking.” Specifically, the 

district court found that the closing notices did not constitute a “taking” and that they were issued pursuant to the 

DNR’s police power and not pursuant to its right of eminent 

domain. The Cappels assign these findings as error. But as 

set forth below, we conclude that the district court properly 

determined that the Cappels did not sufficiently allege that 

a compensable vested property right was taken or damaged. 

Thus, without any physical or regulatory taking, we need not 

consider whether the DNR was acting pursuant to its right of 

eminent domain.16

The issue of whether the Cappels sufficiently alleged a compensable vested property interest is controlled by our recent 

opinion in Hill v. State.

17 In Hill, water appropriators filed an 

inverse condemnation action against the State and the DNR 

after the DNR had issued orders and sent closing notices to 

water appropriators under circumstances similar to those presented here. We affirmed the district court’s dismissal of the 

inverse condemnation claim, explaining that the appropriators 

failed to establish that a compensable vested property right was 

taken. We concluded that the appropriators’ rights to use the 

water were subject to the Compact (the equivalent of federal 

law) and thus found that those rights were not a compensable 

property interest when limited for the purpose of ensuring 

Nebraska’s compliance with the Compact. We further found 

that the DNR does not have a duty to regulate ground water; 

thus, a failure by the DNR to regulate ground water pumping 

that affects the Republican River Basin does not give rise to a 

cause of action for inverse condemnation.

16 See Doty v. West Gate Bank, 292 Neb. 787, 874 N.W.2d 839 (2016) 

(appellate court is not obligated to engage in analysis that is not necessary 

to adjudicate case and controversy before it).

17 Hill v. State, supra note 1.
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Here, as in Hill, the DNR conducted an annual forecast and 

determined that without essential action, Nebraska’s consumption of water from the Republican River would exceed its 

allocation under the Compact. Accordingly, the DNR declared 

a “Compact Call Year” and issued closing notices to holders of 

surface water permits for each of those years. Because these 

actions were taken for the purpose of ensuring Nebraska’s 

compliance with the Compact, under Hill, the water rights 

at issue were not a compensable property interest and the 

Cappels’ physical taking argument must fail.

Nor do we find merit in the Cappels’ claim that the actions 

of the DNR constitute a regulatory taking, as there has been 

no deprivation of a compensable property right under Hill. In 

Scofield v. State,

18 we explained the types of regulatory takings 

recognized by the U.S. Supreme Court:

The U.S. Supreme Court in Lingle v. Chevron U.S.A. Inc.[, 

544 U.S. 528, 125 S. Ct. 2074, 161 L. Ed. 2d 876 (2005),] 

clarified the law surrounding regulatory takings claims 

and . . . identified two types of regulatory actions that 

constitute categorical or per se takings: “First, where government requires an owner to suffer a permanent physical invasion of her property—however minor—it must 

provide just compensation.” Compensation is required for 

physical takings “however minimal the economic costs 

[they] entail[],” because they “eviscerate[] the owner’s 

right to exclude others from entering and using her property—perhaps the most fundamental of all property interests.” The “second categorical rule applies to regulations 

that completely deprive an owner of ‘all economically 

beneficial us[e]’ of her property.” The complete elimination of a property’s value is the determinative factor in 

this category because the total deprivation of beneficial 

use is, from the landowner’s point of view, the equivalent 

of a physical appropriation.

18 Scofield v. State, 276 Neb. 215, 231-32, 753 N.W.2d 345, 358-59 (2008).
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The Court in Lingle stated that outside these two relatively narrow categories, and the special context of landuse exactions, regulatory takings challenges are governed 

by the standards set forth in Penn Central Transp. Co. 

v. New York City[, 438 U.S. 104, 98 S. Ct. 2646, 57 L. 

Ed. 2d 631 (1978)]. Thus, under a Penn Central [Transp. 

Co.] inquiry, relief is possible from a regulatory taking 

which does not deprive the owner of all economic use of 

the property.

To determine whether a party may obtain relief from a regulatory taking, Penn Central Transp. Co. v. New York City19 sets 

forth several factors designed to allow careful examination and 

weighing of all relevant circumstances.

The Cappels claim to have been deprived of the economic 

benefit of their property by a reduction in the production of 

crops, which means they have not alleged facts that show they 

have been deprived of all economically beneficial use of their 

property due to the DNR’s actions. But the Cappels argue that 

they have pled a reduction in economic viability which would 

constitute a regulatory taking subject to a determination pursuant to Penn Central Transp. Co.

To support their position, the Cappels rely on Scofield and 

Penn Central Transp. Co., where the Penn Central Transp. Co.

factors were applied on appeal. These cases share a common 

theme: They both involved a regulation that directly affected 

private property, but neither involved an overriding federal law, 

such as the Compact. For example, in Penn Central Transp. 

Co., the regulation limited how the owner could use its private 

property by prohibiting construction of an office building on 

a site designated as a landmark. In Scofield, the regulation 

changed private property previously used for recreation into a 

wildlife refuge.

19 See Penn Central Transp. Co. v. New York City, 438 U.S. 104, 98 S. Ct. 

2646, 57 L. Ed. 2d 631 (1978).
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[8,9] By contrast, the regulation in the instant case did not 

directly affect private property, but, rather, the use of a public 

resource. Water in Nebraska is a public resource dedicated 

for certain uses. And irrigation is one such use.20 The right 

to appropriate surface water is not an ownership of property.21 Instead, the water is viewed as a public want and the 

appropriation is a right to use the water.22 As we noted in 

Hill, “‘[r]ights of irrigation in the state . . . are . . . limited in 

their scope by the language of their creation’”23 and subject to 

“‘reasonable regulations subsequently adopted by virtue of the 

police power of the state.’”24 Further, in Keating v. Nebraska 

Public Power Dist.,

25 the Eighth Circuit, recognizing water as 

a public resource, held that “when the DNR determines that 

the watershed no longer has the capacity to supply all permit holders, appellants no longer have a legitimate claim of 

entitlement to use the surface water and thus do not suffer a 

deprivation of a property right.” Here, the regulation by the 

DNR restricts the Cappels’ use of a public resource, i.e., water, 

in order to comply with the Compact, which has the status of 

federal law and is subject to the enforcement authority of the 

U.S. Supreme Court.26

We observe that the Cappels could still irrigate, albeit not 

from the river, and were still irrigating by use of ground water 

20 See Neb. Const. art. XV, §§ 4 and 5.

21 Spear T Ranch v. Knaub, 269 Neb. 177, 691 N.W.2d 116 (2005).

22 Id.

23 Hill v. State, supra note 1, 296 Neb. at 19, 894 N.W.2d at 215, quoting In 

re Complaint of Central Neb. Pub. Power, 270 Neb. 108, 699 N.W.2d 372 

(2005).

24 Id., quoting State v. Birdwood Irrigation District, 154 Neb. 52, 46 N.W.2d 

884 (1951).

25 Keating v. Nebraska Public Power Dist., 660 F.3d 1014, 1018 (8th Cir. 

2011).

26 See Kansas v. Nebraska, ___ U.S. ___, 135 S. Ct. 1042, 191 L. Ed. 2d 1 

(2015).
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when they filed suit. But this court is cognizant that it was 

beneficial for the Cappels to use surface water from the river 

and that the DNR restriction impacts their property, and we 

acknowledge the importance of water rights for the Cappels 

and other Nebraska farmers. Nonetheless, under the foregoing authority, we conclude that the Cappels have not shown 

that a compensable private property right, as contemplated in 

Hill, was taken or damaged by the order of the DNR and that 

therefore, they have not pled a physical or regulatory taking of 

private property.

Accordingly, the Cappels’ assignments of error relating to 

their inverse condemnation claim are without merit.

Due Process

For the Cappels’ third and fourth claims, they seek damages for alleged violations of procedural and substantive 

due process under the Due Process Clauses of the 5th and 

14th Amendments to the U.S. Constitution and Neb. Const. 

art. I, § 3.

[10-13] The Cappels’ claim for a money judgment against 

the State under Neb. Const. art. I, § 3, fails by operation 

of Nebraska’s sovereign immunity. Under the Nebraska 

Constitution, “[t]he state may sue and be sued, and the 

Legislature shall provide by law in what manner and in what 

courts suits shall be brought.”27 This provision permits the 

State to lay its sovereignty aside and consent to be sued on 

such terms and conditions as the Legislature may prescribe.28 It 

is not self-executing, however, but instead requires legislative 

action for waiver of the State’s sovereign immunity.29 Waiver 

of sovereign immunity will be found only where stated by the 

most express language of a statute or by such overwhelming 

27 Neb. Const. art. V, § 22.

28 Livengood v. Nebraska State Patrol Ret. Sys., 273 Neb. 247, 729 N.W.2d 

55 (2007).

29 Id.
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implications from the text as will leave no room for any other 

reasonable construction.30 The Cappels cite no authority indicating that Nebraska has waived its sovereign immunity. Nor 

were we able to find any. As a result, the Cappels cannot 

pursue a money judgment against the State based upon Neb. 

Const. art. I, § 3.

Regarding the Cappels’ federal constitutional claims, we 

find that a due process violation does not create an independent cause of action for money damages. Although the Due 

Process Clauses in the 5th and 14th Amendments to the U.S. 

Constitution provide that no person shall be deprived of property without due process of law, no language in those clauses 

requires the payment of money damages if they are violated. 

Furthermore, several federal circuit courts have held that where 

Congress has provided 42 U.S.C. § 1983 for plaintiffs to 

obtain relief for the violation of constitutional rights, such is 

the exclusive remedy, and the plaintiff can no longer bring a 

direct cause of action under the U.S. Constitution.31 We find 

these cases persuasive. Therefore, 42 U.S.C. § 1983 provided 

the Cappels with the exclusive remedy to obtain damages for 

alleged violations of procedural and substantive due process 

under the U.S. Constitution. But, as we have explained above, 

the Cappels’ § 1983 claim is barred by sovereign immunity.

[14-16] Again, sovereign immunity is jurisdictional in 

nature.32 While neither party has raised the issue of sovereign 

30 See id.

31 See, Azul-Pacifico, Inc. v. City of Los Angeles, 973 F.2d 704 (9th Cir. 

1992); Thomas v. Shipka, 818 F.2d 496 (6th Cir. 1987), vacated in part on 

other grounds 872 F.2d 772 (6th Cir. 1989); Hunt v. Robeson County Dept. 

of Social Services, 816 F.2d 150 (4th Cir. 1987); Ward v. Caulk, 650 F.2d 

1144 (9th Cir. 1981); Turpin v. Mailet, 591 F.2d 426 (2d Cir. 1979); Owen 

v. City of Independence, MO., 589 F.2d 335 (8th Cir. 1978), reversed on 

other grounds 445 U.S. 622, 100 S. Ct. 1398, 63 L. Ed. 2d 673 (1980), 

and rehearing denied 446 U.S. 993, 100 S. Ct. 2979, 64 L. Ed. 2d 850; 

Cale v. Covington, 586 F.2d 311 (4th Cir. 1978).

32 See Davis v. State, supra note 3. See, also, FDIC v. Meyer, supra note 3.
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immunity on appeal in the context of the Cappels’ due process 

claims, this court has repeatedly held that an appellate court 

has an independent duty to decide jurisdictional issues on 

appeal, even if the parties have not raised the issue.33 Lack of 

subject matter jurisdiction may be raised at any time by any 

party or by the court sua sponte.34 When a trial court lacks the 

power, that is, jurisdiction, to adjudicate the merits of a claim, 

an appellate court also lacks the power to adjudicate the merits 

of the claim.35 Therefore, upon our own motion, we determine 

that the district court erred in failing to dismiss the Cappels’ 

due process claims for lack of subject matter jurisdiction.

Restitution

The Cappels’ fifth and last claim is for restitution of occupation and water taxes levied against their property. On appeal, 

the Cappels assign that the district court erred in dismissing 

that claim.

[17,18] In essence, the Cappels’ restitution claim is a 

claim for a money judgment against the State, which would 

be subject to Nebraska’s sovereign immunity.36 Here, the 

Cappels cite no authority showing that the Legislature has 

waived the DNR’s sovereign immunity to allow it to be sued 

for reimbursement of taxes levied and collected by other 

entities. Instead, as the DNR points out, the Legislature has 

enacted Neb. Rev. Stat. § 46-141 (Reissue 2010), which 

allows taxpayers to request a refund for water taxes paid by 

filing a request in the office of the secretary of the irrigation 

district. And the Legislature has also enacted Neb. Rev. Stat. 

§ 2-3226.05(2) (Cum. Supp. 2016), which allows taxpayers to 

request a local refund of occupation taxes after following the 

applicable procedures.

33 Davis v. State, supra note 3.

34 Id.

35 Id.

36 See Livengood v. Nebraska State Patrol Ret. Sys., supra note 28.
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Nebraska Supreme Court Advance Sheets

298 Nebraska Reports

CAPPEL v. STATE

Cite as 298 Neb. 445

Thus, the Legislature has waived the State’s immunity to the 

limited extent that it allows taxpayers to petition for exemption or a refund under the procedures set forth in §§ 46-141 

and 2-3226.05(2). The Cappels have failed to allege that they 

have followed either of those procedures. Thus, the Cappels’ 

claim for a money judgment against the State is barred by 

sovereign immunity, and we determine, sua sponte, that the 

district court erred in failing to dismiss the restitution claim 

for lack of subject matter jurisdiction.37

CONCLUSION

For the foregoing reasons, we find that the Cappels’ § 1983 

claim, due process claims, and restitution claim are barred 

by sovereign immunity and that the district court erred by 

not dismissing them for lack of subject matter jurisdiction. 

Regarding the Cappels’ remaining inverse condemnation claim, 

we conclude that the district court did not err in dismissing it 

for failure to state a claim upon which relief can be granted. 

Accordingly, we affirm in part, and in part reverse and remand 

to the district court with directions to dismiss for lack of subject matter jurisdiction the Cappels’ § 1983 claim, due process 

claims, and restitution claim.

 Affirmed in part, and in part reversed

and remanded with directions.

Wright, J., not participating.

37 See Davis v. State, supra note 3.