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Butler County Landfill, Inc., appellee, 

v. Butler County Board of

Supervisors, appellant.

__ N.W.2d ___

Filed March 23, 2018. No. S-17-276.

1. Judgments: 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, which requires the appellate court to reach a 

conclusion independent from the lower court’s decision.

2. Jurisdiction: Appeal and Error. Before reaching the legal issues 

presented for review, it is the duty of an appellate court to determine 

whether it has jurisdiction over the matter before it.

3. ____: ____. Where a lower court lacks subject matter jurisdiction to 

adjudicate the merits of a claim, issue, or question, an appellate court 

also lacks the power to determine the merits of the claim, issue, or question presented to the lower court.

4. Political Subdivisions: Final Orders: Appeal and Error. A district 

court order setting aside, annulling, vacating, or reversing a siting 

approval decision in a review pursuant to Neb. Rev. Stat. § 13-1712 

(Reissue 2012) is a final order.

5. Jurisdiction: Appeal and Error. An appellate court and the tribunal appealed from do not have jurisdiction over the same case at the 

same time.

6. Political Subdivisions: Jurisdiction: Time: Appeal and Error. A 

failure to comply with the requirement under Neb. Rev. Stat. § 13-1712 

(Reissue 2012) to petition for a hearing before the district court within 

60 days after notice of the siting body’s decision deprives the district 

court of jurisdiction to review a siting approval decision.

Appeal from the District Court for Butler County: Mary C. 

Gilbride, Judge. Appeal dismissed.

Nebraska Supreme Court Online Library

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

04/26/2018 09:11 AM CDT
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Kristopher J. Covi and Steven P. Case, of McGrath, North, 

Mullin & Kratz, P.C., L.L.O., and Julie L. Reiter, Butler 

County Attorney, for appellant.

Robert H. Epstein and Ryan C. Hardy, of Spencer Fane, 

L.L.P., and Stephen D. Mossman, of Mattson Ricketts Law 

Firm, for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Kelch, and

Funke, JJ.

Miller-Lerman, J.

NATURE OF CASE

The Butler County Board of Supervisors (the Board) 

appeals from the order of the district court for Butler County 

which reversed the Board’s decision to deny an application by 

Butler County Landfill, Inc. (BCL), to expand its solid waste 

disposal landfill area located in Butler County, Nebraska. We 

conclude that the district court lacked jurisdiction to enter 

the February 7, 2017, order from which this appeal is taken 

and that, consequently, we lack jurisdiction over this appeal. 

We therefore vacate the district court’s order and dismiss 

this appeal.

STATEMENT OF FACTS

BCL, a wholly owned subsidiary of Waste Connections 

of Nebraska, Inc., operates a solid waste landfill located in 

Butler County near David City, Nebraska. The landfill has 

been in existence since 1986, and an expansion of the landfill 

was approved in 1992 which allowed it to accept solid waste 

from other counties. The record indicates that by 2015, BCL 

was accepting solid waste from 15 to 20 counties in eastern 

Nebraska and some additional counties outside Nebraska.

BCL determined that it needed to expand the solid waste 

landfill area in Butler County. Neb. Rev. Stat. §§ 13-1701 

to 13-1714 (Reissue 2012) are the statutes that govern siting approval procedures for solid waste disposal areas and 
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solid waste processing facilities. These statutes indicate that if 

denied, an applicant for siting approval can reapply after the 

passage of 2 years. See § 13-1711.

As required by § 13-1702, BCL filed a request for siting 

approval with the Board on July 6, 2015. In its request, BCL 

asserted, inter alia, that as the scope of the area it served has 

expanded, the amount of solid waste it accepted had increased. 

BCL asserted that in the mid-1990’s, it had accepted approximately 100,000 tons of solid waste per year; that by 2015, it 

accepted approximately 550,000 tons of solid waste per year; 

and that it projected that by 2020, it would receive 800,000 

tons of solid waste per year. The size of the expanded landfill 

approved in 1992 was 144.79 acres. In the July 6 request, BCL 

sought approval to further expand into a 160-acre parcel of 

land it had purchased that was contiguous to the south side of 

its existing landfill.

As required by § 13-1706, the Board, on October 28, 2015, 

held a public hearing on BCL’s request. Part of the purpose of 

a public hearing under § 13-1706 is to “develop a record sufficient to form the basis of an appeal of the decision.” At the 

public hearing, the Board heard testimony by representatives 

of BCL and by members of the public, including those who 

favored and those who opposed BCL’s request.

Following the public hearing and a written comment period 

which served to supplement the record of the public hearing, 

the Board met on December 14, 2015, to deliberate BCL’s 

request. At that meeting, the Board considered, inter alia, the 

statutory criteria for siting approval set forth in § 13-1703, 

which provides that “[s]iting approval shall be granted only 

if the proposed area or facility meets all of” six specified 

criteria. The record of the deliberations shows that the Board 

considered in turn whether each criterion had been shown. 

At the end of the Board’s discussion of each criterion, a poll 

was taken of the seven supervisors as to whether each supervisor thought that specific criterion had been met. Based on 

the polling of supervisors during the meeting, all supervisors 
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agreed that three of the six criteria had been met, and all 

supervisors agreed that one criterion had not been met. With 

respect to the two remaining criteria, the votes were split, 

with a majority voting in each case that the criteria had not 

been met.

At the end of the discussion, based on the polling as to 

each criterion, a supervisor moved to deny the application, 

another supervisor seconded the motion, and the Board unanimously voted to deny the application. The supervisors thereafter signed a document titled “Decision Regarding Siting 

Approval,” which set forth the procedures that had been followed with regard to BCL’s application and which concluded 

that “[b]ased upon the finding that [BCL] has failed to meet 

all criteria required to be met under [§] 13-1703 it was moved 

. . . and seconded . . . that the [BCL application] be denied. 

Upon roll call vote, the motion was unanimously passed.” This 

December 14, 2015, written decision did not specify which 

criteria were not met and did not further set forth reasons for 

the decision.

On February 10, 2016, BCL filed a petition in the district 

court for Butler County seeking judicial review, pursuant to 

§ 13-1712, of the Board’s denial of its siting application. At 

a hearing on the petition held on March 21, the district court 

received into evidence a transcript of the public hearing held 

October 28, 2015; the exhibits received at the public hearing; a 

transcript of the Board’s December 14, 2015, meeting; and the 

Board’s decision dated December 14, 2015.

After an additional hearing, the district court on June 17, 

2016, filed a journal entry in which it referred to § 13-1712, 

which requires that “the district court shall consider the written decision and reasons for the decision of the . . . county 

board and the transcribed record of the hearing held pursuant to [§] 13-1706.” The court concluded that in addition to 

a written decision and a transcript of the public hearing, the 

statute required the Board to “make a written statement of the 

reasons for its decision.” The court stated that in this case, the 
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Board “simply found that [BCL] had failed to demonstrate the 

statutory requirements but did not specify any of its reasons 

for reaching that conclusion.” Although the district court’s 

jurisdiction was conferred under § 13-1712, rather than under 

the Administrative Procedure Act, the court cited cases under 

the Administrative Procedure Act regarding a failure “to make 

findings of fact and conclusions of law.” The court concluded 

its June 17 journal entry with the following paragraph, which 

was titled “Remand”:

The failure of the [B]oard to make specific fact findings as required by statute, necessitates that the order 

entered December 14, 2015 be set aside and the matter 

remanded to the . . . Board . . . with directions to make 

findings of fact supporting the order which they shall 

issue within thirty days of this remand.

For completeness, we note that because we lack jurisdiction 

over this appeal, we make no comment regarding the correctness of the district court’s reading of the requirements of 

§ 13-1712.

On July 14, 2016, the Board filed in the district court a 

“Notice of Compliance” stating that it had complied with 

the court’s order. The Board attached to the filing a certified copy of a resolution passed by the Board on July 13 

in which it stated that it had denied BCL’s application by 

a unanimous vote and that it was adopting findings of fact 

“in further support of its denial” of BCL’s application. In a 

document attached to the resolution, the Board stated that 

the supervisors unanimously determined that BCL satisfied 

three criteria, that the supervisors unanimously determined 

that BCL failed to satisfy one criterion, and that a majority of 

the supervisors determined that BCL failed to satisfy the two 

remaining criteria. The Board set forth its reasons for each of 

these determinations.

After the Board adopted the resolution on July 13, 2016, 

BCL did not file a new petition for judicial review pursuant 

to § 13-1712. Nevertheless, after the Board filed its notice of 
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compliance, the district court held a hearing on October 25 and 

received briefing. At the conclusion of the hearing, the court 

stated that it was taking the matter under advisement.

On February 7, 2017, the district court filed an order in 

which it reversed the Board’s decision to deny the application 

and remanded the matter to the Board with directions for the 

Board to approve BCL’s application. In the February 7 order, 

the court specifically addressed each of the three criteria that 

the Board or a majority of the Board had determined BCL 

had not met. The court cited evidence from the record and 

determined as to each criterion that the Board’s finding that 

the criterion was not met was in error. The court concluded 

that the Board’s denial of BCL’s application “was not based 

on competent evidence in the record, was contrary to law and 

was arbitrary and capricious.” The court further concluded that 

based on the application, the record, and the relevant evidence, 

the Board should have approved BCL’s application. The court 

therefore reversed the Board’s order denying BCL’s application and remanded the matter to the Board with directions to 

approve the application.

The Board appeals the February 7, 2017, order.

ASSIGNMENT OF ERROR

The Board claims that the district court erred when it determined that the Board acted arbitrarily and capriciously when it 

denied BCL’s application.

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, which requires the appellate court to reach a conclusion independent from the lower court’s decision. Campbell v. 

Hansen, 298 Neb. 669, 905 N.W.2d 519 (2018).

ANALYSIS

[2,3] Before reaching the legal issues presented for review, 

it is the duty of an appellate court to determine whether it has 
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jurisdiction over the matter before it. Rafert v. Meyer, 298 Neb. 

461, 905 N.W.2d 30 (2017). Where a lower court lacks subject 

matter jurisdiction to adjudicate the merits of a claim, issue, or 

question, an appellate court also lacks the power to determine 

the merits of the claim, issue, or question presented to the 

lower court. Kozal v. Nebraska Liquor Control Comm., 297 

Neb. 938, 902 N.W.2d 147 (2017).

Prior to our moving this case to our docket, the Nebraska 

Court of Appeals conducted a jurisdictional review. Following 

that review, the Court of Appeals issued an order to show 

cause in which it stated that a question existed “as to how BCL 

came back before the District Court following the court’s June 

17[, 2016,] order vacating the December 14, 2015 decision and 

remand back to the Board.” The Court of Appeals stated that 

there was no indication in the record on appeal that BCL had 

filed a new petition in the district court after the Board issued 

its findings of fact and restated its decision to deny BCL’s 

application. The Court of Appeals further stated that there was 

a question whether a second petition was necessary given the 

nature of the district court’s remand. In its response to the 

order to show cause, BCL conceded that no second petition 

had been filed, but BCL asserted that a second petition was 

not necessary. Based on BCL’s response, the Court of Appeals 

directed the parties “to include and address in their briefs the 

issue of whether a second petition was required following 

the District Court’s order requiring the Board to make findings of facts and the Board’s subsequent compliance with the 

Court’s order.”

The parties briefed the jurisdictional issue, and we granted 

BCL’s petition to bypass the Court of Appeals. We now consider the jurisdictional issue. As explained below, we conclude 

that we do not have jurisdiction over this appeal, because the 

district court did not have jurisdiction when it entered the 

February 7, 2017, order, from which the Board appeals. The 

district court’s June 17, 2016, order returned jurisdiction to 

the Board, and the district court was divested of jurisdiction. 
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After the Board acted on the district court’s order, BCL took 

no action to again vest jurisdiction in the district court, and 

as a consequence, the district court’s rulings after its June 17 

remand were issued without authority.

As noted above, BCL filed a timely petition under § 13-1712 

for the district court to review the Board’s December 14, 2015, 

order denying BCL’s application. The district court took action 

on that petition on June 17, 2016, when it determined that 

the Board had failed to make specific written findings of fact 

which the court believed were required by statute. The court 

thereby effectively concluded that the Board’s order did not 

conform to the law. The court therefore ordered the Board’s 

December 14, 2015, order to be “set aside and the matter 

remanded to the . . . Board . . . with directions to make findings 

of fact supporting the order which they shall issue within thirty 

days of this remand.” In the order, the district court “set aside” 

the Board’s order and remanded the matter to the Board for 

further action, but the district court did not explicitly purport 

to reserve jurisdiction in itself.

After the Board complied with the order and filed its notice 

of compliance in the district court, the parties and the district 

court proceeded upon the apparent assumption that the district 

court had acquired jurisdiction at the time BCL had filed its 

petition for review of the December 14, 2015, order and that 

the district court continued to exercise jurisdiction. Given 

certain inferences in the language of the June 17, 2016, order, 

this assumption might have seemed reasonable; on remand, the 

Board acted within the timeframe set forth by the court in the 

June 17 order, and the court promptly continued with proceedings in the case after the Board gave notice of its compliance. 

However, the assumption does not comport with the facts or 

applicable law, and we must therefore determine in this case 

which body—the district court or the Board—had jurisdiction 

at what time.

[4] We note first that the court in the June 17, 2016, 

order stated that the Board’s failure to make findings of fact 
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“necessitate[d] that the order entered December 14, 2015 be 

set aside and the matter remanded” to the Board. Black’s Law 

Dictionary 1580 (10th ed. 2014) defines “set aside” as “to 

annul or vacate (a judgment, order, etc.).” It has been stated 

that in an appeal to the district court by petition in error 

pursuant to Neb. Rev. Stat. §§ 25-1901 to 25-1908 (Reissue 

2016), a judgment of the district court reversing an inferior 

tribunal is a final order. See County of Douglas v. Burts, 2 

Neb. App. 90, 507 N.W.2d 310 (1993) (citing Tootle, Hosea 

& Co. v. Jones, 19 Neb. 588, 27 N.W. 635 (1886)). We similarly conclude that a district court order setting aside, annulling, vacating, or reversing a siting approval decision in a 

review pursuant to § 13-1712 is a final order. In Tri-County 

Landfill v. Board of Cty. Comrs., 247 Neb. 350, 526 N.W.2d 

668 (1995), we held that in conformity with Neb. Rev. Stat. 

§ 25-1911 (Reissue 2016), in an appeal of a siting approval 

case under §§ 13-1701 to 13-1714, a judgment rendered 

or final order made by the district court may be reversed, 

vacated, or modified for errors appearing on the record. 

Applying the foregoing principles of law, the district court’s 

June 17, 2016, order, which vacated the Board’s decision, 

was a judgment under § 13-1712, and when it was not timely 

appealed, it became final.

In further support of our jurisdictional analysis, we note 

that the district court remanded the matter to the Board, and 

when the Board entered an order in compliance with the order 

of remand, the district court lost its power to further modify 

its order and, by extension, lost its power to act on this case. 

We have said:

The jurisdiction of the supreme court over its own 

judgments and orders is, in general, the same as that 

of any other court of record, and hence it may alter or 

modify such judgments or orders and correct its mandates 

accordingly at any time during the term at which they 

are rendered, unless its mandate has been filed and acted 

upon in the lower court prior to the end of the term.
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Horton v. State, 63 Neb. 34, 38, 88 N.W. 146, 147 (1901). 

Likewise, when the district court remands a matter and the 

body to which the matter was remanded acts on that order, the 

district court’s power to modify its order ceases. See County of 

Douglas v. Burts, supra.

[5] Finally, we observe that it would be inconsistent with 

our jurisprudence for the Board and the district court to have 

jurisdiction over the matter at the same time. As a general 

proposition, an appellate court and the tribunal appealed from 

do not have jurisdiction over the same case at the same time. 

Currie v. Chief School Bus Serv., 250 Neb. 872, 553 N.W.2d 

469 (1996). See State Bank of Beaver Crossing v. Mackley, 

118 Neb. 734, 735, 226 N.W. 318, 318 (1929) (“[i]t is not 

conceivable that both the supreme court and the district court 

could at the same time have jurisdiction of this cause”). See, 

also, County of Douglas v. Burts, supra. We find this concept 

to be applicable as between the tribunal that tries a matter 

and the court that reviews or hears appeals from that tribunal’s decisions. In this case, the Board acted like a tribunal 

with regard to the siting approval decision under §§ 13-1701 

to 13-1714.

[6] Returning to the facts in this case, the Board filed its 

decision to deny BCL’s application on December 14, 2015, 

and BCL vested jurisdiction in the district court when it filed 

its petition for review pursuant to § 13-1712. The district 

court lost jurisdiction when it set aside the Board’s order 

and remanded the matter to the Board on June 17, 2016. 

The Board necessarily had jurisdiction on July 13, when it 

adopted the resolution of that date. The record shows, and 

BCL concedes, that after the Board adopted the resolution 

on July 13, BCL did not within 60 days after notice of the 

decision file a new petition for a hearing before the district 

court, as required under § 13-1712. We hold that a failure to 

comply with the requirement under § 13-1712 to petition for 

a hearing before the district court within 60 days after notice 

of the siting body’s decision deprives the district court of 
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jurisdiction to review a siting approval decision. See, similarly, Schaffer v. Cass County, 290 Neb. 892, 863 N.W.2d 143 

(2015) (determining that failure to file appeal within 30 days 

of judgment or final order as required for review on petition in 

error under § 25-1901 deprives district court of jurisdiction to 

hear appeal). We note that § 13-1712 specifically requires “the 

applicant” to file a petition; hence, the Board’s act of filing its 

notice of compliance in the district court on July 14 could not 

satisfy the requirement under § 13-1712 that “the applicant 

. . . petition for a hearing.” We reject any suggestion that the 

Board’s filing of its notice of compliance in the district court 

caused the district court to reacquire jurisdiction after it had 

remanded the matter to the Board.

As noted above, in Tri-County Landfill v. Board of Cty. 

Comrs., 247 Neb. 350, 526 N.W.2d 668 (1995), we held that 

pursuant to § 25-1911, in an appeal siting approval case under 

§§ 13-1701 to 13-1714, a judgment rendered or final order 

made by the district court may be reversed, vacated, or modified for errors appearing on the record. In an appeal authorized 

by § 25-1911, a party must follow the procedural requirements 

of Neb. Rev. Stat. § 25-1912 (Reissue 2016), including the 

requirement to file a notice of appeal within 30 days of the 

district court’s decision, in order to vest jurisdiction in the 

appellate courts. The notice of appeal in this case was filed in 

the district court on March 3, 2017. Such notice was obviously 

not timely to give this court jurisdiction to review the June 17, 

2016, order. Instead, the notice of appeal purports to appeal 

from the district court’s February 7, 2017, order. However, 

because the district court did not have jurisdiction to enter 

that order, we consequently do not have jurisdiction to hear 

this appeal.

When an appellate court is without jurisdiction to act, the 

appeal must be dismissed. Kozal v. Nebraska Liquor Control 

Comm., 297 Neb. 938, 902 N.W.2d 147 (2017). However, an 

appellate court has the power to determine whether it lacks 

jurisdiction over an appeal because the lower court lacked 
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jurisdiction to enter the order; to vacate a void order; and, if 

necessary, to remand the cause with appropriate directions. Id. 

Having determined that we lack jurisdiction over this appeal, 

we vacate the district court’s February 7, 2017, order, which 

the district court was without jurisdiction to enter, and we 

remand the cause to the district court with directions to dismiss 

for lack of jurisdiction.

CONCLUSION

On June 17, 2016, the district court “set aside” the Board’s 

December 14, 2015, decision denying BCL’s siting application 

and remanded the matter to the Board to make findings of 

fact. As a result of this order, jurisdiction was returned to the 

Board. After the Board acted on the remand, no petition was 

filed that would have again vested the district court with jurisdiction. We therefore conclude that the district court lacked 

jurisdiction to enter the February 7, 2017, order appealed in 

this case, and consequently, we lack jurisdiction over this 

appeal. As a result, we vacate the district court’s February 7, 

2017, order and dismiss this appeal.

Appeal dismissed.

Kelch, J., not participating in the decision.

Wright, J., not participating.