State Ex Rel. Reed v. STATE GAME AND PARKS COM'N

773 N.W.2d 349, 278 Neb. 564, 2009 Neb. LEXIS 148
CourtNebraska Supreme Court
DecidedSeptember 18, 2009
DocketS-08-1261
StatusPublished
Cited by57 cases

This text of 773 N.W.2d 349 (State Ex Rel. Reed v. STATE GAME AND PARKS COM'N) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State Ex Rel. Reed v. STATE GAME AND PARKS COM'N, 773 N.W.2d 349, 278 Neb. 564, 2009 Neb. LEXIS 148 (Neb. 2009).

Opinion

773 N.W.2d 349 (2009)
278 Neb. 564

STATE of Nebraska ex rel. Patrick REED, appellant,
v.
STATE of Nebraska GAME AND PARKS COMMISSION et al., appellees.

No. S-08-1261.

Supreme Court of Nebraska.

September 18, 2009.

*351 Richard L. Rice and Mathew T. Watson, of Crosby Guenzel, L.L.P., Lincoln, for appellant.

Jon Bruning, Attorney General, Jody Gittins, and Michelle Weber for appellees State of Nebraska Game and Parks Commission, Rex Amack, and Carey Grell.

Kile W. Johnson, of Johnson, Flodman, Guenzel & Widger, Stephen D. Mossman, of Mattson, Ricketts, Davies, Stewart & Calkins, Lincoln, and Bonnie J. Hostetler, of Nebraska Public Power District, Columbus, for appellee Nebraska Public Power District.

HEAVICAN, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

*352 WRIGHT, J.

NATURE OF CASE

Patrick Reed sought a writ of mandamus to compel the Nebraska Game and Parks Commission (NGPC) and its officers to prohibit the Nebraska Public Power District (NPPD) from constructing a power transmission line across Twin Lakes Wildlife Management Area (Twin Lakes). Reed also sought injunctive relief and declaratory judgments to prevent construction of the transmission line. The Seward County District Court found that Reed did not have standing and dismissed the petition without leave to amend. Reed appeals.

SCOPE OF REVIEW

On a question of law, an appellate court reaches a conclusion independent of the court below. Lamar Co. v. City of Fremont, 278 Neb. 485, 771 N.W.2d 894 (2009); Pierce v. Douglas Cty. Civil Serv. Comm., 275 Neb. 722, 748 N.W.2d 660 (2008).

Standing is a jurisdictional component of a party's case, because only a party who has standing may invoke the jurisdiction of a court; determination of a jurisdictional issue which does not involve a factual dispute is a matter of law which requires an appellate court to reach its conclusions independent from a trial court. Lamar Co., supra; In re Estate of Dickie, 261 Neb. 533, 623 N.W.2d 666 (2001).

The defect of standing is a defect of subject matter jurisdiction. Citizens Opposing Indus. Livestock v. Jefferson Cty., 274 Neb. 386, 740 N.W.2d 362 (2007).

If a motion to dismiss for lack of jurisdiction is filed at the pleadings stage and the motion challenges the sufficiency of the complaint to invoke the court's jurisdiction, then the district court will review the pleadings to determine whether there are sufficient allegations to establish the plaintiff's standing. Id. Aside from factual findings, which are reviewed for clear error, the granting of a motion to dismiss for lack of subject matter jurisdiction under Neb. Ct. R. Pldg. § 6-1112(b)(1) is subject to de novo review. Citizens Opposing Indus. Livestock, supra.

FACTS

Reed owns land and resides in Seward County, Nebraska. He regularly uses Twin Lakes, a wildlife management area that is also located in Seward County. Twin Lakes has been designated as a wildlife management area by NGPC and is subject to its control and protection pursuant to Neb.Rev.Stat. §§ 37-328 to 37-336 (Reissue 2008).

The Twin Lakes area contains a prairie wildflower known as the Western Prairie Fringed Orchid, which has been identified as a "threatened and/or endangered species" by the U.S. Department of the Interior and the State of Nebraska. The orchid is known to exist in seven states, including Nebraska, and one Canadian province. It is found in remnant native prairies and meadows, such as those that exist at Twin Lakes, and may go dormant for many years. NGPC and others have observed the orchid at Twin Lakes.

As the state agency charged with conservation and protection of state resources, NGPC has the authority to prevent the destruction of threatened and endangered species. NGPC also has the authority to grant easements across real estate under its control, including Twin Lakes, pursuant to § 37-330. NPPD has several easements across Twin Lakes that were granted in 1937 and 1968 to maintain an 115-kV transmission line across Twin Lakes.

*353 NPPD has plans to begin an electric transmission line project known as the Electric Transmission Reliability Project for East-Central Nebraska (ETR Project). The ETR Project involves the construction of approximately 80 miles of 345-kV transmission line between Columbus, Nebraska, and Lincoln, Nebraska. The preferred route for this project crosses Twin Lakes. Construction of the ETR Project will require excavation 25 feet deep and large enough for a base with a 7-foot diameter to accommodate the 100- to 165-foot poles which will support the transmission line. Reed alleges that this excavation will threaten the habitat of the orchid and will negate the primary purpose of Twin Lakes as a wildlife management area. He also claims that the ETR Project exceeds the scope of NPPD's existing easements.

Reed filed a petition in Seward County District Court alleging three causes of action. First, he sought a writ of mandamus to compel NGPC and its director to perform their statutory duties to protect Twin Lakes from harmful and unlawful intrusions by NPPD. Second, Reed sought to enjoin NGPC from issuing a new easement to NPPD for the ETR Project and from continuing the ETR Project with or without a sufficient easement. Finally, Reed requested a declaratory judgment that NPPD's existing easements were insufficient for the 345-kV transmission and that any easement for the construction of the ETR Project would destroy the habitat of the orchid and negate the primary purpose of Twin Lakes' designation as a wildlife management area.

The district court concluded that Reed did not have standing because he had not suffered any special injury peculiar to himself aside from and independent of the general injury to the public. It opined that while Reed's interests may very well involve matters of great public concern, such interests did not rise to the level described by this court in Cunningham v. Exon, 202 Neb. 563, 276 N.W.2d 213 (1979). Accordingly, the court dismissed the action.

ASSIGNMENT OF ERROR

Reed alleges the district court erred in determining that he lacked standing to bring this action.

ANALYSIS

The issue is whether the district court erred in dismissing Reed's petition. The court concluded that Reed lacked standing because he had not suffered any special injury peculiar to himself aside from and independent of the general injury to the public. Noting that an exception to the general rule exists when the case involves a matter of "`great public concern,'" the court found that the issue of potential harm to the natural resources and aesthetic beauty at Twin Lakes did not constitute a matter of great public interest and concern such that Reed should be granted standing.

Standing is the legal or equitable right, title, or interest in the subject matter of the controversy which entitles a party to invoke the jurisdiction of the court. Myers v. Nebraska Invest.

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Cite This Page — Counsel Stack

Bluebook (online)
773 N.W.2d 349, 278 Neb. 564, 2009 Neb. LEXIS 148, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-reed-v-state-game-and-parks-comn-neb-2009.