Cappel v. State of Nebraska

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Cappel v. State of Nebraska

Case Number
Call Date
November 2, 2017
Case Time
9:00 AM
Court Number
Case Location
Case Summary

S-16-1037 Rodney Cappel et al. (Appellants) v. State of Nebraska Dept. of Natural Resources and Jeff Fassett, in his official capacity as director of the Dept. of Natural Resources (Cross-appellants)

Hitchcock County, Judge James E. Doyle IV

Attorneys: Stephen D. Mossman & Ryan K. McIntosh (Mattson Ricketts Law Firm) (Appellants) — Douglas J. Peterson, Justin D. Lavene, & Kathleen A. Miller (Attorney General’s Office) 

Civil: Surface water appropriation - 42 U.S.C. § 1983 violation, inverse condemnation, due process violations, restitution of taxes paid

Proceedings Below: The court granted cross-appellants’ motion to dismiss, dismissing the complaint without leave to amend.

Issues: Appellants assign that the court erred in holding that (1) closing notices issued by the DNR are pursuant to its police power and not its right of eminent domain, (2) an appropriation for the diversion of surface water is not a property right unless or until the State declares that water is available for diversion, (3) the issuance of closing notices by the DNR does not constitute a physical or regulatory taking of property, (4) the DNR’s regulation of the Republican River Basin does not constitute a regulatory taking, (5) they failed to state a claim for relief under § 1983, and (6) they were not entitled to restitution of occupation taxes levied against their property.

Cross-appellants allege that the court erred in holding that appellants’ claims under § 1983 were not barred by sovereign immunity.

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