State ex rel. Seeman v. Lower Republican NRD

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
STATE EX REL. SEEMAN v. LOWER REPUBLICAN NRD
Cite as 319 Neb. 681
State ex rel. Steve Seeman, appellee and
cross-appellant, v. Lower Republican
Natural Resources District et al.,
appellants and cross-appellees.
State ex rel. SBS Farms, Inc., and Robert Bishop,
president, appellees and cross-appellants, v.
Lower Republican Natural Resources
District et al., appellants.
___ N.W.3d ___
Filed August 22, 2025. 	Nos. S-24-326, S-24-327.
1. Actions: Mandamus. An action for a writ of mandamus is a law action.
2. Judgments: Appeal and Error. In a bench trial of a law action, the trial
court’s factual findings have the effect of a jury verdict, and an appellate
court will not disturb those findings unless they are clearly erroneous.
3. Judgments: Statutes: Appeal and Error. Questions of law and statu-
tory interpretation require an appellate court to reach a conclusion
independent of the decision made by the court below.
4. Immunity: Jurisdiction. Sovereign immunity is a jurisdictional matter
that can be raised at any time by a party or the court.
5. Mandamus: Public Officers and Employees: Immunity. Immunity
does not apply if a mandamus action against a public officer or body is
not in effect one against the sovereign.
6. Actions: Public Officers and Employees: Immunity. An action
against a public officer to obtain relief from an invalid act or from an
abuse of authority by the officer or agent is not a suit against the State
and is not prohibited by sovereign immunity.
7. ____: ____: ____. Suits which seek to compel affirmative action on the
part of a state official are barred by sovereign immunity, but if a suit
simply seeks to restrain the state official from performing affirmative
acts, it is not within the rule of immunity.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/14/2026 08:05 AM CDT

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
STATE EX REL. SEEMAN v. LOWER REPUBLICAN NRD
Cite as 319 Neb. 681
8. Judgments: Collateral Attack. When a judgment is attacked in a
manner other than by a proceeding in the original action to have it
vacated, reversed, or modified, or by a proceeding in equity to prevent
its enforcement, the attack is a collateral attack.
9. Judgments: Jurisdiction: Collateral Attack. Judgments entered with-
out personal jurisdiction or subject matter jurisdiction are void and
subject to collateral attack.
10. Mandamus: Words and Phrases. Mandamus is an extraordinary rem-
edy, not a writ of right, issued to compel the performance of a purely
ministerial act or duty, imposed by law upon an inferior tribunal, cor-
poration, board, or person where (1) the relator has a clear right to the
relief sought, (2) there is a corresponding clear duty existing on the
part of the respondent to perform the act, and (3) there is no other plain
and adequate remedy in the course of the law.
11. Mandamus: Proof. In a mandamus action, the party seeking manda-
mus has the burden of proof and must show clearly and conclusively
that such party is entitled to the particular thing the relator asks and that
the respondent is legally obligated to act.
12. Mandamus. An act or duty is ministerial only if there is an absolute
duty to perform in a specified manner upon the existence of cer-
tain facts.
13. Waters: Corporations: Real Estate: Due Process: Notice. Where a
corporation owns real estate having certified irrigated acres under the
Nebraska Ground Water Management and Protection Act, due process
requires that the corporation be served with notice reasonably calculated
to inform it of the subject and issues involved in the proceeding.
14. Statutes. Statutory language is to be given its plain and ordinary
meaning.
15. Waters: Real Estate. Under Neb. Rev. Stat. § 46-746(1) (Reissue
2021), a reduction of irrigated acres completed before a person
acquires an interest in the real estate is not affected by the acquisition
of such interest.
Appeals from the District Court for Harlan County: Terri S.
Harder, Judge. Judgment in No. S-24-326 reversed. Judgment
in No. S-24-327 affirmed as modified.
Donald G. Blankenau and Kennon G. Meyer, of Blankenau,
Wilmoth & Jarecke, L.L.P., and Blake E. Johnson, of Bruning
Law Group, L.L.C., for appellants.

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
STATE EX REL. SEEMAN v. LOWER REPUBLICAN NRD
Cite as 319 Neb. 681
David A. Domina, of Domina Law Group, P.C., L.L.O., for
appellees.
Matthew R. Watson and Andrew M. Pope, of Crites, Shaffer,
Connealy, Watson, Patras & Watson, P.C., L.L.O., for amicus
curiae Nebraska Groundwater Coalition.
Michael T. Hilgers, Attorney General, Justin D. Lavene, and
Joshua E. Dethlefsen, for amicus curiae Nebraska Department
of Natural Resources.
Miller-Lerman, Cassel, Papik, and Freudenberg, JJ.
Cassel, J.
I. INTRODUCTION
Two landowners brought mandamus actions to collaterally
attack, for lack of jurisdiction, an order of a natural resources
district (NRD) reducing certified irrigated acres pursuant to
the Nebraska Ground Water Management and Protection Act
(Act). 1 One, a corporation, owned real estate when the admin-
istrative proceeding commenced. The other owner acquired
real estate after it ended. The district court granted both relief.
Because the administrative record failed to establish reasonable
notice to the corporation, we affirm its judgment as modified.
We reverse the other judgment, because the NRD established
jurisdiction over that owner’s predecessor in title.
II. BACKGROUND
To better comprehend the underlying events resulting in
forfeiture of certified irrigated acres and then this action for
a writ of mandamus, it is important to understand the regu-
lation of ground water in Nebraska. We start there—briefly
addressing the Republican River Compact before summa-
rizing Nebraska’s statutory framework and the rules and
regulations of the local governing body. Then we discuss the
1 Neb. Rev. Stat. §§ 46-701 to 46-756 (Reissue 2021).

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
STATE EX REL. SEEMAN v. LOWER REPUBLICAN NRD
Cite as 319 Neb. 681
proceedings leading to a cease-and-desist order and the two
actions seeking writs of mandamus.
1. Republican River Compact
To provide for equitable division and the most efficient use
of the Republican River Basin’s waters, the states of Colorado,
Kansas, and Nebraska signed the Republican River Compact
of 1943 (Compact). 2 The Compact made specific alloca-
tions of water to each state for beneficial consumptive use. 3
Subsequently, Nebraska’s increased pumping of ground water
led to litigation before the U.S. Supreme Court. 4 A settlement
sought to accurately measure the supply and use of the water
in the basin and to help the states stay within their allocations. 5
There seems to be no dispute that the certified acres at issue
here relate to lands included in the Compact.
2. Nebraska Ground Water Management
and Protection Act
The Act originated in 1975. 6 The Legislature found that
“ownership of water is held by the state for the benefit of
its citizens.” 7
The Legislature proclaimed that “[e]very landowner shall
be entitled to a reasonable and beneficial use of the ground
water underlying his or her land.” 8 But it made such use “sub-
ject to the provisions of . . . the . . . Act and the correlative
rights of other landowners when the ground water supply is
2 2A Neb. Rev. Stat. appx. § 1-106 (Reissue 2016).
3 Id., art. IV.
4 See Kansas v. Nebraska, 574 U.S. 445, 135 S. Ct. 1042, 191 L. Ed. 2d 1
(2015).
5 See id.
6 See 1975 Neb. Laws, L.B. 577.
7 § 46-702.
8 Id.

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
STATE EX REL. SEEMAN v. LOWER REPUBLICAN NRD
Cite as 319 Neb. 681
insufficient to meet the reasonable needs of all users.” 9 It
therefore recognized that “the public interest demands pro-
cedures for the implementation of management practices to
conserve and protect ground water supplies and to prevent the
contamination or inefficient or improper use thereof.” 10
The Legislature found that NRDs are the “preferred entities
to regulate . . . ground water related activities” 11 and specifi-
cally identified numerous powers that NRDs may exercise. 12
An NRD may “[a]dopt and promulgate rules and regulations
necessary to discharge the administrative duties assigned in
the [A]ct,” 13 require meters to be placed on water wells to
acquire water use data, 14 conduct investigations on matters rel-
evant to the administration of the Act, 15 and issue cease-and-
desist orders to enforce provisions of the Act or of orders or
permits issued under the Act. 16 According to the Act, a cease-
and-desist order may be issued “following three days’ notice
to the person affected stating the contemplated action and in
general the grounds for the action and following reasonable
opportunity to be heard.” 17
An NRD encompassing a fully appropriated river basin,
such as the Republican River Basin, must jointly develop,
with Nebraska’s Department of Natural Resources, an inte-
grated management plan (IMP) for such basin. 18 The IMP
9 Id.
10 Id.
11 § 46-703(3).
12 See § 46-707.
13 § 46-707(1)(a).
14 § 46-707(1)(d).
15 § 46-707(1)(f).
16 § 46-707(1)(h).
17 Id.
18 § 46-715(1)(a).

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
STATE EX REL. SEEMAN v. LOWER REPUBLICAN NRD
Cite as 319 Neb. 681
should contain sufficient controls to ensure that Nebraska
remains in compliance with the Compact. 19
Controls include allocation of the amount of ground water
that may be withdrawn by ground water users 20 and instal-
lation of devices for measuring ground water withdrawals
from water wells. 21 As another control, an NRD may require
its approval of such matters as transfers of certified irrigated
acres between landowners or other persons or between parcels
or tracts under the control of a common landowner or other
person. 22 “Certified irrigated acres means the number of acres
or portion of an acre that [an NRD] has approved for irriga-
tion from ground water in accordance with law and with rules
adopted by the district.” 23
NRDs are empowered to impose penalties for violations of
its controls, rules, or cease-and-desist orders. 24 Such a penalty
may include having “irrigated acres certified by the district
reduced in whole or in part.” 25
The Act sets forth basic procedures for a hearing upon a
violation. The violations statute states, “Before [an NRD]
takes any action, notice and hearing shall be provided . . . .” 26
Another statute declares, “All hearings conducted pursuant
to the . . . Act shall be of record and available for review.” 27
A more general statute specifies seven “public hearing . . .
requirements,” 28 including “reasonable proximity to the area
19 See § 46-715(4).
20 § 46-739(1)(a)
21 § 46-739(1)(d).
22 § 46-739(1)(k).
23 § 46-706(30).
24 § 46-746(1).
25 Id.
26 Id.
27 § 46-747.
28 § 46-743.

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
STATE EX REL. SEEMAN v. LOWER REPUBLICAN NRD
Cite as 319 Neb. 681
. . . affected” 29 and notice of hearing “published in a newspa-
per . . . at least once each week for three consecutive weeks.” 30
These statutory provisions establish the framework for the pro-
ceedings upon which the present appeals focus.
3. Lower Republican NRD
The NRD involved in this case is the Lower Republican
NRD (LRNRD). It includes portions of the Republican River
Basin 	lying 	in 	the 	counties 	of 	Furnas, 	Harlan, 	Franklin,
Webster, and Nuckolls. LRNRD is governed by an elected
board of directors. 31
LRNRD entered into an IMP with Nebraska’s Department of
Natural Resources to address instances when enforcement of
LRNRD’s rules and regulations are insufficient to ensure suf-
ficient water supply in the Republican River Basin. Under the
plan, inadequate enforcement could result in the department’s
forcing LRNRD to cease all ground water pumping within
a certain area. In Furnas County, 25,500 acres are subject to
being “shut down as irrigated” under the IMP if LRNRD fails
to adequately regulate ground water in its district.
To control water use, LRNRD adopted “Ground Water
Management Rules and Regulations.” The rules provide that
“[o]nce acres have been certified by the Board as Certified
Irrigated Acres, such certification shall attach to the land upon
which such acres are irrigated.” The rules require wells to have
“a properly installed and operational flow meter” and caution
that “[w]ell owners and/or Operators” who have tampered with
a meter are subject to penalties.
The rules set forth penalties for operating a well without
a properly installed and operational flow meter. They also
contemplate enhanced penalties under certain circumstances.
Under rule 2-2.2, on top of specific penalties identified in the
29 § 46-743(1).
30 § 46-743(2).
31 See Neb. Rev. Stat. § 2-3213 (Cum. Supp. 2024).

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
STATE EX REL. SEEMAN v. LOWER REPUBLICAN NRD
Cite as 319 Neb. 681
rules, “a Person may be subject to additional penalties, up to
and including a permanent forfeiture of Certified Irrigated
Acres, and/or a permanent forfeiture of all future Allocations.”
Circumstances warranting such a penalty include:
(1) 	a 	second 	violation 	of 	any 	particular 	Rule 	or
Regulation, (2) repeated violations of these Rules and
Regulations, (3) being in violation of more than one
Rule at any particular time, (4) engaging in willful and
wanton misconduct, or (5) certification by the record
owner to the District of the non-irrigation status of cer-
tain Certified Irrigated Acres in order to opt-out of an
Occupation Tax levied by the District, which status is
later found to be false in whole or in part. The Board
may also pursue such forfeiture of Certified Irrigated
Acres and/or Allocation if a Person has been warned on
more than one occasion that they are in violation of these
Rules and Regulations.
LRNRD’s rules provide general directions regarding service
of process or notice of hearing. The parties have not cited any
rule or regulation of LRNRD specifically addressing proce-
dures regarding a proceeding to decertify or forfeit certified
irrigation acres. LRNRD’s rules and regulations impose two
requirements. First, notice of a complaint filing directed to an
alleged violator—such as a notice of intent—“will be deliv-
ered in person, or by registered or certified mail.” Second,
a cease-and-desist order “shall be transmitted to the alleged
violator in person or by certified or registered mail.”
4. Events Leading to
Cease-and-Desist Order
(a) Proceeding Initiated
Gerald Schluntz and his daughters, Julie Smith and Tamara
Bishop,(collectively the Schluntzes) owned or operated farm-
land located within LRNRD’s boundaries. During an inspec-
tion of the water flow meters on their wells, LRNRD personnel
discovered tampering devices.

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
STATE EX REL. SEEMAN v. LOWER REPUBLICAN NRD
Cite as 319 Neb. 681
On August 3, 2016, LRNRD issued a “Notice of Intent
to Issue Cease and Desist Order and Impose Penalties for
Operating a Well Without a Properly Installed and Operational
Flow Meter” (Notice of Intent). It stated that LRNRD intended
to seek relief, including a “permanent forfeiture” of the
Schluntzes’ certified irrigated acres and of all future alloca-
tions. The Notice of Intent included a “Notice of Opportunity
for Hearing.” It provided that “LRNRD will discuss and
schedule a hearing regarding this Notice at its next regularly
scheduled board meeting on August 11, 2016.” Attached to
the Notice of Intent were “Compliance Review[s],” all of
which listed Schluntz as the owner and set forth abbreviated
legal descriptions. For example, one described the location as
“35-2-21.”
LRNRD served the Notice of Intent via certified mail on
each of the Schluntzes. The return receipt for the notice
addressed to Schluntz shows that it was delivered to him on
August 6, 2016.
One week later, on August 13, 2016, Schluntz died.
(b) Hearing
On August 15, 2016, the board scheduled a public hear-
ing for September 8 to provide the Schluntzes (substituting
Schluntz’ estate for Schluntz) with an opportunity to be heard.
Notice of hearing was served via certified mail addressed to
“Estate of Gerald Schluntz,” and the return receipt shows that
it was received by “Brennan Bishop.” Notice of the hearing
was published in several area newspapers for 3 weeks, stating
that the public hearing “concern[ed] tampering of flow meters
owned or operated by the Estate of Gerald Schluntz, Julie
Smith, and Tamara Bishop.” The notice invited “[a]ll persons
having an interest in these matters . . . to attend and make their
views known at this time.”
At the hearing, commencing in September 2016 and finish-
ing in December, counsel appeared on behalf of the Schluntzes.
The board heard testimony regarding the tampering with flow

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
STATE EX REL. SEEMAN v. LOWER REPUBLICAN NRD
Cite as 319 Neb. 681
meters. An employee of Schluntz admitted to installing bolts
on the flow meters at Schluntz’ direction. The employee testi-
fied that both he and Schluntz knew that installing the bolts
would tamper with the operation of the flow meters and that
such tampering was prohibited by LRNRD’s rules and regula-
tions. The employee testified that he and Steve Seeman, who
had been identified as Schluntz’ “partner,” would be making
management decisions going forward and that the tampering
with flow meters would not reoccur.
Evidence showed that in 2008 and 2010, LRNRD warned
Schluntz about violating LRNRD’s rules and regulations,
including for flow meter tampering and for irrigating acres
that 	had 	been 	certified 	as 	nonirrigated 	for 	purposes 	of
LRNRD’s occupation tax. No penalties were imposed for
those alleged violations.
In the 2016 violation proceeding, LRNRD adduced evi-
dence that the flow meters were affixed to LRNRD-regulated
ground water wells irrigating all or a portion of eight parcels
of land totaling 1,107.5 certified irrigated acres. The evidence
showed the parcels and ownership interests, as reflected in
county assessor reports, to be:
Parcel
(A=acres;SITUS=Section-Township-
Range)
Ownership
NE¼ 168 A - SITUS 04-1-21 	Smith and Bishop
SE¼ 166 A - SITUS 04-1-21 	Schluntz
PT SE¼ 157.29 A - SITUS 23-2-21 	Schluntz
SW¼, [W]½NW¼, SE¼NW¼,
PT SE¼ 367 A - SITUS 26-2-21
SBS Farms, Inc.
PT NE¼ 154 A - SITUS 35-2-21 	SBS Farms, Inc.
NW¼, PT W½NE¼, N½SW¼ 320
A - SITUS 36-2-21
Schluntz
PT SE¼SE¼ 30 A - SITUS 24-2-21 	Schluntz
NE¼ 160 A - SITUS 25-2-21 	Schluntz

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
STATE EX REL. SEEMAN v. LOWER REPUBLICAN NRD
Cite as 319 Neb. 681
The record from LRNRD’s proceedings offers little infor-
mation about SBS Farms, Inc. (SBS). There was no assertion
that SBS should be a party to the proceedings. County asses-
sor reports showed the address for SBS to be the same as the
address shown for each of the Schluntzes. It was the same
address at which the Notice of Intent was sent by certified
mail to Schluntz and at which the notice of hearing was sent
to his estate.
LRNRD’s records included a January 2014 corporation war-
ranty deed. The deed stated, “Schluntz Family Farms, Inc., a
Nebraska Corporation, Grantor, as part of the reorganization
of Grantor and in exchange for all of the shares of Grantor
owned by Grantee, SBS Farms Inc., a Delaware Corporation,
conveys to Grantee the following described real estate . . . .”
The land conveyed by the deed included part of the real estate
that was later the subject of the violation proceeding. The
deed described that part as follows:
The Northeast Quarter (NE¼) of Section 35, Township
2 North, Range 21 West of the 6th P.M., Furnas County,
Nebraska, EXCEPT a tract of about three (3) acres in the
Northeast corner of said land deeded for cemetery pur-
poses, and EXCEPT for a tract in the northwest corner
subject to a life estate of Gerald Schluntz.
Six 	months 	later, 	a 	warranty 	deed 	conveying 	land 	from
Schluntz to SBS (in consideration of $0) showed SBS to be “a
Nebraska Corporation.” Thus, the administrative record estab-
lishes that these deeds were recorded long before LRNRD’s
proceeding was initiated.
(c) Cease-and-Desist and Penalties Order
In February 2017, the board issued a cease-and-desist order,
which also imposed civil penalties (the 2017 order). The board
found that the Schluntzes committed repeated violations of
LRNRD’s rules and regulations and that they should be subject
to enhanced penalties. The board ordered as follows:
1) Respondents cease and desist the use of all welds
or ports in irrigation pipes which could potentially enable

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
STATE EX REL. SEEMAN v. LOWER REPUBLICAN NRD
Cite as 319 Neb. 681
tampering with flow meter operation on all properties
owned and/or operated in the District by Respondents
now or in the future.
2) 	Respondents’ 	base 	allocation 	for 	the 	2017
irrigation season be forfeited on the 1,107.5 acres of
Respondents’ Real Estate upon which tampering ports
were discovered; and
3) Respondents’ Certified Irrigated Acres be perma-
nently forfeited, including all future allocations, on the
1,107.5 acres of Respondents’ Real Estate upon which
tampering ports were discovered.
(d) Appeal
The Schluntzes attempted to obtain review of the 2017
order by filing a petition in the district court for Furnas
County. 32 LRNRD moved to dismiss for lack of subject mat-
ter jurisdiction. Because there was no dispute that all hearings
regarding the 2017 order were held in Harlan County, the dis-
trict court for Furnas County concluded it did not have subject
matter jurisdiction and sustained the motion to dismiss. Upon
appeal, we concluded that the district court correctly dismissed
on subject matter jurisdiction grounds. 33
5. Motions and Complaints for
Mandamus Relief
Several years later, in 2023, Seeman filed a “Motion &
Complaint for Peremptory Writ of Mandamus or Alternatively
Request for Alternative Writ, and other Relief” against each
member of the board of directors of LRNRD and its gen-
eral manager (collectively the board). On the same day, in
a separate case, SBS and its president filed a substantially
similar pleading.
32 See § 46-750.
33 Estate of Schluntz v. Lower Republican NRD, 300 Neb. 582, 915 N.W.2d
427 (2018).

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
STATE EX REL. SEEMAN v. LOWER REPUBLICAN NRD
Cite as 319 Neb. 681
Seeman, along with SBS and its president, (collectively
relators) sought a peremptory writ of mandamus to compel
the board to set aside the 2017 order that purported to per-
manently bar relators from using irrigation waters on certain
real estate. If a peremptory writ were not granted, relators
sought an alternative writ of mandamus to compel the same
action. Relators alleged that the 2017 order was void for sev-
eral reasons, including that it was issued against their land in
a proceeding in which they were not named as a party, were
not served with process, and did not have due process of law.
They also alleged that it was void because it was an unlawful
perpetual restraint.
According to the allegations in Seeman’s complaint, Seeman
was married to Schluntz and Schluntz died without a will.
Seeman was not named as a party in the proceedings initi-
ated against Schluntz’ estate except in his capacity as personal
representative and appeared as a party only in that capacity.
Seeman alleged that at the time of the proceedings and the
2017 order, he owned no real estate in LRNRD’s jurisdiction.
Seeman asserted that he became the owner of the real estate
affected by the 2017 order by virtue of its distribution to him
from Schluntz’ estate. He alleged that he now owned the five
parcels that were owned by Schluntz.
In SBS’ complaint, it alleged that it was a Nebraska corpo-
ration in good standing and that it leased farm real estate in
LRNRD’s area to Schluntz. SBS asserted that Schluntz “was
not a shareholder, director, officer or authorized agent of SBS
with authority to violate any laws or regulations.” SBS further
asserted that it was not named as a party in LRNRD’s proceed-
ings and never appeared in the case.
The board filed a general answer denying each and every
allegation. The district court subsequently held a hearing on
motions 	to 	dismiss 	separate 	declaratory 	judgment 	actions
that were filed against the board and heard arguments about
whether peremptory writs should issue.

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
STATE EX REL. SEEMAN v. LOWER REPUBLICAN NRD
Cite as 319 Neb. 681
6. District Court Orders
On July 14, 2023, the court entered an order in each case
addressing the complaints seeking writs of mandamus and
motions to dismiss the separate declaratory judgment actions
that were filed against the board. The court dismissed the
actions for declaratory judgment but granted the mandamus
relief sought by relators. A week later, relators filed motions
seeking attorney fees. The board timely filed a motion to
alter or amend. On March 28, 2024, the court entered a
judgment, styled as an order, granting mandamus relief and
attorney fees.
In issuing writs in favor of relators, the court observed that
the 2017 order impacted real estate they owned. The court
stated that it was undisputed Seeman owned no real estate in
LRNRD’s jurisdiction at the time of the 2016 proceedings,
that he did not acquire an ownership interest in such real
estate until distribution of assets was made from Schluntz’
estate in 2018, and that the 2016 proceedings were not con-
ducted against SBS. The court issued a writ of mandamus
finding that the board could not enforce the 2017 orders or
penalties on persons not served in the original action. The
court reasoned that the 2017 order was void as to Seeman and
SBS because the board never acquired jurisdiction over them.
It found that relators had a clear right to the relief sought and
that it was a ministerial task for the board to stop enforcing
the 2017 order against relators.
Subsequently, the court sustained the board’s motion to alter
or amend “to add clarifying language” to the writ. As modi-
fied, it directed the board
not to apply its 2017 February Order as to [relators];
further, the Court hereby lifts the “permanency” provi-
sion of the 2017 Order and finds that the LRNRD may
not use the 2017 February Order to prohibit Relators
from engaging in the process of having the 1,107.5 acres
certified by the District as “Certified Irrigated Acres”;

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
STATE EX REL. SEEMAN v. LOWER REPUBLICAN NRD
Cite as 319 Neb. 681
and that the [board is] further Ordered to take all steps
necessary including administrative steps such as recertifi-
cation upon proper application by Relators to restore the
real estate to its status as Certified Irrigated Acres and to
permit the use of groundwater for irrigation purposes on
the acres of the Relator[s].
In each case, the board filed an appeal and relators cross-
appealed. The appeals were docketed in the Nebraska Court of
Appeals. After the board’s motion to consolidate the cases for
briefing and disposition was sustained, we moved the cases to
our docket. 34
III. ASSIGNMENTS OF ERROR
The board assigns that the district court erred in (1) finding
it had subject matter jurisdiction to grant the mandamus relief
it ordered, (2) permitting a collateral attack on a final adminis-
trative order that was appealed to a district court and appellate
court, (3) finding relators had met their burden to show clearly
and conclusively a right to the mandamus relief ordered, (4)
finding relators had met their burden to show clearly and con-
clusively a corresponding legal duty on the part of the board
to provide the mandamus relief ordered, and (5) finding that
relators were entitled to attorney fees.
On cross-appeal, relators assign that the district court
erred when it did not decide that the 2017 order was void
for the additional reason that it was a perpetual prohibition
against irrigation and upon transfer of title and use of rela-
tors’ land.
IV. STANDARD OF REVIEW
[1-3] An action for a writ of mandamus is a law action. 35 In
a bench trial of a law action, the trial court’s factual findings
34 See Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2024).
35 Nebraska Journalism Trust v. Dept. of Envt. & Energy, 316 Neb. 174, 3
N.W.3d 361 (2024).

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Nebraska Supreme Court Advance Sheets
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STATE EX REL. SEEMAN v. LOWER REPUBLICAN NRD
Cite as 319 Neb. 681
have the effect of a jury verdict, and an appellate court will
not disturb those findings unless they are clearly erroneous. 36
However, questions of law and statutory interpretation require
an appellate court to reach a conclusion independent of the
decision made by the court below. 37
V. ANALYSIS
As we discuss in more detail below, SBS owned affected
property at the time of the LRNRD proceedings and Seeman
obtained his affected property from Schluntz’ estate after
the LRNRD proceedings and the attempted appeal therefrom
were concluded. These circumstances are pertinent to rela-
tors’ argument that the 2017 order is void as to them. And
determining whether that order is void as to relators is key
to resolving the assignments of error. To explain why this is
so, we set forth principles of law related to void orders and
judgments that are pertinent to sovereign immunity, collateral
attacks, and mandamus. Then we determine whether the 2017
order is void as to each relator. Finally, we resolve the assign-
ments of error.
1. General Principles of Law
(a) Sovereign Immunity
[4] Sovereign immunity is a jurisdictional matter that can be
raised at any time by a party or the court. 38 NRDs are political
subdivisions of the state, 39 and political subdivisions have sub-
ordinate powers of sovereignty conferred by the Legislature. 40
We have long held that no suit may be maintained against
the State or its political subdivisions unless the Legislature,
36 Id.
37 Id.
38 Garcia v. City of Omaha, 316 Neb. 817, 7 N.W.3d 188 (2024).
39 See § 2-3213(1).
40 See Lamb v. Fraternal Order of Police Lodge No. 36, 293 Neb. 138, 876
N.W.2d 388 (2016).

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by law, has so provided. 41 Rather than bringing the manda-
mus actions against the LRNRD, relators sued the LRNRD’s
individual board members and its general manager. The board
contends that relators’ actions are really seeking relief from the
LRNRD, rather than the individuals.
[5-7] With respect to an action seeking a writ of mandamus,
immunity does not apply if the mandamus action against a
public officer or body is not in effect one against the sover-
eign. 42 An action against a public officer to obtain relief from
an invalid act or from an abuse of authority by the officer or
agent is not a suit against the State and is not prohibited by
sovereign immunity. 43 The theory behind this exception to
sovereign immunity is that “acts of state officers not legally
authorized, or which exceed or abuse the authority conferred
upon them, are judicially regarded as their own acts and not
acts of the state.” 44 Suits which seek to compel affirmative
action on the part of a state official are barred by sovereign
immunity, but if a suit simply seeks to restrain the state offi-
cial from performing affirmative acts, it is not within the rule
of immunity. 45
Relators’ actions requested a writ “directing and command-
ing the [board] to set aside their previous order and restore
to Relator[s] all rights to irrigation waters and their use by
[them] and upon [their] real estate.” To the extent the manda-
mus actions sought to stop public officials from enforcing a
void order, there would be no immunity. But sovereign immu-
nity would preclude relief compelling affirmative action. We
implement the distinction below.
41 See Clark v. Sargent Irr. Dist., 311 Neb. 123, 971 N.W.2d 298 (2022).
42 See 52 Am. Jur. 2d Mandamus § 74 (2021).
43 Community Care Health Plan of Neb. v. Jackson, 317 Neb. 141, 9 N.W.3d
404 (2024).
44 Rein v. Johnson, 149 Neb. 67, 69, 30 N.W.2d 548, 552 (1947).
45 State ex rel. Steinke v. Lautenbaugh, 263 Neb. 652, 642 N.W.2d 132
(2002).

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(b) Collateral Attack
[8] When a judgment is attacked in a manner other than
by a proceeding in the original action to have it vacated,
reversed, or modified, or by a proceeding in equity to prevent
its enforcement, the attack is a collateral attack. 46 That is the
situation here.
[9] 	Judgments 	entered 	without 	personal 	jurisdiction 	or
subject matter jurisdiction are void and subject to collateral
attack. 47 If the 2017 order is void, this collateral attack is
permissible.
(c) Mandamus
[10] Mandamus is an extraordinary remedy, not a writ of
right, issued to compel the performance of a purely ministerial
act or duty, imposed by law upon an inferior tribunal, corpora-
tion, board, or person where (1) the relator has a clear right to
the relief sought, (2) there is a corresponding clear duty exist-
ing on the part of the respondent to perform the act, and (3)
there is no other plain and adequate remedy in the course of
the law. 48
[11,12] In a mandamus action, the party seeking mandamus
has the burden of proof and must show clearly and conclu-
sively that such party is entitled to the particular thing the
relator asks and that the respondent is legally obligated to
act. 49 An act or duty is ministerial only if there is an absolute
duty to perform in a specified manner upon the existence of
certain facts. 50
If the 2017 order is void as to relators, the board would have
an absolute duty not to enforce it against them.
46 In re Applications T-851 & T-852, 268 Neb. 620, 686 N.W.2d 360 (2004).
47 Parish v. Parish, 314 Neb. 370, 991 N.W.2d 1 (2023).
48 State ex rel. Spung v. Evnen, 317 Neb. 800, 12 N.W.3d 229 (2024).
49 Id.
50 Cain v. Lymber, 306 Neb. 820, 947 N.W.2d 541 (2020).

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2. Whether 2017 Order Is Void
Relators contend that the 2017 order is void because it was
issued against their land in a proceeding in which they were
not parties, were not served, and did not have due process.
But the board contends that relators’ interests are derivative of
Schluntz’ estate and that they had no standing at the time of the
proceedings. After setting forth relevant propositions of law,
we consider their application to each relator.
(a) Propositions of Law
The right of an owner of overlying land to use ground water
is an appurtenance constituting property protected by Neb.
Const. art. I, § 21. 51 The interest in use of ground water is a
property interest that is under due process protections. 52 Due
process requires notice reasonably calculated to inform the
party to the action of the subject and issues involved in the
proceeding. 53 The requirements of due process are satisfied if
a person has reasonable notice and an opportunity to be heard
appropriate to the nature of the proceeding and the character of
the rights which might be affected by it. 54
For purposes of the Act, “[p]erson” means not just “a
natural person” but also entities such as “a partnership, a lim-
ited liability company, an association, [or] a corporation.” 55
LRNRD’s definition of person in rule 4-1.45 is substantively
the same. Seeman and SBS each qualify as a “person” under
the Act and rules.
The Act provides that a cease-and-desist order may be
issued following 3 days’ notice “to the person affected stat-
ing the contemplated action and in general the grounds for the
51 Prokop v. Lower Loup NRD, 302 Neb. 10, 921 N.W.2d 375 (2019).
52 See id.
53 Id.
54 Id.
55 § 46-706(1).

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action and following reasonable opportunity to be heard.” 56
Similarly, “[b]efore a district takes any action [against a person
who violates NRD rules], notice and hearing shall be provided
to such person.” 57 The Act contemplates reduction of irrigated
acres certified by the district as a penalty. 58
Proper service, or a waiver by voluntary appearance, is nec-
essary to acquire personal jurisdiction over a defendant. 59 A
judgment entered without personal jurisdiction is void. 60
(b) SBS
The record from the LRNRD proceeding sheds little light
on SBS. It contains nothing about the officers, directors, or
shareholders of SBS at the time of the proceeding. County
assessor reports show SBS to be an owner of real prop-
erty affected by the order and to have the same mailing
address as Schluntz, Smith, and Bishop. LRNRD’s records
show that a flow meter which had been tampered with
was owned by Schluntz and affixed to a well that irrigated
land owned by SBS and Schluntz. But neither the Notice
of Intent nor the notice of hearing was addressed to or
served upon SBS. And although the notice of hearing was
published in area newspapers and invited attendance by all
persons having an interest, it did not specifically mention
SBS. Although LRNRD argues that “Schluntz himself repre-
sented to the LRNRD that he was the president of SBS” and
provides a citation to the record, the cited record does not
support the existence of any such representation. 61 The cited
record merely shows that both Schluntz and SBS had the
same address. We are limited by the record made by LRNRD
56 § 46-707(1)(h). See, also, § 46-708(3).
57 § 46-746(1).
58 Id.
59 Francisco v. Gonzalez, 301 Neb. 1045, 921 N.W.2d 350 (2019).
60 Id.
61 Reply brief for appellants at 5.

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in its administrative proceeding and cannot speculate regard-
ing the significance of their having the same address. The
notice requirement is not burdensome. For example, certified
mail addressed to SBS, at the address shown in the assessor’s
records, might well have been sufficient.
[13] Where a corporation owns real estate having certified
irrigated acres under the Act, due process requires that the
corporation be served with notice reasonably calculated to
inform it of the subject and issues involved in the proceeding.
SBS was a “person” under the Act who was affected by the
contemplated cease-and-desist order; however, SBS was not
given notice of it or of the hearing. We conclude that the 2017
order is void as to SBS.
Because the order was void, the officers, directors, and
employees of LRNRD had a ministerial duty not to enforce the
order. This includes not enforcing the reduction in certified irri-
gated acres. But to the extent that the district court’s judgment
can be read to compel affirmative acts, such relief is precluded
by sovereign immunity. We therefore modify the judgment in
that action to limit the relief accordingly.
Nothing in this opinion should be read to preclude a proper
administrative proceeding against SBS seeking reduction in
certified irrigated acres. We express no opinion regarding the
viability or merits of any such proceeding.
(c) Seeman
Seeman’s situation differs. At the time that LRNRD served
the Notice of Intent, Seeman had no interest in any of the real
property at issue. Although Seeman now owns tracts of land
affected by the 2017 order, Schluntz owned them at the time
the LRNRD proceeding commenced with the issuance of the
Notice of Intent. Thus, there was no reason to provide Seeman
with notice of the contemplated action at that time.
However, Schluntz died 1 week after being served with the
Notice of Intent. His death occurred 2 days before LRNRD
scheduled the public hearing. The record establishes that

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LRNRD knew of Schluntz’ death. The notice of public hear-
ing identified “Estate of Gerald Shultz [sic]” as a respond-
ent, and LRNRD served the notice addressed to “Estate
of Gerald Schluntz.” Further, notices of hearing that were
published in area newspapers identified the “Estate of Gerald
Schluntz” as an owner or operator of the relevant flow
meters. The record from the LRNRD hearing shows that
counsel appeared on behalf of “the respondents,” i.e., “the
Estate of Gerald Schluntz, Julie Smith and Tamara Bishop.”
The district court found that “Schluntz[’] estate” appeared
at the September 8, 2016, hearing and that at the hearing on
December 16, Schluntz’ estate “offered testimony and evi-
dence.” Testimony at the December 2016 hearing disclosed
that Seeman was going to be involved in management deci-
sions going forward. Testimony also established that before
Schluntz’ death, Seeman was giving orders or deciding what
needed to be done.
Although LRNRD requested the district court to take judi-
cial notice of Schluntz’ probate proceedings, the court never
ruled upon the request. The record before us does not include
any of the probate proceedings. The district court’s judgment
did not specify the date of Seeman’s appointment as personal
representative. The court did recite that Seeman “acquired title
to the land on December 26, 2018.” This was premised upon
the date that a “Schedule of Distribution was filed in County
Court . . . and Deeds of Distribution were executed.”
Seeman consistently takes the position that he acquired
the real estate only upon distribution from Schluntz’ estate in
December 2018. His complaint did so. His brief on appeal does
likewise. At oral argument, his counsel confirmed that position.
We assume, without deciding, that he is correct.
But Seeman does not, and could not, attack the validity
of LRNRD’s order as to Schluntz and his estate. By tak-
ing the position that he owned no interest before December

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2018, Seeman effectively conceded that he lacked standing
to challenge the order until after that date. Standing refers to
whether a party had, at the commencement of the litigation,
a personal stake in the outcome of the litigation that would
warrant a court’s exercise of its subject matter jurisdiction
and remedial powers on that party’s behalf. 62 To have stand-
ing, the party must have some legal or equitable right, title, or
interest in the subject matter of the controversy. 63 Generally, a
party has standing only if he or she has suffered or will suffer
an injury in fact. 64 By the time Seeman acquired his interest,
the LRNRD proceedings had concluded, its order had issued,
and the attempted appeals were dismissed. Our mandate on
the appeal issued on August 8, 2018.
Thus, Seeman’s claim implicitly attacks the controlling stat-
ute. Section 46-746(1) authorizes “penalties imposed through
the controls adopted by the district, including, but not limited
to, having any . . . irrigated acres certified by the district
reduced in whole or in part.”
[14,15] We see no ambiguity. Statutory language is to
be given its plain and ordinary meaning. 65 Before Seeman
acquired his interest, the decertification of irrigated acres was
complete. We expressly hold that under § 46-746(1), a reduc-
tion of irrigated acres completed before a person acquires an
interest in the real estate is not affected by the acquisition of
such interest.
Thus, it was not clear that the 2017 order was void as to
Seeman. And because Seeman brought this action seeking
62 Preserve the Sandhills v. Cherry County, 313 Neb. 590, 985 N.W.2d 599
(2023).
63 See id.
64 Id.
65 Precision Castparts Corp. v. Nebraska Dept. of Rev., 317 Neb. 481, 10
N.W.3d 707 (2024).

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mandamus, he had the burden of proof. 66 He was required to
show clearly and conclusively that he was entitled to compel
the board to set aside the 2017 order. He failed to do so.
We reject the notion that because the order was void as to
SBS, it was void as to Seeman. The order affected real estate
owned by SBS and other real estate owned by the Schluntzes.
The invalidity of the part of the order addressing SBS’ real
estate had no relation to the order’s effect on the other
real estate.
We therefore conclude that the district court erred in issu-
ing the writ of mandamus based upon a determination that
the 2017 order was void as to Seeman. We turn to relators’
cross-appeal.
3. Cross-Appeal
Because we determine that the 2017 order was not void
on due process grounds as to Seeman, we consider the
“prophylactic” 67 cross-appeal brought by relators. In Seeman’s
complaint seeking a writ of mandamus, he asserted that the
2017 order was “void because it is a perpetual restraint which
is an unlawful restraint on real estate and its title, utility and
marketability.” The cross-appeal thus assigns that the district
court erred when it did not decide that the 2017 order was
void as a perpetual prohibition against irrigation and upon
transfer of title and use of relators’ land. This assignment of
error lacks merit.
The “restraint” on the real estate was imposed by LRNRD.
The Act authorizes an NRD to reduce, in whole or in part, cer-
tified irrigated acres as a penalty. 68 Relators have not assigned
or argued that the Act or any statute within the Act is uncon-
stitutional. Accordingly, LRNRD’s decertification of irrigated
acres did not make the cease-and-desist order void.
66 See State ex rel. Spung v. Evnen, supra note 48.
67 Brief for appellees on cross-appeal at 38.
68 § 46-746(1).

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Moreover, it is not clear that the decertification will be
perpetual. Under the version of LRNRD’s rules in our record,
rule 6-6 contains a process by which a landowner could seek
to have acres certified. To the extent that the parties referred
to a more recent rule governing the process, we are not per-
suaded that there is a significant difference.
4. Attorney Fees
Finally, LRNRD alleges that this court should reverse the
district court’s award of attorney fees. The court awarded
attorney fees to SBS in the amount of $19,309.08 and to
Seeman in the amount of $26,750.08.
Neb. Rev. Stat. § 25-2165 (Reissue 2016) authorizes attor-
ney fees if a peremptory writ of mandamus is issued. But such
an award is discretionary—the statute provides that “the court
may also award costs and reasonable attorney’s fees.” 69
Because we have determined that the court erred in issu-
ing the writ requested by Seeman, the award of attorney fees
to him is not authorized by § 25-2165 and must be reversed.
On the other hand, we have upheld the issuance of the writ
on behalf of SBS. We cannot say that the court’s decision to
award attorney fees to SBS was an abuse of that discretion.
Thus, we affirm the award of fees to SBS.
VI. CONCLUSION
For the reasons provided above, we conclude the following:
• Where a corporation owns real estate having certified irri-
gated acres under the Nebraska Ground Water Management
and Protection Act, due process requires that the corporation
be served with notice reasonably calculated to inform it of
the subject and issues involved in the proceeding.
• Under § 46-746(1), a reduction of irrigated acres completed
before a person acquires an interest in the real estate is not
affected by the acquisition of such interest.
69 § 25-2165.

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Accordingly, we reverse the judgment, including the award of
attorney fees, in the action brought by Seeman. In the action
brought by SBS, we affirm the district court’s judgment as
modified above.
Judgment in No. S-24-326 reversed.
Judgment in No. S-24-327 affirmed as modified.
Stacy, J., participating on briefs.
Funke, C.J., not participating.