Prokop v. Lower Loup NRD , 302 Neb. 10 ( 2019 )


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  • Nebraska Supreme Court Online Library
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    03/22/2019 01:08 PM CDT
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    Nebraska Supreme Court A dvance Sheets
    302 Nebraska R eports
    PROKOP v. LOWER LOUP NRD
    Cite as 
    302 Neb. 10
    Robert J. Prokop, appellant and cross-appellee,
    v. Lower Loup Natural R esources
    District et al., appellees
    and cross-appellants.
    ___ N.W.2d ___
    Filed January 11, 2019.   No. S-18-082.
    1.	 Administrative Law: Judgments: Appeal and Error. A judgment or
    final order rendered by a district court in a judicial review pursuant to
    the Administrative Procedure Act may be reversed, vacated, or modified
    by an appellate court for errors appearing on the record.
    2.	 ____: ____: ____. When reviewing an order of a district court under
    the Administrative Procedure Act for errors appearing on the record, the
    inquiry is whether the decision conforms to the law, is supported by com-
    petent evidence, and is neither arbitrary, capricious, nor unreasonable.
    3.	 Judgments: Appeal and Error. Whether a decision conforms to law
    is by definition a question of law, in connection with which an appel-
    late court reaches a conclusion independent of that reached by the
    lower court.
    4.	 ____: ____. An appellate court, in reviewing a district court judgment
    for errors appearing on the record, will not substitute its factual find-
    ings for those of the district court where competent evidence supports
    those findings.
    5.	 Natural Resources Districts: Political Subdivisions: Legislature. A
    natural resources district, as a political subdivision, has only that power
    delegated to it by the Legislature, and an appellate court strictly con-
    strues a grant of power to a political subdivision.
    6.	 Natural Resources Districts. A natural resources district possesses and
    can exercise the following powers and no others: first, those granted
    in express words; second, those implied in or incident to the powers
    expressly granted; and third, those essential to the declared objects and
    purposes of the district—not simply convenient, but indispensable.
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    Nebraska Supreme Court A dvance Sheets
    302 Nebraska R eports
    PROKOP v. LOWER LOUP NRD
    Cite as 
    302 Neb. 10
    7.	 Administrative Law. Generally, for purposes of construction, a rule or
    order of an administrative agency or political subdivision is treated like
    a statute.
    8.	 ____. Absent a statutory or regulatory indication to the contrary, lan-
    guage contained in a rule or regulation is to be given its plain and ordi-
    nary meaning.
    9.	 ____. A rule is open for construction only when the language used
    requires interpretation or may reasonably be considered ambiguous.
    10.	 Administrative Law: Political Subdivisions: Appeal and Error. An
    appellate court accords deference to an agency or political subdivision’s
    interpretation of its own rules unless plainly erroneous or inconsistent.
    11.	 Statutes. A court must attempt to give effect to all parts of a statute,
    and if it can be avoided, no word, clause, or sentence will be rejected as
    superfluous or meaningless.
    12.	 Statutes: Words and Phrases. In statutory interpretation, “shall,” as
    a general rule, is considered mandatory and inconsistent with the idea
    of discretion.
    13.	 Due Process. Due process principles protect individuals from arbitrary
    deprivation of life, liberty, or property without due process of law.
    14.	 ____. Procedural due process claims require a two-step analysis: (1)
    whether the plaintiff has asserted a life, liberty, or property interest that
    is protected by the Due Process Clause and (2) whether the plaintiff was
    deprived of that interest without sufficient process.
    15.	 Administrative Law: Due Process. A party appearing in an adjudica-
    tion hearing before an agency or tribunal is entitled to due process pro-
    tections similar to those given to litigants in a judicial proceeding.
    16.	 Due Process: Notice. Due process does not guarantee an individual
    any particular form of state procedure. Instead, the requirements of due
    proc­ess are satisfied if a person has reasonable notice and an oppor-
    tunity to be heard appropriate to the nature of the proceeding and the
    character of the rights which might be affected by it.
    17.	 Administrative Law: Due Process: Notice: Evidence. In proceedings
    before an administrative agency or tribunal, procedural due process
    requires notice, identification of the accuser, factual basis for the accusa-
    tion, reasonable time and opportunity to present evidence concerning the
    accusation, and a hearing before an impartial board.
    18.	 Due Process: Notice. Due process requires notice reasonably calculated
    to inform the party to the action of the subject and issues involved in
    the proceeding.
    19.	 Administrative Law. While similar to a judicial proceeding, an adju-
    dication hearing before an agency does not guarantee an individual any
    particular form of state procedure.
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    Nebraska Supreme Court A dvance Sheets
    302 Nebraska R eports
    PROKOP v. LOWER LOUP NRD
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    302 Neb. 10
    20.	 ____. Administrative bodies have the authority to provide discovery
    which must be exercised judicially and not arbitrarily.
    21.	 Due Process: Property: Notice. Due process involving deprivation of
    a significant property interest requires notice and an opportunity to be
    heard that is appropriate to the nature of the case.
    22.	 Due Process: Notice: Time. Due process depends on, in part, whether
    the notice was sufficient to provide the party a reasonable opportunity to
    confront and cross-examine adverse witnesses and present evidence.
    23.	 Administrative Law: Due Process: Natural Resources Districts:
    Notice. Due process does not require that a natural resources district
    provide notice of its specific evidence to a party prior to a hearing.
    24.	 Property. A takings analysis begins with an examination of the nature
    of the owner’s property interest.
    25.	 Waters. Ground water, as defined by Neb. Rev. Stat. § 46-706 (Reissue
    2010), is owned by the public, and the only right held by an overlying
    landowner is in the use of the ground water.
    26.	 Constitutional Law: Waters: Appurtenances: Property. The right of
    an owner of overlying land to use ground water is an appurtenance con-
    stituting property protected by Neb. Const. art. I, § 21.
    27.	 Waters: Public Policy. Through its police power, the State has the
    power to determine public policy with regard to ground water and can
    alter the common law governing the use of ground water.
    28.	 Property: Constitutional Law. The appropriate exercise of police
    power occurs where an owner is denied the unrestricted use or enjoy-
    ment of his property, or his property is taken from him, because his use
    or enjoyment of such property is injurious to the public welfare.
    29.	 Waters. Appropriate use of police power includes that the State place
    limitations on the withdrawals of ground water in times of shortage.
    30.	 Administrative Law: Appeal and Error. In a de novo review on the
    record of an administrative order, the district court is required to make
    independent factual determinations based upon the record, and the court
    reaches its own independent conclusions with respect to the matters
    at issue.
    Appeal from the District Court for Valley County: K arin L.
    Noakes, Judge. Affirmed.
    Brian C. Buescher and Dwyer Arce, of Kutak Rock, L.L.P.,
    for appellant.
    Blake E. Johnson and Katherine J. Spohn, of Bruning Law
    Group, for appellees.
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    Nebraska Supreme Court A dvance Sheets
    302 Nebraska R eports
    PROKOP v. LOWER LOUP NRD
    Cite as 
    302 Neb. 10
    Donald G. Blankenau and Kennon G. Meyer, of Blankenau,
    Wilmoth & Jarecke, L.L.P., for amicus curiae Nebraska
    Groundwater Coalition.
    Heavican, C.J., Cassel, Stacy, Funke, and Papik, JJ.
    Funke, J.
    Robert J. Prokop appeals from the district court’s order
    affirming the findings and modifying a cease and desist order
    of the Lower Loup Natural Resources District (LLNRD) Board
    directing Prokop to suspend use of ground water wells for
    noncompliance with LLNRD’s annual reporting requirements.
    Prokop challenges LLNRD’s authority under the Nebraska
    Ground Water Management and Protection Act (GWMPA)1 and
    LLNRD rules which require operators to provide actual crop
    yield data in their annual reports and to impose sanctions for
    noncompliance with LLNRD reporting requirements. Prokop
    further argues that LLNRD failed to provide him sufficient
    due process in its proceedings on whether he complied with
    LLNRD reporting requirements and that LLNRD’s suspen-
    sion of his ground water rights constituted a taking without
    just compensation. Prokop additionally challenges the district
    court’s refusal to receive certain exhibits during his appeal to
    the district court and its failure to award him attorney fees.
    LLNRD and the board cross-appeal and argue the district
    court improperly reduced the duration of Prokop’s suspen-
    sion of ground water access. For the reasons set forth herein,
    we affirm.
    I. BACKGROUND
    LLNRD is a natural resources district (NRD) authorized by
    GWMPA to regulate certain activities which may contribute to
    ground water contamination due to nitrate nitrogen and other
    contaminants.2 GWMPA enables NRD’s to establish ground
    1
    See Neb. Rev. Stat. §§ 46-701 to 46-756 (Reissue 2010 & Cum. Supp.
    2016).
    2
    § 46-704.
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    PROKOP v. LOWER LOUP NRD
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    302 Neb. 10
    water management areas for the protection of ground water
    quality.3 GWMPA requires NRD’s to maintain a ground water
    management plan that, among other obligations and to the
    extent possible, identifies the levels and sources of ground
    water contamination within the district; ground water quality
    goals; long-term solutions necessary to prevent the levels of
    ground water contaminates from becoming too high and to
    reduce high levels sufficiently to eliminate health hazards; and
    practices recommended to stabilize, reduce, and prevent the
    occurrence, increase, or spread of ground water contamina-
    tion.4 GWMPA authorizes NRD’s to adopt rules and regulations
    necessary to discharge the administrative duties assigned under
    GWMPA and to require such reports from ground water users
    as may be necessary.5 GWMPA provides that a ground water
    user who violates any controls, rules, or regulations “shall be
    subject to the imposition of penalties imposed through the con-
    trols adopted by the district, including, but not limited to, hav-
    ing any allocation of water granted or irrigated acres certified
    by the district reduced in whole or in part.”6 Cease and desist
    orders may also be issued by NRD’s against ground water
    users following 3 days’ notice to the person affected stating the
    contemplated action and, in general, the grounds for the action
    and following a reasonable opportunity to be heard.7
    Pursuant to GWMPA directives, LLNRD established a
    ground water management area comprising a large portion
    of its geographical area, adopted water quality and pollution
    control as one of its goals, and enacted rules and regulations to
    implement its obligations under GWMPA. Rule 7 of LLNRD’s
    “Groundwater Management Area Rules & Regulations”
    directs that LLNRD is divided into 28 ground water quality
    3
    §   46-712(1)(b).
    4
    §   46-709.
    5
    §   46-707(1).
    6
    §   46-746(1).
    7
    §   46-707(1)(h). See, also, § 46-746(1).
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    management subareas and provides that each subarea may be
    subject to water quality controls in three separate phases based
    upon median nitrate nitrogen levels. Under “Phase III,” rule
    7 directs that an operator—a person with direct control over
    day-to-day farming operations of the land—must, among other
    obligations, “[s]ubmit, on forms provided by [LLNRD], a
    report of yearly water tests, flow meter reading, water applied,
    soil tests, crops planted, yield goals, nitrogen applied, and other
    field operations required prior to January 31st . . . .” The forms
    which LLNRD provides to operators require specific informa-
    tion of farming operations, including number of acres, the crop
    planted, expected yield, nitrogen readings and application,
    water applied, irrigation date, and actual crop yield. Operators
    are also required to sign and date the forms. To enforce compli-
    ance with this obligation and other controls, rules, and regula-
    tions adopted by LLNRD, rule 2 provides:
    [LLNRD] shall have the authority to enforce these rules
    and regulations for the . . . protection of groundwater
    quality . . . by issuing cease and desist orders in accord­
    ance with the procedure hereinafter specified and by
    bringing appropriate actions in the District Court for the
    county in which any violations occur for enforcement of
    such orders.
    Since 1962, Prokop has operated a farm on property he
    owns within LLNRD’s regulated area in which he irrigates a
    significant portion of his crops. Prokop’s property is within a
    phase III subarea of the district, and he is required to submit
    yearly reports to LLNRD on its forms provided.
    In 2013, prior to the actions underlying the present case,
    Prokop was subject to an enforcement action by LLNRD in
    the district court for Nance County under case No. CI 13-01.
    LLNRD initiated that case against Prokop for illegal wells and
    failure to submit completed forms for 2010 and 2011 by not
    providing the actual crop yield data for those years. The district
    court found Prokop in violation of LLNRD’s reporting require-
    ments and ordered him to provide the required reports.
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    Nebraska Supreme Court A dvance Sheets
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    PROKOP v. LOWER LOUP NRD
    Cite as 
    302 Neb. 10
    1. A dministrative Action
    The instant case involves Prokop’s annual reports from
    2015 and 2016 and arose from LLNRD concerns about miss-
    ing information from those reports, including actual crop
    yield data, irrigation data, nitrogen application, and dates and
    signatures. Due to these concerns, LLNRD’s board voted in
    April 2017 to file a complaint against Prokop and issued a
    “Notice of Intent to Issue Cease and Desist Order and Impose
    Penalties for Failing to Submit Annual Reporting” which was
    served on Prokop on May 2. In the notice, LLNRD alleged that
    Prokop “failed to submit timely and complete annual reports
    . . . for the [2015 and] 2016 crop year[s],” that “LLNRD sent
    multiple notice to [Prokop] requesting he submit the annual
    reports,” and that “LLNRD has reason to believe [Prokop]
    has intentionally and repeatedly violated the annual reporting
    requirements.” LLNRD stated its belief that Prokop “should
    be subject to penalties pursuant to the GWMPA and a cease
    and desist order should be issued.” The notice additionally
    provided that Prokop “has until June 1, 2017 to submit the
    complete annual reports” and informed Prokop of “LLNRD’s
    intention to enforce the penalty provisions of the GWMPA in
    the event [Prokop] fails to submit timely and complete annual
    reporting in accordance with this Notice.” In particular, the
    notice stated LLNRD’s intention to “de-certify [Prokop’s] irri-
    gated acres” and “seek maximum civil penalties.” The notice
    also informed Prokop that “a hearing is scheduled regarding
    this Notice at 5:00 p.m. on May 25, 2017,” “[t]he hearing
    shall be conducted on the record,” Prokop “will be given
    the opportunity to present any evidence or testimony he may
    have with respect to the violations identified in this Notice,”
    Prokop may appear through counsel, and the board will deter-
    mine whether a cease and desist order should be issued based
    on the record developed at the hearing.
    A hearing before the board on LLNRD’s notice was held
    on May 25, 2017. At the hearing, LLNRD offered and the
    board received a copy of LLNRD’s ground water rules and
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    Nebraska Supreme Court A dvance Sheets
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    PROKOP v. LOWER LOUP NRD
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    regulations, a blank “Groundwater Management Area Annual
    Report Form,” the notice, the return of service of the notice,
    proofs of publication of the notice, the complaint and order in
    case No. CI 13-01, Prokop’s “Groundwater Management Area
    Annual Report Form” for the 2015 crop year, and Prokop’s
    “Groundwater Management Area Annual Report Form” for the
    2016 crop year.
    LLNRD presented testimony from the assistant general man-
    ager of LLNRD. He testified to the rules and regulations
    adopted by LLNRD. He explained Prokop’s property is within
    a subarea of the district that is designated “Phase III” and the
    rules that apply to the property, including Prokop’s annual
    reporting obligations as the operator.
    LLNRD also presented testimony from an agronomy tech-
    nician for LLNRD. He testified that the subarea in which
    Prokop’s land is located has an issue with ground water
    nitrates which are unsafe for consumption at certain levels.
    He explained that the purpose of LLNRD’s annual reports is
    to record nitrogen characteristics and develop a plan to reduce
    nitrate contamination. He testified that actual crop yield data
    is part of the factors that record nitrogen characteristics as it
    helps determine how many pounds of nitrogen are removed
    from the field.
    The agronomy technician testified that he reviewed Prokop’s
    2015 and 2016 reports and that the 2015 report was incom-
    plete, because it failed to indicate an actual crop yield and
    was missing a signature, and that the 2016 report was late and
    incomplete, because it failed to indicate actual crop yields,
    failed to provide the irrigation data, failed to provide the nitro-
    gen applications, and was not signed or dated. He explained
    that Prokop’s reporting insufficiencies are ongoing and that
    LLNRD has had issues with the quality of Prokop’s reporting
    since 2009.
    Prokop presented no evidence or witnesses, but he made
    factual arguments during the hearing and cross-examined both
    LLNRD witnesses. Prokop stipulated to the receipt of the
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    notice and acknowledged publication in the newspapers of
    general circulation within the district. However, Prokop repeat-
    edly objected to the hearing, arguing that he was not provided
    LLNRD’s evidence with sufficient time prior to the hearing to
    enable a fair opportunity to develop his defense. He addition-
    ally challenged the applicability of the reports’ actual crop
    yield requirements, stating he “has long taken the position
    that the LLNRD’s demand that farmers provide actual yield
    information is unnecessary from a scientific standpoint and the
    request for such information is a governmental overreach not
    allowed or required by law.”8
    After the presentation of evidence and argument by the par-
    ties, LLNRD’s board took the matter under advisement and
    delayed any action until June 22, 2017, the next regularly
    scheduled meeting. The delay allowed Prokop additional time
    to meet the June 1 deadline set out in the notice to Prokop.
    However, Prokop failed to complete the reports and the board
    voted at the June 22 meeting to find Prokop had violated
    LLNRD reporting rules by failing to submit timely and com-
    plete reports for the 2015 and 2016 crop years.
    Pursuant to its vote on June 29, 2017, LLNRD’s board exe-
    cuted a cease and desist order to impose penalties, which order
    was served on Prokop July 6. Through this order, the board
    found the following: Prokop’s land was located in a phase III
    subarea; Prokop’s 2015 annual report failed to include data
    on actual crop yields, nitrogen application, and a signature;
    and Prokop’s 2016 annual report was filed after the January
    31 deadline and failed to include data on actual crop yields,
    nitrogen application, water applied, and Prokop’s signature.
    The order also noted Prokop’s history of noncompliance with
    LLNRD’s reporting requirements. In consideration of its find-
    ings and Prokop’s noncompliant history, the board ordered:
    1) [Prokop] and all heirs, successors, assigns, or agents
    cease and desist the use of all groundwater irrigation
    8
    Brief for appellant at 17.
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    wells on the Property for a period of four (4) years
    commencing January 1, 2018 and continuing through
    December 31, 2021;
    2) [Prokop] to submit complete annual report forms
    for the Property for the 2015 crop year and the 2016 crop
    year by January 31, 2018; and
    3) [Prokop] to submit timely and complete annual
    report forms for the Property for all subsequent crop
    years.
    2. A ppeal to District Court
    Prokop filed a pro se petition for review in the district court
    in June 2017, prior to the board’s executing the cease and
    desist order. After obtaining counsel, Prokop filed an amended
    petition in July, claiming: the cease and desist order was not
    supported by the evidence; LLNRD’s hearing and actions were
    not conducted in accordance with Nebraska law, LLNRD’s
    rules and regulations, and the requirements of due process;
    the board’s order was in violation of Nebraska law, LLNRD’s
    rules and regulations, and the requirements of due process; the
    cease and desist order constituted a taking without just com-
    pensation and the due process required for such action; and
    the cease and desist order was issued for reasons not allowed
    by law.
    At a hearing on Prokop’s amended petition, Prokop offered
    exhibits 4 and 5 to support his claims that LLNRD’s actions,
    the hearing, and the cease and desist order were in violation
    of his due process rights. LLNRD objected to these exhibits
    because they were not part of the administrative record, while
    Prokop argued these exhibits fell within an exception for evi-
    dence showing a procedural due process violation.
    Exhibit 4 was an affidavit from Mitch Husmann, a location
    manager for a co-op, who sold Prokop and his tenants fertil-
    izer and assisted Prokop in filling out the annual reports for
    LLNRD. Husmann explained that he would work with Prokop
    to fill out the reports, Prokop would sign them, and they would
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    be delivered to LLNRD. While this is what occurred in 2015,
    Husmann provided that the typical procedure was interrupted
    in 2016 because Prokop’s new tenant purchased fertilizer
    through another sales representative. Therefore, Husmann did
    not have all the information necessary to fill out Prokop’s
    forms, so he filled out what he could and delivered the incom-
    plete 2016 report to LLNRD in mid-January under the under-
    standing that Prokop would come in to complete it.
    Exhibit 5 was an affidavit from Prokop detailing his rela-
    tionship with Husmann and explaining that he was unaware
    until the hearing that the typical procedure was not followed
    for the 2016 report due to his tenant’s using a different sales
    representative. The affidavit also asserted that Prokop believed
    the notice concerned only his refusal to provide actual crop
    yield data and that the notice failed to mention the 2016 reports
    were not signed and submitted in the same manner Husmann
    had submitted previous reports.
    The district court entered an order on the petition in
    January 2018. The court stated that exhibits 4 and 5 were
    not received because they are outside the scope of the offi-
    cial record. The order then affirmed the cease and desist
    order’s findings. First, the court determined LLNRD rules
    and GWMPA enable LLNRD to require actual crop yield
    data on its annual reports as “‘other field operations’” and
    suspend ground water rights for noncompliance. Second, the
    court determined LLNRD complied with its due process obli-
    gations. Specifically, the court found the notice adequately
    informed Prokop of the purpose of the hearing and the alle-
    gations against him. Because the court found Prokop was
    informed of the purpose of the hearing and the court’s under-
    standing that due process does not require notice of evidence
    to be presented at an administrative hearing, the court found
    Prokop was not denied due process as a result of insufficient
    notice from LLNRD of the evidence it would present. The
    court also found the order’s factual findings were supported
    by the evidence. Finally, the court determined the purpose of
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    the annual reports serves a substantial and legitimate govern-
    ment interest in preventing ground water contamination and,
    therefore, the cease and desist order is an appropriate exercise
    of police power that does not deprive Prokop of property
    rights without just compensation.
    However, the district court’s order modified the cease and
    desist order’s penalty. The district court found the suspen-
    sion of 4 years to be an unreasonable use of LLNRD’s police
    power under the facts of the case and determined the public
    health and welfare could be preserved by imposing a less
    severe restriction. Therefore, the court modified the penalty
    from the 4-year suspension of Prokop’s ground water rights
    to a 1-year suspension with the possibility of 3 additional
    years if Prokop continues to violate LLNRD’s reporting
    requirements.
    II. ASSIGNMENTS OF ERROR
    Prokop assigns, restated, that the district court erred in
    affirming the board’s order and determining (1) LLNRD had
    the authority under LLNRD rules and GWMPA to require
    Prokop to provide information in his annual reports, includ-
    ing actual crop yield data; (2) LLNRD had the authority under
    LLNRD rules and GWMPA to impose a suspension of ground
    water access as a penalty for noncompliance with LLNRD
    rules; (3) LLNRD did not violate Prokop’s right to procedural
    due process and deny him a reasonable opportunity to be
    heard; (4) LLNRD did not erroneously limit the possibility of
    competent judicial review by violating Prokop’s due process
    rights; and (5) LLNRD’s suspension of Prokop’s ground water
    access did not constitute a taking without just compensa-
    tion. Prokop also assigns the district court erred in sustaining
    LLNRD’s objection to Prokop’s exhibits 4 and 5 and failing to
    award Prokop attorney fees.
    LLNRD and the board assign on cross-appeal that the dis-
    trict court erred in modifying the duration of the penalty
    imposed by LLNRD.
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    III. STANDARD OF REVIEW
    [1,2] A judgment or final order rendered by a district court
    in a judicial review pursuant to the Administrative Procedure
    Act (APA) may be reversed, vacated, or modified by an appel-
    late court for errors appearing on the record.9 When reviewing
    an order of a district court under the APA for errors appearing
    on the record, the inquiry is whether the decision conforms to
    the law, is supported by competent evidence, and is neither
    arbitrary, capricious, nor unreasonable.10
    [3,4] Whether a decision conforms to law is by definition a
    question of law, in connection with which an appellate court
    reaches a conclusion independent of that reached by the lower
    court.11 An appellate court, in reviewing a district court judg-
    ment for errors appearing on the record, will not substitute its
    factual findings for those of the district court where competent
    evidence supports those findings.12
    IV. ANALYSIS
    1. LLNRD Authority to R equire
    Actual Crop Yield Data
    Prokop first assigns the district court erred in determining
    LLNRD had authority to require Prokop to provide actual crop
    yield data.
    [5,6] LLNRD, as a political subdivision, has only that power
    delegated to it by the Legislature, and we strictly construe
    a grant of power to a political subdivision.13 An NRD pos-
    sesses and can exercise the following powers and no others:
    first, those granted in express words; second, those implied in
    9
    Medicine Creek v. Middle Republican NRD, 
    296 Neb. 1
    , 
    892 N.W.2d 74
          (2017).
    10
    
    Id. 11 Stejskal
    v. Department of Admin. Servs., 
    266 Neb. 346
    , 
    665 N.W.2d 576
          (2003).
    12
    
    Id. 13 Medicine
    Creek, supra note 9.
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    or incident to the powers expressly granted; and third, those
    essential to the declared objects and purposes of the district—
    not simply convenient, but indispensable.14
    As stated above, GWMPA directs NRD’s to regulate certain
    activities which may contribute to ground water contamina-
    tion due to nitrate nitrogen and other contaminants.15 GWMPA
    authorizes NRD’s to adopt rules and regulations necessary to
    discharge the administrative duties assigned under GWMPA,
    require such reports from ground water users as may be neces-
    sary, and issue cease and desist orders to enforce any provi-
    sions of GWMPA.16
    LLNRD rule 7 directs that each subarea of the district may
    be subject to water quality controls in three separate phases
    based upon median nitrate nitrogen levels. Under phase III, the
    phase Prokop’s land was designated, rule 7 directs that an oper-
    ator must “[s]ubmit, on forms provided by [LLNRD], a report
    of yearly water tests, flow meter reading, water applied, soil
    tests, crops planted, yield goals, nitrogen applied, and other
    field operations required prior to January 31st . . . .” Among
    other information, the forms which LLNRD provides to opera-
    tors require actual crop yield data.
    Prokop claims rule 7 fails to authorize LLNRD to collect
    actual crop yield data, because the rule does not include it in
    the list of operators’ reporting obligations. Prokop also argues
    that actual crop yield data was not implicitly included under
    the phrase “other field operations,” because actual yield data
    is not an operation.
    [7-10] Generally, for purposes of construction, a rule or order
    of an administrative agency or political subdivision is treated
    like a statute.17 Absent a statutory or regulatory indication to
    14
    
    Id. 15 §
    46-704.
    16
    § 46-707(1).
    17
    See Nebraska Protective Servs. Unit v. State, 
    299 Neb. 797
    , 
    910 N.W.2d 767
    (2018).
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    the contrary, language contained in a rule or regulation is to
    be given its plain and ordinary meaning.18 A rule is open for
    construction only when the language used requires interpreta-
    tion or may reasonably be considered ambiguous.19 We accord
    deference to an agency or political subdivision’s interpretation
    of its own rules unless plainly erroneous or inconsistent.20
    Here, LLNRD’s interpretation of “other field operations”
    to include actual crop yield data is not inconsistent or plainly
    erroneous. The use of “other field operations” requires inter-
    pretation, and LLNRD has interpreted it to include data on
    actual crop yield. In the blank “Groundwater Management
    Area Annual Report Form,” as well as Prokop’s reports from
    crop years 2015 and 2016, LLNRD asks for actual crop
    yield data along with other information from operators’ farm-
    ing operations. LLNRD’s agronomy technician testified that
    requiring actual crop yield is important to LLNRD’s adopted
    goals of water quality and pollution control and LLNRD’s
    obligations under GWMPA to implement these goals. He testi-
    fied that the actual crop yield data is used in connection with
    the other farming operations data to record nitrogen charac-
    teristics and develop a plan to reduce nitrate contamination,
    because actual crop yield data helps determine how many
    pounds of nitrogen are removed from the field. LLNRD, in
    requiring the data on the reports, clearly interpreted “other
    field operations” to encompass actual crop yield data, which is
    supported by LLNRD’s utilization of the data in implementing
    its statutory duties.
    Prokop contends that interpreting “other field operations” to
    include actual crop yield data is inconsistent with a plain read-
    ing of rule 7, because actual crop yield data is not an opera-
    tion. However, such a reading is incorrect. Rule 7 lists specific
    field operations, including items such as “soil tests” and “yield
    18
    
    Id. 19 Id.
    20
    See 
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    goals.” If actual crop yield data, which is the end product
    of field operations, is not field operations data, than neither
    would soil tests as the state of the soil during field operations
    or yield goals which are what operators believe they will pro-
    duce through field operations even though soil tests and yield
    goals are explicitly included in the list of required field opera-
    tions data.
    Prokop additionally contends that interpreting “other field
    operations” to include actual crop yield data is inconsistent
    and plainly erroneous, because the purpose of rule 7 is to
    implement LLNRD’s goals of water quality and pollution
    control through the reduction of nitrogen contamination, and
    actual crop yield data is unnecessary to do so. However, we
    cannot say that requiring actual crop yield data is clearly
    erroneous to reducing nitrogen contamination. Moreover, the
    record contains testimony on how actual yield data is relevant
    to a determination of nitrogen levels removed from the soil
    and how it is helpful to LLNRD and operators in determining
    other relevant data required in the annual reporting. Thus, on
    the record before us, we cannot say the interpretation of “other
    field operations” to include actual crop yield data was incon-
    sistent and plainly erroneous due its relationship to LLNRD’s
    stated goals.
    In consideration of all of the above, the district court did not
    err in determining LLNRD had the authority to require actual
    crop yield data.
    2. LLNRD Authority to Impose Suspension
    of Ground Water Access
    Prokop next assigns the district court erred in determining
    LLNRD had authority to impose a suspension of ground water
    access for a violation of LLNRD reporting requirements.
    Under § 46-707(1), NRD’s may adopt rules and regulations
    necessary to discharge the administrative duties assigned under
    GWMPA; require such reports from ground water users as may
    be necessary; and issue cease and desist orders to enforce any
    provisions of GWMPA.
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    Under § 46-746(1), any person who violates any controls,
    rules, or regulations “shall be subject to the imposition of
    penalties imposed through the controls adopted by the district,
    including, but not limited to, having any allocation of water
    granted or irrigated acres certified by the district reduced in
    whole or in part.”
    Additionally, LLNRD enacted rule 2, which addresses
    enforcement of noncompliance with LLNRD rules and regula-
    tions and GWMPA. Rule 2 provides:
    [LLNRD] shall have the authority to enforce these rules
    and regulations for the . . . protection of groundwater
    quality . . . by issuing cease and desist orders in accord­
    ance with the procedure hereinafter specified and by
    bringing appropriate actions in the District Court for the
    county in which any violations occur for enforcement of
    such orders.
    Prokop contends the language of § 46-746(1) that
    [a]ny person who violates . . . any controls, rules, or
    regulations adopted by [an NRD] relating to a manage-
    ment area shall be subject to the imposition of penalties
    imposed through the controls adopted by the district,
    including, but not limited to, having any allocation of
    water granted or irrigated acres certified by the district
    reduced in whole or in part
    requires LLNRD to adopt rules and regulations that specifi-
    cally list the penalties available. Further, Prokop argues, such
    an interpretation required LLNRD to adopt rules and regula-
    tions which explained that a violation of LLNRD reporting
    requirements could result in the allocation of ground water
    reduced in whole or in part.
    [11] Contrary to Prokop’s argument, a “penalty” and a
    “control” under GWMPA are separate and distinct terms.
    A court must attempt to give effect to all parts of a statute,
    and if it can be avoided, no word, clause, or sentence will
    be rejected as superfluous or meaningless.21 The inclusion
    21
    Wisner v. Vandelay Investments, 
    300 Neb. 825
    , 
    916 N.W.2d 698
    (2018).
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    of both terms leads to the determination that the words are
    not synonymous.
    Section 46-746(1) enables an NRD to enforce a ground
    water user’s obligations under GWMPA and the rules and regu-
    lations of an NRD by imposing penalties, including, but not
    limited to, having any allocation of water granted or irrigated
    acres certified by the district reduced in whole or in part by
    utilizing the procedure adopted in the rules and regulations of
    an NRD. Section 46-746(1) does not require an NRD to restate
    in its rules and regulations that a violation could result in a
    reduction of ground water access. Instead, § 46-746(1) articu-
    lates one specific penalty which an NRD can impose upon the
    violator—the reduction of allocated water. As to the controls
    adopted by an NRD, in this case, LLNRD adopted rule 2,
    which enables LLNRD to issue cease and desist orders follow-
    ing the procedure outlined in the subsequent rules.
    [12] Such a determination aligns with our opinions in Loup
    City Pub. Sch. v. Nebraska Dept. of Rev.22 and Goodyear
    Tire & Rubber Co. v. State.23 In Loup City Pub. Sch., we
    addressed the question of whether the Department of Revenue
    was required to promulgate rules and regulations under Neb.
    Rev. Stat. § 79-3809 (Reissue 1994).24 We concluded that
    the department was required to do so.25 That statute, which
    has since been amended and recodified, provided in relevant
    part: “Establishment of the adjusted valuation shall be based
    on assessment practices established by rule and regulation
    adopted and promulgated by the Department of Revenue.”26
    We noted that in statutory interpretation, “shall,” as a general
    22
    Loup City Pub. Sch. v. Nebraska Dept. of Rev., 
    252 Neb. 387
    , 
    562 N.W.2d 551
    (1997).
    23
    Goodyear Tire & Rubber Co. v. State, 
    275 Neb. 594
    , 
    748 N.W.2d 42
          (2008).
    24
    Loup City Pub. Sch., supra note 22.
    25
    
    Id. 26 §
    79-3809(1) (now codified at Neb. Rev. Stat. § 79-1016 (Supp. 2017)).
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    rule, is considered mandatory and inconsistent with the idea
    of discretion.27 Thus, under the plain language of that statute,
    the department was required to adopt and promulgate rules
    and regulations to regulate the valuation process.28 Because the
    department had not adopted and promulgated rules and regula-
    tions governing the valuation process, we concluded that the
    adjusted valuations of the department were not in conformity
    with the law.29
    In contrast, in Goodyear Tire & Rubber Co., we addressed
    whether the State Tax Commissioner was required to promul-
    gate rules and regulations under Neb. Rev. Stat. § 77-4111
    (Reissue 2003) to define “qualified property,” a term utilized in
    the Employment and Investment Growth Act.30 Section 77-4111
    provides that the commissioner “shall adopt and promulgate all
    rules and regulations necessary to carry out the purposes of
    the Employment and Investment Growth Act.” In conclud-
    ing the commissioner was not required to establish rules and
    regulations regarding its interpretation of “qualified property,”
    we noted the language in § 77-4111 required the adoption and
    promulgation of “only those rules that are necessary for carry-
    ing out the purposes” of the act.31
    While § 46-707(1)(a) authorizes the adoption and promulga-
    tion of rules necessary to discharge the administrative duties
    assigned in GWMPA, § 46-746(1) establishes that the penal-
    ties for violations under GWMPA and rules and regulations of
    an NRD include reducing the violator’s ground water access
    in whole or in part. As such, we conclude that it is unneces-
    sary for LLNRD to promulgate rules and regulations restat-
    ing the potential for LLNRD to restrict a violator’s ground
    water access.
    27
    Loup City Pub. Sch., supra note 22.
    28
    
    Id. 29 Id.
    30
    Goodyear Tire & Rubber 
    Co., supra
    note 23.
    31
    
    Id. at 601,
    748 N.W.2d at 49.
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    In consideration of the above, the district court did not err
    in determining LLNRD had the authority to suspend Prokop’s
    ground water access under § 46-746(1).
    3. Procedural Due Process
    Prokop assigns LLNRD violated his due process rights by
    not providing him adequate notice of the charges against him
    and of the evidence to be presented.
    [13,14] Due process principles protect individuals from arbi-
    trary deprivation of life, liberty, or property without due proc­
    ess of law.32 Procedural due process claims require a two-step
    analysis: (1) whether the plaintiff has asserted a life, liberty, or
    property interest that is protected by the Due Process Clause
    and (2) whether the plaintiff was deprived of that interest
    without sufficient process.33 Here, Prokop’s interest in the use
    of ground water is a property interest that is under due proc­
    ess protections.34 Therefore, the issue is whether Prokop was
    deprived of that interest without sufficient process.
    [15-17] A party appearing in an adjudication hearing before
    an agency or tribunal is entitled to due process protections
    similar to those given to litigants in a judicial proceeding.35
    Due process does not guarantee an individual any particular
    form of state procedure. Instead, 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 pro-
    ceeding and the character of the rights which might be affected
    by it.36 In proceedings before an administrative agency or tri-
    bunal, procedural due process requires notice, identification of
    the accuser, factual basis for the accusation, reasonable time
    32
    Cain v. Custer Cty. Bd. of Equal., 
    298 Neb. 834
    , 
    906 N.W.2d 285
    (2018).
    See, also, U.S. Const. amends. V and XIV; Neb. Const. art. I, § 3.
    33
    White v. Busboom, 
    297 Neb. 717
    , 
    901 N.W.2d 294
    (2017).
    34
    See Sorensen v. Lower Niobrara Nat. Resources Dist., 
    221 Neb. 180
    , 
    376 N.W.2d 539
    (1985) (superseded by statute on other grounds).
    35
    Cain, supra note 32.
    36
    
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    and opportunity to present evidence concerning the accusation,
    and a hearing before an impartial board.37
    (a) Notice of Factual Basis for
    LLNRD’s Accusations
    In its notice, LLNRD alleged that Prokop “failed to submit
    timely and complete annual reports . . . for the [2015 and] 2016
    crop year[s],” that “LLNRD sent multiple notice to [Prokop]
    requesting he submit the annual reports,” and that “LLNRD
    has reason to believe [Prokop] has intentionally and repeatedly
    violated the annual reporting requirements.” The notice stated
    LLNRD’s belief that Prokop “should be subject to penalties
    pursuant to the GWMPA and a cease and desist order should
    be issued” for the violation. The notice additionally provided
    that Prokop “has until June 1, 2017 to submit the complete
    annual reports” and informed Prokop of “LLNRD’s intention
    to enforce the penalty provisions of the GWMPA in the event
    [Prokop] fails to submit timely and complete annual reporting
    in accordance with this Notice.” In particular, the notice stated
    LLNRD’s intention to “de-certify [Prokop’s] irrigated acres”
    and “seek maximum civil penalties.” The notice also informed
    Prokop that “a hearing is scheduled regarding this Notice at
    5:00 p.m. on May 25, 2017,” “[t]he hearing shall be conducted
    on the record,” Prokop “will be given the opportunity to pre­
    sent any evidence or testimony he may have with respect to
    the violations identified in this Notice,” Prokop may appear
    through counsel, and the board will determine whether a cease
    and desist order should be issued based on the record devel-
    oped at the hearing.
    Prokop acknowledges the notice accused Prokop of
    “‘fail[ing] to submit timely and complete annual reports,’”
    but claims that the notice provided no factual basis as to
    what it alleged was deficient in the reports.38 Instead, Prokop
    37
    Stenger v. Department of Motor Vehicles, 
    274 Neb. 819
    , 
    743 N.W.2d 758
          (2008).
    38
    Brief for appellant at 26.
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    claims he was unaware of LLNRD’s allegations of missing
    signatures, dates, irrigation data, and nitrogen application until
    the hearing. Prokop argues that without such explanation of
    deficiencies, he was deprived of the opportunity to gather evi-
    dence and present witnesses on the precise allegations and was
    prevented from taking action to correct any deficiency before
    the hearing.
    [18] However, contrary to Prokop’s claim, the notice was
    sufficient to inform Prokop of LLNRD’s claims and support-
    ing factual allegations. Due process requires notice reasonably
    calculated to inform the party to the action of the subject and
    issues involved in the proceeding.39 LLNRD’s notice alleged
    Prokop “failed to submit timely and complete annual reports”
    for 2015 and 2016 and that Prokop “intentionally and repeat-
    edly violated the annual reporting requirements.” These allega-
    tions informed Prokop that the reports for 2015 and 2016 were
    deficient and incomplete. The deficiencies of missing annual
    yield data, nitrogen application, water applied, and Prokop’s
    signatures were apparent on the face of the reports listed in
    the notice.
    Prokop relies upon our decision in Blanchard v. City of
    Ralston 40 to support his contention that the notice of LLNRD’s
    claims and supporting factual allegations were insufficient. In
    Blanchard, a city determined that a vacant house was a public
    nuisance and that its nonremedy was an immediate emergency.
    The city posted a notice on the house alleging only that the
    building was an unsafe nuisance because of an “odor and
    health-related hazards” and that the owner had 3 days to repair
    or demolish it before the city would subsequently demolish the
    house itself.41 The owner received no other notice and was only
    made aware of the posted notice after the 3-day period lapsed
    39
    Robinson v. Morrill Cty. Sch. Dist. #63, 
    299 Neb. 740
    , 
    910 N.W.2d 752
          (2018).
    40
    Blanchard v. City of Ralston, 
    251 Neb. 706
    , 
    559 N.W.2d 735
    (1997).
    41
    
    Id. at 709,
    559 N.W.2d at 737.
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    but before the demolition occurred. A hearing was scheduled
    for 1 hour prior to the demolition, with no further informa-
    tion given to the owner on the specific problems posed by the
    house. We determined that this violated the owner’s due proc­
    ess rights, because the notice failed, under the circumstances,
    to give her a statutorily required reasonable amount of time
    and failed to meaningfully inform her of the complicated and
    substantial specific problems alleged to constitute the hazards
    so that she could have an opportunity to remedy the situation
    and defend her case.42
    Unlike Blanchard, LLNRD’s notice alleged a specific viola-
    tion—that Prokop had “intentionally and repeatedly violated
    the annual reporting requirements”—and provided specific fac-
    tual allegations that the 2015 and 2016 reports were incomplete
    and late. The individual violations of Prokop’s missing data
    were simple and readily apparent from the listed forms without
    the need of an expert, in contrast to the issues alleged to con-
    stitute a hazard in Blanchard.43
    LLNRD’s notice was reasonably calculated to inform Prokop
    about the allegations against him and the issues involved
    in the proceeding. Accordingly, the notice satisfied Prokop’s
    due process rights by informing him of the factual basis for
    the accusation.
    (b) Notice of LLNRD’s Evidence
    Prokop also claims that his due process rights were violated
    by not receiving notice of the evidence LLNRD intended to
    present and that such violation limits the possibility of com-
    petent judicial review. Prokop argues the notice appropriate to
    the nature of the present case includes “notice of the evidence,
    witnesses, and factual basis for the allegations against him,”44
    in part due to his significant property interest to the access of
    ground water.
    42
    Blanchard, supra note 40.
    43
    See 
    id. 44 Brief
    for appellant at 29.
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    GWMPA does not set forth a specific formal due process
    hearing procedure containing the requirement that an NRD
    provide the names of any witnesses who will be called to tes-
    tify against the alleged violator, an opportunity to examine any
    documents that will be presented at the hearing, the right to be
    represented, and an opportunity to cross-examine all witnesses
    and to present evidence material to the issues.45 Neither do the
    rules of LLNRD set forth rules of procedure regarding prehear-
    ing discovery. As a result, we must consider Prokop’s argument
    under the bare minimum due process requirements.
    Prokop alleges not only that LLNRD failed to provide him
    notice of the evidence but also that he repeatedly requested the
    evidence prior to the hearing and was denied. However, in the
    record before us, there is no available evidence or stated alle-
    gations that would indicate Prokop requested and was denied
    access to LLNRD’s evidence prior to the hearing, including
    the 2015 and 2016 reports. Thus, we consider whether LLNRD
    was required to provide Prokop with notice of the evidence it
    intended to present and not whether LLNRD violated its due
    process obligations by refusing Prokop’s alleged request for
    access to the evidence.
    [19,20] There is no due process requirement that an NRD
    provide notice of evidence to an adverse party prior to a hear-
    ing. In Cain v. Custer Cty. Bd. of Equal.,46 we stated that,
    while similar to a judicial proceeding, an adjudication hear-
    ing before an agency does not guarantee an individual any
    particular form of state procedure. In States v. Anderson,47 we
    declined to recognize prehearing discovery as a requirement of
    due process but acknowledged that administrative bodies have
    the authority to provide discovery which must be exercised
    judicially and not arbitrarily. And in Marshall v. Wimes,48 in
    45
    Compare § 46-743, with Neb. Rev. Stat. § 79-832 (Reissue 2014).
    46
    See, e.g., Cain, supra note 32.
    47
    States v. Anderson, 
    219 Neb. 545
    , 
    364 N.W.2d 38
    (1985).
    48
    Marshall v. Wimes, 
    261 Neb. 846
    , 
    626 N.W.2d 229
    (2001).
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    addressing the refusal of an administrative body to issue a
    subpoena for appearance at a hearing, we explained that due
    proc­ess requires notice, identification of the accuser, factual
    basis for the accusation, reasonable time and opportunity to
    present evidence concerning the accusation, and a hearing
    before an impartial board.
    [21,22] We have held that due process involving deprivation
    of a significant property interest requires notice and an oppor-
    tunity to be heard that is appropriate to the nature of the case.49
    Stated another way, due process depends on, in part, whether
    the notice was sufficient to provide the party a reasonable
    opportunity to confront and cross-examine adverse witnesses
    and present evidence.50
    Here, LLNRD’s notice was sufficient to provide Prokop a
    reasonable opportunity to confront and cross-examine adverse
    witnesses and present evidence. The notice was given 23 days
    before the hearing, informed him of the time and location of
    the hearing, provided potential penalties, informed him that
    he would have the opportunity to address the charges and pre­
    sent evidence in his defense, and, as determined above, was
    sufficient to notify him of the charges and factual allegations
    supporting those charges, including that the 2015 and 2016
    reports were deficient and that these deficiencies were part of
    an intentional and continuing pattern.
    The evidence LLNRD provided at the hearing included
    the notice, proof of service and publication of the notice,
    the reports specified in the notice, LLNRD rules establishing
    LLNRD’s authority to require and enforce the information on
    the reports, the complaint and order in Nance County District
    Court case No. CI 13-01, and testimony concerning the defi-
    ciencies of the reports and why the deficient material was
    important. All of this evidence was either a source of author-
    ity that was referenced in the notice, documents involving
    49
    See, Cain, supra note 32; Blanchard, supra note 40.
    50
    
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    the notice and its receipt, or factual confirmation of specific
    allegations set forth in the notice. As such, the evidence pre-
    sented was a natural extension of the notice and Prokop was
    sufficiently informed to provide him a reasonable opportunity
    to cross-examine LLNRD’s witnesses and present evidence at
    the hearing.
    (c) Notice of Use of Prior Violation
    Prokop specifically claims his due process rights were vio-
    lated by not receiving notice of LLNRD’s intended use of case
    No. CI 13-01. By not receiving notice of LLNRD’s intent,
    Prokop argues, he was denied the opportunity to gather evi-
    dence, present witnesses, and prepare a defense concerning the
    use of the prior proceedings. Further, Prokop claims case No.
    CI 13-01 had nothing to do with the present allegations and
    should not have been admitted and considered by the board.
    [23] First, as discussed above, due process does not require
    that LLNRD provide notice of its specific evidence to Prokop
    prior to the hearing.51
    LLNRD’s notice did inform Prokop of its allegation that
    Prokop has “intentionally and repeatedly violated the annual
    reporting requirements.” Case No. CI 13-01 was relevant to
    LLNRD’s allegation because it was evidence of continued,
    similar violations. Prokop emphasizes in his brief that case
    No. CI 13-01 concerned illegal wells and alleges he would
    have presented further evidence on the facts surrounding those
    wells, but LLNRD used case No. CI 13-01 as evidence that
    Prokop had a history of violating LLNRD’s reporting require-
    ments. While case No. CI 13-01 does address the illegal wells,
    it also, more relevantly, finds Prokop in violation of reporting
    obligations and orders him to provide the required reports.
    As such, LLNRD’s notice informing Prokop of its allegation
    that he has “intentionally and repeatedly violated the annual
    reporting requirements” appropriately informed him that his
    51
    See, e.g., Cain, supra note 32; Marshall, supra note 48; Anderson, supra
    note 47.
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    prior violations, including those violations under case No.
    CI 13-01, would be at issue and that they would be relevant to
    the Board’s consideration of a potential penalty.
    4. Possibility of Competent
    Judicial R eview
    Prokop assigns the district court erred in finding LLNRD’s
    action did not limit the possibility of competent judicial review.
    Specifically, Prokop claims he was not provided adequate
    notice of the claims against him and LLNRD’s intended evi-
    dence, which deprived him of the opportunity to gather evi-
    dence and arrange for witnesses to testify on his behalf.
    Because we determined above that Prokop was provided
    adequate notice of the claims against him, was not entitled to
    notice of the specific evidence LLNRD intended to present,
    and was given opportunity to present his own evidence and call
    his own witnesses, Prokop’s assignment that he was deprived
    of the possibility of competent judicial review due to lack of
    notice is without merit.
    5. Taking Without Just Compensation
    Prokop contends LLNRD’s issuance of a cease and desist
    order suspending his access to ground water, as modified by the
    district court, amounts to a taking without just compensation.
    [24-26] A takings analysis begins with an examination of
    the nature of the owner’s property interest.52 Ground water, as
    defined by § 46-706, is owned by the public, and the only right
    held by an overlying landowner is in the use of the ground
    water.53 As noted above, the right of an owner of overlying
    land to use ground water is an appurtenance constituting prop-
    erty protected by Neb. Const. art. I, § 21.54
    [27-29] Through its police power, the State has the power to
    determine public policy with regard to ground water and can
    52
    Hill v. State, 
    296 Neb. 1
    0, 
    894 N.W.2d 208
    (2017).
    53
    See In re Application U-2, 
    226 Neb. 594
    , 
    413 N.W.2d 290
    (1987).
    54
    Sorensen, supra note 34.
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    alter the common law governing the use of ground water.55 The
    appropriate exercise of police power occurs where an owner
    is denied the unrestricted use or enjoyment of his property, or
    his property is taken from him, because his use or enjoyment
    of such property is injurious to the public welfare.56 This is in
    contrast to eminent domain, where property is taken from the
    owner and applied to public use because the use or enjoyment
    of such property is beneficial to the public.57 Appropriate use
    of police power includes that the State place limitations on the
    withdrawals of ground water in times of shortage.58
    Here, LLNRD’s reporting requirements were implemented,
    in part, to address the goals under GWMPA of water quality
    and pollution control and address levels of nitrate nitrogen
    and other contaminants in ground water. In order to do so,
    LLNRD rules and regulations and GWMPA require various
    data from operators, including actual crop yield, nitrogen
    application, and water applied. This information is necessary
    to create long-term solutions to prevent levels of ground water
    contaminants from becoming too high and creating health
    hazards.59 By not complying with the reporting requirements,
    Prokop was preventing LLNRD from information necessary
    to perform its duties under GWMPA. Thus, LLNRD limited
    Prokop’s use, because his use or enjoyment of such property
    was injurious to the public welfare and, in doing so, this was
    an appropriate exercise of police power and did not amount to
    a taking without just compensation.
    6. Exhibits 4 and 5
    Prokop assigns the district court erred in declining to receive
    exhibits 4 and 5 to supplement LLNRD’s record. Prokop
    55
    See Bamford v. Upper Republican Nat. Resources Dist., 
    245 Neb. 299
    , 
    512 N.W.2d 642
    (1994).
    56
    Strom v. City of Oakland, 
    255 Neb. 210
    , 
    583 N.W.2d 311
    (1998).
    57
    
    Id. 58 See
    Bamford, supra note 55.
    59
    See § 46-709.
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    claims these exhibits were admissible under “an exception to
    the general prohibition of extra-record evidence” for evidence
    of alleged procedural irregularities.60
    However, exhibits 4 and 5 do not provide evidence relevant
    to whether there were procedural irregularities denying Prokop
    due process. Instead, Prokop purports that these exhibits dem-
    onstrate what evidence he could have presented if those proce-
    dural irregularities were not present. Evidence of what could
    have been presented if not for the alleged procedural violations
    is not evidence that would indicate whether or not such proce-
    dural violations occurred. Therefore, the district court did not
    err in declining to supplement LLNRD’s record and receive
    exhibits 4 and 5.
    In the alternative, Prokop claims the district court abused
    its discretion in failing to remand the matter to the board for
    further proceedings to allow Prokop the opportunity to pre­sent
    the evidence from exhibits 4 and 5 in the interest of justice.
    Prokop’s argument centers on the allegation that he was denied
    due process and not provided sufficient notice of the claims
    against him. Having determined that the notice was sufficient
    to inform Prokop of the claims against him and that he was not
    entitled to a notice of the evidence which LLNRD intended to
    present, Prokop’s claim that the district court erred in failing
    to remand the matter to allow him to supplement the record is
    without merit.
    7. Attorney Fees
    Finally, Prokop assigns the district court erred in failing to
    reverse the board’s order and failing to award attorney fees,
    because LLNRD’s position was not substantially justified.
    Under Neb. Rev. Stat. § 25-1803 (Reissue 2016), a court hav-
    ing jurisdiction over a civil action brought by the State or an
    action for judicial review brought against the State pursuant
    to the APA shall award fees and other expenses to the pre-
    vailing party unless the prevailing party is the State. Because
    60
    Brief for appellant at 33.
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    we determined the district court did not err in affirming the
    board’s order, Prokop was not the prevailing party and the
    district court did not err in declining to award Prokop attor-
    ney fees.
    8. Modification of Duration of
    Penalty LLNRD Imposed
    On cross-appeal, LLNRD and the board assign the district
    court erred in modifying the penalty from a 4-year suspension
    of Prokop’s ground water rights to a 1-year suspension with the
    possibility of 3 additional years if Prokop continues to violate
    LLNRD’s reporting requirements. In support of this assign-
    ment, LLRND asserts the district court should have given def-
    erence to the board’s penalty. However, this assertion is at odds
    with the district court’s standard of review.
    [30] Any person aggrieved by an order of an NRD issued
    pursuant to GWMPA may appeal the order, and that appeal
    shall be in accordance with the APA.61 That appeal is con-
    ducted by the district court without a jury de novo on the
    record of the agency.62 In a de novo review on the record of
    an administrative order, the district court is required to make
    independent factual determinations based upon the record, and
    the court reaches its own independent conclusions with respect
    to the matters at issue.63
    Here, the district court performed such a de novo review and
    determined that the 4-year suspension was unreasonable under
    the circumstances of the case and modified the penalty to a
    1-year suspension with a possibility of 3 more years if contin-
    ued noncompliance.
    LLNRD and the board acknowledge the statutory standard
    of review is de novo when a court is reviewing questions of
    fact or law. However, LLNRD and the board argue that the
    determination of a penalty is not a factual or legal issue but is,
    61
    See § 46-750.
    62
    Neb. Rev. Stat. § 84-917(5)(a) (Reissue 2014).
    63
    See Medicine Creek, supra note 9.
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    instead, a policy matter. LLNRD and the board argue GWMPA
    provides NRD’s deference to determine such penalties through
    operation of § 46-746(1), which provides a violator “shall be
    subject to the imposition of penalties imposed through the con-
    trols adopted by the district, including, but not limited to, hav-
    ing any allocation of water granted or irrigated acres certified
    by the district reduced in whole or in part.”
    We disagree with LLNRD and the board’s interpretation.
    First, the language of § 46-746(1) does not limit the pos-
    sibility of judicial review of the determination of penalties.
    Moreover, GWMPA does not limit what parts of an order are
    to be reviewed under the APA, stating “[a]ny person aggrieved
    by any order . . . may appeal,”64 and the APA states “the review
    shall be conducted . . . de novo,” without limiting the review
    of the order.65 As stated above, a district court in reviewing an
    administrative order is required to make independent factual
    determinations and reach independent conclusions with respect
    to the matters at issue.66 Clearly, the imposition of Prokop’s
    penalty was a matter at issue in the board’s proceedings, as
    evidenced by the amount of thought and consideration LLNRD
    alleges the board undertook in determining the severity of the
    issued penalty.
    Because the district court utilized the appropriate de novo
    review in considering LLNRD’s imposition of the penalty and
    because the modified penalty conforms to the law, is supported
    by competent evidence, and is neither arbitrary, capricious, nor
    unreasonable, the district court did not err in modifying the
    duration of Prokop’s penalty.
    V. CONCLUSION
    For the reasons stated above, the district court did not err in
    determining that LLNRD had authority to require actual crop
    yield data from Prokop, that LLNRD had authority to impose
    64
    § 46-750.
    65
    § 84-917(5)(a).
    66
    See Medicine Creek, supra note 9.
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    a suspension of ground water access for noncompliance with
    reporting requirements, that Prokop’s right to due process was
    not violated in the proceedings before LLNRD’s board, that
    Prokop was not denied the possibility of competent judicial
    review, that the suspension of Prokop’s ground water access
    was not a taking without just compensation, that exhibits 4 and
    5 should not have been admitted as “extra-record evidence,”
    and that Prokop was not entitled to attorney fees. The district
    court also did not err in its modification of the duration of
    Prokop’s penalty.
    A ffirmed.
    Miller-Lerman and Freudenberg, JJ., not participating.
    Papik, J., concurring.
    This court concludes that LLNRD had the authority to
    require the submission of actual crop yield data in at least
    partial reliance on the principle that courts are to afford def-
    erence to an agency’s interpretation of its own regulations
    unless plainly erroneous or inconsistent. We have cited and
    applied this principle on many occasions over the last several
    decades. See, e.g., Melanie M. v. Winterer, 
    290 Neb. 764
    ,
    
    862 N.W.2d 76
    (2015); Kosmicki v. State, 
    264 Neb. 887
    , 
    652 N.W.2d 883
    (2002); Wagoner v. Central Platte Nat. Resources
    Dist., 
    247 Neb. 233
    , 
    526 N.W.2d 422
    (1995); Department
    of Banking, Receiver v. Wilken, 
    217 Neb. 796
    , 
    352 N.W.2d 145
    (1984).
    But while we have precedent for the principle that courts
    defer to an agency’s interpretation of its own regulations, I am
    not sure that precedent rests on stable ground. The principle
    appears to have entered our jurisprudence in 
    Wilken, supra
    . In
    that case, we cited a case from the Eighth Circuit holding that
    an agency is entitled to deference when interpreting its own
    regulations. 
    Id., citing Columbus
    Community Hospital, Inc. v.
    Califano, 
    614 F.2d 181
    (8th Cir. 1980). That Eighth Circuit
    case, in turn, cited Bowles v. Seminole Rock Co., 
    325 U.S. 410
    ,
    414, 
    65 S. Ct. 1215
    , 
    89 L. Ed. 1700
    (1945), a U.S. Supreme
    Court case which stated that the administrative interpretation
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    of a regulation has “controlling weight unless it is plainly
    erroneous or inconsistent with the regulation.” The Court in
    Seminole Rock Co. did not offer an explanation as to why the
    agency would be entitled to deference in those circumstances.
    See Decker v. Northwest Environmental Defense Center, 
    568 U.S. 597
    , 617, 
    133 S. Ct. 1326
    , 
    185 L. Ed. 2d 447
    (2013)
    (Scalia, J., concurring in part and in part dissenting) (observing
    that Seminole Rock Co. “offered no justification whatever”).
    Even so, the U.S. Supreme Court reaffirmed this principle
    decades later in Auer v. Robbins, 
    519 U.S. 452
    , 
    117 S. Ct. 905
    ,
    
    137 L. Ed. 2d 79
    (1997).
    In recent years, however, the principle recognized in
    Seminole Rock 
    Co., supra
    , and reaffirmed in 
    Auer, supra
    , has
    been called into question. It has been criticized for lacking a
    coherent rationale, see Perez v. Mortgage Bankers Ass’n, ___
    U.S. ___, 
    135 S. Ct. 1199
    , 
    191 L. Ed. 2d 186
    (Thomas, J.,
    concurring in judgment); for incentivizing the promulgation
    of vague regulations, see 
    Decker, supra
    (Scalia, J., concurring
    in part and in part dissenting), and for violating the separa-
    tion of powers, 
    Perez, supra
    (Thomas, J., concurring in judg-
    ment). See, also, John F. Manning, Constitutional Structure
    and Judicial Deference to Agency Interpretations of Agency
    Rules, 96 Colum. L. Rev. 612 (1996).
    The criticism leveled at Seminole Rock 
    Co., supra
    , and 
    Auer, supra
    , by multiple justices of the U.S. Supreme Court (includ-
    ing the author of Auer) had led some to speculate that “Auer
    may not be long for this world.” Bible v. United Student Aid
    Funds, Inc., 
    807 F.3d 839
    , 841 (7th Cir. 2015) (Easterbrook,
    Circuit Judge, concurring in denial of rehearing en banc). See,
    also, Turtle Island Restoration Network v. US DOC, 
    878 F.3d 725
    , 742 n.1 (9th Cir. 2017) (Callahan, Circuit Judge, dissent-
    ing in part) (“Auer’s continued vitality is a matter of consider-
    able debate”). Such speculation may prove to be prescient, as
    the U.S. Supreme Court very recently granted certiorari on
    the question of whether Auer and Seminole Rock Co. should
    be overturned. See Kisor v. Shulkin, 
    869 F.3d 1360
    (Fed. Cir.
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    2017), cert. granted in part sub nom. Kisor v. Wilkie, No.
    18‑15, 
    2018 WL 6439837
    (U.S. Dec. 10, 2018).
    We thus appear to have adopted the principle that courts are
    to defer to agencies’ interpretations of their own regulations
    by decades ago uncritically adopting a dubious proposition of
    federal law that itself may not stand the test of time. While
    that seems reason enough for reconsideration of the principle
    in the appropriate case, I believe there is an additional reason
    to do so: The principle also seems to be in tension, if not at
    outright odds, with Nebraska’s version of the Administrative
    Procedure Act (APA).
    In this case, and many others like it, Nebraska courts are
    called on to review the decisions of administrative agencies
    under the authority granted by the APA. The APA, however,
    provides that the review is to be conducted by the court “with-
    out a jury de novo on the record of the agency.” Neb. Rev.
    Stat. § 84‑917(5)(a) (Reissue 2014). This standard has been
    interpreted to require district courts to make independent deter-
    minations of both factual and legal issues. See Medicine Creek
    v. Middle Republican NRD, 
    296 Neb. 1
    , 
    892 N.W.2d 74
    (2017).
    But if the APA directs district courts to independently decide
    factual and legal questions without deferring to the agency, on
    what basis can courts defer to the agency’s interpretation of its
    own regulations? In my view, the lack of an obvious answer to
    that question is yet another reason why we should reconsider
    whether deference is owed to agencies’ interpretations of their
    own regulations.
    With all that said, the parties have not asked us to reconsider
    our precedent in this case. Without the aid of argument from
    the parties, I do not believe such reconsideration is appropriate
    here. Therefore, I concur in this court’s decision in all respects.
    For the reasons expressed above, however, I would be open to
    reconsidering in a future case whether courts owe deference to
    agencies’ interpretations of their own regulations.