Parker et al v. Thurston County, Nebraska et al

Filing 21

MEMORANDUM OPINION - Therefore, the Court finds that Nebraska law enforcement retains jurisdiction on public roads, including the roads of Walthill and roads operated by the Bureau of Indian Affairs. A separate order will be entered in accordance with this memorandum opinion. Ordered by Senior Judge Lyle E. Strom. (TCL )

IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEBRASKA
MARK PARKER and GLORIA J.
PAYER, and those similarly
situated,

)
)
)
)
Plaintiffs,
)
)
v.
)
)
THURSTON COUNTY, NEBRASKA,
)
CAROLINE FRENCHMAN, et al.,
)
)
Defendants.
)
______________________________)

8:15CV159

MEMORANDUM OPINION

This matter is before the Court on three motions to
dismiss for failure to state a claim.

Defendants Douglas Luebe

(“Luebe”) and the State of Nebraska were the first to file
(Filing No. 3).

Defendants Darren Wolfe (“Wolfe”), Georgia

Mayberry (“Mayberry”), Leonard Peters (“Peters”), Dan Trimble
(“Trimble”), Mark English (“English”), and Shelly Perez (“Perez”)
were the next to file (Filing No. 15).

Finally, defendants

Village of Walthill, Mike Grant (“Grant”), Gwen Porter
(“Porter”), Vida Stabler (“Stabler”), Drew King (“King”), Michael
Wolfe, Sr. (“Wolfe, Sr.”), Earlene Hradec (“Hradec”), and Randy
Urbanec (“Urbanec”) filed (Filing No. 18).

As of the date of

this memorandum opinion, the plaintiffs have failed to respond to
any motions.

After review of the motions, briefs, indices of

evidence, and case law, the Court finds as follows.

First, the Court finds the United States Court of
Appeals for the Eighth Circuit has already ruled on this issue,
and it found that Nebraska retained jurisdiction over offenses
involving the operation of motor vehicles on public roads or
highways.
1990).

Walker v. Rushing, 898 F.2d 672, 673-74 (8th Cir.

The Eighth Circuit, at the urging of the Omaha Tribe

through an amicus brief, construed an offense that involved the
operation of a motor vehicle on a public road within the
boundaries of the Omaha Reservation as a “matter that was never
retroceded back to the federal government pursuant to 25 U.S.C.
§ 1323(a).”

Id. at 674.

Second, the Court finds the plaintiffs’ reading of the
retrocession expansive.

Judge Robinson’s opinion appears to be

the only place wherein the words “public road” are modified by
the word “state.”

Though ostensibly benign, the plaintiffs read

the order to create a qualification never contemplated in the
retrocession.

The operative statutory definition of highways

during the time of retrocession was as follows:
Highway shall mean every way or
place of whatever nature open to
the use of the public, as a matter
of right, for the purposes of
vehicular travel, but shall not be
deemed to include a roadway or
drive upon grounds owned by private
persons, colleges, universities, or
other institutions.
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Neb. Rev. Stat. § 39-1402 (formerly Neb. Rev. Stat. § 39-741(5)
(1957)).

With this context in mind, the Court finds the

plaintiffs’ arguments misconstrue the retrocession.
Third and finally, the statute of limitations has run
on these claims; therefore, the Court must dismiss the complaint.
See Varner v. Peterson Farms, 371 F.3d 1011 (8th Cir. 2004), 42
U.S.C. § 1983, Neb. Rev. Stat. § 25-207, Anthony K. v. Nebraska
Dept. of Health and Human Servs., 289 Neb. 541, 855 N.W.2d 788
(2014).
Therefore, the Court finds that Nebraska law
enforcement retains jurisdiction on public roads, including the
roads of Walthill and roads operated by the Bureau of Indian
Affairs.

A separate order will be entered in accordance with

this memorandum opinion.
DATED this 27th day of July, 2015.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

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