Iowa Court Affirms Order Requiring Abatement of Grain Leg Nuisance

September 25, 2018 | Kitt Tovar

On September 12, 2018, the Iowa Court of Appeals affirmed a Carroll County District Court ruling for the abatement of a nuisance in the form of a grain leg located near the Arthur N. Neu Airport in Carroll County. The court ruled that a Federal Aviation Administration (FAA) finding that the improvement was not a hazard to air navigation did not preempt state and local law. The decision means the farmer must abate the nuisance by either removing the grain leg structure or lowering the height of the grain leg to be in compliance with state regulations.  


A Carroll County farmer built the grain leg in 2013 to help move grain between the farmer’s trucks and bins. Before building, the farmer had received written permission under the agricultural exemption from the county’s zoning administrator to build the grain leg. Additionally, the FAA conducted an aeronautical study of the grain tower and found that while the structure did exceed the obstruction limits, it would not be a hazard to planes as long as the defendants painted the structure and added red light to the top of it. The defendants complied with the requirements, and as an additional precaution, the FAA increased the minimum descent altitude for the airport by 100 feet.

Despite these precautions, officials with the Carrol County Airport Commission filed suit to have the grain leg removed. The district court found the tower to be a nuisance and the safety measures taken to be inapplicable.

Iowa Law

Under Iowa law, any structure that exceeds the federal obstruction standards and obstructs the space required for the flight, landing, or take-off of a plane is considered to be an “airport hazard.” Iowa Code § 329.1(2).  Any “airport hazard” is a public nuisance that must be removed to promote safety for planes. Iowa Code § 329.2.

Federal Preemption

When state law and federal law conflict, courts will consider whether federal law must be followed under the Supremacy Clause of the U.S. Constitution. Federal preemption can either be express or implied. In this case, the court ruled that express preemption did not apply because there was no federal law stating that federal authority was exclusive. Implied preemption can occur when Congress has made such a pervasive regulatory scheme that it intended federal law to have sole jurisdiction over an entire legal issue. The other form of implied preemption is conflict preemption. This occurs when “compliance with both federal and state regulations is a physical impossibility.” Fla. Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-143 (1963).


In this case, the only question the court considered was whether the FAA’s determination that the grain leg was not an airport hazard would preempt the state and local finding that it was.

The court found that while the federal government has exclusive authority of the U.S. airspace, the Federal Aviation Act only sets minimum standards for aviation safety. Although there exists conflict preemption because compliance with both statutes is not possible, the state law was meant to further the purpose of achieving safety within aviation. Therefore, the court found that the state law merely imposes a stricter requirement than the federal statute and that the removal of the grain tower from the airport’s protected airspace would comply with the federal goal of aviation safety. In other words, the state and local laws at issue were not preempted by federal aviation law.

Next Step

The cost of removing the grain leg is substantial, potentially costing around $350,000. The district court judge had ordered a $200 fine for every day the structure remained standing. The grain leg owner plans to appeal to the Iowa Supreme Court to argue that the local agency does not have the final say in aviation safety.