DMWW Asks Court to Save Tort and Constitutional Claims

October 21, 2015 | Kristine A. Tidgren

Another development arose this week in the Des Moines Water Works lawsuit. The Board of Water Works Trustees (DMWW) filed its (very long) resistance to the drainage districts’ motion for partial summary judgment, which the districts had filed on September 24.

The drainage districts’ motion and supporting brief asked the court to enter judgment for the defendants on DMWW’s tort claims. These claims, based on Iowa common law, include allegations of negligence, trespass, public nuisance, and private nuisance. The premise of the districts’ motion was that drainage districts, which are creatures of Iowa statute, are not amenable to suits for tort damages under well-established Iowa law. The defendants also asked the court to enter judgment in favor of the defendants on DMWW’s constitutional claims, arguing, inter alia, that one political subdivision of a state cannot deprive another political subdivision of due process or equal protection rights.

In its resistance and supporting brief[i], DMWW challenges the districts’ claims, arguing that the districts must take responsibility for nitrate pollution caused by agricultural drainage. “No effective measures to address nitrate pollution at its primary source [ag drainage] have been taken for many reasons, including an erroneous, unreasoning, unsustainable, and ultimately shortsighted assumption that agricultural drainage infrastructure is, and must be, totally exempt from legal responsibility for its water pollution.” DMWW continues:

Relying on outdated presumptions and narrow interpretations limiting their authority to express powers, and an oddly inconsistent defense of implied immunity, Drainage Districts disclaim any and all responsibility for the pollution they cause. Worse still, they deny they have any authority to address the issue. In the terms of the familiar, if outdated, adage, “The king can do no wrong”, Drainage Districts say not only that they can do no wrong, but also that they can do no right when it comes to pollution. Thus, this case and the Motion, raise a critical question of the responsibility for water pollution by agricultural drainage districts in Iowa.

DMWW first argues that the court should consider the defendants’ motion to be one for judgment on the pleadings rather than partial summary judgment. This procedural distinction, however, should make little difference to the court’s ruling.

DMWW then asserts that the same Iowa law that might be interpreted to bar this lawsuit against the drainage districts “includes a rule that Iowa law will change when circumstances and conditions change.” DMWW goes on to argue that Iowa case law is outdated and inapplicable to the facts at hand. DMWW asserts that this is a “new day” and that the court should apply a “new rule of liability and responsibility for drainage districts concerning pollution.” DMWW finally contends, “Implied immunity has survived through repetition rather than critical analysis.”

DMWW also argues that immunity is inappropriate under “home rule” analysis. DMWW asserts that Iowa’s “home rule” constitutional amendment (which was finalized in 1978) means that the powers of drainage districts are not restricted to those powers granted to them by statute. DMWW bases this argument on the text of the home rule amendment:

The proposition or rule of law that a county or joint county-municipal corporation government possesses and can exercise only those powers granted in express words is not a part of the law of this state

Fisher v. Dallas County, 369 N.W.2d 426 (Iowa 1985)—the primary Iowa Supreme Court case upon which the districts’ rely for their contention that they are not amenable to suit for tort damages—was decided in 1985. Nonetheless, DMWW argues that the Court did not consider the home rule issue because the parties did not raise it. This, DMWW contends, was a “significant omission.”

In addition to raising the home rule argument, DMWW alleges that the facts of this case rebut the legislative presumption that drainage districts promote “public health.”  As such, DMWW argues, the outdated presumption can no longer serve as a basis for “implied immunity.”

DMWW next argues that immunity for the districts would violate DMWW’s constitutional rights because immunity for the districts would lead to “irrational” results:

The precise issue is one of simple arithmetic. The Iowa Nutrient Reduction Strategy, in line with national goals, seeks a 45% reduction of nitrate and other nutrient pollution. At the same time, it estimates that 8% of nitrate comes from currently regulated sources such as sewer systems and 92% come from unregulated sources, namely agriculture, and primarily drainage. It strains rationality to believe that 8% of the problem can create 45% of the solution. In that context, the irrationality of immunity for drainage is patent, and at the very least these issues require a factual examination.

Finally, DMWW challenges the districts’ argument that DMWW, a political subdivision, cannot assert a constitutional claim against the districts, which are also political subdivisions. Again, DMWW’s primary argument is that the districts are attempting to apply “antiquated and constitutionally questionable” doctrines that are no longer applicable in light of “modern understanding.”

DMWW has requested oral argument, and the districts will no doubt reply to DMWW’s new arguments. But first, the court will have to enter an order accepting DMWW’s 47-page brief. In its argument supporting the bloated filing, DMWW states that the brevity of the drainage districts’ brief in support of its motion for partial summary judgment “belies the complexity of the issues presented to the Court for decision.”

As has been publically stated by DMWW officials, this lawsuit stems from DMWW’s inability to effect change from other branches of government. DMWW reiterates this motivation in its brief:

The nitrate problem in the watersheds from which DMWW obtains its water has been observed and studied for many years but there has been no adequate legislative, executive, or regulatory response.

In the near future, a federal court will make its first major foray into the thicket. The other branches will be watching.

The full brief may be read here.


[i] DMWW’s brief is filed pending approval from the court to file an over-length brief. The rules allow a 20-page brief, but DMWW’s brief was 47 pages.