On March 27, 2019, two environmental groups—Iowa Citizens for Community Improvement and Food and Water Watch—filed a petition in state court seeking injunctive and declaratory relief against the State of Iowa, the Department of Natural Resources and others.[i] It’s not the Des Moines Water Works lawsuit, but it is another legal action asserting that agricultural activity has significantly impaired the quality of the Raccoon River. As compared to the Des Moines Water Works lawsuit, however, the new lawsuit has different legal claims, different parties, and a new venue. It’s a whole different approach to a similar allegation.
The petition states that a meandered portion of the Raccoon River is “impaired for nitrate” because it does not meet the Class C drinking water standards. It also alleges that increased nitrate levels result in adverse health risks to the people of Iowa and increased costs to Des Moines Water Works, which passes those costs to its customers. The petition contends that the Iowa Nutrient Reduction Strategy’s voluntary approach for controlling nonpoint source pollution (affirmed by the passage of SF 512 in 2018) has allowed nitrogen and phosphorus discharges from agricultural sources, including animal feeding operations, to “substantially impair recreational and drinking water use.” Specifically, the lawsuit contends that the State has “abdicated control in favor of the interests of private parties and has allowed agricultural sources to discharge nitrogen and phosphorus without restriction” into the Raccoon River.
The lawsuit, filed in the Iowa District Court of Polk County, asks the court to declare that the State of Iowa has violated its duty as trustee of Iowa’s waterways under the common law public trust doctrine. The plaintiffs ask the court to require the State to “adopt and implement a mandatory remedial plan to restore and protect public use that requires agricultural nonpoint sources and CAFOs to implement nitrogen and phosphorus limitations in the Raccoon River watershed.” The plaintiffs also ask the court to halt the construction and operation of any new medium and large animal feeding operations and CAFOs until the State implements a mandatory remedial plan.
This lawsuit, which does not assert a federal or state Clean Water Act claim or specifically address drainage tile permitting, demands the creation of a new regulatory scheme for nonpoint source pollution based upon two state-law counts: (1) A violation of the plaintiffs’ substantive due process rights and (2) a failure by the State to protect plaintiffs’ interests in recreational and drinking water under the common law public trust doctrine. The claims, while simply stated, are broad reaching and based upon untested legal theories.
The first count alleges that the State of Iowa has deprived plaintiffs of their constitutionally protected property interest without due process of law. This Iowa constitutional claim is based upon the contention that the plaintiffs are public trust beneficiaries with protected property interests in the recreational use and drinking water use of the Raccoon River. The petition asserts that the State failed in its duty of care to safeguard the interest of plaintiffs as public trust beneficiaries. The petition asserts no federal constitutional claims.
Substantive due process claims are difficult to establish. The Iowa Supreme Court has stated that substantive due process “is reserved for the most egregious governmental abuses against liberty or property rights.” State ex rel. Miller v. Smokers Warehouse Corp., 737 N.W.2d 107, 111 (Iowa 2007). Substantive due process prevents the State “from engaging in conduct that shocks the conscience or interferes with rights implicit in the concept of ordered liberty.” Zaber v. City of Dubuque, 789 N.W.2d 634, 640 (Iowa 2010) (quoting Atwood v. Vilsack, 725 N.W.2d 641, 647 (Iowa 2006)); State v. Hernandez–Lopez, 639 N.W.2d 226, 237 (Iowa 2002).
In 2012, the Iowa Supreme Court affirmed dismissal of substantive due process claims alleging that the State had failed to implement proper state-wide standards for public education. King v. State, 818 N.W.2d 1 (Iowa, 2012). In King, the Court expressed “serious doubt” about the viability of a substantive due process theory based on the notion that the government failed to act. Id at 33. The Court ultimately ruled that because the lawsuit did not allege the violation of a “fundamental right,” the rational basis test was applicable. Under this deferential standard, the State must show only a plausible reason for a decision; it must bear a reasonable relationship to a legitimate state purpose.
The second legal count asserts that the plaintiffs are beneficiaries of rights under the public trust doctrine and that as the sovereign trustee, the State has a duty to protect the public use of navigable water and to prevent substantial impairment of navigable water. The count alleges that the State has failed in its duty of care to safeguard these interests by allowing nitrogen and phosphorus discharges from agricultural sources, including animal feeding operations, to substantially impair recreational and drinking water use of a portion of the Raccoon River.
It does not appear that the public trust doctrine has ever been applied by a court to require a state to regulate agricultural nonpoint source pollution. Historically, this common law doctrine, which has evolved differently in different states, has been understood to limit a State's power to dispose of land encompassed within the public trust. Ill. Cent. R.R. v. Illinois, 146 U.S. 387, 452-53 (1892). The public trust doctrine is based on the notion that the public possesses inviolable rights to access certain natural resources. This includes the right to access public lakes and rivers for recreational purposes. State v. Sorensen, 436 N.W.2d 358, 361 (Iowa 1989). But the public trust doctrine in Iowa has a “narrow scope,” and the Iowa Supreme Court has “cautioned against overextending the doctrine.” Fencl v. City of Harpers Ferry, 620 N.W.2d 808, 813 (Iowa 2000).
In Filippone v. Iowa Dep't of Natural Res., 829 N.W.2d 589 (Iowa Ct. App. 2013), the Iowa Court of Appeals affirmed summary judgment for the State in a lawsuit alleging that the Iowa Department of Natural Resources violated the public trust doctrine by failing to adopt new rules regarding the emission of greenhouse gasses in Iowa. In rejecting plaintiff’s claim, the court ruled that there was no precedent to extend the public trust doctrine to include the atmosphere.
Based upon these two legal theories, the plaintiffs ask the court to do the following:
The State will answer the petition shortly. The first court ruling may be in response to a potential early motion to dismiss. We will keep you posted.
[i] State of Iowa, Department of Natural Resources, Bruce Trautman (acting Director of DNR), Environmental Protection Commission, Mary Boote, Nancy Couser, Lisa Gochenour, Rebecca Guinn, Howard Hill, Harold Hommes, Ralph Lents, Bob Sinclair, Joe Riding (Commissioners of EPC), Natural Resource Commission, Marcus Branstad, Richard Francisco, Laura Hommel, Tom Trickett, Phyllis Reimer, Dennis Schemmel, and Margo Underwood (Commissioners of Natural Resource Commission), Department of Agricultural and Land Stewardship, and Michael Naig, Iowa Secretary of Agriculture
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