Commentary

The farmers and drainage districts in Iowa won their case against the Des Moines Water Works (DMWW). It would be unwise not to evaluate the arguments of two justices who concurred in part but also dissented from the DMWW majority opinion.

The justices’ claim Iowa water is so polluted that it does not meet health and safety standards of the federal Safe Drinking Water Act. They examine Iowa case law to determine whether money damages can be levied against the farmers and the drainage districts. They examine the issue of whether the Iowa Constitution can be used by DMWW to argue that its due process, equal protection and takings clauses apply to it. The last issue examined is whether DMWW has a property interest under the Iowa Constitution which could create a takings claim.

The two justices dissenting from the majority opinion spend approximately 60 pages presenting the argument that the drainage district defendants have conducted their operations in a way that causes unlawful water pollution.

No money damages
The first question presented is whether money damages can be sought from farmers and drainage districts. The dissenters claim there are no provisions in Iowa law which expressly prohibits nuisance law from being applied against drainage districts. The dissent declares a nuisance is anything that leads to “…the corrupting or rendering unwholesome or impure the water of any river, stream, or pond, or unlawfully diverting the same from its natural course or state, to the injury or prejudice of others.”

The dissenters examine a number of cases and determined that “Iowa has never allowed tort claims for money damages to be made against a drainage district.”

The majority opinion, you will recall, came to the same conclusion.    

The next question was whether a downstream landowner could obtain an injunction against a drainage district where the activities of the drainage district caused overflow downstream. Again, the dissenters agreed with the majority that a mandamus against the drainage district is not to be allowed. The difference between the majority and the dissenting opinion is that the dissent believes all prior drainage cases had nothing to do with claims arising from “water pollution” The dissent suggests the key difference is drainage districts are not liable for overflow issues but are liable for pollution discharges.

The dissenting opinion has an entire section on “Potential Remedies Against Drainage Districts.” They assert that “…much of the rhetoric of our drainage district cases is not entirely accurate.” The dissenting opinion even says “we should abandon the wrong-headed notion that drainage districts are not entities or whether we should abrogate some kind of immunity based upon some perception of public policy. The real question relates to the ability, or lack of ability, of a drainage district to comply with a court ordered damage or injunctive remedy related to pollution.”

Again, after reviewing a number of cases the dissent concludes there is no power to force the districts to pay money damages for creating pollution. The dissent then reviews the state constitutional challenges raised by DMWW. DMWW argues it has a right to compensation because of the environmental harm caused by the farmers and drainage districts from water pollution. Again, after examining the case law, the dissenters agree with the majority.

The court’s power
The next issue involves whether the court has the power to issue an injunction to abate or halt a water pollution nuisance arising from pollution. The court concludes that injunctive relief is probably available to DMWW if it “…makes the appropriate legal and factual showing supporting its claim.”

The dissenting opinion claims that nuisance theory has provided a remedy for environmental wrongs reaching back to the 17^th century. They declare “…our cases do not uniformly and clearly hold that injunctive relief is not available in the context of a pollution case.”

The dissenters clearly believe the Iowa code does not “categorically” eliminate a nuisance claim such as DMWW’s and the dissent says “The majority is wrong to think otherwise.”

Given the dissents’ lengthy examination of Iowa nuisance law, it should not surprise anyone to see an injunctive claim brought in another context by a plaintiff. The dissent indicates the court should not automatically accept DMWW’s facts, but the injunction remedy “should” be made available. Therefore the dissent believes the case should have gone forward on the basis of an injunction claim.

Time will tell whether this avenue is pursued by DMWW.

The opinions of the author are not necessarily those of Farm Futures or Penton Agriculture.