On March 27, 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. 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 of harm.
The lawsuit contends that a meandered portion of the Raccoon River is impaired by nitrate, leading to adverse health risks to Iowans and increased operational costs to the Des Moines Water Works, which passes those costs on to its customers.
The lawsuit alleges these increased levels of nutrients stem from ag nonpoint sources of pollution, such as runoff from farm fields and animal feeding operations. Under the federal Clean Water Act, “nonpoint source” pollution arises from diffuse sources, such as stormwater runoff. It is primarily managed by the states.
Mandatory nutrient reduction
The plaintiffs allege that the Iowa Nutrient Reduction Strategy’s voluntary approach for controlling nonpoint source pollution has allowed nitrogen and phosphorus discharges from agricultural sources, including animal feeding operations, to “substantially impair recreational and drinking water use.”
Specifically, the lawsuit states Iowa 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.
This lawsuit demands a new regulatory scheme for nonpoint source pollution based upon two state law counts:
- violation of the plaintiffs’ substantive due process rights
- 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.
Substantive due process
The first count alleges that the plaintiffs are public trust beneficiaries with protected property interests in the recreational use and drinking water use of the Raccoon River, and that the state deprived them of these rights without due process of law under the Iowa Constitution.
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.” The court also stated that 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.”
In 2012, the Iowa Supreme Court affirmed dismissal of substantive due process claims alleging that the state had failed to implement proper statewide standards for public education, in 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.
The court ruled that because the suit did not allege the violation of a “fundamental right,” the rational basis test applied. Under this deferential standard, the state must show only a plausible reason for a decision; it must only bear a reasonable relationship to a legitimate state purpose.
Public trust doctrine
The second legal claim in the lawsuit 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 the water.
The lawsuit 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.
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 Department of Natural Resources, 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 gases 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.
Relief being sought
Based upon these two legal theories, the plaintiffs are asking the court to declare that the state has breached its duty as trustee under the public trust doctrine and violated the plaintiffs’ property interests. The plaintiffs also ask the court to declare that the Iowa Nutrient Reduction Strategy is void and inconsistent with the public trust doctrine.
Primarily, the plaintiffs are asking the court to implement a mandatory remedial plan to regulate agricultural nonpoint source pollution and confined animal feeding operations.
The plaintiffs ask the court to stop the construction of any new medium and large animal feeding operations in the Raccoon River watershed until a remedial plan is implemented. The plaintiffs also seek attorney fees.
This lawsuit, while alleging harm similar to that alleged in the Des Moines Water Works lawsuit, asserts completely different legal claims. This action asserts no federal claims, while the primary claim in the Des Moines Water Works lawsuit (which was dismissed in 2017) was that farm drainage tile was subject to federal Clean Water Act permits.
This new lawsuit is testing two state law legal theories, neither of which has been applied in this context before. 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.
Tidgren is an attorney and director of the Center for Ag Law and Taxation at ISU. Contact her at email@example.com.