Des Moines Water Works lawsuit is teed up for the Iowa Supreme Court’s next term

By: Rox Laird on May 31st, 2016

The Des Moines Water Works lawsuit against 10 agricultural drainage districts in three northern Iowa counties will not be tried in federal court in Sioux City for more than a year. But the nature of the lawsuit could be substantially altered by the Iowa Supreme Court as early as this fall.

The public utility that provides drinking water to a half-million customers in central Iowa sued Sac, Calhoun and Buena Vista Counties in federal court last year. The suit asserts that 10 agricultural drainage districts governed by the boards of supervisors of those three counties are a primary source of chemical fertilizers polluting the city’s water.

Before the case goes to trial, however, U.S. District Judge Mark Bennett has asked the Iowa Supreme Court to rule on questions of Iowa law raised in the suit. The questions, in short, are whether those drainage districts can be sued for damages in the first place. The court will consider that issue in its 2016-17 term beginning in September.

Judge Bennett posed four questions to the Iowa Court: (1) Does Iowa law grant drainage districts unqualified immunity from all of the damage claims asserted by the Water Works? (2) Does Iowa law give unqualified immunity from equitable remedies and claims, other than mandamus? (3) Can the plaintiff assert protections afforded by the Iowa Constitution’s Inalienable Rights, Due Process, Equal Protection and Takings Clauses against drainage districts? (4) Does the Water Works have a property interest under the Iowa Constitution’s Takings Clause?

Whether the lawsuit moves forward on those issues in federal court “will depend on the answers to these questions” from the Iowa Supreme Court, Judge Bennett said in his order filed with the Iowa Court.

Thus, an Iowa Supreme Court ruling in the counties’ favor could lead to dismissal of those parts of the Water Works lawsuit seeking damages. That would not necessarily mean the end of the lawsuit, however: The federal court could by judicial order (or mandamus), require the counties to take action to alleviate pollution affecting Des Moines’ drinking water source.

As for the question of whether counties and drainage districts can be sued for damages, the counties say in a legal brief submitted to the Supreme Court that Iowa law has been clear for many decades: Drainage districts are immune to suits for damages. The theory is that drainage districts were created by the Legislature to perform a limited function – to remove excess water from farm fields – and they otherwise have no independent powers.

“Drainage districts do not have authority to tell landowners what nutrients to use on their land, to direct landowners’ management of their properties, or to control how much rain falls from the sky,” the counties argue in their brief. “Drainage districts are merely vehicles to effectuate legislative intent to allow land to be made productive.”

The defendants say the Water Works should direct its complaints to the Iowa Legislature, not to the counties.

The Water Works concedes that drainage districts enjoy immunity under Iowa law, but that is not result of an act of the Legislature; rather, it is the result of Iowa court decisions dating back to the early part of the last century. The utility argues that the underpinnings of that principle have since changed, and the law should change as well.

“Having created the doctrine,” the Water Works said, “the Court also has the authority to abrogate or limit it.”

For one thing, the Water Works points out, the Iowa Constitution was amended in 1978 to give counties independent authority to act without specific authorization from the Legislature. That, the utility says, undermines the argument that they are mere creatures of the state unable to act without explicit legislative authority.

For another, the utility says, the science of modern farming and water quality have altered the public health assumptions behind creating drainage districts without consideration of the downstream environmental consequences.

“At the beginning of the last century, the public health benefits of draining swamplands would have seemed self-evident and supported by the available science,” the Water Works said in its brief to the Iowa Court. “Moreover, such benefits would not yet have been tempered by environmental concerns for resulting water pollution…. Certainly, the current problem of nitrate pollution as a threat to drinking water safety was not foreseen. It is time to re-examine that presumption as to water quality impacts, and this case presents the opportunity.”

Thus, the question before the Iowa Supreme Court is whether it will affirm a century of precedent, as the drainage districts urge, or whether it will change the law to reflect new realities as proposed by the Water Works.

Before it’s all over, the Iowa justices may wonder if they have waded into a legal swamp.

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On Brief is devoted to appellate litigation, with a focus on the Iowa Supreme Court, the Iowa Court of Appeals, and the United States Court of Appeals for the Eighth Circuit.
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