Oral Argument recap: A shorthanded Iowa Supreme Court seems skeptical in Water Works case

By: Rox Laird on September 14th, 2016

If you were a lawyer for the Des Moines Water Works, you might have wondered what happened to your case when two of seven justices were not on the bench for Wednesday’s oral argument.

The fact that Justices David Wiggins and Daryl Hecht were absent signaled they had “recused” themselves, meaning they will not participate in a Water Works decision. The justices do not announce when, or why, they sit out a case. They just don’t participate, leaving the parties and the public to speculate about why.

In any case, it is not a good omen for the Water Works.

The utility already faces an uphill battle to get the Iowa Supreme Court to expose rural Iowa drainage districts to pollution lawsuits. That would depart from a century of precedent, and it would be even less likely with a diminished court.

Wednesday’s proceeding was unusual, as well, because the court was not hearing a full-blown argument in the Water Works lawsuit against drainage districts in three northern Iowa counties for contributing to pollution of the city’s drinking water source. Rather, that lawsuit is being heard in federal court in Sioux City, which has asked the Iowa Court to rule on questions of Iowa law raised in the case.

The questions boil down to this: Can the drainage districts that were created by the Iowa Legislature to drain excess water from agricultural lands be sued for monetary damages caused by pollution that flows from those drainage systems? (For more background on this case, see our earlier post.)

The answer is no, according to lawyers for the drainage districts, citing Iowa Supreme Court rulings dating back to 1904 consistently holding that drainage districts are exempt from damages.

That triggered a lively back and forth between the justices and attorneys:

Justice Thomas Waterman: How does the Water Works propose the court get around those precedents?

John Lande, counsel for the utility: The Court has the power to “re-examine the rationale behind precedent, and there has never been an issue of public health concerns as those raised in this case.”

Waterman: Liability flows from control. What control do the drainage districts have over farming practices?

Lande: They have such control under the Home Rule amendments to the Iowa Constitution that expanded local government powers.

. . . .

Justice Edward Mansfield: If you win this case, what is the remedy?

Lande: “Abatement of the nuisance.”

Mansfield: But what specifically does that mean?

Lande: A number of remedies are possible, but eliminating draining agricultural lands is not among them. “Pollution does not have to be part of drainage of water from the land.”

. . . .

Waterman: How would the drainage districts pay for a money judgment? Could they tax land owners? What is the authority to do that?

Lande: There is an authority to levy an assessment, which would limit a land owner’s exposure to a percentage of harm attributed to that owner.

Waterman: Isn’t there a least-cost alternative? Wouldn’t it be cheaper to deal with the problem at the Water Works treatment plant rather than altering farming practices?

Lande: The Water Works is not suggesting that drainage districts rip out drainage tiles. “Our position: It is important to move water off the land, but it does not have to be done in a way that pollutes the drinking water of 500,000 Iowans.”

 . . . . 

Michael Reck, attorney for the drainage districts, said the Court has already answered every one of the federal’s court’s questions in rulings dating back to near the turn of the last century.

Justice Brent Appel: Are the Court’s precedents from a century ago on drainage districts’ liability exposure still valid today? “Those decisions were issued in the heyday of sovereign immunity. Today we have a different view of tort liability.” Maybe immunity was right in 1900, but “tell us why it is right today.”

Reck: It is still right today. And there are good reasons why the Court preserves precedents that have long been relied upon. If change is called for, it should come from the Legislature, not drainage districts that have no powers beyond carrying out the will of the Legislature to remove water from farmland.

Judging from the justices’ questions, there does not appear to be a large appetite for changing the Court’s precedent on drainage districts’ immunity. At least not as this case was presented.

Even if that is the outcome, however, the Water Works lawsuit would still proceed in federal court on federal questions. That trial is scheduled for next June in Sioux City.

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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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